author: McCunn, J. Fithian J. Barbour, C.J.

text:
    ROBERT P. PARROTT, Plaintiff and Respondent, v. THE KNICKERBOCKER ICE COMPANY and Another, Defendants and Appellants.

      [Decided December 31, 1869.]
    The rule that an injury which a plaintiff has sustained through the negligence of the defendant, was not contributed to by any act on his part, is applicable to vessels engaged in inland navigation. It is immaterial whether the negligence is slight or gross.
    And he must establish that there was due care on his part at the time of the accident.
    A sailing vessel has no right to neglect all proper precaution, and cannot throw the entire responsibility of accidents upon a steamer with which it has collided.
    If the injury could have been avoided by the exercise of ordinary care on the part of the sailing vessel, the plaintiff cannot recover.
    It is negligence to allow a sailing vessel to drift down a river in the dead hour of night, without the slightest power to control or manage her.
    It is the duty of the captain, in such a case, to anchor his vessel; his failure to do so is gross negligence.
    Before Barbour, C.J., McCunn and Fithian, JJ.
    This ease was tried before a referee. The action was brought to recover damages sustained by a collision between a sloop of the plaintiff and a propeller of the defendants, in consequence of which the plaintiff’s sloop, with her cargo, was sunk.
    The facts are fully set forth in the opinion of the court.
    The referee found in favor of the plaintiff, and defendants appealed to the General Term.

      Mr. Titus B. Eldridge for appellants.
    The burden of proof is on the plaintiff to show that the two essential allegations of the complaint are true : That he has suffered damage by the negligence of the defendants, and that he did not by any act of negligénce contribute to the act or damage (Butler v. Hudson R. R.R. Co., 18 N. Y. R., 248). It is immaterial whether the negligence of the plaintiff be slight or gross, for the defendants may have been guilty of gross' negligence adequate to have produced all the injury which was inflicted upon the plaintiff; yet if the plaintiff, by even slight negligence, contributed to his injury, he cannot recover (23 Con., 437).
    To enable a party to recover where the gist of the action is negligence, there must be affirmative proof on his part of due care at the very time of the accident, and it is said that neither the urgency of business, nor the calls of humanity, can be taken into account (Hyde v. Jamaica, 1 Williams, 44). Hence, in a case of collision between vessels, the burden of proof is on the plaintiff, not only to show negligence on the part of the defendants, but to prove ordinary care on his own part (Drew v. Chesapeake, 2 Douglas, 33; Wilds v. Hudson R. R.R. Co., 24 N. Y., 430; Mangan v. B. C. R.R. Co., 36 Barb., 230).
    If in any view of the evidence the court should be of the opinion that the decision of the referee upon the question of the defendants’ negligence should be affirmed, still the plaintiff cannot maintain the present action, because the persons navigating his sloop were negligent, and their negligence contributed to produce the accident.
    This is not a case of such conflict of evidence as will render the decision of the referee final. For the conflict is so light in any view of the evidence, and the preponderance is so great and so' decided in the defendants’ favor, as to render it the duty of the court to set aside the judgment within the very well-settled principle of law upon the subject. The case falls within the principle declared in Adsit v. Wilson (7 How. P. R., 64, 66), which is sanctioned and sustained by Jackson v. Steinbergh (1 Caine, 162), Conrad v. Williams (6 Hill, 444, 451), Boyd v. Colt (20 How. P. R., 384), Hartman v. Proudfit (6 Bos. 171), and Strong v. Place (33 How. P. R., 114).

      Mr. Oscar Smedberg for respondent.
    The referee found the following facts, which entitle the plaintiff to judgment:
    That on the 14th November, 1865, the plaintiff’s sloop was run into and sunk by a propeller belonging to the appellants, and had at the time a large cargo on board, belonging in part to the plaintiff, and in part to other parties for whom he was carrying the same in said vessel, as common carrier, for hire.
    That such running into and sinking was caused by the negligence and carelessness of the persons employed by the defendants in the management and navigation of the said steamboat, without any fault, negligence, or carelessness on the part of the persons employed by the plaintiff in the management and navigation of the said sloop Westchester.
    The referee, in addition to the general finding of negligence and carelessness on the part of the defendants, finds specifically:
    That the plaintiff’s sloop was drifting with the tide; that she had no steerage way; that the collision occurred from the fault of the defendants’ propeller in having no lookout, the pilot, in consequence, not seeing the sloop in time to keep out of her way; and that the pilot of defendants’ propeller did not back his vessel.
    Such facts having been found by the referee, this court will not review the same.
    The referee having found that the plaintiff was entitled to judgment, the amount of such judgment as fixed by him is correct.
   McCunn, J.

The testimony on the part of the plaintiff establishes the fact that the collision occurred about two o’clock on the morning of Nov. 14, 1865 ; that the night was a clear, starlight night; that there was no wind, and that for several miles just preceding the collision the sloop was allowed by the captain to drift with the current over safe anchoring ground, and where she would have been out of the beaten track of other vessels; that the defendants’ steamer at the time of the accident was heading up stream, in the usual channel, against a swift current, with a heavy tow of barges and boats in charge; that she had all her lights properly set, and that they were of such magnitude and clearness that they were seen by the crew of the sloop at the distance of miles; that there was no wind, and that the sloop’s company had to row her to get her head down stream, in order to enable her, I suppose, to drift with the current; that there were no vessels in sight except the lights of the defendants’ steamer and the lights of her tow; that there was no wind to steer by, and that she (the sloop) was heading south by east near the middle of the channel; that when the steamer got within one hundred yards of the sloop a slight breeze sprung up, but not enough to move the vessel or steer by—it only sufficed to jibe the boom over to the eastward.

Now all this evidence, as I have said before, is offered on the part of the plaintiff, thereby establishing beyond a peradventure the fact that the sloop was allowed to drift with the current for miles and miles, in the midst, nay in mid-channel, of one of the greatest inland navigable thoroiighfares in the world.

So that the first and principal question that presents itself in this ease, is whether the plaintiff, under the circumstances, is free from blame, or free enough from contributing negligence to entitle him to recover.

I think, upon a careful consideration of all the facts and circumstances of the case, that he is not.

Before the plaintiff can recover in this case, he must establish the fact that he has suffered damage by the negligence of the defendants ; and second, that he did not by any act of negligence contribute to the act or damage.

It is immaterial whether the negligence of the plaintiff be slight or gross. The rule now is, that if the plaintiff by even slight negligence contributes to his injury he cannot recover.

This was the principle laid down in Neal v. Gilbert (23 Cow., 437), Judge Sandford holding that for any thing the court can see, although the defendant’s negligence was gross, yet the plaintiff’s exercise of reasonable care would have saved him from the consequences. Precisely this ease: if this captain—I mean the captain of the sloop—had exercised ordinary care, this accident would not have happened. Again, Baron Alderson holds, in Blyth v. Bingham (36 Eng. Law and Equity), that negligence consists in either omitting to do what a reasonable man would do, or the doing something that a reasonable man would not do, in either case causing mischief to a third person.

To enable a party to recover for negligence, there must be clear proof on his part of due care at the time of the accident happening. Hence in such a case as this the burden of proof is with the plaintiff, not only to show negligence on the part of the defendants, but to establish beyond a doubt, in the mind of the court, ordinary care upon his own part. This was the clear and reasonable doctrine laid down in the cases of Drew v. The Chesapeake (2 Douglass), and Burrell v. Williamson (1 McLean).

A sailing vessel has no right to neglect the proper caution, and throw the entire responsibility of accidents upon steamers. Vessels propelled with canvas, must exercise proper care and caution as well as vessels driven by steam; and this principle was strictly applied in the case of Ward v. Armstrong (11 Illinois).

In all such cases as the one under discussion, the test of defendants’ liability is to be found in a great measure by the inquiry, Could the injury have been avoided by the exercise of ordinary care on the part of plaintiff ?

If it could, he must then bear the loss himself.

This simple and plain rule of law was discussed and relied upon in the case of Wild v. the Hudson R. R.R. Co. (24 N. Y.) and in the case of Mangan v. The Brooklyn City R.R. (36 Barb., 230).

These and many other cases in the books establish the doctrine that no matter how negligent a defendant may be, yet, if a plaintiff unduly expose himself to injury he cannot recover, and the doctrine must apply to navigable rivers, or wherever the remedy afforded by the common law is invoked, whether the accident arose on land or water. How, applying this rule in this case, could the accident have been avoided by ordinary care on the part of the plaintiff ? If it could, he must fail.

I think it could. It was negligence to allow the sloop to drift down a river thickly covered with all kinds of vessels, in the dead hour of night, without the slightest power to control or manage her, because it is evident to the commonest mind that a vessel drifting with the current has no steerage power; that is to say, it is motion through the water that gives power to the rudder by friction thereon, and then the power of the rudder guides the ship on her course. Without this movement through the water the vessel is entirely helpless.

The rudder of a ship is to a vessel what the reins are to a horse in a vehicle—the lines guide the horse, and the rudder passing through the current guides the ship. If the reins of the horse are dropped upon his neck, and he be allowed to move at random in a great thoroughfare, surely, if injury is done him, his master cannot recover; so, if the master of a ship allow his vessel to drift with the current without any steerage way, and an accident happen, surely this rule ought to be as strictly applied as in the case of the horse.

The steamer had a large number of other vessels in charge and attached to her ; she had to guide them as well as herself up a swift and turbulent stream; and long before the collision took place, if the captain of the sloop had exercised the most ordinary kind of care, seeing the manner his ship was drifting, and knowing her to be perfectly helpless and unmanageable without steerage way, and seeing the steamer’s lights approaching miles off, he should have selected a safe anchorage and brought his vessel to. His not doing so was gross negligence. Instead of the captain of the sloop exercising proper diligence to keep his ship out of harm’s way, he says that when he first saw the steamer’s lights, and the lights of her tow, he did not pay much attention to them, that he thought it was a large steamer coming up the river. This was negligence.

He should have scanned the lights on their approach, found out the steamer’s course and the true condition of things, and, seeing it was a steamer with a great responsibility attached, should have kept out of the way. Had the sloop been at anchor, she would have secured herself from the possibility of danger, as there is no evidence that the Camelia changed her course; and it would be against all principle, and against authority, to allow a vessel rendered helpless from any reason to drift down a thickly navigated river for hours upon a strong ebb tide (when she can anchor any moment), and in such a manner, and, in case of loss, claim damage.

The law requires from those in charge of vessels upon the water constant care and vigilance.

Had the sloop been at anchor with fixed lights up, I have no doubt the steamer would have approached her with caution, and,, seeing from her lights that she was at anchor, would have avoided her. It will be seen that I have been viewing the question of negligence on the part of plaintiff in this case from a standpoint on the plaintiff’s side—that is to say, I have examined the question of negligence thus far on plaintiff’s own proof. How let us see if the proof on the part of defendants shows any negligence on the part of plaintiff. The testimony of the captain of the sloop is that the sloop was drifting down the stream without a breeze, and the proof of the pilot or captain of the steamer is directly contrary to this ; for he says that she (the sloop) was going about eight miles an hour down the stream under a good breeze, and that if the sloop had, kept her course all wordd have been well; bxat that when within about fifty yards of the steamer she luffed right across the steamer’s bow, and in consequence thereof the Camelia struck her and she was sunk. All the defendants’ witnesses tell the same story, and if they tell the truth then gross negligence was committed by the captain of the sloop in luffing across the steamer’s bow, and in consequence thereof plaintiff cannot recover.

How, I think I have conclusively shown that, according to the testimony of both plaintiff and defendants in this case, gross negligence was committed by the captain of the sloop; one set. of witnesses swearing that the sloop was drifting with the stream and was unmanageable—consequently, letting her do so was negligence; the other set swearing that she had a good wind, that she suddenly luffed across the bow of the steamer, when her course should have been as she was standing before she luffed.

The evidence of the plaintiff’s witnesses as to the sloop’s drifting is the most reliable, and that evidence shows gross negligence on the part of the plaintiff, and he cannot recover.

I have only examined the leading points in this case, because I am convinced from the evidence that negligence has been committed by plaintiff in allowing his vessel to drift for miles and for hours in this great highway, wherein, large numbers of vessels of all kinds, and at all hours, are engaged in the carrying trade of the country; and if I am correct in my views of the law in this case, it must follow, as a matter of course, that plaintiff is without a remedy.

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

Fithian J.

(concurring). After a re-examination of the evidence in this case, I see no reason to change the opinion formed when the case was first before us. The course of the river at the place of collision was nearly north and south. The steam propeller was bound up the river and the sloop down. At the point of collision the steamer was headed on a course northerly, or substantially the same as the course of the river. The sloop received the blow of the steamer at or near her larboard fore chains, thus showing, what is not disputed, that, at the time of contact, the sloop was heading to the westward and crosswise of the river, on a course nearly if not quite at right angles with the course of the steamer. There is a direct conflict of evidence as to how and from what causes the sloop came to be in that position at the time of the collision. The testimony of the persons in charge of the steamer is, that shortly before the collision and when the two vessels respectively “ hove in sight ” of each other, the sloop was sailing down the river, with a seven or eight knot breeze, in a position in the river considerably to the eastward or starboard side of the steamer, on a course which, if kept, would have caused the vessels to have passed each other on a starboard helm, each on the starboard side of the other. It was claimed on behalf of the steamer that under such circumstances it was the duty of the sailing vessel to have kept her course and permitted the steamer to keep out of the way in any manner she saw fit. But instead of so doing, the witnesses say, that when the sloop was in close proximity to the steamer, her pilot wrongfully and improperly, under the circumstances, attempted to observe the general law of the road and river, by each vessel keeping to the right, put his helm hard to port, sheered sharp to the starboard, thus throwing the sloop directly athwart the bows of the steamer, when it was too late for the latter to take any precaution to prevent the collision. This, if true, is conceded by all parties to be negligence on the part of the master of the sloop. But, on the other hand, the navigators of the sailing vessel swore, that at the time of the collision she was wholly without wind or steerage way, and was floating helplessly with the tide, and had been so floating without wind or steerage way for some two hours or more, and for some six miles or more of distance, the tide then running down the river, or ebb, at about two miles an hour. The referee finds this to be the true state of the case, and holds the sailing vessel to be without fault or negligence in the premises, and charges the steamer with the whole damage. In this I think the referee erred, without attempting to consider the question of whether the referee’s findings were or not in accordance with the evidence. But, assuming the facts in regard to the sailing vessel to be as he finds them, I am still of opinion there was fault in the conduct of the managers of the sailing vessel. It seems to me to be not only careless and negligent, but dangerous, for the master of a vessel to set his craft adrift, with all sails set, in the nighttime, in a narrow estuary, where numerous vessels are constantly passing and repassing, and allow such craft to float with the tide for hours, helpless, upon the water, without wind or steerage way. Such a situation is directly calculated to deceive and mislead approaching vessels, especially steamers. A steam vessel in motion at even a slow speed always has with her an apparent breeze. She is navigating in the night a narrow river, where it is impossible to pass other vessels without coming into some degree of close proximity. A “ wide berth ” cannot be given. The pilot of the steamer sees ahead of Mm, M the shadows of the mght, a sailing vessel with all sails set, her sailing lights all hoisted, heading in a certain direction, and with every thing about her to indicate that she was under way ” and obedient to her helm, that she had a course and could keep it. The steamer acts in accordance with these indications, when suddenly, and too late for a remedy, the pilot of the steamer discovers that this sailing vessel is a helpless hulk, floating with the current, and approaching him in a direction entirely different from that indicated by her appearance and points of headway. It cannot be that such conduct in the managers of sailing vessels can meet the approval of the majority of men of ordinary care and prudence, in the management of their own affairs (for that is the test of negligence). In my opinion it is the duty of the manager of a sailing vessel who finds himself thus situated in the night-time, in a narrow stream liable to be constantly crowded with passing steam-vessels, either to anchor, or, if he cannot conveniently do that, to lower some of his sails and hoist his anchor lights, or do something to indicate to approaching vessels not depending upon the wind as a propelling force, that such sailing vessel is without control and unmanageable. I am not unmindful of the rule that, as between sailing vessels and steamers, the former shall keep their course and the latter keep out of the way. But that very rule implies that the sailing vessel has a course and can keep it. Under these circumstances I cannot hold the sailing vessel free from fault in contributing to the injury, in which case it is well settled and not disputed that the plaintiff cannot recover in an action at law.

The judgment must be reversed, order of reference vacated, and new trial granted.

Barbour, C.J.

(dissenting). There can be no doubt that the negligence of the defendants, in omitting to place a proper lookout upon the propeller, was the proximate cause of the collision. They are, therefore, chargeable in this action with the loss sustained by the plaintiff, unless the evidence produced upon the trial was sufficient to prove that there was some negligence or misconduct on the part of the persons in control of the sloop, which contributed to the accident.

The referee has not included in his findings all the facts, in detail, upon which he based his conclusion that the accident was caused by the negligence of the defendants, without any contributing negligence or fault on the part of the plaintiff. The case shows, however, that testimony was given upon the trial, which was sufficient, if credited, to establish the following facts: The plaintiff’s sloop left Cold Spring, on her voyage down the river, at 2 f.m., running with a light wind on an ebb tide, and was about three hours in reaching Eoay Hook, a distance of ten miles, where, she met the flood tide, and thereupon came to anchor. At about 11 p.m., the tide having then changed, she again started upon her voyage, running with the ebb. Soon after leaving Eoay Hook she caught a good breeze, which lasted until she had run about four miles, from whence to the place of collision, being about six miles, the wind was light and inconstant, but ranging, when felt at all, from abeam to astern; and thus, with the help of the tide, she made about three miles an hour. Just previous to and at the time of the collision, the wind had so died away that she had no motion through the water, or, if any, not enough to enable her to mind her helm, although her sails were fully hoisted; but she was drifting down with the tide, at the rate of some two miles an hour. It appears from the written opinion and findings of the referee, not only that he considered those facts to be established by the testimony, but that there was no evidence credited by him which proved any contributing negligence on the part of the sloop, except such, if any, as might legitimately be inferred from the fact that she was becalmed, and drifting with the tide at the time the collision took place, instead of being anchored.

The defendants’ counsel claims that the danger of collision with other vessels navigating the river was greatly increased by permitting the sloop thus to drift with the tide; and holds that it was the duty of the master to cast anchor as soon as he found there was not sufficient wind to give her steerage-way, and that it was negligence on his part not to do so.

Although, for some two hours prior to the accident, the wind had been light and baffling, and had so died away, immediately preceding the occurrence, that the sloop had but little, if any, motion through the water, yet the master had a perfect legal right to avail himself of the movement of the tide for the purpose of propulsion upon his voyage, precisely as a raft or flatboat might have done. Oases may be supposed, it is true, in which it would be gross negligence on the part of abecalmed sailing vessel thus to float with the current; such, for instance, as its near approach towards another vessel lying at anchor in the line of its progress in so drifting. In such a case, it would, undoubtedly, be the duty of the master of a vessel thus floating with the tidal current, and having no wind, to drop his anchor in time to avoid a collision. But the question presented here is quite a different one. Bor, although the receding tide, at the time of the collision, created a current in the river of about two miles an hour, the condition and position of the two vessels in relation to each other and to the water- upon which they rested, were just the same as they would have been had such vessels been placed, under the same circumstances, in the Gulf Stream of the Atlantic^ or upon water having no current whatever. As contrasted with the shore, to be sure, the sloop was floating down at the rate of two miles an hour; but, so too, was the propeller; or, rather, to that extent was she retarded by the current in her voyage from harbor to harbor, although she was making, through the water, four miles per hour. With the same rate of speed, the propeller would, in either instance, have been approaching the sloop at the rate of four miles an hour over the water, and, in each case, the sloop would be, relatively, stationary upon the water. I am, therefore, unable to see any reason for supposing that the hazard of a collision with a vessel in motion was increased at all because of the current, beyond what it would have been had both vessels occupied like positions upon dead water. Nor can I conceive that the danger of a collision with this propeller would have been diminished, had the master of the sloop brought her to an anchor at any time after the former first hove in sight; nor, indeed, how such hazard could have been lessened by any thing that it was in Ms power to do.

Assuming, however, for a moment, that the risk of a collision with the approaching propeller would have been decreased had the master of the sloop anchored her, still it by no means follows that his. failure to anchor was negligence for which the plaintiff is chargeable in this action. It was not his duty to stop a voyage which was progressing at the rate of two or three miles an hour, by bringing his sloop to an anchor, merely because the hazard of a collision might be diminished thereby. But, on the contrary, it was not only his right, but a duty which he owed to his consignors and owner, to make the voyage by the use of every seaman-like means in his power; subject, however, to the condition that in doing so he should exercise the skill and caution of a prudent and competent master. The mere fact that the sloop was becalmed, and drifting with the current at the time the accident occurred, was not sufficient, therefore, to establish negligence on the part of her owner, even though the risk of collision may have been greater than it would have been had the sloop been at anchor. To establish negligence on the part of the persons having her in charge, it was essential that the evidence should show some act or omission by them, which careful, competent navigators would not have done or omitted under the same circumstances.

I am of the opinion that the judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Jones, J. Monell, J.,

license: Public Domain

text:
    ISAAC KIP, Jr., Plaintiff and Appellant, v. REUBEN W. HOWES et al., Defendants and Respondents.

      [Decided December 31, 1869.]
    An agency may be terminated as to a third person by the existence of circumstances inconsistent with its continuance which have come to the knowledge of such third person and the principal.
    The third person, however, although aware of the existence of such circumstances, may presume that the agency continues until after the lapse of a reasonable time for the communication thereof to the principal.
    The authority will, notwithstanding such circumstances, continue in fact until notice thereof to the principal; but if the third party, after the lapse of a reasonable time for the communication to the principal, acts on the assumption that the authority still exists, he does so at the peril of its being shown that the principal had notice before he acted. What is such reasonable time will depend upon the circumstances of each case.
    An agency terminated by the happening of circumstances inconsistent with its continuance, may be revived by subsequent acts of the principal, but an untruthful statement by an agent as to his having authority, the principal having done no act to induce a belief in the truth of the statement, will not revive an agency thus terminated.
    Before Monell, Jones, and Fithian, JJ.
    This case was tried before a referee.
    The facts are as follows :
    The firm of Morse & Co. (composed of Anthony W. Morse and J. Cady Brown) employed Charles E. Anderson, an exchange and general commission broker, to procure for them a loan on certain securities, and furnished him with the securities for that-purpose. Under this authority, Anderson procured a loan from defendants for said Morse & Co., and pledged to defendants, as security for such loan, the securities with which Morse & Co. had furnished him. At the maturity of the loan Anderson paid the defendants the amount of the loan, with the interest thereon, and took up the securities which had been pledged therefor. In this transaction of Anderson’s Morse & Co. acquiesced.

      Afterward, said Horse & Co. again, employed Anderson to procure for them a loan of $30,000 on certain securities, and furnished him with the securities for that purpose. Under this authority, Anderson procured the loan of $30,000 from defendants for Horse & Co., and pledged to defendants, as security for such loan, the securities with which Horse & Co. had furnished him.
    At the maturity of this loan of $30,000, Horse & Co. furnished Anderson with the means to pay the same, and directed him to go to defendants, pay the loan, and take up the securities which had been pledged therefor.
    Accordingly, Anderson went to defendants, tendered them the amount of the loan, and-interest thereon, and requested them to deliver the securities to him. Defendants refused to accept the tender or to deliver the securities, claiming that they had a fur-, ther lien on the securities for about $2,700, for a balance on a stock transaction.
    Anderson thereupon on the same day returned to Horse & Co., and returned to them the means which they had furnished to him to pay said loan with, stating to them the demand of defendants for the payment of the balance on the stock transaction, to which demand Horse & Co. declined to accede.
    After this, Anderson being in the office of defendants on several occasions, defendants had conversation with him about the settlement of the loan.
    Thereafter one of the defendants met Anthony W. Horse in the street, and told him that defendants wanted the loan settled and paid; that Anderson had been to see them several times about it, but no settlement had yet been made, and defendants wished it closed. To which Horse replied that he would see to it and have it settled.
    About five days after this conversation defendants sent for Anderson to come and see them. He came, and said “ he would get an offer from Horse & Co. in final settlement.” Hr. Howes, one of the defendants, said, “Very well, let us hear it.” Anderson then left defendants’ office, and afterward returned and made an offer which he said he had got. This offer was declined. Anderson again left and returned with an offer of $32,000, which he said was the best offer he could get from Morse & Co. This offer was accepted. The defendants then sent with Anderson a clerk with the securities. The clerk and Anderson went to the Phoenix Bank, when said Anderson pledged the securities to that bank for a loan of over $32,000 made by it to him.
    Anderson, of the money thus loaned to him by the Phoenix Bank, paid to the deféndants $32,000 for the loan of $30,000, made by them to Morse & Co., the interest thereon, and about $1,500 on the stock transaction.
    Anderson never went to see or had any communication with Morse & Co., or any member of the firm, after the occasion before mentioned on which he returned to them the means which they had provided him to pay said loan of $30,000, and take up the securities.
    Meither Morse & Co., nor the plaintiff, their assignee, have ever received back the securities so pledged by them to defendants as security for said loan of $30,000.
    On the 19th day of April, 1864, Morse & Co. assigned to the plaintiff the said securities so pledged to defendants on condition that plaintiff should pay the loan and interest.
    After the assignment the plaintiff tendered to defendants the amount of the loan of $30,000, and interest, and demanded the securities, with which demand defendants refused to comply.
    This action is brought to recover damages for the conversion, by defendants, of the securities.
    The referee before whom the action was tried reported that the delivery of the securities to Anderson discharged the defendants from all liability or accountability to Morse & Co., or to plaintiff, for the same or any part thereof, and further reported that defendants were entitled to judgment, and that the complaint be dismissed, with costs.
    On this report judgment was entered that the complaint be dismissed on the merits of the action, and that defendants recover of plaintiff $1,151.14, their costs in the action.

      From this judgment plaintiff appeals to the General Term.
    On the argument it was conceded that defendants had no lien on the securities for the alleged balance due on the stock transaction.

      Mr. H. C. Van Vorst for appellant.
    The defendants had no lien on the 361 shares of stock for any sum or amount except the $30,000 loaned on the security of the same; there is no agreement shown that the same was to be held as security for any debt, claim, or balance in favor of defendants against Morse & Co., except the loan of $30,000.
    Anderson had not any actual authority from Morse & Co., or from the plaintiff, to settle or pay the $30,000 loan, or to receive the 361 shares from the defendants at any time after he made the tender in May, 1864, which was refused by the defendants.
    Anderson’s only business in regard to the matter was to negotiate the loan of $30,000, which he did while Morse & Co. were solvent; this ended his relation, except the further duty subsequently enjoined on him to tender the debt and interest. This tender was refused. lie was not further authorized to do any thing; certainly never to compromise a debt of which he knew nothing, and which Morse & Co. repudiated. Defendants acted at their peril after they declined the tender of debt and interest in treating with Anderson.
    By this tender and refusal, the defendants’ lien on the 361 shares ceased. They lost all claim to retain them as security for the loan of $30,000. Morse & Co., or the plaintiff, as their assignee, might have recovered the shares at any time thereafter without paying or tendering to pay the loan. The defendants were simply creditors of Morse & Co. for an unsecured amount of $30,000 and interest (Kortright v. Cady, 21 H. Y. R., 342, 348, 354, 366, 368, and authorities cited, p. 348).
    By detaining the shares after the tender in May, 1864, the defendants became wrongdoers, and answerable for them in all events. Their detaining them was the reason of the plaintiff’s loss through the subsequent fraud of Anderson (Lord Holt, Coggs v. Bernard, Raymond’s R., 909; 1 Smith’s Leading Cases, 92).
    By the tender and refusal, the relation of the parties to each other were wholly changed. Instead of being pledgor and pledgee, Morse & Co. were owners of shares illegally detained by the defendants, and the defendants were simple contract creditors of Morse & Co. without security.

      Mr. F. C. Barlow for respondents.
    Anderson had both real and apparent authority to pay the loan and receive the stocks.
    The long course of previous dealing between the parties, in which Anderson <Md pay precisely similar loans, warranted the referee in finding that Anderson had aetual authority to pay the loan in question, and, that even if he had not actual authority in this particular case, yet he had apparent authority, which binds Morse & Co. by way of estoppel.
    The defendants knew that Anderson was a broker, and it is a-presumption of law that a broker is dealing for others (Baxter v. Duren, 29 Maine, 434; Baring v. Coine, 2 Barn. and Adol., 144, 148).
    That Anderson had authority to make the loan, and to furnish more stock when called on, and had actually been once sent to pay the loan, justified the defendants in trusting in his authority to pay the loan, upon much less evidence than if no authority in regard to the subject-matter had been shown (Prescott v. Flynn, 9 Bingham, 22).
    The evidence of the previous dealings and of the interview with Morse amply justified a finding of aetual authority (Wood v. Auburn R.R. Co., 4 Seld., 167).
    The payment by Anderson of more than the amount due is of no consequence. H we had sufficient ground to believe he had authority to pay the amount of the loan and interest, the fact that he chose to pay more, and to settle a doubtful claim is a mere matter of excess of authority, as between Anderson and his principals.
    Anderson having apparent (equivalent to actual) authority to receive the stock, it does not concern the defendants that instead of carrying it to his principals he tortiously pledged it to other parties.
   By the Court:

Jones, J.

I think the evidence amply sufficient to prove an authority in Anderson as to the defendants to repay to them the loans obtained from them, and to take up the securities pledged by him therefor. Such authority would continue as to the defendants until they were apprised of its termination. A notice to them of the revocation of the authority would terminate it as to them; but it may be terminated as to them in other ways, such as a knowledge of circumstances inconsistent with its continuance. °

In this case Anderson, as he had before done, went to the defendants with funds to repay the loan of $30,000, and take up the securities; he tendered the amount due on the loan and demanded the securities, but defendants refused to receive the amount and deliver up the securities, on the ground that they had a demand against Morse & Co., arising out of a stock transaction which they claimed was a lien on the securities, and should be paid before they surrendered the securities.

How, it is clear that Morse & Co. had given Anderson no power either to adjust any such claim, or to pay the same as a condition of receiving back the securities, nor had they done any thing which could lead the defendants to believe that Anderson was invested with such a power. Hence we find that Anderson did not, at that time, enter into negotiation concerning this additional claim, or make any offer concerning it, but, on the refusal of the defendants to accept the amount due on the loan and redeliver the securities, left their office with the amount in his possession—leaving the securities in defendants’ possession.

The attitude of the defendants, then, was that of retaining the securities under a claim to hold them for a demand which Anderson had no authority to allow or settle; and this was known to them.

That claim could only be settled with tire principals.

The insistence on the claim placed the matter in a position in which the agent could no longer act under his authority, and was a circumstance inconsistent with the continuance of an authority which, by reason thereof, was wholly inadequate to deal with the altered condition of matter's, and the continuance whereof would, consequently, be wholly aimless and purposeless.

All this was known to defendants.

But as the termination of the authority, by reason of such a circumstance, depends on the presumption (founded on a knowledge of the human character, and of the motives, passions, and feelings by which the mind is usually influenced, which knowledge every man is presumed to have acquired from experience) (1 Starkie Ev., p. 48-50), that a principal will not continue an authority which is inapplicable and of no use under the circumstances which have arisen since it was conferred, it follows that a party may, even though he is aware -of circumstances which, when they come to the knowledge of the principal, would operate to determine the authority of the agent, assume that the agency continues until the lapse of a reasonable time for the communication of the circumstances to the principal, since, until such communication, there can be no presumption of a withdrawal of the original authority. Indeed, the authority would ’ continue until actual notice to the principal; but if the third party suffers a reasonable time for the communication to be made to elapse, and thereafter acts on the assumption that the authority still exists, he does so at the peril of its being shown that the principal had notice before he acted, for he is bound to recognize the presumption that, in the ordinary course of business matters, and of the general affairs of men, communication of the facts will be made to the principal within a reasonable time. What that reasonable time will be, will depend, of course, on the circumstances of each case.

In the present case, all the partners did business in the lower part of the city; a reasonable time to allow for the communication to Morse & Co. of the defendants’ insistence on the further claim could not exceed the day of the transaction. In fact, Morse & Co. had notice of such insistence immediately.

It follows that at the time of negotiation and settlement, hereafter mentioned, the authority of Anderson to receive the securities on the payment of the loans was terminated as to the defendants. As, however, an authority terminated by actual notice may be revived by subsequent acts of the principal, so may one terminated by the happening of circumstances inconsistent with its continuance.

The only act of Morse & Co. which can possibly have such an effect is the conversation found by the referee to have been had between Anthony W. Morse and Mr. Howes, which was as-follows:

“ I (Howes) met Mr. Anthony W. Morse in William street, in Hew York, and stated to him that Anderson had been to see us (the defendants) several times in reference to the loan of $30,000, but no settlement has been made, and we wanted it closed up. Mr. Morse answered that he would see to it, or words to that effect.”

This conversation clearly conferred no actual authority on Anderson to receive the securities.

The question then is—was it calculated to induce in the mind of Mr. Howes a belief that Anderson was authorized to adjust the dispute about that loan, and to receive the securities; and did defendants act on the belief thus induced ?

Anderson had been the broker through whom the loan was procured from defendants.

It was natural that defendants should apply to him to endeavor to procure a settlement, and it would be equally natural that he should feel some interest in having it settled. The conversation in question, taking place under these circumstances, is, in my view, insufficient to induce a belief that Anderson was authorized to make a settlement and receive the securities. Howes mentions a fact which, under the circumstances, was well attributable to causes other than an assumption on the part of Anderson to act as agent for Horse & Co. Morse does so attribute it; and, in his answer, says not “I will see him ” or settle it with him,” but I will see to it;” thereby intimating that he himself, and not Anderson, would attend to the settlement of the matter. This view is strengthened by what subsequently took place.

After the conversation Anderson did not of his own accord go to the defendants to make a settlement, but defendants sent for him. When he came he said he would get an offer from Morse & Co. in final settlement.

This clearly shows that Anderson did not himself consider that he had any power under any previous authority to act further in the matter without instructions from Morse & Co., and plainly indicated to defendants that he had no such power. He does not come himself to propose a settlement, which might be a holding out by him that he came at the direction of Morse & Co.; but he comes at the request of the defendants, and he, in effect, clearly says: I have no power, but will go to Morse & Co. and see if I can get power.

How, if defendants had derived the impression from the conversation that Anderson was empowered to make a settlement, this statement of Anderson would naturally create surprise, and call forth an allusion to the conversation. If defendants did get an impression from the conversation that Anderson was empowered to act, it seems to me it must have been a very weak ■one, and must have been entirely dissipated by the action of Anderson when they sent for him.

These views lead to the conclusion that plaintiffs acted on the statement of Anderson that he was authorized to make an offer which he had no authority to make, and which Morse & Co. had not by any act .of theirs induced defendants to believe that he had authority to make.

Having relied on such untruthful statements, they can look to Anderson only for indemnity against loss arising therefrom. Judgment reversed, new trial ordered, and order of reference vacated, with costs of appeal to the appellant to abide the event.

Fithian, J., concurred.

Monell, J.,

in concurring to reverse the judgment, gave the following opinion:

The evidence in this case establishes that Anderson was authorized to take up the $30,000 loan, and receive the stock. To do this he was authorized to procure another loan from other parties, and with it to pay the defendants. Such authority continued and existed at the time the loan was made of the Phoenix Bank, and justified such loan; and had Anderson paid to the defendants merely the amount of the loan and interest, no question could be raised.

It is, however, equally clear that the allowance and payment of a part of the debt of the old firm, was entirely in excess of Anderson’s authority. The stock had been specifically pledged, and could not, without the consent of the pledgors, be applied to any other indebtedness. Besides, Morse & Go. not only refused to allow their agent to pay the old debt, but the defendants were apprised of such refusal; so that when- they accepted the offer of $32,000, which included about $1,500 of the old debt, they knew that Anderson had no authority to make the payment.

But Anderson’s agency in respect to the payment of the loan had not, at the time of the payment, been revoked, either expressly or by implication. There was no proof of any express revocation, and the only fact from which a revocation could by any possibility be implied, is, that the check of Morse & Go. tendered by Anderson in payment of the loan, was refused (the defendants claiming a further sum), and such refusal and the grounds of it reported to his principals. There is nothing in this, however, tending to show that Morse & Go. intended to terminate the agency so- far as the loan was concerned, whatever effect it might have had upon his right to settle the old debt.

When, therefore, he made the settlement he merely exceeded his authority. The payment of the $30,000 and accrued interest was within his powers; the allowance of any part of the old debt was in excess of them. The act in excess was void, but not the act which was done within the authority. Story says (Story on Ag., § 166), when there is a complete execution of the authority, and something ex abundanti is added, which is improper, then the execution is good and the excess only is void. See the cases cited in sections 167-170 as illustrations, and which establish that a principal .is bound so far as the authority is possessed by his agent.

The defendants not having any right to hold the stock upon the old debt, and the settlement with Anderson being unauthorized, it follows that they have no right to retain the sum they received on that account.

It is not, however, entirely clear that the sum thus wrongly received can be recovered by the plaintiff. But I am inclined to think it can be. The pledged securities were assigned to the plaintiff, and the defendants received payment out of those securities. Such payment deprived the plaintiff of so much of the securities, and I think he can require the return of whatever the defendants received over that indebtedness.

There should be a new trial, when, if my views are correct, the recovery will be confined to the amount paid on the settlement of the old debt.