text:
    J. Martin White and Others, Respondents, v. John C. Schreiber, Appellant.

      Recovery of p&'sonal property — evidence as to the responsibility of officers of a corporation and their liability — statement to a commercial agency — when an error in the reception of evidence will be disregarded.

    Upon tlie trial of an action brought to recover the possession of personal property, it was alleged that the defendant wrongfully took the property and retained it under and by virtue of an execution issued upon a judgment recovered against a certain, corporation; that the property had been sold by the plaintiffs on credit to such corporation; that the sale thereof was induced by the fraud of such corporation, and was, therefore, fraudulent and void, and that no title passed by reason thereof to such corporation.
    Sheridan, the president and business manager of the corporation, was called as a witness by the plaintiffs, and, among other things, he was asked, with reference to the pecuniary responsibility of one Monckton, who was the treasurer of the company and a director thereof, the following question: “ Did you know of his having any property outside of his interest in this stock in 1891? ” This was objected to “ as incompetent and immaterial,” which objection was overruled and an exception taken, and the answer was: “No, sir, I did not; I have not known of his having any property besides his interest in this stock in the past three years.” It appeared that the witness had known Monckton for ten or twelve years, and had been associated with him in business for several years.

      Held, that the objection was properly overruled, and the weight of the evidence was for the jury.
    One Noyes was called as a witness by the plaintiffs upon the trial of such action, and testified that he was the superintendent in the city of Utica of an agency which was organized for the purpose of reporting the financial standing of business firms and corporations and others doing a mercantile business; that he knew the plaintiffs’ firm, and knew Sheridan, the president and business manager of such corporation; that ho had a conversation with Sheridan at a specified date. The question was then asked: “Will you state the conversation?” It was objected to as “incompetent, immaterial and irrelevant, and there is no foundation laid for it.” The court replied: “I think it is competent as the declaration of an officer in charge of the company’s business,” and the objection was overruled and an exception taken. The witness answered: “ I called upon Mr. Sheridan, and I first informed him that I had not found any certificate showing their condition filed with the county clerk; he informed me that they had not filed any; then I stated: ‘ If that is the case, your company is in better condition now than before, and that practically makes your directors liable for all the debts of the concern,’ and he says: ‘ Yes, I understand so; ’ then I says:
    ‘ If that is the case I will change the rating from what it was before, a capital of $5,200.00, and give you a higher credit rating;’ and I says: ‘If there has been no change in the directors or officers of the company, of course they would be personally held liable for the debts;' he said there had been no change; so, on the information received from Mr. Sheridan, I rewrote the report; I asked him if Mr. Callahan was still a director; ho said that he was; that there had been no change in the directors; I always judged Mi'. Callahan to be a man of financial responsibility.” The witness was then asked: “Did this information go into your book which is issued? [Objected to; that witness should not be permitted to state what went into the book. Objection overruled. Exception taken by defendant..]” The witness answered that the rating on which the report was based went into the book. The counsel for the defendant moved to strike out what the witness stated, and the whole of it, all that he stated as having occurred between him and Mr. Sheridan. The motion was • denied and exception taken.
    No objection to the reception of such evidence was taken on the ground that it did not appear that any creditor or any person ever saw or received any information from the rating put into the report.
    It was shown that the statement that Mr. Callahan was still a director of such corporation was not true, and it appeared that he was the only responsible man connected with the business.

      Held, that the denial of the motion to strike out the evidence was proper;
    That it was not clear that enough was not shown to make it proper as a contemporaneous act reflecting on the question of intent.
    After it was proven upon such trial on the part of such defendant that he acted under an execution against such corporation and a valid levy was conceded, the plaintiffs called the defendant as a witness and asked the question: “Were you indemnified in this case?” This was objected to as “incompetent, irrelevant and immaterial.” The objection was overruled and an exception was taken.

      Held, that although, strictly speaking, the ruling might be erroneous, the reception of such evidence did not harm the defendant, and upon an appeal taken in his behalf the judgment rendered against him should be affirmed.
    Appeal by the defendant, John C. Schreiber, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 18th day of January, 1894, upon the verdict of a jury rendered after a trial at the Oneida Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 1st day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the possession of a quantity of hop sacking. It was alleged by the plaintiffs that on the 20th of August, 1892, they were the owners of the property and entitled to its possession, and that on that day the defendant wrongfully took tlie same and detains it although demanded by the plaintiffs; that on the 23d of March, 1892, and the 19th of April, 1892, the plaintiffs sold and delivered the property on credit to the Sheridan Scotch ■Cap Company, a domestic corporation doing business at Utica; that .said company was then to its own knowledge insolvent, but concealed that fact, and obtained the goods with the preconceived ■design and intent at the time not to pay for the same, and with the intent to cheat and defraud the plaintiffs; that the sale was fraudulent and void and no title to the goods passed; that on or about the •20th of August, 1892, the defendant, as sheriff of Oneida county, .levied on the same under an execution against the company in favor ■of one Shanghnessy. The answer was a general denial and a justification under the execution. The verdict awarded the possession to the plaintiffs and fixed the value at $881.

      W. E. Lewis, for the appellant.

      Jones <& Townsend, for the respondents.
   Mbrwin, J.:

No point is made by the appellant on the facts. It is, however, claimed that the court erred in three of its rulings on the admission of evidence:

1. James P. Sheridan, who was the president of the company and its business manager, was called as a witness by the plaintiffs, and, among other things, he was asked, with reference to the pecuniary responsibility of one Monckton, who was the treasurer of the company and a director, the following question : “ Did you know of his having any property outside of his interest in this stock in 1891 ? ” This was objected to “as incompetent and immaterial,” and objection overruled and exception taken, and the answer was: “ No, sir ; I did not. I have not known of his having any property besides his interest in this stock in the past three years.” The suggestion on the part of the defendant is that, conceding that it was proper for the plaintiffs to show the financial responsibility of Mr. Monckton, the method of -doing it permitted by the court was improper .and that the negative evidence of Sheridan was not admissible. It .■appeared that Sheridan had known Monckton for ten or twelve years, and had been associated with him in business for seve'ral years. The objection was, we think, properly overruled. The weight of the evidence was for the jury. The circumstances as to Monckton’s responsibility the plaintiffs had a right to show. No report had "been filed by the company in January, 1892, so that the directors were personally liable to a certain extent.

2. One W. T. Noyes was called as a witness by the plaintiffs and testified that he was the superintendent in Utica of the Bradstreet Company, an agency which was organized for the purpose of reporting the financial standing 'of business firms and corporations and others doing a mercantile business, and had offices in all the principal cities in the United States; that he knew the plaintiffs’ firm, and knew Sheridan and liad a conversation with him on the 19th of February, 1892, at the office of the Sheridan Scotch Cap Company. The question was then asked : “Will you state the conversation ? ” This was objected to “ as incompetent, immaterial and irrelevant, and there is no foundation laid for it.” The court replied “I think it is competent as the declaration of an officer in charge of the company’s business,” and the objection was overruled and exception taken. The witness answered : “ I called upon Mr. Sheridan, and I first informed him that I had not found any certificate showing their condition filed with the county clerk; he informed me that they had not filed any;. then I stated, ‘ If that is the case, your company is in better condition now than before, and that practically makes your directors liable for all the debts of the concern;’ and he says, ‘ Yes, I understand so; ’ then I says,c If that is the case, I will change the rating from what it was before, a capital of $5,200.00, and give you a higher credit rating; ’ and I says, ‘If there has been.no change in the directors or officers of the company, of course they would be personally held liable for the debts; ’ he said there had been no change; so on the information received from Mr. Sheridan, I rewrote the report; I asked him if Mr. Callahan was still a director; he said that he was ; that there had been no change in the directors; I always judged Mr. Callahan to be a man of financial responsibility.” The following then occurred: “ Q. Hid this information go into? your book which is ■ issued ? [Objected to that witness should not be permitted to state what went into the book. Objection overruled. Exception taken by defendant.] A. The rating on which this report is based went into the book. Counsel for defendant: I ask to strike out what this witness has testified to, and the whole of it; all that he states as having occurred between him and .Mr. Sheridan. The Court: That I refuse. Exception taken by defendant.”

It is claimed that the court erred in admitting the testimony of Noyes, and that the motion to strike out should have been granted. The argument is that it did not appear that any creditor or any person ever saw or received any information from the rating put into the report. This objection was not taken, and, if it had been, it may be that it might have been obviated. The company was evidently getting a good deal of credit about that time. Besides, it does not seem to be entirely settled that enough was not shown to make it proper as a contemporaneous act reflecting on the question of intent. The statement that Mr. Callahan was still a director was not true. It already appeared that he was the only responsible man connected with the business, and Mr. Sheridan, for the company, was willing a rating should be based on his responsibility, and it was so entered. In Hersey v. Benedict (15 Hun, 282, 287) Judge Talcott says: “ The same principle upon which the evidence of cotemporaneous frauds is admitted, as bearing on the intent of the party in committing the fraud principally in question, would lead to the admission o.f evidence of an attempt to commit a similar fraud, at about the same time, by similar means, whether successful or not.”

We are not satisfied that there was any such error, in admitting the evidence or in denying the motion to strike out, as would properly call for a reversal.

3. After it was proved on the part of defendant that he acted under an execution against the company and a valid levy was conceded, the plaintiffs called the defendant as a witness and asked the question : “Were you indemnified in this case?” An objection to this as “incompetent, irrelevant and immaterial” was overruled and exception taken. This ruling is claimed to be erroneous. This, strictly speaking, may be so, but it is a little difficult to see how the defendant was harmed. The real controversy was- between the plaintiffs and the judgment creditor whom the defendant represented, and the defendant had no personal interest in the matter. Without the evidence on the subject, the jury would very likely have inferred that the sheriff was in fact indemnified.

We are of the opinion that no sufficient reason for reversal appears and that the judgment should be .affirmed.

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

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    Joseph Loeb and Others, Respondents, v. Frank R. Keyes and Another, Appellants.

      Action on a promissory note — •defense of an agreement to talceup notes — an account, not delivered, is not an account stated.

    It was shown upon the trial of an action brought upon a promissory note that an agreement was made between the parties by which the plaintiffs were from time to time to sell the defendant Keyes tobacco, for which said defendant was to give his promissory notes indorsed by a third person, and the plaintiffs agreed to give him credit from time to time for such notes so given. In addition to his notes said defendant agreed to turn over to the plaintiffs such customers’ paper (of said defendant) as might be acceptable to the plaintiffs, and they agreed to give him credit for such customers’ paper; that as the defendant Keyes’ own notes became due from time to time, if he had sufficient credit with the plaintiffs on account of such customers’ notes so credited to him, then his own notes were to be taken up by the plaintiffs and returned to him. Such agreement was to continue during the pleasure of the plaintiffs.

      Meld, that if, at any time, there was not sufficient credit from customers’ notes, then, under the agreement, there was no obligation on the plaintiffs to take up the defendant’s notes, and if the plaintiffs had in their hands only the defendant’s promises to pay, they were under no legal obligation to use such notes for the purposes of paying or canceling any'particular note of the defendant which had become due.
    Where an account has not been rendered it is not a stated account.
    Appeal by tlie defendants, Frank R. Keyes and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 7th day of August, 1891, upon the report of a referee.
    The action was on a note dated at Binghamton January 12,1893, made by the defendant F. R. Keyes to the order of and indorsed by the other defendant for $1,442.82, payable at First National Bank, Binghamton, N. Y., six months from date. The defense was payment. The recovery was for the sum of $1,382.48, with interest from July 15, 1893. This action was commenced August 12, 1893.

      *George F. Lyon, for the appellants.

      Downs <& Smith, for the respondents.
   Merwin, J.:

The plaintiffs were dealers in tobacco in the city of Philadelphia, Penn., and the defendant F. R. Keyes was a dealer in Binghamton. In the month of October, 1892, they made an agreement by which plaintiffs were to sell said Keyes tobacco from time to time, for which said Keyes should give promissory notes endorsed by said Oora W. Keyes, and that the plaintiffs should give him credit from time to time for such notes so given ; that in addition to his own notes the said Keyes was to turn in to plaintiffs such customers paper (of said Keyes) as might be acceptable to the plaintiffs, and that they should give him credit for such customers paper; that as said Keyes’ own notes became due from time to time, if he had sufficient credit with the plaintiffs on account of such customers notes so credited to him, that his own notes should be taken up by plaintiffs and returned to him; that such agreement was to continue during the pleasure of the plaintiffs.” In pursuance of this agreement the parties had a series of transactions extending from the month of October, 1892, to July or August, 1893.

On January 12, 1893, the plaintiffs sold Keyes a quantity of tobacco for the price of $4,328.44, and in payment of the same Keyes gave three notes, dated that day, for $1,442.82 each, due respectively in four, five and six months after date, to the order of and indorsed by the defendant O. W. Keyes. The last one of these became due July 15, 1893, and is the note in suit. The tobacco was never delivered to Keyes, but by a subsequent arrangement the plaintiffs were to sell the same and give Keyes credit for the amount they should receive, which they accordingly did. In keeping the account the plaintiffs, at the time of the sale, charged Keyes with the price of the goods ■■ and credited him with the notes given. On the resale of the goods the plaintiffs credited Keyes with the amount, the date being May 12, 1893. When the first and second notes became due they were charged to Keyes, and no question is made about them here. When’the note in suit became due it was not in fact paid, but the defendants claim that there was then a credit to them on the books of the plaintiffs which wras applicable to the payment of this note, and that the plaintiffs under their agreement were bound to pay it. .

Under the agreement which, it is to be observed, was to continue only during the pleasure of the plaintiffs, it was provided that plaintiffs should take up Keyes’ notes when they became due, “ if he (Keyes) had sufficient credit with the plaintiffs on account of such customers notes so credited to him.” It is not shown that Keyes, at the time the note in suit became due, had sufficient or any credit then from such customers’ notes, and it is found by the referee the at that time “ said Keyes had already been credited by plaintiffs with the amount received by them on the resale of the tobacco mentioned in the aboye sixth finding, but that said Keyes did not have to his credit with plaintiffs sufficient customers paper, including said last-mentioned credit, to pay and take up the note in suit, or any part thereof.” The evidence justifies this finding. On the 5th of July,'1893, when the last credit of any'kind was made, there was an apparent balance of credit to Keyes of about $8,900. There were then outstanding notes of Keyes, given by him to plaintiffs and for which he had received credit, to the amount of about $10,300. These were five in number, and one of them was the note in suit. The other four amounted to about $8,900, and were given in renewal of notes given on purchase of goods. ' These renewals formed a part of the aggregate credit to Keyes, and deducting them there was practically no credit applicable to the note in suit. One of these renewals was due July fourth and the others July eighteenth, August eighth and eighteenth.

If there was not sufficient credit from customers’ notes, then under the agreement there was no obligation on plaintiffs to take up the notes. The plaintiffs, it may be said, had only in their hands defendants’ promises to pay, and there was on them no legal obligation to use those for the purpose of paying or canceling the note in suit.

But the defendants say the plaintiffs have stated an account in which this note is charged off, and so they are bound as by an account stated. The argument is mainly based on Schedule 0, which is dated November 14,1893, and is a transcript of the plaintiffs’ books, and is in form an account of the dealings between plaintiffs and Keyes, the latest date of an entry being August 18, 1893. In this account, which apparently was made up after this suit was commenced, the note in suit is charged to Keyes under date of August 8, 1893, and the other four notes above referred to are also charged to Keyes. Each side is footed and then below is entered “ Balance due J. Loeb & Co., |jl,382.48.” This appears to be the balance of the two columns. It does not appear that this account was ever rendered to Keyes. It was not, therefore, a stated account. (Allen v. Culver, 3 Den. 284.) The only account in fact rendered was dated July 5, 1893. That is headed “ Statement,” and in it the note in suit was not charged to Keyes, and it does not appear whether the plaintiffs then held it. There was, however, a memorandum of this and the four other notes above referred to, and they are added to the charges against Keyes, the amount of credits is deducted and a balance is shown due plaintiffs of $1,379.78. On July 11, 1893, the plaintiffs write Keyes, “You will jilease send us settlement for balance due us as per statement left with you by our Mr. E. Loeb, afonce.” Keyes did not respond and this suit was brought on August 12, 1893. We fail to see here any account stated which bound the plaintiffs to treat the note in suit as paid.

We are of the opinion that the referee did not err in holding that the defense of payment was not made out. The defendants cannot complain of the amount of the recovery, as it is only for the amount conceded to be due from Keyes. The judgment should be affirmed.

Hardin, P. J., concurred; Martin, J., not voting.

Judgment affirmed, with costs.


text:
    George Alden, as Receiver, etc., of John La Grange, Respondent, v. Edward K. Clark, Appellant, Impleaded with John La Grange.

      Amendment of pleadings to conform them to the facts proven — Code of Civil Procedure, § 723 — chattel mortgage, void as to creditors.

    Under the provisions of section 728 of the Code of Civil Procedure, power is given the court to conform the pleadings to the proof only in a case “where the amendment does not change substantially the claim or defense.”
    Upon the trial of an action brought by a receiver in supplementary proceedings to set aside a chattel mortgage given by a judgment debtor November 30, 1889, and filed January 30, 1891,' the defendant (the chattel mortgagee) alleged that he took possession of the property covered by the mortgage on January 20, 1891, and continued in the possession thereof. The chattel mortgage was given to secure indorsements, and one item of the property covered thereby was “interest in Diebokl safe.” It appeared that the judgment debtor purchased the safe for $255, payable in six months, under an agreement that the title should be in the vendor until the price was paid. It was alleged in the complaint, and not denied in the answer, that prior to December 31, 1890, all of the price had been paid except the sum of $102, and that on or about that date, and prior to the time the chattel mortgagee alleged he took possession of the property of the judgment debtor, the balance due on the safe was paid in full by the judgment debtor. Also that the plaintiff, before the commencement of the suit, called on the mortgagee with reference to the mortgage; that the mortgagee then insisted that the mortgage was valid, and said that he claimed the property and would have nothing to do with the plaintiff.
    On the trial the plaintiff proved that after the commencement of the action the mortgagee sold and delivered the safe for $197.50.
    The defendant, over the plaintiff’s objection that it was not admissible under the pleadings, gave evidence tending to show that he purchased of the vendor of the safe the contract for the sale thereof to the debtor, paying either $102 or $127 for the same, and that thereafter, January 20, 1891, he took possession thereof.
    A motion of the mortgagee, made at the close of the case, to conform the pleadings to the proof, was denied by the trial j udge on the ground that he had not the power to grant the same.

      Pteld, that at the commencement of the trial the defense set up in the answer was insufficient; '
    That the amendment sought, if it amounted to anything, would substantially cbange the defense set up in the answer, and so would not be admissible;
    That if, on the other hand, the amendment was not material, the defendant was not prejudiced by the denial of such motion;

      That the most that the mortgagee would he entitled to under the evidence would he to he subrogated to the right of the vendor of the safe as it existed when the mortgagee paid for the safe, which was a right to receive the balance of the purchase price of the safe.
    A receiver of the property of a judgment debtor, appointed in proceedings supplementary to execution issued upon a judgment against such debtor, is in a position to attack a chattel mortgage given by the judgment debtor to a third person.
    Appeal by the defendant, Edward K. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 23d day of May, 1894, upon the decision of the court rendered after a trial at the Broome Special Term declaring void and setting aside a chattel mortgage.

      Edward K. G larle, for the appellant.

      Leroy Bennett, for the respondent.
   Merwin, J.:

This action is in the nature of a creditor’s bill, brought by the plaintiff as receiver appointed in proceedings supplementary to execution upon a judgment in favor of Halsey W. Noyes against the defendant John La Grange, recovered January 12, 1891. The object of the action is to set aside, as fraudulent and void as to plaintiff and the debt and judgment he represents, a chattel mortgage given by La Grange to Clark November 30,1889, but not filed until January 30, 1891, and no possession taken until January 20, 1891. The relief asked in the complaint is that the mortgage be set aside, and the property covered by it be subjected to the payment of the claims of the judgment debtor and the costs and expenses incurred, and for such further judgment or relief as may be equitable. The defendant Clark answered, but on demurrer it was held on appeal to the General Term that his first and second defenses were insufficient in law upon the face thereof. That left of the answer only an allegation under the head of a third defense that the defendant, on the 20th of January, 1891, took possession of the property covered by the mortgage and has since continued in possession. Upon this allegation or so-called defense no particular point was made at the trial or any request by defendant to find in regard to it. The chattel mortgage was given to Clark to secure indorsements, and one item of the property covered was “interest in Diebold safe.” It appeared that in March, 1888, La Grange purchased this safe of one Butler for the price of $255, payable in six months, under an agreement that the title should be in Butler until the price was paid. It was alleged in the complaint and not denied in the answer that previous to December 31, 1890, all of the price had been paid except the sum of $102, and that on or about the 31st of December, 1890, La Grange paid or caused to be paid the sum of $102 in full of the price. It was also alleged in the complaint and not denied in the answer that the plaintiff before the commencement of the suit called on Clark with reference to the mortgage and that Clark then insisted that the mortgage was valid and said he claimed the property and had nothing to do with the plaintiff. On the trial the plaintiff proved that after the commencement of this action Clark sold and delivered the safe to one Freeman for the sum of $197.50. Mr. Clark then, over the objection of plaintiff that it was not admissible under the pleadings, gave evidence tending to show that on the 31st of December, 1890, he purchased of Butler the contract for the safe, paying him therefor either the sum of $102 or $127, and thereafter, on the 20th of January, 1891, he took possession of it. At the close of the evidence, the defendant Clark asked the court to conform the pleadings to the proof and this the court declined to do, on the ground that it had not the power to do so. It is claimed that this was reversible error.

By section 723 of the Code of Civil Procedure power is only given to conform the pleadings to the proof in a case “ where the amendment does not change substantially the claim or defense.” Apparently under the evidence given Clark claimed that he had through his purchase from Butler an absolute title to the safe. As his answer stood, it was insufficient as a defense. The amendment sought, if it amounted to anything, would substantially change the defense set up in the pleading and so would not be admissible. If the amendment was not material, then the defendant has not been hurt. The defendant on the decision of the demurrer had been given leave to amend, but had not .availed himself of the privilege. We are not persuaded that the court erred in its ruling.

Besides, if all the evidence given be considered, the decision is substantially correct. Tire most that Clark would be entitled to under the evidence would be to be subrogated to the right of Butler as such right existed when Clark paid him. That right was to receive the balance of the price. In the decision Clark is allowed the amount he paid Butler and the expenses of removing the safe. For the balance of what he received upon the sale by him a personal judgment is awarded against him. This he cannot complain of. (Murtha v. Curley, 90 N. Y. 376 ; Campbell Printing Press Co. v. Damon, 48 Hun, 509.) He refused before suit to recognize the rights of plaintiff, and after suit he sold the property and he only accounts for what he received. Fie claimed an item for office rent, but the court properly ref used to allow it. The court correctly held that the safe was not shown to be exempt. There is no doubt that the plaintiff was in a position to attack the mortgage (Mandeville v. Avery, 124 N. Y. 385 ; Stephens v. Perrine, 143 id. 476), and that as to him and the debt and judgment he represented it was void (Karst v. Gane, 136 N. Y. 316; Thompson v. Van Vechten, 27 id. 568) so far as the safe was concerned. No other item in the mortgage was in dispute.

"We find no good reason for reversing the judgment, and it, therefore, should be affirmed.

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

Judgment affirmed, with costs.


author: Martin, J.:

text:
    Loretta McConnell, Appellant, v. George F. Barber and Another, Respondents.

      Fraudulent conveyance — payment of a claim barred by the Statute of Limitations — agreement to pay compound interest.

    The fact that an indebtedness of a judgment debtor to his wife was, at the time of the transfer of his real estate to her in payment of such indebtedness, barred by the Statute of Limitations, does not necessarily render the transfer fraudulent as to creditors. It is merely a circumstance to be considered in passing upon the good faith of the transfer.
    The consideration for such a transfer may be in great part' compound interest, since an agreement, made after interest has accrued, to pay interest upon interest is valid.

      Appeal by the plaintiff, Loretta McConnell, from a judgment of the Supreme Court in favor of the defendants, entered in the office ■of the clerk of the county of Cortland on the 14th day of August, 1894, upon the decision of the court rendered after a trial at the ■Cortland Special Term dismissing the complaint.

      B. T. Wright, for the appellant.

      E. JD. Orosley and T. E. Gourtney, for the respondents.
   Martin, J.:

This was an action in the nature of a creditor’s bill Its purpose was to set aside a deed given by George F. Barber to the defendant Marcellie I. Barber. The defendants were husband and wife.

The Special Term found that the deed was made in good faith, without any intent to hinder, delay or defraud the creditors of George F. Barber, the judgment debtor; that 'it was based upon a good and sufficient consideration; held that the conveyance in question was valid, and directed a judgment accordingly, with costs.

The appellant contends that the findings of the trial court were against the weight of evidence, and should not be upheld. A thorough and careful examination of the evidence discloses that the question of the intent with which the conveyance under consideration was made, was one of fact to be determined by the trial court. While there were circumstances which, unexplained, might have justified the court in inferring that the transfer was fraudulent, yet, if the court gave credit to the evidence of the defendants and their witnesses, it was sufficient, we think, to justify the decision of the trial court.

Where a review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court. Yet, great consideration will be accorded to its opinions, especially where there is evidence on both sides and the mind of the court has been called upon to weigh conflicting statements and inferences and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the • appellate court is not warranted.in reversing upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course it should appear that the findings of the trial court were against- the weight of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its-conclusion. (Westerlo v. De Witt, 36 N. Y. 340 ; Crane v. Baudouine, 55 id. 256 ; Sherwood v. Hauser, 94 id. 626; Baird v. Mayor, etc., of City of N. Y., 96 id. 567 ; Lowery v. Erskine, 113 id. 52 ; Devlin v. The Greenwich Savings Bank, 125 id. 756 ; Barnard v. Gantz, 140 id. 249.) Applying the doctrine of these authorities to this case, we think the findings of the Special Term should not be disturbed.

The fact that the indebtedness to the wife of the judgment debtor, which was the consideration for this transfer, was barred by the Statute of Limitations, and had been standing twenty-seven or twenty-eight years without the payment of any interest thereon, was a circumstance to be considered by the trial court in determining tii© question of good faith; but it was not controlling, as the Statute of Limitations might be waived and the transfer be valid as to creditors. (Bump on Fraud. Conv. 220.)

The appellant also insists that, as the consideration for this transfer consisted to a great extent of compound interest, it was invalid. In Stewart v. Petree (55 N. Y. 621, 623) Allen, J., said : But a prospective agreement, after the interest has accrued, to pay interest-thereon, is valid; and money paid for compound interest cannot be recovered back. So, too, a security for interest upon interest, given after it has accumulated, and in the absence of any prior undertaking to pay it, is valid, and supported by a good consideration.” At its last term, in a case in which no opinion was written, this court. held that a note payable in future, given for compound interest, was valid, and could be enforced. Following the doctrine of these authorities leads to the conclusion that, if the transaction between the defendants was free from actual fraud or fraudulent intent, the consideration was sufficient to uphold the conveyance in question.

Although it must be admitted that, if the consideration for this ■ transfer was fictitious, and, consequently, fraudulent, and such fraud was participated in by both parties, it would be void, yet, as in this - case the court has, upon sufficient evidence, found that the consideration was not fictitious or the transfer fraudulent, that principle has no application.

We are of the opinion that the evidence was sufficient to sustain the findings of the trial court, and the judgment should be affirmed.

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

Judgment affirmed, with costs.


author: Merwin, J.: Martin, J.

text:
    William E. Dorwin and Another, Respondents, v. John B. Westbrook, Appellant.

      Engineer's final estimate — proof as to a different classification of similar worlc done at another place — fraud in making estimates — written instrument under seal, when disrega/i'ded.

    A contract to perform work and furnish materials for the construction of a railroad provided that the engineer of the work was, after its completion, to certify by a final statement the amount of the work done. Two sub-contractors brought an action against the contractor for an amount alleged to be due them upon the contract, and alleged in their complaint that the final estimate of the engineer was false to his knowledge, and was so made in order to defraud the plaintiffs.

      Held, that it was erroneous to admit, upon tlie trial of the action, evidence that upon other excavations in other places the engineer had classed as solid rock material similar to that which he refused to class as solid rock in the excava- " tion in question, it not appearing that the contract under which such classification was made was the same as the contract in the present case ;
    That if the engineer was guilty of fraud in making his final estimate, the plaintiffs might recover, upon proof of performance, without connecting the contractor with the fraud.
    Where written instruments under seal are signed by parties having full opportunity to know their contents, they cannot be disregarded except upon reasonably clear proof that their execution was obtained by fraud.
    Martin, J., dissenting.
    Appeal by the defendant, John B. Westbrook, from a judgment of tlie Supreme Court in favor of the plaintiffs, entered in tlie office, of the clerk of the county of Tioga on the 9th day of June, 1894, upon the verdict of -a jury rendered after a trial at the Tioga Circuit ; also from an order entered in said clerk’s office on tlie 26th day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made during the trial denying the defendant’s motion for a nonsuit.
    The plaintiffs were sub-contractors under the defendant to perform a part of a contract to construct a railroad. The contract provided that the engineer, one Roberts, should, after the work was completed, certify by a final statement the amount of work done and his determination was to be conclusive upon both parties to the contract.
    The character of the contract sued upon and the nature of the claim of the plaintiffs appear in the report of the case on a former appeal (71 Hun, 405).

      Thomas D. Lusted and 8. D. LalUday, for the appellant.

      Martin 8. Lynch, for the respondents.
   Merwin, J.:

After the decision of this case on a former appeal (71 Hun, 405) the complaint was amended by adding allegations that the final estimates of the chief engineer, Roberts, were inaccurate and false to his knowledge, and were so made for the purpose of cheating and defrauding the plaintiffs, and that the defendant refused to appear with plaintiffs before the engineer, for the purpose of obtaining correction of the same. The main issues litigated at the trial now under review were whether the action of the engineer was in bad faith and fraudulent, and whether the release of the 8th of April, 1892, signed by the plaintiffs was operative. Both of these issues were found in favor of the plaintiffs. The defendant claims that as to the release the verdict is against the evidence, and he also claims that the court erred in admitting in evidence declarations of the engineer as to the character of the excavation in controversy, and also his acts in regard to classification of other excavations. The declarations of the engineer tending to show that he in fact knew that his final estimate was wrong would seem to be competent on the issue as to his fraudulent intent. His acts as to other excavation with which the defendant was not connected present a different question. The plaintiffs called as a witness one Harvey, an engineer, who testified that in 1891 he was engaged on the railroad, though not at the particular place in question, and had been on the road and examined the cuts and borrow pit in question; that he knew what classification the engineer, Roberts, placed upon similar material to that taken out of this piece on other parts of that line, and the witness was then allowed to state, over the defendant’s objection and exception, that Roberts classified similar cuts as solid rock. This is claimed to be competent on the subject of the intent of the.engineerin.the classification of the plaintiff’s work at a less rate of solid rock. It, however, called for the investigation of a subject outside of defendant’s contract, and which defendant would not be supposed to be prepared to meet. It did not appear that the contracts under which such classification was made were similar to the contract here. In some cases other contemporaneous acts of fraud are admissible on the, question of intent. The rule is one that needs to be carefully applied, especially when the rights of third persons are involved. We think it should not be applied here, and that the evidence objected to was improperly admitted. Nor can we properly say that it was harmless.

The defendant also claims that the court erred in declining to charge that the plaintiffs cannot recover by reason of any fraud or dishonesty of the chief engineer in the final estimate, without connecting the defendant Westbrook with that fraud.” In Sweet v. Morrison (116 N. Y. 19), which was a case quite similar to this as to the situation of the engineer, it was said at page 31 that, “ in the absence of proof of corruption, bad faith or misconduct on his part, or palpable mistake appearing on the face of the estimate, neither party can be allowed to prove that he (the engineer) decided wrong as to the law or facts.” The inference would be that if bad faith and fraud on his part were shown, the estimate would not be conclusive. An award may be attacked for fraud on the part of the arbitrator. (Masury v. Whiton, 111 N. Y. 679 ; Hoffman v. De Graaf, 109 id. 638 ; Perkins v. Giles, 50 id. 232 ; Morse on Arbitration & Award, 539.) If an architect’s certificate is refused in bad faith or unreasonably, a recovery may be had on proof of performance. (Bowery National Bank, v. Mayor, 63 N. Y. 336 ; Doll v. Noble, 116 id. 233.) We think that the court did not err in declining to charge as requested. If, for any reason, in order to protect the rights of the defendant with the railroad company, the latter should have been made a party to the litigation over the estimate of the engineer, the defendant should have taken the proper steps to have brought the company in. No defense on that line is set up.

Upon the subject of the release, the claim of the plaintiffs, in subtance, is that its execution by the plaintiffs was fraudulently procured by tlie defendant or his agents. The plaintiffs were partners and the release was signed by the plaintiff W. E. Dorwin in the name of the firm, and no question is made about his authority to sign for the firm such an instrument. It was under seal, and that, as the court charged, and as we must assume, was conclusive evidence of consideration. (Gray v. Barton, 55 N. Y. 71.) Dorwin testified that he did not know the contents of the paper; that he was told that it and other papers he there signed were receipts, and signed them on that supposition. The court charged that if Mr. Dorwin knew it was a release he was signing, or if Mr. Dorwin was not deceived by the statement made to him, that it was a receipt, did not rely upon that statement, might as easily have read it as not, but was deterred from reading it, only by the fact that he relied upon the statement that it was a receipt, it was his duty to know what he was signing, and he is barred by this paper; ” that he has got to satisfy you that he did not understand that he signed that paper, knowing it to be a release, but that he was deceived purposely and intentionally by those parties who called it a receipt and directed his attention from the true condition of affairs, and thereby got a discharge of the claim without his knowing it. The burden of proof is with him to satisfy you upon all those facts.” The jury in effect, therefore, found that Dorwin did not know that he was signing a release, and that the defendant or his agent purposely deceived him, and by artifice obtained his signature.

The transactions between the parties on the 8th of April, 1892, related to two contracts for railroad work. As to one there appeal’s to have been no complaint at any time about the final estimate of the engineer. The other was the contract on which this action is based. Upon that occasion the plaintiff W. E. Dorwin signed eight papers, four as to each contract, there being as to each a receipt in full, a .release under seal, a surrender in writing of the original contract, and an affidavit of no outstanding claims against the property. The papers were prepared by Mr. Ilusted, who was present, acting as attorney for the defendant, and the release, affidavit and receipt of each set were attached to the original contract upon which the surrender was written. The receipt and surrender were signed “W. E. Dorwin & Co.,” the release “W. E. Dorwin & Co. by W. E. Dorwin,” and the affidavit “W. E. Dorwin.” The releases were acknowledged, and the affidavits sworn to before Mr. Husted as notary public. A week or two before this, Mr. Dorwin called on the defendant, and, as Mr. Dorwin testifies, claimed that the estimate of the engineer was .not correct, and wanted the defendant to go to the engineer and have it corrected, to which defendant replied that “ he couldn’t go, and told me to go and do 'the best that I could and he 'would be satisfied with whatever I did.” Dorwin saw Roberts the next day, but he refused to change the estimate. At the interview on the eighth of April, nothing, so far as appears fromjhe testimony of Dorwin, was said about, his interview with Roberts. They figured up the amount due on the basis of the engineer’s estimate, and then the defendant, at the request of Dorwin, drew and gave him eleven checks for different amounts, being amounts that plaintiffs owed to different parties. A statement of the account was prepared and given to Dorwin. This ■was headed, “W. E. Dorwin & Co., in acc. with John B. Westbrook,” and the first item ivas a credit “Mch. 29, By balance rendered, $7,431.70.” The eleven checks were then charged, each being described,, and amounting in the aggregate to $6,286.81, and the last entry was “by balance, $1,144.89.” This balance, as it seems to be conceded, -was held by defendant to await the discharge of two liens understood to have been filed. After the checks were drawn then, as Dorwin testifies, “ Mr. Husted handed me over some papers, with one hand on the papers, and said ‘Sign those receipts,’ and took the other hand and turned them up and showed me what to sign and I read nothing and saw nothing read; there was not one single word read to me on that day. * * * I signed a number of times because I was receiving a number of different checks. * * * Mr. Husted didn’t take any acknowledgment from me at that time and I didn’t swear to any affidavit. * * * When I signed those papers, I had no knowledge of wliat the papers contained. I never had read them or heard them read, and their contents was not stated to me in any way. * * * I believed I was signing receipts for the money that I got for the several checks.” On the part of the defendant it was shown by the testimony of the defendant himself, his clerk who drew off the account, and Mr. Husted, that all the papers, including the releases, were read over to Mr. Dorwin, and that there was then a complete and full settlement of both contracts. Taking the version of Mr. Dorwin to be correct, nothing was done to prevent Ms reading the papers; they were called receipts, but nothing was said that they were only receipts for the checks or the money represented by the checks. Dorwin made no reservation of his claim for wrong classification. The defendant testifies that Dorwin said lie had concluded to settle on the basis of the estimate as made, and his acts as testified to by himself render that probable ; and, besides, he does not deny that he made the statement as the defendant testified. The defendant had other railroad contracts; and Dorwin, prior to this occasion, had, as he admits, knowledge of the custom of defendant, on the settlement of his contracts, to require the execution of releases such as were executed here. He then must have known that as to the undisputed contract involved in this transaction the defendant would be apt to require such a release. Dorwin says he supposed that all the papers he signed were ordinary receipts for the moneys represented by the checks, but the truth of this supposition is shaken by the fact that he signed in different ways. He was a business man of long experience. This supposition is also shaken by the fact that in calling by letter on the fourth of May following, for the balance of the money reserved, he referred to it as being already receipted for.

The claim of the plaintiffs is in substance that the release and surrender were procured by fraud. The evidence does not, we think, sustain this claim. Written instruments, signed by parties who have full opportunity to know their contents, should not be stricken down unless the evidence is reasonably clear that in obtaining their execution a fraud has in fact been committed. The verdict in this case to the effect that the defendant or his agents purposely deceived Mr. Dorwin, and by artifice obtained his signatures, and that he did not understand the true character of the papers, is, we think, against the weight of the evidence.

The judgment and order should be reversed and new trial ordered, costs to abide the event.

Hardin, P. J., concurred.

Martin, J.

(dissenting):

The recovery in this action is obviously just. That the defendant was indebted to the plaintiffs to an amount at least equal to the amount of tlie verdict clearly appears from tlie evidence. Tlie jury was warranted in finding that tlie work performed by tlie plaintiffs was incorrectly classified by tlie engineer in charge and that lie acted fraudulently and in bad faith in making such classification. The classification having been found to be fraudulent and made in bad faith, it was not binding upon the parties.

I think the evidence of tlie witness, Harvey, which showed that the engineer in charge had classified similar material taken out on the same line as solid rock, while he classified that taken out by the plaintiffs as only forty per cent solid rock, was admissible to show that the engineer was acting in bad faith in making such classification.

Nor was tlie finding of the jury that the signatures to the releases signed by the plaintiffs were obtained fraudulently so far against the weight of evidence as to justify us in granting a new trial. The question whether tlie plaintiffs’ signatures to such releases were obtained by artifice and by the fraudulent representations of tlie defendant that they were only receipts for the money which he paid to the plaintiffs, or whether, as claimed by the defendant, they were read over to the plaintiff Dorwin and understood by him, was a question of fact for the jury. While upon that question the defendant had tlie greater number of witnesses, yet the plaintiffs’ testimony was corroborated by circumstances which tended to render it improbable that he would have signed the releases in question unless the alleged fraudulent representations had been made. Upon that question the testimony was conflicting, and it ivas properly submitted to the jury. It is not enough that this court might have reached a conclusion adverse to that of the jury as to the force and weight of tlie evidence. A verdict should be set aside on the ground that it is against the weight of evidence only where it is so clearly and manifestly against the preponderance of evidence as to furnish proof in itself that the jury was influenced by passion, prejudice, corruption, gross ignorance or mistake. Applying that rule to this case, it becomes quite obvious that the verdict should not be disturbed.

Moreover, if the court were of the opinion that the discretionary power which rested in the trial judge to set aside the verdict as against the weight of evidence was not properly exercised, and that anew trial should be granted upon that ground, it should be granted only upon the payment of costs by the appellant.

I think the judgment should be affirmed, or, if a new trial is to be granted on the ground that the verdict is against the weight of evidence, it should be upon the payment of costs by the defendant.

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


text:
    William Youmans, Respondent, v. Julia D. Forsythe, Appellant.

      Bvidence — expressions of the court as to issues subsequently referred — affirmance by an infant after majority.

    An action was brought for the specific performance of a contract relating to real estate, for an accounting of its rents and profits and for damages for loss or injury to certain personal property. After the trial had proceeded to some extent, the trial justice made some statements of conclusions which he had reached, saying, among’ other things, that in his opinion the count for specific performance was not made out. lie commented upon other issues of the case and then referred all the issues except the one as to specific performance, which the order of reference expressly declared to have been decided by the court in favor of the defendant.
    Upon the trial before the referee he admitted in evidence what was alleged to be a copy of the remarks made by the justice in referring the case.

      Held, that such admission was erroneous;
    That, if this so-called opinion of the court, expressing- opinions in regard to some of the issues which had been referred, had been sufficiently authenticated to be admitted in evidence, it would have been inadmissible;
    That it was calculated to affect the decision of the referee, and the error committed in admitting it required a reversal of the judgment entered upon the referee’s report.
    Where an infant goes into possession of property which she has purchased, and upon her majority ratifies the contract of purchase thereof, and remains in possession, she is liable upon the contract.
    Appeal'by the defendant, Julia D. Forsythe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 27th day of July, 1893, upon the report of a referee.
    The appeal book discloses that the issues in this action were brought to trial before a Special Term of this court December 16, 1890, and that after tlie case was- partially tried tbe following order was made and entered : “ Tlie above-mentioned action at issue and being No. 18 upon tlie calendar of this court at tlie above-mentioned term, and the same having been reached and brought on for trial at said' term, and tlie issues herein relating to the demand in the complaint for specific performance therein alleged having been tried at this term before the justice above named, and a decision having been reached and rendered by this court in favor of the defendant against the plaintiff upon-the question of specific performance mentioned in said complaint, and the parties hereto in open court consenting that all the other issues herein should be referred as hereinafter stated, it is hereby ordered that this action and the issues therein, except such as have been heard and decided by the court as above set forth, be, and the same hereby are referred to Hon. Joseph Mason, counselor at law, to hear, try and determine the same.”
    Under and in pursuance of this order, the case was tried before the referee named, who found in favor of the plaintiff and directed a judgment in liis favor for $1,578, with interest from the 1st day of June, 1893, besides costs.
    A part of the relief sought by the complaint was damages for the conversion of certain personal property or diminution in its value.

      W. B. Matterson and A. F. Gladding, for the appellant.

      W. ds G. W. Foumans, for the respondent.
   Martin, J.:

While there was a sharp and direct conflict in the evidence in this case, yet, we are inclined to the opinion that it was sufficient to justify the referee in finding that the plaintiff purchased the farm and personal property in question for the defendant, in pursuance of her agreement that she would purchase the same from him at the price paid by him therefor, take title to the same, give him a bond and mortgage to secure the payment of the purchase price, and assign and transfer to him her interest in the estate of Henry Johnston, deceased, as collateral security therefor, and in finding that the defendant, after she 'became twenty-one years of age, with a full knowledge and understanding of all the matters involved, ratified and. affirmed sncli contract, and agreed to execute the same upon her part by giving the security mentioned. Ye are also of the opinion that the evidence justified the referee in finding that the defendant went into the possession of the property, real and personal, under such agreement, and had the use and benefit of it until she left the premises in May, 1890. The defendant having thus affirmed this contract after she became of age, she could not retain the benefits of it and yet plead infancy to avoid her liability therefor. (Henry v. Root, 33 N. Y. 526; Aldrich v. Funk, 48 Hun, 380; Walsh v. Powers, 43 N. Y. 26; Beardsley v. Hotchkiss, 96 id. 201; Kincaid v. Kincaid, 32 N. Y. Supp. 476; S. C., 85 Hun, 141.)

On the trial of this action before the referee, the plaintiff offered in evidence a paper which was called the opinion rendered on the trial before Mr. Justice Smith, which was as follows: “ The Court: There is only a single question here, and I have my ideas firmly established on that question. I think I shall have to find that there was this agreement made between the plaintiff and defendant, that she ivas to buy the farm and give this claim as security. But as to' what she has said since she became of age, the difficulty is that she has evaded a ratification of this contract, so in my opinion there is no sufficient ratification to compel a specific performance of the contract, and I think this action comes right down to action of accounting. I think there should be an accounting taken of the rental value of this property and an accounting for the property. I think this defendant was liable after she became of age; but as to the time before that I would not pass upon that without looking at the law in regard to it. That is, as to whether she, having had the benefit of the property, is not liable for it. I suggest that this action be referred to some good reference to hear, try and determine; and I assume that the referee would adopt the ruling of the court, that there could be no specifie performance of this contract ; and it would be an action for an accounting in which the plaintiff could have her counterclaim determined, and that can be brought up before the referee. I think the defendant could have the costs of their witnesses here on the equity question. The parties in open court consent to a reference to hear, try and determine, they to agree upon a referee, and if they cannot agree the court will appoint. The court has determined, however, that the plaintiff is not entitled to bis specific performance of the contract claimed in the complaint, 'which question is withdrawn from the consideration of the referee, and all the other questions are referred to him. The plaintiff must pay the defendant the disbursements of this term, that is, the witness’ fees.”

This paper was objected to as incompetent, immaterial, and no foundation laid for it, and as not bearing upon the issues here ; that the issues in this action before this referee are defined and determined by the pleadings and the order of reference; also as hearsay and not within the issues and not controlling upon this court and referee.” These objections were overruled and the defendant excepted.

We do not see how this ruling can be sustained. There was no proof that the paper was even what it purported to be, and consequently there was no foundation laid for its admission even if under any circumstances such a paper would be admissible. The most that can be claimed for this paper is that it contained an expression of the opinion of the trial justice upon the questions at issue, so far as they had been tried before him. It is manifest from the disposition made of the case that it had not been fully tried, so that it was at most his opinion upon a partial presentation of the evidence to him. How such an opinion could be admissible in evidence before this referee, we are unable to perceive. The only question the justice had decided was that a specific performance of the contract could not be had. All the other issues made by the pleadings were referred to the referee to hear and determine. We do not perceive why the opinion of any other judge or lawyer who was acquainted with the facts would not have been as admissible as this. It cannot be said that this error was harmless. This paper purports to contain a statement by the trial justice that there was an agreement between the plaintiff and defendant that she was to buy the farm and give this claim as security, and that she was liable for the property and the rental value of it after she became of age. These were vital and seriously contested issues which were being tried before the referee, and upon which the evidence was slight and contradictory. To say that the opinion of a justice of this court upon such a question would have no influence upon the mind of a referee is according to such opinion less importance than naturally would be given to it. It may well be that the referee felt bound to yield to the opinion of the learned trial justice upon those questions, and did not exercise that independent judgment that he otherwise would. "We think the referee erred in admitting this evidence, and that for such error the judgment should be reversed.

The appellant presents several other questions which relate to the amount rather than to the plaintiff’s right of recovery, but, as the judgment must be reversed for the error already pointed out, we deem it unnecessary to examine those questions, as it is reasonable to suppose that none of them that have merit will arise upon a retrial of this action.

IIaedin, P. J., and Merwin, J., concurred.

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


text:
    Sidney Glass Works, Respondent, v. A. S. Barnes & Company, Appellant.

      Contract by letter- — -offer and acceptance must eoncwr — rescission of the contract— counterclaim of damages for articles not furnished.

    Where the negotiations for a contract are conducted by letter the acceptance of an offer must exactly meet tlie offer; any qualification or restriction in the acceptance will amount to a rejection of the offer.
    A proposition was in this form : “The following is about the quantity of glass we will need from January 1st, 1898, to January 1st, 1894. If we should not use this number (of bottles) in the given time we will order from you until the quantity is exhausted ; and if wo should need any more wo trust you will be able to fill our orders.” The corporation to which this proposition was made replied by letter that they had entered the order, to be delivered “between January 1st, 1898, and Janua-.y 1st, 1894,” and then added -. “ We do not think there will be any difficulty whatever in keeping you supplied at all times and of giving you even more than you have asked for, if you will give us any reasonable opportunity to make ready for you.”

      Meld, that this was not an unqualified acceptance of the defendant’s order, and that there was no contract.
    After part performance of the agreement it was rescinded by mutual consent, at the request of the party requiring the bottles, who promised to pay for all that were then actually manufactured. Afterwards the corporation brought an action for the goods sold, and the defendant interposed a counterclaim based upon the fact that it had been compelled to purchase the goods which it required during the term of the contract of other manufacturers, and that many of the bottles actually delivered by the plaintiff were broken and otherwise unmarketable.

      Held, that, as the defendant had refused to permit the further performance of the contract, the plaintiff was entitled to recover the value of the goods actually furnished, and without deduction.
    Appeal by the defendant, A. S. Barnes & Go., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 10th day of October, 1894, upon the report of a referee.
    The action was brought to recover the value of certain bottles furnished to the defendant by the plaintiff. The defendant interposed a counterclaim upon the ground" that because of the plaintiff’s failure to perform its contract the defendant had been compelled to purchase bottles of other parties, and that many of the bottles actually delivered by the plaintiff were broken and otherwise unmarketable.

      Wagner c& Fisher, for the appellant.

      James R. Raumes, for the respondent.
   Martin, J.:

This action was brought to recover' the value of a quantity of glass bottles furnished by the plaintiff to the defendant.

The answer interposed, so far as material to the questions involved upon this appeal, was, that the defendant made a contract with the plaintiff to furnish it (the defendant), between the 1st of January, 1893, and the 1st of January, 1894, about 5,450 gross of bottles as they should be needed by it; that the bottles for which this action was brought were delivered in pursuance of that contract, but that the plaintiff neglected to deliver the remainder of the bottles so agreed to be furnished when called for or within a reasonable time after they were ordered, and thereby failed to perform the contract upon its part. And an affirmative judgment was demanded against the plaintiff for the sum of $243.47.

It was conceded on the trial that the defendant had had the number of bottles for which this action was brought, and the undisputed proof was that they were of the value claimed, except that portion which was broken.

The learned referee found that the value of the bottles delivered to the defendant was the sum of $766.70; that the defendant had paid thereon the sum of $122.22; that the defendant was entitled to be credited for the breakage of the bottles so shipped, which amounted to the sum of $168.87; that the broken bottles were not accepted by the defendant; that the plaintiff was entitled to recover $195.61, and awarded judgment accordingly.

The most important question raised upon this appeal is whether there was a contract between the plaintiff and the defendant by which the plaintiff agreed to furnish the defendant 5,150 gross of glass bottles. There was no such contract unless contained in the letters which passed between the defendant and a firm to whose rights the plaintiff has succeeded. Passing, for the present, the suggestion that the plaintiff was not liable upon a contract not made with it but with such firm, the question is presented whether the correspondence which passed between the original jDarties was sufficient to constitute a contract for the sale of the number of bottles mentioned.

The appellant relies mainly upon two letters to establish the contract ; one written on December 5, 1892, by the defendant to the plaintiff’s predecessor, and the other written by the plaintiff’s predecessor to the defendant on the 6th of December, 1892. An examination of the correspondence which preceded these letters shows that the parties had been negotiating for some time in regard to the manufacture for and sale to the defendant of such bottles as it should require for its business, and the plaintiff’s predecessor had given the defendant prices at which the firm would furnish the different kinds of bottles required by the defendant in its business.

The defendant’s letter of December fifth was as follows:

“ Gentlemen. — • The following is about the quantity of glass we will need from January 1st, 1893, to January 1st, 1891. If we should not use this number in the given time, we will order from you until the quantity is exhausted, and if we should need any more we trust you will be able to fill our orders.” The number and size of the bottles were then given as stated in the following letter. To this letter the plaintiff’s predecessor replied : “ We are in receipt of your esteemed favor of tlie 5th instant, and enter your order for 750 gross quart inks, 700 gross pint inks, 500 gross one-half pint inks, 500 gross 4 oz. inks, 500 gross 3 oz. inks, 1,500 gross 2 oz. inks, 500 gross one and one-half oz. inks, 500 gross 1 oz. inks, to be delivered to you as you may need them between January 1st, 1893, and January 1st, 1894. We do not think'there will be any difficulty whatever in keeping you supplied at all times and of giving you even more than you have asked for if you will give us any reasonable opportunity to make ready for you.” The referee held that the letter of the plaintiff’s predecessor was not such an accejitance of the propositions contained in the letter of the defendant as to constitute a contract. The correctness of that holding is challenged by the appellant.

It seems to be well settled that if one party makes to another an offer by letter and the offer is of a character which implies nothing to be done by the latter except to assent or decline, and he by letter accepts, adding no qualification, condition' or reservation, there is a mutual consent, and a contract is created by such letters. But, even where there is an acceptance, if it is not of the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, then no contract is made, and the proposition to accept with such modifications is a rejection off the offer. (Bishop on Cont. §§ 176, 179 ; 1 Pars. on Cont. 477 ; Myers v. Smith, 48 Barb. 614 ; Brown v. The New York Central R. R. Co., 44 N. Y. 79 ; Nundy v. Matthews, 34 Hun. 74 ; Myers v. Trescott, 59 id. 395 ; Barrow Steamship Co. v. Mexican Central R. R. Co., 134 N. Y. 15 ; Marschall v. Eisen Vineyard Co., 28 N. Y. Supp. 62.)

We are disposed to agree with the learned referee in his conclusion that this correspondence was insufficient to establish a contract between the parties. It is not entirely clear that the letter of the defendant can be treated as an order to the plaintiff’s predecessor for the quantity, of glass mentioned in it. It commenced by stating about the quantity the defendant would need, and if it should not use that quantity between the times' mentioned, it would order of the plaintiff until the quantity was exhausted, and then it is added that if it should need more, it trusted that the plaintiff would be able to fill the order. To this letter the plaintiff answered, acknowledging the receipt of it, stating that they had entered its order which was for the goods mentioned, to be delivered as you may need them between January 1st, 1893, and January 1st, 1894,” and then stated that it did not think there would be any difficulty in keeping the defendant supplied at all times, and of giving it more than it asked for, if it would give them a reasonable opportunity to make ready for it. We do not think this letter can be held to have been an unconditional acceptance of the defendant’s order without qualification or reservation, so as to make a contract under the authorities cited. Indeed, it is doubtful if it can be regarded as a positive acceptance of the offer made. While it was stated that they had entered the order in the language contained in the plaintiff’s letter, as to the time of delivery, they do not in terms agree to deliver in accordance with such statement, but simply write that they have entered the order, and then add that they do not think there will be any difficulty in keeping the defendant supplied, thus conveying the idea quite clearly that they did not intend to absolutely undertake to deliver the bottles as they should be needed by the defendant between the times mentioned, but thought they would have no difficulty in doing so, and when they add in effect that they must be given a reasonable opportunity to get ready for the defendant, a condition is interposed which is neither contained nor suggested in the letter of the defendant. We think these qualifying words are such as to bring this case within the doctrine of the authorities cited.

When all the correspondence is examined it will be seen, that an intention was expressed by both parties that there should be a formal written contract between them. If such was their intent, then this correspondence was simply preliminary, and cannot be regarded as an absolute or final contract. (Commercial Telegram Co. v. Smith, 15 N. Y. St. Repr. 19.)

After the letters were -written which the defendant claims constituted the contract, and after the plaintiff had furnished a portion of the goods, the defendant complained because they were not furnished more promptly and in larger quantities. The reason for this delay was explained by the plaintiff in various ways. Finally, on March sixteenth, after having several times stated to the plaintiff that unless it furnished goods more promptly the defendant would have to countermand the balance of its order, it wrote: “We, therefore, countermand our orders, and request you to ship via freight to the above address, all our moulds.” On the eighteenth of the same month it again wrote to the plaintiff: As yet we have heard nothing from you in reply to our letter of the 16th instant. We must now demand the return of our moulds, and we again countermand our orders. Ship what stock you have made up, and when your bills are due they will be promptly paid.” The plaintiff’s testimony was to the effect that it was willing to fill the orders of the defendant if it had had an opportunity, and that in returning the moulds, accepting the countermand, of the defendant’s order and shipping the stock on hand as directed by the defendant in its letter of March eighteenth, it relied upon the statements contained in the defendant’s letter countermanding or rescinding such order, and upon its promise that upon the shipment of the stock it had made up, the plaintiff’s bills would be promptly paid when they became due. Thus it would seem from the evidence that on March eighteenth the defendant countermanded its order to the plaintiff, and thus broke the contract upon its part, but expressly stated to the plaintiff that it should ship what stock it had made up, and that the defendant would pay for it promptly as the bills became due. This statement the plaintiff acted' upon and returned the defendant’s moulds, and shipped the stock it had made up.

The evidence, we think, shows an agreement upon the part of the defendant which was accepted and acted upon by the plaintiff to'the effect that the contract, so far as it was not performed was to be rescinded, with an express provision or reservation that the plaintiff should have pay for its goods shipped and to be shipped. Under these circumstances the defendant was not, we think, entitled to recover the damages claimed in this action. In other words, the defendant could not recall its order and recover of the plaintiff for the breach of a contract which had been rescinded by it except as to the right of the plaintiff to compensation for its goods already manufactured. (Hadden v. Dimick, 13 Abb. [N. S.] 136 ; Lawson’s Rights, Rem. & Pr. § 2569 and cases cited; Martin v. New York Life Ins. Co., 73 Hun, 496 ; Cassidy v. Aldhous, 7 Misc. Rep. 543.) The defendant having refused to permit the further performance of the contract by the plaintiff, it was .entitled to recover the value of the goods furnished by it. (Powers v. Hogan, 6 N. Y. St. Repr. 239.)

Nor is it quite clear, upon the proof before us in this case, that the defendant could in any event recover damages of the plaintiff for the breach of a contract made with its predecessor. (Hall v. Herter Bros., 64 N. Y. St. Repr. 378 ; 83 Hun, 19.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Adele N. Sanford, Appellant, v. The Commercial Travelers’ Mutual Accident Association of America, Respondent.

      Trial hyjwry — inswance certificate — stipulation in advance that any dispute shall he referred.

    Parties cannot in advance, by a general agreement, provide that their differences shall be submitted to arbitrators or referees and thus entirely oust the court of its jurisdiction, nor can they by such an agreement oust the court of any part of its j urisdiction or supersede the law which provides the method of trial and regulates the proceedings in an action.
    A provision contained in a certificate of membership in an insurance company that the issues in any action brought against it by the member or his beneficiary, under such certificate, should, upon the demand of the association, or its attorney, be referred for trial to a referee to be appointed by the court in which the action should be brought, denies to the claimant the constitutional right of a trial by jury and is void.
    Appeal by tbe plaintiff, Adele N. Sanford, from an order of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 15th day of December, 1894, directing a reference of the issues in this action.

      D. M. Kellogg, for the appellant.

      M. W. Van Aulcen, for the respondent.
   Martin, J.:

This action was to recover upon a policy or certificate of insurance issued by the defendant, and was not an action in which a compulsory reference could have been properly ordered under the ■provisions of the Code of Civil Procedure. The order directing a reference was based solely upon a stipulation in the policy or certificate of membership, which was as follows: It is hereby stipulated and agreed by and between this association and the member named, herein and his beneficiary, that the issues in any action brought against it under this certificate, shall, on the demand of this association or its attorney, be referred for trial to a referee to be appointed by the court in which such action is brought.” Thus the single question to be determined is whether this provision is valid and binding upon the parties.

It is well settled by a long line of both American and English authorities, that a general covenant or agreement that any differences that may subsequently arise in the performance of a contract, or under an executory agreement, shall be submitted to the decision of arbitrators or referees, will not oust a court of law or equity of jurisdiction, and that judicial powers in regard to the property and rights of parties cannot by such an agreement be conferred upon others to the exclusion of the jurisdiction of the courts. (Kill v. Hollister, 1 Wils. 129 ; Mitchell v. Harris, 2 Ves. Jun. 129 ; Thompson v. Charnock, 8 Term Rep. 139 ; Street v. Rigby, 6 Ves. Jun. 815 ; Scott v. Avery, 5 H. L. Cas. 811 ; Horton v. Sayer, 4 H. & N. 643 ; Roper v. Lendon, 1 El. & El. 825 ; Cooke v. Cooke, L. R. [4 Eq.] 77 ; Hope v. International Financial Society, L. R. [4 Ch. Div.] 327 ; Gray v. Wilson, 4 Watts, 39 ; Stone v. Dennis, 3 Porter, 231 ; Allegre v. The Maryland Insurance Co., 6 Harr. & J. 408 ; Randel v. Ches. & Del. Canal Co., 1 Harr. 234 ; Robinson v. Georges Ins. Co., 17 Maine, 131 ; Cray v. The Hartford Fire Ins. Co., 1 Blatchf. 280, 288 ; Percival v. Herbemont, 1 McMul. 59 ; Smith v. B., C. & M. Railroad, 36 N. H. 487 ; Leonard v. House, 15 Ga. 473 ; Hill v. More, 40 Maine, 515 ; Peters’ Administrator v. Craig, 6 Dana, 307 ; Tobey v. The County of Bristol, 3 Story, 800 ; Rowe v. Williams, 97 Mass. 163 ; Haggart v. Morgan, 4 Sandf. 198 ; Austin v. Searing, 16 N. Y. 112 ; Hurst v. Litchfield, 39 id. 377 ; Prest., etc., D. & H. Canal Co. v. Penn. Coal Co., 50 id. 258 ; Poultney v. Bachman, 10 Abb. N. C. 253 ; Wells v. Monihan, 129 N. Y. 161; Wicks v. Monihan, 130 id. 232 ; Bauer v. Samson Lodge, 102 Ind. 262 ; The Supreme Council, etc., v. Garrigus, 104 id. 133 ; Insurance Co. v. Morse, 20 Wall. 445 ; Mentz v. Armenia Fire Ins. Co., 79 Penn. St. 478 ; Wood v. Hum phrey, 114 Mass. 185; German-American Ins. Co. v. Etherton, 25 Neb. 505, 508 ; Reed v. Washington Ins. Co., 138 Mass. 575; Commercial Union Assurance Co. v. Hocking, 115 Penn. St. 407; Leach v. Republic Ins. Co., 58 N. H. 245; Noyes v. Marsh, 123 Mass. 286.) It seems that a condition in a policy of insurance limiting the place where or the courts in which an action may be brought, is also invalid. (11 Am. & Eng. Ency. of Law, 352; 5 Lawson’s Rights, Rem. & Pr. § 2085; Bliss on Life Ins. § 360 ; Reichard v. Manhattan Life Ins. Co., 31 Mo. 518; Nute v. Hamilton Mut Ins. Co., 6 Gray, 174; Hall v. People's Mut. Fire Ins. Co., Id. 185; Amesbury v. Bowditch Mut. Fire Ins. Co., Id. 596, 603 ; Boynton v. Middlesex Mut. Fire Ins. Co., 4 Metc. 212; Insurance Co. v. Morse, supra; Barron v. Burnside, 121 U. S. 186.) In these cases the general proposition was maintained that agreements in advance to oust the courts of jurisdiction conferred by larv were illegal and void, and it was held that while any such right might be waived or its exercise omitted in each recurring case after the question had arisen, yet, a party could not bind himself in advance by an agreement thus to forfeit his rights.

In Greve v. Ætna Live Stock Ins. Co. (81 Hun, 28) a doctrine in conflict with the authorities cited seems to have been held. In that case the policy contained a provision that any suit or action for the enforcement of any claim under it should be brought and maintained only in the courts of "Warren county, and the court held that that provision was not in contravention of public policy, but valid and binding upon the parties. The decision in that case was based upon the Matter of the N. Y., L. & W. R. R. Co. (98 N. Y. 447), which the court held conclusively disposed of the question. In the railroad case the owner of certain real estate which the com. pany desired to acquire entered into a contract to sell and convey the premises to the corporation for a price to be ascertained in proceedings to be instituted under the Railroad Act. The agreement named the commissioners who should be appointed, and it was held that it was valid. The principle of that case seems to us to be entirely distinct and essentially different from the principle applicable to a case where provisions like the one under consideration have been brought in question. In the railroad case there was a present contract to sell, and the parties simply made an agreement as to the manner of determining tlie price to be paid. Such an agreement was valid within all the authorities. They might have agreed to have it determined by arbitration or by reference, and such an agreement would have been valid. The principle of the cases cited’ was entirely inapplicable to such a question. In that case there was a present issue or question to be determined, and the parties agreed as to the manner in which it should be determined. That they clearly had the right to do. But in this case, the provision in the policy was for the determination of such matters and differences as might in the future arise in the performance of this contract, and attempted in advance to designate the tribunal which should determine those rights when they should arise. "We think the railroad case is clearly distinguishable from this. While we are not satisfied that the decision in the Qreve case is correct, yet, as the question in that case is unlike the one under consideration here, it is unnecessary to further discuss it, or to expressly dissent from’ the doctrine there laid down. We are of the opinion that the weight of authority is to the effect that such a provision as that contained in the policy in this case is a nullity, and in no way ousts or limits the jurisdiction of the court, or affects the law relating to the method in -which such an action should be tided. That after the right of action had sprung into existence the defendant might have -waived her right to a trial by jury and consented to a reference, there can be no doubt. (Code Civ. Proc. § 1009.) But parties cannot, in advance, by a general agreement, provide that their differences shall be submitted to arbitrators or referees, and thus entirely oust the court of its jurisdiction, nor can they by such an agreement oust the court of any part of its jurisdiction, or supersede the law which provides'the method of trial, and regulates the proceedings in an action. The plaintiff had a right to a trial by jury. The court under the law had control over the proceedings in the action. The agreement under consideration so far as its effect would be to foreclose or change such right or control, was invalid.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    George Bushey, Respondent, v. William Santiff, Appellant.

      User of a right of way — essential to a title by prescription — defined line of travel necessary.

    The user, which will create an easement over the lands of another by prescription, must be open, notorious, visible, uninterrupted and undisputed, exercised under a claim of right adverse to the owner, acquiesced in by him, and must have thus existed for a period of at least twenty years.
    After a user which complies with these requirements the owner is charged with notice and his acquiescence is implied.
    There can be no prescriptive right to pass over another’s land in a general manner, and where a right of way by prescription is claimed, a certain and well-defined line of travel must be shown.
    Appeal by the defendant, William Santiff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 9th day of April, 1894, upon the verdict of a jury rendered after a trial at the Lewis Circuit, and also from an order entered in said clerk’s office on the 5th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    Merrell, Byel c& Merrell, for the appellant.

      O. 8. Meremess, for the respondent.
   Martin, J.:

This action was for trespass in tearing down and breaking fences upon and driving over certain premises occupied by the plaintiff, and to which he had the right of possession.

The defense was that the defendant had a right to the use of an easement or right of way across the farm or premises occupied by the plaintiff, and that the alleged trespass consisted in using it and in removing obstructions placed therein by the plaintiff. The only question litigated upon the trial was, whether the defendant and those under whom he claimed had a right of way across the plaintiff’s premises. There was no claim or pretense that any such right of way existed unless it had been acquired by prescription or an uninterrupted user for twenty years.

To create an easement or right of way over the land of another by prescription or user the user must b'e open, notorious, visible, uninterrupted, undisputed, under claim of right adverse to the owner, acquiesced in by him, and must have thus existed for a period of at least twenty years. "Where, however, the user, for the requisite time, has been open, notorious, visible, uninterrupted, undisturbed, and under claim of right, adverse to such owner, he is charged with notice and his acquiescence is implied. (Parker v. Foote, 19 Wend. 309; Nicholls v. Wentworth, 100 N. Y. 455; Ward v. Warren, 82 id. 265 ; Hammond v. Zehner, 21 id. 118; Colburn v. Marsh, 68 Hun, 269.) A prescriptive right of way over another’s land generally, without any defined line of travel, cannot be acquired either by the public or by an individual, and where a way is claimed by prescription, that there has been a certain and well-defined line of travel should be shown. (Holmes v. Seely, 19 Wend. 507, 511; Elliott on Roads & Streets, 137; South Branch R. R. Co. v. Parker, 41 N. J. Eq. 489; Bryan v. City of East St. Louis, 12 App. Ct. Rep. [Ill.] 390; Owens v. Crossett, 105 Ill. 355.)

The court submitted to the jury the question whether there liad been such a user of the claimed right of way, and the jury found that there had not.

A careful examination of the evidence renders it quite obvious, we think, that the question whether the defendant and those under whom he claimed had acquired, by user or prescription, a right of way across the premises in question, was for the jury. The evidence tended to show that within eight years of the time of the trial, persons occupying the premises had locked up the gate across the claimed right of way next to the highway, and when torn down that it was nailed up again on one or two occasions. It also disclosed that at the point where the claimed right of way reached the highway it was changed a distance of more than eleven rods during the time in which the defendant claims a right of way was acquired by prescription, and that such change was less than twenty years before the trial. As the defendant sought to defend his trespass by setting up a prescriptive right, he was bound to show such right to the extent of user claimed, or his defense failed. (Am. Bank Note Co. v. N. Y. E. R. R. Co., 129 N. Y. 253.)

As no other questions are raised by the appellant, it follows, we think, that the judgment should be affirmed.

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

Judgment and order affirmed, with costs.