author: Per Curiam':

text:
    The Bank of Hamilton, Respondent, v. Edwin D. Klock, Appellant.

      Instrument under seal — when the breach of an oml condition as to the malcefs liability thereunder is a defense.

    In an action brought to recover the amount due on two promissory notes, the payment of which has been guaranteed to the plaintiff by the defendant, by two instruments undersea], it is error to refuse to allow the defendant to show that sucli guarantees were given upon the express understanding that such notes were not to be used as collateral security, and that in direct opposition to such agreement such notes were so used.
    Appeal by the defendant, Edwin I). Klock, from a judgment of' the Supreme Oourt in favor of the plaintiff, entered in the office of the cl^rk of tlie county of Oneida on the 24th day of May, 1893, upon a verdict rendered by direction of the court af the Oneida Circuit, with notice of an intention to bring up for review on such appeal the judgment roll and all interlocutory orders, and the order made on the 18th day of May, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Bisley <& Mobmson, for the appellant.

      Arthv/r M. Becwdsley, for the respondent.
   Per Curiam':

This was an appeal from a judgment entered in Oneida county May 24, 1893, upon a verdict • directed by the court. The action was to recover on two bonds executed by the defendant, the first of. which, was as follows: “ Know all men by these presents, that I, E. I). Klock, of the city of Utica, in the State of New York, for divers good causes and considerations me thereunto moving, have covenanted, promised and agreed, and by these presents do covenant, promise and agree, to and with the Bank of Hamilton, its successors and assigns, that George F. Hawkins will, upon the maturity thereof, pay a certain promissory note for two thousand dollars, bearing date on the first day of April, 1891, made by said George F. Hawkins, payable seven months after the date thereof, with interest at the rate of seven per cent per annum, to the order of the said George F. Hawkins, and indorsed by him; and I do guarantee to the said bank the payment of the said note. Witness my hand and seal this first day of April, 1891.

“[Seal.] “E. D. KLOCK.”

The second bond was in the same form, and given to guarantee the payment of a note of $1,000, bearing date June 15, 1891, payable five months after the date thereof.

The answer of the defendant admitted the incorporation of the plaintiff; that it carried on business at Hamilton in the Province of Ontario; that the defendant resided at the place alleged in the complaint, and admitted the execution of the bonds. It was then alleged, among other things, that the bonds were signed, executed and delivered upon the representation of Hawkins that the notes referred to therein were to be discounted in due course of business by the plaintiff, and the proceeds thereof placed to the credit of Hawkins, to be used and employed by him in the conduct of his business at Orangeville, Ontario, in the purchase, packing and selling of eggs; that said notes and obligations were to be delivered to the Hamilton bank for the purpose of procuring said bank to discount said papers and pass the proceeds of such discount to the credit of the said Hawkins, to enable him to continue and carry on his business at Orangeville; that said notes and obligations were not to be used or employed in any way as collateral security to the plaintiff for any obligation that the bank, then or thereafter, might hold against the said Hawkins, otherwise than by discounting said notes and placing the proceeds of said discount to the credit of said Iiawkins, to be used by bim in the due course of business ; that the plaintiff was made acquainted with the conditions upon which said obligations were executed and delivered; that in violation thereof and of the agreement upon which the same were delivered, it took said notes and did not discount the same or place the proceeds of said notes when discounted to the credit of said Hawkins, to be used in his business, but, on the contrary, it held said notes and obligations as collateral security to other indebtedness which said Hawkins was owing said bank, and did not present said notes for payment in the due course of business, but held the same long after they were past due; holding them as collateral security, when the account of said Hawkins with the bank was sufficient in amount to have paid said notes; that the same were not protested for nonpayment, but were held by the bank in violation of the terms on which said notes were delivered to the plaintiff, and contrary to the terms upon which said agreement was delivered and in violation of the agreement upon which they were so executed and delivered to said bank; and that the notes referred to in said bonds were diverted, misappropriated and misapplied, in violation of the rights, understanding and agreement with the defendant and said Hawddns.

On the trial the following proceedings and rulings were had and made: “ By the Court. — We will assume that the letter was destroyed. By defendant’s counsel. — And that it was shown to the cashier of the plaintiff by Hawkins after its receipt; that the guaranty was forwarded in return after conference with and with the knowledge of the plaintiff’s cashier, with a letter to Mr. Kloelc, inclosing the guaranty. The Court.— Assuming those facts, go on. The defendant’s counsel offered to show contents of this letter, and made the following statement: I desire to show that the letter stated this in substance; I do not give it in detail; that it stated that he would sign the guaranty of the payment of two notes, one of two thousand dollars and another of one thousand dollars; the notes substantially as described in this paper; but that lie would not guarantee the paper to be used as collateral or other than in the usual course of business, and that the guaranty should only be valid as to the paper indicated and attached, if discounted by the plaintiff ; I shall follow it by showing that the letter was shown by Mr. Hawkins, who received it, to the then cashier of this plaintiff; that Mr. Hawkins and the then cashier, for the purpose of procuring the execution of Exhibit ‘ A,’ wrote him, inclosing Exhibit ‘ A,’ and saying to him that the note should only be used for that purpose, when it was intended by them to be used as collateral only, and that in reliance upon it he executed Exhibit A ’ and returned it, and that the note of which Exhibit A ’ is a guaranty was only used as collateral. Not only showing it by other witnesses, but by a chain of circumstances by other witnesses. Also showing the same facts as to the one thousand dollar note by correspondence with reference to it, and by conversations. Mr. Beardsley.— I object to it, first, as intending by parol to vary a sealed instrument; second, that Mr. Hahn is now dead. The evidence was excluded. The Court.— The evidence is excluded upon the ground that the liability of the defendant in this case is fixed by Exhibits ‘ A5 and B,’ which are under seal; that they cannot be varied by a parol agreement ; that so far as the inducements or false representations having-been made, which was the inducement that led to the execution of the instrument by the defendant, it cannot be shown, because fraud is not pleaded in the answer. The evidence will be excluded. Defendant’s counsel. — -I desire to follow it up by showing that Mr. Klock believed the correspondence to be correct and relied upon it, and that the plaintiff and Hawkins both intended to deceive him in procuring it. The evidence was objected to. Objection sustained, and the defendant duly excepted. The defendant then asked leave to amend his answer, so as to admit this proof. The motion was denied and the defendant duly excepted. By defendant’s counsel.— Mr. Hawkins is here, and I desire to prove.the same facts by him as I stated. By the Court.— I think your offer is broad enough as now stated to cover that. At least the court has assumed that you would either prove by this witness or some other witness, to be called by you, Mr. Hawkins and other witnesses, the facts which you have stated. So you may have the exception squarely.” Thus i't is seen that the court refused to permit the defendant to show that the bonds in suit were made, signed and delivered for a specific purpose ; that it was expressly agreed by and between the maker, the defendant and the plaintiff’s cashier, that the notes which the bonds were given to secure were not to be used as collateral security; that the bonds were given upon the express understanding that they were not to be thus used, and that in direct opposition to such agreement they were so used by the plaintiff, and not ,for the purpose intended and agreed upon.

In Benjamin v. Rogers (126 N. Y. 60) it was held that a transferee of negotiable pajier who takes it knowing that it was executed by an accommodation maker, and was transferred in violation of conditions or limitations imposed by such maker, cannot maintain an action thereon against him, and that such a maker has a right to determine for himself what use shall be made of it, and may impose seemingly immaterial conditions limiting its use, and no one can get title as against him who takes it with full knowledge, in violation of such conditions. In that case the action was upon a joint and several promissory noté. It appeared that it was feigned by the plaintiff’s testator as surety, solely'for the accommodation of one of the other makers, and to enable him to borrow the amount thereof of Mrs. Petit, the payee; the latter having refused to make the loan, Calk-ins, for whose accommodation the note was made, applied to the plaintiff, who took the note -with full knowledge of ¿11 the circumstances, paying part in cash and applying the balance in paying a pre-existing indebtedness of Calkins to him. And it was held that as to the plaintiff’s testator the note had no inception, and the plaintiff was not entitled to recover.

The same doctrine was held in U. S. N. Bank v. Ewing (131 N. Y. 506). In that case an action was brought against the defendant as indorser of a promissory note, which was indorsed by defendant for the accommodation of the maker, and was transferred by the maker to the plaintiff, a bank of this State, as security upon a precedent debt. The defendant’s testimony was to the effect that in answei* to his objection, that he did not wish to be sued in this State, he was assured that the note would be negotiated hi Kentucky, and that lie indorsed upon that assurance. The court overruled a request that this testimony should be submitted to the jury and directed a verdict for the plaintiff. Held, error; that as the plaintiff was not a boruo fide holder for value, the note in his hands was open to the defense that, made for one purpose, it had been used for another, and that its diversion had discharged the indorser.

The evidence offered by the defendant in this case was excluded on the ground that the defendant’s liability was fixed by the bonds in suit and that the evidence offered tended to vary or contradict them, and was, therefore, inadmissible. In Juilliard v. Chaffee (92 N. Y. 529, 534) it is said : “ Certainly the general rule which excludes evidence of parol negotiations and undertakings, when offered to contradict or substantially vary the legal import of a written agreement, is not to be questioned or disturbed. In this State it has been thought to be so well settled in reason, policy and authority, as not to be a proper subject of discussion. It has full application, however, within very narrow limits. In the first place, it applies only in controversies between parties to the instrument (New Berlin v. Norwich, 10 Johns. 229), and between them is subject to exceptions, upon allegations of fraud, mistake, surprise or part performance of the verbal agreement. Nor does it deny the party in whose favor that agreement was made the right of proving its existence by way of defense in an action upon the written instrument, under circumstances which would make the use of it for any purpose inconsistent with that agreement, dishonest or fraudulent. (Martin v. Pycroft, 2 D., M. & G. 785, 795; Jarvis v. Berridge, L. R. [8 Ch. App.] 351.) A party sued by his promisee is always permitted to show a want or failure of consideration for the promise relied upon, and so he may prove by parol that the instrument itself was delivered even to the payee to take effect only upon the happening of some future event (Seymour v. Cowing, 1 Keyes, 532; Benton v. Martin, 52 N. Y. 570; Eastman v. Shaw, 65 id. 522), or that its design and object were different from what its language, ik alone considered, would indicate. (Denton v. Peters, L. R. [5 Q. B.] 474 ; Blossom v. Griffin, 3 Kern. 569 ; Hutchins v. Hebbard, 34 N. Y. 24; Seymour v. Cowing, supra; Barker v. Bradley, 42 N. Y. 316; Grierson v. Mason, 60 id. 394.) He may also show th^t the instrument relied upon was executed in part performance only of an entire oral agreement (Chapin v. Dobson, 78 N. Y, 74.) or that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto (Crosman v. Fuller, 17 Pick. 171), or he may set up any agreement in regard to the note which makes its enforcement inequitable.”

The doctrine of the authorities cited is applicable to the question under consideration, and shows quite conclusively that the court erred in excluding the evidence offered. "We are of the opinion that tbe evidence offered should have been received, and that its rejection was an error for which this judgment should be reversed.

Present — Hardin, P. J., Martin and Merwin, JJ.

Judgment and order reversed and a new. trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    George W. Beagle, Respondent, v. Robert Harby and Joseph Harby, Appellants.

      Evidence — entire verbal contract, partly reduced to writing — a deed made in part performance of a verbal contract to share the profits of a real estate transaction.

    The rule that all previous negotiations or conferences between the parties are merged in a subsequent written instrument is open to qualification, as, e. g., a contract which is not required by statute to he in writing may he partly expressed in writing and partly by an unwritten agreement between the parties, and if so, such agreement may be proved by parol, and when a verbal contract is entire, and a part only, in part performance, is reduced to writing, parol proof of the entire contract is competent.
    The general rule which excludes parol evidence when offered to contradict or vary the terms, provisions or legal effect of a written instrument, has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement.
    An action was brought to recover damages for the breach of a contract, which, as alleged and found by the jury, was that the plaintiff would transfer to the defendants his farm for §2,800 ; that the defendants would sell the farm to a third party for the highest juice obtainable, and divide equally with the plaintiff any sum they should receive in excess of the price paid by them. The plaintiff accordingly deeded the farm to the defendants, who sold and conveyed it to the third party for §2,800, which was paid by transferring to the defendants another farm at the agreed price of $1,700 and delivering to them a bond and mortgage for §1,100. The defendants paid the plaintiff the consideration named in his deed to them, hut refused to j>ay him any portion of the amount they were to receive in excess thereof on the sale made by them to the third party.
    The jfiaintiff was permitted to establish the contract by parol evidence under the objection of the defendants, who claimed that jjarol evidence of the contract between the parties was inadmissible, because all their ju'eceding negotiations were merged in the deed, and that the parol evidence tended to contradict or vary its terms.
    Meld, that the deed from the jffaintiff to the defendants was not a complete contract embracing all the particulars of the agreement or designed to express the whole agreement between the parties, and that the parol evidence of the entire contract given was consistent with and not contradictory of the deed, and was, therefore, properly admitted.
    It appeared that the farm received by the defendants from the third party had not yet been sold by them, but the plaintiff’s proof was that he offered to take it at the price allowed for it by the defendants, provided they would allow him one-half of the sum that they would thus receive above the §2,200, paid for the plaintiff’s farm, and that the defendants not only refused to allow or pay him that sum, but denied the existence of any such contract or any liability to pay the plaintiff any portion of the profits of the transaction.

      Held, that under these circumstances the action was not prematurely brought.
    Appeal by tbe defendants, Robert Harby and Joseph Harby, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of Delaware county on tbe 30th day of September, 1892, on tbe verdict of a jury rendered at the Delaware Circuit, and also from an order made at Special Term, and entered in said clerk’s office on tbe 10th day of April, 1893, denying tbe defendants’ motion for a new trial on a case and exceptions.

      M. H. Hanford, for tbe appellants.

      Alexander Heish, for tbe respondent.
   Martin, J.:

Tbe facts in this case, so far as they relate to tbe questions presented on this appeal, can be briefly stated. The action was to recover damages for tbe breach of a contract. Tbe contract as alleged and found by tbe jury was that tbe plaintiff would transfer to the defendants bis farm for tbe sum of $2,200; that tbe defendants would sell it to one Obnstead, if possible, and get tbe highest price they could obtain, and divide equally with the plaintiff any sum they should receive for it in excess of tbe price paid.

In pursuance of this agreement tbe plaintiff deeded bis farm to tbe defendants who, on tbe same day, sold and conveyed it to Olmstead. The consideration for tbe last transfer was $2,800, which was paid by transferring to tbe defendants another farm at tbe agreed price of $1,100, and delivering to them a bond and mortgage for $1,100. Tbe defendants paid tbe plaintiff tbe consideration named in tbe deed to them and for certain personal property purchased by them of the plaintiff, but did not pay him any portion of the amount they were to receive for the farm in excess of the price paid. This action was to recover one-half of the profits arising from such purchase and sale. If the contract between the parties, was valid the proof was sufficient to sustain the verdict.

The farm received from Olmstead in exchange for the one sold by the plaintiff has not been sold by the defendants, yet the plaintiff’s proof was that he offered to take the place at the price allowed for it by the, defendants, provided they would allow him one-half of the sum that the defendants would thus receive above the $2,200, paid for the plaintiff’s farm as they agreed, and that the defendants not only refused to allow or pay him that sum, but denied the existence of any such contract, or any liability on their part to pay the plaintiff any portion of the profits of the transaction. Under these circumstances we are of the opinion that the plaintiff was entitled to maintain this action, provided the contract between the parties can be enforced, and that the defendants’ motion to dismiss the action because it was prematurely brought, was properly denied.

The most important and the only other question raised on this appeal relates to the admissibility of the plaintiff’s evidence to establish the contract between the parties. The appellants claim that parol evidence of the contract made between the parties was inadmissible because all their preceding negotiations were merged in the deed, and that it tended to contradict or vary its terms. If the deed between the parties embraced all the agreements and understandings made or had between them, the former negotiations would be merged in it. But the rule that all previous negotiations or conferences between the parties are merged in a subsequent written instrument is open to this qualification. A contract, which is not required by statute to be in writing, may be partly expressed in writing and partly by an unwritten understanding between the parties, and if so, such understanding may be proved by parol. "Where a verbal contract is entire, and a part only, in part performance, is reduced to writing, parol proof of the entire contract is competent. (Hutchins v. Hebbard, 34 N. Y. 24; Hope v. Balen, 58 id. 380; Brigg v. Hilton, 99 id. 517.) The plaintiff’s proof in this case showed that the whole contract between the plaintiff and defendants was not reduced to writing, and that the deed was executed and delivered in part performance only of the entire contract between them. We think this case falls within a qualification of the general rule, and that the court properly admitted the evidence unless the defendants’ claim that it tended to contradict or vary the deed should be sustained.

The general rule which excludes parol evidence when offered to contradict or vary the terms, provisions or legal effect of a written instrument is well settled. There are various cases, however, where this rule does not apply. It has no application to collateral undertakings (Lindley v. Lacey, 17 C. B. [N. S.] 578 ; Jeffery v. Walton, 1 Stark. 267; Batterman v. Pierce, 3 Hill, 171; Erskine v. Adeane, L. R. [8 Ch. App.] 755 ; Engelhorn v. Reitlinger, 122 N. Y. 80), or where the written instrument was executed in part performance only of an entire oral agreement. (Chapin v. Dobson, 78 N. Y. 74; Van Brunt v. Day, 81 id. 251; Juilliard v. Chaffee, 92 id. 529; Brigg v. Hilton, 99 id. 526; Ferguson v. Baker, 116 id. 257; Routledge v. Worthington Co., 119 id. 593; Pond v. Harwood, 139 id. 126.)

If the plaintiff’s theory in this case was correct, and the jury has so found, the deed from the plaintiff was not a complete contract embracing all the particulars of the agreement, or designed to express the whole arrangement between the parties, and the parol evidence given was consistent with and not contradictory of the deed. This case does not, therefore, come within the principle of Thomas v. Scutt (127 N. Y. 133, 138) and kindred cases.

We are of the opinion that the court properly admitted parol evidence of the agreement between the parties, and as no other errors are claimed by the appellants, the judgment should be affirmed.

• Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


author: Martin, J::

text:
    Adelaide Knight, Respondent, v. Alonzo Church, Appellant.

      Judgment — satisfaction by an execution sale — evidence as to the value of the property, immaterial.

    On the question of the satisfaction of a judgment by execution, raised as a defense to an action on the judgment, evidence of the value of property of the judgment debtor upon the premises where the execution sale took place, but not levied upon under the execution, or levied upon and not sold, and of which the judgment debtor had not been deprived by the act of the judgment creditor, is immaterial.
    When an execution sale has been fairly conducted, the amount for which the property sold, and not its value, is the only sum that can be applied on the judgment and with which the judgment creditor is chargeable in satisfaction of the judgment.
    Appeal by the defendant, Alonzo Churcb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Jefferson county on the 17th day of June, 1892, upon the report of a referee.

      O. W. Thompson, for the appellant.

      Waylcmd F. Ford, for the respondent.
   Martin, J::

This action was upon a judgment entered in Jefferson county, in favor of the National Union Bank of Watertown, against the defendant and Martin V. Knight, for $265.16.

The defense was payment. The issues in the action were referred to a referee to hear and determine. The referee found that such judgment was duly recovered; that it was assigned by the bank to the plaintiff May 9, 1887; that as between him and Martin Y. Knight, the defendant was liable for the amount due thereon ; that there had only been paid thereon the costs of the action, twenty-three dollars and forty-two cents, twenty-five dollars March 20,1878, and fourteen dollars May 10, 1878; that on October 4, 1887, the defendant, with full knowledge of the assignment and the amounts paid on such judgment, settled and paid his then existing indebtedness to the Union bank; that the payments to the bank or its attorney to apply on the obligation held by it against the defendant did not equal the amount of such obligations and interest, and that the defendant acquiesced in and ratified the applications of the money paid on his obligations to the bank at and before the. time of such settlement.

As a conclusion of law the referee held that, the plaintiff was entitled to recover of the defendant $241.74, with interest from October 23, 1877, which amounted to $393.69, after deducting twenty-five dollars paid March 23, 1878, and fourteen dollars paid May 10, 1878, and directed judgment accordingly.

The only issue between the parties in this case arose upon the allegation in the answer that the judgment.upon which the action was brought had been paid. The burden of proof was upon the defendant to establish this defense. A careful study of the evidence contained in the appeal book renders it quite manifest that the defendant did not establish his defense with sufficient clearness to require the referee to find in his favor upon that issue. Indeed, we think the evidence was quite sufficient to justify the referee in finding affirmatively that no portion of the judgment had been paid except as found by him in his report. Hence, we see no reason to disturb the judgment appealed from unless the referee has committed some error in the reception or rejection of evidence which requires a reversal.

On the trial the defendant testified to the value of certain property which he had upon his farm at the time of the sale upon executions issued upon the judgment upon which this action was brought, and other judgments against the defendant. The plaintiff moved to strike out the evidence as to the value of the property on the ground that the same was sold on execution against the.defendant, and that an execution creditor was only chargeable with the amount for which the1 property sold on the execution, and, also, on the ground that the evidence was improper and inadmissible. This motion was granted, and the evidence was stricken out. To this the defendant excepted. He then offered to prove the value of the hay sold, the mowing machine, hay, oats, wheat and straw. This the referee declined to permit, but stated that he would allow the defendant to prove the amount of the property sold, to whom sold ' and the amount for which the same was sold. To that ruling the defendant excepted.

An examination of tbe appeal book shows that the witness had testified that he had, at the time of the sale on the place occupied by Burgen, certain articles of property mentioned, giving the value of each, without showing that it was the property levied upon by the sheriff. There was no evidence in the case to show that any portion of the property levied upon was removed from the defendant’s premises, except that which was sold by the sheriff, or that the sale was not in all respects fair and properly conducted by the officer who made it. Under such circumstances, it is difficult to perceive how the judgment upon which this action was brought could have been regarded as satisfied except to the extent of the sum received upon such sale and applied upon the execution issued thereon, especially as there was evidence which tended to show that the defendant .gave directions as to the manner in which the money realized on such sale should be applied. If the property mentioned by the defendant was not levied upon, or levied upon and not sold, nor he deprived of it by the act of the plaintiff’s assignor, it would in no way operate as a satisfaction of the judgment; (Peck v. Tiffany, 2 N. Y. 451, 456.) Hence, evidence of its value was immaterial and improper. As to the value of that sold on execution, if the sale was fairly conducted, the amount for which it was sold was the only sum that .could be applied upon the judgment. Moreover, this evidence was given after the defendant had rested, and the referee may well have excluded the evidence upon the ground that the defendant should have given it, if admissible, before resting his case, and that it was not admissible in rebuttal. We find no error in this ruling which would justify us in disturbing the judgment.

Nor do we find any reason to disturb the judgment because of the referee’s refusal to find the defendant’s ninth, fourteenth and sixteenth requests.

We think the decision and judgment were sustained by the evidence, and that there were no errors in the rulings, to which our attention has been called, which would justify a reversal of the judgment.

The judgment must be affirmed, with costs.

Hardin, B. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Mbrwin, J.:

text:
    The Village of Watkins, Respondent, v. Henry M. Hillerman, Appellant.

      Village trustees — discretionas'y powers — cannot he delegated — designation of the time when an ordinance shall take effect — when ineffectual.

    Where it is the duty of the board of trustees of a village to fix a time, not less than two weeks, during which an ordinance shall be published, an exercise of its discretion is involved which cannot properly be delegated to its clerk.
    The charter of a village provided that certain ordinances should take effect at such time, after the passage and publication thereof, as should be therein provided, and should be published at least two weeks successively in all the public newspapers printed and published in such village. An ordinance of the kind referred to was passed, which contained a provision that the same should take effect immediately after the legal publication thereof.

      Held, that the provision in the ordinance as to the time it should take effect did not comply with the requirements of the statute.
    Appeal by the defendant, Henry M. Hillerman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 24th day of January, 1893, upon a decision of the court after a trial at the Schuyler County Circuit.

      O. P. Hurd, for the appellant.

      G. M. Woodioard and W. T. Bishop, for the respondent.
   Mbrwin, J.:

On the 24th of February, 1891, the board of trustees of the plaintiff, under power given by the charter of the village (Chap. 125 of the Laws of 1861, as amended by chap. 114 of the Laws of 1869), passed an ordinance in regard to fire limits. After specifying such limits, and the manner in which buildings might be constructed therein, it provided as follows:

“ Any violation of this ordinance, or of any of its requirements, shall subject the party or parties offending or violating the same to a penalty of $25.00 for each and every violation thereof, and the further penalty of $10.00 for-every 24 hours such violation shall be continued.
“ The foregoing ordinance shall take effect immediately after the legal publication thereof.”

In the complaint it is alleged that on or about the 1st day of June, 1891, the defendant constructed a wooden building in violation of such ordinance, and has since maintained the same to the time of the commencement of this action, on or about December 21,1891. The recovery is for one penalty of twenty-five dollars, and three penalties of ten dollars each.

On the trial the defendant, among other things, claimed, and claims here, that the ordinance was inoperative and void, because (1) the board of trustees did not direct the publication of the ordinance for any particular time, or at all. (2) The board of trustees did not fix or prescribe any particular time after the adoption of the ordinance and the publication of the same for the ordinance to take effect as required by the act incorporating the village.

In the charter (§ 8 of title 4) it was provided that every ordinance imposing any penalty or forfeiture for the violation of its provisions “ shall take effect at such time after the passage and publication thereof as shall be therein provided, and shall be published at least two weeks successively in all the public newspapers printed and published in said village.”

There was in the ordinance no provision as to the time when it should take effect, except the last clause of the ordinance as above quoted. There was no direction by the board of trustees as to the length of time the ordinance should be published, or as to when it should be published, and the board did not determine what should be a legal publication of the ordinance. It. appears that there were three weekly newspapers in the village, and that the clerk of the board, within a day or two after the 24th of February, 1891, gave a copy of the ordinance to each of the newspapers and directed each of them to publish it three weeks. In one of the newspapers it was published for six successive weeks, commencing on the 26th of February and ending on the 2d of April, 1891. In another it was published for five successive weeks, commencing on the 26th of February, 1891, and ending on the 26th of March, 1891. In the other it was published for three successive weeks, commencing on the 14th of March, 1891, and ending on March 28, 1891.

We are of the opinion that the provision in the ordinance as to the time it should take effect did not comply with the requirement of the statute. No definite time was fixed.

It was also tlie duty of the board to fix the time, not less than two weeks, during which the ordinance should be published. This involved the exercise of the discretion of the board as to what would be reasonably necessary and appropriate under the circumstances of the case, and this discretion could not properly be delegated to the clerk.

For these reasons we are of the opinion that the ordinance never became operative, and, therefore, did not furnish a basis for the present action. It follows that the judgment must be reversed.

Hardin, P. J., and Martin, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.


author: Merwin, J.:

text:
    Catherine D. Sullivan, Respondent, v. The Industrial Benefit Association of Syracuse, N. Y., Appellant.

      Life insurance — benefit association — certificate of membership — equitable relief on a complaint demanding judgment for money only — signature to the application for insurance — acceptance of the application — non-payment of premium.

    In an action brought by the beneficiary named therein, upon a policy or certificate of membership in a benefit association, which provided that the beneficiary should receive two shares of the mortuary fund collected for the “pool” in which the proof of death of the member should be approved by the association, the maximum value of each share being $250, the complaint alleged that the moneys collected in the pool out of which the plaintiff should be paid were sufficient to pay the maximum amount of the shares, being altogether $500, no part of which had been paid, and demanded judgment for that sum.
    An-answer having been interposed, the case was tried at Circuit, before the court and jury, and at the close of the evidence, in view of a provision of the by-laws of the defendant association to which the certificate in suit was subject, that in case of contest of a claim and judgment in favor of the claimant the claim should be placed in and paid pro rata with the claims in the pool then forming, the court stated that it would allow the action to stand as an equity action and take the advice of the jury on a question of fact as to whether the application for the certificate had been rejected, the defendant’s counsel stating that there was no other question on which he desired to go to the jury.
    The jury found that the application had not been rejected. The court thereupon made a decision embodying findings, upon which a judgment was entered adjudging that the defendant should include the plaintiff’s claim in the pool forming at the time of notice of entry of the judgment, and should pay the plaintiff from sucli pool the proportionate amount thereof that she .should be entitled to under the certificate and by-laws.

      Held, that the court had power to grant such judgment, although such relief was not demanded in the complaint, it being based upon- the cause of action as alleged and proved.
    It appeared that on the plaintiff’s paying the first premium, the defendant’s agent wrote out an application for the policy or certificate in suit, upon the life of the plaintiff's mother, to which the plaintiff signed her mother’s name; this application was forwarded to the defendant, and was at first marked
    ' approved by the proper officer, but was afterwards marked rejected; the premium paid by the plaintiff was received' by the defendant and not returned, and no offer to return it was made until after the mother’s death, nor was a return of the policy demanded or the plaintiff informed before the death that the application was rejected. The jury found that the application was not rejected, and this finding was adopted by the court.

      Held, that no good reason appeared for disturbing this conclusion.
    The defendant moved for a nonsuit on the ground that no application was signed by the plaintiff’s mother, on whose life the certificate or policy in suit was issued. The evidence showed that the mother was not present when the application was made out by the defendant’s agent and the policy delivered, and that the agent asked the plaintiff to sign her mother’s name to the application, and she did so. The plaintiff testified that her mother knew of the application being made, and that she spoke to her beforehand about it. The answer did not allege that the plaintiff did not have authority to act for her mother, but did affirmatively allege that the mother made the application.

      Held, that the motion for a nonsuit was properly refused.
    The plaintiff, a short time before the second bi-monthly premium, which fell due twelve days before the death of the insured, became due, called on the agent of the defendant who had given her the receipt for the first premium, and offered to pay the premium soon becoming due; he declined to receive it, saying that no receipt therefor had been sent him by the company. He had, in fact, no authority to collect premiums, except the first, unless upon receipts furnished by the company. The defendant’s by-laws provided for the mailing of notices of premiums due. There was evidence tending to show, and the court found, that at the time when the second premium would have become due, the company disavowed its obligation under the certificate and failed to send its agent a premium receipt for the plaintiff, on the ground that the certificate was not an existing obligation on its part.

      Held, that if, prior to the day the second premium was payable, the defendant repudiated its contract, mailed no notice to the plaintiff and sent no receipt to its agent for the plaintiff, although it did for others according to its custom, it should not be permitted to say that there was a forfeiture by reason of the nonpayment of the premium.
    Appeal by tbe defendant, tbe Industrial Benefit Association of Syracuse, N. Y., from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of Broome county-on the 1st day of March, 1893, upon a decision of the court rendered after a trial at the Broome Circuit, with notice of an intention to' bring up for review on such appeal the order denying defendant’s motion for a new trial.

      Walter 8. MacGregor, for the appellant.

      Carver, Deyo c& Jenkins, for the respondent.
   Merwin, J.:

This action is based upon a policy or certificate of membership, issued by the defendant and bearing date August 28,1891, by which the defendant, “ for and in consideration of the representations and warranties made to it in the application for this Certificate and the sum of four dollars and seventy cents to it in hand paid, and the agreement to pay a like sum every two months during the balance of the first year, and then four dollars and seventy cents every two months thereafter,” constituted Mary O’Brien a member of class B of the association,with the provision that the beneficiary therein named should receive two shares of the mortuary fund collected for the pool so called, in which the proof of death of the member is approved by the association, the maximum value of each share being $250.. The certificate also provided that all premiums paid on account of certificates terminated by death and approved in any pool in this class should be returned to the claimants thereof out of and before the distribution of the mortuary fund. The plaintiff, Catharine D.. Sullivan, the daughter of the member, was named as the beneficiary, and the certificate was stated to be issued on the conditions and stipulations stated in the application, and upon the conditions and agreements contained in the by-larvs of the association.

Mrs. O’Brien died on the 12th of November, 1891. In the by-laws there is a provision that in case the payment of any claim is contested by the association and a judgment is rendered in favor of the claimant, the said claim shall be placed in and paid pro rata with the claims of the pool then forming.” By the judgment in this case it is. “ ordered and adjudged that the defendant shall include the plaintiff’s, claim in the pool forming at the time of the service upon the attorney for the defendant of a copy of this judgment and notice of its entry, and from such pool the defendant is directed to pay to the plaintiff the proportionate amount thereof that she should be entitled to under the certificate which she holds and the by-laws of the company.”

No misstatement or fraud is charged, and there is no dispute as to the amount or form of recovery in case the plaintiff is here entitled to recover at all. The defendant claims (1) that the court erred in refusing to grant a nonsuit on the ground that under the by-laws of the defendant the plaintiff was not entitled to maintain an action at law to recover money damages on the certificate; (2) that the court erred in holding that the policy ever had a valid inception ; (3) that the court erred in refusing to grant a nonsuit on the ground that no application was made by Mary O’Brien for the issuance of the certificate ; (4) that the court erred in holding that the policy was not lapsed for failure to pay the premium due November 1, 1891.

1. The complaint sets out the making of the certificate or policy, stating its effect, and a copy is attached. It is alleged that all the conditions of the contract to be performed by the plaintiff or by Mrs. O’Brien have been performed, or their performance waived by defendant. The death is alleged and notification thereof in due time to the defendant, and that defendant waived proofs of death. It was then alleged that at the time of Mrs. O’Brien’s death and since that time the moneys collected in the mortuary fund for the pool, out of which the plaintiff should be paid the benefit under the certificate, were sufficient to pay the plaintiff the maximum amount of the shares, being altogether $500, no part of Avliich had' been paid. Judgment for that sum Avas demanded. In the certificate it is stated that it is issued and accepted upon the conditions and agreements contained in the by-laws of the association.

The case was tried at the Circuit, before the court and a jury. At the close of the evidence, in view of the provision of the by-laws that, in case of contest of a claim and judgment in favor of the •claimant, the claim should be placed in and paid pro rata with the claims of the pool then forming, the court stated and held that it would allow the action to stand as an equity action, arid take the advice of the jury on the question of fact as to whether the application Avas rejected by the medical director of the defendant on the 28th of August, 1891. The court asked the counsel for the defendant if there was any other question of fact that he desired to have submitted to the jury, and the reply in substance was that there was not. The question of fact, as above suggested, was then submitted to the jury, and the verdict was that the application was not rejected by the medical director on the 28th of August, 1891. The court then made its decision, embodying findings of fact and law, and, in accordance with such decision, the judgment appealed from was entered.

The relief granted was not demanded in the complaint, and the defendant claims that in this action the court had no right to grant it. An answer having been interposed, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue. (Code, § 1201.) The fact that the wrong relief was asked is not important. (Murtha v. Curley, 90 N. Y. 377.) The judgment was based upon the cause of action as alleged and proved. The form and amount of the recovery is regulated by the by-laws which are referred to in the certificate which is a part of the complaint. The judgment was certainly embraced within the issue, and was also consistent with the case made by the complaint. It was fixed by the certificate and the by-laws. It is not claimed that the judgment is wrong if the court had power to grant it. (Smith v. People's Mut. Ben. Society, 64 Hun, 534.) We think that the court had the power. It is to be observed that the defendant had opportunity to go to the jury on all questions that it desired to. It, in effect, consented that the court pass on all the questions of fact aside from the one submitted, and render the proper judgment. It is not material whether it be called a trial at equity or law.

2. The theory of the defendant on the second jn’oposition is that the application was not approved by the company and the policy was by mistake delivered to the plaintiff. There is evidence showing that Mr. Sperry, the agent of defendant, saw the plaintiff on the subject of transferring to the defendant a policy she was carrying on the life of her mother in the Flower City Insurance Company, and which she was willing to transfer to the defendant; that soon after this, Mr. Mahar, who seems to have been acting for defendant at the request of Mr. Sperry, called on the plaintiff and delivered to her the policy in question, she paying him therefor the premium of four dollars and seventy cents, and receiving therefor the receipt of Mr. Sperry for tlie defendant; that on the same occasion Mr. Maliar wrote out the application, and it was signed by plaintiff and she also signed the name of her mother. This was forwarded to the defendant and there is evidence tending to show that at first it was marked approved by the proper officer of the defendant, but afterwards the approval was erased and it was marked rejected. The premium paid by plaintiff was received by the defendant, and there was no return of it, or offer to return it until after the death of Mrs.. O’Brien; nor was the return of the policy demanded or the plaintiff informed before the death that the application was rejected. The court submitted to the jury the question whether the application was rejected by the medical officer of the defendant upon its receipt by it on the 28th of August, 1891, and they found that it was not. This finding the court in its subsequent disposition of the case adopted, in effect determining that the policy was delivered by the defendant as and for a good and valid policy. We find no good reason for disturbing this conclusion.

3. But it is said that the application was not in fact signed by Mrs. O’Brien. She was not present at the time the application was made out by the agent of the defendant and the policy delivered..

The agent asked the jjlaintiff to sign her mother’s name and she did so. The plaintiff testifies that her mother knew of the application being made; that she spoke to her beforehand about it. ' There-is in the answer no allegation that the plaintiff did not have authority to act for her mother. On the contrary, it. is affirmatively alleged that Mrs. O’Brien made the application. So far as this question is concerned, we think the nonsuit was properly denied.

4. Was the policy forfeited by reason of the failure to pay the premium due November 1, 1891 ? The plaintiff, a short time before this date, called on Mr. Sperry, who had given her the receipt for the first premium, and offered to pay the premium soon becoming due. He declined to receive it, saying that he had no receipt from the company for her among the receipts that had been sent him, and, therefore, could not accept her premium. The plaintiff replied she didn’t understand it, and the result was he promised to call the attention of the company to the fact of her call and see what there was of it. Apparently the plaintiff heard nothing further about it, and the death occurred on the twelfth of November.

Mr. Sperry was employed by the defendant to assist in obtaining transfers from the Flower City Company to the defendant, and in that matter, to the knowledge and assent of defendant, he gave receipts for the defendant in his individual name for the premiums paid at the time of the transfer. The plaintiff had such a receipt for her first premium. The deféndant knew that Sperry had been accustomed to receive the premiums in the Flower City, and they also employed him to act as their collector. He, nowever, for any premiums after the first had in fact no authority to collect except upon receipts furnished by the company.

The by-laws of the defendant provided that premiums should be payable at the home office of the association, but if, for the sake of convenience or otherwise, any premiums are paid to collectors or agents of the association, such collector or agent shall be deemed and held to be the agent of the members so paying, unless the agent or collector shall furnish the members so paying a receipt for said premium signed by the secretary of the association, or enter the same in the member’s individual receipt book; otherwise, no payment to any such agent or collector shall be binding upou the association until received and accepted by it.” One clause of the application stated where and to whom “ notices of premiums due ” should be sent. In one of the by-laws which related to the class of policies in which was the plaintiff’s, there is a provision that “a notice of premium due shall be mailed to the last-known post-office address of each member of this class, during the first ten days of February, April, June, August, October and December of each year, and will fall due and must be paid on or before the first business day of the month following date of notice, and any certificate upon which premium is not paid on or before the date it falls due, will be subject to the penalties provided in article five of these by-laws.” The article as to the penalties is not printed in the case, but the inference from the application is that failure to pay when due was made a cause of forfeiture of the certificate and the previous payments. It may be inferred from the evidence that the notice above referred to was never mailed to the plaintiff, though she was named in the application as the person to whom notices should be sent, and her address was given.

There was evidence tending to show, and the court found, that at the time when, the second premium would have become due under the certificate the company disowned its obligation under it, and failed to send to their agent, Mr. Sperry, a receipt, on the ground that the certificate was not an existing obligation upon their part.

If, prior to the first of November, the defendant repudiated its contract, mailed no notice to the plaintiff, and sent no receipt to its agent for the plaintiff, although it did for others according to its custom, it should not be permitted to say that there was a forfeiture by reason of the non-payment. The plaintiff saw the agent of the defendant, with whom she had personally dealt with the approval of the defendant, and paid the first premium. She had a right to believe that he would know what the defendant wanted, and in the absence of the notice called for by the by-laws she was not required to send the premium to the home office on pain of forfeiture. Ordinarily a tender is not necessary when the acts and conduct of the other party indicate that it will be futile. (Baumman v. Pinckney, 118 N. Y. 604; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 157.) A company cannot take advantage of a forfeiture that it encourages by a failure to give its accustomed notice before the premium is due. (Helme v. Phil. Life Ins. Co., 61 Penn. St. 107.) No tender was necessary after the death, as by the terms of the certificate the premiums paid were to be returned to the insured.

These considerations lead to the conclusion that the court below correctly held that the defense of forfeiture was not made out. It follows that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


author: Merwin, J. :

text:
    In the Matter of the Petition of Thomas H. Stryker and Others, Trustees, etc., for the Dissolution of The New York Locomotive Works. George D. Little and Others, Appellants, Thomas H. Stryker and Another, Receivers, etc., Respondents.

      Corporation receivership —preference to xoages of employees — chapter 376 of 1885.
    The general word “employees,” in chapter 376 of the Laws of 1885, which provides that when a receiver of a corporation, other than insurance and moneyed corporations, shall be appointed, “the wages of the employees, operatives and laborers ” of the corporation shall be preferred in payment, is to be construed, as limited by the word “ wages ” and by the specific words “ operatives and laborers ” with which it is associated, and comprehends only persons performing the same kind of service that is due from the latter.
    Hence, the statute does not include such employees of a manufacturing corporation as bookkeepers, superintendents and foremen paid by the month, the performance of manual labor by whom, if performed at all, is merely incidental to their general employment,
    Aureal by George D. Little, Thomas "W. Hodgson, Richard "Williams, William B. Deming, J. E. Stebbins and II. M. C. Skinner from an order of the Supreme Oourt, made at Special Term and entered in the office of the clerk of Oneida county on the 3d day of July, 1893.
    Th¿ respondents, Thomas II. Stryker and Edward Comstock, as receivers of the corporation, the New York Locomotive Works, applied by petition to the court for instructions as to whether or not the claims of the appellants, with some others, should be paid by the receivers, out of the funds in their hands, as preferred claims and be treated as claims for wages. By the order appealed from the receivers were directed not to pay as preferred claims, and not to treat, as claims for wages the claims mentioned in the petition or any of them..
    The petition was verified, and, after a statement of a claim by the' treasurer of the corporation, it stated as follows as to the claims of the appellants:

      “ George D. Little was a clerk and bookkeeper in the office of the said corporation, and under the said treasurer, at a salary of $100 per month, and there ivas due him on the said 13th day of January, 1892, $120, being for his services to that time.

      “ H. 1VL O. Skinner was superintendent of tlie said corporation •during 1891, at a salary of $125 per month, and there w-as due him for his services $225 on the said 13th day of January, 1892.
    “ J. E. Stebbins was a draftsman employed in the office of said •corporation, at a salary of $125 per month, and there was due him for his services on the said 13th day of January, 1892, $162.50.
    “ T. W. ITodgson was foreman of the boiler shop of the said corporation, át a salary of $225 per month, and was employed during the year 1891, and up to the said 13th day of January, 1892, and there was due him at that time for his services, $325.
    “ R. Williams was also foreman in the said corporation, at a salary of $125 per month, during the year 1891, and there was due him for services on the said 13th day of January, 1892, $225.
    “ All of the foregoing persons gave their entire time, attention and services to the various departments of the said corporation in which they were employed.
    “Petitioners further state that another claim by W. 33. Deming, •of New York city, for $145, being amount of a draft sent by him to Brazil, to pay the expenses of an agent or employee of the said ■corporation, named. Smith, returning from Brazil, and this draft, was received by Smith, and the money obtained thereon ; that during that period the petition herein for the dissolution of said corporation was filed, and owing to the length of time necessary for mail communication the said Deming was not able to stop the said draft, and us the proceeds thereof were used by the said Smith to pay his way Koine, said Deming claims that your petitioners should pay him the ¡amount in full.”
    On the part of the claimants, an affidavit of George D. Little was presented, in which he states “ that his services consisted in keeping .a set of books of account, and acting as a clerk in the office of the ■corporation. That-none of the matters pertaining to the management of the corporation was intrusted to deponent’s judgment or discretion, and all of the work performed by him was done under the management and orders of the officers of said corporation. That ■deponent’s work was toilsome and laborious, and was routine work, varying but little in its character from day to day. That deponent was required to work from 8 o’clock a. m. until 5 o’clock p. m. on each day; that deponent was hired, and received the sum of $100 per month, which wTas paid to him under his contract of hiring, at the end of each month, for his wages.

      “ That II. M. C. Skinner, named in said petition, was employed as a foreman over the boiler, casting, erecting and finishing departments of said locomotive works. That it was the duty of said Skinner to direct the work of the men employed in said several departments, and that he often performed manual labor, working with and assisting the mechanics and workmen of said departments in the performance of their duties. That he was required to work from Y o’clock a. m. to 6 o’clock, p. m. of each day, and was hired and paid monthly the wages of $125 per month.

      “ That Richard Williams, named in said petition, was employed as a foreman; that his duties were of the same nature as the said H. M. C. Skinner, for said corporation. That he worked with and assisted the mechanics, workmen and laborers, and performed ordinary manual labor with them, and the same class of work which is usually required of mechanics in machine shops. That he was required to work from Y a. m. to 6 p. m. of each day, and his wages were $125 per month, which was paid to him monthly, and that he was hired by the month.
    “ That Thomas W. Hodgson was employed by said corporation as a foreman in the boiler shop ; that in addition to superintending the work of the men employed, said Hodgson assisted, and worked with, the said mechanics and workmen, performing the same ordinary manual work which is usually required of mechanics in machine shops; that he was hired and paid the sum of $225 per month for his wages, which was paid to him monthly, and that he worked the same hours each day as the said Skinner and Williams aforesaid.
    “ That the said J. E. Stebbins was employed by the month in the drafting room of said corporation, at the monthly wages of $125 per month, which was due him each month; that he was required to work from 8 o’clock in the morning until 6 o’clock at night; that he performed his work under the orders of the several foremen of •said corporation, and that his work was of the same character which draftsmen are ordinarily required to do in mechanical work.
    “ That deponent, together with each of the employees named aforesaid, were required to and did perform for said corporation menial or manual service and work, and tlie same class of ordinary labor that operatives, mechanics, laborers and workmen usually perform in machine shops and manufactories in the State of New York when employed by the day, week or month.
    “That on or about June 15, 1891, said corporation, by its officers and agents, made a contract with one John II. Smith, by the terms of which said Smith was hired to go to Brazil, having in charge locomotives shipped to that place by said corporation; that as part of his duties he was to assist in the mechanical work of erecting- and putting in order the machinery of said locomotives on their arrival at their destination ; that said Smith was to receive for his wages the sum of $5.00 per day for each day that he was absent on said trip; that there is now due and unpaid on said contract of hiring the sum of $145 for 29 days’ work, which said corporation and its receivers have not paid.”
    An affidavit of William B. Deming was produced in which he stated that he was one of the firm of Deming & Ridgeway : “ That on or about October 15, 1891, one John H. Smith was in the employment of the New York Locomotive Works of Rome, N. Y., as a laborer or mechanic, and was engaged in manual labor in erecting locomotives of said corporation in Brazil; that while said Smith was so employed he represented to Deming & Ridgeway that he was in need of funds; that Deming & Ridgeway thereupon, and in February, 1892, purchased of said Smith a debt, claim or demand for his said services, due or to become due against said corporation for the sum of $145 ; that deponent is now the owner and holder of said claim, no part of which has been paid.”

      Ohas. Gariruic7),ael, for the appellants.

      JV. E. Kerncm, for the respondents.
   Merwin, J. :

The appellants claim that they are within the provisions of chapter 376 of the Laws of 1885, which provides that “ When a receiver of a corporation created or organized under the laws of this State and doing business therein, other than insurance and moneyed corporations, shall be appointed, the wages of the employees, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall first come to his hands.”

The case of Short v. Medberry (29 Hun, 39) is cited as controlling in appellants’ favor. That was an action against a stockholder of the Rochester Frear Stone Company to enforce that provision of the statute (§ 18, chap. 40, Laws of 1848) which provides that the stockholders of the corporation shall be liable for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation.” Curtis, the assignor of the plaintiff, applied to the company for a situation, and was told that one would be given to him if he would procure a loan of $3,000 for the company. This he did and began to work for the corporation at a salary of $1,000 a year, payable monthly or as he wanted his pay. He acted as foreman, took part in the manual labor required to manufacture the stone, kept the time of the men, solicited orders, collected bills and did whatever was required of him by the secretary of the company, who acted as its general superintendent. It was held that Curtis was a laborer or servant, within the meaning of the act, and it was said that “ he rendered manual service of the same kind as that performed by the other-laborers in the employ of the company, and it seems to have been one of his principal duties and not a mere incident to his position.”

The same statute was under consideration in the case of Wakefield v. Fargo (90 N. Y. 213), which was decided shortly before the Short case, but probably not then published, as it is not referred to in that case. In the Wakefield case it is said (pp. 217, 218): “ It is plain, we think, that the services referred to are menial or manual services — that he who performs them must be of a class whose-members usually look to the reward of a day’s labor or service for immediate or present support, from whom the company does not expect credit, and to whom its future ability to pay is of no consequence ; one who is responsible for no independent action, but who-does a day’s work or a stated job under the direction of a superior. (Gordon v. Jennings, L. R. [9 Q. B. D.] 45; Dean v. DeWolf, 16 Hun, 186; affd., 82 N. Y. 626.) * * * To the language of the-act must be applied the rule common in the construction of statutes,, that when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each ■other. Therefore, although the word £ servant ’ is general, it must be limited by the more specific ones, £ laborer and apprentice ’ with which it is associated, and be held to comprehend only persons performing the same kind of service that is due from the others.”

In People v. Remington (45 Hun, 331), which involves the consideration of the statute of 1885, it was held that the superintendent of the company, employed at an annual salary, and an attorney, to whom the company was indebted for professional services, were not '“employees, operatives or laborers,” or their earnings “wages,” within the meaning of the statute. In the opinion in that case, which upon this subject was concurred in by all the members of the court, the meaning of the expression, “ the wages of the employees, operatives and laborers,” and the authorities upon the subject were fully considered, and it was said that “this, like many similar •statutes in this and other countries, was designed to secuie the prompt payment of the wages of persons who, as a class, are dependent upon their earnings for the support of themselves and their families, and it was not designed to give a preference to the salaries and compensation due to the officers axxd employees of corporations occupying superior positions of trust and profit.” Force was given to the xxse of the term “ wages,” it being said that it has a less extensive meaning and embraces a smaller class of credits than '“ earnings.” The case of South & North Ala. R. R. Co. v. Falkner (49 Ala. 115) was cited, in which it was said that the tex’m •“ wages,” in its applicatioxx to laborer's and employees, “cei'tainly conveys the idea of a subordinate occupation which is not very remunerative, oixe of xxot -much ixxdependent responsibility, but rather .subject to immediate supervision.”

The Remington case was affirmed by the Court of Appeals upon the opinion delivered at the General Term. (109 N. Y. 631.) In People ex rel. Satterlee v. Board of Police (75 N. Y. 41) it is said by Judge Miller that “employees” are usually considered as •embracing laborers and servants and those occupying inferior positions.

The case of Brown v. A. B. C. Fence Co. (52 Hun, 151) is cited as sustaining the appellants’ position. There, a person employed to-assist the general manager of a corporation in keeping its books,, and to clean the office and showroom of the corporation, and to assist in putting together, taking apart and shipping wire wicket fence and weaving machines, at the salary or wages of forty dollars a month, payable in four installments of ten dollars each, was held to be an employee within the act of 1885. This does not, I think,, reach the present case.

Having in view the use in the statute of the term “wages,” and. the rule of construction, indicated in the case of Wakefield v. Fargo, as to the kind of service designed to be covered by the terms “ employees, operatives and laborers,” and the principles laid down in the Wakefield and the Remington cases, with the apparent approval of the full court in each case, it should, I think, be here held that, the claims of the appellants are not within the statute.

The appellant Little was a clerk and bookkeeper in the office of' the corporation, at a salary of $100 a month, payable under his contract of hiring at the end of each month. Stebbins was a draftsman employed-in the office of the corporation at a salary of $125 a month, payable monthly. These are not of the grade of workmen designed to be protected by the act, and the fact that they took their orders from the officers or foremen of the corporation does not materially change the situation.

Skinner was superintendent of the corporation. This is stated in the petition, and is not denied in the affidavit of Mr. Little, which states that he was employed as a foreman over the boiler, casting, erecting and finishing departments, and it was his duty to direct the work of the men employed in said several departments. Williams was employed as a foreman, and his duties were of the same nature as those of Skinner. Each had a salary or wages of $125 a month, payable monthly.

Hodgson was foreman of the boiler shop at a salary of $225 a month, payable monthly. The statute does not reach this grade and kind of employment, and the fact that these men sometimes performed manual labor along with the ordinary workmen or alone does not change materially the situation. It is very clear that they were not hired for that purpose. The inference is plain that whatever they did in that line was incidental to their general employment. In this respect the case differs from the case of Short v. Medberry, above cited.

The claim of Deming, as stated in the petition of the receivers, was not at all for services, but for money loaned to one Smith, one of the employees of the corporation, and as such there was no basis for preference. Deming, in his affidavit, states that in February, 1892, he purchased of Smith a claim that he had against the corporation for services in the amount of $145. He does not state that he ever presented this claim to the receivers. There is no affidavit of Smith on the subject. Assuming, however, that Deming represents the claim of Smith, and that the facts as to it are as stated in the affidavit of Little, the claim for preference is not made out. Little states that on June 15, 1891, the corporation made a contract with Smith, by which Smith was hired to go to Brazil, having in charge locomotives shipped to that place; that, as a part of his duties, he was to assist in the mechanical work of erecting and putting in order the machinery of the locomotives on their arrival; that he was to receive for his wages five dollars a day for each day that he was absent on his trip, and that there is now due and unpaid on the contract of hiring $145 for twenty-nine days’ work. The affidavit of Little is dated April 22, 1893. It does not state what time the claim accrued, nor does it state what the duties of Smith were. It gives a part, but whether or not this was incidental to his main duties does not appear.

The foregoing suggestions lead to an affirmance of the order.

Hakdin, P. J., and Martin, J., concurred.

Order affirmed.


text:
    Lewis W. Terwilliger, Respondent, v. The Ontario, Carbondale and Scranton Railway Company, Appellant.

      Judgment for the value, based on a quantum meruit, of goods sold under a complaint cdleging an agreed price —payment to a third party — verbal authority to receive the price.

    Under a complaint seeking to recover for goods alleged to have been sold and delivered at an agreed price, a judgment for the value of the goods is warranted, on proof of such value, when the rights of the defendant are fully-protected by his being allowed to amend his answer and by the subject being : fully considered in the evidence.
    In an action brought to recover for certain railroad ties alleged to have been sold and delivered by the plaintiff to the defendant, a railroad company, it appeared that subsequent to the delivery by the plaintiff the defendant had paid a third 'party for the ties, and the defendant claimed that this payment operated to protect it as against the plaintiff, by reason of an alleged verbal agreement between the plaintiff and the third party by which the plaintiff authorized the latter to sell the ties to the defendant and receive payment therefor. It appeared that at the time of this agreement nothing was paid by the third party and no part of the property was delivered to him, and that there had been no delivery thereof to the defendant in pursuance of the alleged agreement.
    The referee by whom the case was tried refused to pass upon the question whether such an agreement was made.

      Held, that, under the facts disclosed, the third party had no valid interest in the property itself by reason of the claimed verbal agreement;
    That the verbal agreement, if made, would not help the defendant unless there was a delivery in pursuance of it, and as this did not occur the existence of the agreement was not material to the case, and hence the defendant was not injured by the referee’s refusal to pass upon the question as to whether the agreement was made.
    Appeal by tlie defendant, the Ontario, Oarbondale and Scranton Railway Company, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tlie office of the cleric of Delaware county on the 25th day of August, 1892, upon the report of a referee.
    In the complaint it is alleged that in or about the months of February and March, 1890, the plaintiff sold and delivered to defendant 471 chestnut railroad ties at the agreed price of forty cents each, and 753 oak ties at the agreed price of fifty-five cents each; that the ties were taken and used by the defendant in the construction of its road; that they were counted and accepted by defendant on or about April 5, 1890, at which time the amount therefor, $602.55, became clue and payable, and no part thereof has been paid.
    The defendant interposed a general denial, and also in an amended answer set up that on or about the time alleged in the complaint it bought the ties from one JVIarvin D. Wheeler and fully paid him for the same, and that the ties were the property of Wheeler, and lie had full authority and right to sell and receive the pay. It was also alleged that the plaintiff, for a good and valuable consideration, authorized Wheeler to sell the ties to the defendant and receive the pay to his own use, and that Wheeler did thereafter sell the same to defendant and receive the pay. .
    The referee found, as matter of fact, that previous to and on or about October 1, 1889, the plaintiff had cut and was the owner of and in possession of the ties in question; that about October, 1889, the plaintiff had a conversation with one Edward Canfield, the chief engineer of the defendant, in which Canfield informed the jfiaintiff that the defendant would take such ties as were sound; that, relying on this statement, the plaintiff thereupon delivered the said ties to the defendant upon the line of its road; that they were afterward inspected by E. L. Jenks, one of the defendant’s engineers, and returned to the defendant as the ties of the plaintiff on April 1, 1890; that subsequently thereto the defendant took and used them in the construction of its road; that the oak ties were worth fifty-five cents each and the chestnut ties .thirty-seven cents each; that the defendant has not paid the plaintiff therefor.
    As matter of law the referee found :

      “First. There was much evidence given upon trial of this action as to a verbal agreement claimed to have been made between the plaintiff and one M. D. Wheeler, under which the plaintiff authorized the said M. D. Wheeler to sell'the said ties to the defendant and receive the avails thereof and apply the same in payment for certain timber and ties cut by plaintiff on said Wheeler lands. Without passing upon this conflicting question of fact, I hold, as matter of law, that if such agreement was made as testified to by the defendant’s witness, it was a contract void by the Statute of Frauds- and constituted a mere license, and was revocable at any time before its consummation, and that the acts of the plaintiff and the return of the ties as plaintiff’s to defendant by its engineer, as set forth in the-finding of facts herein, done subsequent to the making of the alleged agreement, was a repudiation and revocation thereof ; that the acts of the plaintiff, as so found, were sufficient notice to the defendant of such revocation.

      “ Second. That the plaintiff is entitled to judgment against the defendant for five hundred and eighty dollars and forty-two cents, with interest thereon from the first day of April, 1890, and the costs of this action.” . . ■
    It appeared at the trial that in 1889 there was an unsettled account between the plaintiff and Wheeler for timber cut by plaintiff on Wheeler’s lot. Among the requests of the defendant for findings was the following:

      “ 26. That said M. D. Wheeler then had a contract with defendant to furnish it ties to build its road, of which he informed plaintiff. That plaintiff then and there informed said Wheeler that they were large ties (Erie), and he wanted Erie prices, and requested and authorized said M. D. Wheeler to sell said ties to defendant if he could get Erie prices, less the difference in hauling, and then and there agreed if said Wheeler could so sell said ties he could have them at such prices and apply them on the balance due from said timber, and requested said Wheeler to dispose of said ties under such arrangement to the defendant and take and apply the proceeds thereof on said timber and credit plaintiff therewith and account to him therefor.”
    To this request the referee replied “ Not found.”

      A. Taylor, for the appellant.

      Arihw' More, for the respondent.
   Merwin, J.:

In the complaint it is alleged that the ties were sold and delivered at an agreed price. No agreement as to price is found, but the value is found and judgment for that is ordered. The appellant claims that under the complaint a judgment for the value is not warranted. In Taylor v. Pinckney (3 N. Y. St. Repr. 158; S. C., 12 N. Y. Civ. Proc. Rep. 107, note), it was held that one may declare on a special contract, and, failing to prove such, may recover on a guantum meruit. In Sussdorf v. Schmidt (55 N. Y. 320) it was held tliat under a complaint to recover an alleged agreed compensation for services a recovery upon proof of, and for the value of, the services is sustainable ; that, at most, it is but a variance between the pleadings and the proof which may be disregarded unless it appear that it misled the defendant. (See, also, Smith v. Lippincott, 49 Barb. 398.) In the present case, the defendant’s rights were fully protected, as, in view of the evidence of value, it was allowed to amend the answer, and the subject was fully considered in the evidence. The rule, therefore, laid down in Ltomeyn v. Sicldes (108 N. Y. 650), and invoked by the defendant, would not apply. In fact there was no dispute as to the value, and the defendant admitted receiving, accepting and using the ties. It was found on sufficient evidence that the plaintiff owned them and delivered them as his own to the defendant and that defendant -knew of such delivery. It is quite clear that the judgment for the value was authoilzed by the pleadings and proof.

A more serious question is presented by the claim of the defendant, that it was entitled to have the referee pass upon the question of the existence of a verbal agreement as referred to by the referee in his first finding of law. The response of the referee to the defendant’s request, which apparently covered the subject, was not found.” This ordinarily would be deemed sufficient in form to indicate that the request was passed upon. (Davis v. Leopold, 87 N. Y. 621.) It is, however, argued that the statement in the first finding of law indicates that it was not, and that the rule. that in case of inconsistent findings of fact the defeated party is entitled to the' benefit of those most favorable (Schwinger v. Raymond, 83 N. Y. 192) should apply. Assume this to be so, the' question is whether a finding that in or about June, 1889, there was a verbal agreement between the plaintiff and "Wheeler by which the plaintiff authorized Wheeler to sell the said ties to the defendant and receive the avails thereof and apply the same'in payment for certain timber and ties cut by plaintiff on Wheeler’s lands, would help the defendant in view of the other facts as found or that the evidence authorizes to be found.

At the time of such agreement there was nothing paid and no part of the property was delivered. The agreement to apply the proceeds on a prior debt was not a payment within the statute! (Walrath v. Richie, 5 Lans. 362; Brabin v. Hyde, 32 N. Y. 519.) Wheeler, therefore, had no valid interest in the property itself by reason of the claimed verbal agreeement. Tie claims that he after-wards, in pursuance of this agreement, made a sale to the defendant. It was, however, verbal and nothing was then paid or delivered. So that no valid contract of sale was made by Wheeler, assuming he did have authority from plaintiff. The only delivery was after-wards and by the plaintiff, and it is found that his delivery was not in pursuance of any bargain that Wheeler had made. There is evidence that subsequent to the delivery by plaintiff the defendant paid Wheeler for the property. This is sought to be justified upon the theory that if the agreement was made between plaintiff and Wheeler, as suggested, it was an authority to Wheeler to receive the proceeds, which would operate to protect the defendant, although there was no valid contract of sale between defendant and Wheeler.

In the negotiations between Wheeler and Mr. Draper, the purchasing agent of defendant, Wheeler claimed to own the ties. He was not dealt with as being the agent of plaintiff. The plaintiff delivered the ties under the direction of the engineer of defendant, who, however, was not authorized to purchase. It was his duty to inspect, and the return which he made to the defendant of his counting and inspection was in the form of a bill or account in favor of plaintiff against defendant, in which was stated the quantity and kind of ties, the date and place of delivery, and the price and aggregate amount. Hnder this account, the engineer certified that the ties included in the account were delivered at the place stated, had been inspected and measured by him, and that the quantity and price were correctly stated. Draper, on receiving this return, erased the name of plaintiff and inserted the name of Wheeler, thereby changing the account from one in favor of plaintiff to one in favor of Wheeler. After this, the defendant used the ties and paid Wheeler. No notice of the change in the account was given to plaintiff, and no information of the intended payment to Wheeler.

The defendant had notice that the plaintiff delivered the ties and claimed to own them. Its agent had no right to change the account. It was not bound to accept the ties as delivered by plaintiff, but if it did it could not repudiate the claim of plaintiff without notice to him and without any inquiry as to his rights. There is no evidence that defendant’s agent made any inquiry about plaintiff’s rights, and he does not testify that he relied on any supposed agency of Wheeler, or that he was not fully acquainted with plaintiff’s claims.

The verbal agreement, if made, would not help the defendant unless there was a delivery in pursuance of it, and as this did not occur it was not material in the case. The referee, in effect, fiuds that the defendant had notice that the plaintiff repudiated any such agreement, if one was made. The evidence authorizes this conclusion.

It follows that the defendant is not injured by any refusal of the referee to pass upon the question whether such an agreement was made.

There is no other question that calls for special consideration. The judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.