text:
    ALONZO DUTCH, Plaintiff and Appellant, v. ABRAHAM MEAD, Defendant And Respondent.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided December 31, 1873.
    Written Instrument not Signed.—Contract.
    A written instrument, although not signed by the parties, will, if orally assented to by them, constitute the agreement between them.
    Appeal from a judgment entered on the report of a referee.
    The action, as alleged in the complaint, was to recover for work done and materials furnished in the erection of buildings for the defendant, which was alleged to be reasonably worth, etc.
    It was then alleged that before the completion of the entire work, the defendant forcibly prevented the plaintiff from going on and completing the same, and refused to receive a portion of the same.
    As a defence, it was alleged that the work was done under a special contract that the work should be completed on or before the first day of November next thereafter, with good materials and in a good and workmanlike manner; that the same was not completed by the time aforesaid, nor was it done in a good and workmanlike manner,, nor with good materials.
    The referee found as facts:
    First.—That the plaintiff and defendant, in or about the month of" June, 1870, entered into an agreement between them whereby the plaintiff undertook and agreed with the defendant to do, render, perform, and furnish the carpenters’ work, labor, and materials required necessary and proper for the erection and completion of two buildings, one on the north-east corner of Sixth Avenue and Fifty-fifth Street, and the other next adjoining the same on Fifty-fifth Street, in the city of New York, according to, and in conformity with, certain plans and specifications agreed upon between them, and exhibited by the defendant to the plaintiff, and to have the said work and materials done, rendered, furnished and completed on or before the first day of November, in the said year 1870, in a good and workmanlike manner, and of the kind, quality, and description in the said plans and specifications required, called for, or mentioned ; that for the doing, performing, furnishing, and completing of such work, labor, and materials, on or before the said first day of November, 1870, of the kinds, quantity, and quality so required, and called for by said plans and specifications, the defendant undertook and agreed to pay the plaintiff the sum of twenty-two thousand five hundred dollars.
    Second.—That the plaintiff, on or about the tenth day of June, 1870, commenced to do work and perform services' and furnish materials under said contract, but failed to complete and finish the same according to the terms of said agreement between the plaintiff and defendant by the first day of November, 1870 ; that up to the tenth day of said month of November, 1870, there was a substantial failure on the part of the plaintiff to finish and complete the said carpenters’ work and materials upon said houses ; that a very considerable portion of the work and materials required by said agreement to be done, performed, and furnished by the plaintiff to the defendant were not in conformity to the said agreement, but were very defective and inferior in quality to those required by said agreement, and were not, so far as they were supplied and furnished by the plaintiff, substantially in compliance with the said agreement.
    Third.—That the defendant, prior to the first day of November, 1870, had paid to the plaintiff various sums of money, amounting together to the sum of six thousand nine hundred dollars, on account of the moneys agreed to "be paid "by him to the plaintiff for the work, labor, services, and materials to be rendered and furnished by him under said agreement.
    Fourth.—That on or about the tenth day of November, 1870, the defendant took possession of the said buildings, and finished and completed the same in respect to the work and materials which plaintiff, by his said agreement, had undertaken to do and furnish, at a cost beyond the unpaid residue of the price which the defendant had, by said contract, agreed to pay the plaintiff for a complete performance of his said agreement.
    Fifth.—That the defendant never accepted the said work done and materials furnished by the plaintiff as done and furnished in conformity to said agreement between them.
    The referee found as conclusions of law, from the facts so found:
    First.—That the plaintiff was not entitled to recover against the defendant anything in the action.
    Second.—That the complaint should be dismissed, and that judgment should be entered herein for the defendant, and against the plaintiff, with costs.
    The plaintiff’s counsel requested the referee to find that on or before the 9th day of June, 1870, the plaintiff sent to the defendant the following communication, which defendant received, and on the same or the following day notified the plaintiff that he accepted the proposal therein contained, and the said proposal and acceptance constituted the agreement between them, under which both parties acted in the premises.
    New York, June 9th, 1870.
    Mr. A. Mead :
    Sir:—I hereby propose to furnish materials and labor required to finish the carpenters’ part of your two houses, corner of Fifty-fifth Street and Sixth Avenue, for the sum óf twenty-two thousand five hundred' dollars ($22,500).
    Painting, $900 ) These items to be
    Stairs and wainscoting, $2,100 >■ deducted from the
    Tin roofing and cornices, $1,200 ) estimate. A. D.
    Yours, etc.,
    ALONZO DUTCH,
    421, 423 West Forty-second street.
    The referee declined so to find, and the plaintiff duly excepted.
    There were other requests to find facts showing a failure by the defendant to perform; and also of an inability of the plaintiff to complete the work by reason of the acts of the defendant.
    On the trial the foregoing proposal set forth in the foregoing request was offered by the defendant in connection with certain building specifications, and the whole was received in evidence, the plaintiff objecting to the specifications. The defendant also offered a paper purporting to contain the terms of the agreement between the parties respecting the work to be done, etc., but which paper did not bear the signature of either party.
    This latter paper the referee has found contained the agreement between the parties, which was not performed by plaintiff.
    From the judgment dismissing the complaint the plaintiff appealed.

      I). M. Porter, attorney, and of counsel for appellants, urged among other things :
    The pretended agreement, on which the defence mainly depends, admitted in evidence under plaintiff’s exceptions, never had any vitality.
    (1.) It was never executed.
    (2.) The defendant never signed and never offered to sign it, nor to deliver it to the plaintiff for that purpose.
    (3.) Plaintiff was anxious to have it signed, and offered to sign it on his part, but defendant secretly took it home with him, and admits he did not choose to sign it.
    (4.) The defendant never assented to it as altered.
    (5.) Plaintiff had made a complete agreement with the defendant, and had partly performed it, before this altered agreement was made at all.
    (6.) There was, then, no mutuality and no consideration to bind the plaintiff, because defendant refused to bind himself (Wood v. Edwards, 19 Johns. 205; Tucker v. Woods, 12 Id. 190; Cook v. Oxley, 3 Term Rep. 853 ; Brown v. N. Y. Central R. R. Co., 44 N. Y. 79).
    As the entire theory of the defence and the report of the referee is mainly based upon this alleged contract, the judgment should be reversed (Collins v. Clark, 54 Barb. 184).

      Smith & Woodward, attorneys and of counsel for respondent.
   By the Court.—Monell, J.

The error of the appellant’ s counsel was in supposing that the written paper which was given in evidence could not contain or prove the agreement between the parties merely because it was never signed by them.

A contract for performing work and furnishing materials may be by parol, and need not necessarily be in writing. If the terms of the agreement are reduced to writing, and are assented to by the parties, they as effectually prove the contract as if the paper had been signed. The reducing to writing and signing a contract, is needed only when it might otherwise be affected by the statute of frauds.

The essential of all contracts is the assent of the parties ; and whether it is expressed orally or by writing signed by the parties, in either case it, except as it may or may not be affected by the statute of frauds, becomes the agreement of the parties.

The referee has found in substance as a fact, that the paper introduced in evidence, purporting to contain the terms of the contract, did in fact contain the precise agreement between the parties, and of which agreement the specifications, also given in evidence, formed a part; and if such finding is supported by the evidence, it reduces the questions between the parties to the single one of performance.

There may possibly be some conflict in the evidence as to whether the plaintiff ever assented to the terms specified in the written paper; and it may be that some of the evidence tends, at least, to establish that the plaintiff performed the work only upon the terms contained in his written estimate.

But even if that was so, the finding of the referee would not be disturbed, upon the well-established rule, that findings of fact upon disputed evidence is conclusive.

An examination, however, of the evidence satisfactorily, I think, supports the finding.

The plaintiff testified that he called on the defendant to see if he would take an estimate from him to do the carpenter’s work and furnish the materials. “He appointed a time for me to call at Ms office and get the plans and specifications, from which I made an estimate for the work and materials. I received information from my foreman to call at- Ms office about 8 o’ clock in the evening, as he wanted to see me. He told me that I was not the lowest—that there were five envelopes lying on his desk, and that-1 was one of that five; he had selected mine first of that five. I told him I was ready to ialce the contract according to plans and specifications/ he then asked me if I had any objection to go" on with the work for a few days, to give him time to prepare a contract, as he was in a hurry for some of the carpenters’ materials. The next day I asked him where he wanted the work done in such a hurry.; he said the basement window jambs, lintels, and centres. I told him it was hard to do so much work the next day; he said he must have them. I told him I would endeavor to get them ; to. make my word good I took them there next day. I then went on and furnish ed materials as required, and furnished labor. After I had been to work for a few days I asked whether he had made the contract yet; he said he had not, but. would in a few days, on going to Mr. Jardine’s office, who drew the specifications and plans. I waited a few days longer, and asked him if he had them drawn up ; he told me to go to Mr. Jardine’s office, that he had them there ; he showed me a contract in the legal form, two copies. After reading it over I stated to Mr. Jardine—I read over the contract ; it was composed of seven payments, to make the sum of my estimate $22,500—I told him the only objection I had to signing this contract was that the sixth payment required everything to be done and finished to enable me to get the sixth payment. I told him that the wording of the agreement should be altered; that there was nothing for me to do to get the seventh payment, and the two payments together was too large an amount to accept on finishing the job. I would state that Mr. Jardine said that in the third payment I would receive $4,000 when the building was ready for lathing, but he would not alter them without first consulting Mr. Mead, as they were drawn partially at his request. As soon as I again saw Mr. Mead I spoke about the contract, and told him how I wanted it; he told me he was going to Mr. Jardine’s in a few days and he would attend to it. In a few days I spoke to him again; he said he had, and told me to go there. I went to Mr. Jardine’s office; Mr. Jardine told me Mr. Mead had taken the contract home with him. When I saw Mr. Mead again I spoke to him about executing the contract. He said he did not care for the contract, but would give me all the money l wanted on a two days’ notice ; that his money was all in bonds—all he had to do was to send them down town and get the money for them ; I told him I would like to have the contract executed, as it was better for myself; something turned up and interrupted the conversation, and we separated. He stood on the opposite side of his building in Fifty-fifth Street, in company with a gentleman; I went to him again and spolce about having the contract executed. ‘You two gentlemen’ (meaning me and Mr. McLean, the mason) ‘are anxious to have the contract executed.’ He told us he would give us money on two days’ notice; he did not want to execute a contract.” He further testified that he was to furnish the materials according to the specifications.

The defendant- testified that the plaintiff made an estimate for the work and materials; “that something was said about a contract, and as to the terms; Mr. Dutch inquired how I proposed to pay, or in what amounts, as the work progressed; I told him that I would go to my architect and have a contract made out stipulating the payments ; he assented to it, and said he would call there and see for himself as to the amount; I had stated before who my architect was. I had a conversation with Dutch afterwards, and he told me he had been to Jardine’s office, and found the contract or agreement correct, except as to two payments; he said the third payment was too small, and the fifth or sixth—I am not certain which—was too large ; he said the third payment ought to be $3,000 instead of $2,000, and the fifth or sixth payment should be $4,000 instead of $5,000 ; I told him I would go and see the architect and talk it over with him; I then saw Mr. Dutch afterwards, and requested him to go and see the architect; Mr. Dutch said he was ready and would sign the papers as soon as the payments were altered from $2,000 to $3,000 for the third payment, and the fifth or sixth payment from $5,000 to $4,000, the third payment increased, and the fifth or sixth reduced. I gave instructions to the architect to alter the payments ; the third payment was altered from $2,000 to $3,000, and the sixth payment was altered from $5,000 to $4,000; these alterations were made in my presence ; I informed Mr. Dutch of such alterations ; don’t remember exact date ; I notified him since the day after the alterations ; I notified him two or three times within six or eight days.”

It appears that the only objection the plaintiff offered to the written paper was that the sixth payment was unsatisfactory. In all other respects, it abundantly appears that both parties assented to the terms specified in the written paper, and that the plaintiff worked under the plans and specifications referred to in, and annexed to, and which, it was therein agreed, should form a part of it.

The objection to the payment was afterwards removed by an alteration of the paper.

I think, looking at all the evidence, that the referee was justified in finding that the agrément was such as was contained in the written paper and specifications.

Having thus found, there was an abundance of evidence that the contract had not been substantially performed by the plaintiff. Such performance was a condition precedent to any recovery by the plaintiff (Smith v. Brady, 17 N. Y. R. 173).

But, independently of the fact that the written paper contained the terms of the agreement, the parties all agree that the work was to be done and materials supplied according to the plans and specifications. The plaintiff says so distinctly. Such specification contains the following:

‘£ Materials and Workmanship.—All materials not otherwise specified to be the best of their several kinds, and the work to be executed in a good, workmanlike manner. Any carpenter work or materials shown on-drawings and necessary to complete the buildings, although herein omitted, must be done by the contractor without extra charge.” /

The above having been assented to by both parties, would be enough to let in evidence of poor work and bad materials. And the result would be the same.

We have looked at the numerous objections to evidence, but do not find any such error as would require a reversal of the judgment.

We think it should be affirmed.

Curtis and Sedgwick, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, J.

license: Public Domain

text:
    JOHN A. SQUIRE, Administrator, etc., Plaintiff and Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendant and Appellant.
    J. Rxjn-oveb Case.—Horse-cabs.
    1. What not sufficient proof of negligence by the defendant, and of the absence of negligence on the part of the person run over, to carrry a case to the jury.

      a. Where the only evidence on the part of the plaintiff is by witnesses who did not see the deceased nor the car or horses until just at the moment that the horses and car came into contact with the deceased, who testified that the car was just turning the comer from one street into another, and going at the rate of six or seven miles ' an hour, that they heard some hallooing, and saw the driver of the car breaking it up, there is not sufficient proof of negligence by the defendant, and of the absence of negligence on the part of the deceased, to carry the case to the jury.
    3. What sufficient proof of concurring negligence to caU for a dismissal of the complaint.

      a. Where on the part of the defendant one witness testified that as the car was passing around the curve the deceased was close to the track, that the driver hallooed to him, and he tried to run out of the way, but became bewildered and ran under the horses; and another testified that when the driver hallooed the deceased was standing with his face towards the car ready to run, and he started across the track; and another testified. that the deceased was standing on the curbstone when the car came around the curve, and he started at an angle and ran ahead of the car, that he made across to head the car off and ran into the horses; which evidence was uncontradicted and unrebutted, and plaintiff introduced no evidence other than that which as above stated was insufficient to carry the case to the jury.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided December 31, 1873.
    Held,
    1. That the defect in the plaintiff’s proof had not been supplied.
    3. That the evidence established affirmatively that the death of the deceased was caused chiefly by his own negligence.
    1. Tim, although the deceased was a child of tender years.

      3. Infant, cati'e and prudence required of.

    1. The same care and prudence is required which should be exercised by one of more mature years.

      A. Evidence as to negligence by the defendant and absence of negligence on part of one injured.— What is not required, and what may be considered. 1. Direct and positive proof is not required.
    3. The facts and attending circumstances may be considered, and the jury may determine the question from them.
    3. The disposition of men to take care of themselves and keep out of difficulty may be regarded as an element tending to negative the charge of contributory negligence.
    But,
    1. A bare presumption is not sufficient; there must be some tangible proof, or the attending circumstances must be such as to show the party was not in fault: then it becomes a question for the jury.
    SI. Dismissal ■ op Complaint.
    1. Refusal to grant a motion to dismiss made on the trial when not ground for a reversal, although at the time of the refusal it was error.

      a. When the defect in the plaintiff’s case is subsequently cured in the course of the trial.
    1. Consequently although a plaintiff who sues for injuries claimed to have been sustained by him through the negligence of another is bound to show affirmatively both the negligence of the other, and also that he did not contribute by his own negligence to the injury, yet it is not necessary that such proof should be given in the first instance, it is sufficient if when the case goes to the jury it is not infirm in those respects.
    .Appeal By defendant from judgment and from order denying a motion made on the minutes for a new trial.
    The action was to recover damages for the loss of the plaintiff’s son, a lad of about eight years.
    Upon the trial the plaintiff failed, by any witness-called and examined on his behalf, to furnish any evidence of the manner in which the child got under the-horses? feet. The car was turning the curve and going-from Eighth into Lewis Street. The first that any of the plaintiff’s witnesses saw was the child under the horses’ feet. One witness testified: “The first time I saw the boy he was entangled in the harness or some place around the horses.” Another witness—“I did not see the car or horses before it came in contact with the boy. When I first saw the boy he was just behind the horses, between the horses and the wheel.” Another witness “first saw the boy under the horses’ front feet.” There was some evidence of the speed of the horses. One witness testified that they were going at the rate of six or- seven miles an hour; another, that they were-trotting at the rate of six’miles an hour. One or two of the witnesses heard some hallooing, and saw the driver of the car breaking it up. This Avas all the evidence given by the plaintiff of the accident.
    The plaintiff having rested, the defendants moved to* dismiss the complaint on the following grounds:
    1. That the plaintiff has failed to prove the cause of action. *
    2. That the plaintiff’s case fails to show that the injury to the deceased was caused solely by the defendant’s negligence.
    3. That the plaintiff has failed to show that the acts- or omissions of deceased did not concur or contribute in any degree to the accident.
    4. The complaint should be dismissed because there was no evidence that the deceased looked at all, in either direction, for approaching vehicles.

      5. It should be dismissed because it was the legal duty of the deceased to look along the street to see whether it was safe for him to have proceeded across it, and the plaintiff has given no evidence on this point.
    6. Because it was negligence on plaintiff’s part to allow the deceased to be in the public streets unattended by a person sui juris, or guardian.
    7. Because the plaintiff failed to show that the deceased was free from the imputation of negligence on his part.
    The court denied the motion to dismiss the complaint upon each and all of the grounds. To which ruling and decision of the court defendants then and there duly excepted.
    The defendants thereupon gave the following evidence. One witness testified: “I was a passenger on the car; it was going at the regular rate; the horses were on a trot; they were trotting when I first saw the boy; he was then about three feet from the track ; the driver hallooed to him to get out of the way, and he tried to run out of the way, but he became so bewildered that he ran into the horses ; the boy, when I first saw him, was between the east track in Lewis Street and the sidewalk, trying to cross the street; my attention was first attracted by the driver hallooing to the boy; I looked and saw the boy trying to cross the track, when the driver hallooed to him, and in thus trying to get out of the way he got so frightened that he ran in towards the horses, and they knocked him down.” Another witness testified: “I was standing on my own stoop, which fronts on Lewis Street"; I was looking towards the river ; I saw the boy making a start to run across the track, and the car was coming around the curve; I heard the driver cry—heard the driver cry first and then saw the boy; when I first saw the boy he was standing with his face towards me, ready to ran. If this passage-way was Lewis Street, and here the sidewalk, I would "be standing here, and the "boy was coming around here, with his face towards me. I had no opportunity to see whether he looked in any direction or not; I mean that I did not see, for when I saw him the sight left my eyes. He started to run across the track; the next thing I saw was the driver pulling his "brake; then I gave one scream and ran into the house; and" when I came out again the "boy was laid on the cellar door. The last I saw of him was when he started to run; did not see him hit; cannot say where he was standing when he started to run. He was coming from the dock ; he was on the sidewalk; I could not tell how far from the curb; he was not far from it, still "back from it on the sidewalk. That was after I heard the driver call. When I first saw the car it was going around the curve; the horses were not on the curve; the car was on the curve; the horses when going around the curve were walking like.” Another testified: "I saw the Tboy on that morning. The first I saw of him he was standing on the curbstone. I saw him, start at an angle and run ahead of the car. The car was going around the curve into Lewis Street, and he made across to head the car off, and the driver hallooed to him; when I first saw the "boy the car was turning the curve ; the "boy stood here and started at an angle to run ahead of the car. When the driver saw him start he hallooed out at him; and the "boy, when the driver hallooed at him, ran into the horses and fell. I think there is room for a horse and wagon to drive "between the track and the curb at that point.
    " After the "boy started to run I did not see him until he was taken from under the car; saw him run into the horses and the horses strike him, and then I lost si ght of him. ’ ’ Another testified: " The first thing I saw was the "boy standing on the corner of Eighth and Lewis streets; I had my head through the window of the car ; I was leaning on the car; I saw him through the east side window ; he was not standing still; he was running ahead of the horses when the driver hallooed, then he turned and ran into the horses ; before the driver hallooed he was running ahead of the horses; he wanted to get ahead of the car; he was running alongside of the horses, trying to cross them; all I can say is that he was running alongside of the horses or a little ahead of them, the same way they were going when the driver hallooed to him, then he became frightened, and turned and ran into the horses.” The defendant also gave evidence that the car was going at the usual rate of speed. At the close of the evidence, the defendant’s counsel renewed the motion to dismiss the complaint on the grounds already stated, and on the following additional grounds:
    1. That plaintiff has faffed by his proofs to make out a cause of action.
    ' 2. That no negligence has been shown on the part of the defendant.
    3. That the deceased has not been shown to be free from negligence, contributing to the accident.
    4. That the deceased was guilty of negligence contributing to the accident.
    The court denied the motion to dismiss the complaint on each of the grounds aforesaid, to which ruling and decision defendant, by its counsel, then and there duly excepted.
    The court submitted the question of concurring negligence to the jury, charging them that an infant was held to the exercise of the same care as an adult.
    The plaintiff had a verdict.
    A motion was made upon the judge’s minutes for a new trial, which was denied.
    The defendant appealed.

      Brown, Hall, & Vanderpoel, attorneys, and A. Oakey Hall, of counsel for appellant, urged:
    First Point. The complaint should have been dismissed at the close of the plaintiff’s testimony, or a verdict directed for the defendant at the close of the case, for the reason that no negligence was shown on the part, of the defendant.
    The mere fact that an accident has occurred is not sufficient to establish even prima facie the negligence of a railroad company in the case of one not a passenger (Terry v. N. Y. Central R. R. Co., 22 Barb. 574).
    Second Point. The complaint should have been dismissed on the close of plaintiff’s case, because, as the court will perceive by the facts, it utterly failed to show, as an affirmative part of the case, that the plaintiff did not contribute towards the accident.
    1. The plaintiff’s facts were utterly silent as to what the boy did before he was seen struggling with or under the horses’ feet.
    This burden of proof was upon the plaintiff (Button v. The H. R. R. Co., 18 N. Y. 248, citing many cases ; Welling v. Judge, 40 Barb. 193; Lehman v. City of Brooklyn, 29 Barb. 234; Delafield v. Union Ferry Co., 10 Bosw. 216 ; Gonzales v. N. Y. & R. R. Co., 38 N. Y. 440. See also, Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Ryan v. Hudson River R. R., 33 Superior Ct. 137; Ernst v. Hudson River R. R. Co., 24 How. Pr. 103).
    Third Point. At all events, on defendant’s supplemental evidence showing the relation of the boy to the accident before it occurred, and on the undisputed facts,' there should have been a verdict directed for the defendant.
    1. These supplemental facts distinctly showed that the boy was guilty of contributory negligence.
    The greatest negligence on the part of the defendant will not cure the defect of the least negligence contribuíing to the injury on the plaintiff’s part (Wilds v. The H. R. R. Co., 24 N. Y. 430).
    To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant (Johnson v. The H. R. R. Co., 20 N. Y. 73).
    Fourth Point. The complaint should have been dismissed, and on the whole testimony a verdict directed for the defendant, because the plaintiff was bound to show that the deceased looked with proper caution to the approaching railroad car (Barker v. Savage, 45 N. Y. 191; Ernst v. The H. R. R. Co., 24 How. 97 ; Nicholson v. The H. R. R. Co., 41 N. Y. 542 ; Baxter v. Troy & Boston Co., id. 502; Harty v. Central Co. of N. J., 42 N. Y. 472 ; Griffen v. N. Y. C. R. R. 40 N. Y. 34 ; Wilcox v. The Rome, etc., R. R. Co., 39 N. Y. 350; Wilds v. Hudson River R. R. Co., 29 N. Y. 315).
    Fifth Point. Whether or not the plaintiff’s intestate was sui juris was a question of fact for the jury. If they had found that he was not, ‘ ‘ or not of that age and intelligence that it was safe to trust him in the street unattended,” then it was clearly negligence to send him into the street as his father did (Drew v. Sixth Av. R. R. Co., 26 N. Y. 49 ; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 459, 462, and cases there cited).

      Robert Murray, attorney, and S. T. Friend, of counsel for respondent, urged:

      First. The defendant’ s motions to dismiss the complaint were properly denied.

    The questions of negligence on the part of the defendants and of contributive negligence on the part of the deceased should have been submitted to the jury, and a refusal so to submit them would have been error.

      a. As to the defendant’s negligence: it was for the jury to determine the rate of speed at which the defendant’s car was running round this curve—and there was evidence tending to show that it must have been running even faster than at the rate of six or seven miles an hour. And it was for them to determine whether or not it was negligence on the part of the defendant’s servants, who had the control and management of their car,- to run it at such a speed, in such a place, and, thus running it, to shout to an approaching pedestrian, whether man or boy, to get out of the way, before he was in it. And it was for them to determine whether or not these agents of the defendant, in thus running this car around this curve, used proper care and diligence in looking out for such persons as might be endangered by its sudden and rapid apprpach. And it was for them to determine whether or not these agents of the defendant used proper care and diligence in stopping the car when they saw this boy stricken down by the horses and being trampled under their feet.
    5. As to the question of contributivo negligence:
    1. If there was no direct evidence showing affirmatively that the deceased did use the ordinary and proper care and caution required of him, in order to maintain this action; yet from all the surrounding facts and circumstances, in connection with the usual habits, conduct, and motives of men, the jury might infer the exercise of such care and caution. The absence of contributive negligence must indeed be proven. But “ the circumstances may show, without other evidence, that there was no contributing negligence on the part of the injured party” (Warner v. The N. Y. Cen. R. R. Co., 44 N.Y. 466, 471; Johnson v. Hud. R. R. R. Co., 20 N. Y. 66, 70, 71, 73).

      2. But in this case there is direct evidence showing affirmatively that the deceased did riot contribute, by any negligence on his part, towards the accident, which cost him his life. The defendant’s own witness testifies that he, the deceased, was outside the track as this car came dashing towards him, and the driver hallooed to him to get out of the way; and that thereupon he tried to get out of the way, but was frightened by the shouts of the driver, and so frightened and bewildered that he ran towards, instead of from the horses.

      c. In cases of this kind the general and almost invariable rule is that these questions of negligence must be left to the jury (Ernst v. Hud. R. R. R. Co., 35 N. Y. 9, 38, 40 ; Ireland v. Oswego R. R. Co., 13 N. Y. 526, 533 ; Sheridan v. Brooklyn and N. R. R. Co., 36 N. Y. 39, 43; Keller v. N. Y. Cen. R. R. Co., 24 How. 172, 176, 182).

      Second. The defendant’s counsel requested the court to charge “that if the jury should find that the deceased was not sui juris, or not of that age and intelligence that-it was safe to trust him. in the streets unattended, then it was negligence on the part of the plaintiff to send the deceased into the streets as he did, and the verdict must be for the defendant.” The court refused so to charge, and the defendant excepted. This refusal to charge was not error.
    Whatever might have been the age or intelligence of the deceased—eight years, or one; sui juris or not—so long as Tie actually did, whether by intention or accident, exercise proper and sufficient care, his father’s negligence cannot be imputed to him (Ihl v. 42d St. R. R., 47 N. Y. 316).

      Third. The court also charged the jury as follows : “ But there is another contingency which you must “look at. Suppose, gentlemen, the boy was standing “two feet, three feet, or on the curb by the side of the “rails, and suppose at that time the car was going at an “imprudent rate of speed; then suppose that the cry “ of the driver (if he made a cry at that time,) in connection with the rate of speed, at which the horses were “going, was such that a person of ordinary prudence “would be disturbed by it, his calmness of mind destroyed ; and that as a matter of fact the fright or be“wilderment of the boy (treating him as a man of ordi- ‘ ‘ nary prudence) was such that it caused him to run “upon the track; in that case, although you find that “the act of the boy contributed to the accident or in“jury which afterwards occurred, you will find a ver- “ diet for the plaintiff.”
    To this portion of the charge the defendant excepted. It was, however, manifestly just and proper (Ernst v. Hud. R. R. Co., 35 N. Y. 9; Corelton v. Am. Mer. Union Ins. Co., 5 Lansing, 7).

      Fourth. The amount of the verdict was not excessive (Coleman v. Southwick, 9 John. 43 ; Whipple v. Cumb. Man. Co., 2 Story, 661; Higgin v. Coffin, 3 Story, 1; Thurston v. Martin, 5 Mason, 197; Wooster v. Proprietors, etc., 6 Licit. 547; Metz v. Second Av. R. R. Co. 2 Robt. 357; Filley v. Hud. R. R. R., 29 N. Y. 252).
   By the Court.—Monell, J.

It is entirely clear, I think, that when the plaintiff rested his case, there was •not sufficient evidence either of the negligence of the defendant, or of an absence of concurring negligence on the part of the child, to have warranted a verdict in his favor. He had not given any evidence of the manner in Avhich the accident occurred. Hone of his witnesses saw the boy until he was under the horses’ feet or beneath the car. How he came there did not appear; whether by sheer recklessness of his own, or how otherwise, none of the witnesses could or did say. All or some of the circumstances and facts which should have been shown to satisfy the law that the boy had not contributed by his own fault to the accident, were omitted; and it was left, I think, wholly to conjecture whether he was or was not in fault. Certainly there was no affirmative proof which would have authorized the jury at that stage of the case, in finding that the boy was free from fault.

Again, when the motion was made there was no sufficient proof of any negligence of the defendants. The evidence was, that the car was turning into a street; going ■at its usual rate of speed, and the boy first seen under the horses’ feet. It did not appear that he was or could have been seen by the driver or conductor, or that by the exercise of any care the misfortune might have been averted. Indeed, I think the case was quite destitute of satisfactory evidence to excuse the boy or to •charge the defendant, and had the learned judge granted the motion we would have felt constrained to have sustained his judgment. But his denial of the motion . raises another and different question.

It is claimed by the respondent that although the plaintiff’s evidence may have failed to come up to the standard of proof required, yet inasmuch as the defect was afterwards supplied, the exception is unavailing. That is undoubtedly so; and the court will not disturb a verdict on the ground of insufficiency of proof, when a motion to non-suit was made, if the deficiency is afterwards supplied (Kent v. Harcourt, 33 Barb. 491; Schenectady & S. P. R. Co. v. Thatcher, 11 N. Y. R. 102). It becomes necessary, therefore, to see whether such deficiency was afterwards supplied.

The principle which requires a plaintiff to establish affirmatively that he did not contribute by his own fault to the injury, does not render it necessary that such proof should be given in the first instance ; but it will be sufficient if when the case goes to the jury it is not infirm in that respect.

And if from the whole of the evidence the jury can be satisfied there was no contributive negligence, their verdict will be upheld.

This deduction was made from the cases in Williams v. O’Keefe, (9 Bosw. 536, 538, affirmed by the Court of Appeals), and the rule has not since been changed.

Nor need the proof be direct and positive. The jury may look at the facts and attending circumstances, and determine from them the question (Warner v. N. Y. Central R. R. Co., 44 N. Y. R. 465, 481); and in one case (Johnson v. Hudson R. R. Co., 20 N. Y. R. 71) the court say the jury may regard the disposition of men to take care of themselves and keep out of difficulty as an element tending to negative the charge of contributive negligence.

A bare presumption is not sufficient (Button v. Hudson R. R. R. Co., 18 N. Y. R. 248). There must be some tangible proof, or the attending circumstances must be such as to show the party was not in fault. Then it becomes a question for the jury.

The motion for a non-suit was renewed at the close of all of the evidence, on the ground that the deficiency in the plaintiff’s case had not been supplied; in other words, that it had not been shown that the deceased was free from contributive negligence. And whether we look at it in the light of an exception to the refusal to non-suit.on■ that ground, or as a motion founded on the weight of the whole evidence, the result will be the same. There was sufficient evidence of contributive negligence to prevent a recovery.

This decision is not put upon the ground that the burthen being upon the plaintiff, he had failed to furnish sufficient affirmative evidence exculpating the deceased from fault; but upon the ground that the defendants have abundantly proved that the deceased was in fault; and that to his own misconduct may justly be attributed his death.

The court correctly charged that an infant, even of the tender age of the deceased, was to be held to the same degree of care and prudence that should be exercised by one of more mature years.

How, applying that rule to this case, what does the evidence disclose % Why, that as the car was passing around the curve the boy was close to the track (one witness says within three feet); the driver hallooed to him ; he tried to run out of the way, became bewildered, and ran under the horses. Another testified that when the driver hallooed the deceased was standing with his face towards the car ready to run,—he started across the track. Another said the boy was standing on the curbstone when the car came around the curve; he started at an angle and ran ahead of the car ; he made across to head the car off, and he ran into the horses.

This evidence was furnished by the defendants, and. no further evidence was furnished by the plaintiff, and from it, it must be seen, I think, that not only does it fail to supply the defect in the latter’s case, but that it establishes, affirmatively, that the death of the child was chiefly attributable to his own imprudence.

Is it probable, looking at the occurrence as we now must in the light of all the evidence, that this great misfortune would have happened, had that degree of care been observed that is ordinarily practised by a prudent person ? Even ignoring all or most of those rules which require persons crossing tracks of railroads to use their faculties, to look about them and to listen, we yet find .the conclusion almost forced upon us that the deceased recklessly attempted to cross the street in front of the car horses, and then it was that he became bewildered.

All this could be excused were it not for the inflexible rule of law'that holds an infant to the same prudence as is required of an adult. A youth might not be able to discover impending danger as readily or as surely as could one of mature age, and so he might take greater risks and make bolder dashes, feeling secure and confident in his ability to escape. But the law makes no exceptions ór distinctions. If any of the acts would be characterized as reckless or careless in a person of ordinary prudence, they must be so characterized in a person even of the tender age of the plaintiff’s child.

In looking at all the evidence in this case, and giving to it, as well as to all surrounding circumstances, a view most favorable to the plaintiff, I cannot avoid the conclusion that it establishes such a want of care on the part of the deceased as should have procured a different result at the hands of the jury, whose large if not excessive verdict would seem to indicate a bias and prejudice against the defendant, rather than a just conclusion from the evidence.

The result I have reached has rendered it unnecessary to examine the evidence (if any there is) bearing upon the defendant’s negligence. It is sufficient that there was contributory negligence on the part of the deceased, and for that reason I am of the opinion that the defendant’ s motion to dismiss the complaint ought to have been granted.

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

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


text:
    CHARLES D. EVANS, Plaintiff and Respondent, v. CHARLES H. KALBFLEISCH et el., Executors, etc., Defendants and Appellants.
    1, Complaint, when it does not contain two Causes op Action—one on Special Contract, and one on a Quantum Meruit.
    1. A complaint which avers that defendant employed plaintiff to perform certain services, and agreed to pay a certain sum therefor, and then sets forth a particular statement of the services performed, and concludes with an averment that the said services were reasonably and fairly worth a certain sum (such sum being the same amount which it had previously been averred the defendant agreed to pay), there being no separate statement of two causes of action, contains but one ccmse of action, and that is a cause of action on the special agreement.

      Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided Dec. 31, 1873.
    II. Befebehce.
    1. When a compulsory reference of all the issues in am, action, cannot be ordered.

    I. When any one of the issues is such that the party has the right to a trial by jury thereon.
    As aU the causes of action stated in the complaint must be referable to authorize the court to compulsorily refer the action, if part or one only is referable, the court cannot refer the others.
    But, Semble—
    If the referable issues should ever require examination, reference can be ordered as to them after the tsial of the other issues.

    2. Proof of the examination of a long account being involved, what not sufficimt to authorize a compulsory reference.

      1. A mere affidavit that the trial will involve the examination of some fifty items of account, is not sufficient.
    III. Application of above principles.
    1. An order ofreference made upon the above complaint, and an affidavit that the trial would involve the examination of some fifty items of account, was reversed.

    1. Because the complaint contained but one cause of action, viz., one on a special agreement to pay a certain specified sum, which cause of action was not referable.
    2. Even if it contained two causes of action, one on the special agreement and one on the quantum meruit yet it was not referable, for two reasons :
    1. Because the cause of action on the special agreement was not referable.
    2. Because the proof that the examination of a long account was involved, was insufficient.
    Appeal by defendant from an‘order of reference.
    The complaint alleges that the plaintiff was employed and retained by the defendants’ testator to render, and that he did render, services for'such testator as his attorney and counsel, and in preparing and procuring testimony in a suit expected to be brought, and which afterwards was brought, against such testator.

      It further alleges “that the price agreed upon to be paid this plaintiff by said Kalbfleisch, for said services-so to be rendered, was the sum of five thousand dollars, and he, said Kalbfleisch, to pay all incidental disbursements.”
    Then follows a particular statement of the services-performed, and concludes:
    “And that the said services so rendered said Kalbfleisch were reasonably and fairly worth the sum of five thousand dollars.”
    jSTo claim is made for any “incidental disbursements.”
    The defendants admitted the performance of some-services, but alleged that the charges made therefor were excessive.
    They denied the alleged agreement, and averred payment in full by the testator in his lifetime.
    Upon the pleadings and a mere affidavit “that the trial would involve the examination of some fifty items of account,” the court ordered a reference to hear and determine the issues against the objection of the defendants.
    The defendants appealed.

      Edgar M. Cullen, attorney, and of counsel for appellants, urged.

      I. The action, it is true, is upon contract for the payment of a specified sum of money—five thousand dollars —no claim being made whatever for any item of disbursements. This special contract is denied by the defendants, and this raises the issue to be determined. The right of parties to a jury trial in cases on contract, where the examination of a long account is not involved, is just as absolute as in cases of -tort. And it is difficult to imagine a case in which the right of a jury trial on the existence of a specific contract is more palpable than the case at bar. The plaintiff s affidavit alleges the trial will involve the examination of a long account; "but this is specifically denied "by defendant’s affidavit. And the question is to be determined on the pleadings not on the affidavits (Kean v. Deland, 11 Abb. 34).
    The court must see, from the pleadings and affidavits, that a long account must, necessarily, be examined (Wheeler v. Falconer, 7 Robertson, 48.)
    II. It is submitted that, even were this action on a ■quantum, meruit, it would not be a proper case for a reference. It does not involve an account. In Haught v. Holcomb (16 Howard, 173), Gould, Justice, says: The client has a right to have the controversy between him and his attorney, as to the value of the latter’’ s services, settled by a jury.

      Charles S. Gage, attorney, and Charles I). Moans in person, for respondent, urged:
    I. The court has a right to compel a reference, where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to decide the whole issue (§ 271 of Code of Procedure, subdivision 1; Atocha v. Garsia, 15 Abb. 303 ; Mills v. Thursby, 11 How. Pr. 113.)
    II. The trial of all the issues in this action will necessarily involve the examination of a long account, because
    A. A long account is not necessarily a debit and credit account between the parties, but on the contrary items of work done, or even damage sustained by a party to the action, consisting of a great number of items, would constitute such account.
    In fact the above section of the Code mentions an account on either side.

    Items of damage or loss sustained by fire by assured on an action under policy have been held to involve ex.amination of long account (see Samble v. Insurance Co., 1 Hall, 560; Batcheler v. Albany City Insurance Co., 6
      Abbott, N. S. 240; Masterson v. Hurell, 10 Abb. 118 Atocha v. Garsia, 15 Abb. 303 ; Hatch v. Wolff, 30 How. 65 ; 1. Abb. N. S. 77).
    B. The pleadings and affidavit on part of plaintiff on which motion is founded, show conclusively that there were some fifty consultations, and that the plaintiff on many times and occasions procured various items of testimony, and introduced him to the witnesses.
    And the fifty consultations are alleged in addition to any contract, and compensation is asked as to that on the quantum meruit.

    0. If the plaintiff fails to establish the contract alleged, viz., that the defendant agreed to pay $5,000 for his services, all these items under both counts of the complaint will have to be proved, to enable plaintiff to recover on a quantum meruit.

    And if plaintiff succeeds in proving such alleged contract, plaintiff will still have to prove that he performed all the services as alleged, before he would be entitled to recover on or enforce the same. It is a part of the most important issue of the pleadings.
    The answer denies the amount, value, and duration of such services.
    III. Where courts have refused to refer in consequence of there being collateral issues to be tried, itwasa matter purely in their discretion, because the court by section 271 may refer the whole issue in the action where an issue only requires an examination of such an account (§ 271, Code; see all the cases noted).
    IV. There is no collateral issue to be tried first or at any time in this action.
    V. The reference will be ordered where it appears that the trial of any one of the issues will involve examination of long account, although the determination of some other issue may render it unnecessary to try the-first-named issue at all (Batcheler v. Insurance Co., 6 Abb. N. S. 240, Superior Court, General Term; Mills v.
      Thursby, 11 How. 113; Lewis v. Insurance Co., 15 Abb. 303, note).
    VI. If there is any evidence before the court below that the examination of a long account will be required, and if uncontradicted, or if there is a conflict, then determination of court below must be held conclusive and final (Batcheler v. Insurance, ante).

    VII. Whether the who]e of the issue shall be referred or the taking of the account merely, or whether the account shall be taken before the trial of other issues or after, are in the discretion of the court at a special or a trial term (Ibid; Holmes v. Bennett, 28 How. P. R. 289). .
    VIII. This order is therefore not appealable (Dean v. Empire State Insurance Company, 9 How. P. R. 69 ; Smith v. Dodd, 3 E. D. Smith, 348, 1 C. R. N. S., 334; Hatch v. Wolff, ante; Bryan n. Brennan, 7 How. 359 ; Ubsdell v. Root, 7 Hill, 173 ; Kennedy v. Hilton, 1 Hilton, 546).
   By the Court.—Monell, J.

I am satisfied there is but one cause of action alleged in the complaint, namely, an agreement to pay five thousand dollars. After alleging the employment and performance of the services, it is averred that the price “ agreed upo,n ” by the defendants’ testator for such services, “so to be rendered,” was the sum of five thousand dollars. The subsequent allegation, that the services so rendered were reasonably worth the sum of five thousand dollars, is not a statement of another and different cause of action.

A plaintiff may unite a cause of action upon a special contract, with á cause of action arising upon what was formerly denominated a quantum meruit. But they must be separately stated (Code, § 167), and must each contain a statement of facts sufficient to constitute the alleged separate cause of action.

In the complaint in this action there is no such compliance with the provision of law referred to. The alleged quantum meruit is but a mere continuation of the preceding averments appertaining to the special contract, and is not in any proper sense the allegation,, of a separate and different cause of action. Taken by itself, as it must be, it does not contain facts sufficient to constitute a cause of action ; and it must, therefore, to be available at all, have relation to the preceding matter.

This, I think, is the correct construction of the pleading. It contains a statement of facts constituting a cause of action arising upon a special contract, and not of facts sufficient to constitute any other or different cause of action.

Such an action the court has not the power to refer.

The trial would not require the examination of a long account. x

Proof of the special contract would authorize a recovery, although proof of performance by the plaintiff of the services rendered plight be necessary.

In this view the order of reference was improperly granted.

But assuming, as was doubtless assumed by the learned judge at Special Term, that the complaint contains a statement of facts sufficient to constitute a cause of action upon a quantum meruit, as well as upon the special contract, is the case then referable ?

Recent adjudications by the court of last resort have very much disturbed, if they have not reversed, many decisions of this and other courts, sustaining the power of the court to make compulsory references in certain cases. In Whitaker v. Desfosse (7 Bosw. 678), this court held that if any of the issues required the examination of a long account, the action was referable. The same view was substantially held'in Goodyear v. Brocks (4 Robt. 682), and was affirmed in Batchelor v. The Albany City Insurance Co. (1 Sweeny, 346), where the cases are carefully collected and reviewed.

The principle affirmed in those cases was to the effect that if any one of the issues made by the complaint or answer would, standing by itself, have been referable, then the court had power to refer all the issues; in other words, refer the whole action, notwithstanding some of the other issues would not, .standing by themselves, have been referable.

But in the recent case of Townsend v. Hendricks (40 How. Pr. R. 143), the Court of Appeals have affirmed, I think, a different rule, and have denied in effect the power of the court to refer any action where any of the issues were such that the party had the right of trial by a jury. In that case the complaint alleged a cause of action in tori, and the defence was in part a counterclaim, which by itself would have been referable. But the court held that a party could not be deprived of the right of trial by jury in any of the cases when such right is preserved by the constitution.

The action in that case was not upon contract, but was for a tort, and the court recognizing it as among those in which a “trial by jury has been heretofore used,” has declared that the court could not refer it, notwithstanding the counter-claim, which was legitimately set up, would otherwise have been referable..

It may be that the court did not intend to go any farther than the facts in that case required, and only to hold that if the plaintiff’s cause of action was among those which were heretofore triable by jury, neither of the parties to the action could be deprived of such right, although other issues in the case might otherwise have made the whole action referable.

But it seems to me to follow, necessarily, that where there are several consistent causes of action united in one complaint, some of which the parties have a right to be tried by a jury, and others of which may be referable, the court cannot make a general reference of the action against the consent of the parties. If it was otherwise, a plaintiff, by merely inserting an additional but referable cause of action in his complaint, could always deprive his adversary of trial by jury in any case of contract, which by itself would be a violation of a constitutional right.

The principle, therefore, to be deduced from the decision referred to is that all the causes of actiou stated in the complaint must be referable. If part or one only is referable, the court cannot refer the others, but as was said in Townsend v. Hendricks (supra), if such referable issues should ever require examination, a reference can be ordered as to them after the trial of the other issues.

In the later case of Kain v. Delano (11 Abb. N. S. 29), the power to refer is restricted, even in actions arising on contract, to cases where the court can see,, from the proofs before it, that the examination of a long-account will be required. In that case there was an affidavit that the trial would require the examination of a long account, involving very numerous items of charges and credits amounting to many thousand dollars, and extending over several years. This proof, the court held, was not sufficient to authorize a reference.

Applying the force of that decision to the case under consideration, it would dispose of the latter upon the same ground. The proofs before the Special Term were wholly insufficient to enable the court to determine whether the trial would require the examination of a long account in any aspect of the case. There is nothing in the complaint or answer, from which it can be seen that any account will require examination; and the affidavit, which states merely that the trial will involve the examination of some fifty items of account, upon the authority of Kain v. Delano (supra), is not enough.

Upon all of these grounds stated, namely : first, that there is hut one cause of action; second, assuming there are two, one is not referable, and third, the insufficiency of the proof that the trial will require the examination of a long account; I am of opinion the reference in this case was improperly ordered.

The order should he reversed, with costs.

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


text:
    SARAH H. HAZEWELL, Plaintiff, v. GERSHON H. COURSEN, Defendant.
    I. Husband and Wife.
    1. Property (personal) of the wife, when, it becomes property of thehusband, cmd when not.

      a. Personal property of the wife reduced to actual possession by the husband prior to the Married Women’s Acts of 1848 and 1849, becomes his property.

      b. Personal property, e. g., money acquired by the wife after these acts, is her separate property.
    1. Husband Debtor to Wife.
    (a.) If such money goes into the hands of the husband, he becomes her debtor, unless a gift of it by her to him is shown,
    (d.) So AX SO he may recognize as a debt any money received by him from his wife, and liquidate such indebtedness by a transfer of property belonging to him, when the right of creditors is not concerned.
    1. As to what the right of creditors may be is not considered or decided.

    3. Contracts and Transfers.
    I. Where a husband takes a contract for the sale of lands in his own name, but for the benefit of his wife, the cash payments required by the contract being made with money of the wife, either by her directly, or indirectly through her husband, the contract becomes hers in equity.
    3. Transfer by Husband.

      a. Even if the husband advanced the payments from his own resources, yet he may recognize as a debt any money received by him from his wife, and a 1/i'ansfer of the contract in liquidation of such indebtedness will be valid.

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided December 31, 1873.
    1. As to whether any different doctrine would obtain where the rights of creditors are concerned, is not considered or determined.
    II. Trusts, Statute of.—What it does not apply to.—What is valid under it.—Divesting Trust.
    1. What it does not apply to.

    Choses in action. It does not apply to them.

      2. What is valid under it.

    Where A. assigns an executory contract to B. by assignment absolute on its face, and the oral evidence shows that A. was indebted to C., and that the assignment to B. was made for his benefit, and that B. had no interest in the contract, held that B. took as trustee, and held the contract in trust for C., and that the trust was valid.
    3. Divesting trust, what does not.

    An assignment of the contract in blank by B., with the consent of C., and the delivery of said assignment to A. for the purpose of surrendering it to the party who contracted to sell the lands on receiving back from him the moneys that had been paid to him on it, does not divest the trust.
    III. Conversion.—Executory Contract for the Sale and Purchase of Land. Such a Contract is the subject of conversion.
    IV. Parties Plaintiff.—Trustees and Cestui-que Trust.
    C. is the proper party plaintiff, and not B.
    Exceptions "by plaintiff ordered to "be heard at General Term.
    The action was to recover damages for the conversion of a contract for the sale of lands in the State of Pennsylvania.
    The contract was between Joseph T. Fellows and George ft. ffazewell, the plaintiff’s husband, for the sale of the land by Fellows to Hazewell. A payment of $7,000 to $8,000 had been made on the contract.
    In May, 1861, Hazewell executed and delivered a written assignment of the contract to George C. Genet. This assignment was absolute and unconditional on its face.

      In August of the same year, Genet executed an assignment in blank, and delivered it to Hazewell. Hazewell filled the blank with the name of the defendant, and delivered the assignment and contract to him. This assignment was also absolute on its face.
    The evidence tended to show that Hazewell took the contract for the benefit of his wife, the plaintiff; that she furnished the money with which the cash payment was made, and was really the beneficial owner of the contract.
    The evidence also tended to show that Genet was the agent of the plaintiff, and on her behalf, and for her benefit, took the assignment of the contract; and, although he took it in his own name, it was in trust for her, he having no interest in it. The assignment thus made was to secure to her the contract for the money she had advanced upon it, and to carry out the intent with which her husband entered into it.
    There was also evidence that the assignment to the defendant was intended as a security for a loan of money.
    Hazewell and the plaintiff were married in 1847, and the evidence tended to show that her property, at that time consisting of about $5,000, came into the possession of her husband, with her consent, but leaving it, perhaps, in doubt whether it was given to him by her, or was a taking possession by him under his marital right. But there was further evidence substantially to the effect that Hazewell afterwards treated as a debt all moneys he had received from his wife.
    The plaintiff proved a tender of the amount of the loan and interest, and a demand of the contract and an unqualified refusal of the defendant to return it.
    The defendant moved to dismiss the complaint on the following grounds :
    1st. That the evidence is manifestly false ; that it is clear that the whole story is a fabrication.

      2d. That the testimony, if true, does not make out the' averments in the complaint.
    3d. That if it "be all within the complaint, still it is a parol trust, and a parol trust that cannot "be enforced within any court of law or equity.
    4th. That the present plaintiff has no legal claim to the cause of action set up in the complaint.
    Plaintiff’s counsel thereupon requested the court for permission to go to the jury on the question of fact, whether the contract in suit belongs really to plaintiff or not %

    Which request the court denied, and plaintiff’s counsel duly excepted.
    Plaintiff’s counsel also asked the court for leave to go to the jury on the question, whether the plaintiff thus owning the contract, it was not given to Coursen upon a loan to be made and which he failed to fulfil ?
    Which request the court denied, and the plaintiff’s counsel duly excepted.
    Plaintiff’s counsel also asked leave to go to the jury on the question, whether the tender has not been duly made in reference to the cause of action so as to entitle the plaintiff to maintain the action %

    Which request was also denied, and plaintiff’s counsel duly excepted.
    Plaintiff’s counsel asked leave to go to the jury upon the questions of fact in the case raised by the pleadings, or the proof, or both.
    Which request was also denied, and plaintiff’s counsel duly excepted.
    The court thereupon granted the motion and dismissed the complaint, and the plaintiff excepted. The court ordered the exceptions to be heard at General Term.

      George C. Genet, attorney, and William F. Shepard, of counsel for the plaintiff, urged:

      1st. If any trust is involved in this matter, it is a trust of personality which is not within the statute of uses and trusts, and therefore capable of being created for any purpose not forbidden by law (Kane v. Gott, 24 Wend. 641; Buchlin v. Buchlin, 1 Abb. N. Y. R. 249).
    It was a trust in personal property with which the statute of uses and trusts in lands has nothing to do •(Savage v. Burnham, 17 N. Y. R. 561; Bunn v. Vaughan, 1 Abb. N. Y. R. 256).
    It was a trust in personality because the contract was a chose in action, and the property is out of the State (Foote v. Bryant, 47 N. Y. R. 544).
    This last case seems to cover every point involved in this case, under this proposition even to the fact of plaintiff being a married woman, and the facts occurring prior to the Married Woman’s Act of 1848. “It is “competent,” the court says, “for a husband, except “as against creditors, to recognize the equities of the ■“wife and to secure it upon property.”
    2d. That the present plaintiff has a legal claim to the cause of action set up in the complaint.
    Whether plaintiff obtained the contract with her separate money, or as a gift from her husband' through the medium of a trustee, or as a gift from Geo. C. Genet, is wholly immaterial to defendant, for in either aspect of the case, when Genet executed the assignment of the contract, leaving the assignee’s name blank, at the request and on the demand of plaintiff, and delivered it so executed to her messenger or agent, it was as good and effectual a transfer and delivery of the contract to plaintiff as if her name had been inserted. From that moment it passed from Genet to plaintiff, who thus became its lawful owner, her previous title being equitable. It was a good assignment, and passed all Genet’s interest, because the holder could write in the name of the assignee, as Coursen did, and acquire the property without the consent of Genet, as he did.

      Although not acquired with her separate property, it could "be made her separate property ‘6 "by a clear irrevo1 ‘ cable gift by her husband either to some person as “trustee, or by some' clear and distinct act of his (McLean v. Louglands, 5 Ves. 79 ; Ryder y. Hulse, 34 N. Y. R. 379, 380).
    The assignment of the contract by Hazewell to Genet was a distinct affirmative act of his divesting himself of the pfoperty to the wife’s separate use, and was also a clear irrevocable gift to a trustee if it was not her own separate property before.
    It was not necessary to recite the trust in the deed or assignment. It was sufficient that it was proved on the trial by parol, even had it related to real estate in this State (Wood v. Cox, 2 M. & Cr. 684; Foote y. Bryant, 47 N. Y. R. 544 ; Britton v. Lorenz, 45 N. Y. R. 51 ; Day v. Roth, 18 N. Y. R. 448).
    The plaintiff being the legal and equitable owner of the contract, and the real party in interest was the proper party to bring the suit (Code, §§ 111, 113).
    If Genet had any .right in the contract after he delivered the assignment of it, his right only continued until plaintiff -elected to- bring the suit in her own name (Minturn v. Main, 7 N. Y. R. 234 ; Morgan v. Reid, 7 Abb. P. R. 315; Rowland v. Phalen, 1 Bosw. R. 43; Gunnell v. Buchavan, 1 Daly, 538).
    3d. The defendant received the contract as pledgee for a loan of money. Upon tender of the amount his title was divested, and he was bound to return the pledge as a tenant is bound to surrender to his landlord at the expiration of the term (Edwards v. Farm F. Ins. Co., 31 Wend. 483).
    After the tender plaintiff was entitled to bring suit to reclaim the pledge and for a specific return, which she did. She was forced by some very unusual incidents in practice to amend her complaint and ask for damages.

      When plaintiff rested her case on the trial, she was entitled to rely upon the tender and refusal as a conversion and to recover damages. If no conversion had been proved on the trial, still plaintiff was entitled to a decree for a specific return, and the complaint should not in any point of view have been dismissed (Genet v. Howland, 45 Barb. 560).
    A cestuique trust can certainly maintain an action for the conversion of or damage to property held in trust for her.

      Field & Shearman, attorneys, and of counsel for defendant urged:

      First. The contract was the property of Hazewell, and not of the plaintiff, his wife.
    1. The evidence shows this to be the fact.
    2. The marriage took place in 1847. The plaintiff’s property, being money and stocks, was reduced to possession by the husband; the stocks sold mixed with his funds, and always dealt with as his.
    Under the common law this property became the husband’s (Crolius v. Roqualina, 3 Abb. 114; Westervelt v. Gregg, 12 N. Y. 202).
    3. The first Married Wornan’s Act, passed in Pennsylvania, was in 1848. It does not differ materially from our statute of the same year. This act did not affect the vested rights of the husband, or enable her to do business. All the wife’s property, whether previously acquired or gained in business, becomes his (Lancaster Co. Bank v. Stauffer, 10 Barr, 398 : Lefever v. Witmer, 10 Barr, 505; Boose’s Appeal, 6 Harris, 392 ; Peck v. Ward, 6 Harris, 509 ; Stehman v. Huber, 9 Harris, 260 ; Burson’s Appeal, 10 Harris, 164; Bachman v. Chrisman, 11 Harris, 162; Rhads v. Gordon, 2 Wright, 277; Robinson & Co. v. Wallace, 3 Wright, 129).

      There was no subsequent legislation on the subject in Pennsylvania until 1861.
    4. The first Married Woman’s Act of New York (Laws of 1848, p. 307) applied to personal property then belonging to married women. Even if it had not been unconstitutional, it would not have applied to this case, since the marriage having taken place before the passage of the law, this personal property then belonged to the husband. The acts of 1849, of 1860 and of 1862, do not alter, so far as this case is concerned, the first act.
    Mrs. Hazewell had no separate property on the 7th April, 1848, and the act of that date and those subsequently passed do not apply to her (Ryder v. Hulse, 33 Barb. 264 ; Freeman v. Osser, 5 Duer, 476 ; Sherman v. Elder, 1 Hilton, 476).

      Second. Whoever was the owner of the contract, the legal title was in Genet, and he only could bring a suit like the one in question,
    1. The assignment was to Genet, and was made without any “consideration moving” from the plaintiff.
    2. He was the legal holder of the contract, and was the only one entitled to bring the action under the Revised Statutes.
    3. A trust of the sort claimed cannot be created by parol so as to be enforced as between -the purchaser of the contract and the trustee.
    4. These rules have not been changed by sections 111, 113 of the Code (William v. Brown, 2 Keyes, 486 ; Fulton v. Fulton, 48 Barb. 581; Cummings v. Morris, 3 Bos. 560 ; Cummings v. Morris, 25 N. Y. 625).
   By the Court.—Monell, J.

The testimony furnished by the plaintiff, if true, established that the contract with Fellows belonged to her. The money, paid on it was her property, and the assignment to Genet was for her Benefit, and was intended to vest her with the title. No express trust was created in writing, "but a trust "by parol to the effect that Genet should hold the contract for her "benefit. Such testimony also established that the assignment of the contract by Genet in blank was to enable plaintiff’s husband, with her consent, to transfer it absolutely, or hypothecate it as security for a loan; and that he did cause it to be assigned to the defendant as such security.

The evidence of the fender demand and refusal was sufficient.

The first two grounds of the motion to dismiss called upon the court to determine as a matter of law, not that the evidence was insufficient, but that it was not true. That was so clearly a question for the jury, that it is not to be presumed the decision of the court was put upon that ground.

The facts, however, present two questions of law, upon one or both of which, doubtless, the decision rested.

First. Whether the cash payments on the contract were made with the plaintiff’s money.

Any property (personal) of the plaintiff, which had been reduced to actual possession by her husband, prior to the Married Woman’s Acts of 1848-9, became his property absolutely. Whatever may have become of the four or five thousand dollars, the separate property of the plaintiff at her marriage, it appears, primeo facie, at least, that as late as 1854 and 1857, she acquired other money, which went into her husband’s hands creating him her debtor. There is no evidence that she intended it as a gift, and the law would create the relation of debtor and creditor.

Whether, therefore, the money paid on the Fellows contract was paid directly by the plaintiff, or indirectly through her husband, if such was the case, the contract became hers, at least in equity.

But even if the husband advanced the payments from his own. resources, it was competent for him, at anytime, to recognize as a debt any money he had previously received from his wife, and liquidate it by the transfer of the contract (Foote v. Bryant, 47 N. Y. R. 544).

'These questions might be affected if raised by creditors of the husband, but as between these parties, there was a good and sufficient consideration for the transfer to Genet, and such transfer gave her the beneficial interest in the contract, if the circumstances under which Genet took it were such as to create a valid trust in her favor, which can be enforced in this action.

Second. Was the trust valid %

The trust had respect to personal property. The contract, being executory, was a mere chose in action, and the trust could be'by parol with which the statute of uses and trusts has nothing to do (Kane v. Gott, 24 Wend. 641 ; Savage v. Burnham, 17 N. Y. R. 561; Bunn v. Vaughan, 5 Abb. P. N. S. 269). But even if it was otherwise, it was, nevertheless, a trust not affected by the statute. In Foote v. Bryant (ubi sup.) the court, say, “the statute does not preclude a party from establishing any implied or resulting trust known or recognized by the common law. They arise usually from the acts or relation of the parties to the property involved, and not upon parol agreements.” “ The transactions out of which a trust of this character arises may be proved by parol, but the trust itself must rest upon the actsnor situation of the parties as proved, and not merely upon their declarations. The statute embraces only trusts which are created or declared by the parties.”

Under the authority of that case, without going farther, it seems to me clear that the trust proven in this case was valid. The1' nature of it was this: the plaintiff’ s husband held a contract for the sale of lands. He says the cash payments were made with her money, and that he took the contract for her benefit. But it is quite immaterial whether it was her money or his money ; or whether he took the contract originally for her benefit. The evidence was sufficient primé facie, ¡. that he was indebted to the plaintiff, and that he made ; the assignment to Genet for her. Genet, therefore, took as trustee, and held the contract in trust for her.

The subsequent transactions did not divest the trust, or change the relations of any of the parties. The assignment executed by Genet in blank was with the plaintiff’s consent; and Hazewell, her husband, doubtless could have made an unconditional, absolute transfer of the contract to the defendant. But the evidence shows that he assigned and pledged it as security for a loan.

As the case stood when the motion to dismiss was made, the plaintiff had made a prima fade case. She was the real party in interest; the consideration for the transfer of the contract moved from her; the trust was valid; the contract was the subject of conversion, and the proof of the conversion was sufficient.

It was error, therefore, to dismiss the complaint.

The exceptions should be sustained, the order dismissing the complaint vacated, and a new trial granted, with costs to the plaintiff to abide the event.

Curtis and Sedgwick, JJ., concurred.