text:
    CHARLES COBB, Plaintiff and Respondent, v. SAMUEL P. KNAPP, Defendant and Appellant.
    i. principal and agent.
    1. Agent pebsonally liable to vendob, when.

      (a.) When he does not disclose the name of his principal at the time of the sale, although the vendor knows that he is acting as agent in the purchase.
    1. Disclosure of prirusirpal, what not sufficient.

    Where the goods sold are used in the manufacture of an article, and at the time of the sale there is a direction given to deliver at a certain manufactory of the article, known by a certain appellation, e. g., Tower’s distillery, there is not a sufficient disclosure of the principal ; it not appearing that the vendor had any knowledge as to who was carrying on the business of the factory, and no disclosure being made at the time of the names of the parties carrying on the business.
    3. Vendob, bight of action in case of undisclosed peincipal.
    May on discovery of the principal, sue either the principal or the agent, or both.

    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    The action was brought to recover the balance of the purchase price of a cargo of wheat .sold by the plaintiff in October, 1868. The defendant alleges that he was the agent of the firm of C. A. Steen & Co., and that the purchase was made for them, of which the plaintiff had notice. The plaintiff denies that he had such notice, but claims that the sale was made to the defendant, and the charge made against him on his books for the price of the wheat, and a bill of the goods sent to him for payment. It appears that after the sale .the defendant became temporarily insolvent, and the plaintiff brought a suit against the firm of C. A. Steen & Co., upon learning that one Jacob Goldsmith, a man of large means, was a partner of that firm. Upon ascertaining that Goldsmith was not a partner, that suit was abandoned, and this suit was instituted against the defendant.
    The defendant further claimed that on the plaintiff’s own evidence there was a sufficient disclosure of the principal. The evidence he relied on was this :
    “I remember the transaction with reference to this wheat; it was on ’Change. Grain at that time was sold by presenting samples of the bulk of that which you had to sell, in small boxes, with the number of bushels to be sold named on a card, and the description. On one occasion of that kind, I was showing about 3,000 bushels of Milwaukee Avheat, a portion of a boat-load, a part having already been sold. Mr. Knapp came along and priced it. I gave him the price. It did not result in a sale immediately. He went on and looked at other samples. He came back once or twice, or perhaps the third time, before the sale was completed, trying to cheapen, and finally it resulted.in a purchase. Then I asked him where it was to be delivered. Some purchases are made to be delivered near the Atlantic Dock Stores, and some to be delivered at the dock of the buyer. He gave the name of Tower’s distillery—a name I was perfectly familiar with. I knew where it was—on NewtOAvn creek, East river.”
    But plaintiff further testified: “Mr. Knapp said nothing about the firm of Steen & Co. at this time. Some days after this, the bill not being paid, I saw Mr. Knapp. He said he had been disappointed in money, but he would have it in a day or two; and then, for the first time, as my recollection suggests, I asked him who he bought that stuff for, and who it went to, and I am quite clear that was the first time I ever heard C. A. Steen or any one in connection with it. I never knew any of the parties he had named. I asked, ‘Who are Steen & Co.?’ ‘Well,’ he said, ‘they are a very rich distilling concern, which have bought the Tower’s distillery. They have expended $80,000 or $90,000 fixing it up, and they own it now.’ I asked who they were. He named one Steen, Donan, and Jacob Goldsmith. I asked who was Mr. Goldsmith. He said he was a partner of Mr. Bernheimer in the oil business. Said I, ‘ Do you know that Mr. Goldsmith is a partner in the concern ? ’ He said emphatically, ‘ I know it.’ Afterwards I again made inquiry who the firm was composed of. He emphatically named Goldsmith, and said, ‘You know Mr. Bernheimer—he is a partner of his in.the oil business, and he is worth half a million of dollars aside from that, and I know it.”
    He further testified that on a previous occasion he had received instructions from Mr. Knapp in respect to dealings with him as to whom he should charge with the goods he bought; and in answer to the question, “ What instructions did you receive?” he testified :
    “As near as I can remember his words, it occurred like this : ‘ Why have you sent this bill [meaning the bill of a previous purchase] to Mr. Koehler ? If you sent your bill to me you would have got your money three or four days earlier. I want, when you sell any thing to me, to have your bill come to me.’ He seemed to be quite out of patience about it—came to my office and gave Ms own check. It was a Mil I had rendered to his principal instead of to him. After that, I always charged to him directly, as I did in this case, except in one case, where I knew he was acting simply as an assistant to Mr. Wallace, the principal, who was equally active himself.”
    At the close of the testimony on both sides, defendant’s counsel moved for a dismissal of the complaint, which was denied, and he excepted. He then moved that the jury be directed to render a verdict for the defendant, which was denied, and he excepted.
    The cause then went to the jury, under a charge from the judge; and the jury rendered a verdict for the plaintiff.
    Defendant’s counsel then moved on the judge’s minutes that the verdict be set aside and a new trial granted, which was denied, and he excepted.
    An order denying the motion was entered.
    Thereafter judgment was entered on the verdict in favor of the plaintiff.
    From this judgment, and also from the order denying the motion for a new trial, defendant appeals.

      Raymond & Coursen, attorneys, and William A. Coursen, of counsel for appellant, urged, among other things:
    I. The conceded facts (or such as must be conceded on the plaintiff’s testimony) show that at the time of the contract of sale, the defendant did disclose the name (or to that effect) of his principal, and if the plaintiff at that time were satisfied with such disclosure, so far as it went, he could not at any subsequent time, and much less at the expiration of some five years, take exception to the want of definiteness (if it existed) respecting the individuality or names of persons, which the plaintiff must acknowledge, could and would have been made precisely clear if he (plaintiff) had expressed a wish to that effect, at the time of the contract of sale, to the defendant (See Waddell v. Mordecai, 3 Hill (South Carolina;] ; also Southwell v. Bowdich, in the English Court of Justice, Common Pleas Div., quoted in N. Y. Weekly Dig. of October 2, 1876, p. 187; Rathbone v. Bedlong, 15 Johns. 1).
    II. The motion to dismiss the complaint should have been granted. Both principal and agent cannot be sued on a contract made by the agent, even if made in his own name, for the benefit of his principal. Thus, even if the contract in this case were with defendant as agent for C. A. Steen & Co., an undisclosed principal, which defendant denies, the plaintiff could not maintain this suit when a previous suit on the same cause of action against the principals, C. A. Steen & Co., which had been commenced over five years previous to the commencement of this, was still pending on the day of the trial herein. The party with whom the contract is made may sue the agent as principal, or if he elect he may sue the real principal, but he cannot sue both (Story on Agency, 7th ed. 295, last editor’s note; Priestly v. Fernie, 3 Hurls. & Colt. 983 ; Borell v. Newell, 3 Daly, 233 ; Fitzsimmons v. Baxter, Id. 81).

      Lewis Johnston, attorney, and Albert Mathews, of counsel, for respondent, urged:
    I. The defendant, although known to be a broker, not having disclosed his principals at the time of the sale, and the credit on the sale of the goods having been given by the plaintiff exclusively to the defendant, and at the latter’s special request, and he having repeatedly promised to pay the amount, there can be no doubt of the defendant’s liability to pay for the goods (Meeker v. Claghorn, 44 N. Y. 349). 1. An agent purchasing goods for another is himself personally liable : (a.) Where he makes himself a party to the contract; by suffering or procuring the credit to be given to himself, or by promising to pay, or otherwise (Story on Agency, §§ 167, 169 ; Pentz v. Stanton, 10 Wend. 277; Maryland Coal Co. v. Edwards, 11 Sup’m Ct. [4 Hun] 432; Coleman v. Bank of Elmira, 53 N. Y. 393 ; Hovey v. Pitcher, 13 Missouri, 200). (b.) When he does not inform the vendor at time of the sale that he acts as agent, or otherwise disclose the fact of his agency, for some specific third person as hie principal (Story on Agency, § 266; Waring v. Mason, 18 Wend. 435; Raymond v. Eagle Mills, 2 Met. 319). (c.) Where the fact of agency is known to the vendor at the time of the sale ; but the name of the principal is unknown (Story on Agency, § 267; Thomson v. Davenport, 9 Barn. & Cress. 78 ; Mills v. Hunt, 20 Wend. 433; Morrison v. Currie, 4 Duer, 85). 2. If the vendor, knowing of the agency, elect at the time of the sale, to give credit to the agent, it seems he cannot afterwards charge the principal at all. The agent is always liable alone (Patterson v. Gandasequi, 15 East, 62 ; Westmoreland v. Davis, 1 Ala. [N. S.] 301). 3. In all these cases, “ to whom the credit was given,” is a question of fact for the jury; and their verdict, upon sufficient evidence, is conclusive (Huntington v. Brinckerhoff, 10 Wend. 278; Meeker v. Claghorn, 44 N. Y. 352 ; Coleman v. Bank of Elmira, 53 Id. 394; Raymond v. Eagle Mills, 2 Met. 325 ; Hovey v. Pitcher, 13 Missouri, 200).
    II. Upon discovering, after the sale, that the vendee acted as agent for a third person, the vendor may elect to hold either the agent or such third person responsible, and this choice is not conclusive until the agent has settled with his principal or the vendor has had satisfaction (Chitty on Contracts [11th Am. Ed.], 308 and note; Story on Agency, [8th Ed.], § 295, p. 383; Nelson v. Powell, 3 Dougl. 410, and note); 1. Legal proceedings (which are not prosecuted to judgment) against the principal or agent do not discharge or determine the liability of either (Wheaton on Agency, § 473 and note; Raymond v. Eagle Mills, 2 Met. 320-7; Curtis v. Williamson, 10 Q. B. [L. R.] 57; A. D. 1854, per Curiam [Oakley, Ch. J.], Nason v. Cockcroft, 3 Duer, 69, 366). 2. Weither do legal proceedings “prosecuted to judgment” against either principal or agent discharge the other, until the vendor has had satisfaction, (a.) The liability of the agent arises out of the actual contract, and therefore can only be discharged by satisfaction, or by an estoppel from some act of the vendor whereby it becomes inequitable to hold the agent longer liable. (5.) This precise point ivas decided in Philadelphia (Beymar v. Bonsal, 2 Weekly Notes of Cases, Phila. No. 16, p. 299 ; 79 Penn. ).
   By the Court.—Speir, J.

The sale and delivery of the wheat at the “Tower’s distillery,” or “Bliss-ville distillery,” meaning the same place on Wewtown creek, and the price agreed upon, are not disputed. The dispute is whether the plaintiff was given by the defendant when he told him the wheat was to be delivered at this distillery, the name of the firm of C. A. Steen & Co. as the • purchasers who were to be charged. .

There is no doubt that the defendant was a broker and acted as such in the purchase of this wheat. Wor is there any dispute that he acted as the broker of C. A. Steen & Co. in making the purchase, or that the delivery was made to them, or that they were Ms principals.

The only question to be determined is, whether the sale was made to the defendant in this action, or through him to the firm of C. A. Steen & Co., who were the owners at the time of the distillery where the wheat was delivered. There being no exceptions to evidence in the case or to the charge, and no request to the judge to rule upon any question of law, or to submit any particular question of fact to the jury, there can be no question of law open for review on this appeal.

On this single question of fact the jury found for the plaintiff. The exception to the refusal of the judge to dismiss the complaint or to direct a verdict for the defendant must be considered merely formal, unless the weight of evidence is clearly in favor of the defendants on this the only question for the determination of the jury.

The principles of law applicable to this case are elementary, and I do not think they can be disputed by counsel.

If the defendant, although known to be a broker, did not disclose his principals at the time of the sale and delivery of the wheat, and the credit at the time was given by the plaintiff, exclusively, to him, he promising to pay the amount, the defendant is liable for the price of the goods. The instances when an agent purchasing goods for another is himself liable, are when the fact that he is acting as agent is known to the vendor at the time of the sale, but the name of the principal is unknown and he does not disclose it; when the fact that he is acting as agent and the name of the principal are both unknown to the vendor at the time of the sale, and he does not disclose the fact that he is acting, and give some person as his principal; when he makes himself a party to the contract by causing the credit to be given to himself, or by promising to pay.

On the part of the defendant it is in evidence, that at the time he made this purchase, he not only made it on behalf of Steen & Co., but that he disclosed the fact to the plaintiff; that the wheat was to be sent to the mills owned by Steen & Co. ; that the credit was given to them, and that the plaintiff must look to them. This testimony seems to have been corroborated by the testimony of the witness Richardson.

On. the part of the plaintiff, it is in evidence that he had no knowledge of the firm of Steen & Co.; that they were not disclosed to him by the defendant as his principals for whom the purchase was made; and that the wheat was charged to the defendant exclusively; and that he promised to pay upon the presentation of the bill to him for payment.

The fact of the plaintiff’s instituting a suit against the principal, in which he failed to collect his debt, does not prevent his bringing an action against the agent, if he became liable for the payment at the time of the sale.

This court says in a similar case, “where an agent purchases goods without disclosing the name of his principal, he is not discharged from his liability which he thus incurs, by the subsequent discovery of the name of the principal. The only effect of the discovery is that the principal and agent are both liable, and the seller may at his election proceed against either or both” (Nason v. Cockcroft, 3 Duer, 366; Coleman v. Bank of Elmira, 53 N. Y. 394). The suit brought against Steen & Co. was discontinued, and there has been no satisfaction of the claim through that suit. The sum of $1,800 has been obtained, inferentiaily, from that firm on account of this sale, and the defendant on the trial had the benefit of this sum by a deduction from the claim to that extent.

The evidence in the case relating to the main question was conflicting and proper in all respects to be submitted to the jury for determination. Upon a review of the testimony on the trial and especially of the charge of the learned judge to the jury, I think there is no ground for reversing the judgment. It must be affirmed with costs.

Curtis, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    THE NATIONAL TRUST COMPANY, Plaintiff and Respondent, v. ANDREW L. ROBERTS and LYDIA J. ROBERTS, Impleaded with Others, Defendants and Appellants.
    I. CONSPIRACY TO DEFRAUD, CIVIL ACTION FOP.

    1. PROOF, ORDER OP.

      (a.) Pre-concert of Action.
    1. Not always necessary to first give evidence sufficient to establish prima facie pre-concert of action.
    1. Uttering forged paper. When the action is to recover damages by reason of a loan having been obtained on forged paper, and the defendants are charged with conspiring to manufacture and utter the paper, and to obtain the loan thereon, evidence of what occurred between the person making the loan and the defendant applying for it, of the declarations of that defendant made in and about obtaining the loan, of the means employed by that defendant to inspire confidence, and of the fraudulent character of such means, is admissible without first introducing evidence as to pre-concert of action.
    1. Process not served. This notwithstanding that such person, although named as a party defendant, has not been served with summons, and neither appears in, nor defends, the action.
    S. EVIDENCE, WHAT ADMISSIBLE.

      (a.) Financial condition of conspirators.
    1. Where money alleged to have been obtained from the plaintiff through the conspiracy in relation whereof the action is brought, has been attached in the action, evidence of the financial condition of the conspirators while the scheme of the conspiracy was in progress, and when it was carried into effect, is admissible.

    II. WITNESS, INOOMPETENOY OF.
    1. Infamous crime, conviction of in another State or foreign country.

      (a.) Does not render him incompetent as a witness in this State.

      Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    This action was brought by the plaintiffs, a corporation under the laws of the State of ¡New York, against the defendants, to recover the sum of $80,000, and interest, which snm was advanced by the plaintiffs upon forty-two forged bonds of the Buffalo, ¡New York & Erie ¡Railroad Company, on July 5, 1873.
    The loan was made to the defendant, Charles Ralston, who was not served with process, he having run away as soon as he obtained the money from the plaintiffs. The plaintiffs claim that the defendants conspired together to get up and put upon the market these forged bonds, and to divide the moneys obtained among them—that a large amount of money was obtained upon bonds similar to those upon which the plaintiffs made the loan, and at about the . same time and from various parties.
    The defendants, Andrew L. Roberts and Valentine Gleason, answered separately. Lydia J. Roberts, Horace S. Corp and Amelia A. Gleason, each put in separate answers. All the answers contained a general denial of the allegations in the complaint.
    The jury, under the charge of -the judge, rendered a verdict for the sum of $33,685.50.
    Arnold, Elliott & White, attorneys, and Richard C. Elliott, of counsel, for respondents, on the points discussed by the court, urged:
    I. The testimony of Fontaine S. Pettis, taken under commission in Massachusetts, was properly admitted. 1. Pettis, at the time his testimony was taken, was serving out his term of imprisonment for the crime of forgery; he was tried and convicted in Massachusetts. Defendants objected to his evidence being received, upon the ground that the statutes of this State disqualify him from testifying. Our statute provides, “No person sentenced upon a conviction for felony' shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor, or by the legislature, except in the cases especially provided by- law; but no sentence upon a conviction for any offense other than a felony shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter or proceeding, civil or criminal” (3 R. S. [Banks’ 5th Ed.] 988, § 33). 2. This provision of the statute is penal, and the same must be strictly construed. 3. The statute refers to a conviction within this State, and not to a foreign conviction ; that such was the intention is shown by the provisions of the statute relative to punishment upon. subsequent convictions (3 R. S. [Banks’ 5th Ed.] 985, §§ 9, 10). 4. The statute, section 9, provides for a longer term of imprisonment upon a subsequent conviction, and section 10 expressly provides that “every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in any foreign country, of an offense, which if committed within this state would be punishable by the laws of this state by imprisonment in a state prison, shall upon conviction for any subsequent offense committed within this state, be subject to the punishment herein prescribed upon subsequent convictions in the same manner and to the same extent as if such first, conviction had taken place in a court in this State.” This section of the statute precedes the section first stated prohibiting the receipt of evidence upon a conviction, and only some three pages; if it had been the intention to disqualify upon a conviction out of the State, the statute would have so provided. Under the laws of the State of Massachusetts, where Pettis was convicted and was serving out his term of imprisonment, his testimony was competent. By the general statutes of Massachusetts of 1860, chap. 131, sec. 13: “No person shall be excluded by reason of conviction, &c., from giving evidence either in person or by deposition, &c. But conviction may be shown to affect credibility.” Again, under laws of Massachusetts, 1867 to 1872, chap. 393, sec. 1: “No person of sufficient understanding shall loe excluded from giving evidence as a witness in any proceeding civil or criminal in court or before a person having authority to receive evidence,” except in certain cases (and those cases do not exclude the evidence in question); and it is expressly provided that the testimony is not prohibited by reason of conviction, &e., as before stated and that the conviction could be shown to affect his credibility. In Commonwealth v. Green (1822), (17 Mass. 514), it was decided that the conviction of an infamous crime in a foreign country, or in any other of the United States, does not render the subject of such conviction an incompetent witness in courts of this State. And see Commonwealth v. Hall (4 Allen, 307). These decisions were before any special statute had been passed, and were decided on common law principles alone. In this State, in case of Cole v. Cole (50 How. Pr. 60), Westbrook, J., passes upon the question in that case ; a motion was made for a new trial, and upon such motion the affidavit of one Canter was presented. Canter was at the time serving out a term of imprisonment for nine years and six months in Pennsylvania, having been convicted of forgery, and the affidavit was made in prison. Justice Westbrook received the affidavit, holding that the conviction in another State would not probably render his evidence here inadmissible, and passes upon it in deciding the motion. Also see Greenleaf on Evidence, vol. 1 (Redfleld’s edition), 423, § 376. 6. Under the new revision of statutes of New York, section 832, it is provided that a conviction for crime does not exclude the witness, but the conviction may be proved for the purpose of affecting the weight of his testimony ; may prove it by his cross-examination ; witness must answer any questions relevant to that inquiry; and the party cross-examining is not concluded by witness’s answers (Code of Remedial Justice [Throop], ch. I-XIII. 275; Laws of 1876, § 832, p. 158, of the act relating to Courts, &c. See the able remarks of Mr. Throop in his notes to this section, at p. 163 of the notes).
    II. The exception taken to the admission in evidence of the transaction between Mr. Mangam, the president of the Trust Co., and Ralston ; the admission of the forged bonds ; the paper signed by Ralston ; the check given Ralston by Mr. Mangam, and a photograph of the man Ralston, identified by Mr. Mangam, is untenable; the evidence was all proper. Plaintiffs must commence their case somewhere, and the proper way to commence was, as they did, at the beginning ; the conspiracy had to be proved by separate and distinct acts of the parties. Every act and declaration of each one of the parties conspiring is admissible (1 Greenleaf on Evidence, § 3 [Redfield’s edition], vol. 3, §§ 89-97). And the order of proof was entirely discretionary with the judge.

      Ambrose H. Purdy, attorney and counsel, and A. Oakey Hall, counsel for appellant, on the points discussed by the court, urged:
    I. The exception to the testimony, respecting transactions of plaintiff with Ralston, and Ralston with Fellows, before any evidence had been given as to pre-concert of action, were well taken. 1. If the theory of the plaintiff’s case was that Ralston and the Roberts defendants were conspirators, the order of proof is imperative, and some evidence tending to show pre-concert of action must be given (1 Greenlf. Ev. [Redfield’s ed.]§ 111; Ormsby v. People, 53 N. Y. 473). And in all joint wrongs there must be proof of participation in the same wrongful acts (2 Hilliard on Torts, 457). 2. If the theory was that the Roberts were responsible for the uttering of the bonds, should they be proven to have participated in their forged manufacture, then the testimony about Ralston should have been confined to his acts in the uttering. But the court admitted the forged letter of introduction which he brought. This was utterly inadmissible, without proof towards a conspiracy of Roberts with Ralston, for it was an independent act of fraud not necessarily connected with the uttering, and tended to prejudice the jury. And equally inadmissible if, without proof of conspiracy, ifiaintiff sought to raise the presumption of law which the court charged respecting responsibility of Roberts for the results of Ralston’s uttering. Inadmissible because no connection for Roberts shown with the forged letter. This ruling would be making an original wrong-doer responsible for the means and method of accomplishing the wrong, when the law for necessary public protection sometimes made him merely responsible for the results, although no connection may have been established between the original wrongdoer and a subsequent one. The court carried the error very far, when it also ruled in under exception “all declarations of Ralston that formed part of the loan,” and all acts. The material question (assuming arguments, gratia, plaintiff’s theory and the correctness of Judge Sedgwick’s charge) should have been confined to the inquiry, viz. : did Ralston utter to plaintiff forged paper, and with what damage % All testimony beyond that tended to accumulate prejudice. Counsel for plaintiff, and the court, at this stage, seemed to have acted upon the idea that Ralston and Roberts were conspirators in the uttering. The same reasoning will assign similar error in the testimony of M. Fellows respecting forgery of the letter of introduction.

      II. The testimony of Pettis was incompetent. Upon the common law rule of evidence governing records, which prove convictions for felony, authorities differ. But before discussing the common law rule, let us refer to the statutory one of evidence upon this subject in New York. The 2 R. S. 701, § 23, says : “No person sentenced upon a conviction for felony shall be competent to testify in any cause, matter, or proceeding, civil or criminal, unless he be pardoned by the governor, or by the legislature,” &c. The court below construed this as if it read only persons sentenced for felony in this State, &c. But while the revisors were, of course, laying down a rule of evidence for our courts, yet their words “or by the legislature,” show that they intended, in ratifying a common law rule, to apply it universally to the principle of infamy; because, in our State, the legislative can have no power to pardon. And the phrase indicated that the rule referred to convictions in other States. Pardon power was restricted by the then constitution (1822) to the governor (art. 3, § 5), except in treason. However, by the common law, every felon while undergoing sentence sub modo extra legem positus, or while awaiting execution, was civiliter mortuus (Co. Lilt. 130a, 133a). And other provisions of the Revised Statutes, § 19, in regard to suspension of civil rights, were simply declaratory of the common law (see Revisor’s notes to the section). The main feature in the individual punishment of a felon, while undergoing sentence, was the appalling one that he had no legal status. In the language of Balcom, J., Freeman v. Frank (10 Abb. Pr. 371), “The rights and liabilities of a person civilly dead, are as entirely gone as though he were dead.” Equally so for extra legem positus when his rights are civilly suspended, although not absolutely dead. “The suspension of legal rights begins with sentence” (per Parker, J., Miller v. Finkle, 1 Park.

      Cr. 377). This court, in O’Brien v. Hagan (1 Duer, 664), considered this suspension question so as to allow an abatement of suit when plaintiff’s civil rights were affected by incarceration for a term. The Massachusetts statutes confer upon its convicts the right to give testimony, but, of course, only in Massachusetts courts. Thereby showing that the common law rule of evidence had to be repealed or modified by statute. Thus Hew York, within its own courts, denies the right of testimony to all convicts whose testimony is therein offered, while Massachusetts confers the right upon convicts testifying in its courts. Pettis, by his commission-testimony, entered the superior court precisely, in law, as if plaintiff had brought him into the witness box, before judge and jury, from the Charles-town State prison in custody of a keeper, and by some arrangement with officials. All de bene esse testimony is only admissible when the oral examination of the witnesses under it would also have been admissible. The court and the counsel for plaintiff treated the question below, throughout, as if Pettis came on the stand as a freeman, while a record of former conviction, with sentence upon it fully served out, had been introduced to disqualify him. -It is to such kind of presentation of witnesses that every one of the decisions regarding foreign convictions attaches. But our present objection presents a more formidable front. Our objection went to the absolute incapacity of Pettis as a witness. He is a convict undergoing sentence. He is positus sub modo extra legem. He cannot make an affidavit. He cannot execute a paper. Perhaps (yet this is doubtful) he might in his own case and to protect his own rights (O’Brien v. Hagan, 1 Duer 664, see concluding words of opinion), but not as against rights of others. An authority (in 2 Stra. 1148) allowed the affidavits of convicts in personal exculpation. Pettis stood in court on the same footing as a lunatic. There was temporary civil incapacity. He possessed infamia juris (Phillips on Ev. chap. 3 of text) as distinguished from infamia facti (Ib.). The rule came to Saxon, from the Roman law: Publico judicio damnati non sunt ad testimonii fidem (Dig. 1, 22 tit. 5 de Testibus, art. 3, § 5). To “ credibility destroyed,” was added “ absolute incompetency.” It is the suffering of the punishment and its termination which restores the competency under some of the authorities (1 Phillips, ib.). This logically shows that daring punishment the incompetency is absolute. “It does not seem clear whether the restoration to competency by suffering a sentence has proceeded on the ground of incompetency being in the nature of punishment, or on the ground of a regenerating effect of punishment upon the moral feelings,” &c., &c., &c. (Note 18 of Cowen & Hill). Regarding the argument by respondents that this State will not take notice of records or punishments in other States, Cowen & Hill, note 13, says: “A person convicted of infamous crime in one State was held incompetent in another, within the provisions of the constitution of the United States, and of the act of Congress declaring the effect of the records of one State in every other.” Even this was as to effect of record of conviction on a witness who had served sentence. So that the testimony of Pettis would be objectionable on authority upon either ground. 1. His competency is suspended because undergoing punishment—or in other words, he is temporarily incapacitated. 2. Had he served out his punishment, even, the foreign record of his conviction ought, on principle, to have excluded. And, in reading the State Prison code of our own State (which is ch. 460 of the Laws of 1847), it is impossible not to observe how clearly there runs throughout it a recognition of the common law principle that civil disability during imprisonment is part of the punishment. Even when one convict committed an offense against another, the sufferer could not be a witness at common law, and sections 150 and 151 of that code were passed to make an exception to the ordinary incompetency. In Great Britain, by 6 & 7 Vic. c. 85, “incapacity from crime” has been removed. Yet this is only to the “discharged,” and not to the convict under sentence, as it would so appear from last edition of Best, section 141 (Morgan's Best on Ev. ed. 1875, vol. 1, p. 219). Perusal of the narrative given by Pettis must show to the court the soundness (upon grounds of protection to suitors and the community) of the incapacity rule which we have endeavored to show has been established as against a convict expiating his offense. Convicts are, in their feelings, while undergoing imprisonment, hostes humanis. They are embittered; and their sense of personal injury becomes superior to moral obligation or regard for individual rights. The answers of Pettis are, throughout his narrative, only abusive conclusions, and while the judicial or the logical mind might not be deceived by his answers, a juryman readily would be. Not only is the common law correct in excluding the testimony of a convict while within prison walls, because that his incapacity shall be part of his punishment, but because his disregard of social obligations apparent in his original infamy is heightened by his anger at the restraints. Especially is it so of Pettis, who claims to testify against those whom he regards as his enemies.
   By the Court.—Speir, J.

The first proposition advanced by the appellants is that assuming the theory of the plaintiff’s case to be that Ralston and Roberts and wife were conspirators, the order of proof was imperative, that some evidence tending to show pre-concert of action must be given.

In other words that the testimony showing that Ralston made the application to the plaintiffs for the loan of the money claimed in the complaint upon these bonds as security, and that to inspire confidence he presented a forged letter of introduction, and their evidence as to his declarations made in and about obtaining the loan was inadmissible without first giving evidence of the conspiracy, on the ground that it was an independent act of fraud not necessarily connected with the uttering of the bonds, and tending to prejudice the jury.

It is important to see what part Mr. Ralston took in this enterprise. He had an office at No 58 Broadway, room 11, in this city, and was or pretended to be a broker. He was unknown to the president of plaintiff’s company, with whom he conducted the negotiation, and presented a forged letter of introduction from George A. Fellows, who was a trustee in plaintiff’s company. In two or three days thereafter he obtained the loan on these spurious bonds. He who was known as Charles Ralston at 58 Broadway boarded at the house of a respectable family by the name of Thomas, at No. 257 West Fourteenth street in June, 1873, and had also resided with this family at No. 312 West Fourteenth street, and was known at both places by this family and other boarders as Walter Stewart. The defen- ' dants Mr. and Mrs. Gleason visited him there. Stewart (Ralston) left Mr. Thomas’s house after obtaining the money from the plaintiffs, in June, 1873, and that was the last they saw of him. Stewart’s conduct was such, while at Mr. Thomas’s house, that his real character was not known or suspected, and when they first heard of the report of his fraudulent transactions, Thomas called upon the defendant, Gleason, whom he knew only as a friend of Stewart, and was astonished when they denied knowing him, or that they had ever been at Thomas’s places of residence. Ralston’s bank book on the Fourth National Bank was' found in the box of defendant Valentine Grleason, at the New York Safe Deposit Company. This bank was the one in which Ralston kept his accounts and in which the plaintiff’s check was deposited by him. No explanation was offered on the trial of the facts disclosed by this testimony.

Looking at the complaint it would seem that the testimony of the president of the plaintiff’s company relating to the application for the loan, the security upon which it was made, the person negotiating it, and all the circumstances under which it was actually completed, would be the first step to be taken on the part of the prosecution. The action was for the recovery of this money obtained fraudulently upon fictitious and counterfeit bonds. The fact of the loan being made was the first thing to be established. The theory of the plaintiff’s case is not that the defendant Roberts was alone responsible for the uttering of the bonds. The fact clearly appears that Ralston was the defendant who first put them on the market. A man utters a false note or bond who gives it in payment or security knowing it to be false. This was what Ralston did. He presented a forged letter of introduction purporting to have been written by one of the trustees of the plaintiff’s company, and upon it was enabled to secure the confidence of the plaintiffs in obtaining the money and receiving these worthless bonds as security for the repayment. This testimony of the president therefore directly proved that Ralston took the first step in the uttering. Prior to the time of making this loan, it appears that Stewart (Ralston) was interviewed by Mrs. Pettis for the purpose of ascertaining whether the defendants, Roberts and Grleason, were going to dispose of these bonds. That he stated “they had changed their minds somewhat about sending them to Europe, or how they were to put them on the market.” He said, “Tell your husband he thought they were going to get a loan on them, and the balance they would send to some of the Western States.”

As a general rule a foundation must first be laid, by proof, sufficient in the opinion of the judge to establish prima fade the fact of conspiracy between the parties to be laid before the jury. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan, is in contemplation of law the act and declaration of them all (1 Greenl. Ev. [Redfield’s Ed.] § 111). The facts thus disclosed at the commencement of the trial on the examination of the first witness were more than prima facie, and did not rest even in the discretion of the court. It was not possible that the jury could be misled to infer itself of the fact of conspiracy, from the declaration of a stranger. Ralston was no stranger in the design and plan to defraud. He was the leading conspirator. This clearly takes the case out of the rule insisted upon by defendant’s counsel, that the obtaining the money by Ralston, and the introduction of the forged letter, were independent acts of fraud unconnected with the conspiracy of Roberts with Ralston.

It is claimed that the testimony of S. Pettis was improperly admitted.

At the time this testimony was taken under commission in Massachusetts, Pettis was serving oat his term of imprisonment for the crime of forgery. He was tried and convicted in Massachusetts, and the evidence was objected to upon the ground that the statute of this State disqualifies him from testifying.

By the general statutes of Massachusetts, “Ho person shall be excluded by reason of conviction, &c., from giving evidence either in person or by deposition, &c.”

Our statute provides, “Ho person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor or the -legislature, except in the cases especially provided by law.”

The provision of the statute is penal, and must be strictly construed. The conviction referred to must be within this State. It is well settled that penal laws of one State do not extend into another. Personal disqualifications not arising from the positive law of the country, and especially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originated (Story on Conflict of Laws, §§ 91, 92, 620-625; 1 Greenl. on Ev. § 376). The case is decided in 17 Mass. 513, Commonwealth v. Green. The court say that the conviction of an infamous crime in a foreign country or in any other of the United States, does not render the subject of such conviction an incompetent witness in the courts of that State. This decision was made before any special statute was passed, and was made upon common law principles (see Cole v. Cole, 50 How. Pr. 60).

The objection to the 13th interrogatory, under which the 18th, 19th, 20th, 27th-35th interrogatories were answered, does not appear to be well taken. The question was certainly proper, as it asked for the knowledge which the witness had about the getting up of the said forged bonds. The 25th interrogatory, calling for the financial condition of the defendants or either of them, prior to the time said bonds were prepared and issued, was pertinent. The action was for recovery of this money obtained from the plaintiffs by the complicity and pre-concerted action of all the defendants, and which money had been attached. It was an important question, therefore, for the jury to know what means they had, if any, when they got the bonds up and issued them.

I fail to see any grounds for the nonsuit. The court did charge that the jury might sever in their verdiet: that -if they believed the evidence established participation by some of the defendants only, their verdict would be against them and in favor of the others. This was as far as the casé would warrant the judge in going. He told them they must discriminate in the case of Corp, Mrs. Gleason and Mrs. Roberts.

I have carefully looked into the several refusals to charge, and to the direct charge, and am of the opinion that all the objections specified by the defendant’s counsel on this appeal should be overruled.

It appears to me that the case has been fairly tried upon the evidence requisite to a correct result; and although some evidence of minor importance may have been erroneously admitted, it is manifest that its rejection could not have changed the result.

The judgment and order must be affirmed.

Curtis, Ch. J., concurred.


author: By the Court.—Curtis, Ch. J.

text:
    THOMAS F. MASON, Plaintiff and Respondent, v. NICHOLAS H. DECKER, Defendant and Appellant.
    MUTUAL AGREEMENT.
    An agreement in writing, whereby a party who executes the same promises to buy certain property of a party named in the agreement (but who does not execute the same), is valid if supported by a sufficient consideration, and such consideration may be proved by parol, and may consist of the promise or engagement to sell the property described in the agreement, on the part of the other party named therein, but who did not execute the same (Justice 9. Lang, 43 N. T. 493; 53 Id. 333).
    This principle applied to the case at bar, and in support of a recovery on such a contract, where the mutual agreement of the parties and the consideration of the contract was fully established by parol proof.
    Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Decided March 5, 1877.

    Appeal by the defendant from a judgment for $15,993.92 entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The action is brought to recover the cost price of 133 shares of stock, of the “New York Construction Company,” which the plaintiff alleges were purchased by the defendant on June 30, 1873, to be paid for on October 10 following, or previously, at defendant’s option. The plaintiff further alleges that it was agreed that the plaintiff should, transfer the stock to the defendant or to his order as the payments for the same should be made, and that the defendant subscribed a memorandum of such contract, but thereafter refused to accept the stock or to pay for the same, when tendered on October 10.
    The answer put in issue the ownership of the stock by plaintiff, also, the mutuality of the alleged agreement for the purchase of the stock, and denied the making of such a contract as was set up in the complaint. It also avers that the plaintiff never executed or delivered to the defendant any counterpart .of the alleged • agreement. That there was no consideration for the same.
    The answer also denied any promise to pay for the. stock or any indebtedness to plaintiff. Exceptions were taken by defendant to. rulings of the court on the trial, also to the charge of the court and to refusals to charge.
    The jury found a verdict for the amount claimed. The defendant moved for a new trial on the exceptions, on the ground that the verdict was against the weight of evidence, and also upon the grounds stated in section 264 of the Code. The court denied the motion, and the defendant excepted. From the judgment entered on the verdict, and from the order denying a new trial, the defendant appealed.

      James M. Smith, of counsel, Samuel G. Courtney, attorney, for appellant.

      Wm. H. Scott, for respondent.
   By the Court.—Curtis, Ch. J.

It is insisted by the defendant, that the agreement which is subscribed only by him, is invalid for want of mutuality, and can not be enforced for want of consideration.

The case of Justice v. Lang, (42 N. Y. 493; 52 Id. 323), and MSS. opinion on the third hearing of the same by the court of appeals, establishes the doctrine that a promise of the nature of the defendant’s in this action was valid if supported by a sufficient consideration, and that such consideration may be proved by parol, and may consist in the promise or engagement of the plaintiff.

The evidence, with very little conflict, showed that in April, 1873, the plaintiff held 143 shares of this stock, and that the defendant then verbally agreed that if the plaintiff would sign a certain subscription paper, binding himself to advance certain moneys in an énterprize wherein they were both interested, he would by July 1 following, take and pay for all the stock and bonds in this company held by plaintiff at cost and interest.

The plaintiff then signed the subscription paper, and verbally agreed to so sell the stock and bonds. After this, ten shares of the stock were taken by the defendant of the plaintiff and transferred to a Mr. Stanton, and paid for by his note indorsed by the defendant, which was paid.

Previous to June 30, the defendant declined to sign a memorandum of this agreement, and thereupon, in consideration that the defendant would sign the memorandum of agreement sued upon and dated June 30, 1873, the plaintiff released him from Ms obligation to take the bonds of the company, limiting the agreement to the taking of the 133 shares of the stock then remaining, in which form the defendant signed it.

These facts, together with repeated tenders of the stock to the defendant, and demands of payment from him, in pursuance to the obligation in suit, of what was shown to be the cost price of the stock and interest, were proved at the trial.

The weight of evidence sustained the jury in finding that the defendant signed and delivered the memorandum of agreement as his contract and obligation, and that it was supported by a sufficient consideration, the court properly instructing them, if they found otherwise in either of these respects, their verdict must be for the defendant.

The plaintiff sues to recover upon defendant’s contract a sum agreed to be paid by the defendant for a certain number of shares of stock, all of which were sold to him and ten of which were delivered. The obligation of the defendant contains a clause that as payments are made, the stock shall be transferred subject to his order. It was the plaintiff’s right, after he had tendered the undelivered stock, to sue for the price iff accordance with the provisions of the obligation. The defendant had procured the plaintiff to make the subscription heretofore referred to, by promising to take the stock, and after he had obtained the subscription from the plaintiff, which was the consideration for his agreement, and had received a part of the stock, the contract was so far executed, that the plaintiff was entitled, the jury so finding the facts, to the rule of damages charged by the court.

The court charged the jury correctly, and there are no exceptions to the rulings at the trial that are well taken.

The judgment and order appealed from should be affirmed.

Sanford and Freedman, JJ., concurred.


text:
    JOSEPH G. MILLS, Plaintiff and Respondent, v. JAY GOULD, Impleaded, &c., Defendant and Appellant.
    DEMURRER TO COMPLAINT.
    Facts stated, not sufficient to constitute a cause of action.
    The complaint claimed damages for the non-fulfillment of a contract for the sale and purchase of gold.
    It alleged that the sale and purchase was made under and in accordance with, the rules of the gold exchange, and that said rules formed part of the agreement, and that one of them, controlling the contract, provided, that on all contracts made at the board, either party might require a deposit of twenty per cent, as security, &c. That after notice, &c., under this rule, the defendant refused to make this deposit, and plaintiff after-wards sold the gold at a lower rate than the price named in the contract, &c.

      Held, that although the rule of the gold exchange is expressly confined to the contracts made at its board, yet if parties choose to agree that their contracts shall be governed by, and be subject to, the rules of the gold exchange, they can do so, and such rules may be resorted to, in ascertaining the character, and the fulfillment or breach of such contracts, so far as those rules control or relate to the same, and the allegations of the complaint are sufficient to bring the contract under the • control and interpretation of the rule set out therein.
    The effect of this rule is that a failure to deposit as therein provided, constitutes a breach of the contract that is made subject to it; and not only that, but it also gives the aggrieved party an immediate right of action for his damages; proof of tender or readiness to perform becomes unnecessary. The defendant, by his refusal, caused a failure to complete the contract, and cannot now avail himself of the non-performance that he has occasioned (Clark «. Crandall, 37 B<lrb. 73; Moses ». Bierling, 31 H. T. 463; Nelson v. Plimpton F. E. Co., 55Id. 484). The plaintiff in this case was not the pledgee of the gold. On the failure of the defendant to complete the contract he could resume his original rights in respect to the gold, and could sell if unrestricted by any obligation to give notice to the defendant (Pollen ®. Le Eoy, 30 IF. 7. 556 ; Dustun y. McAndrew, 44 Id. 78; Lewis y. Greider, 49 Barb. 635).
    Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Appeal from an order overruling defendant’s demurrer to the amended complaint.

      Thomas G. Shearman, for appellant.

      Thomas F. Wentworth, for respondent.
   By the Court.—Curtis, Ch. J.

The defendant demurs on the ground, that the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleges two causes of action ; one in the plaintiffs own right, and the other as assignee of Jameson, Smith and Cotting. With this exception they are alike in form, and may be considered as one. The complaint in substance states, that on September 24, 1869, the plaintiff and defendant, at. the city of New York, made and entered into a contract, whereby the plaintiff sold the defendant, and the defendant bought of the plaintiff, $1,000,000, gold, and agreed to pay therefor $1.60, currency, for each dollar thereof, and that the sale and purchase were made under and in accordance with the rules of the gold exchange, and that said rules formed part of the agreement so made with the defendant, and that one of them, controlling the contract in question, provided, that on all contracts made at the board, either party might require a deposit' of twenty per cent, as security for the fulfillment of the contract, to be made within one hour after such notice, and in case of difference of opinion as to the place of deposit, it was required to be made in the United States Trust Company.

The complaint further alleges that the plaintiff notified the defendant on September 34, 1869, to deposit twenty per cent, of the purchase price as security for the fulfillment of the contract, and the defendant refused to make the deposit which he had agreed to do in accordance with said rule and said contract, and notified the plaintiff of his refusal. That the plaintiff, on September 30, 1869, sold the gold belonging to the defendant’s account at the highest-bid per dollar to be obtained therefor, $1.33, currency, which was the highest market value of gold in the city of New York, between September 34, the day of the breach of the contract, and the day of sale. That by reason of the failure of the defendant to keep and perform the terms and conditions of the contract, and the consequent breach thereof, the plaintiff has suffered damages in the sum of $380,000, which sum remains due and unpaid.

The defendant’s position is, that admitting every allegation in the complaint, no cause of action is stated. The complaint does not allege that the contract in question was made at the board of the gold exchange ; nor is it to be assumed that it was so made. The rule, by its terms, is expressly confined to contracts made at the board; but if parties to gold contracts, made outside of the board, choose to agree to be governed by, and to have them subject to the rules of the gold exchange, they can do so, and such rules may be resorted to in ascertaining the character, and fulfillment or breach of the contracts, as far as they control or relate to the same. But the defendant claims that the complaint does not allege that the rules adopted on all contracts made at the board, formed part of their agreement. The allegation in the complaint is, that the sale and purchase were made under and in accordanee with the rules of the gold exchange, which rules formed part of the agreement between the parties, and among others contained the provision, controlling the contract in- question, authorizing the requirement of twenty per cent, deposit, and specifying the effect of a failure to make such deposit.

This allegation of the complaint sufficiently brings the contract under the control and interpretation of the rule set out in the complaint. Under this rule the parties agree what shall constitute a breach of the contract. It specifies that a failure to make the deposit within the designated time shall be considered a failure to complete the contract. In other words, that the party thus failing to make the deposit shall be deemed not to have fulfilled it on his part. The effect of this is that the parties agree that such failure to deposit constitutes a breach of the contract made subject to the rule, and that such refusal to deposit is not only a breach of the contract, but it gives the other party an immediate right of action for his damages, without waiting for the time of performance to arrive before bringing his action, the defendant having by his act put it out of his power to perform on his part (Christo v. Armour, 34 Barb. 387). It fails to operate as a rescission of the original contract.

If the contract had been made irrespective of this provision for a deposit with its declaration of the effect of failure to make it, either party, to put the other in default, would have been obliged to aver and show that he was ready or offered to perform. But by this provision, the defendant is put in default in consequence of his omission to perform an act absolutely required of him irrespective of the other terms of the contract; and upon that default the plaintiff’s right of action immediately accrues. The parties having agreed to be governed by this provision, a failure to comply with which operates as a breach of the contract, proof of tender or readiness to perform becomes unnecessary to put either party in default, and is waived. The defendant, by his refusal, having caused a failure to complete the contract, cannot now avail himself of the nonperformance he has occasioned (Clark v. Crandall, 27 Barb. 77; Moses v. Bierling, 31 N. Y. 464; Nelson v. Plimpton F. E. Co., 55 Id. 484).

The plaintiff was not the pledgee of the gold. On the failure to complete the contract he could resume his original rights in respect to the gold. He was at liberty to sell it unrestricted by any obligation to give notice to the defendant (Pollen v. Le Roy, 30 N. Y. 556; Dustan v. McAndrew, 44 Id. 78; Lewis v. Greider, 49 Barb. 635). The complaint states that the plaintiff sold the gold four days after defendant’s refusal, at the highest bid and at the highest market value since the defendant’s breach of contract, and at §1.32 currency for each dollar thereof. This averment shows with reasonable certainty that by the refusal and failure of the defendant to complete the contract, the plaintiff was subjected to a pecuniary loss, and the court can see from the averments of the complaint that the plaintiff has sustained damage, and that the breach of the contract is one from which, where a depreciation of market value is shown, damages would naturally flow.

Where there is a breach of a valid contract, as here, the plaintiff is entitled to recover at least nominal damages (Blot v. Boiceau, 3 Comst. 86; Devendorf v. West, 42 Barb. 227).

The defendant does not claim that the time when the delivery of the gold was to have been made is material to the plaintiff’s cause of action. It is not stated in the complaint, and the the presumption is that it was to have been delivered within a reasonable time. It seems from the complaint that the cause of action sued upon arose before the time for the performance of the contract arrived. The question as to what relief the defendant may have by an application to make the complaint more definite and certain in this respect does not arise on this appeal.

The order appealed from should be affirmed with costs.

Sanford and Freedman, JJ., concurred.


text:
    THE PRODUCE BANK, Plaintiff, v. JOSEPH MORTON, et al., Defendants.
    RE-ARGUMENT OF MOTION AT GENERAL TERM.
    When it appears from the decision of the court of appeals in dismissing an appeal from the decision of the general term, that the case appealed from was not properly before the general term, a re-argument should be ordered, although this court has decided that 'in matters purely technical, and not affecting the general law of the case, or the real merits of the controversy, a re-argument should not be allowed (Butterfield «. Radde, 40 If. T. Superior Ot. 169, 173).
    But it should be granted on payment of costs.
    Before Curtis, Ch. J., and Sanford, J.

      Decided March 5, 1877.
    Motion by the plaintiff for leave to re-argue the motion for a new trial, made by the defendants at the December general term, 1875.

      D. J. Newland, for plaintiff.

      A. C. Francioli and J. F. Mosher, for defendants.
   By the Court.—Curtis, Ch. J.

The plaintiff sues to set aside an assignment for the benefit of creditors. The action,was tried at the special term, and decided in Ms favor. The defendants moved for a new trial at general term, under section 268 of the Code.' This motion was granted, and a new trial ordered. The case is reported in 40 N. Y. Superior Ct. 328.

The plaintiff appealed to the court of appeals, and the appeal was dismissed because the amount involved was under $500. From the opinion, it appears that the court considered several of the questions, and came to the conclusion that under Laws of 1874, c. 600, it was intended to abrogate the rule, that the making and the delivery of the verified schedules required by the act of 1860, was essential to the validity of an assignment; and also that the provision allowing the assignee to file schedules within six months, was not intended as a condition, the breach of which would invalidate the assignment. The court was also of opinion, that there was no proof that there was an omission to file the bond in the county clerk’s office, and that there was no allegation in the complaint of such omission. These views are adverse to the grounds upon wMch the plaintiff seeks to set aside the assignment.

The court of appeals further expressed itself inclined to the opinion, “ that the case was not properly before the general term, that it was not a proper case for a motion for a new trial ” (Code, § 268).

It would thus seem that the real merits of the controversy are viewed adversely to the plaintiff by the court of appeals, and that the course pursued by the defendant in moving for a new trial under section 268 of the Code, did not bring the case properly before the general term.

Although it is held that a re-argument will not be allowed here in matters purely technical and not affecting the general law of the case, or the real merits of the controversy (Butterfield v. Radde, 40 N. Y. Superior Ct. 169-172), where the court of appeals differs from this court, but as this motion involves a question affecting an important remedy, and as no appeal lies from our decision, I think the rule should be relaxed. The plaintiff, in Ms affidavit, as one of his grounds for a re-argument, states, that this point was not elaborately argued at the general term; but this in itself constitutes no reason for a re-argument (Trinity Church v. Higgins, 4 Robt. 372). As the real merits of the controversy have been considered by the court of appeals, and held adversely to the plaintiff, it is but just to the defendants, that they should be paid their costs thus far in the litigation, as a condition of granting the motion for a re-argument.

The motion for a re-argument should be granted, on condition that the plaintiff pay, within thirty days from the entry of the order, the defendants’ costs to that date in the action.

Sanford, J., concurred.


author: By the Court.—Curtis, Ch, J.

text:
    OLIVER VAN EVERY, Plaintiff and Respondent, v. THOMAS D. ADAMS, Defendant and Appellant.
    ATTORNEY AND CLIENT.
    The principle that now controls the recovery by an attorney for his professional services in an action against his client, in the absence of an express agreement, is that he is simply entitled to what they are reasonably worth (Stow t>. Hamlin, 11 How. Pr. 452; Garfield v. Kirk, 65 Barb. 464).
    The determination or findings of a referee as to the value of such services, where there is conflicting testimony as to such value, must be affirmed.

      Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Appeal by defendant from a judgment entered upon the report of a referee.
    The action is for the recovery of $126.83 collected by the defendant as an attorney at law for the plaintiff. The defendant admits the collection of the money, but avers that the plaintiff owes him $500 for professional services, and asks judgment against the plaintiff for the balance.

      J. Langdon Ward, for appellant.

      John A. Taylor, for respondent.
   By the Court.—Curtis, Ch, J.

—The principal question is as to the value of the -defendant’s professional services. There is some variance of opinion in the case on this point. The statement furnished by the defendant before the commencement of this action, showing a balance due him of $26.18, differs from the bill of particulars he presented after the action was commenced. In the latter he showed a balance of $839.18 in his favor. There was also conflicting testimony as to the value of the defendant’s services, and as to whether he had, in some of the matters for which he charged, been retained by the plaintiff.

The principle that now controls the recovery by an attorney for professional services in an action against his client, in the absence of an express agreement, is that he is simply entitled to what they are reasonably worth (Stow v. Hamlin, 11 How. Pr. 452; Garfield v. Kirk, 65 Barb. 464).

With this view of the law, the referee appears to have determined the value of the defendant’s services, and his findings are supported by evidence. When there is conflicting testimony as to the value, and as to whose retainer they were rendered on, as in the present case, there must be strong reasons to induce the court at general term to set aside the report upon questions of fact. He had the witnesses before him, and had ampler means of judging of their reliability and knowledge, than the appellate court can have by a perusal of their testimony.

No sufficient reasons are shown for setting aside the referee’s report.

The judgment appealed from should be affirmed with costs.

Sanford and Freedman, JJ., concurred.


author: By the Court.—Sedgwick, J.

text:
    JOHN DUNPHY, Plaintiff and Respondent, v. THE ERIE RAILWAY COMPANY, Defendant and Appellant.
    COMMON CARRIER OF PASSENGERS.
    Contracts with ; Tickets for passage ; Rights of passengers PURCHASING SAME IN REGARD TO PASSAGE; REASONABLE RULES AND REGULATIONS; WHEN NOTICE OF THE SAME NECESSARY.
    The rights of the passenger rest upon the contract that was made when he purchased his ticket. The benefits he gained as to times and trains, and the journey, were then settled and fixed, and the limitations of his rights were then settled and fixed.
    If the whole of plaintiff’s rights were set forth by the ticket he purchased (see opinion), he had a right to nothing but a continuous trip from New York to Rochester, and the ticket was not evidence of fiis right to take up another trip without paying fare, after he had stopped at an intermediate station.

      But in this case the defendants had rules and regulations, that governed or limited this ticket, and its use by the passenger, that were more favorable to the passenger, than the contract as expressed by the ticket itself. The passenger did not ask that these rules should be expressed on the ticket, and he did not even inquire about them.
    In the case at bar these rules were reasonable, and did not take from passengers any right they would have at common law, under the contract as made. It is not a case where the rules seek to limit any common-law liability of the carrier, for breach of duty, &c. They enlarged and increased the rights and privileges of the passenger, beyond these embraced by the contract itself, and therefore no special or personal notice of the same to the passenger was necessary.
    Ignorance of' such rules and of the restrictions consequent thereof, in such a case, does not alter the contract, nor prevent the rules and the restrictions being a part thereof. They enlarged the passenger’s rights and privileges of transportation, subject to certain restrictions and forms, which were reasonable, and if the one was accepted, the other was coupled and united therewith. In the present instance, although the ticket gave no privileges beyond a continuous trip, yet the rules gave the passenger all he required as to stopping on the way. He was conscious that he did not know the rules exactly, but he did not seek for any information in regard to them, and because he was ignorant of the reasonable form in which the defendant granted the privilege, he claimed the right to exercise that privilege hi a form and manner devised by himself.
    There was error in the charge of the judge before whom the case was tried, to the effect that the plaintiff could recover unless it was proved that he had notice of these rules and regulations that affected the ticket.
    Before Sedgwick and Sanford, JJ.

      Decided March 5, 1877.
    Appeal from judgment on verdict.
    The action was for damages for the unlawful ejection of plaintiff from the ear of defendant, while plaintiff was on a journey.

      It appeared on the trial that plaintiff bought of one of defendant’s ticket agents in Brooklyn, the following ticket:
    S I ERIE RAILWAY COMPANY. | E _/ <
    New Yobk
    TO
    Rochester.
    Good for five days only from date.
    Jno. N. Abbott,
    Gen’l Ticket Agent.
    w'l YD

    On the back is stamped the following:
    j. d. mcgowan,
    Ticket Agent Erie Railway, No. 2 Oourt Street,

    Feb’y 14, 1874. Brooklyn, N. Y.
    There was no testimony that the plaintiff asked for any particular kind of ticket for his journey from New York to Rochester, or that the agent made any statement of the rights of the plaintiff under such a ticket. He started from New York on January 16, 1874, and he presented Ms ticket to different conductors from time to time, who cut the ticket by punches at the letters E, D, and S. It subsequently was shown that these letters referred to different divisions 'of the defendant’s road, and the letter W to the last division, from Corning west to Rochester. The plaintiff first stopped at Binghamton, which was in the Susquehanna division. On the 17th he went on, at Binghamton. When the train was a short distance from that place, the conductor asked for his ticket, and informed the plaintiff that he could not receive it, as it had been used for that division, viz. the Susquehanna division, and that the plaintiff must pay fare from Binghamton to Corning, and at Corning the ticket would be good from there to Rochester.
    The defendant first refused to pay the fare. On the trial some testimony was given to show that he after-wards, before the bell was rung as'a direction to, stop the train, offered to pay his fare. There was opposing testimony to show that the defendant did not offer to pay fare until the bell had been rung and the train had stopped. The conductor, without violence, compelled the plaintiff to leave the train.
    It was proved that a long time before the ticket was sold, the defendant had made and extensively published through ticket-offices and all passenger cars, on placards, regulations which forbade a passenger with a ticket like the one in question, stopping at a station in one division and then using the ticket for another trip on the same division, but required that if the passenger wished to stop and afterwards to proceed, he should give up his ticket and procure from a conductor another ticket to be used for the rest of the passage.
    The court in substance charged the jury that the plaintiff had a right to continue his journey on the ticket he held, unless the jury should find as a fact, that he had notice of the regulations put in testimony, and also charged that these regulations were reasonable.
    The defendant’s counsel requested the" court to charge that if the bell was rung to signal for the train to stop before the plaintiff offered to pay fare, the subsequent offer to pay did not give the plaintiff a right to go on with the train. This was refused, and the defendant excepted.

      The jury found for the plaintiff.
   By the Court.—Sedgwick, J.

The rights of the plaintiff rested upon the contract that was made when he bought the ticket. The benefits he gained as to times and trains, and the journey, were then settled and fixed, and the limitations of his rights were then settled and fixed.

If the whole of plaintiff’s rights were signified by what was on the ticket, he had a right to nothing but a continuous trip from New York to Rochester, and the ticket was not an evidence of his right to take up another trip without paying fare after he had stopped at an intermediate station. The alternative would be that he had a right to go from New York to Rochester by breaking his general passage into as many trips as he chose. This seems to me so clear that it is not necessary to cite cases to support it.

The fact that the plaintiff was left in possession of the ticket after it had been examined by the former conductor a short time before his stopping at Binghamton, could not give any new right. That conductor did not know that the plaintiff meant to break his journey, and leaving the ticket with plaintiff was but leaving a voucher of a right to proceed on a continuous passage if the plaintiff chose to use the ticket in that way.

But the whole of the contract was not manifested by the contents of the ticket, and we will suppose that the plaintiff, when buying his ticket, had in view a right to stop upon his ticket and resume his journey. The plaintiff must have known that a right to a passage of the kind he wanted, must have some limitations. The plaintiff knew that the ticket gave a right to go upon some trains only, running at certain times only, and not upon all trains at all times.

When the ticket was bought the plaintiff did not ask for a ticket which would give the privilege he claimed in this action, nor did the seller represent that the ticket would give such a privilege. The case is left, then, that the plaintiff made a contract for a passage with limitations which he knew existed, but were not expressed, and which, although he did not know their specific character, he did not ask to be expressed. Furthermore, he must have known that these limitations were such as the defendant had made by its rules.

In the present case the rules were reasonable, and did not take from passengers any right they would have by common law, to demand that the defendant should carry them. It is not a case where the carrier seeks to limit, by rule or notice, any common-law liability for breach of duty as common carrier. The defendant’s rights are based upon the contract itself, voluntarily made by plaintiff, and the rules are adduced to show what the contract'was.

The plaintiff swore he did not know the nature of the rules, and consequently of the restrictions. Did that ignorance alter the contract, or result in the restrictions not being a part of the contract ? „

If the regulations had not been put in proof, there would have been no evidence that the defendant ever agreed to carry the plaintiff, after he had stopped at Binghamton, on a new journey from Binghamton to Rochester, without paying fare. And the rules contained only the restriction that if he wished to stop, he should procure from the conductor a new ticket without further payment.

On general principles, equity does not find a ground for annulling contracts, because the party was ignorant of the particulars of the agreement into which he intentionally entered. Mere ignorance of the exact stipulation does not show that if he had known he would not have contracted. Upon the stipulations being disclosed, if they are not extraordinary, he could not show that if he had known them, he would not have assented to them. The substantial fact would be that he voluntarily assented to the contract, limited by all reasonable, although undisclosed exceptions that were lawful. And whether these exceptions were a or 5, it would not be a material inducement to the contract that they were the one instead of the other, or instead of being both.

But if the contract might have been avoided in the first instance, if the party enters upon its enjoyment and claims any part of its advantages, then all parts of the contract, unmodified, are in force.

In the present instance, the-rules gave the plaintiff all he wished as to stopping. He was conscious that he did not know the exact rule, but did not ask for information as to it. In substance, because he was ignorant of the reasonable form in which the defendant had given him the privilege, he claimed a right to exercise that privilege in a form devised by himself.

I am therefore of opinion that there was error in charging that the plaintiff could recover, unless, in fact, he"had notice of the regulations.

It is unnecessary to examine the other exceptions, as the one discussed is of main importance.

Judgment reversed. Hew trial ordered, with costs to appellant to abide event.

Sanford, J., concurred.


text:
    PHILIP A. MADAN, Plaintiff, v. JEROME COVERT, et al., Defendants.
    WAREHOUSEMEN ; CARE AND RESPONSIBILITY OF.
    What degree of diligence should be exercised by them in KEEPING OUT STRANGERS FROM THE PREMISES, OR IN PREVENTING A THIEF ENTERING UPON AND CONCEALING IN THE PREMISES IN THE DAYTIME.
    In the case at bar it was contended that sufficient arrangements were not made to prevent persons entering upon the premises at the front door, without observation, and also that a rear door was left in such a state, that strangers might have entered upon the premises without being noticed.
    The judge before whom the case was tried, directed a verdict ,for the defendants, upon the theory that the theft was committed by a person entering the premises burglariously after they were closed for the night; the direction was proper (Coleman <o. Livingston, 56 IF. T. 608). But upon the theory that the goods were stolen by a person concealed upon the premises at the time they were closed, several questions as to the care and diligence of defendants in guarding the premises during the day, arise. To justify the direction of the judge, it should have appeared conclusively that the means used by defendants to prevent a thief from entering upon the premises in the daytime, and concealing himself there, and being locked in at closing time, were such means as were used for the purpose by owners of like property in like circumstances.
    In the case at bar such was not the case, and the jury alone could determine by a verdict the conclusions of fact in the premises, and the facts should have been submitted to them.
    Before Sedgwick and Sanford, JJ.

      Decided March 5, 1877.
    Verdict for defendant by direction of court, under exceptions ordered to be heard in first instance at general term.
    The action was for damages for non-delivery upon demand of segars stored by plaintiff with defendants as warehousemen.
    The important defense was “That said defendants at all times after the said storage of said merchandise exercised due care and diligence in and about the storage and safe-keeping thereof; and that, whilst said merchandise remained in storage in said bonded warehouse as aforesaid, the said warehouse was feloniously entered and said cases of merchandise broken open and the contents stolen and carried away by some person or persons unknown, and without any fault or neglect on their behalf.”
    The following facts were shown by defendants. The segars were stored on the second floor of the warehouse. On the evening of October 24, 1872, the windows, shutters and doors were closed and fastened. In the morning, after the men had opened the warehouse, they found that the cases containing the plaintiff’s segars had been opened and the segars taken. They found that on the first floor a window-sash was up and the iron shutters closed, with the bar, in the middle of the shutters, in the usual place, when the shutters are closed ; but an iron hook, fixed to the shutters at the bottom, was through the stajfle, and the staple was drawn from the window-sill. There were no marks on the shutters of their having been forced open. There was no evidence that they could not have been forced open without leaving marks on them, and they were of iron one-half inch thick. At different places at and from the place where the segars had been, and over some bags of nuts piled up, under the opened windows, to the window, were muddy traces of footsteps. In the night before, there were rain and mud in the streets.
    The defendants proved that, at the closing of the warehouse in the evening, before the government officer in charge, their foreman and his assistant went through all the floors, to fasten, or see that were fastened, windows, shutters and doors. There was no proof that they looked to see if any person was concealed among the merchandise stored.
    The plaintiff claimed that the defendants did not use due care in keeping out strangers or preventing a thief concealing himself in the day time. On this point it was claimed that the jury might have found that sufficient arrangements were not made to prevent persons coming in at the front door without observation, and also that a rear door was left in such a state that strangers might come in without being noticed. This rear door was some forty feet from the office in front. There was an iron bar to fasten it on the inside. When it was shut and fastened by this iron bar, persons on the outside wishing to enter it pulled a bell-pull which rang a bell on the first floor a few feet from the office. Two witnesses for plaintiff swore that they had gone into the warehouse by the front door and through the store without any one seeing them, and had on two occasions seen this rear door open without any one guarding it. It was proved by a preponderance of testimony that in general it was kept shut, or in charge of some employee.
    The judge directed a verdict for defendants, and also that the exceptions be heard in the first instance at general term.

      T. C. Campell, for plaintiff.

      Edgar S. Van Winkle, for defendants.
   By the Court.—Sedgwick, J.

Under the answer the defendants conld only satisfy their liability to plaintiffs by showing that .the goods had been stolen Avithont fault on their part. They were not confined to proving that the theft was by some one who had burglariously entered the store. A felonious or burglarious entry was not substantially connected Avith the defense of stealing, and an allegation of it might be disregarded. But, on the proofs, the defendants were limited to the fact of the larceny having been committed by some one who had concealed himself on the premises before the night of October 23, or Avho had burglariously entered on that night, and before the morning of the 24th.

If the defendants proved that this theft happened in spite of due care, used by them to prevent such an occurrence, the plaintiff had no cause of action. The learned judge held that they had shown, by the pre-. ponderance of testimony," that they had made all the arrangements, and used all the precautions that are made and used by owners ordinarily prudent and intelligent under similar circumstances, and therefore that a verdict for the defendants should be directed. The learned counsel for the plaintiff urges, that arrangements and precautions of this kind can only be learned from actual experience of business and change from time to time, and that though a judge can, from the evidence, say whether a proposition, the elements of which are sworn to before him, is established by the preponderance of proof, he has no special qualification or faculty for ascertaining what are the customs and habits of warehousemen and what devices and safeguards they employ. If he know (by presumption of law) what is done generally by prudent owners to guard their property, then he should always pass upon the question of negligence when there is no dispute as to what was done by a defendant.

Against this, however, it may properly be observed, that there are some means, the fitness of which to protect property may be matter of common knowledge, and it may be taken to be true, that ordinary persons would use only common knowledge; for example, when a theft has been committed by breaking a door, proven to be of thick wood with strong hinges, bolts and bars, a judge could say as well as a juryman, that such a door was one that persons of common prudence would use. It would be suited to resist a thief, and common prudence would not ask for more. Therefore, in Coleman v. Livingston (36 N. Y. Super. Ct. 32, afterwards affirmed, without an opinion, 56 N. Y. 658) it was decided, that when a burglary had been committed through a scuttle in the roof, the judge should have, on the trial, dismissed the complaint, because the evidence showed that the scuttle was strong and strongly fastened. And in this case we would have to sustain the direction to the jury, if the testimony had been undisputed that the theft had been committed by breaking open from the outside the shutters on the first floor; for those shutters were strong, and .strongly secured by bars, hook and staple. This would be the necessary result, at least, if it were held as matter of law, that it was not a question for the jury as to whether it was defendant’s duty to have a night-watchman to be an additional safeguard against thieves. On this particular point, there are, I think, two satisfactory considerations. First. If common prudence calls for some watch, the legal presumption should be, that the law has provided in the public watch a sufficient guard against criminals under ordinary circumstances. Second. If the situation of the store and the property is extraordinary, and calls for additional watch, the burden of proof is, upon the bailor to show the exceptional state of affairs, and in this case, by the proof, the jury would have been bound to find, that ware-housemen, generally, were adequately protected by the police.

These considerations are not conclusive, because the evidence admitted the inference that the theft had been committed by a person who had hidden and been locked in, in the store, on the day before. Then to justify a decision as matter of law, it must appear, conclusively, that the means used to prevent such an occurrence were those used for the purpose by owners of like property in like circumstances.

There might be perhaps a case where it was affirmatively shown that everything was done that could be suggested as proper by the opposite party on the trial, and counsel could not naturally point out a defect in the arrangement. It cannot be supposed that a jury would justly be able to find a defect, and they should not be directed to proceed arbitrarily and to uncertainties.

But in the present case, under the evidence, it cannot be said with certainty that the arrangements, from their intrinsic character, were all that could ordinarily be used or would ordinarily be effective to exclude persons with evil intent, or to discover and expel them after they had gained entrance, and perhaps had concealed themselves. If something more, that was not on its face an extraordinary precaution, could have been done, and would have tended to prevent the particular contingency, it seems to me that a jury alone could say whether, as matter fact, owners of property use such a precaution. ISTor, on the facts, in my opinion could a judge say as a matter of law, that what was done was all that ordinary prudence would set up to meet the liklihood of a thief attempting to intrude.

The proof shows that the defendants had in mind the danger, and it may be assumed that owners of property would have it in mind. The risk was that some one would use cunning, trick or imposition to get in and steal, and would craftily elude observation. It must be the law, that ordinary prudence should adapt its care to the particular risk; and the question on the trial was, had the defendants made arrangements suited not for a general observation and scrutiny of those that would come in with an honest purpose in the ordinary run of events, but suited for the detection of thieves.

I do not mean to say that there was in fact, any particular defect in any part of the defendant’s system, nor that the evidence shows any general imprudence nor that the defendants were responsible for the incidental negligence of any of their servants, such as leaving a door open ; but the defendants have responsibility in regard to the general arrangements of their warehouse and business, the number of servants they employ, and the duties and stations they give them, in view of the contingencies of the business. The defendants were conscious of the propriety of seeing that no one came in without a right to enter. The witnesses for the defendants, whose testimony was candid and intelligent, said that there was a constant observation of the persons who came in through the front doors, but there was no specific statement on this point as to the time immediately before the theft. This is not a simple fact that must be taken to be true because honest witnesses swear to it. One or more may make a mistake as to whether the defendant’s directions and practice had resulted in or was calculated to result in a continuous observation without a lapse in which strangers might go in at will. Bach‘witness could only speak for himself. There might be a default in. his memory, and it was a question of fact whether the manner of conducting business permitted with reasonable certainty a continuous watch at the front doors.

There was a rear door, which the evidence showed was generally shut. Many witnesses proved that they never saw it open, unless it was in charge of somebody. It could not be opened from the.outside, after it had been closed. The learned judge in Ms charge state? 'that it closed with a spring bolt. The testimony further showed that there was a bar inside, probably used as a defense at night. There was no evidence that this door could not at all times be opened from the inside by any one. The plaintiff gave evidence that at some time not fixed, and on two occasions, this door was open and unguarded. If the defendants had conclusively shown due care (so far as the case was affected by the situation and management of this door), the fact of its having been open on two isolated occasions would have had no particular weight. I" do not think they gave conclusive evidence of such care. So far as their servant’s negligence in leaving on any particular occasion the door open is concerned, they would not be responsible if they had exercised ordinary care in choosing their workman; although, perhaps, they were bound to make a proper provision against that negligence, which may be accidental in the single instance, but is in a proportion of cases inevitable, on the part of workmen, in a large and hurried business. The door could be opened on the inside, and by persons rightfully in the warehouse, not servants: It was consistent with the full force of defendant’s evidence, that it might be so opened, without any arrangement for the observation of such an occurrence. Even if it were at once closed, there was opportunity for a thief to slip in. There was no conclusive evidence that this opportunity could not or did not happen often, and the defendants were bound in their.business to make arrangements for what might frequently happen.

It is said that there is no proof that the thief came through this door. Indeed, there was no proof that the thief came through other doors. If the thief were not a servant,—and this was not urged or suggested upon the trial,—it was as likely that a thief would watch and get in by the rear door at a favorable opportunity, as by the front door, where there were more people. The burden was on the defendants to show the loss, and how it happened, and that due care was used against the particular occurrence, or else to show that due care was used as to every way in which it might have happened.

On the whole case, I am of opinion that the plaintiff had a right to go to the jury for their verdict whether the guard was sufficient, which consisted of the observation of the employees, as they were transacting the general business, or whether common prudence called upon defendants to make it the special, if not sole duty of some one to be on the watch. In addition, the jury should have been asked to consider if, under the circumstances in proof, there was any likelihood of a thief being concealed at night; whether the likelihood was of that character that ordinary,prudence demanded, at the time of closing, that search should be made for a lurking thief, or that the defendant should have instructed his servants to make regular examination. It may be that the character of the business was such that a thorough search could not be made ; and of course that is one of the circumstances which the jury would look at.

For these reasons I consider that the doubt the learned judge entertained, when he directed the exceptions to be heard here, was well founded, and that the exceptions should be sustained, the verdict set aside, and a new trial had, with costs to the plaintiff to abide the event.

Sanford, J., concurred.