text:
    Charles W. Wing, Appellant, v. Ansonia Clock Company, Impleaded, etc., Respondent.
    Plaintiff and defendant H., being the owners of certain patents for improvements in musical instruments, entered into a contract with defendant, the A. O. Co., by which they granted to it the exclusive right to manufacture and sell musical instruments containing said improvements, in consideration of which said company contracted to pay certain specified royalties on the instruments. The contract provided that on failure of the company to pay the royalties the patentees may terminate the license; but in case of such termination the right to recover royalties then due was expressly saved. The contract then contained a provision by which the company agreed in substance to pay annually at least a sum specified by way of royalty, “ or else forfeit the right to manufacture * * under the foregoing license,” if the patentees “ shall so elect.” Held,, that the undertaking of the company was not an absolute one to pay any sum over the royalties required to be paid, but that it had the election, in case the royalties upon instruments manufactured did not amount to the sum specified, to pay the excess up to that sum, or to refuse to pay subject to the hazard of a forfeiture of its license at the election of the patentees ; and that, therefore, an action to recover such excess was not maintainable.
    (Argued April 30, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made at the December term, 1884, which affirmed a judgment in favor of defendant, entered upon an order sustaining a demurrer to plaintiff’s complaint.
    This action was brought upon a contract between plaintiff and defendant Hill, who were patentees of certain improvemehts in musical instruments, of the first part, and defendant, the Ansonia Clock Company, of the second part.
    The material portions of the contract and the question presented thereon are stated in the opinion.

      Edward M. Shepard for appellant.
    When the condition of an obligation is in the disjunctive it may be discharged by the performance of either of the enumerated acts at the election of the obligor. (Hurd v. Kelly, 78 N. Y. 588; Manvell v. Holdridge, 45 id. 151.) It is entirely competent for the parties to give the election to the obligee; and when the language of the instrument gives to the latter the right to demand payment, or enforce performance in either of two ways, there -is no arbitrary rule which prevents effect being given to it. (Hurd v. Kelly, 78 N. Y. 595 ; Chippendale v. Thurston, 4 C. & P. 98; U. S. v. Thompson, 1 Gallison, 388 ; 1 Domat [Cushing’s Am. ed.], § 174; Pothier, Traite des Obligationis, 246, 247; Evans’ Translations, 1806, pp. 136, 137.) When a contract is in the alternative * * * the right to select mode of performance is impliedly vested in the promisor, the rule being that in case an election be given of two several things, always he that is the first agent and which ought to do the first act shall have the election. (Co. Litt. 145a; Chitty on Cont. 106; Bacon’s Abr., “ Election” [B.j ; Roll. Abr. 725; Studholm v. Mandell, 1 Lord Baymond, 279 ; DaCosta v. Davis, 1 B. & P. 242; Stanley v. Fearne, 3 Lev. 137; Basket v. Basket, 2 Mod. 200 ; Dann v. Spurrier, 3 B. & P. 399 ; Layton v. Bearoe, 1 Doug. 14; Penny v. Porter, 2 East, 2; Price v. Nixon, 5 Taunt. 388; Alexander v. Thomas, 16 Q. B. 333; Disbrough v. Neilson, 3 Johns. Cas. 81; Smith . Sanborn, 11 Johns. 59 ; Reed v. Kilburn So., L. R., 10 Q. B. 264.) The option to terminate the defendant company’s license was to be exercised, if at all, within ten days after the close of any year; after that the obligee may exercise the option. (13 Edw. IV, fol. 4, pl. 12; Bold v. Molineux, Dyer, 18a; 28 How. 8 ; Abbott v. Rockwood, 3 Croke, 594 [18 Jac.] ; Studholme v. Mandell, 1 Lord Raymond, 296 ;
      McNitt v. Clark, 7 Johns. 464; Patchin v. Swift, 21 Vt. 292, 297, 299.)

      Marshall P. Stafford for respondent.
    Under an alternative contract the option is always with the party who is to perform, unless the contrary is expressly stated. (Smith v. Sanborn, 11 Johns. 59; Stevens v. Howe, 3 Sup. Ct. 142; Disbrough v. Neilson, 3 Johns. Cas. 81; Manvel v. Holdridge, 45 N. Y. 151.) The failure to pay $4,000 at the stipulated time was an exercise of its option by the company and an election to incur the risk of having its license revoked. (Brooklyn O. R. Co. v. Brown, 61 N. Y. 644.) The company having exercised its option and elected not to pay more than the royalty provided for on each instrument, the parties of the first part were limited to the single right to cancel the company’s right to manufacture. .(Manvel v. Holdridge, 45 N. Y. 151.)
   Andrews, J.

It is a just inference from the contract, giving due force to all its provisions, that the primary purpose of the patentees in entering into it, was to procure the defendant, on’ its own account, to undertake the manufacture of musical instruments, under the patents, subject to the payment to the patentees of a specified royalty on the manufactured articles, as a consideration for the grant of the right to use the invention. The contract, therefore, commences by granting to the company the exclusive right to manufacture and sell two specified classes of musical instruments, containing the patented improvements, during the whole time of the patent, in consideration of the payment by the company of a specified royalty on instruments of each class. The company on its part covenants to promptly commence and diligently prosecute the manufacture of instruments under the license, and to make quarterly returns under oath, of all instruments manufactured thereunder, and quarterly payments of the royalties specified. It is provided that on the failure of the company to make returns or pay the royalties, the patentees may terminate the license, but the right to recover any royalties due at the time notice of the termination of the license is given is expressly saved. Following the clause last referred to are two clauses which raise the question presented by the demurrer. By the first the company promises and agrees to pay the patentees at least the sum of $4,000 per annum for each and every year from the 1st day of January, 1882, by way of royalty above provided for, or otherwise, for the manufacture of piano fortes, containing five or more octaves, with said patented improvements, or else forfeit the right to manufacture piano fortes containing five or more octaves, under the foregoing license, if the parties of the first part (the patentees), shall so elect by a notice in writing to that effect, within ten days after the close of any year in which less than $4,000 is paid.” The second clause contains a similar provision for the payment of another sum of $4,000 under the same conditions, on account of other classes of instruments mentioned in the contract. The question is whether the undertaking of the company is absolute to pay at least $8,000 in each year, so long as the patentees elect to continue the license in force, although the specified royalties do not amount to that sum, or on the other hand, whether the company has the alternative to pay the excess over the royalties, up to the sum mentioned, or to refuse to pay beyond the amount of the royalties, subject only to the hazard of forfeiting its right to manufacture at the election of the patentees. We think the latter is the true construction. The covenant of the company is to pay the sum stated, or else to forfeit its right to manufacture. The contract plainly contemplates alternative situations. The company, in the natural order of events, is first to decide whether it will pay beyond the royalties, or in default of so doing, subject itself to a liability to have the license revoked. It is not strictly a covenant by the company to do one of two acts. But having by the contract an exclusive right to use the patents on performing the conditions, its election not to pay the gross sum would terminate its right under the contract, at the election of the patentees. A mere right of forfeiture attached to a contract, is, of course, no answer to an action on a covenant of payment, or other covenant of the defaulting party. The forfeiture may be waived, and the remedy is alternative and not exclusive. But parties may make a forfeiture the only remedy. The contract may give a right upon condition of payment, with a clause of forfeiture if the payment is not made, and make that the only consequence. This, we think, was the intention of the parties in this case. It is quite conceivable that the patentees, under given circumstances, might deem it for their interest to continue the contract, although the royalties in a particular year might be less than $8,000. By the clause in question, they reserved the right to resume the control of the patents, in case the royalties did not amount to that sum, and the company elected not to pay any thing in excess of the royalties. So also, the company in view of the prospects of the business, might deem it for its interest to retain the exclusive right given by the contract, although to do so might require in a .particular year the payment of a sum beyond the royalties. The construction insisted upon by the plaintiff gives no force to the alternative words ‘ ‘ or else ” in the covenant in question. It is quite significant that in the clause immediately preceding, providing for a forfeiture for non-payment of royalties, the right to recover royalties unpaid at the time of the forfeiture is expressly reserved. It strengthens the construction that the remedy by forfeiture, given in the succeeding clauses, was intended to be exclusive. By the plaintiff’s construction, the company bound itself absolutely to pay each year during the life of the patents, the sum of $8,000, whether the patents proved to be valuable or not, and although not an instrument was "manufactured. If it was the intention that the company should each year pay a minimum sum of $8,000 absolutely, we should expect to find that intention expressed in direct and unambiguous language. We think the reasonable construction of the contract, and one which gives force and meaning to all its provisions, is that which while it makes the liability of the company absolute as to royalties, makes it conditional as to payments in excess of royalties.

The judgment should, therefore, be affirmed

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Edward Fitzsimmons, Respondent, v. The City of Brooklyn, Appellant.
    Where an officer, entitled by law to a fixed annual salary, has been prevented for a time, through no fault of his own, from performing the duties of his office, and has during that time earned wages in another and different employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount so earned.
    There is no contract between an officer and the State or municipality by force of which his salary is payable, but it belongs to him as an incident to his office so long as he holds it, and when improperly withheld he may recover the full amount.
    Plaintiff was a police officer in the city of B., receiving an annual salary. The police commissioners made an order removing him, but the order of removal was reversed upon certiorari, and plaintiff restored to his office. Between the order of removal and that of restoration, he was not permitted to render service as policeman, but earned money in other employments. In an action to recover the salary during that period, held, that a refusal to deduct the amount of his earnings from the unpaid salary was proper.
    The rule applicable to cases between master and servant and landlord and tenant distinguished.
    (Argued April 26, 1886;
    decided June 8, 1886.
    Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made Hay 1, 1884, which affirmed a judgment in favor of nlaintifí, entered upon a verdict directed by the court.
    This action was brought to recover a balance alleged to be due plaintiff for salary as a member of the police force of the city of Brooklyn.
    The material facts are stated in the opinion.

      Almet F. Jenks for appellant.
    If plaintiff is entitled to recover the amount of his salary from the date of his removal until he was reinstated, such sum should be reduced by the amount earned by him during that period. (People, ex rel. Swinburne, v. Nolan, 101 N. Y. 539; United States v. Addison, 6 Wall. 291; Nichols v. MacLean, 101 N. Y. 526 ; Pennie v. City of Brooklyn, 97 id. 654; Dill, on Mun. Corp., § 235, note; 2 Greenl. Ev., § 261a; Costigan v. M. & H. R. R. Co., 2 Denio, 609 ; Abbott’s Law Dict. 109.)

      Charles J. Patterson for respondent.
    Plaintiff was entitled to recover the salary claimed. (Pennie v. Brooklyn, 97 N. Y. 654; Langan v. Brooklyn, 98 id. 623 ; People, ex rel. Ryan, v. French, 91 id. 265; Nichols v. McLean, 101 id. 526.) The fact that the plaintiff earned $500 during the period for which the salary was recovered was immaterial. (O'Leary v. Board of Education, 93 N. Y. 1; Howard v. Daly, 61 id. 362; Kehn v. State, 93 id. 291; People v. Board of Police, 75 id. 38.)
   Finch, J.

This case presents the question whether an officer entitled by law to a fixed annual salary, but prevented for a time by no fault of his own from performing the duties of his office, and earning during that time the wages of another and different employment, must deduct them from his recovery when he sues for his unpaid salary. It is quite .true that the question is not raised by the pleadings, but no objection was interposed on that account. The necessary facts were proved or admitted, and upon them the question was presented to and decided by the trial court and an exception taken to that decision. If the question of pleading had been raised the difficulty might have been obviated, and an issue tried and determined by the consent of both sides, irrespective of the shape of the pleadings, cannot be thrust out of the case upon an appeal.

The plaintiff was a policeman of the city of Brooklyn, duly appointed to that office and having entered upon the performance of its duties. He was attempted to be removed from office by the police commissioners, but upon a eerUorari the order of removal was reversed and the plaintiff restored to his office. Between the order of removal and that of restoration he rendered no service as policeman, because not permitted so to do, but during the interval resumed for a time his old occupation as a machinist, and that failing, engaged in work at Schutzen park, the character of which is not disclosed; and from these two sources earned, during the period of his removal, the sum of $500. The defendant conceded that plaintiff was entitled to recover the unpaid salary of his office, but insisted that his earnings of $500 should be applied upon and deducted from it. The court refused the deduction, the General Term affirmed the judgment, and the defendant brought this appeal.

The rule sought to be applied by the city to the claim of the plaintiff finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analogous to those existing between the officer and the State or municipality. The rule in those cases is founded upon the fact that the action is brought for a breach of contract and aims to recover damages for that breach, or compensation for the servants loss actually sustained by the default of the master. That loss he is required to make as small as he reasonably can. His discharge without just cause is not a license for voluntary idleness at the expense of the master. ' If he can obtain other employment, he is bound to do so, and, if he engages in other service, what he thus earns reduces his loss flowing from the broken contract. But this,rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and the State or municipality by force of which the salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown. We think, therefore, it has no application to the case at bar, and the courts below were right in refusing to diminish the recovery by applying the wages earned.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    Meyer Sonneborn, Appellant, v. William Libbey et al., Respondents.
    As under the late United States Bankruptcy Act (14 U. S. Stat. 636, § 40), the power conferred upon a bankruptcy court to issue, in proceedings instituted by a creditor, a warrant to the marshal commanding him to take possession of the property of the alleged bankrupt was discretionary, as was also the power to recall or set aside a warrant after it had been issued, that court had power to impose, as a condition of granting the warrant or of denying a motion to recall one which had been granted ex fa/rte, that the petitioning creditor should give a bond indemnifying the alleged bankrupt from loss or damages caused by the process in case of dismissal of the proceedings.
    The firm of A. T. S. & Co. brought an action against plaintiff upon an alleged indebtedness. Plaintiff succeeded on the trial, but the judgment was reversed on appeal. Before a second trial said firm instituted bankruptcy proceedings against plaintiff, his alleged indebtedness being the disputed claim, and upon an ex pa/l'te application by the petitioners a warrant was issued to the marshal requiring him to take possession of plaintiff’s property, which was executed; on the return day of the order to show cause, plaintiff denied the indebtedness or that he was insolvent and made three motions, i, e., for a dismissal of proceedings, for a recall of the warrant, and for a bond of indemnity to he given by the petitioning creditors ; the latter also moved to amend their petition. The court disposed of all the motions by one order which allowed the petitioners to amend, and denied the motion to recall the warrant, but required the petitioners to give a bond of indemnity against damages sustained by plaintiff in consequence of the seizure of his goods, if on the final hearing he “ should prove he is not a bankrupt, and the proceedings against him, by said petitioning creditors, shall be dismissed.” Said petitioners thereupon gave a bond conditioned as required by the order, with this addition, “ in case said proceedings are not dismissed, or if said Meyer Sonneborn l shall be adj udicated a bankrupt thereunder, then this obligation to be void.” Anew trial of the action resulted in a judgment in favor of plaintiff herein, and upon submission of the question to the bankruptcy court, it decided that the judgment was conclusive as to plaintiff’s indebtedness and dismissed the proceedings. In an action upon the bond, held that the bankruptcy court had authority to require the same as a condition for its refusal to recall the warrant; that the order in effect required it as the condition for such refusal; that there was a good consideration for the bond; and that there was such a compliance. with its condition as imposed a liability upon the obligors.
    (Argued April 37, 1886 ;
    decided June 15, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of ¡New York, entered upon an order made July 1, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. (Reported below, 12 Daly, 509.)
    This action was upon a bond executed by defendants.
    From 1869 to 1873 and afterward, the plaintiff was a resident of Eufaula, Alabama, and was a merchant there, having, in 1873, a stock of goods worth about $10,000. In 1869 A. T. Stewart & Có., of ¡New York, claiming that the plaintiff was a member of a firm which was indebted to them in the sum of about $2;500 for merchandise sold in the spring of 1867, commenced a suit in a State court of Alabama to recover that sum of him. He appeared in that action and denied that he was a member of the firm at the time the debt was created, or that he was in any way indebted to the plaintiffs therein. That action came on for trial and resulted in a verdict in his favor. A. T. Stewart & Co. appealed from the judgment entered upon that verdict to the Supreme Court of that State, and there the judgment was reversed and a new trial granted. Thereafter, in August, 1873, before the new trial was' had, they, claiming to be creditors of Sonneborn on account of the debt above mentioned, filed their petition in the United States District Court for the Middle District of Alabama, alleging that he had committed an act of bankruptcy and praying that he be declared a bankrupt. On the same day an order was issued requiring him to show cause on August 21, 1873, why the prayer of the petitioners should not be granted. At the same time A. T. Stewart & Go. also filed a separate petition praying that, an injunction and provisional warrant of seizure issue forthwith; and such warrant was * issued to the marshal, requiring him to “ take possession of all the estate, real and personal, of said Meyer Sonneborri, debtor, except such as may be bylaw exempt, etc., and all of his deeds, books of account and papers, and to keep the same safely until the issue of said bankruptcy is decided and until the further order of this court.” These proceedings were all ex parte. The marshal executed the warrant on the next day, the 16th day of August, by taking possession of Sonneborn’s store and stock of goods, and thereafter retained the custody and possession of the same under his warrant. On the return day of the order to show cause, August twenty-first, Sonneborn appeared and denied that he was indebted to the petitioners, that he was insolvent, or that he had committed any act of bankruptcy, and stated that he was then and always had been able to pay his debts in full and would continue to do so unless broken up and ruined by the action of the petitioners, and he demanded a jury trial; and through his counsel he moved the court to recall the provisional warrant and return to him the property seized thereunder. He also moved the court that the petitioners be required to give a bond indenmifying him for all damage he might sustain by the seizure of his goods and effects under the warrant. The petitioners at the same time made a motion to amend their petition. The court made one order disposing of all the motions which allowed the petitioners to amend their petition, denied Sonneborn’s motion to recall the provisional warrant of seizure, but granted his other motion and required the petitioners to give a bond in the sum of $5,000, indemnifying him for any damage he might sustain by reason of the “ obtaining of the provisional warrant * * * or the restraining order directed to issue herein, and for all damages accruing to him by virtue of the issuance of the same, and for all damages he may sustain by the seizure of his goods and effects under said warrant, if on the final hearing of the said creditors’ petition to have the defendant adjudged a bankrupt, the said defendant shall prove he is not a bankrupt and the prdceedings against him by the said petitioning creditors shall be dismissed,” and the further consideration of all matters arising upon the order to show cause were ad-1 journed to the fourth day of September. On the third day of September the petitioners filed the bond required, executed by them as principals and Geo. B. Butler and John M. Hopkins as sureties, the condition of which is as follows: “Now the - condition of this obligation is such that if the above bounden A. T. Stewart & Co. shall well and truly save harmless and indemnify the said Meyer Sonneborn from any damages he may sustain by virtxie of the obtaining of the provisional wari’ant issued in this matter, or of the restraining orders directed to issue herein, and from all damages accruing to him by virtue of the issuing of the same, and from all damages heomay sustain by the seizure of his goods and effects under said war-i’ant, if, on the final heai’ing of said creditors’ petition to have the defendant adjudicated a bankrupt, the said defendant shall prove that he is not bankrupt and the proceedings against him by the said petitioning creditors shall be dismissed. In case said proceedings are not dismissed, or if said Meyer Sonneborn shall be adjudicated a bankrupt thereunder, then this obligan tian to be void ; otherwise to remain in full force.” On the fourth day of September the parties again appeared in coxxrt and Sonneboi’n again filed a special denial that A. T. Stewart & Co. were his creditors; that he had committed any act of bank ruptcy and repeated his demand for a trial by jury, and noth-, ing more was then "done. In November, 1873, the new trial -in the State court was had upon the mei’its, and resulted in a yen diet and judgment for Sonneborn. The plaintiffs in that action again appealed to the State Supreme Court, where the judgment was affirmed. After the affirmance of that judgment Sonneborn claimed that it was conclusive that A. T. Stewart & Co. were not his creditors, and that that question was not open for further litigation between the parties in the bankruptcy court, and this was denied by A. T. Stewart & Co. Thereupon Sonneborn and A. T. Stewart & Co. agreed upon a statement of facts in reference to the adjudication in the State court, and agreed to submit them to the district judge in bankruptcy, and that if he should decide that the judgment in- the State court was conclusive, and could be pleaded in bar of any inquiry into the question of indebtedness in the bankruptcy court, then the bankrupt proceedings Should be dismissed out of court. Upon the statement of facts thus submitted and the agreement of the parties the court gave judgment for Sonneborn. The stock of goods was then restored to Sonneborn, and upon examination they were found to be damaged to more than half their value. Thereafter, in 1880, this action was commenced upon the indemnity bond against the surviving principals and the sureties thereon. It was brought to trial, and after proof of the foregoing facts the court dismissed the complaint upon the following grounds: (1) “ That the bond sued on was void, having been ordered by a court which had no authority by law to order it, and being without any consideration to support it. (2) That conceding the bond to have been valid its conditions were never performed, and the liability of the defendants has never attached because the condition has never been performed.”

      M. W. Divine for appellant.
    The bankrupt court had full power and authority to require a bond from A. T. Stewart & Co. to 'indemnify plaintiff from a wrongful seizure of his goods. It possesses an equity jurisdiction. (14 U. S. R. S. 517, 518, § 1; id. 520, § 8; Sandusky v. National Bk., 23 Wall. 292; Ray v. Norseworthy, id. 134; Morgan v. Thornhill, 11 id. 78; In re Wallace, Deady, 433; Gen. Order Ho. 32 in Bankr. [Bump’s 8th ed.] 866 ; Ex parte Christie, 3 How. 312.) The court had what are perhaps loosely termed " equity powers,” i. e., discretionary ones. (Decker v. Judson, 16 N. Y. 445; 14 U. S. R. S. 536, §§ 39, 40; In re Wallace, 1 Deady, 433;
      In re Miller, id. 513 ; Rosenbaum v. Garrett, 3 Hughes, 662; In re Anderson, U. S. Dist. Ct. of Virginia, 23 Fed. Rep. 482 ; id. 494-6, 7, 8 ; Bump [9th ed.], 42-3 ; Chappell v. Davidson, 8 DeG., M. & G. 1; Cayuga v. Magee, 2 Paige, 116, 122.) The order requiring A. T. Stewart & Co. to execute a bond of indemnity cannot, in this collateral proceeding, be set aside or disregarded. (People v. Sturtevant, 9 N. Y. 263, 267, 274, 275 ; Swift v. Poughkeepsie, 37 id. 512 ; Roderigas v. East River Sav. Instn., 63 id. 462; Hunt v. Hunt, 72 id. 228 ; Lange v. Benedict, id. 12; Buffalo, etc., R, R. Co. v. Supervisors, 48 id. 98 ; Bangs v. Duckenfield, 18 id. 595 ; Rusher v. Sherman, 28 Barb. 416; Cocke v. Halsey, 16 Pet. 87; Elliot v. Perisol, 1 id. 340; Thompson v. Tolmie, 2 id. 162; Rhode Island v. Massachusetts, 12 id. 717; Windsor v. Mc Veigh, 93 U. S. 274, 276, 278, 282, 283 ; Bigelow v. Forrest, 9 Wall. 339 ; Day v. Micon, 18 id. 156.) The condition of the bond was fully satisfied, and the liability of Stewart & Co. became complete. (Fourniquet v. Perkins, 7 How. [U. S.] 160 ; Durant v. Essex Co., 7 Wall. [U. S.] 107; Tuska v. O’Brien, 68 N. Y. 448-9 ; Clemens v. Clemens, 37 id. 73-4; Jordan v. Van Epps 85 id. 436.) Where a bond is given voluntarily, if it does not contravene public policy or violate any statute, it is valid and binding on the parties to it. (Munter v. Reese, 61 Ala. 295; Wolffe v. McClure, 19 id. 564; Barnes v. Webster, 16 Mo. 265 ; Glassen v. Shaw, 5 Watts, 468; Archer v. Hart, 5 Fla. 234; Winthrop v. Dockendroff, 3 Me. 156; Park v. State, 4 Ga. 329 ; Barker v. Bartol, 7 Cal. 551; State v. Cannon, 34 Iowa, 352; Greathouse v. Dunlap, 3 McLean, 303 ; Rowlet v. Eubank, 1 Bush, 477.) While the general rule is that a partner cannot bind his copartners by a writing under seal without authority, such authority may be by paroi, or may be inferred from the course of business and dealing between the partners. (Skinner v. Dayton, 19 Johns. 513; Smith v. Kerr, 3 N. Y. 144.)

      Horace Russell for respondents.
    The TJ. S. District Court, sitting in bankruptcy, was a statutory court whose jurisdiction, procedure and powers were entirely governed and confined by the provisions of the act creating it. It was absolutely without either equity or common-law powers. (Cary v. Curtis, 3 How. 236 ; U. S. v. Cultus Joe, U. S. Dist. Ct., Sept., 1871; 15 Int. Rev. Rec. 57; Scott v. The Young America, 1 Newb. 101 [Mich. 1856] ; McIntire v. Wood, 7 Cranch, 504; Ex parte Cabrera, 1 Wash. C. C. 232; Wheaton v. Peters, 8 Pet. 593 ; Ex parte Bollman, 4 Cranch, 75.) The U. S. District Court, sitting in bankruptcy, therefore, had not the jurisdiction to order a bond not provided for or contemplated in the statute which created the court and defined its jurisdiction. (Bouv. Law Diet., tit. “ Jurisdiction; ” Burr. Law Diet., tit. “ Jurisdiction ; ” In Re Morris, 4 Nat. Bankr. Reg. 10.) Whatever a court does or requires in excess of its jurisdiction is void, and all subsequent proceedings fall with the void act or order which gave them birth. (Kamp v. Kamp, 59 N. Y. 212; Windsor v. McVeigh, 93 U. S. 274, 282, 283.; Ex parte Lange, 18 Wall. 163, 176, 177, 178; Bigelow v. Forrest, 9 id. 339; Bay v. Micon, 18 id. 156; Brookman v. Hamill, 43 N. Y. 554; 54 Barb. 209 ; Fralick v. Betts, 13 Hun, 634; Murphy v. Salem, 1 id. 141; Poole v. Kermit, 59 N. Y. 554; Vose v. Cockroft, 44 id. 415 ; Wightman v. Karsner, 20 Ala. 446 ; Foster v. Glazener, 27 id. 391; Gunn v. Howell, id. 663.) In all the cases in which a bond has been held valid because required by the order of a court, the court has been one possessing equitable power, and the bond has been required in the exercise of that power. (Decker v. Judson, 16 N. Y. 439; Ames v. Webbers, 10 Wend. 575; Chandler v. Brecknell, 4 Cow. 49 ; Brown v. Murray, 4 Dowl. & Ryl. 830; Ford v. Townsend, 1 Robt. 39.) By the Revised Statutes of New York and by the Code of Alabama, the validity of a common-law bond without consideration has been destroyed. (2 R. S. of N. Y. 406, § 77; Code of Ala., § 2891; Town of Wayne v. Sherwood, 14 Hun, 423 ; 76 N. Y. 599 ; Codwell v. Colgate, 7 Barb. 253; Homan v. Brinkerhoff, 1 Denio, 184 ; Webb v. Albertson, 4 Barb. 51; Benedict v. Bray, 2 Cal. 251; Caffrey v. Dudgeon, 33 Ind. 512; Comm, of Ky. v. Bassford [1851], 1 E. D. S. 218; Murphy v. Salem, 1 Hun, 141; Fralick v. Betts, 13 id. 634; Poole v. Kermit, 59 N. Y. 554; Vose v. Cockroft, 44 id. 415; Brookman, v. Hamill, 43 id. 554; 54 Barb. 209; Byers v. State, 20 Ind. 47 ; Ancoin v. Guillot, 10 La. Ann. 124; U. S. v. Hipkin, 2 Hall’s Am. L. J. 80 ; Ward v. Syme, 8 N Y. Leg. Obs. 95; 4 N Y. 171; Rockwell v. McGovern, 40 N. Y. Super. 118,121; 69 N. Y. 294 ; Alston v. Alston, 34 Ala. 15; Hester v. Keith, 1 id. 316; Gayle v. Martin, 3 id. 593 ; Whitsell v. Womack, 8 id. 466 ; Williamson v. Woolf, 37 id. 298; Sprowl v. Lawrence, 33 id. 674.) The fact that the marshal had taken possession of the plaintiff’s goods on the 16th of August, 1873, on a provisional warrant theretofore issued, did not “constitute any legal consideration for the bond required and given, because the seizure was a past act done under lawful authority. (Day v. Bach, 87 N. Y. 56; Matter of Bradner, id. 171; Metc. on Cont. 193; 2 Pars, on Cont. 391; Pritchard v. Norton, 106 U. S. 124; Chaffee v. Thomas, 7 Cow. 358; Farnsworth v. Clark, 44 Barb. 601; Frear v. Hardenbergh, 5 Johns. 272; Dearborn v. Bowman, 3 Metc. 155; Greene v. Parish, 10 Pick. 499; Shaw v. Boyd, 1 Stew. & Port. 83; 2 Kent, 365; 7 Johns. 87; Duncan v. Hall, 9 Ala. 128; Jackson, Adm’r, v. Jackson, 7 id. 791.) An express promise can only revive a precedent good consideration, which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law, but" can give no original right of action if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision. (Metc, on Cont. 178; Wennall v. Adney, 3 Bos. & Pul. 249, 252; Smith v. Ware, 13 Johns. 257; Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Conn. 57; Kenan v. Holloway, 16 Ala. 53; Barron, Adm'r, v. Vandvert, Adm'r, 13 id. 232 ; Vance v. Wells & Co., 6 id. 737.) The court has not the right to substitute quite another-undertaking from the one assumed. (Elmendorf v. Lansing, 5 Cow. 468; Metc. on Cont. 284; 8 Mass. 276; Post v. Doremus, 60 N. Y. 371; Barnes v. Peck, 1 Port. 187, 190.) So much of the undertaking as was in excess of that required was without consideration, unless a consideration therefor could be shown, aliunde, to exist. (2 Bac. Abr. Cond. Notes [Bouvier’s ed., 1856], 306 ; Coke Litt. [L. 3, chap. 5, § 334], 206a; Pindar v. Upton, 44 N. II. 358; Com. Dig., “Bond,’’ 1, 6, 7; Bac. Abr., Cond. 23; Coke Litt. 206b, 210b ; Touchstone, 387, 391; 2 Cruise’s Dig. 33 ; 4 Pet. 691; Whitney v. Spencer, 4 Cow. 39; Tuttle v. Kip, 19 Johns. 194; Rives v. Baptiste, 25 Ala. 382; Rives v. Toulman, 23 id. 452; Whitted v. Governor, 6 Port. 335 ; Dunn v. Davis, 37 Ala. 95; Garrett v. Logan, 19 id. 344; Sewall v. Franklin, 2 Port. 493, 506; Bennehan v. Webb, 6 Ired. L. [N. C.] 57; 9 Hurls, on Bonds, Law Lib. 57; Shep. Touch. 375, 379.) One partner cannot bind his copartners to such an instrument as the bond in suit. It is not within the scope of the partnership. He who signs is bound, but no one else, by his signature. (Clement v. Bush, 3 Johns. Cas. 180 [1802] ; McBride v. Hagan, 1 Wend. 328; Pars, on Part. 178, note g ; Cady v. Shepherd. 11 Pick. 403 ; Van Deusen v. Blum, 18 id. 229.)
   Earl, J.

We are of opinion that the bankrupt court had the power to require this bond .to be given. Under the Bankrupt Act of 1867, the U. S. District Court had general jurisdiction in all cases of bankruptcy. The powers conferred upon it were extensive, and were intended to be adequate for all the purposes of the act. Section 39 of the act provides that any person residing in the United States and owing debts exceeding $300, who shall commit any of the acts of bankruptcy in that section specified, “ shall be adjudged a bankrupt on the petition of one or more of his creditors,” etc. Section 40 provides that upon filing the petition “if it shall appear that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause * * why the petition should not be granted.” Here the command of the statute is imperative. If the petition is sufficient, the court must grant the order to show cause, and cannot grant or withhold the same in its discretion. Following paragraphs of the same section provide that the court “ may by injunction restrain the debtor or any other person in the meantime from mating any transfer or disposition ” of the debtor’s property, and “ from any interference therewith”; that “if it shall appear that there is probable cause for believing that the debtor is abont to leave the district or to remove or sell his goods * * * the court may issue a warrant to the marshal commanding him to arrest the alleged bankrupt * * * and forthwith to take possession provisionally of all the property and effects of the debtor, and safely keep the same until the further order of the court.” The powers conferred in these paragraphs are discretionary, to be exercised only when, in view of all the circumstances of a case, the court may conclude that the ends of justice and the purposes of the law require it. The court could in its discretion, in all cases where it had jurisdiction to grant the provisional remedies, withhold them. The petitioning creditors could never demand either of them, as matter of right. So, too, the court having granted one of these remedies, could at any time, in its discretion, recall or .set it aside. Its discretionary control over either of these remedies remained until it was fully executed, and had thus become functus officio. These powers were very extraordinary, and their exercise might be very destructive. The warrants could be issued ex parte without any notice, and thus great and irreparable mischief could be done. It was certainly very appropriate that the court should possess power to take security against the damage which its process thus granted might do. As it was in the discretion of the court to withhold or grant the warrant of ceizure, it could specify the terms upon which it would grant it, and it could require compliance with such terms or else refuse the warrant. It is a universal rule in the procedure of all courts that when, in the exercise of their discretion, they may grant or withhold a favor asked for, they may impose any reasonable terms or conditions upon which the favor is to be had. What a party cannot demand of a court as matter of right, he must, usually take upon such terms, proper and judicial in their nature, adapted to the ends of justice, as the court sees fit to impose. (Decker v. Judson, 16 N. Y. 439; In re Bradner, 87 id. 171.) The administration of justice would be greatly impeded, and the courts greatly embarrassed and crippled, if they did not possess the power to impose terms in such cases. This power does not depend upon the common law, nor upon chancery law, nor upon statutory law. It is an inherent power of courts incident to the exercise of the discretion, and really a part of the discretionary power.

It cannot be said that the discretion was unreasonably exercised in this case when the warrant was issued upon an ex parte application and the seizure under it broke up the plaintiffs business and would necessarily greatly damage his property. The requirement of a bond is a usual and almost universal condition in such cases.

If the bond could have been required as a condition of issuing the warrant, it could also be required as a condition for refusing to recall or vacate it.

But it is claimed that this bond was arbitrarily required and not as a condition for the refusal to recall the warrant on the motion of Sonneborn. It is true that it was not in terms ordered to be given upon that condition. On the return day of the order to show cause there were four motions, one by the petitioners to amend their petition, one by Sonneborn to dismiss the proceedings, another by him to recall the provisional warrant, and still another for the indemnity bond, and these motions were all disposed of by one order. JSTo one familiar with legal proceedings can doubt that Sonneborn’s motion to the court was that the warrant'be recalled or that the petitioners be required to give the bond, and the court refused to recall the warrant, but required the bond. Thus, although not so expressed in terms, the bond was required as a condition for the refusal to recall the warrant. If the petitioners did not desire to give it, they should have consented to the recall of the warrant. The bond was required because they insisted upon, maintaining the seizure of the goods, and clearly as a condition of the maintenance of such seizure.^

There was ample consideration for the bond. The petitioners maintained the seizure of the goods for their benefit, and Sonneborn was deprived of their possession and subjected to great loss and damage.

We, therefore, see no reason to impeach the validity of the bond, and it only remains to be inquired whether there was such a compliance with its conditions as to impose liability upon the obligors thereof. They contend that, before they could be made liable, it was incumbent upon the plain till to show that in the bankruptcy proceedings he proved that he was not bankrupt, and they claim that he did not show that. It is by no means clear that he did not show that. He had goods worth about $10,000. The only debt that appeared or was in any form alleged in the bankrupt proceedings, besides that claimed by the petitioners was one for a little less than $7,000, and when Sonneborn established that he did not owe the petitioners any thing, he showed at least prima faoie that he was not bankrupt. But this view of the case need -not be taken.

We do not assent to defendants’ construction of the bond. We must construe the bond and the order in pursuance of which it was given, so far as they throw light upon each other, together, and thus arrive at the intention of the court and of the parties. (Elmendorf v. Lansing, 5 Cow. 468.) Evidently what was intended was to protect Sonneborn against the consequences of the seizure of his property in case it should turn out that the petitioning creditors had no cause to seize it. At the time the order was made, Sonneborn had obtained one verdict upon a trial upon the merits that he was not indebted to the petitioners, and he was about to proceed to another trial. That he was not a debtor of the petitioners seems to have been his main contention and "reliance, and it cannot be supposed that it was the intention of the court that in case the proceedings should be dismissed on the ground that the petitioning creditors had no claim against him and thus no right to institute them, he was to have no indemnity.

The order required the bond to be upon/the condition that Sonneborn “ should prove that he is not bankrupt and the proceedings against him by the said petitioning creditors shall be dismissed.” blow what was meant by this language ? We think the purpose to be accomplished by the bond, and the language of the bond given in pursuance of the order, show that the word and ” should be read as or,” so that Sonneborn would have the indemnity in case he proved that he was not a bankrupt or the proceedings were dismissed. That the parties so understood the order and requirement of the court is shown by the language of the bond. The bond follows the language of the order and then apparently in explanation of its meaning has the following language: “ In case said proceedings are not dismissed or if said Meyer Sonneborn shall be adjudged a bankrupt thereunder, then this obligation to be void; otherwise to -remain in full force.” The last clause if written out would be thus: “ But in case said proceedings shall be dismissed, or if said Meyer Sonneborn shall not be adjudicated a bankrupt thereunder, then this obligation to remain in force.” Such is the plain meaning of the bond when all its language is considered, and no other construction would harmonize with the surrounding circumstances and accord with the presumed intention of the court and of all the parties interested.

Therefore, when final judgment was rendered for Sonneborn in the bankrupt proceedings, the event had happened upon which the liability of the defendants was conditioned, and the indemnity to Sonneborn should become operative.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.


author: Euger, Oh. u.

text:
    Sophronia Carpenter, Respondent, v. Miranda A. Osborn, Impleaded, etc., Appellant.
    Plaintiff and defendant" 0., her husband, entered into an agreement for a separation, by which he agreed to pay to her certain sums quarterly during her life, which sums she agreed to accept in full discharge of all claims upon him or his property. Plaintiff brought several actions against C. for non-performance of the agreement, and recovered judgments therein. In said actions the question as to the validity of the contract and the status of plaintiff as a creditor of 0. was litigated. In an action brought to set aside conveyances of his real estate, made by 0. to the other defendants as in fraud of his creditors, held, that said judgments were, in the absence of proof of fraud in their procurement, conclusive upon the questions so decided therein not only against C., but the other defendants, and they could not be litigated in this action.
    After the rendition of the judgments, plaintiff procured a decree for an absolute divorce from her husband for adultery. The decree made no provision for her support. Held, that such an annulment of the marriage affected neither the judgments nor the obligations of the contract.
    By the separation agreement, plaintiff agreed to execute releases of her dower right in her husband’s real estate, and in case of refusal so to do within ten days after request, it was provided that all her rights to payments under the contract should be forfeited. She joined in the several conveyances sought to be set aside, but without knowledge of the fraudulent purpose. Held, that she was not estopped thereby from questioning their validity.
    By the judgment a recovery was had for several installments due plaintiff under the contract, but not in j udgment when this action was commenced and a lien therefor upon the land in question was declared. Held, that the court having acquired jurisdiction, had authority to render j udgments against C. for such amounts as were not already in judgment, but that the rule which precludes a court of equity from entertaining jurisdiction of an action to set aside a fraudulent conveyance at the suit of a simple contract creditor rendered the judgment erroneous so far as it declared such a debt a lien upon the property.

      It seems, however, that the rendition of the judgment against 0. for the amount unpaid, so far as the parties to this action are concerned, placed plaintiff in a position to enforce it hereafter against the real estate in question.
    (Submitted April 37, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 22, 1884, which affirmeda judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    This action was brought by plaintiff, as a judgment creditor of John Carpenter, to set aside certain conveyances executed by him to the other defendant as fraudulent against creditors.
    The material facts are stated in the opinion.

      J. McGuire for appellant.
    A contract or agreement between husband and wife, to live separate and apart, the wife agreeing to support and maintain herself, and the husband contracting inter sese to pay her a sum of money therefor, is wholly void and incapable of enforcement, either at law or in equity. (Rogers v. Rogers, 4 Paige, 516; Florentine v. Wilson, Hill & Den. 303; Cropsey v. McKinney, 30 Barb. 47; Morgan v. Potter, 17 Hun, 403 ; Dupri v. Rein, 56 How. 231; Beach v. Beach, 2 Hill, 264 ; Van Order v. Van Order, 8 Hun, 315; St. John v. St. John, 11 Ves. 531; Legrand v. Thompson, 3 id. 358; Tiff. & Bull, on Trusts, etc., 692.) A post-nuptial contract of separation, made with the intervention of a trustee, will be upheld and enforced in equity, not as a contract of the wife, but that of the husband and the intervening trustee, the wife signing merely to indicate her assent. (St. John v. St. John, 11 Ves. 531; Legrand v. Thompson, 3 id. 358 ; Head v. Head, 3 Atk. 295 ; Rogers v. Rogers, 4 Paige, 516 ; Calkins v. Long, 22 Barb. 103.) It is competent and admissible for husband and wife, through the medium of a trustee, to make articles of separation, by which the husband makes provision for the support of the wife, by allowance or otherwise, and a court of equity will, at the instance of the trustee, for the benefit of the wife, enforce such provisions or any securities which might by the husband have been given, and will give him a right of action against the trustee for any breach of the contract by the wife. (Bunn v. Vaughan, 5 Abb. [N. S] 269; 3 Keyes, 345; Calkins v. Long, 22 Barb. 97.) There are contracts, agreements or understandings between husband and wife which courts of equity will recognize and compel their execution, hut such agreements are not those of separation, nor do they in any wise relate to such a subject. (Garlock v. Strong, 3 Paige, 440 ; Simar v. Canaday, 53 N. Y. 298 ; Foster v. Foster, 5 Hun, 557.) The statutes removing the disabilities of married women have not changed or altered her common-law • status in respect to her making a contract of separation. (Shultz v. Shultz, 89 N. Y. 644: Bertles v. Nunan, 92 id. 153 ; Fairlee v. Bloomingdale, 14 Abb. N. C. 341; Perkins v. Perkins, 62 Barb. 531; Barron v. Barron, 24 Vt. 375 ; Baker v. Barney, 8 Johns. 72.) The law, for reasons of public policy, condemns separations between husbands and wives and only approves of them in cases of conjugal infidelity, or where the cruelty or inhuman conduct of the husband renders it unsafe to the wife to reside with him. [Noe v. Noe, 13 How. 456.) Such an agreement, made between husband and wife alone, is void at law and equity. (Morgan v. Potter, 17 Hun, 403; Cropsey v. McKinney, 30 Barb. 47.) Her agreement for release of dower is void. ( Winans v. Peebles, 32 N. Y. 423; Guidet v. Brown, 54 How. 409 ; Townsend v. Townsend, 2 Sandf. Ch. 711; Carson v. Murray, 3 Paige, 483 ; Day v. West, 3 Edw. Ch. 592.) Hor do the acts of 1848 and 1849 authorize her to release her inchoate right of dower to the husband. (Graham v. Van Wyck, 14 Barb. 531; Perkins v. Perkins, 62 id. 531.) The divorce put an end to the obligation of the defendant John to support the plaintiff other than as the judgment itself may have provided and terminated the marriage relation between them. [Camp v. Camp, 50 N. Y. 212 ; McQuien v. McQwien, 61 How. 280; 63 id. 194.) The contract for a separation must be deemed to be superseded by the judgment of the court in the action for a divorce. (Squires v. Squires, 53 Vt. 208 : Skillher v. Gregory, 2 Wend. 422.)

      Frederick Hatch for respondent.
    The admission of the making and execution of the contract in the appellant’s answer sets at rest all question as to its validity. (Code of Civ. Pro., § 522; Dunham v. Cudlipp, 94 N. Y. 130, 134.) The judgments are not only res adjudicata as to their own validity, but as the undisputed evidence establishes the fact that they were obtained upon successive installments due by the terms of the contract, they are conclusive between the parties and their privies as to the validity of the contract upon which the judgments were obtained. (Jordan v. Van Epps, 85 N. Y. 427; Patrick v. Shaffer, 94 id. 423, 430.) Both the contract being valid as to John Carpenter, and the judgments being conclu sive as to him, no fraud being claimed or shown, these questions were conclusive in this action as to the appellant. (Burgess v. Simonson, 45 N. Y. 225, 227, 229.) The contract being one in reference to plaintiff’s separate estate, was one. which the legislature authorized her to make with the like effect in all respects as if she were unmarried. (Laws of 1862, chap. 173; Cashman v. Henry, 75 N. Y. 103.) The contract was founded upon a good and sufficient consideration. (Thompson v. Attfield, 1 Vern. 40 ; Minturn v. Seymour, 4 Johns. Ch. 498; Hayes v. Kershen, 1 Sandf. Ch. 261; Shepherd v. Shepherd, 7 Johns. Ch. 57, 59; 2 Kent’s Com. 162, 163-4-6; Jackson v. Guernsey, 16 Johns. 189 ; Osborne v. Mass, 7 id. 161; Vilas v. Beaumont, 1 Vern. 100; Garlick v. Strong, 3 Paige, 452; 20 Hun, 206; 5 Paige, 165; 24 N. Y. 620, 631; 14 Hun, 276; 11 id. 224-5 ; 5 id. 557; 1 Bright’s Husband and Wife, 29, 33.) As a contract between husband and wife notin contemplation of a future separation (and thus against public policy), but entered into after a separation had actually taken place, and to provide suitably for the wife, it is one the provisions of which a court of equity will enforce. (Carson v. Murray, 3 Paige, 483, 501; Magee v. Magee, 67 Barb. 487-490; Walker v. Walker, 9 Wall. [U. S.) 743; Fox v. Davis, 13 Mass. 225; 13 Am. Rep. 476; Calkins v. Long, 22 Barb. 97.) The intervention of' a trustee was not essential. Ample consideration moving from, and release of rights by the wife herself, supported the promise of the husband without the indemnity famished by the covenant of a trustee. (Story’s Eq. Jur., §§ 1373, 1380, 1395; Sexton v. Wheaton, 8 Wheat. [U. S.] 229; 2 Kent’s Com. 162, 163.) As an executed contract it cannot be repudiated by the party who has reaped its benefits. (Emmet v. Reed, 8 N. Y. 312.) The appellant cannot invoke the aid of the principle of equitable estoppel. (Welland Canal Co. v. Hathaway, 8 Wend. 480, 483 ; Green v. Russell, 5 Hill, 183; Griffith v. Bucher, 10 Barb. 432;, Andrews v. Ætma Ins. Co., 85 N. Y. 343, 344 ; 5 Denio, 154; 3 Hill, 225.) The judgment of divorce granted December 8,1881, is not a bar to the plaintiffs recovery of installments accruing since the decree, and. due before the commencement of this action, upon which installments relief was granted herein. (Blake v. Cooper, 7 Berg. & Rawle, 500; Carson v. Murray, 3 Paige, 483, 488; Nichols v. Palmer, 5 Day, 47.) As the complaint presented a case of equitable cognizance, and the court thus obtained jurisdiction of the subject-matter and of the parties, it was according to the usual practice to give redress according to the circumstances of the case. (Phillips v. Thompson, 1 Johns. Ch. 131 ; Herrington v. Robertson, 71 N. Y. 280; Mad. Ave. B. Ch. v. Oliver St. B. Ch., 73 N. Y. 83; 24 id. 40 ; 38 id. 137; 43 id. 578.) The lien of the plaintiff became absolute from the commencement of the action, and the plaintiff 'was entitled in this action to all the relief consistent with the case made by the evidence. (Murtha v. Curley, 90 N. Y. 372; Boynton v. Rawson, 1 Clark, 584; Corning v. White, 2 Paige, 568; Weed v. Small, 3 Sandf. Ch. 275.)
   Euger, Oh. u.

The plaintiff recovered five successive judgments in justice’s court against the defendant John Oarpenter, for about $30 each, on October 14, 1879, January 9, 1880, May 7, 1880, July 14, 1880, and November 13, 1880, respectively. The judgments of January ninth and May seventh, were both appealed from, to the County Court, and on April, 26, 1881, were, after a retrial of the actions, affirmed by that court, and judgments of affirmance were regularly entered. Each of these actions was brought to recover an installment of interest alleged to be due to the plaintiff, from John Oarpenter upon a written instrument dated January 11,1873, and executed under the hands, and seals, of the plaintiff and John Carpenter. It recited that theretofore the said John Carpenter had executed a mortgage for $1,700, to M. J. Robinson, to be applied to the support of Sophronia Carpenter, his wife, and in consideration thereof and of $300 in cash then paid to said Robinson, she had agreed to support- herself and live separate and apart from her husband during her natural life, and receive said sum in full discharge of all claims upon John Carpenter or upon his property, either real or personal, and would execute releases of her dower right in his real estate, and would refrain from incurring debts, for which said John should be liable; and that as the said Sophronia preferred that said mortgage should be discharged and said John’s obligation in writing be substituted therefor it was agreed that the same be done, and “ in consideration of the premises said John Carpenter hereby agrees to and with said Sophronia Carpenter that he will pay to her $26.25, January 1, 1873, and $26.71, April 1, 1873, and $27.17 July 1, 1873, and $27.63 October 1,1873, and like sums on each and every first day of January, April, July, and October for and during the term of her natural life,” and pay the said principal sum to her heirs upon her decease. The said Sophronia also renewed the several covenants and agreements, hereinbefore recited, and agreed that in case she should refuse for ten days after request therefor, to execute releases of her dower right, in said Carpenter’s real estate that all her rights to the payment of interest as provided for, should be forfeited. Upon the trial of the several actions referred to the validity of this agreement and the status of Sophronia Carpenter as a creditor of John Carpenter, was litigated between the parties thereto, and was in each of said actions determined in her favor.

The judgments rendered in these actions were, in the absence of proof of fraud in their procurement, conclusive evidence not only as against John Carpenter, but also as to all other persons of the several questions of fact and law material to the issues tried which were thereby determined. (Candee v. Lord, 2 N. Y. 269, 274 ; Hall v. Stryker, 27 id. 596, 603 ; Burgess v. Simonson, 45 id. 225, 227.)

The defendants, acquired title to the real estate in question from John Carpenter, and necessarily took'it at the risk of any incapacity in him to convey a good title, and so far as that was affected by the rights of existing creditors, his fraudulent grantees were equally bound by such legal adjudications, as might be made against him in respect thereto, as John Carpenter himself. (Candee v. Lord, supra ; Rogers v. Rogers, 3 Paige, 379; Shufelt v. Shufelt, 9 id. 137; French v. Shortwell, 6 Johns. Ch. 234; Raymond v. Richmond, 78 N. Y. 351, 354 ; Bigelow on Estoppel, 102 ; Voorhees v. Seymour, 26 Barb. 585.) It did not, therefore, lie open to any of the defendants upon the trial of this action to contest the validity of such agreement, or the liability of John Carpenter as a judgment debtor thereon, or the legal competency of husband and wife to contract with each other, for those questions were res adjudicata and placed beyond the power of retrial.

This present action was founded upon the last four judgments described, and was brought for the purpose of setting aside certain transfers of real property made by the defendant, John Carpenter, to the other defendants, as being fraudulent and void as against his creditors. To entitle the plaintiff to maintain such an action, it was essential that she should establish her character as a judgment creditor of the fraudulent grantor, and the fact that the conveyances challenged as fraudulent were so in-fact, and stood in the way of the collection of her judgment. (Adsit v. Butler, 87 N. Y. 585 ; § 1891, Code of Civ. Pro.; 2 R. S., § 175, pt. 2, chap. 1, tit. 2, § 38.) The production and proof of a judgment in her favor, for a sum of money against the debtor, rendered by a court of competent jurisdiction, was, if not impeached for fraud, conclusive evidence in such an action of her character as such creditor. To establish the issue on her part in this action, the plaintiff put in evidence the respective judgment-rolls in the several actions above referred to, and the several executions issued thereon, each of which were severally duly returned unsatisfied. She also proved the written agreement above referred to and gave evidence tending to show that the several' conveyances assailed were voluntarily made by her husband, with intent to defraud his creditors, and that the several grantees therein had knowledge of such intent and participated therein. The evidence, we think, sustained, the conclusions of fact found by the trial court, which rendered judgment for the plaintiff, and it does not appear to us that any error of law was committed by that court which requires a reversal of such judgment.

The principal questions presented| by the appellants’ counsel upon the argument before us, related to the invalidity of the separation agreement of January, 1873, and the incompetency of husband and wife, to thus contract with each other. Since we have held that the defendants are precluded from raising those questions in this action, the further discussion of them would be unprofitable and unnecessary. It may, however, not be improper for us to say that we should be quite unwilling to yield our assent to the appellant’s contention in respect thereto, even if we considered ourselves at liberty to enter into the consideration of the question.

Some other questions, however, were raised in the case which will be briefly noticed.

The evidence showed that in December, 1881, the plaintiff procured a decree for an absolute divorce from her husband for adultery, and that the judgment in such action made no provision for her support from his property. It is claimed by the defendants that marriage was the gravamen of ,the separation agreement, and that its annulment by the decree, necessarily subverted and destroyed the obligations of the contract. It is quite obvious that this proposition, if generally correct, would not affect the validity of judgments, for lawful debts already obtained, and standing unpaid and unreversed, when such decree was obtained. But we are also of the opinion that there is nothing in the terms or character of the agreement referred to, which authorized John Carpenter to commit adultery, or to violate with impunity the obligations of his marriage contract, .without incurring the penalty, which the law imposes upon an offending party, for such misconduct. There is no express or implied condition in the contract, that the plaintiff should continue to remain the wife of John Carpenter, but the obligation to pay interest was to continue unconditionally during her natural life. The contract looked toward a separation, and not to a union of the parties; and a lawful separation, if produced without the misconduct of the wife, could not affect her pecuniary claims, if secured by legal obligations. The right of the wife to dower in the lands of her husband, or to an allowance by way of alimony out of his estate, could not be impaired by a divorce, granted for.his misconduct ; and the existence of an agreement whereby her future support by him, was secured by a lawful obligation, would afford a good reason why, in equity, her claims upon his property t should not be provided for in the decree in divorce. The absence of such a provision seems to confirm rather than destroy the provisions of the contract, and looks to its expected continuance as a just and proper provision for the wife. (Blake v. Cooper, 7 Serg. & Rawle, 500.)

It is further claimed, that the plaintiff is estopped from questioning the validity of the several conveyances from John Carpenter to the other defendants, because she joined-with him in their execution. It was found by the trial court that these conveyances were executed by John Carpenter, and received by the defendants for the purpose of defrauding the plaintiff, and without knowledge on her part of such fraudulent purpose. The claim made that Carpenter could, under his contract with his wife, require her to execute deeds, releasing her dower in all his lands, under the penalty of forfeiting all of her rights thereunder in case of refusal, and yet require her to execute such conveyances as should forever disable him from performing the obligations to her, which formed the only consideration for her agreement, is too absurd for serious consideration. The proposition is elementary that fraud vitiates all contracts, and a construction of an agreement which would hold an innocent party to his contract, and still authorize the other to defeat his obligation by his own fraud, is unsupported by any rule with which we are familiar. The only ground for such a claim would be that of estoppel, and that is untenable when all of the parties to the act except the plaintiff were cognizant of all of the facts relating to the transaction, and were not deceived or misled by the plaintiff’s action. They were all active participants in the fraud practiced upon the plaintiff, and are not justified in asserting any rights secured thereunder as against the defrauded party.

In our view, the only serious question in the case relates to the additional relief granted by the court below, rendering judgment against Carpenter, in declaring a lien upon the land in question, for the several installments due, but not in judgment when the action was commenced. We are, however, of the opinion that the court, having acquired jurisdiction to decree such conveyances fraudulent and void, as to judgments previously recovered, was authorized to grant such further relief within the scope and meaning of the issues made, as the parties might be equitably entitled to, in connection with the transaction under investigation. Ho question was raised on the trial but that the proper parties were before the court, or that different causes of action were improperly united in the same complaint which required different modes of trial; but the sole question was whether the court had jurisdiction to render the judgment appealed from. The rule relating to the subject is comprehensively stated by the author of the most recent work on Equity Jurisprudence as follows: If ££ the controversy contains any equitable features, or requires any purely equitable relief which would belong to the exclusive jurisdiction, or involves any matter pertaining to the concurrent jurisdiction, by means of which a court of equity would acquire, as it were, a partial cognizance of it, the court may go on to a complete adjudication, and may thus establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority.” (Pomeroy’s Eq. Jur., § 181; Rathbone v. Warren, 10 Johns. 586, 596; Hawley v. Cramer, 4 Cow. 717; Crane v. Bunnell 10 Paige, 333; Bradley v. Bosley, 1 Barb. Ch. 152.) This principle has been applied in many cases, in awarding judgment for pecuniary damages, even when the party had an adequate remedy at law, if the damages were connected with a. transaction over which the courts had jurisdiction fqr any purpose, although for the purpose of collecting damages merely, they would not have had jurisdiction. (Bradley v. Bosley, supra; Clark v. White, 12 Pet. 188; Franklin Ins. Co. v. McCrea, 4 Green [Iowa], 229 ; Brooks v. Stalley, 3 McLean, 523.) The court below had unquestionable jurisdiction to award relief against the conveyances in question, as to judgments recovered, and although not entitled to award such relief as to claims not in judgment, it still had power .to grant any other relief to which the party was legally entitled, although it might result in consequences, similar to those afforded by a decree declaring a lien. The legal effect of the decree setting aside the conveyances, was to vacate and annul the title conveyed by John Carpenter to the several grantees named in his deeds, so far as it stood in the way of the collection of the plaintiff’s judgment, and as against the parties to this action, of any other claim arising out of the same transaction, which should be thereafter lawfully put in judgment. The plaintiff’s complaint alleged that several installments, aside from those in judgment, were then due and unpaid upon the separation agreement, and asked that the same be declared a lien upon the said real estate, and that the property be sold, and such installments be paid from the proceeds of such sale. The fair import of this demand was to entitle the plaintiff, to so much of the relief demanded as was within the power of the court to grant, and if the rendition of a money judgment, for such instalhnents was necessary to confer the relief sought, the court had undoubted authority under the prayer for relief, to order such a judgment. The proof of the separation agreement, and the recovery of previous judgments thereon, constituted conclusive evidence of the rights of the plaintiff, as a creditor of John Carpenter under such agreement, for the amount appearing to be due and unpaid thereon, and authorized the court to render judgment against John Carpenter, for such amounts as were not already in judgment. The rule which precludes a court of equity, from entertaining jurisdiction of an action, to set aside a fraudulent conveyance at the suit of a simple contract creditor would seem to render the judgment appealed from erroneous, so far as it declares such, a debt a lieu upon the property in question; yet the rendition of a pecuniary judgment therefor, in this action is authorized, and would seem so far as the parties to this action were concerned, to place the plaintiff in a position to enforce it hereafter against such real estate, by appropriate proceedings therefor. These views lead to a modification of the judgment by striking out so much thereof as declared it a lien upon the real estate for the installments not previously in judgment, and to an affirmance of its other provisions.

The. judgment, therefore, should he modified in that respect, and as modified, affirmed with costs to the plaintiff.

All concur.

Judgment accordingly.


author: Earl,. J.

text:
    Meyer Geismer, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant.
    In the absence of a special contract there is no absolute duty resting upon a common carrier to deliver goods intrusted to him, within what would he, under ordinary circumstances, a reasonable time; he may excuse delay by accident or misfortune, not inevitable or produced by the act of God, hut the result of the conduct of men; all that can be required of him is that he exercise due care and diligence to guard against delay and to forward the goods to their destination.
    A railroad carrier stands upon the same footing in these respects as other carriers.
    Plaintiff delivered to defendant certain live stock to be transported over its road. In an action to recover damages for inj uries caused by the alleged failure of the defendant to transport the animals within a reasonable time, it appeared that they were carried with reasonable dispatch so far as C., a station on defendant’s road, where the train carrying them stopped for the purpose of making certain usual changes. Defendant was willing and desirous to proceed, and had the necessary rolling stock and employes so to do, and made all reasonable efforts to that end, but was prevented by a portion of its employes who had struck, because of a reduction of wages, and who not only refused to run defendant’s trains or obey the orders of its officers, but by violence and intimidation prevented other employes, who were ready and willing to work, from so doing. In consequence the train was delayed for eleven days whep (he strike ceased, and the stock was immediately sent forward to its destination. The court charged, in substance, that defendant was not relieved from liability, by the fact that the delay was caused by the unlawful acts of its striking employes. Held error; that when the men abandoned defendant’s employment, they ceased to be its servants or agents for whose acts it was responsible ; that conceding the strike was organized while the strikers were in defendant’s employ, it was a matter outside of their employment and imposed no liability on defendant; also, that the delay was not caused by the strike, i. e., the refusal of the men to work, but by the unlawful conduct of the strikers after they had left defendant’s employ.

      Weed v. P. B. B. Go. (17 N. T. 362), Blaekstoek v. N. T. & B. B. B. Go. (1 Bosw. 77; affirmed, 20 N. T. 48), distinguished,

      Geismer v. L. 8. & M. 8. B. R. Go. (34 Hun, 50), reversed.
    (Argued May 31, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made at the October term, 1884, which overruled defendant’s exceptions and directed judgment for plaintiff on a verdict. (Reported below, 84 Hun, 50.)
    This action was brought to recover damages for alleged negligence on the part of defendant in the performance of a contract for transportation of live stock.
    Hpon the trial of this action there was evidence proving or tending to prove these facts: On the 21st day of July, 1877, the plaintiff delivered to the defendant, at Toledo, in the State of Ohio, a large number of cattle and hogs to be transported within a reasonable time over its railroad to Buffalo, in this State, there to be- delivered to him. The usual and ordinary time for the transportation of such freight between the two places named was about twenty-five hours. The plaintiff’s cattle and hogs were started on a train of defendant’s cars for their destination, and were carried with reasonable dispatch and without delay as far as Collingwood, in the State of Ohio, where they arrived on the twenty-second day of July. Collingwood was a place where it was usual and customary for the defendant to stop all its stock trains for the purpose> of changing engines, engineers, firemen and crews employed on such trains, and the train on which plaintiff’s stock was shipped stopped there for the purpose of making such usual changes. When plaintiff’s stock arrived there the defendant was willing and desirous to proceed and continue the carrying of the stock to Buffalo, and had all the necessary cars, locomotives and employes to make up and manage the train; but it was prevented from proceeding immediately and accomplishing in the usual time the carnage of the stock to its destination in consequence of a portion of its employes striking and refusing to run the train or to permit others so to do. A few weeks prior to the arrival of the plaintiff’s stock at Collingwood, the defendant made an order reducing the pay of its employes engaged on its trains and at their stations and shops ten per cent, and by reason of such reduction many of the employes refused to work on defendant’s trains, or to permit others to work who were willing to; and many of the firemen and bralcemen who had been in the defendant’s employ took forcible possession of some of the defendant’s engines and some of the fixtures of the engines, and detached engine hose, let the water out of the engine boilers, uncoupled cars, carried away and hid some coupling pins and links, placed the engines in the round-house, and barricaded the same. The persons who took such forcible possession of the property of the defendant were a great number — over two hundred persons — the greater portion of whom were firemen and brakemen who had been in the employ of the defendant up to the time of the strike, on the twenty-second day of July, and were the controlling element of the force which prevented the moving of the defendant’s trains at Collingwood. Such persons boldly and defiantly refused to obey any of the orders of the defendant’s officers, and refused to permit any of the defendant’s trains to b.e moved, and threatened persons who should attempt to move any of the trains or cars until the demands of the strikers should first be complied with. The officers of the defendant made various attempts to move trains from Collingwood, and placed on the trains employes who were willing to work and operate the same; but they were prevented from moving the trains by threats, and were compelled to desist from all attempts to move them from Collingwood. During all the time, from the day the stock arrived at Collingwood until it was finally reshipped, the officers of the defendant exerted themselves with great" diligence to move the trains and to induce and persuade those who up to that time had been in the employ of the defendant to return to their places on the trains and to permit the defendant to have the use and control of its property, the railroad and its fixtures; but they openly declared and announced that they would do so only upon the condition that the order of the defendant reducing the wages of the employes should be annulled and the wages restored as they were before such reduction; they also demanded the annulling of the rule requiring certain qualifications of engineers, and the removal of the general master mechanic, and that no one should be discharged for having takdn part in the riot; and the strikers would, have disbanded and the late employes of the defendant would have promptly resumed their employment with the defendant, and would have ceased all force and violence to the defendant, its officers an.d employes, and would have allowed and restored to the defendant the full and complete control of all its property and its railroad had their demands been acceded to; but the defendant refused to accede to the demands. There was a sufficient number of other competent workmen willing and ready to take the places of the strikers at such reduced wages who could at any time have been so employed, and who would have moved defendant’s train except for the violent opposition of the strikers. After the strike had continued for a period of eleven days it ceased, and all the late employes of the defendant who were engaged in the strike resumed work on the .defendant’s cars, and the defendant was restored to the possession of all its property and railroad and fixtures so taken possession of by the strikers; but the wages were not restored nor other concessions made by defendant. If it had not been for those who had been in the employ of the defendant up to the time of the commencement of the strike, the defendant could have overcome the resistance and transported plaintiffs stock in due and ordinary time. As soon as the strike ceased the defendant transported the plaintiff’s stock to Buffalo and there delivered it to the plaintiff, who took possession of it. The plaintiff suffered great damage from the delay, to recover which this action was commenced.
    The trial judge, among other tilings, charged the jury, “ that if the strike had its origin in the minds of the defendant’s employees, that it began with them and terminated when they were ready to end it, and that strangers, outside parties, joined them through sympathy or other cause, the defendant is not exempt and the plaintiff may recover damages ; ” “ that whether the delay in bringing forward this train arose because the defendant’s engineers, brakémen and firemen were on a strike, declining to work, and the company had not men to carry on its business, or that they would not do it, or suffer others to do it, even though they were active in their resistance, although they committed violence, if they were the servants or employes of the defendant, nevertheless it is imputable to the defendant in this case “ that if the defendant’s employes were willing to carry on the business, and other men which have been mentioned sought to prevent those who were willing to work from carrying on its business, and continuing their labor, and that it was effective and sufficient to prevent those who were willing from going into the employ of the company, and that this combination was strong and powerful, strong in its moral position, strong in its physical power to overmaster and control the situation and prevent the company from bringing out its engines and starting out the train, and so extended from Cleveland to Buffalo, embracing Erie, it is no excuse for the delay, because if the strikers were the defendant’s employes, they represented the defendant; they were its servants and agents, and their acts were the acts of the corporation.” To all these portions of the charge defendant’s counsel excepted; and he requested the judge to charge “ that if the jury believe from the evidence that the cattle were delivered in Buffalo at as early a day as was possible under all the circumstances in the case, they will find for the defendant; ” “that if the jury believe, from the evidence, that on and after the 21st day of July, 1877, the railroad tracks, depots and rolling stock of the defendant were taken forcible possession of by a body or bodies of armed men, among whom were some of its employes, and that they continued to hold possession thereof, by force of arms, for several days, by reason of which the delivery of the plaintiff's stock at Buffalo was delayed until August 4, 1877, the plaintiff cannot recover; ” “that if the jury believe from the evidence that under the circumstances the defendant could not have moved the plaintiff’s stock from Oollingwood to Buffalo previous to the time it did without endangering life and property, then that the defendant was justb fled in delaying the delivery of the stock until it was actually delivered; ” “ that’ if the cause of the detention of the plaintiff’s stock arose from forcible resistance of the late employes of the defendant, the defendant having at all times a sufficient force of faithful employes to have operated and run the defendant’s road had it not been for such forcible resistance, then the plaintiff cannot recover; ” “that if any of the employes of the defendant joined the strikers, they ceased from that time to be employes of the company, and the defendant is not in any way responsible for their acts.” The judge declined to charge each of these requests, and the defendant’s counsel duly excepted. The jury rendered a verdict for the plaintiff.

      Daniel H. McMillan for appellant.
    As the delay in this case was not occasioned by the defendant not having in its employ a sufficient number of persons who were faithful and willing to perform their duty, but solely by reason of the “ unlawful resistance,” and the “force and violence of a lawless assembly of persons,” it was not liable. (P., Ft. W. & C. R. R. Co. v. Hagen, 84 Ill. 36; 25 Am. Rep. 422 ; P., C. & St. L. R. Co. v. Hollowell, 65 Ind. 188; 32 Am. Rep. 63 ; Bennett v. L. S. & M. S. R. Co., 6 Am. & Eng. Ry. Cas. 391.) A common carrier stands on the same ground as other bailees, and may excuse delay in the delivery of goods by accident or misfortune, although not inevitable or produced by the act of God. (Hutchinson on Garners, § 330 ; I. & St. L. R. R. Co. v.
      Jury, 8 Bradshaw, 160.) All that can be required of him in such an emergency is that he shall exercise due care and diligence to guard against delay, and, if it occur without his fault or neglect, he shall omit no reasonable effort to secure the safety of the goods. (Parsons v. Hardy, 14 Wend. 216 ; Wibert v. R. R. Co., 12 N. Y. 245 ; Thayer v. Burchard, 99 Mass. 521; M. C. R. R. Co. v. Burroughs, 33 Mich. 6; Story on Bail., § 545; M. C. R. R. Co. v. Curtis, 80 Ill. 224.) The master is not responsible for the unlawful act of his servant, committed outside the scope of his duty. (People v. N. Y. C. & H. R. R. R. Co., 9 Am. & Eng. R. Cas. 1.)

      AdeTbert Moot for respondent.
    A common carrier is not liable for losses caused by the act of G-od, by the public enemy, by the inherent defect, quality or vice of the thing carried, by the seizure of goods or chattels in his hands, under legal process, by some act or omission of the owner of the goods. With these exceptions the liability of the carrier is unconditioned. (Parsons v. Monteath, 13 Barb. 353 ; Merritt v. Earle, 31 id. 38 ; S. C., 29 N. Y. 115 ; Hall v. Renfro, 3 Metc. [Ky.] 51; 1 Abb. Law Dict. 456 ; 2 Bouv. Law Dict. 392; 5 Causes Celebres, 495-550; Lawson’s Cont. of Carriers, § 3, p. 5 ; § 10, p. 7; id., § 13, p. 14; id., § 16, p. 17; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Edw. on Bail. [2d ed.] 395, §§ 542, 547; Weed v. Panama R. Co., 17 N. Y. 362; Mott v. Consumers’ Ice Co.,73 id. 543; Blackstock v. N.Y. & E. Co., 1 Bosw. 77; affirmed, 20 id. 48; Story on Agency, § 309; Benny v. Manhattan Co., 2 Denio, 15; 5 id. 639.) Abandoning their work was a breach of contract on the part of the engineers; they by that act became responsible to the defendant for all its direct consequence, and the master or employer is answerable. (Story on Agency, § 452; 2 Kent’s Com. 259; Harlow r. Humiston, 9 Conn. 189; Ellis v. Turner, 8 Term R. 531.) The property intrusted to the defendant to carry having been lost from a failure on its part to perform the duty with which it was charged, and the answer that the failure was caused by the misconduct of its servants cannot avail as a defense. (12 Hun, 102; 17 id. 575; 57 How. Pr. 113; 49 N. Y. 444; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543; Condit V. Grand T. R. Co., 54 N. Y. 500 ; Phila. & R. R. Co. v. Derby, 14 How. 468.)
   Earl,. J.

We are of opinion that the learned trial judge fell into terror as to rules of law of vital and controlling importance in the disposition of this case.

A railroad carrier stands upon the same footing as other carriers, and may excuse delay in the delivery of goods by accident or misfortune not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay and to forward the goods to their destination; and so it has been uniformly decided. (Wibert v. N. Y. & Erie Railroad Co., 12 N. Y. 245; Blackstock v. N. Y. & Erie Railroad Co., 20 id. 48.)

In the absence of special contract there is no absolute duty resting upon a railroad carrier to deliver the goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Hot only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the tracks or disable the rolling stock or interpose irresistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus interposed, and to forward the goods to their destination.

While the court below conceded this to be the general rule, it did not give the defendant the benefit of it because it held that the men engaged in the violent and riotous resistance to the defendant were its employes for whose conduct it was responsible, and in that holding was the fundamental error committed by it. It is true that these men had been in the employment of the defendant. But they left and abandoned that employment. They ceased to be in its service or in any sense its agents, for whose conduct it was responsible. They not only refused to obey its orders or to render it any service, but they willfully arrayed themselves in positive hostility ■ against it, and intimidated and defeated the efforts of employes who were willing to serve it. They became a mob of vicious lawbreakers to be dealt with by the government, whose duty it was, by the use of adequate force, to restore order, enforce proper respect for private property and private rights and obedience to law. If they had burned down bridges, torn up tracks, or gone into passenger cars and assaulted passengers, upon what principle could it be held that as to such acts they were the employes of the defendant for whom it was responsible ? If they had sued the defendant for wages for the eleven days when they were thus engaged in blocking its business, no one will claim that they could have recovered.

It matters not, if it be true, that the strike was conceived and organized while the strikers were in the employment of the defendant. In doing that they were not in its service or seeking to promote its interests or to discharge any duty they owed it; but they were engaged in a matter entirely outside of their employment and seeking their own ends and not the interests of the defendant. The mischief did not come from the strike —from the refusal of the employes to work, but from their violent and unlawful conduct after they had abandoned the service of the defendant.

Here upon the facts, which we must assume to be true, there was no default on the part of the defendant. It had employes who were ready and willing -to manage its train and carry forward the stock, and thus perform its contract and discharge its duty; but they were prevented by mob violence winch the defendant could not by reasonable efforts overcome. That under such circumstances the delay was excused has been held in several cases quite analogous to this which are entitled to much respect as authorities." (Pittsburg & C. R. R. Co. v. Hogen, 84 Ill. 36; Pittsburgh,, C. W. L. R. Co. v. Hallowell, 65 Ind. 188; Bennett v. L. S. & M. S. R. R. Co., 6 Am. & Eng. E. Cas. 391; I. & W. L. R. R. Co. v. Juntzen, 10 Bardwell, 295.)

The cases of Weed v. Panama R. R. Co. (17 N. Y. 362), and Blackstock v. N. Y. & Erie R. R. Co. (1 Bosw. 77; affirmed, 20 N. Y. 48), do not sustain the plaintiff’s contention here. If in this case the employes of -the defendant had simply refused to discharge their duties, or to work, or had suddenly abandoned its service, offering no violence, and causing no forcible obstruction to its business, those authorities could have been cited for the maintenance of an action upon principles stated in the opinions in those cases.

We are, therefore, of opinion that this judgment should he reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.