text:
    The People of the State of New York, Respondent, v. Joshua S. Helmer, Appellant.

      Circwmstcmtial evidence — “exhibiting false boolcs”— conviction thereof — judge’s charge.

    To justify a conviction of a crime upon circumstantial evidence, not only must the facts proved be consistent with and point to the defendant’s guilt beyond a reasonable doubt, but they must also be inconsistent with his innocence.
    Under an indictment charging the president of a banking corporation with knowingly exposing and exhibiting false books of the bank to a public officer authorized to investigate the affairs of the bank, with intent to deceive him, the evidence tended to show that there were false entries in certain of the books of the bank and that the defendant exhibited such books to the examiner, and that a discrepancy between the balance shown by the books and the actual cash in the bank was represented by two checks, good for the amount thereof, drawn by the cashier of the bank, as county treasurer of the county of Niagara, upon other banks, and placed in his own bank by the cashier to cover moneys which he had withdrawn from his bank for his own use. The defendant knew that these checks had been deposited, and while the examination was taking place borrowed and placed in the vault, to be counted by the examiner, $7,000 in currency which, after it was counted, he returned in the same identical money to the persons from whom he had borrowed it.
    The defendant had general supervision of the affairs of the bank and attended to its correspondence, but not to the entries made in the books of account thereof.

      Held, that there was a question of fact for the jury whether the defendant knowingly, feloniously and wrongfully exhibited to the examiner the cash book containing false entries as to the amount of cash in the bank, with the intent to deceive hin.
    The cashier of the bank, who had been misappropriating the funds, had forged, in order to cover up his defalcations, a number of promissory notes which he entered in the discount book of the bank. The president was not aware of this defalcation, and when asked by the examiner for permission to take the suspected paper away from the bank under a promise to return it, refused to give such consent without authority from the directors of the bank.

      Held, that this refusal on the part of the president was not any evidence of guilt on his part. '
    A misdirection in the charge to the jury, upon one point, is sufficient to justify the granting of a new trial in a criminal action, although the jury might properly have found their verdict upon another point as to which there was no misdirection.
    Appeal by the defendant, Joshua S. Helmer, from a judgment of the Court of Oyer and .Terminer in favor of the plaintiff, held in and for the county of Niagara, rendered on the 24th day of September, 1894, convicting the defendant of the crime of knowingly exhibiting false books to a public officer and sentencing him to imprisonment at hard labor for a period of five years; also, from an order made at such court of Oyer and Terminer denying the defendant’s motion for a new trial.

      F. M. Ashley and Tracy O. Becker, for the appellant.

      P. F. King, District Attorney, for the respondent.
   Lewis, J.:

It was charged in the indictment that on the 21st day of Septembex, in the year 1893, the defendant was, and had been for sevex’al years prior thereto, the president and a dix-ector of the Merchants’ Bank of the city of Lockport, a State bank doing business in said city; that there was kept by said bank, among others, the following books, to wit: A teller’s tickler, or cash book, which purported to show the cox’rect amount and kinds of cash on hand in said bank at the close of business on the 20th day of Septexxxbex-, 1893 ; a register of drafts, which purported to show the date, number, amount and the party in whose favor each draft was drawn by said bank upon its New York con’espondent up to the day mentioned; and also a discount book, ixi which was pui-ported to be entered the kind of papex, the date, name of the maker and indoi'ser, the amount, and the time and place of payment of all the commex-cial paper discounted by the bank, axxd the aggregate amount of discounts up to the close of the day mentioned; that the books aforesaid, with othex’s, each contained false and fox-ged entries, and that the defendant on the 21st day of September, 1893,- feloniously axxd knowingly did present, expose and exhibit said false books to a Mr. Clark, who was duly autlxoi’ized to examine the affaix’s of the bank and who was at the baixk on that day for that purpose. He was cnarged ixx other counts with having aided, assisted and advised other officials in the bank in presenting false books.

The only books which it will be xxecessary to consider in disposing of this appeal are the cash and discount books and the draft register. There was evidence tendiixg to show that there were false entries in each one of these books by which they failed to show the true condition of tbe bank at tbe close of business on tbe 20th day of September, 1893. The evidence, we think, fairly established, that the defendant exhibited the books mentioned to the examiner. It was not shown that he personally called the examiner’s attention to the books nor handed them to him, but they were there upon the tables of the bank accessible to the examiner, and the defendant was in and about the bank and knew the purpose of Mr. Clark’s visit. It was incumbent upon the People to show that the defendant knew ¡shat these books contained false and fraudulent entries and that defendant presented or exposed them to the examiner with intent to deceive him.

It was made to appear by entries in the cash book that the bank had 'on hand at the close of business on the twentieth of September the sum of $1.8,705.55, when in fact the actual amount was only $11,705.55. The difference was represented by two checks drawn by the cashier, Mr. Arnold, as county treasurer of the county of Niagara, upon other banks in Niagara county, one for $4,000 and the other for $3,000. These two checks'had been placed in the bank by Mr. Arnold to cover moneys which he had drawn from the Merchants’ Bank for his own use. The defendant knew, that the checks had been so deposited, and while Mr. Olark-was engaged in counting the cash actually in the bank, the defendant left the bank and borrowed $7,000 in currency, which he caused to be placed in the vault of the bank, to be delivered to Mr. Clark to be counted as cash actually in the bank, and, after it had been so counted, and on the same day, the defendant returned the identical money to the persons from whom he had borrowed it. There was at the time a sufficient amount of county money on deposit in the banks upon which these checks were drawn to pay them, and they would have been paid at any time had they been presented. They were banks which had 'been duly designated as depositories of the county funds. There was at this time the well-known- stringency in the money market, and Mr. Arnold had been requested by the .officers of said banks to favor them and not draw out the county deposits more than was absolutely necessary. There was nothing in the use made of these checks tending to show an intention on the part of either the defendant or Mr. Arnold to defraud the bank. The defendant had the general supervision over the affairs of the bank and attended to its correspondence. He liad nothing to do with keeping the books nr making entries therein. While he unquestionably had the right to examine the bank books it was not shown to be a part of his duties, and obviously it would have been impracticable for him to have done so to any extent and performed his duties’ as president.

We assume, in deciding the case, that it was a question for the jury to determine whether the defendant knowingly, feloniously and wrongfully exhibited the cash book containing false entries as.to the amount of cash in the bank to Mr. Clark with intent to deceive him. It cannot be said that his guilt in that respect was established beyond a reasonable doubt. To justify a conviction upon circumstantial evidence, not only must the facts proved be consistent with and point to the defendant’s guilt beyond a reasonable doubt, but they must be inconsistent with his innocence. (People v. Stokes 2 N. Y. Cr. Rep. 382.) After a careful examination we have failed to find any evidence tending to show that the defendant had any knowledge or cause for suspicion that there were ever any false entries made either in the discount book or the draft register. The office of the discount book was to show what commercial paper had been discounted by the bank. When Mr. Clark, the examiner, called for the discount book, Mr. Arnold informed him that there was a large number of promissory notes which had been discounted by the bank which had not been entered in the discount book, and at the suggestion of Mr. Clark the cashier proceeded to write them up. Arnold had been misappropriating the funds of the bank to a large amount, and to cover up his defalcation had forged a number of promissory notes amounting to about $35,000. He entered in the discount book this forged paper, together with about $50,000 of genuine notes which had been discounted and had not been entered in the discount book. After entering the genuine and forged paper Arnold delivered the notes and the book to Mr. Clark; defendant w^as not present at the time. The defendant was ignorant of Arnold’s defalcation and knew nothing about this forged paper. When Clark came to examine the forged paper he suspected its genuineness and called the defendant’s attention to the matter. There was an absence of any evidence that the defendant saw the discount book while Arnold was engaged in entering the notes, or knew at any time what entries he had made therein until Clark called to his attention his suspicions about the paper. Arnold was not then in the bank. When he returned the defendant interviewed him and soon learned by confession of Arnold that he had been guilty of forging the -paper.

Mr. Arnold was called as a witness by the People and testified that he was guilty of forging the paper, but that the defendant knew nothing of it. Mr. Clark asked defendants permission to take the suspected paper away from the bank, promising to return it in four or five days. To this the defendant objected, saying that he had no right to consent to it without being authorized so to do by the directors of the bank. Mr. Clark suggested that he at once call a meeting of the directors, and the defendant informed him that he knew that thei’e was not a quorum of the directors at that time in the city. After the defendant’s attention was called to the forged paper the discount book, so far as-appears from the evidence, was not examined or referred to by the examiner.

Our attention is called by the learned counsel for the People to the refusal of the defendant to permit Mr. Clark to take the suspected paper away from the bank as evidence tending to show that he was aware of its being forged. We fail to see in his refusal the slightest evidence of guilt on his part. There was at that time simply a suspicion that the paper was forged, for this occurred before the confession of Arnold. If it was forged the defendant did not know who committed the forgery. The paper had been presented by a man who had been, up to that time, a trusted officer of the bank; Arnold had been connected with the bank for many years in different capacities for a longer time than the defendant had, and had-, up to that time, -enjoyed the unquestioned confidence not only of the officers of the bank but of the community. He was-serving his third term as treasurer of the county of Niagara. The defendant was suddenly confronted with the fact that the cashier had presented this suspected paper as genuine. It was most natural and entirely proper for him to reply to the request of Mr. Clark as he did. He naturally wanted to see the cashier and ascertain what he had to say about the paper while it was in the bank. When he learned from Arnold that he had been guilty of forging the paper and was a defaulter the defendant at once called in another director of the bank and they 'succeeded in inducing Mr. Arnold to transfer real estate and securities to an amount which nearly or quite indemnified the bank against loss. This is also urged by the district attorney as evidence tending to show guilt on the part of the defendant. We do not so consider it. It was, we think, entirely proper for the defendant to seek to indemnify the bank as he was shown to have done.

There was evidence finding to show that Mr. Arnold had filled out three several drafts at different times theretofore upon a New York bank which was the correspondent of the Merchants’ Rank and presented them to the defendant for his signature and defendant signed them. Two of these drafts were for $1,200 each and the third one was for the sum of $2,000. • The cashier in entering them in the draft register, instead of stating the true amounts, entered one for the sum of $200, another for $23.50 and the third for $15.76. By making these false entries it appeared by the draft register that the Merchants’ Bank had on deposit with its New York correspondent a larger amount of money than it actually had, to wit, the difference between the sums actually mentioned in the drafts and the entries made in the draft register, and these were the errors appearing in the draft register. The defendant had nothing to do with making these entries, and there was an absence of any evidence tending to show that he ever had any knowledge or any grounds of suspicion that there were false entries in the draft register.

At the close of the charge to the jury the defendant’s counsel requested the court to charge the jury that there was no proof sufficient to warrant a conviction that the defendant knew of any false, forged or altered entry in the discount book when it was presented or exhibited to Clark. The court replied: “ I decline to change my charge in regard to the discount book.” It appears by reference to the charge that the court had not given the instruction requested to the jnry, but, on the contrary, had submitted to them the question whether the defendant knew of these false, forged and counterfeit notes, and that they had been entered upon the discount book. There was not, as before stated, any evidence that the defendant did know of the forged notes or of the entries upon the books, but the facts and circumstances as related by the witness negatived any such claim.

Counsel for tlie defendant submitted a like request as to the draft register. The court replied that that was a question for the jury, and that he would not change the charge in that regard. The jury had not been charged as requested, but the court had submitted to it the question as to whether there were false bntries in that book to the knowledge of the defendant, and whether he was connected in any manner with the presentation of the book to Mr. Clark.

Defendant’s counsel requested the court to charge the jury that there was no proof sufficient to warrant a conviction that the defendant presented or exhibited the draft register to Clark. The court declined to change its charge in that respect. Neither the request nor the substance of it had been charged. The only evidence upon the subject of the draft register being submitted to Mr. Clark came from Clark himself. . ILe testified that he did not examine it at any time, and did not call for the draft register, and that the entries in the register did not enter into any part of his examination.

We are of the opinion that the substantial rights of the defendant were prejudiced by the failure of the court to comply with the requests specified. The facts developed by the evidence as to the forging of the notes and their entry in the discount book and the false entries in the draft register presented questions of much greater mórál turpitude' than the facts as to the entries in the cash book. If the defendant exhibited or caused to be exhibited to Mr. Clark the discount book with knowledge of the entry therein of these forged notes, his guilt was established beyond any reasonable doubt, and the same may be said of the draft register. The People having failed to connect the defendant in any way with these false entries or with the presentation of these books with knowledge, he was entitled to have that branch of the case taken from the jury. A “ misdirection- even upon one point is sufficient, although the jury may have properly found their verdict upon another point, as to which there was no misdirection.” (3 Whart. Or. Law [7th ed.], § 3248.)

Because of the errors mentioned the judgment and order appealed from should be reversed and a new trial granted.

Dwight, P. J., and Bradley, .J., concurred; Ward, J., not sitting.

Judgment and conviction reversed and a new trial granted.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    William W. Allen, Respondent, v. The Grove Springs Hotel and Steamboat Company (Limited), Appellant.

      Oral sale of a piano within the Statute of ffircmds— aets sufficient to make an acceptance and receipt— “ furniture” in a hotel includes a piano.

    A hotel company, which had held a piano for years under a lease, orally agreed by its president to purchase it for §450, and thereafter paid no rent for it. The company subsequently, and within a few months after and with notice of the agreement of purchase'made by its president, leased the hotel “and the furniture and other properly in said hotel” to a third person, who enjoyed the use and possession of the instrument.

      Held, that these facts amounted to such au acceptance as took the case out of the Statute of Frauds and entitled the vendor to sue for the price of the piano.
    A piano, although not specially named in a lease of a hotel and “its furniture,” is an article so necessary and customary that it may properly be regarded as passing under the term “ furniture.”
    Appeal by the defendant, The Grove Springs Hotel and Steamboat Company (Limited), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county •of Steuben on the 26th day of February, 1894, upon the report of a referee.

      George T. Spenoer, for the appellant. ,

      Monroe Wheeler, for the respondent.
   Lewis, J.:

This action was brought to recover the value of a piano which the plaintiff claimed to have sold to the defendant in the spring of 1887, at the agreed price of $450.

The defendant is a foreign corporation organized under the laws of the State of Illinois in 1887; it was the proprietor of a summer hotel at the village of Grove Springs, on Lake Keuka, known as “ Grove Springs Hotel.”

The hotel, prior to the spring of 1893, had been run by a tenant •of the defendant. In the spring of that year the defendant assumed its management; there was at that time in the hotel a piano belonging to the plaintiff. He had placed it in the hotel under an arrangement with the tenant that he would pay to the plaintiff an annual rental of twenty-five dollars until he should determine if he wished to purchase it.

"When the defendant assumed the management of the hotel in the spring of 1883 the plaintiff negotiated with its president, John W. Oonlogue, with a view of selling the piano to the defendant. Mr. Oonlogue declined to purchase it then, but promised if -the plaintiff would allow the piano to remain in the hotel he would purchase it in the fall of that year, and in the meantime would pay the same rental as had been theretofore paid for its use. Mr. Oonlogue stated to the plaintiff that they needed the piano in the hotel for the use of guests. He had authority to purchase the piano; .it remained in the hotel down to and including the year 1886, and defendant paid for its use.

In the spring of 1887 plaintiff agreed with Oonlogue to sell and deliver the piano to the defendant at the agreed price of $450, the defendant to pay therefor within a short time thereafter. The agreement was oral; it was made in the village of Hammondsport at a distance of several miles from the hotel. Mr. Oonlogue died shortly after making the agreement and Mr. Henry H. Courtright was appointed president in his place.

The defendant had notice of the making of the agreement by its former president, and thereafter, and in the month of May, 1887, it gave a written lease of the hotel and the property therein for a term of five months to one Charles W. Lane. The property was described therein as “The Grove Spring Hotel and the furniture and other property in said hotel.” The piano remained in the hotel during the term of Mr. Lane’s lease. On the 21st day of April, 1888, the defendant again leased said hotel with all the fixtures and furniture of every kind and sort in and about said hotel to one Omar E. Gage for the period of one year from the 1st day of April, 1888, with the .privilege of two additional years.

At the time of making the lease to Gage the piano was in the hotel, and the defendant put the tenant in possession of the hotel with the furniture, including the piano. The piano remained in the hotel and under the defendant’s control down to the time of the trial of this action. No rent was paid for its use after the arrangement made as aforesaid with defendant’s president in the spring of 1887.

Tlie referee found as a conclusion of law from the foregoing facts that the plaintiff was entitled to judgment for the $450, with interest thereon from the 21st day of April, 1888. The agreement for the sale of the piano not being in writing was void under the Statute of Frauds, unless there was a delivery and acceptance of it under said agreement. The referee found as a fact that the defendant made the leases mentioned with notice of the said agreement of sale. The evidence to sustain this finding was quite meagre, but we think it was sufficient.

The plaintiff, at the time of making the agreement, sold the defendant a cover belonging with the piano, which the defendant paid for at the time. The plaintiff’s agent, Mr. Allen, testified that he knew Mr. Courtright, defendant’s president, and that in the summer of 1887 he went down to the Grove Springs Hotel to see Mr. Oourtright about tlie pay for the piano and saw him, but does not state what occurred. The plaintiff testified that his agent reported the sale of the piano to him shortly after the agreement mentioned, and that he had never received any notice from any one to remove the piano since the sale was so reported to him ; that he had seen the piano in tlie hotel parlor as late as 1892, and that it was then open and in use; that he wrote to defendant’s president about the piano after the sale was reported to him.

The fact that the defendant assumed to lease the piano to its tenants as above stated and never thereafter offered to pay for its use, taken in connection with the facts testified to by the plaintiff and his agent, was sufficient to justify the referee’s conclusion that the defendant was aware of the agreement for the sale of the piano at the times the leases were executed.

While tlie piano was not specifically mentioned in either of the leases we are of the opinion that it was included in the property leased. A piano has come to be a part of the furnishing of private dwellings, and especially so of hotels. A hotel making any pretension to being well furnished which did not provide a piano for the use of its guests would excite comment.

It was held in Crossman v. Baldwin (49 Conn. 490; see Browne’s Judicial Interpretation of Common Words and Rhrases, p. 140) that a piano is part of the furniture of a hotel, when kept for the use of the guests. The court said: That a piano used as this was is furniture used in innkeeping, we can entertain no doubt. The definition given by Bouvier in his Law Dictionary is as follows, ‘ personal chattels in the use of a family. By the term household furniture in a will all personal chattels will pass which may contribute to the use or convenience of the householder, or the ornament of the house, as plate, linen, china, both useful and ornamental, and pictures.’ Webster defines it as ‘that which furnishes, or with which anything is furnished or supplied, fitting out, supply of necessary, convenient or ornamental articles for any business or residence, also a supply of intellectual stores or equipments.’ That these definitions are comprehensive enough to include this piano admits of no question.”

In Von Storch v. Winslow (13 R. I. 23) it was held that a sewing machine and a piano are household furniture exempt from attachment.

In Richardson v. Hall (124 Mass. 228) that bronzes, statuary and pictures were included in a bequest of all the household furniture, it appearing that they were distributed .about the household with a view to making it more comfortable and agreeable as a place of residence.

We think that the defendant, by making the leases aforesaid, assumed to and did lease the piano to its tenants, and, having done so with knowledge of the oral agreement on the part of its president to purchase and pay for the same, indicated a manifest intention to receive and accept the piano as its property and thereby became liable to the plaintiff for its value.

The judgment appealed from should be affirmed.

Dwight, P. J., and Bradley, J., concurred.

Judgment affirmed.


text:
    Theron Hovey, Respondent, v. Charles Bromley, Appellant.

      Trover — when a demand and refusal must be shown — what constitutes conversion.

    To maintain an action of trover against one wlio receives property in good, faith, ignorant of the want of title in the one from whom he received it, a demand and refusal must be shown.
    Proof merely of the purchase of goods from one who did riot own them, and had no right to sell them, does not establish a conversion of them, unless the buyer afterwards refuses to return them to the owner on demand, or converts them to his own use, so that he cannot return them if requested.
    If one purchases stolen goods in good faith, a demand and refusal are necessary to establish conversion. If, however, the goods be sold by a person receiving them, no demand is necessary. The act of selling would, in such a case, constitute a conversion. The purpose of the demand is to turn an otherwise lawful possession into an unlawful one.
    If one in possession of property as the apparent owner sells it to another, trover does not lie in favor of the true owner against the purchaser, unless the latter assume dominion over the property after notice of the true owner’s title. An intention must be shown on the part of the purchaser to take to himself "the property in the goods or to deprive the. owner thereof.
    Upon the trial of an action brought to recover damages for the alleged wrongful conversion by the defendant of a mule belonging to the plaintiff, it appeared that the plaintiff left the mule in charge of his servant; that the servant let the mule to the defendant without authority to do so, but without knowledge on the part of the defendant that the mule in question was not the property of' such servant. While the mule was in the possession of the defendant and was being worked by him he was taken sick. The defendant immediately sent word to the servant of the plaintiff, who communicated at once with the plaintiff the fact that the mule was sick. The plaintiff thereupon came and took ■charge of charge of the mule, which subsequently died. The evidence showed that the mule was carefully used by the defendant, and that nothing that he did with the mule in any manner contributed to his sickness or death.

      Held, that there was no evidence of a conversion on the part of the' defendant that even if the plaintiff had made out a case showing a technical conversion he was not entitled to recover anything more than his actual damages, which under the circumstances were only nominal.
    Appeal by the defendant, Charles Bromley, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 18th day of December, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      George JE. Towne, for the appellant

      J.’ M. Oongdon, for the respondent,
   Lewis, J.:

This action was commenced in Justice’s Court to recover damages for the alleged wrongful conversion by the defendant of a mule, the property of the plaintiff. The answer was a general denial.

Plaintiff recovered a verdict of sixty dollars in the Justice’s Court. An appeal was taken from the judgment to the County Court of Erie county where the case was retried.

The court charged the jury that the only question for them to determine was the value of the mule. To this ruling the defendant duly excepted. The jury rendered a verdict for the plaintiff for fifty-five dollars damages.

There was evidence tending to show the following facts: The plaintiff was the owner of two mule teams, and on the 18th of July, 1892, he put them to work upon the railroad at a distance of about ten miles from his home. He hired one Hopson to drive and care for one team, known as the large mules, and one Prentice to drive and care for the other, known as the small mules. The plaintiff arranged a place for the drivers and teams to board and returned to his home. The driver Hopson, on the first day of August, went to the house of the ]Dlaintiff with one of the large mules, leaving the other one in the barn in charge of Prentice. The defendant was also working upon the railroad with two of his own teams. He boarded at the same house with plaintiff’s teamsters. One of his horses having a sore neck he hired of Prentice the large mule left in the barn to work with his horse.

He worked him during the forenoon of the second of August, and in the afternoon of that day the mule became lame and sick and lay down and refused to work. The defendant sent word to Prentice that the mule was sick, and during the afternoon he cared for and doctored the animal. Prentice sent word to the plaintiff. The plaintiff arrived in the evening of that day and found the mule lying upon the grass unable to get up. He took charge of the mule, administered to him remedies, and with the help of the defendant, on the morning of the third of August, drew him to the barn, where he died during the day.

The evidence tended to show that the mule was carefully used by the defendant, and that nothing that he did with him in any manner contributed to his sickness or death. The defendant did not know that the plaintiff owned or had any interest in the mule. He supposed it belonged to Prentice. The latter had no right to allow defendant to use the animal.

The trial court held upon these facts that as a matter of law the defendant liad converted the mule, and was liable for its use. We fail to find in these facts evidence of conversion. Having received him from Prentice in good faith, in ignorance of his want of title, before the defendant could be made liable for conversion, a demand and refusal were necessary. Defendant was not shown to have made any claim, or to have exercised any dominion over the animal to the exclusion of the plaintiff’s rights. No intentional wrong on the part of the defendant was proven. When plaintiff arrived he took possession of his property, and remained in possession until it died.

It will appear from an examination of the authorities to which we are referred by the respondent’s counsel, that the purchasers were either shown to have exercised dominion over the property to the exclusion of the true owner, or to have disposed of it so that it could not be returned to the true owner, or to have been guilty of some tortious act in reference to it.

It was held in the case of Plano Mfg. Co. v. N. Pac. El. Co. (51 Minn. 167) that, to maintain trover against one who received property in good faith, ignorant of the want of title of the one from whom he received it, a demand and refusal must be shown. The mere purchase of goods from one who did not own them, and has no right to sell them, does not constitute conversion, unless the buyer afterwards refuse to return them to the owner on demand, or has converted them to his own use, so that he cannot return them if requested. (Valentine v. Duff [Ind. App.], 34 N. E. Rep. 453.)

If one purchase stolen goods in good faith, a demand and refusal are necessary to establish conversion. If, however, the goods be sold by the person receiving them, no demand would be necessary ; the act of selling would, in such a case, constitute the conversion. The purpose of the demand is to turn an otherwise lawful possession into an unlawful one. (Pease v. Smith, 61 N. Y. 477.)

If one in possession of property as the apparent owner sell it to another, trover does not lie in favor of the true owner against the purchaser unless the latter assumes dominion over the property after notice of the true owner’s title. An intention must be shown on the part of the purchaser to take to himself the property in the goods, or to deprive the owner thereof. (Parker v. Middlebrook, 24 Conn. 207; 2 Hilliard on Torts, 97.)

If tlie plaintiff had made a case showing a conversion, of the property, still this judgment should not be allowed to stand for the reason that the damages are excessive. There is nothing in the case tending to show that the use of the mule by the defendant in any way tended to its sickness or death.

The evidence was that he was kindly and properly used by the defendant, and without any apparent cause he became sick and died, and yet, with this evidence undisputed, the' jury found a verdict for fifty-five dollars damages. The plaintiff’s witnesses, it is true, testified that the mule was worth even more than the amount of the verdict, but they obviously based their opinion as to value upon the assumption that the mule, when it came in the defendant’s possession, was well. They must have assumed that its use by the ■ defendant in some way caused its death. Such an assunxption was not justified by the facts. Had the plaintiff established a technical conversion, he was not entitled to recover anything more than his actual damages, which, under the circumstances, were nominal.

The judgment and ojder appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Bradley, J., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. •


text:
    John Ryan, Respondent, v. Edward J. Conroy and Another, Appellants.

      Sales — when title passes — •objections — not first heard on appeal' — new trial denied, in their absence, unless injustice would result.

    In an action brought to recover the balance clue upon the sale of a quantity of hay, it appeared that the hay, the amount of which was not known, was lying in the barn of the plaintiff; that one Conroy, a member of a firm, purchased all the hay at nine dollars per ton, to be paid for on demand, and paid a certain sum down, agreeing to come the next week and press and bale the hay. The plaintiff upon his part agreed that when this was done he would, upon request, draw the hay to a neighboring station, and that he would board the men and teams while engaged in pressing the hay.
    Before the hay was removed from the barn it was destroyed by fire.

      Held, that the title to the hay had passed and that the loss must fall upon the defendants.
    It appeared that there was a conflict of testimony as to the amount of hay in the barn. The court charged the jury that if the plaintiff recovered he was entitled to a specific amount, to which charge the defendants’ counsel did not except.

      Held, that it was too late upon appeal to make an objection to the charge based upon the conflict as to the amount of hay.
    The General Term of the Supreme Court has power to grant a new trial, although the counsel have failed to take a proper exception on the trial to the judge’s charge, but this power will not be exercised unless it is manifest that injustice has been done.
    Appeal by the defendants, Edward J. Conroy and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of July, 1894, upon the verdict of a jury, rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 18th day of July, 1894, denying the defendants’ motion for a new trial made upon the minutes, and also from an amended order entered in said clerk’s office on the 25th day of July, 1894, denying a new trial upon the minutes.
    The complaint in the action alleged that the defendants, Edward J. Conroy and Conrad Hyman, were co-partners doing business under the firm name of “ E. J. Conroy & Co.”

      Charles F. Tabor, for the appellants.

      Wallace Thayer, for the respondent.
   Lewis, J.:

The plaintiff brought this action to recover a balance claimed to be due upon the sale and delivery of a quantity of hay to the defendants' on the 23d day of August, 1893. After the sale and before the hay was removed from the plaintiff’s barn it was destroyed by fire, and the main question litigated was whether the title to the hay was in the defendants at the time of the fire. The hay at the time of the sale was in two bays in plaintiff’s barn. He and the defendant Conroy were present in the barn and there agreed that the plaintiff was to sell and the defendant Conroy was to purchase the hay at nine dollars per ton to be paid for upon demand. Conroy paid ten dollars down and agreed to come the next week and press and bale the hay. The plaintiff agreed that when the hay was pressed and baled and he was requested so to do he would draw -it to a railroad station near by, and would board the defendants’ men and teams while the hay was being pressed. After the sale and before the hay was pressed the defendant ITyman j)aid plaintiff fifty dollars to apply on the purchase price. The evidence was conflicting as to whether the entire quantity was sold. Plaintiff’s evidence tended to show that it was all sold. The defendants’ evidence tended to show that there was at the time a quantity of clover hay in one of the mows, and about 200 pounds of old mow-burned hay which was not purchased. The defendants further contended that the hay was to be paid for when delivered by the plaintiff at the railroad. The jury, upon evidence which we think was sufficient to sustain its verdict, found that the defendants purchased the entire quantity of hay and agreed to pay therefor upon demand. Defendants contended that as the quantity of hay was not known, and the plaintiff concededly was to deliver it at the railroad station and board the hands and teams while they were engaged in pressing it, it follows that the title to the hay was in the plaintiff at the time of the fire. The verdict being against the defendants we do not think their contention can be sustained. The law upon these questions seems to be so well settled that it is not deemed necessary or profitable to refer to the cases. The authorities to which our attention is called by the appellants’ counsel, we think, are clearly distinguishable from this case.

The court, in charging the jury, stated the amount for which they should render a verdict if they found for the plaintiff. He undoubtedly overlooked the fact that there was a conflict in the evidence as to the amount of the hay. The witness for the defendants testified that, in his opinion, the quantity of hay was not as large as that stated by the plaintiff’s witnesses. The defendants’ counsel failed to call the court’s attention to this conflict in the evidence and failed to take an exception to the charge. The difference in amount as estimated by the witnesses was not large. It is too late, upon appeal, for the defendants to avafl themselves of this point.

Another question litigated, on the trial was whether the defendants were co-partners, and, as such, purchased the hay. The evidence upon this question was quite conflicting. The jury found against the defendants upon this question; there was sufficient evidence to sustain their verdict in that respect. The court charged the jury that the plaintiff could not recover unless the jury should find that the defendants were partners at the time of the purchase of the hay, or purchased it upon joint account, holding that, unless the defendants were jointly liable, there could be no recovery in the case. The defendants’ counsel seems to have acquiesced in this view of the law, and failed to call attention to the error; he no w asks for a new trial, so that the case can be presented to another jury with proper instructions upon this question.

This court has the power to grant a new trial, notwithstanding the failure of the defendants’ counsel to take an exception to the charge; but we do not think that it is so manifest that any injustice was done to the defendants that the case should be sent back for a new trial because of this error in the charge.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Bradley, J., concurred.

Judgment and order affirmed.


text:
    Joseph Coleman, Respondent, v. Martha R. Hiler, as Administratrix, etc., of Lucy A. Newcomb, Deceased, Appellant.

      Contracts — promise for the benefit of a third person — absence of a trust — privity of contract.

    A third person cannot maintain an action upon a promise alleged to have been made for his benefit, unless there exists a relationship between the beneficiary and promisee or there is a liability in favor of the beneficiary due or to grow due from the promisee.
    The owner of valuable real estate, shortly before his death, and with a view to the final disposition of his property, conveyed it to his wife, and she, in consideration of this transfer, promised her husband that, as soon as she realized . from sales of the property sufficient money for that purpose, she would pay to a third person §2,000. The wife, having made sufficient sales, and having died without paying said sum, an action was brought against her administratrix by such, third person to recover it, in which it was not found that the grantor in said conveyance wás at any time indebted to such third person.

      Held, that the plaintiff could not recover.
    Upon such a state of facts no trust is created in favor of the third person.
    The privity of contract required under the rule laid down in Lamrence v. Fox (20 N. Y. 268), and analogous cases, discussed.
    Appeal by the defendant, Martha R. Iiiler, as administratrix, etc., of Lucy A. Newcomb, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 19th day of September, 1894, upon the report of a referee.

      Wm. A. Sutherland, for the appellant.

      Henry W. Oonhlin, for the respondent.
   Lewis, J.:

The referee found as facts that for many years prior to July, 1887, one Jerome JB. Newcomb lived in the city of Rochester, on a farm which he owned and cultivated ; for many years the plaintiff had lived in the same neighborhood with Newcomb and was on very intimate relations with him, worked for him upon his farm, was at one time a member of his family, and had rendered him many services of a friendly and neighborly nature, and Newcomb had fretpiencly expressed an affection for and feeling of gratitude to the plaintiff.

Newcomb died in July, 1887. Ho left no living descendants. On the 29th day of June, 1887, Newcomb being ill transferred and conveyed his farm, worth about $50,000, to his wife, Lucy A. New-comb. The transfer was made and intended as a final disposition of his property in view of death which he felt was approaching. Prior to said conveyance an understanding was had between Mr. Newcomb and liis wife that the land should be conveyed to her and that in consideration thereof she would pay, as soon as she realized sufficient money from sales of the property, certain sums of money to certain persons ; among others, that she would pa^ to the plaintiff $2,000, which sum Mrs. Newcomb undertook and agreed, in consideration of said conveyance pursuant to such arrangement, to pay to the plaintiff as soon as she should sell a sufficient amount of the real estate to be in funds for that purpose; thereafter, and on or about July 31, 1890, she did sell and convey about twenty-three acres of the land for the consideration of $23,000. Mrs. Newcomb died August 31, 1890, intestate, without performing the agreement to pay the money to the plaintiff.

The defendant was duly appointed administratrix of her estate. In the course of her administration she caused to be published a notice to the creditors of Lucy A. Newcomb to present their claims on or before April 20,1891. The plaintiff did not present his claim until August 6, 1891. The defendant denied its validity and refused to pay it.

From these facts the referee found as a conclusion of law that the plaintiff was entitled to recover of the defendant, as administratrix, the sum of $2,000, with interest thereon from August 6,1891. The referee did not find that Mr. Newcomb was, at the time of the agreement mentioned, or at the time of the conveyance of the property to 1ns wife, or at any time thereafter, indebted to the plaintiff in any sum whatever. The evidence would not have warranted any such finding. It was made to appear quite clearly to the contrary.

It is not claimed that a trust was created in favor of the plaintiff by the agreement between Mr. and Mrs. Newcomb, for in an action heretofore tried between these same parties it was adjudicated that no trust was in fact established in plaintiff’s favor; so the question is presented, can a promise made upon a good consideration as between the promisor and promisee for the benefit of a third person who is an entire stranger to the consideration, and to whom the promisee was in no manner indebted, be enforced by the third party against the promisor ? The learned referee lias held that such a promise can be enforced. This question has afforded a fruitful subject for the consideration of the courts of this country aiid England and text writers, and it may be difficult to reconcile all of the decisions. Remarks may be found in many of the cases and in the text books sustaining the rule contended for by the respondent, but where such promises have been enforced there will be found, with perhaps here and there an exception, some especial reason for taking the case out of the general rule that an action upon a contract can be maintained only where there is privity of contract between the parties. If the promise be exacted for the purpose of paying a pecuniary obligation which the promisee is under to the person for whose benefit the promise is made, or the latter has a claim upon the promisee arising out of relationship, there are many cases holding that the agreement may be enforced.

In the much-quoted and leading case of Lawrence v. Fox (20 N. Y. 268) the promisee owed the debt which the promisor agreed to pay, and the promisee placed in the hands of the promisor the funds with which to pay it.

It was held in Burr v. Beers (24 N. Y. 178) that a mortgagee may maintain a personal action against the grantee of the mortgaged premises where the conveyance to the grantee contained a recital and covenant that it was subject to two mortgages which were deemed and taken as part of the consideration of the conveyance and which the grantee assumed to pay. The decision was put upon the ground that the undertaking of the grantee to pay off the incumbrance was a collateral security acquired by the mortgagor which inured by equitable subrogation to the benefit of the mortgagee, and upon the further ground that the statute relating to foreclosures provided that if a mortgage debt be secured by the obligation or other evidence of debt executed by any other person beside the mortgagor, such person may be made a defendant and decreed to pay the deficiency. •

Schemerhorn v. Vanderheyden (1 Johns. 139) is relied upon as sustaining the plaintiff’s contention. The general doctrine contended for by plaintiff is stated in the opinion. The defendant applied to Schemerhorn to assign to him his personal property.

Schemerhorn consented upon condition that the defendant would purchase a desk for the plaintiff’s wife, who was the daughter of John Schemerhorn and a sister of the defendant. Plaintiff recovered in Justice’s Court, and the judgment was reversed upon appeal because of the admission of parol evidence as to the agreement to furnish the desk, which agreement was not mentioned in the written assignment.

Coster v. Mayor of Albany (43 N. Y. 399) is easily distinguishable from the case at bar. So is Smith v. Perine (121 N. Y. 376).

In Todd v. Weber et al. (95 N. Y. 181) the defendant’s testator was the father of the plaintiff, though not the husband of her mother. lie promised various persons, relatives of the plaintiff, that if they would care for and educate her he would pay therefor by making due provision for her in his last will. Relying on this promise they maintained and educated the plaintiff until the death of the testator. He died without making any provision for the plaintiff by will or otherwise. The plaintiff was informed by her relatives of this promise of the testator, and, with that knowledge, and in reliance upon said promise, assured them at different times, both before and after she arrived at her majority, that she would pay them for what they did for her when able. There was the natural obligation which the father owed to the child which furnished the consideration for the agreement.

Linneman v. Moross (98 Mich. 178) is an authority for the appellant’s contention. This case is also reported in 39 Am. St. Rep. 528, and in a marginal note many cases bearing upon the question are collected.

The Supreme Court of the State of Minnesota, in Jefferson v. Asch (53 Minn. 446), held to the same effect. This case is also reported in 25 L. R. A. 257, where can be found an instructive collection of authorities in a note to the case.

This is also the doctrine of the Massachusetts courts. See American notes to English Ruling Cases (Vol. 1, p. 705). The question is considered in an article published in 13 Alb. L. J. 362.

The latest decision upon this question in our Court of Appeals is Townsend v. Rackham (143 N. Y. 516). It is the contention of the respondent’s counsel that the question before us was not involved in that case. Whether that be so or not, there can be no doubt that the statement of the law in the opinion of the court fully covers the question before us.

Judge Peckham, in his opinion, says: The doctrine of Lawrence v. Fox (20 N. Y. 268) and the subsequent cases, can furnish no ground for sustaining the right of the plaintiffs to maintain this action. In none of them is there an intimation that the action could be sustained by the third person, in the absence of any liability in his favor due or to grow due from the one to whom the promise was made.”

In Gifford v. Corrigan (117 N. Y. 257) Judge Finch reviews the subject and cites the various authorities and states the grounds upon which the liability has been placed. To maintain the action by the third person there must be this liability to him on the part of the promisee.

There being, as we have stated, an entire absence of any evidence tending to show that Mr. Newcomb was indebted to the plaintiff, or that he was under any obligation to provide for him, he failed to make a case entitling him to recover.

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

Dwight, P. J., concurred ; Bradley, J., not sitting.

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


author: Dwight, P. J.:

text:
    Essa Connolly, Respondent, v. Fred L. Newton, Appellant, Impleaded with Another.

      Dower —parties defendant in cm action for its admeasurement — complaint denvwrraVie— Oode of Civil Procedure, § 1597.
    The effect of section 1597 of the Oode of Civil Procedure, relative to the proper parties in an action for the recovery of dower, is to prevent such an action being brought except against a person who comes within one of the categories stated in that section — either an occupant or one exercising acts of ownership or claiming title to the premises.
    A complaint in an action brought in ejectment for the recovery of dower, in which the doweress alleges, among other things, that her husband had executed a deed of the premises to one of the defendants, and that she had not joined in the conveyance, but which fails to allege that the defendant was either an actual occupant or a person exercising acts of ownership, or one claiming a title or interest in the premises at the time of the commencement of the action, is demurrable.
    Appeal by the defendant, Fred L. Newton, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 4th day of October, 1894, upon the decision of the court, rendered after a trial at the Allegany Special Term, overruling the defendant’s demurrer to the complaint.

      J. R. Jewell, for tlie appellant.

      W. .H. JJourse, for the respondent.
   Dwight, P. J.:

The action was ejectment for dower in lands of which the plaintiff’s husband died seized. The demurrer was for want of facts in the complaint sufficient to constitute a cause of action. The facts stated were coverture, seizin of the husband during coverture and death of the husband; also, that in his lifetime the husband “ executed a deed of the above-described premises to the defendant Fred L. Newton, the plaintiff, his wife not joining in such conveyance,” and that she had in no way confirmed said conveyance or released her dower in said premises.”

The existing statute which gives and regulates the action for dower (Code Civ. Proc. § 1597) provides that where the property, in which dower is claimed, is actually occupied, the occupant thereof must be made defendant in the action. Where it is not so occupied the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action.”

This, we take it, is equivalent to saying that the defendant in such an action must be shown to be within one of the categories described, i. e., that he is either an occupant of the premises, or, if the premises were not occupied, then a person exercising acts of ownership thereupon or claiming title thereto or an interest therein when the action was commenced; and if such fact must be shown it must be alleged. It is equivalent, we suppose, to saying that the actioh can be maintained only against a person or persons who are within' the description of the statute. And if such is the case, then the complaint must allege the facts accordingly. In this case the complaint does not state whether the property is actually occupied or not, nor that the defendant is an occupant thereof, or is a person exercising acts of ownership thereupon, or that he claims title thereto or an interest therein. The only allegation in respect to the defendant is that the plaintiff’s husband in his lifetime executed a deed of the premises to him. It is not even alleged that the deed was ever delivered to him, nor that he took possession of the premises or ever claimed title thereto or an interest therein. So far as appears by the complaint the defendant may have been, not merely at the time of the commencement of the action, bnt at all times, a total stranger to the title and to the premises.

We think the demurrer well taken and should have been allowed.

Lewis and Bradley, JL, concurred.

Interlocutory judgment reversed and demurrer sustained, with costs, with leave to plaintiff to amend within twenty days, on j>ayment of the costs of the demurrer and of this appeal.


text:
    Henry M. Davis, Appellant, v. Benjamin Aikin, Respondent.

      Counterclaim, — when it must be interposed under Code of Civil Procedure, § 2947 — complaint in tort.

    The provisions of section 2947 of the Code of Civil Procedure, requiring a defendant in an action, brought to recover damages upon or for a breach of a contract, to interpose any counterclaim which he may have arising out of a like cause or be forever precluded from suing thereon, apply only to actions on contract. A complaint which sets up, by way of inducement, the employment of one as attorney to bring a certain action under an agreement to accept as a recompense therefor the statutory costs, and alleges that the attorney had succeeded in the action, had obtained a judgment and after demand made had refused to pay over any part of the recovery, and “ has and does now wrongfully convert the same,” is not a complaint upon contract, but states a cause of action for the wrongful conversion of moneys received in a fiduciary capacity.
    A defendant cannot be required nor permitted to interpose a counterclaim to such a complaint.
    Appeal by the plaintiff, Henry M. Davis, from a judgment of the County Court of Niagara county, entered in the office _ of the clerk of the county of Niagara on the 30th day of July, 1894, reversing the judgment of a justice of the peace of the city of Lock-port in the county of Niagara.

      Hervry M. Davis, appellant, in person.

      E. C. Hart, for the respondent.
   Dwight, P. J.:

The principal cause of action in the plaintiff’s complaint was for professional services, as an attorney, rendered by him to the defendant, and the case presents the question whether that cause of action was barred, under the provisions of section 2947 of the Code of Civil Procedure, by the neglect of the plaintiff to interpose it as a counterclaim in an action previously brought by the defendant against him. The answer to the question depends upon the nature and circumstances of the last-mentioned action.

The provisions of the statute referred to are as follows:

“ Where the defendant, in an action to recover damages upon or for breach of a contract, neglects to interpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from ■ him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof.” It is only, therefore, in actions on contract that the omission to set up a counterclaim operates to preclude the future maintenance of an action thereon, and it becomes the question of this case whether the action by the defendant in which the plaintiff here omitted to interpose his counterclaim, was an action on contract.
The complaint in that action is before us, and, though drawn for a Justice’s Court, it is full in its details and prepared with evident attention to the rules of pleading. It first alleges, by way of inducement, the employment by the plaintiff therein — the defendant here — of the defendant therein — the plaintiff here — as attorney, to bring a certain action for him in the Supreme Court under the agreement that the latter would charge and receive for his services in such action only the statutory costs which should follow the judgment to be obtained by the plaintiff therein ; that the action was brought and tried and judgment was obtained and entered in favor of the plaintiff therein for seventy-five dollars damages and nineteen dollars and fifty-six cents disbursements for witnesses’ fees, which had been expended by him, besides the statutory costs to which his said attorney was entitled under the agreement before stated. The complaint in question then alleges that the said Davis has received and collected on said judgment the said sums of seventy-five dollars damages and nineteen dollars and fifty-six cents disbursements paid by the plaintiff therein, besides the full allowance of statutory costs, and that he refuses to pay to the plaintiff therein the sums of seventy-five dollars and nineteen dollars and fifty-six cents, though payment of the same has been duly demanded of him, bnt that he refuses so to do and retains the same, and “ has and does now wrongfully convert the same, to wit, the sum of ninety-four dollars and fifty-six cents, to his own use.”

¥e believe that the action thus characterized by the complaint therein is not an action on contract, but distinctly an action for the wrongful conversion of moneys received by the defendant in a fiduciary capacity for the plaintiff therein. There is no allegation of a contract in the complaint except that one stated by way of inducement, which fixed the compensation to be received by the attorney for his services as such. It is true that a contract might be implied from the facts alleged, that the defendant in that action would pay to the plaintiff all the excess of the recovery therein over and above the taxable costs, but there is no allegation of such a contract, either express or implied, and, on the contrary, the allegation is that the defendant therein has received and wrongfully converted to his own use the amount for which the action was brought. The action, as exhibited by the complaint, which has been, in substance, recited, seems to have possessed all the elements of an action sounding in tort, and entitling the plaintiff therein to an order of arrest pending the action, and to an execution against the person on the recovery of judgment; and to such an action we suppose the defendant can neither be required nor permitted to interpose a counterclaim. (Code Civ. Proc. § 501, subd. 2; Rochester Distilling Co. v. O'Brien, 72 Hun, 462.)

In the action now under review another defense on the facts was interposed to the plaintiff’s principal cause of action, but that defense seems to have been properly tried before the justice and was determined in favor of the plaintiff. The reversal in the County Court, we must assume, in the absence of an opinion, to have been based upon the ground heretofore discussed. Such being the case, the judgment of the County Court should be reversed and that, of the justice affirmed.

Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Niagara county reversed and that of the justice affirmed.


author: Bradley, J.:

text:
    Maria A. Brinkerhoff, Appellant, v. Amarilla B. Sartwell, as Executrix, etc., of Henry J. Sartwell, Deceased, and Others, Respondents.

      Hrarud — rescission of a contract, induced by statements believed to be true — knowledge of the agent — hearsay evidence.

    The knowledge which an agent has at the time of the sale of personal property is binding upon his principal.
    In an action brought by a married woman to rescind a sale of the stock of a corporation, made by her husband as her agent; on the ground that it had been . induced by fraudulent representations of the vendee, it appeared that her husband was an organizer, and also a stockholder and trustee and a general sales agent of the corporation; that he had a better knowledge of its condition than the alleged fraudulent vendee, and that “this knowledge was present to his mind ” when he made the sale in question; and, further, that the statements of the vendee were not derived from actual knowledge, and that he had reason to believe that such statements were true. It also appeared that the value of the stock was uncertain, and that at the time of the sale its fair value did not exceed the price paid.

      Held, that a judgment in favor of the defendants would not be disturbed.
    A plaintiff cannot testify to statements, made by an alleged fraudulent vendee to her agent, which have been merely repeated to her by her agent.
    Appeal by the plaintiff, Maria A. Brinkerhoff, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cayuga on the 16th day of March, 1892, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

      8. E. Payne, for the appellant.

      W. E. IIugMtt, for the respondents.
   Bradley, J.:

The plaintiff was the owner of twenty-live shares, and her son, Frederick D. Brinkerhoff, of two shares of the stock of the Empire 'Wringer Company, of the par value of $100 each, and on the 31st day of December, T878, through Jacob Brinkerhoff, the husband of the plaintiff, those twenty-seven shares were sold to Henry J. Sartwell at the price of thirty-one dollars and fifty cents per share.

The plaintiff having taken an assignment of the alleged claim of her son, seeks a rescission of the sale and transfer of the twenty-seven shares of stock and recovery of the amount of dividends paid upon them since the transfer, on the alleged ground that the sale of the stock to him was procured by the fraud of Sartwell.

The Empire Wringer Company as a partnership, formed in 1873, composed of Jacob Brinkerhoff and others, continued until January 1, 1877, when it was succeeded by the company as a corporation, and its capital consisted of patents, material, manufactured goods, machinery, belting, tools, patterns, sheds, fixtures and unexpired insurance, estimated at $62,278.97, transferred by the partnership to the corporation with the good will of the business of the partnership, estimated at $1,121.03, making together $64,000, which constituted the capital of the company. The corporation thereupon issued 640 shares of its capital stock of the par value of ‘$100 each, of which 134 shares were issued to Jacob Brinkerhoff and 25 shares by his direction to the plaintiff, his wife, and the residue to others. And it entered upon the business of manufacturing clothes wringers, barbed fence, cot beds and wash benches.

The manufacture and sale of the wringer proved to be a profitable business, which from and after 1878 was productive of dividends to the stockholders. The barb fence branch of the business was a burden and had resulted in a loss of about $45,000 to the company at the time of the sale of the stock.

The alleged fraud is predicated upon representations made by Sartwell to J$cob Brinkerhoff, who acted as the agent of his wife and son in making the sale. If the referee had adopted the testimony of Brinkerhoff as correctly representing the transaction of the sale, it is very likely that the conclusion would have followed that Sartwell was chargeable with misleading Brinkerhoff by false and deceptive representations in making the.purchase. But the referee has not found and has refused to find the facts in accordance with such testimony, which, in view of the relation of Brinkerhoff to the transaction and to the plaintiff, the referee was permitted to do. In the outset Brinkerhoff applied to Sartwell for a loan upon the security of the stock, which was declined with the remark that he would purchase it at its value. Shortly after Brinkerhoff advised Sartwell that his wife and son had concluded to sell the stock, and the referee found that thereupon Sartwell stated (as he had proposed to do in the first interview) that he had investigated the business; that it was in bad shape, was hardly paying expenses; that the wringer business had fallen off; that the fence business had absorbed a large amount of the assets; that he did not cai'e whether lie bought or not; that it would be a good deal like buying a cat in a bag; that he would pay thirty-one dollars and fifty cents per share for the twenty-seven shares, which in his opinion was all it was worth. His ¡Disposition was accepted and the transfer of the certificates made. The referee further found that Sartwell made the statements, not from actual knowledge, but from the conclusion he drew from investigation of the books and from conversations with the officers of the corporation ; that he had reason to believe that the representations made by him were true, and they were so as nearly as he could ascertain; that they were not made with intent to deceive, or to induce the sale of the stock for less than its value; that the agent,; Brinkerhoff, by reason of his relation to the corporation as one of its organizers, stockholders, trustees and its general sales agent, had a better knowledge than Sartwell of the condition of its property, business and affairs, and that “this knowledge was present to his mind when he sold these 27 shares of stock.” And the referee added that, in view of the situation as it appeared at the time of the sale, the shares of the stock were not fairly worth to exceed thirty-one dollars and fifty cents per share.

The view which the referee was permitted to take of the evidence as a whole enabled him to find the facts as he did find-them. Sartwell’s death has deprived the defense of his evidence. And as the transaction occurred more than ten years before the trial and eight years before the action was commenced, the referee may be deemed to have been justified in subjecting to His careful scrutiny the testi-' mony of witnesses who seemed to have some interest in the question. His findings upon the subject of the statements made by Sartwell in the negotiations which resulted in the sale of the stock, and relating to the inducements for making it to him, were fairly permitted by the evidence, and on this review are treated as supported by it. As it turned out, the stock was at the time of the sale worth much more than the price paid for it, as for several years thereafter it was productive annually of a very respectable dividend. But shutting out from view the subsequent events, the value of the stock at the time of tlie transfer was quite uncertain. It was dependent solely upon the success of the business. No dividend had then been made since the creation of the corporation. A part of the capital on its organization consisted of patents estimated at $25,000, reduced in 1878 to $19,269.51, some of which would expire in a few years; the branch known as the barb fence business had been carried on at a loss of about $45,000, and there was then apparently an increasing competition in the wringer business; the sales of the wringer had, in 1878, fallen considerably below those of each of the years 1875, 1876,1877, and such decrease in the number was from 26,524 in 1875, to 18,256 in 1876, to 15,526 in 1877, and to 13,435 in 1878. The company had concluded to close out or dispose of the barb fence branch of the business, which was done the next spring. And while the wringer branch had been productive and would have yielded dividends in the years 1877-1878 if the corporation had not been burdened with the losses in the barb fence department, the result of the business in the then future was a matter of speculation and uncertainty. The opportunity of Brinkerhoff to have and entertain an opinion founded on his judgment was no less than that of Sartwell. Brinkerhoff was one of the organizers of the business of the partnership as well as the corporation. He seems to have given the barb fence branch his preference, and sought patronage more especially for that on his trips as sales agent, but he was at the place of business of the company a considerable portion of the time, and in 1878 he attended seven of the ten meetings of the trustees that year. The finding of the referee that Brinkerhoff had better knowledge than Sartwell of the condition of the business of the corporation, and that such knowledge was present in his mind at the time of the transaction in question, was warranted by the evidence.

And the conclusion properly followed that the plaintiff and her assignor were chargeable with the knowledge which their agent, Brinkerhoff, had of the property, business and prospects of the corporation at the time of the sale of the stock. (Constant v. University of Rochester, 111 N. Y. 604.)

This proposition, however, has but little significance in the present case, since the question of fact on the main issue was determined by the findings of the referee adversely to the plaintiff.

There was no error in the exclusion of the evidence of the plaintiff offered to prove what her husband told her Sartwell had said to him in regard to the stock. In that transaction Brinkerhoff was and acted as the agent of the plaintiff, and in no sense represented the purchaser.

The judgment should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment affirmed, with costs.


text:
    Mary O. Dakin, as Executrix, etc., of Elbridge Dakin, Deceased, Respondent, v. Eldreth A. Walton, Appellant.

      Books of account — death of entry clerk — account stated —proof of statements of a. deceased agent.

    Books of account of a person who has died before the trial of an action brought to enforce a demand represented by entries therein, whose clerk, the maker of the original entries, is also dead, may be introduced in evidence when accompanied by the usual preliminary proof.
    The retention by a vendee for several weeks of a bill sent to him by a vendor, not followed by any objection on the part of the vendee except as to the price, will constitute the bill an account stated as to the quantity of goods sold.
    Such retention and objection will not conclude the vendee as to the price, and where a merchant’s business is in charge of an agent who named to the vendee a price lower than that stated in a bill subsequently rendered, it is competent for the vendee to testify to such price, although the merchant and his agent have both died before the trial of the action.
    The matter of a stated account is one of mutuality of the parties to it.
    Appeal by tlie defendant, Eldretb A. Walton, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Ontario on the loth day of June, 1894, upon the report of a referee.

      Charles A TIawley, for the appellant.

      George L. Bachmam, and B. JV. McJSfaughton, for the respondent.
   Bradley, J.:

The plaintiff’s testator for some years prior to his death was engaged in the coal business at Geneva, N. Y. The purpose of this action was to recover a sum alleged to be due from the defendant for coal, sold and delivered to him. From in September, 1890, until the time of his death, in March, 1893, the plaintiff’s testator by reason of his illness gave no personal attention to the business. During that period his business of selling coal was transacted by George Patterson, who had for many years been in his service. Patterson died in May, 1893. And the evidence relied upon to prove the sale and delivery of the coal in question to the defendant was mainly that furnished by the testator’s books of account, and by the fact that bills rend.ered to the defendant of coal sold to him were retained by him for considerable time without any objection made to them in that respect. The entries of the account in question were made in the books by Patterson, and after his death there seems to have been no evidence of the sale of the coal to the defendant- available to the plaintiff, other than that furnished by the book. After the preliminary proof requisite in such case had been given the account book was introduced in evidence. This was permitted by the exigency of the situation arising from the death of the person having charge of the business and who made the entries in the book. (Arms v. Middleton, 23 Barb. 571-573.)

The plaintiff caused a statement of the account for coal against the defendant to be delivered to him. In it the price of the coal was inserted as it appeared on the book, at five dollars and fifty cents per ton. The defendant afterwards returned the bill with a statement written by him at the bottom of it, to the effect that reduction should be made to five dollars per ton, as agreed with Patterson, and with the bill inclosed his check -to the plaintiff for the amount so reduced. This the plaintiff did not accept, but returned the check to the defendant with another bill increased forty-four dollars and twenty-eight cents by the addition of an item of that amount omitted in the former bill as rendered. This he had retained two or three weeks when this action was commenced. It is claimed on the part of the plaintiff that the retention by the defendant without objection of the account as first rendered for five or, six weeks, and the other for the time before mentioned, constituted a stated account. The plaintiff was at liberty to so treat the first bill rendered, and then it may have been treated as presenting pri/tna faoie the state of the account between the parties. (Lockwood v. Thorne, 18 N. Y. 285.) The matter of a stated account is one of mutuality of the parties to it.

That bill was not treated by the plaintiff as the entire account, and she corrected it by adding the further item £>f forty-four dollars and twenty-eight cents. But the final treatment by the defendant of the first bill rendered was such as to permit the inference that he recognized the correctness of the quantity of coal stated in it, and the same conclusion is allowable as to the other and later bill rendered.

It cannot be said that the defendant was concluded as to the price in it. He offered to prove a conversation had by him with Patterson in regard to the purchase of coal in the spring of 1892, and before the coal in question was delivered, and the evidence was excluded. This was error. Patterson then had charge of the business of selling coal for the plaintiff’s testator, and it was within his apparent authority to agree upon the price of coal sold by him, and if, as the defendant insists, Patterson agreed to sell him the coal so delivered at five dollars pefi ton, it was competent to prove the fact. It cannot be assumed that the defendant may not have been prejudiced by the exclusion of the evidence.

The judgment should be reversed and a new trial granted, costs to abide the event unless the jfiaintiff stipulate to reduce the recovery, aside from costs, to $334.75, and interest on $243.58 from February 20,1893, and on $91.17 from May 20, 1893, and in that event the judgment be so modified, without costs of this appeal to either party.

Lewis, J., concurred.

So ordered.


text:
    Frank J. Bissing, Plaintiff, v. Lewis L. Smith and Others, Defendants.

      Ejectment —judicial notice of the rights of the Eolla/ni Land Company — recitals in a deed — presumption as to the execution of a power in trust — champerty — burden of proof of adverse possession — credibility of a party.

    The compact entered into between the States of New York and Massachusetts in 1786 whereby the sovereignty and jurisdiction over the disputed territory in the western part of. the State of New York were ceded to the State of New York, and the right of preemption in the land to the State of Massachusetts, the conveyance by the State of Massachusetts of the western part of that territory, subject to the native right of the Indians, to Robert Morris, and his conveyance of a portion of it to the Holland Land Company, are matters of public history of which the courts will take judicial notice. It is not a good objection to a deed from the Holland Land Company of premises in that section of the State, offered upon the trial of an action in ejectment, that no title to the premises was shown in that company.
    Recitals in a deed are evidence in an action of ejectment .only against the parties thereto and their privies in estate and blood, but a person in possession of lands who conveys them to a grantor of the plaintiff-and afterwards accepts a lease of the same premises from such grantor, places himself in such a relation to the plaintiff’s title that he will be bound by the recitals in the chain of such grantor’s title.
    Where persons are by certain instruments constituted trustees, or at least donees of powers in trust, and are given a power of sale, their execution of the same will be presumed to have been effectually made notwithstanding the existence in the grants of certain conditions which seem to limit their powers.
    The statute declaring void a grant of lands, if at the time of delivery of the grant the lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor, establishes a rule of law which is not to be construed with any more liberality than its terms necessarily require.
    The possession of a tenant is deemed to be in subordination to the title of his landlord until twenty years after the tenancy ceases, but where he has been evicted he may return at once and occupy in hostility to the landlord’s title.
    Where such an evicted tenant returns and occupies for a period of less than twenty years and conveys to another, the latter, if actually occupying, may be deemed to be in possession and claiming under a specific title adverse to that of the landlord.
    Although such a grantee is not compelled to inquire into the nature of the title of his grantor and is not chargeable with constructive notice of its defects, yet the burden is upon him to show actual possession and his adverse holding under color of title; and upon these issues the question is ordinarily one of fact for the jury.
    The weight to be given to the testimony of a party is always, by reason of his interest in the event, a question for the jury.

      Motion by the defendants, Lewis L. Smith and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a ■ jury in favor of the plaintiff, rendered by direction of the court after a trial •at the Erie Circuit on the 18th day of April, 1894.

      Edward D. Strebel, Edwvn G. Bobbms and George 0 linton, for •the plaintiff.

      John A. Bonayne and Stephen Lockwood, for *the defendants.
   Bradley, J.:

The action is ejectment to recover the possession of a parcel of land within what is known as the Buffalo Creek Reservation in the •county of Erie. The main question is whether the evidence was •sufficient to establish title in the plaintiff to the premises.

It appears that oh the 12th day of September, 1810, Wilhem "Willink and others, constituting' the Holland Land Company, by their attorney, Paul Busti, conveyed to David A. Ogden about 200,000 acres of land lying west of the Genesee river and within what was known as the Cattaraugus Reservation, Tuscarora or Seneca Reservation, Buffalo Creek Reservation, Allegheny Reservation, Caneadea Reservation and the Tonawanda Reservation.

The beneficiaries of that purchase and conveyance were Ogden and his associates, and the trusts upon which the title was taken and held were declared in the subsequent deed of date February 8, 1821, covering the same property, made between David. A. Ogden and wife of the first part, Paul Busti of the second part, Joshua Waddington and others of the third part and Robert Troup, Thomas Ludlow Ogden and Benjamin ’Woolsey Rogers of the fourth part, by which conveyance was made to the parties of the fourth part upon the trusts that they and the survivors or survivor of them should have the premises surveyed into lots for the purpose of division into twenty shares and make partition between the associates in the manner mentioned, so far as in their judgment the lands were susceptible of such division, and that they sell at public auction and convi^ such of the lands as they might deem not susceptible of such division; and they were given full power and direction to treat with the Seneca Nation of Indians for tlie purchase or extinguishment of the native claim to all or any part of the lands.

The parties of the third part were the beneficiaries and associates, and constituted what was known as the Ogden Land Company.

The next deed was that of date December 19,1829, made between Robert Troup, Thomas Ludlow Ogden and Benjamin W. Rogers of the first part, Joseph Fellows and Charles G. Troup of the second part and Thomas Ludlow Ogden, Joseph Fellows and Charles G. Troup of the third part. In it is recited the prior deed of February 8, 1821, and its purpose, the progress made in treating with the Indians, and that certain portions of the premises had been partitioned and allotted to the associates, etc. Then it proceeds to describe the lands still held by the parties of the fourth part in the deed of February 8, 1821, and adds that Robert Troup and Benjamin Woolsey Rogers having, at a meeting of .the associates, signified their desire to be released from the further execution of the trusts, “it was resolved by the associates so convened that all the residue and remainder of the said trust estates should be vested for the like purpose and upon the like trusts in the said ” parties of the third part in pursuance of such resolution. And conveyance was accordingly made to Joseph Fellows and Charles G. Troup upon such trusts to be held by them and the survivors or survivor of them.

In a deed made July. 16, 1810, between Benjamin "W. Rogers and others of the first part and Thomas Ludlow Ogden and Joseph Fellows of the second part, is recited the deed of December 19, 1829, the death of Charles G. Troup, the progress which had been made in the execution of the trusts and the shares of the parties of the first part (which constituted twelve-twentieths of the entire interests). The deed then proceeds to grant the estate to the parties of the second part, repeats the trusts and grants to them power in the events and for the purposes mentioned to sell lands by public auction or private contracts. And in the deed of date September 21,1871, made between Joseph Fellows of the first part, and George R. Babcock and Charles Edgar Appleby of the second ]S¡krt, after reciting the deed of December 19, 1829, and the death since then of Thomas Ludlow Ogden and Charles Troup, it was further recited that Joseph Fellows .having signified his desire to be relieved from the further execution of the trust, at a meeting of the associates or proprietors of the trust property convened in the city of New York, it was resolved by them that the residue and remainder of the trust estate be vested in George R. Babcock and Charles E. Appleby as trustees, to hold for the like purposes and upon the like trusts as the same had hitherto been held by Fellows, and grant was made to them accordingly. Babcock died in September, 1876, and afterwards, November 1, 1892, Charles E. Appleby, describing himself therein as the sole surviving trustee of the estate and interests commonly called the Ogden Land Company, executed and delivered to the plaintiff a deed purporting to convey the land in question to him.

The compact entered into between the States of New York and Massachusetts, in 1786, whereby the sovereignty and jurisdiction over the disputed territory in the western part of this State were ceded and surrendered to the State of New York and the right of preemption in the land to the State of Massachusets, the conveyance by the State of Massachusetts of the western part of that territory, subject to the native right of the Indians, to Robert Morris, and his conveyance of a considerable portion of it to the Holland Land Company, are matters of public history in this State.

The objection to the introduction in evidence of the first deed above mentioned on the sole ground that no title was shown in the Holland Land Company is deemed not well taken. As the defendants did not on the trial raise the question of power of Paul Busti as attorney for that company to execute the deed, it is not available on this review. The fact, it may be, would have been supplied if the objection had been taken. The power of Appleby as trustee for the Ogden Land Company to make the conveyance to the plaintiff is questioned, and exception was taken to the introduction of the deed in evidence.

The purpose of the deed of February 8, 1821, was to declare the trusts upon which title had been taken by Ogden from the Holland Land Company and to convey the land to the persons named as trustees for the execution of the trusts. The purpose of the deed of December 19, 1829, was to substitute Fellows and Charles G. Troup in place of those who then retired and by grant place them in such relation to the lands remaining subject to it so as to enable them to execute the trust. This, as appears by recitals in the deed, was pursuant to the consent and resolution to that effect of the beneficiaries of the trust. And the retirement of Fellows as the sole surviving trustee and the substitution of Babcock and Appleby as trustees was accomplished by the deed of September 21, 1871, pursuant to the like consent and resolution of the beneficial proprietors, as is also recited in the deed.

Those recitals are evidence only against the parties to the deeds and their privies in estate and blood. (Hardenburgh v. Iakw%, 47 N. Y. 109.) When those deeds were put in evidence it -did. not appear on what the defendants’ alleged claim of title was foimded, and it could not then be assumed that their claim of title was paramount to that conveyed by the Holland Land Company to Ogden. It afterwards appeared that the defendant Lewis L. Smith was in possession of the land for some time prior to March 24, 1875 ; that an action had been commenced against him by Babcock and Appleby to recover the possession of it, and on that day the action was, pursuant to arrangement between the parties to it, discontinued; that Smith, upon a consideration expressed of $250, executed and delivered to George It. Babcock, as trustee, a deed of conveyance of the said premises to him, which deed was recorded the same day, and they 'joined in the execution of a lease made by Babcock as such trustee to Lewis L. Smith for the term of one year. Holding over after the expiration of the year Smith, by summary proceedings under the statute instituted by Babcock in April, 1876, was removed from the possession of the premises.

The surrender and conveyance of them to Babcock as trustee and taking from him as such trustee the lease, placed Smith in such relation to the title conveyed to Ogden and to the trusts in behalf of the proprietors as to render the recitals in the deeds evidence against him.

Babcock and Appleby were apparently clothed with power to execute the trusts, and assumed to do so. The land in question was part of that conveyed to Ogden. The conveyance by Smith to Babcock as trustee inured to the trust. On the death of Babcock the powers of the trust or powers in trust devolved upon Appleby as the survivor. And as amongst the powers of the trustees was that of sale it will be presumed that the sale and conveyance were effectually made to the plaintiff notwithstanding the conditions in that respect in the grant of the power. (Minuse v. Cox, 5 Johns. Ch. 441; Marshall v. Stephens, 8 Humph. 159; 47 Am. Dec. 601; Schenck v. Ellingwood, 3 Edw. Ch. 175.)

It appears that the next year after he was removed from the premises, and in 1877. Lewis L. Smith again went'into possession of them. So far as appears he did so without any right or permission. In 1891 he executed and delivered to his son, the defendant Louis •John Smith, a quit-claim deed of the premises. This grantee alleges that he then entered under a claim of title founded upon such conveyance and exclusive of any other right. And it is urged in his behalf that the deed of conveyance made by Appleby as trustee to the plaintiff in 1892 was champertous and void by force of the statute which provides that every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” (1 N. S. 739, § M7.) This question could not arise if the defendant Lewis L. Smith had continued in possession from the end of the term of the demise to him, as then no grant could within twenty years of such 'continued possession have been made by or taken from him other than in subordination to the title of his landlord. ( Whiting v. Edmunds, 91 N. Y. 309; Bedlow v. N. Y. Floating Dry Dock Co., 112 id. 265; Church v. Schoonmaker, 115 id. 570.)

But on his eviction from the possession and surrender of it to his landlord his relation of tenant was terminated and he was enabled on returning to the possession to assume to occupy in hostility to the owner. His possession, however, will be deemed to have been in subordination to the legal title unless held adversely to it for twenty years. (Code Civ. Proc. § 868.) Let a jierson taking a deed of conveyance from him and entering under it might be deemed in possession claiming under a specific title adverse to that of the grantor of any conveyance made to another while such actual possession continued. (Crary v. Goodman, 22 N. Y. 170; Sands v. Hughes, 53 id. 287; American B. N. Co. v. N. Y. E. R. R. Co., 129 id. 252.)

The burden was with the defendant Louis J. Smith to prove that he entered into and was in the actual possession of the premises under such deed to bim and holding adversely to the title of the plaintiff’s grantor at the time the deed was made to the plaintiff. He has the benefit of no inference in support of such facts. (Howard v. Howard, 11 Barb. 663.) As a general rule when entry is made under color of title the possession will be deemed adverse although the supposed title is groundless. (La Frombois v. Jackson, 8 Cow. 589.) And the grantee so entering under color of title is not required to inquire into the nature of the title of his grantor, nor is he chargeable with constructive notice of its defects. (Sands v. Hughes, 53 N. Y. 287.)

It is not the policy of the law in this country to give this rule of the common law embraced in the champerty statute a construction and effect more liberal than its terms necessarily require. It has been held that to constitute possession adverse so as to render a deed subsequently made void, the party asserting it must rely upon his title and believe it to be good, although it may be otherwise. (Livingston v. Peru Iron Co., § Wend. 511.)

This doctrine, however, has been questioned in later cases, and it may be that the question of good faith in that respect on his part is not one for consideration. (Sands v. Hughes, 53 N. Y. 596, 597; Mwnro v. Merchant, 26 Barb. 402.) But whether or not he is in the actual possession, holding adversely under a claim of a specific title at the time the subsequent deed is made, is usually a question of fact for the jury. In La Frombois v. Jackson (8 Cow. 597) Chancellor Jones said: “ The fact of possession and its character, or the guo animo of the possessor, are the test,” and added that in that case the continued possession was conclusively shown, and the guo amimo was apparent from the uniform claim of title and continued acts of ownership. (See, also, Livingston v. Peru Iron Co., 9 Wend. 518; Pownal v. Taylor, 10 Leigh, 172; 34 Am. Dec. 725, Macklot v. Dubreuil, 9 Mo. 477; 43 Am. Dec. 550; Beverly v. Burke, 9 Ga. 440; 54 Am. Dec. 351.) In the present case the defendant Louis J. Smith testified that he took possession of the premises about the time the deed was made to him; that he has ever since held qDossession of them under the quit-claim deed from his father, and has used the premises for farming and gardening purposes ; that he built a barn and house there, and that he has never recognized any outstanding title in any one to the premises.

He also testified that liis place of residence was in tlie city of Buffalo, and that lie cultivated part of the land himself, and a portion of it was worked by his tenant, and it appears that during that time his father continued to reside on the premises.

The difficulty in treating the facts testified to by the defendant as established as matter of law is in his relation of party to the action, and his interest as such in the controversy. The credibility of his testimony was a question for the jury. (Honegger v. Wettstein, 94 N. Y. 252; Miller v. Boyer, 79 Hun, 131.)

And since the defendants did not request the submission of any question to the jury, but, by their motion for nonsuit, treated the case as presenting questions of law only, and as the court directed a verdict for the plaintiff at his request, the questions of fact must be deemed to have been disposed of by the court adversely to the defendants. (Winchell v. Hicks, 18 N. Y. 558; Ormes v. Dauchy, 82 id. 443; Dillon v. Cockcroft, 90 id. 649.)

So far as relates to the defendant Lewis L. Smith, it may be added that he had no defense under the statute; he had, sixteen years before the execution of the deed to the other defendant, conveyed to Babcock as trustee whatever claim of title he may then have had, and his possession taken in 1877, continued for a period less than twenty years, could give him no defense against the rightful owner, nor could he, by his deed to the defendant Louis J. Smith, create, through the adverse possession of the latter, a claim of a specific title under which to shield his own possession against ■a conveyance thereafter made by the owner to another.

The motion for a new trial should be denied.

Dwight, P. J., and Lewis, J., concurred.

Motion for new trial denied and judgment directed for the plaintiff upon the verdict.