text:
    Minnie English, Respondent, v. Joel Hanford, Appellant.

      Breach of warranty of personal property — effect of the pwrchase price being unpaid — verdict of fraud.

    No action will lie on a warranty unless the title to the property alleged to have been warranted has fully passed to the buyer, and when a sale of personal property, conditional to become absolute oil the payment of the full price thereof, which falls due in installments, it is essential before an action can be maintained to recover damages for a breach of warranty that the property be paid for in full.
    Before the verdict of a jury establishing a person’s liability for fraudulent representations can be upheld he is entitled to a clear and intelligent presentment of the questions relating to the fraud to the jury.

      "When an action has been treated as one to recover damages for a breach of warranty, a verdict for the plaintiff will not be sustained, on the ground that the evidence justified a finding of fraud on the part of the defendant, where that aspect of the case was not submitted to the jury.
    Appeal by tbe defendant, Joel Hanford, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe cleric of the county of Tompkins on tbe 5th day of November, 1893, upon tbe verdict of a jury for seventy dollars, after a trial at tbe Tompkins County Circuit, and also from an order entered in said clerk’s office on tbe 9th day of October, 1893, denying tbe defendant’s motion for a new trial.
    At tbe Circuit tbe jury rendered a verdict for tbe plaintiff in tbe sum of seventy dollars. Plaintiff, in her complaint, alleged that in August, 1887, “ she was induced by the defendant to purchase of him an Ithaca organ No. —, upon representations by the defendant that said organ was new and first class in every particular, and which plaintiff believed and relied upon. That defendant, for tbe purchase price of said organ, induced plaintiff to make her promissory note to him for sixty-five dollars, after obtaining ten dollars cash down.” Her complaint also contained tbe following allegation: “ That defendant now lias, by reason of bis fraud, deception and misrepresentations, and .breach of warranty to plaintiff, forty-six dollars of plaintiff’s money, besides said organ, and plaintiff’s note, upon which there is due and unpaid about twenty-five dollars. That by reason of the foregoing, defendant was guilty of a gross fraud, constituting a breach of warranty of said organ to plaintiff’s damage in the sum of one hundred and fifty dollars.” The answer contained a denial of the allegations of the complaint and sets up that the defendant delivered to the plaintiff an organ “ upon the express agreement that the plaintiff should pay to defendant on account thereof the sum of sixty-five dollars, in monthly payments of five dollars on the first day of each month; and that when the said sum of sixty-five dollars, with annual interest thereon, should be paid, the said organ should become the property of the plaintiff ; and that until said sum of sixty-five dollars and interest should be so paid, the title thereto remained in the defendant with’ the right, on his part, to retake the said organ out of the possession of the plaintiff, on default of payment, as above specified.” The answer of the defendant also contained the further allegation: “ That the said agreement for conditional sale was duly rescinded, and in or about the month of August, 1892, the defendant retook from the plaintiff, by process of law, the possession of the said organ, pursuant to the terms of the agreement aforesaid.”

      Jared T. Newman, for the appellant.

      Raymond L. Smith, for the respondent.
   Hardin, P. J.:

At the commencement of the trial the defendant’s counsel asked the court to direct the plaintiff’s counsel “ to elect whether he will prosecute this action for deceit in tort, or whether for breach of warranty on contract.” Thereupon the court observed: “ As I understand it, it is announced to be an action for breach of warranty, -x- * * you do not claim now that there is anything but a breach of warranty ? ” To which question the plaintiff’s counsel replied : “ That is all.” When the defendant was giving evidence, the question arose as to whether it was admissible to prove the rental value of the organ in the fall of 1881. In connection with the objection the court observed: If there was no warranty, then there is no liability.” Thereupon the counsel for the defendant observed: “ Do I understand the Court takes the position that if they can recover'damages at all, it must be for a breach of warranty % ” To which the court replied: It must be for a breach of warranty and nothing else. * * * You must defend this action upon the ground that you made no such representation and that there was no warranty, or you fail to defend it in my judgment; and they must maintain their action upon their complaint upon the ground that there was a warranty and there was a breach of it. I think you are entitled to offset anything in this action that would offset the purchase price.” At the commencement of the charge, the trial judge said: “This is an action brought by Minnie English against Joel Hanford to recover for a breach of warranty in the sale of an organ; ” and further on he said: “ The first question for you to proceed with, gentlemen, is, was there a warranty of this kind ? Did he warrant it to be a new organ unused ? ” and in referring to the question of damages, the court used the following language: “ If she has suffered any damages, gentlemen, I shall charge you that the rule of law in this case is that she is entitled to recover the difference between the value of a new organ as represented, unused, and this organ in the condition in which it was at the time it was delivered to her.” From the foregoing events and incidents occurring upon the trial, we think the action was treated as one upon a warranty, and damages wei-e sought to be recovered for a breach of warranty; and that, unless the verdict can be maintained upon the theory that the plaintiff was entitled to recover for a warranty, it ought not to be sustained. At the close of the negotiations between the parties in respect to the organ, the plaintiff executed an instrument containing the following language :

“ $65.00. Iti-iaca, Aug. 2d, 1887.
“ One year after date, I promise to pay Joel Hanford sixty-five dollars, value received, as follows: five dollars the first of every month until paid.
“ When $65.00, with annual interest, is paid, Ithaca Organ No. 9058 is my property; until paid, the title remains in said Joel Han-ford, or holder of this, with the right to retake it out of my possession on default of payment as above specified.
“ (Signed.) Mes. WAKEMAN ENGLISH.”

Possession of the organ was given to and taken by her and she remained in possession until after she had made default in complying with the terms of her contract with the defendant. She testifies the organ was taken from her possession July 23, 1892. She was in default in making her payments before the property was removed from her possession. The evidence clearly shows that she never completed her contract for the purchase and that she never had a clear, full, absolute, unconditional title to the property prior to the commencement of this action.

In Benjamin on Sales, under the head of Remedies of the Buyer, at page 865, are found the following words: But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due in installments, and the last installment bad not been paid, it was held in Frye v. Milligan, (10 Ont. R. [1885] 509), that no remedy yet existed on the warranty.” (Benjamin on Sales [Bennett’s edition of 1885 ; 1892], 906.)

In Osborn v. Gantz (60 N. Y. 540) it was lield, viz.: “ A warranty is an incident only of a completed sale; it lias no present vitality and force in an executory contract of sale.”

(2) It is now sought to maintain the verdict on the ground that the evidence would have justified a finding of fraud on the part of the defendant. The case was not submitted to the jury in that aspect, and before the verdict shall be upheld that establishes the defendant’s liability for fraudulent representations he is entitled to a clear and intelligent presentment of the questions relating thereto to the jury. (Mayo v. Knowlton, 134 N. Y. 251.) "We think that there should be a new trial ordered.

MartiN and Merwin, JJ., concurred.

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


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Frank Place and Others, Appellants, v. Miles E. Burlingame and Another, Respondents.

      Construction of a will — a testator is presumed, to lenow the lamo — when a life estate and not afee is devised.

    A testator is presumed to know that, at common law, a conveyance from a husband to a wife direct was not valid.
    A will contained a clause giving and bequeathing to the testator’s wife certain real estate, “ together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow; her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal. I also give to her my cow free and clear.”

      Held, that the words “or rather the use thereof during the period that she may-live and remain my widow,” related to and controlled all the antecedent language used in connection with the devise and limited the widow to the use of the property during the period of her life subject to an earlier determination in case she ceased to remain the testator’s widow;
    That construing the words as relating to the real estate as well as to the household furniture, they were apt and appropriate to cut down to a life estate during widowhood what otherwise would be a devise to the testator’s widow in fee;
    That the words “ I also give to her my cow free and clear,” did not aid the contention that the testator’s widow took the fee of such realty.

      A subsequent clause of the will gave “all the rest, residue and remainder” of the estate to certain persons named.

      Held, that this clause favored the construction which gave the widow only a life estate.
    Appeal by the plaintiffs, Frank Place and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cortland on the 12th day of .December, 1892, upon the verdict of a jury, rendered by direction of the court, after a trial at the Cortland County Circuit.
    The action was brought to recover possession of certain lands' in the town of Willett. On the 8th of October, 1860, Henry T. Jones executed his last will and testament, which was admitted to probate, and contained the following clause: “ I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appiirtenances thereunto belonging, together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow; her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal. I also give to her my cow free and clear. Also, further, I give to her one hundred dollars, said hundred dollars to be paid to her by my executors, hereinafter named, within two years after my decease, and the other property above named she is to have at my decease.” The will also contained specific legacies of $400 ; and, also, “ Fowrthhf. I give and bequeath one-half of all the rest, residue and remainder of my estafe, both real and personal, of every name and nature, to be divided among the children of my son, Benjamin Jones, equal, and the other half I give and bequeath, and to be divided equal among the children of my daughter, Julia Ann Place.” The testator’s second marriage, to Johanna Hiding, took place on the 5th day of- October, 1856, she then being a widow having children, the issue of her former marriage. On the Jth day of November, 1856, thirty-three days after the marriage, the testator executed and acknowledged a conveyance to his then wife, Johanna, wherein and whereby he quit-claimed unto her the premises described in the complaint, which conveyance contained the following language : “ To have and to hold the said released premises with the appurtenances thereunto belonging unto the said J. Hannah E„ Jones, for and during her natural lifetime, or for and as long as she shall remain the widow of the said Henry T. Jones in case of his death. And, also, the said Henry T. Jones sells, assigns and hereby sets over to the said J. Hannah E. J ones, all the household furniture to be at her disposal and use, so long as she shall remain the wife or widow of the said Henry T. Jones, and no longer.” That instrument was acknowledged, recited a consideration of $1,500, and was recorded on the 17th day of November, 1857. The testator died on the 30th day of November, 1860, and his widow, Johanna Jones, died on the 22d of October, 1888, intestate. The plaintiffs are grandchildren of the testator, being all the children of his daughter, Julia Ann Place, and his son, Benjamin Jones, and the only persons who would take as residuary legatees under the will of the testator. The defendant Amy Burlingame was a daughter of Johanna, and the defendant Miles E. Burlingame was the husband of the daughter. *At the close of the evidence the plaintiff asked “ to go the jury upon the question as to what was the intention and purpose of the testator in the devise in question upon all the facts and circumstances of the case.” Thereupon the court remarked: “ I will deny the motion to go to the jury,” and to that ruling the plaintiff took an exception. Thereupon the court observed: “I hold under that will the widow took the fee of the "Willett property, and that results in a nonsuit against the plaintiffs. Nonsuit granted.” To that ruling the plaintiff excepted. Thereupon the plaintiff’s counsel took an exception to the ruling of the court “ That it was the intention of the testator to make an absolute gift to the wife; ” in response thereto the court observed: “ I hold that he did do it; ” thereupon the plaintiff took an exception. The defendants’ motion for a nonsuit was granted, and pursuant to the direction of the court the jury rendered a verdict for the defendants.

      B. T. Wright, for the appellants.

      Kellogg <& Van Hoesen and Eugene Burlingame, for the respondents.
   Hardin, P. J.:

Interpretation of the testator’s will and a declaration of his intent, as evidenced by the language of the will, must be had in order to solve tlie question presented by tbe appeal. Respondents’ learned counsel calls our attention to a - provision of tlie Revised Statutes wliicli is as follows: “ Every grant or devise of real estate or any interest therein hereafter to be executed shall pass all the estate or interest of tlie grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied” (R. S. [8th ed.] p. 2461, § 1); and under that statute and the language of the will, contends that the testator devised in fee to the widow the house and lot in question, and calls our attention to cases which have interpreted the statute, and in which it has been declared that all the interest of the testator passed under language used unless it appear by express terms, or it was necessarily implied that a less estate was intended to pass. Among the cases referred to are Roseboom v. Roseboom (81 N. Y. 356); Campbell v. Beaumont (91 id. 464); Crain v. Wright (114 id. 307); Schult v. Moll (132 id. 122). The phraseology found in the cases referred to differs from the phraseology found in the will before us. We think the testator intended to devise only a life estate to his wife when he used tlie words: “ I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett and appurtenances thereunto belonging, together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow; her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal.” We think the words “or rather the use thereof during the period that she may live and remain my widow,” relate to and control all the antecedent language used in connection with the devise to the wife, and limited her to the use of the property during the period of her life, subject to an earlier determination if she had ceased to be his widow. Construing the words as relating to the real estate, as well as to the household furniture, they were apt and appropriate to cut down what otherwise might be a devise to her in fee. of the real estate. We think the words “ I also give to her my cow free and clear” do not aid the contention of the respondent; on the contrary, the words indicate that the testator, by the usé thereof, understood what language to use when making an absolute bequest. The contention of the appellant is somewhat aided by the clause found in the fourth provision of the will wherein the testator gives one-half of all "the rest, residue and remainder of my estate, both real and personal, of every name and. nature,” to his grandchildren. "We are, therefore, of the opinion that, upon the close of the life of the widow, her interest in the real estate ceased, and the same passed, under the residuary clause, to the grandchildren, who are the plaintiffs in this action. (Areson v. Areson, 3 Den. 458 ; Van Allen v. Mooers, 5 Barb. 110; Thomas v. Snyder, 43 Hun, 14; Crain v. Wright, 114 N. Y. 307; Matter of McClure, 136 id. 238; Tallmam, v. Tallmam, 23 N. Y. Supp. 734; Dew v. Keuhn, 64 Wis. 293.)

"We have not overlooked the argument of the respondent based upon the circumstance that in October, 1856, the testator conveyed a limited interest in the premises in question to his wife. The language then used is quite indicative of an intent on his part to vest her with only the use of the premises during her widowhood or life, and in answer to the argument which is made, that it was his intention, by the use of the language found in his will, to give her a greater interest in the real estate, it may be observed that he was jwesumed to know the law, that at that period of time a conveyance from husband to wife direct was not valid at law. (Johnson v. Rogers, 35 Hun, 207; Graham v. Van Wyck, 14 Barb. 531; Winans et al. v. Peebles et al., 32 N. Y. 423.) It is not unreasonable to suppose that he used the language in the will relating to the real estate to confirm to her a life use of the real estate.

We think that the construction of the will which obtained at the Circuit ought not to remain, and the judgment should be reversed on the exceptions, and a new trial ordered, with costs to abide the event.

MaetiN and MerwiN, JJ., concurred.

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


author: Martin, J. :

text:
    Mary Burns, as Administratrix, etc., of William Burns, Deceased, Respondent, v. James Pethcal, Appellant.

      One em/ployee liable to another for misfeasance, not for non-feasance — contributor negligence.

    In an action brought by an administratrix of a laborer to recover the damages resulting from his death, caused by the caving in of the bank of a ditch being-dug for a sewer, it was proved that the excavation had been made to such a depth at the place where the accident occurred that it became proper to shore up the sides; that on the day before the accident the defendant, who was the
    . foreman in charge of the work for the contractor building the sewer, directed the men, whose duty it was to “ curb” the sides of the ditch, to do so at this place, and also directed the men working there to go forward where the ditch was not so deep ; that the shoring or curbing was not done on that day owing to rain ; that on the next morning the defendant again directed the shoring to be done at this place, and ordered the laborers engaged in making the excavation to go forward, without specifying the place where they were to work ; that the defendant had examined the bank of the ditch, as had others, on the morning of the accident, and found no indications of weakness at any point; that the plaintiff’s intestate, who had done similar work before, began work on this sewer for the first time on the morning of the accident, and went to the point where he was injured without any direction from the defendant or any person to go to that particular spot, and began work there, although there was sufficient room for him to work where the sewer was of less depth and where he would not have been exposed to danger.
    After the plaintiff’s intestate had been working about twenty minutes the bank of the sewer caved in and caused the injuries from which he subsequently died. The defendant had no knowledge that any of the men were at work at this particular point, and experts were called who testified that in ground of the character of that surrounding- this excavation it was safe to excavate to a greater depth than had been done here without shoring, and no evidence of weakness had been shown up to this time by the banks of the ditch anywhere in this neighborhood.
    It was also proved to be the duty of the employees of defendant who were selected to do the “ curbing” or shoring, to shore up the sides of the ditch whenever any of the meij. requested them to do so.
    The negligence charged against the defendant, the foreman in charge of the work, was his failure to direct the plaintiff’s intestate not to work at the particular point where he received his injury, or in not warning him of the danger of working there.

      field, that there was no such relation existing between the plaintiff’s intestate and the defendant as authorized the bringing of this action ; that they were, in fact, co-employees;

      That a servant is not liable jointly with his master where the negligence of the servant is the omission of a duty devolved upon him purely from his employment, although he may he liable where he omits to perform a duty which rests upon him in his individual character, and one which the law imposes upon him independently of his employment;
    That the servant is in general liable for misfeasance but not for non-feasance, and that the defendant in this case was guilty only of an omission of duty devolved upon him, if at all, purely from his employment, and was not, therefore, liable in this action.

      Qucure, wdiether a plaintiff discharges the burden of showing that her intestate is free from contributory negligence wheiy she shows that he did not discover a defect which he was as well qualified and competent to discover as the defendant, and whether under the facts proved it was error to refuse the defendant’s motion for a nonsuit, and to submit the question of defendant’s negligence to the jury..
    Appeal by the defendant, James Pethcal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Broome on the 17th day of November, 1892, with notice of an intention to bring up for review on such appeal an order of the Supreme Court entered at the Broome County Special Term and Circuit on the 29th day of September, 1893, denying the defendant’s motion for a new trial.

      E&nvund O’ Oonnor, for the appellant.

      8. Mack Smith, for the respondent.
   Martin, J. :

This action was to recover damages for negligently causing the death of William Burns, the plaintiff’s husband and intestate.

In June, 1892, Edward A. Matthews was engaged in building a sewer in the city of Binghamton, under a contract between himself and the city. The sewer commenced at Leroy street, running from thence northerly to within a short distance of Main street, and was something over 1,000 feet in length. Leroy street and Seminary avenue run parallel with Main. Murray street, through which the sewer was being constructed, runs at right angles with Main. The sewer was twenty-seven feet deep at Leroy street, and as it proceeded northerly towards Main was of less depth, so that at the point where the accident occurred it was to be only about sixteen feet deep.

The accident occurred on tbe 24th of June, 1892. At that time tlié* sewer-up to a man-hole, which was about six feet south of where the accident occurred, was about sixteen feet deep. It had also been opened and partially excavated for a distance of from twenty-five to fifty feet north of the man-hole, running from a depth of eight or ten feet on a gradual ascent to the surface of the ground at the northern extremity of the opening.

On the day before the accident, Dorsey and Stone, two laborers in Matthews’ employ, who were engaged in excavating at the point where the accident occurred, were directed by the defendant, who was in the employ of Matthews as his foreman, to stop work at that point as a depth had been reached when it was proper to curb the opening. Curbing was usually put in at the depth of eight or nine feet, as plank eight feet in length were used for that purpose. Dorsey and Stone ceased work at that point, and went to work further north. Two other employees, Horton and Husted, had been selected by the contractor to do whatever curbing was necessary on the sewer, and the defendant, immediately after directing Dorsey and Stone to dig no deeper at that point, instructed Horton and Husted to curb the excavation at the place of the accident. As it. rained in the afternoon, the men left the work and did not return until the following morning. The rain commenced about an hour or an horn1 and one-half after the defendant had directed the men not to dig any deeper at that place.

The plaintiff’s intestate had worked for Matthews on another sewer which was being constructed in the city, had been engaged for four or five years previous to his death in working on the streets of various cities, and as the evidence tended to show, was a man above the average intelligence of such laborers, and for that reason had been previously selected by an inspector of the city to do work in excavating which was especially difficult. He commenced work on the Murray street sewer for the first time the morning of the accident. The defendant was there before seven o’clock, went down into the se.wer at the place where the accident occurred, examined the bank and discovered nothing to indicate any danger or weakness in it. Another laborer, who had worked at that point the day before, went into the sewer that morning at the same point to clean out the soft mud, and saw nothing to indicate danger or weakness in tbe walls of tbe ditch. After examining the sewer, and at about seven o’clock, tbe defendant set tbe men to work, takihg a . portion of them south and telling tbe rest to go forward, without directing any person to work at any particular place. Tbe defendant went south, and after placing bis men there, again directed Iiorton and ITusted to put in tbe curbing at tbe place of tbe accident, to which they replied that they would go right along. Tbe defendant then took bis book, and began taking tbe men’s time. Tbe plaintiffs intestate went north of tbe man-bole to tbe point where be was injured without any direction from tbe defendant, or any other person, to work at that point, although there was sufficient room for him to work where tbe sewer was of less depth, and where be would not have been exposed to any danger. He bad worked about twenty minutes when tbe west bank of tbe sewer caved in, and injured him so that be died tbe same day.

The defendant bad no knowledge at tbe time that Burns or any of tbe men were at work in tbe sewer at tbe point where this accident occurred. Tbe eastern bank of tbe sewer stood -firm and upright after tbe accident. Experts who were thoroughly acquainted with this kind of excavation testified that tbe east and west banks were to all appearances alike; that nothing could be discovered that would disclose any reason why tbe caving of tbe west bank occurred ; that it was regarded as entirely safe in that kind of soil to excavate to the depth of from eight to ten feet without curbing, and frequently excavations were made in such soil to tbe depth of fourteen feet without curbing. Tbe soil for a distance of fifty feet south was apparently tbe same as at tbe place of tbe accident, and the men employed upon tbe work bad been engaged in excavating there for two weeks without any evidence of weakness manifesting itself in either of the banks of tbe sewer when of the depth of eight or ten feet.

It was tbe .duty and custom of Horton and Husted, who were employed to curb tbe sewer, to do so' whenever any of tbe men requested it. Tbe excavation was about five feet wide at tbe top, and narrower at tbe bottom. Tbe soil at tbe place of tbe accident was at tbe top lightish gravel, coarse and bard; then followed a sort of loam or gravel; beneath that á lightish sand, then gravel again. Tbe stratum of sand was something over a foot in. depth. The earth bad been thrown out on the west bank except a little sand that was thrown out on the east. The plaintiff’s evidence tended to show that the season had been a rainy one. This was contradicted. There was but little conflict in the evidence given on the trial.

At tiie close of the plaintiff’s testimony the defendant moved for a nonsuit, which was denied. At the conclusion of the evidence the defendant again moved for a nonsuit, which wTas denied. To both of such rulings the defendant excepted. lie then asked the court to direct the jury to render a verdict in favor of the defendant. This request ivas also denied, and the defendant excepted. The court submitted to the jury the question whether the defendant was negligent in not notifying Burns not to go to work at the particular point where he received his injuries, and in not warning him of the danger of working there. The defendant excepted to this portion of the charge.

No question is raised on this appeal as to any of the rulings of the trial court in the admission or rejection of evidence. Nor is it claimed by the appellant that the damages are excessive if the plaintiff was entitled to recover in this action. The broad question presented for determination on this appeal is whether the defendant was liable for the injury which resulted in the death of the plaintiff’s intestate. The only theory upon wdiicli the plaintiff sought to recover in the court below, or upon which she now seeks to sustain the recovery had, is that the defendant was guilty of negligence which caused the injury resulting in the death of her intestate.

The only negligence charged by the plaintiff, or submitted to the jury by the court, as a basis for a recovery, was the omission of the defendant to direct the decedent not to go to work at the particular point where he received his injury, or in not warning him of the . danger of working there. After a careful study of the evidence in this case we find it quite difficult .to discover any actionable negligence upon the part of the defendant in this respect. The evidence shows quite conclusively that the bank where this slide occurred 'was apparently firm and that there was nothing to evince any weakness or imperfection in it, and that the defendant and other witnesses who had examined it before the injury, and afterwards, were unable to_ discover -any" indication of sueh weakness or danger. Moreover, tbe defendant bad given no directions to tbe decedent to-go to this particular place to work. It was a place be selected for bimself, and that, too, while there were other places where tbe sewer was of a less depth and where he might as well have worked if he had chosen. Under this evidence can it be said that it was sufficient to justify the submission to the jury of the question of the defendant’s negligence, or if sufficient, was there any evidence showing that the plaintiff’s intestate was free from contributory negligence ? If the danger of this accident could have been discovered by the defendant by the exercise of reasonable care, why not by the decedent, if he exercised the same degree of care ? Is it probable from the evidence that the defendant, by reason of his experience, or for any other reason, could have discovered it, when the decedent could not % Can it be that the defendant was negligent in not discovering the danger, and at the same time that the plaintiff has borne the burden of showing that her intestate was free from contributory negligence when he did not discover it, or if he did, remained at work there after such discovery ?

We do not, however, deem it necessary to determine either of these questions, as there is another ground upon which we think the judgment must be reversed.

As to the relation existing between the plaintiff’s intestate and the defendant, there can be no doubt. That they were both employees and servants of Mr. Matthews, the contractor, is established and not denied. Hence, the question is presented whether this action could be maintained by the plaintiff to recover for the death of her intestate against the defendant, who was a co-employee. This question was raised by the defendant’s motion for a nonsuit made at the close of the plaintiff’s evidence, and renewed after all the evidence in the case had. been received. One of the grounds of the motion was that there was no such relation existing between two co-employees as authorized one to bring an action against the other on the ground of negligence.

The English authorities upon the question of the liability to third persons- of a servant or agent for an act or omission performed or omitted by him, while engaged in the business of his master, are to the effect that the servant is liable for misfeasance, though the act be in obedience to the master’s order, but that for mere non-feasance or omission of duty, be is not liable to third persons, but only to the master, who alone is answerable to third persons for the servant’s neglect. (Smith’s Law of Mast. & Serv. 415, and cases cited.)

Ve think it may be safely said that the English rule prevails generally in this and other States, notwithstanding the broad declarations of some judges and text writers to the effect that a servant is liable to third persons, injured by his negligence, either alone or jointly with his master. (Murray v. Usher, 117 N. Y. 543; Blackstock v. N. Y. & E. R. R. Co., 20 id. 48, 50; Fort v. Whipple, 11 Hun, 586; Denny v. The Manhattan Co., 2 Den. 115 ; affd., 5 id. 639 ; Carey v. Rochereau, 16 Fed. Rep. 87; Delaney v. Rochereau & Co., 34 La. Ann. 1123 ; Reid v. Humber, 49 Ga. 207; Henshaw v. Noble, 7 Ohio St. 226, 231; Colvin v. Holbrook, 2 N. Y. 126; Montgomery County Bank v. Albany City Bank, 7 id. 459; Feltus v. Swan, 62 Miss. 415; Stephens v. Bacon, 7 N. J. L. 1; Labadie v. Hawley, 61 Tex. 177; Brown Paper Company v. Dean, 123 Mass. 267 ; Bell v. Josselyn, 3 Gray [Mass.], 309, 311.) The conflict in the authorities upon this question is more apparent than real. It has arisen to a great extent from a failure to observe clearly the distinction between misfeasance and non-feasance, and from an omission to point out the fact that while a servant is liable in the one case, he is not in the other. Disregarding this distinction, some judges and authors have stated in general terms that a servant is liable for his own negligence to a person injured thereby. Such a statement is inaccurate and misleading. Non-feasance is the omission of an act which a person ought to do. Misfeasance is the improper doing of an act which a person might lawfully do. If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable. While if the duty rests upon him in his individual character, and was one that the law imposed upon him independently of his agency or employment, then he is liable. . That such is the doctrine in this State, and that when applied to the ease before us, it requires us to hold that this action cannot be maintained, is rendered quite manifest, we think, by an examination of the case of Murray v. Usher (supra).

In that case an action was brought by the plaintiff as administra tor to recover damages for alleged negligence causing the death of liis intestate. The intestate was employed by the defendants Usher & Watkins as-a day laborer in their sawmill. While so employed a platform upon which lie was fell, and he received injuries causing his death. The defendant Lewis was their superintendent, having general charge of the business under their supervision, they giving directions from time to time. Lewis was instructed to look after the necessary repairs, and it was his duty to inspect the platform from time to time'so as to see that it wras kept in a safe condition. The plaintiff’s evidence tended to show that he negligently omitted to perform this duty. In delivering the opinion in that case Judge ANDREWS said : The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on him by his employers to inspect and repair the platform from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect. Lewis and the plaintiff’s intestate were co-servants of the owners of the mill, the former having the general charge and superintendence of the business under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justifies the inference that, in respect to the platform, he omitted to perform his duty. The general rule of respondeat superior charges the master with liability for the servant’s negligence in the master’s business, causing injury to third persons! They may, in general, treat the acts of the servant as the acts of the master. But the agent or servant is himself liable as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act. In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and non-feasance. For the former the servant is, in general, liable ; for the latter, not. The servant, as between himself and his master, is bound to serve him with fidelity and to perform the duties committed to him. An omission to perform them may subject third persons to harm and the master to damages. But the breach of the contract of service is a matter between the

-*- — --- master and servant alone, and- the non-feasance of tbe servant causing injury to third persons is not, in general at least, a ground for a civil action against the servant in their favor. (Lane v. Cotton, 12 Mod. 488 ; Perkins v. Smith, 1 Wils. 328 ; Bennett v. Bayes, 5 H. & N. 391; Smith’s Mast. & Serv. 216, and cases cited.) ”

The Murray case, in all its essential particulars, so closely resembles the case at bar as to make the doctrine of that case clearly applicable and decisive of the question under consideration. We are of the opinion that, as the defendant in this action was charged only with non-feasance and not with misfeasance, and as the evidence disclosed’that the defendant was guilty only of an omission of duty which devolved upon him, if at all, purely from his employment and not in his individual character, he was not, under the principle of the authorities cited, liable for the injury to the plaintiff’s intestate, and that the court erred in refusing to grant the defendant’s motion for a nonsuit.

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

HaediN, P. J., and Merwust, J.„ concurred.

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


author: Martin, J.:

text:
    Walter Walrath and Others, Appellants, v. William H. Abbott, Respondent.

      Lu/natic’s land — theterms of sale of must be obeyed by the purchaser — purchase price remains realty — heirs of the lunatic can charge the purchase price on the land.

    Keal property of a lunatic was sold under proceedings taken for that purpose, the order in which directed that a part of the purchase price should he secured hy a bond and mortgage on the property sold. This mortgage was not, in fact, given, hut the committee of the lunatic accepted a part of the amount to he secured hy the mortgage in cash, and took a third mortgage on other property to secure the balance, the purchaser stating at the time that there were two other mortgages on the property, but that he considered the one taken hy the committee to he good. Subsequently, one of the prior mortgages on this property' was foreclosed, and the lien of the mortgage assigned to the committee was cut off, and the mortgagor in this mortgage given to the committee proving to he insolvent, the security became worthless.

      Tlie lunatic having di.ed intestate, an action was brought by her only heirs at law to have the amount of the original sale, represented by the worthless mortgage, declared unpaid, to he a lien on the land sold, and to foreclose that lien. The plaintiffs tendered to the defendant, the purchaser of the lunatic’s land, the mortgage taken in part payment of the purchase money, and an assignment of it. This the defendant refused to accept; he also refused to pay the balance of the purchase price represented by this mortgage.
    On the trial the referee found that the representations of the defendant were not made with the intent of defrauding the committee ; that the mortgage was not known by the defendant to be worthless, and that it was accepted by the committee in payment of the balance then due of the purchase price of the lunatic’s real estate.
    The referee also found that the purchase price was to be considered as real estate, but refused to find that the assignment of the mortgage by the defendant to the committee was not payment of such purchase price, and that the balance thereof due and represented by the mortgage was real estate, and as such passed to the heirs at law of the lunatic.
    It was contended that under section 2339 of the Code of Civil Procedure only the committee could maintain this action, and the referee found that the plaintiffs could not maintain it.

      Held, that under section 2359 of the Code of Civil Procedure, the proceeds of the sale of real estate of an insane person remain property of the same nature as the estate or interest sold until the insanity is removed, and consequently pass to the heirs at law of the deceased lunatic, who could maintain this action;
    That there was no power in the defendant or the committee to change the manner of the payment of the purchase price of the real estate sold, except through an order of the court;
    That the defendant had knowledge of the terms of sale as directed by the court and could only discharge his liability to pay the purchase price by complying therewith, and that the committee of the lunatic could not authorize a different method of settlement;
    That the assignment of the third mortgage by the defendant to the committee of the deceased lunatic was not a payment of the defendant’s existing debt for the balance of the purchase price of the real estate;
    That as both parties to that transaction were ignorant of the insolvency of the mortgagor and the worthlessness of the mortgage, the transfer was made under a mutual mistake of fact;
    That the plaintiffs had in equity a lien upon the land sold, to the extent of the unpaid purchase price, which they could enforce by foreclosure and a sale of the property to satisfy it.
    Appeal by tlie plaintiffs, Walter "Walrath and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 13th day of August, 1893, dismissing the plaintiffs’ complaint upon the merits and for costs.

      A. II. BelVvnger and G. J. Palmer, for the appellants.

      II. Glmj Hall and George W. Smith, for the respondent.
   Martin, J.:

The purpose of this action was to establish and foreclose a vendor’s lien upon certain real estate for a portion of the purchase price.

The questions which are sought to be reviewed upon this appeal arise upon the judgment roll, which includes the summons, pleadings, the plaintiffs’ requests to find, findings of the referee and judgment. Thus, the question to be determined is whether the referee’s conclusions of law are sustained by the facts found by him.

A brief statement of the facts seems, necessary to a clear understanding of the questions involved. On May 3, 1888, Elizabeth R. Walrath, a resident of Herkimer county, was adjudged a lunatic, and Walter Walrath was duly appointed as committee of her person and property by an order of the Herkimer County Court, dated on that day. He qualified as such committee and entered upon the discharge of his duties. On the twenty-fifth day of the same month he, as such committee, instituted proceedings in the Herkimer County Court for the sale of certain real estate which belonged to the lunatic. Such proceedings were had therein that on the 1st day of August, 1888, Charles E. Teall was appointed special guardian of such lunatic, and S. W. Petrie, E'sq., was appointed a referee to inquire into the merits of the application, and to report the testimony, with his opinion thereon. Teall consented to act as such guardian, and duly qualified. Petrie qualified as referee, and took proof of the facts and reported the same to the court with his opinion thereon. The value of the real estate was reported to be the sum of $2,100. Hpon filing such report, the court made an order confirming the same, and directing Teall, as special guardian, to make a contract for the sale and conveyance of the real estate, subject to the approval of the court, for a sum not less than $2,100, and also directing the guardian to report the terms and conditions of the agreement to the court before making a conveyance.

Thereupon, and after the entry of the order, Teall, as special guardian, entered into an agreement with the defendant to sell him the premises in question for $2,100, $600 to be paid in cash upon the execution of a deed, and the remainder to be secured by a bond and mortgage payable $500 yearly witli interest, witli an option to the defendant to pay more. Afterwards, and on the 23d day of November, 1888, the special guardian reported to the court the agreement made with the defendant and the terms thereof. This report was signed and acknowledged by the special guardian, and the contract made with the defendant attached thereto. The report was ratified and confirmed by the court, and the special guardian directed in the name of and for the lunatic to execute, acknowledge and deliver a deed of said real estate to the defendant upon his complying with the terms and conditions of the agreement. On the same day the guardian executed, acknowledged and delivered to the defendant a deed of the real estate, which was recorded in Herkimer county November 26, 1888. But the defendant gave no mortgage upon such real estate to secure any part of the purchase price thereof, as by such order and agreement he was required and had agreed to do.

Prior to the 21st day of November, 1889, the defendant paid all the purchase money excepting the sum of $950. On that day it was agreed between the defendant and Walter Walrath, who was still the committee, that the portion of the purchase price then remaining unpaid might be paid by an assignment of a mortgage held by the defendant against one Nelson, and the remainder in cash. The defendant stated that he considered the mortgage good, and Walrath was satisfied to accept it for its face value,,,with accrued interest, which was twenty-three dollars and seventy-five cents. The mortgage was assigned to Walrath by the defendant, and the residue of such purchase price was paid in cash. At the time of the assignment Walrath was informed by Nelson that there were two prior mortgages which were a lien on the mortgaged premises, one for $1,000 and one for $3,500, with some intefest upon each.

The assignment of this mortgage is the only way in which it is claimed or pretended that the sum of $523.75 of the purchase money was ever paid. One of the prior mortgages was subsequently foreclosed and the property was sold, but it did not bring a sufficient sum to pay the two prior mortgages, and, hence, there was nothing to apply on the $500 mortgage thus assigned. The mortgage assigned contained a covenant by the mortgagor to pay the mortgage debt, but he was insolvent both at the time of the foreclosure and when tbe mortgage was assigned, so that nothing whatever could be realized either upon the mortgage or the covenant.

On the 23d day of March, 1890, Elizabeth R. Walrath, while still a lunatic, died intestate leaving 110 husband her surviving, but left surviving her the plaintiffs who were her only heirs at law and next of kin. Between April 18, 1890, and July 1, 1890, Abram IT. .Bel-linger, at the request of Walter Walrath, who was the committee, tendered to the defendant the Nelson mortgage, and offered to surrender the same and cancel the assignment thereof, but the defendant refused to accept the mortgage or receive the cancellation of the assignment.

About August 14, 1891, Bellinger, acting for the plaintiffs, tendered to the defendant a paper, under seal, executed by all the plaintiffs, which was in effect a reassignment of the mortgage to the defendant, and also tendered him the mortgage and demanded payment of the $500, with interest from November 21, 1889. The defendant refused to accept the paper or to pay the money demanded.

The referee found that the representations alleged in the complaint were not made by the defendant with an intent to cheat and defraud Walter Walrath, or any of the plaintiffs, and that the fraud and deceit alleged therein were not practiced by the defendant; that he did not know of or understand that the mortgage assigned was not of the . value of $523.75; that the assignment of such mortgage was accepted by Walter Walrath as a payment of $523.75 upon the purchase price of said real estate; that the balance of such purchase price was paid in cash by the defendant, and that at the time of the commencement of this action, no part of the purchase price remained unpaid. As a conclusion of law he held that the plaintiffs’ complaint should be dismissed upon the merits, with costs, and ordered judgment accordingly.

The plaintiffs requested the referee to hold that the purchase price of the premises sold to the defendant was real estate. This he held. They also requested him to hold that the balance of the purchase price, $523.75, was real estate at all times subsequent to the deed to the defendant up to the time of the death of Elizabeth R. Walrath, and that upon her death it passed as real estate to the plaintiffs as lier lieirs and next of kin; that the assignment of tbe mortgage by the defendant to "Walter Walrath as committee was not a payment of the balance of the purchase price of the premises ; that Walter Walrath as committee had no authority to release the defendant from his liability to pay the balance of the purchase price upon receiving the assignment of such mortgage; and that xqoon the death of Elizabeth R. Walrath the right to receive the balance of the purchase price of the defendant passed to the plaintiffs. The referee refused to find or hold any of these propositions, to which refusal the plaintiffs duly excepted.

The respondent contends that “ the committee was the only person who had a right to commence this action. The lunatic being-dead, the trustee took all the funds arising from the sale of the real estate, subject only to distribution, and he was the owner of the mortgage upon which the charge of fraud was made.” He cites section 2339 of the Code of Civil Procedure as sustaining this proposition. We find nothing in that section which would seem to uphold the proposition. Indeed, it is not quite clear as to what claim is intended to be made by the respondent. Assuming, however, that it was intended to challenge the right of the plaintiffs to maintain this action, the question of such right will be examined.

Independent of statute, courts have no authority to sell the real estate of a lunatic, even for the payment of his debts, although the heirs at law and next of kin consent to such sale. (Matter of Pettit, 2 Paige, 596; Matter of Hoag, 7 id. 312.) Thus, the authority to sell such real estate must be found in the statute. The statute which authorizes such a sale provides the procedure to be adopted, and to some extent declares the rights of the parties, is now-contained in title 7 of chapter 17 of the Code of Civil Procedure. An examination of that title discloses that by the provisions of section 2359 the proceeds of the sale of the real estate of an incompetent person are to be deemed property of the same nature as the estate or interest sold until the incompetency is removed. This provision is not new. It was intended as a re-enactment of the provisions of section 10 of chapter 417 of the Laws of 1864. The evident purpose of this statute, like the statutes relating to the sale of infants’ real estate, was to preserve the character of the property in reference to the statutes regulating descents and distributions. (Forman v. Marsh, 11 N. Y. 544 ; Matter of Price, 67 id. 234; Sweezy v. Thayer, 1 Duer, 286.)

The statute wliicli permits the laud of a lunatic to be sold and turned into money, under the order of court, is careful to provide that its character shall remain unchanged for the benefit of all interested therein, and is indeed but a repetition of the existing rule of equity. Hence, the sale of a lunatic’s real estate, even in partition, does not convert it into personalty, nor does taking it by condemnation proceedings. (Ford v. Livingston, 140 N. Y. 162; Cutting v. Lincoln, 9 Abb. Pr. [N. S.] 438; Ln re Barber’s Case, L. R. [17 Ch. Div.] 241; Ln re Wharton, 5 De G., M. & G. 33; Awdley v. Awdley, 2 Vern. 192.)

It follows, we think, that if any of the proceeds of the sale of the lunatic’s real property remained at the time of her death, she having then been a lunatic, its character as realty continued, and upon her death it descended to her heirs at law. If correct in this conclusion, we can see no sufficient reason why the plaintiffs, who were her heirs at law, were not the proper parties to bring this action.

Another question which arises upon this aq>peal is whether the plaintiffs were, upon the facts found, entitled to the relief sought. There can be no doubt that the real estate of the lunatic was transferred to the defendant, and that he agreed with the special guardian to pay him therefor the sum of $2,100. It is equally plain that he has not paid him $523.75 of that amount. How much of the purchase price was paid by the defendant to the special guardian does not appear in the findings of the referee. It does, however, appear that a portion of the purchase price was paid to Walter Walrath, bxit by what authority, or that there was any direction of the court to pay him that sum does not appear. Nor does it appear that Walter Walrath had any authority to receive the assignment of the Nelson mortgage in payment of the defendant’s debt. The order of the court was that $600 of the purchase price should be paid to the special guardian in cash and the balance secured by a mortgage payable $500 a year, with interest, and at the option of the defendant a greater sum might be paid. From the facts as found by the referee, we have sought in vain to discover that the defendant had any power or authority to pay any portion of the purchase price by transferring the mortgage in question to Walrath. Walrath had no power to collect the purcliase price of tbe real estate sold unless tlie court, by some order authorized him to do so, or in some way placed the debt in his hands. The court, by its order, directed the manner in which the purchase price should be paid and secured. A fair construction of that order renders it manifest that the court intended to require that the portion of the purchase price, which was not paid to the special guardian in cash when the deed was given, should be secured by the defendant’s bond and a mortgage upon the premises sold. With the provision directing that such security should be given the defendant did not comply. This provision must have been known to him, for it was a part of his agreement, and without the order containing it, the person who transferred the real estate to him would have had no powei* or authority to make such transfer. With this knowledge and with an utter disregard of the order requiring him to give his bond and a mortgage on the real estate purchased, he took the deed, and after-wards sought to pay a portion of his then existing debt by the assignment of a mortgage which was worthless.

Thus, we are called upon to determine whether, under these circumstances, the delivery and assignment of the Nelson mortgage can be regarded as a payment and consequent discharge of the defendant’s debt for that portion of the purchase price, although Walrath assumed to accept it as payment. Neither at common law nor by statute has a committee of a lunatic power to dispose of his estate without an order of the court. lie has no title to nor interest in the real estate, but is simply an agent, officer or representative of the court, and has no independent power to dispose of it in any manner whatever. (Matter of Application of Otis, 101 N. Y. 581; Pharis v. Geer, 110 id. 336.) Walrath, being at most a mere agent of the - court, had no power to discharge the defendant’s indebtedness without an actual payment. An agent has no power to discharge an indebtedness, even upon actual payment to him, unless he was authorized by his principal to receive it. (Smith v. Kidd, 68 N. Y. 130; Ritch v. Smith, 82 id. 627; Brewster v. Carnes, 103 id. 556, 564; Seymour v. Smith, 114 id. 481;. Crane v. Gruenewald, 120 id. 274; Schermerhorn v. Farley, 58 Hun, 66.)

We do not perceive how the defendant could discharge his liability to pay the purchase price by an assignment of a mortgage to Wal-rath, who was not authorized by the court to receive it. The Code (§ 2361) provides thattlie court must, bj order, direct the disposition of the proceeds of such a sale, and also direct the investment of any portion which is not needed for the safe-keeping or immediate maintenance of the lunatic or his family, .and must require a report of the disposition and investment thereof to be made as soon as practicable. In this case there was an order directing the manner in which the remainder of the purchase price not paid to the special guardian in cash should be invested or secured. This direction was wholly disregarded by the defendant, to whom it must have been known. Under these circumstances we think the defendant had no right to pay or secure the purchase money in any other manner than that provided by the order of the court, and that when he disregarded that order and attempted to pay it in another and different way, he did so at his peril.

The pretended payment was made by the assignment of a mortgage upon property on which there were two prior mortgages given to secure amounts greatly exceeding the value of the land, and the mortgagor and only person liable to pay the mortgage debt was hopelessly insolvent, so that the security given for this portion of the purchase price of the premises, or assigned in payment thereof, was valueless. It may be that the defendant was unaware of the fact that the mortgage assigned was worthless, and in the absence of any finding to. the contrary, it must be so held. If it be assumed that the defendant had no knowledge of that fact, it is quite obvious that Walrath was equally ignorant. Hence, it must he determined whether, since both of the parties were ignorant of the -worthlessness of the mortgage, a transfer of it to Walrath operated as a payment of the defendant’s precedent debt. In Roberts v. Fisher (43 N. Y. 159), where the defendants, being indebted to the plaintiff for goods sold, gave him a promissory note of a third person, which was received by him in full payment and discharge of the debt, and the maker of the note was insolvent at the time of the transfer, though the fact was unknown to the parties, it was held that the case was one of mutual mistake of fact, and that the plaintiff was entitled to recover of the defendants his original debt. The same principle was held in the cases of Thomas v. Supervisors of Westchester County (115 N. Y. 41) and Duden v. Waitzfelder (16 Hun, 337), The doctrine of these cases, as well as every principle of right and natural justice, require us to bold that the transfer of the Nelson mortgage to the committee did not operate as a payment of the defendant’s existing debt for the purchase price of the real estate in question, and that as both parties were ignorant of the insolvency of the mortgagor and the worthlessness of the mortgage, the transfer was made under a mutual mistake of fact and did not constitute a payment of any part of the purchase price.

Having thus reached the conclusion that the portion of the purchase price of the premises which was attempted to be paid by the assignment of the Nelson mortgage still remains unpaid, the only remaining question which we need consider is, whether the plaintiffs were entitled to a judgment declaring such unpaid purchase money a lien upon the premises sold, and directing a foreclosure thereof by a sale of the property to pay and satisfy it. It seems to be well settled that where a vendor delivers possession of an estate to a purchaser, without receiving the purchase money, equity gives the vendor a lien upon the land for the unpaid purchase price. This is especially so where, as in this case, there was an agreement for a mortgage. (1 Beach on Mod. Eq. Jur. § 295 ; Chase v. Peck, 21 N. Y. 581, 584; Garson v. Green, 1 Johns. Ch. 308; Warner v. Van Alstyne, 3 Paige, 513; Arnold v. Patrick, 6 id. 310 ; Hallock v. Smith, 3 Barb. 267; Hare v. Van Deusen, 32 id. 92; Dubois v. Hull, 43 id. 26; Benedict v. Benedict, 85 N. Y. 625, 626; Paynes. Wilson, 74 id. 348, 351; Stafford v. Van Rensselaer, 9 Cow. 315 ; Seymour v. McKinstry, 106 N. Y. 230.) We think the plaintiffs were entitled to the relief sought.

These considerations lead to the conclusion that the learned referee erred in holding that no part of the purchase price remained unpaid and in dismissing the plaintiff’s complaint, and hence that the judgment should be reversed.

HaRdiN, P. J., and Meewin, J., concurred.

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


text:
    Edward Meagher, Appellant, v. The Cooperstown and Charlotte Valley Railroad Company, Respondent.

      Injury to a child — what constitutes negligence on thepcm't of the father or mother— what, on the pcwt of the railroad.

    In an action brought by a father to recover the damages resulting from injuries to a child, about nineteen months old, caused by the latter’s being struck by a train while on the track of a railway, it was shown that the child was left by the father in the custody of its mother, who, while attending to her household work, assisted by her sister, sent the child into the yard, which was near the railroad of the defendant, where the mother’s sister was then at work, and that the child wandered onto the track of the defendant’s road about 190 feet distant and was injured about five minutes after leaving the house.

      Held, that the question of contributory negligence on the part of the plaintiff should have been submitted to the jury;
    That it is not negligence per se for the father of a child to leave the child in the care of its mother, nor, assuming the father to be responsible for the acts of his wife, as a matter of law, is she guilty of contributory negligence in permitting her child to go into the yard with one who is accustomed to care for it;
    That a mother is only required to exercise a reasonable degree of care, and whether she exercises such care or not is a question for the jury;
    That evidence of experts to show the distance in which a train could be stopped should be admitted, as bearing- upon the question of negligence on the part of the defendant, it being possible that had the engineer made proper efforts to do so he could have stopped the train in the distance between the place where he was when he first saw the child upon the track and the spot where the child was.

      Qucere, whether the failure of the railway company to maintain the bars of a fence at the crossing over its railroad should be considered in such a case upon the question of defendant’s negligence.
    Appeal by tlie plaintiff, Edward Meagber, from a judgment of tlie Supreme Court dismissing the complaint, entered in the office of the clerk of the county of Otsego on the 10th day of June, 1S93, with notice of an intention to bring up for review upon such appeal an ordjr denying a motion for a new trial, entered in said clerk’s office on the 9th day of June, 1893.

      W. II Johnson, for the appellant.

      E. M. Harris, for the respondent.
   Martin, J.:

This action was to recover damages which the plaintiff sustained by reason of an injury to his infant child. The. basis of the action was tbe alleged .negligence of tlie defendant. Tbe plaintiff, with bis wife and daughter, who, at tbe time of tbe accident, was about nineteen months of age, resided in a bouse in front of which there was a public highway, and in the rear was the defendant’s railroad. There was a private or farm crossing over the defendant’s road, used for the purpose' of passing from the premises occupied by the plaintiff to the other portions of the farm, of which the premises occupied by him formed a part.

The plaintiff at the time his daughter was injured was absent from his house, attending to the duties of his employment. The child was left in the care and custody of its mother, who was attending to her household work, in which she was assisted by Mrs. Smith, her sister. Mrs. Smith started to go out doors to get some kindling-wood, when the mother took the child from the chair in which she was sitting, and told her to go with her aunt, which she did. Unobserved by her aunt, and while she was engaged in splitting kindling wood, the child wandered onto the track of the defendant’s road, which was about 190 feet distant, and was injured by one of its trains. The accident occurred at or near the crossing, and within five minutes of the time when the child went out of the house.

The evidence tended to show that the defendant failed to keep its bar-way at this crossing, which formed a part of its railroad fence, in a proper state of repair; that the first and second bars from the ground had been removed, and had not been in place for a considerable period of time; that the child passed through the bar-way in going onto the track; that the train stopped at "Wilson’s Crossing, Avhich was about 2,400 feet from the place of the accident; that the train approached the crossing where the accident occurred at the speed of thirty-one miles an hour; that the crossing was plainly visible for the distance of 1,250 feet before it was reached; that the day was bright and clear, and the track in good condition; tha£ the train was light, consisting of an engine, baggage car and one coach only; that the engineer saw the child when about 600 feet from her.

At the trial the plaintiff offered to prove that Mrs. Smith had been accustomed to care for this child. This evidence was objected to, and excluded upon the theory that it was of no consequence. The plaintiff also offered to prove the distance within which such a train could be stopped, wliicli was excluded upon the. sole ground tbat it was a matter upon which expert evidence could not properly be received. To this ruling the plaintiff excepted.

At the close of the evidence the defendant moved for a nonsuit on the grounds that the plaintiff had failed to establish negligence on the part of the defendant; that the plaintiff and his wife were guilty of contributory negligence, and that the plaintiff could not maintain this action as father of the child. Thereupon the court said: “ There is only one question that you need to consider, Mr. Johnson, and that is the negligence of the plaintiff, or at least the negligence of the mother and Mrs. Smith. The testimony is in that regard, of Mrs. Smith, that the child’s mother said to Mrs. Smith: Go out with Aunt Annie.’ She did go out with Aunt Annie, and Aunt Annie commenced splitting up kindling wood from a board, and testified that she forgot about the child and did not notice that it got away from her. Now, how can you reconcile that with the absence of contributory negligence. Nonsuit granted.” To this decision the plaintiff duly excepted. The plaintiff asked to go to the jury upon the whole evidence in the case, and especially upon the question of contributory negligence and the negligence of the defendant. This was denied and the plaintiff excepted.

It is manifest that the court nonsuited the plaintiff upon the express ground that he, or rather his wife, was guilty of negligence which contributed to the injury of the child, and, hence, the plaintiff could not recover in this action. The question here presented then is, was it negligence^?’ so for the father of this child to leave it in the care and custody of its mother, or if it be admitted that he was responsible for the acts of his wife, or that the question of contributory negligence was dependent upon her conduct, then can it be held, as a matter of law, that the mother was guilty of contributory negligence in permitting her child to go into the dooryard with its aunt, who was a married woman, mature in years, and who the plaintiff offered to prove was accustomed to care for this child ? AVe think not. The child was not sni juris, and, hence, not chargeable with negligence. (Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Fallon v. Central Park, N. & E. R. R. R. Co., 64 id. 13; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104, 109.) The mother was required only to exercise sucli a degree of care as was reasonable under tlie circumstances«and in her situation. Under the evidence whether she exercised such reasonable care was a question of fact. Indeed, if the plaintiff was chargeable with the acts or omissions of Mrs. Smith, the question would still be one of fact to be submitted to the jury. (Weil v. D. D., E B. & B. R. R. Co., 119 N. Y. 147 ; Birkett v. Knickerbocker Ice Co., 110 id. 504, 507; Kunz v. City of Troy, 104 id. 344; Ames v. Broadway & Seventh Ave. R. R. Co., 56 N. Y. Super. Ct. 3.)

In the Weil case tlie plaintiff, a child two years old, was left in charge of her father in his bakery. While she was behind the counter he proceeded to make some entries in liis books, when she went out of the door and was run over by a street car. All this happened within ten or fifteen minutes after plaintiff’s mother had left her with her father. The plaintiff was nonsuited on the ground of her parents’ negligence, and it was held error, and that the father was only required to exercise such a degree of care as was reasonable in his situation and under all the circumstances, and whether he did so was a question for the jury.

.In the Birkett case it was held that it was not negligence, as a matter of law, for the parents of a bright child four and one-half years old, living in a crowded locality in a city, with no other place for amusement, to permit the child, witli proper instructions and directions against going into the street, to play upon the sidewalk without an attendant, and that whether it was negligence under the peculiar circumstances was a question of fact for the jury.

In the Kunz case it was held that it was not per se negligence on the part of a parent to permit a child non sid juris to play in the street, and that it was a question of fact for the jury to determine whether the father was guilty, of negligence.

In the Ames case a mother allowed the plaintiff, an infant five years of age, to play in a court having near and easy means of access to a street, telling her not to leave the door. The infant went into the street and was injured through the negligence of the defendant’s servant. It Avas held that the question whether or not this permission to the infant to play in the court, without continued supervision or protection against her going outside the court into the street, Avas negligence on the part of the mother, Avas properly submitted to tlie jury. Furtber illustrations of the doctrine of the cases cited may be found in the following cases: Prendegast v. N. Y. C. & H. R. R. R. Co. (58 N. Y. 652); Ihl v. Forty-second Street, etc., R. R. Co. (47 id. 317); Bahrenburgh v. Brooklyn City, H. P & P. P. R. R. Co. (56 id. 652); Mullaney v. Spence (15 Abb. Pr. [N. S.] 319); Cosgrove v. Ogden (49 N. Y. 255); Jetter v. N. Y. & H. R. R. Co. (2 Abb. Ct. App. Dec. 458); Downs v. N. Y. C. R. R. Co. (47 N. Y. 83); P., A. & M. R. R. Co. v. Pearson (72 Penn. St. 169); Walters v. C., R. I. & P. R. Co. (41 Iowa, 71); N. & P. R. R. Co. v. Ormsby (27 Gratt. 455); Baltimore City P. R. R. Co. v. McDonnell (43 Md. 534); Government Street R. R. Co. v. Hanlon (53 Ala. 70); East Saginaw City R. R. Co. v. Bohn (27 Mich. 503); Railroad Company v. Stout (17 Wall. 657); Hydraulic Works Co. v. Orr (83 Penn. St. 332); Railroad Company v. Gladmon (15 Wall. 401).

The general rule is that contributory negligence is a question of fact, and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. (Thurber v. Harlem, B., M. & F. R. R. Co., 60 N. Y. 326; Massoth v. D. & H. C. Co., 64 id. 529 ; Sauerborn v. N. Y. C. & H. R. R. R. Co., 69 Hun, 429.) We are of the opinion that under the evidence the question of contributory negligence was a question of fact, and that the trial court erred in not submitting that question to the jury.

Whether the defendant’s omission to properly maintain the bar-way at the farm crossing could be considered in this case upon the question of the defendant’s negligence is not free from doubt. In Keyser v. C. & G. T. R. R. Co. (56 Mich. 559) it was held that a railroad company’s neglect to fence its track was for the jury to consider as bearing upon its liability for an injury done to a child who got upon the track in consequence thereof. (See, also, Marcott v. Marq., Hought. & Ont. R. R. Co., 47 Mich. 9; Morrissey v. Providence & Wor. R. R. Co., 15 R. I. 271.) A contrary doctrine seems to have been held in Walkenhauer v. C., B. & Q. R. Co. (17 Fed. Rep. 136) and Fitzgerald v. St. Paul, M. & M. Ry. Co. (29 Minn. 336). But be that as it may, we think the question of the defendant’s negligence should have been submitted to the jury. Obviously, such was the opinion of the trial judge, as ho nonsuited upon the express ground of contributory negligence, and stated that it was the only question the plaintiff need discuss. As we have already seen, there was evidence that the train stopped 2,400 feet from the place of the accident; that it approached the crossing at the rate of thirty-one miles an hour; that the crossing was in plain sight for 1,250 feet; that the train was a light one, the track in good condition and the day bright, and that the engineer saw the child when 600 feet distant from her. Moreover, the plaintiff offered to prove the distance within which sxicli a train could be stopped. If this evidence had been admitted it might have shown that if the engineer had made a proper effort the train could have been stopped before reaching the child after he discovered her, and that she was too young to be conscious of the danger to which she was exposed. With this evidence in the case the question of the defendant’s negligence would be one of fact, and should be submitted to the jury. (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; Spooner v. D., L. & W. R. R. Co., 115 id. 22.) We think that that evidence was admissible and that the court erred in holding that expert evidence upon that subject could not be given. (Mott v. H. R. R. Co., 21 N. Y. Super. Ct. [8 Bosw.] 345; Eckert v. St. Louis, I. M. & S. Ry. Co., 13 Mo. App. 352; Augusta & S. R. R. Co. v. Dorsey, 68 Ga. 228, 235 ; Grimmell v. C. & N. Ry. Co., 73 Iowa, 93; Wharton on the Law of Ev., § 444.)

These views lead us to the conclusion that the judgment should be reversed and the plaintiff awarded a new trial, when all the evidence bearing upon the question of the defendant’s negligence can be presented.

HaediN,. P. J., and MeuwiN, J., concurred.

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


author: Merwin, J.:

text:
    Hawley Pettibone and Others, Appellants, v. Maria Moore, Respondent.

      A complaint demurred to assumed to be true — written offer without consideration — how withdrawn — an oral acceptance thereof, although not enforcible against the acceptor creates a valid obligation against the pcwty making the offer — Statute of Frauds.

    In determining the sufficiency of a complaint, upon the argument of a demurrer, it must he assumed that the facts stated therein, as well as such as may hy reasonable and fair intendment he implied from the allegations thereof, are true.
    A written instrument, given without consideration, which amounts to an offer, may he accepted hy acts or words before its revocation and within the time therein specified, and such acceptance constitutes a sufficient legal consideration for the engagement.
    A written offer, which specifies therein the time for its continuance, presumptively remains open for that time, and if within such time the person making such offer decides to revoke it, it is her duty to so notify the other party.
    A binding contract, enforcible in equity, may he constituted hy the proposal of one party and the acceptance of the other. If the proposal is in writing, signed hy the party to he charged, and contains all the terms of the proposed contract, a simple assent only is required of the other party, which may he verbal, and the contract as against the party signing is good within the Statute of Frauds.
    The fact that a contract, hy reason of the acceptance being verbal, may not he enforcible against the party accepting, is no defense to the party signing the same.
    Appeal by the plaintiffs, Hawley Pettibone and others, from an interlocutory judgment of the Supreme Court, entered in the office of the cleric of the county of Oneida on the 5th day of July, 1893, upon the decision of the court, rendered at the Onondaga County Special Term, sustaining the defendant’s demurrer to the complaint, with notice of an intention to review the order sustaining such demurrer.
    This action was brought for the specific performance of a written instrument which is set out in the complaint and is as follows:
    “ TeeNTON Falls, Jwie 3, 1891.
    “ This agreement,”made this 3rd June, 1891, between Maria Moore, Trenton Falls, N. Y., Oneida county, parties of the first part, and Hawley Pettibone, Hartford, Ct., and J. ”W. Jenkins, of Yernon, Oneida county, N. Y., of the second part, witnesseth:

      “ Tliat tbe part— of tlie first part for and in consideration of tlie annual rental of $1,000 and furnishing the electrical power for lighting of the two hotels and cottage and pleasure grounds adjoining of the party of the first part, for three months of each year, agrees to let to the parties of the second part, their heirs and assigns, the sole right to utilize for power purposes the falls known as Mill-dam Fall and High Falls and the water of the West Canada Creek, and right of way for the erection of suitable dam and conduit and plant and maintenance thereof to utilize said power.

      “ The parties of the second part are to protect or maintain the walks on the west bank of said creek that may be interfered with the erection of said dam. This agreement or lease is binding for six months from date. Party of the first part will give on the above terms a lease for ninety-nine years to the parties of the second part subject to payment of annual rental.
    “ MARIA MOOEE,

      “ Party of the first part.
    “HAWLEY PETTIBONE,
    “J. W. JENKINS,
    “ Parties of the second part.
    “ Witness. — O. E. Mooee.”
    It was also alleged that, after the making of the said agreement and on the strength of it, the plaintiffs expended large sums of money in the purchasing and leasing of other rights and premises near and adjoining the premises therein mentioned, and to be used in connection therewith and so as to enable the plaintiffs to use the water power of the stream leased from defendant, and that they spent much time in effecting such purchases and leases; that unless specific performance of defendant’s agreement can be had plaintiffs cannot avail themselves of the other rights acquired; that before the expiration of the agreement with defendant, the plaintiffs, being-desirous of making a lease with defendant for the term of ninety-nine years as provided in said agreement, “ made a legal tender to the defendant of the sum of $1,000, at the same time producing duplicate leases for the term of ninety-nine years from the date thereof, of the above-mentioned premises and rights, drawn in conformity with the provisions of said agreement of June 3, 1891, which said duplicate leases were duly signed by the said Pettibone
      & Jenkins, and the said defendant was requested to sign the same; that slie refused to accept the said sum of money and refused to sign said leases and still refuses so to do as plaintiffs are informed and believe.”
    The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action.

      William Kernan, for the appellants.

      Ifatteson dé DeAngeUs, for the respondent.
   Merwin, J.:

The agreement in question was not under seal, and it is not alleged that possession was taken under it. The claim of the defendant is that the instrument was simply an option for a lease and void because given without consideration.

The plaintiffs claim that the instrument should be construed to be a lease for six months with the privilege of a renewal - for ninety-nine years. It is conceded that if such is the construction, there would be a sufficient consideration to support the promise to renew. It was held at Special Term that the instrument was simply an option foil' a lease and void for want of consideration.

It is, however, claimed by the plaintiffs that, if the agreement was simply an option, it is alleged in the complaint that they elected to take it and tendered the rent for a year and a lease in duplicate, signed-by them, which they requested the defendant to sign, and that, therefore, they are entitled to enforce the agreement and have the lease. This view of the case seems to call for some further consideration.

In determining the sufficiency of the complaint, it must be assumed that the facts stated therein, as well as such as may by reasonable and fair intendment be implied from the allegations made, are true. (Milliken v. Western Union Tel. Co., 110 N. Y. 403.)

Applying this rule and treating the agreement as an offer only, its acceptance within the time of its continuance is in substance alleged and a notification thereof to the defendant. The offer standing alone was without consideration, and the defendant had a right at any time before acceptance to revoke it. The plaintiffs had the right to accept at any time before its revocation and within the time specified in it. A time having been specified for its continuance, the offer was presumptively open for that time (Mactier v. Frith, 6 Wend. 103), and if within that time the defendant desired to revoke it, it was her duty to notify the other party. (1 Chitty on Cont. [11th Am. ed.] 16.) If, before such notice, they accepted there became a completed bargain. The acceptance might be by acts as well as by words. (Fry on Spec. Perf. § 184; Waterman on Spec. Perf. 137; White v. Corlies, 46 N. Y. 467.) The vital question here is not whether there was a consideration for the offer, but whether by acceptance there became a completed bargain. If so, then the offer as accepted showed the terms of the contract and the consideration upon either side. The acceptance or assent imported an undertaking by the acceptor to do and perform all that by the terms of the contract he was required to do or perforin. (See 1 Pars, on Cont. [6th ed.] 481; 1 Chitty on Cont. 11, and note; Bos. & M. R. R. Co. v. Bartlett, 3 Cush. 224.)

In the Bartlett case (p. 227) it is said in regard to an offer to sell real estate : In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet, while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; and during the whole of that time it was an offer every instant, but as soon as it was accepted it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing, when made, was without consideration, and did not, therefore, form a contract. It was then but an offer to contract; and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was, then, the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was, then, nothing wanting in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been, made and accepted and the bargain completed at once.”

A binding contract, enforcible in equity, may be constituted by tbe proposal of one party and tbe acceptance of tbe other. (Pry on Spec. Perf. § 166.) If tbe proposal is in writing by tbe party to be charged, and contains all tbe terms of tbe proposed contract, so tbat a simple assent is only required of tbe other party, tbat assent or acceptance may be verbal, and tbe ' contract as against tbe party signing be good within tbe Statute of Frauds. (Fry on Spec. Perf. § 181; 1 Cbitty on Cont. 96; Pomeroy on Spec. Perf. §§ 76, 93 ; Waterman on Spec. Perf. § 137.)

Tbe fact tbat tbe contract, by reason of tbe acceptance being-verbal, may not be enforcible against tile plaintiffs, is no defense for tbe defendant. (Justice v. Lang, 42 N. Y. 494; Mason v. Decker, 72 id. 595.)

Tbe case of The Chicago & G. E. R. R. Co. v. Dane (43 N. Y. 240), cited by tbe counsel for defendant, is not applicable here. There tbe proposal of defendant was to transfer iron not exceeding a specified number of tons at a specified rate. The plaintiff simply assented to tbe proposal and did not specify any number of tons. Tbat left tbe arrangement indefinite and optional with plaintiff as to whether be would furnish any iron for transportation. There was, therefore, no promise, express or implied, to support tbe promise of defendant, a- 1 no consideration for defendant’s promise. It was said tbat if tbe acceptance bad been for a definite amount within tbe limit, a contract mutually obligatory would have resulted therefrom.

We are, therefore, of tbe opinion tbat upon tbe allegations of tbe , complaint tbe agreement there set out should not be deemed to be void for want of consideration. It is not claimed tbat tbe complaint in any other respect is defective.

It follows tbat tbe judgment must be reversed.

ITaediN, P. J., and MaRtiN, <7., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to tbe defendant to answer within twenty days upon payment of tbe costs of tbe demurrer and of tbe appeal.