author: By the Court. Hoffman, J.

text:
    Henry Wardwell v. Richard Patrick and Joseph Tarratt.
    The endorsement, by a Sheriff, or other officer, of the time of the receipt of a “summons” in an action, is not, of itself, evidence of the fact, so as to show the time of the commencement of an action, Within the 99th section of the Code. There not being any statutory provision requiring such an endorsement, as in case of an execution, the rule which admits, as evideñce, such endorsement in the latter case, does not apply.
    A bond fide assignment of a clean bill of lading to a purchaser for value is equivalent to an unconditional delivery of the goods themselves, so far as to supersede and render unimportant any conditional contract between the original owner, or the party making such consignment, and the consignee.
    (Before Duer, Ch. J., and Hoffman, J.)
    Heard, May 28;
    decided, June 27, 1857.
    This is an appeal by the defendant, Patrick, from a judgment entered upon a verdict, in favor of the plaintiff, against him, for the sum of $1013 48. The defendant, Tarratt, had a verdict in his favor, and recovered costs.
    The stipulation of the parties, and the evidence, established the following facts:
    The firm of Simcox, Pemberton, & 'Co., of Birmingham, sold, on the '31st of March, 1847, two cases of hardware, the property in question, to Edward W. Pemberton, of Hew York, on credit, and sent the same to Daniel Willis, of Liverpool, to be shipped to Pemberton, This was done, and a bill of lading (in which Willis is named as the shipper, and stating that the goods are to be delivered “unto order or assigns,” and endorsed, “deliver the within mentioned goods to Mr. E. W. Pemberton, or order— Daniel Willis,”) and invoices were sent to Pemberton by the ship Garrick. The goods were worth £100.9s. 4d. The defendant, Patrick, was authorized by the vendors to seize the goods in transitu, and sell them, or return them.
    In the month of May, 1847, Pemberton assigned the bill of lading to Caleb Le Baron, who paid him $500 for the same. On the 14th of May, 1847, the goods arrived. The duties were not paid, and the goods went to the public stores. They remained there until the 29th of January, 1849, when they were taken by Patrick, as agent and attorney of Simcox, Pemberton & Co., he paying the duties, and claiming the right to stop them in transitu.

    The evidence is, that between January and May, 1847, Pemberton was indebted to Le Baron, in at least $1,000. The transaction as to the bill of lading, took place early in May, 1847. Le Baron obtained it, and paid the money before the vessel arrived.
    The goods were not bonded, but lay at the Custom House for about twenty months after their arrival.
    The plaintiff claims under an assignment from Le Baron.
    The cause was tried before Chief-Justice Oakley (and a jury), under whose direction the jury found a verdict against the defendant Patrick, upon which the judgment appealed from was entered.
    The case presents one exception to the charge of the Judge, and two exceptions as to his rulings during the trial. The facts connected with the exception to the charge, are stated in the opinion of the Court.

      Mr. Van Vleeck, for appellant.

      J. E. Burrill, for respondent
   By the Court. Hoffman, J.

We shall first consider the exception to the charge of the Judge, respecting the effect of the Statute of Limitations.

After the testimony had been closed, the Judge remarked, that the pleadings set up the Statute of Limitations, and nothing had been said about it. The counsel for the defendants stated that the summons was not served until the 15th of February, and insisted that it was for the plaintiff to show that the action was commenced within six years. The counsel for the plaintiff contended that it was for the defendant to show that the action was not commenced within six years, and so the Judge ruled.

But apparently waiving this decision in his favor, the counsel of the plaintiff read in evidence the summons and the endorsement thereon, a copy of which is in the case. The counsel of the defendants again insisted that there was no proof to show that the action had been commenced within six years after the cause of action accrued.

The Judge charged, that as to the Statute of Limitations, the cause of action accrued on the 29th of January, 1849, when the goods were taken; that although the summons was served in February, 1855, yet from the delivery of it on the 25th of January, 1855, and its subsequent service, the action was to be deemed commenced at the time of such delivery.

To which ruling of the Judge, as to the proof of the commencement of the action, the counsel for the defendant then and there excepted.

The jury found for the plaintiff, as before stated.

The summons produced in evidence is dated January, 1855, and is endorsed—

“Received, January 25, 1855.

“J. C. Willett, Under Sheriff"

The Code (§ 99) provides, that an attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of the title (Time of Commencing Actions), when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided. The attempt must be followed by service within sixty days.

The service was made on the 15th of February, and the section would be complied with fully, if the proof of the delivery to the sheriff on the 25th of January was sufficient. The certificate of the service by the sheriff is, that he served it on the defendants, at the city and county of New York.

By the tenth section of the Act of Executions, and the Duties of Officers thereon,” the sheriff or officer receiving an execution, shall endorse thereon the year, month, day, and hour of the day, when he received the same (2 R. S. 364, § 10). There are also express statutory provisions as to the duty of sheriffs to make return of process (2 R. S. 440, § 80, 81). In such cases the executions, or other process, with the return endorsed upon them, are made competent evidence between the parties, (Henderson v. Cairns, 14 Barbour Rep. 15; Sheldon v. Payne, 3 Selden, 453). But we do not find any provision making it the duty of the sheriff to endorse the day of receiving original process in an action upon it. The 78th section (2 R. S. 440) provides, that when process of any description is delivered to the sheriff to be executed, he shall give to the person delivering the same, if required, a minute' in writing, specifying the names of the parties, the general nature of the process, and the day of receiving the same. No such certificate was here obtained.

Our opinion is, that the endorsement by the deputy-sheriff, of the delivery of the summons at the office, is not evidence of the fact. No statute has prescribed the duty of making such an endorsement; and it is upon that ground, and upon the faith of the law that officers correctly discharge a statutory duty, that the admissibility of such evidence depends.

It is then insisted, that the point was not raised, or at least does not, upon this case, appear to have been raised. We think, after some hesitation, that there is enough in the exception to call for a decision of the point. The exception is because the Judge ruled upon the proof of the commencement of the action. The naked proposition of law involved in the charge, no respectable counsel could dream of questioning. This was simply, that by a delivery of the summons to the Sheriff, on the 25th of January, followed by a service in the month of February, (of course within sixty days,) the action should be deemed to be commenced on the former day. It was the proof on which this proposition rested, which was questioned, not the law resulting from proven facts.

The fact that the counsel of the defendants, previous to the charge, insisted, that there was no proof that the action had been commenced within six years, confirms our view.

2. The next question arises upon the defendants’ offer to show that the sale, from the owners of the goods to Pemberton, was a conditional sale, which offer was overruled.

The counsel of the plaintiffs correctly insists, that where a delivery of goods has been made unconditionally, tne fact that the sale was conditional, provided the delivery was absolute, is of no importance, (Smyth v. Lynes, 1 Selden, 41.)

But is the transfer, by endorsement of a bill of lading, equivalent to a delivery of property, so as, (when made to a bond fide purchaser,) to preclude evidence of a conditional contract between the original parties?

We think that a bond fide transfer of a clean bill of lading is tantamount to an actual delivery of goods themselves, so as to supersede any previous conditional contract between the consignee and owners. Hence, the proof offered would have been immaterial.

In Conard v. The Atlantic Insurance Company, (1 Peters’ U. S. Rep. 445,) the law is thus stated. “ It is a settled rule of commercial law that the consignee is thus constituted the authorized agent of the owner, to receive the goods: and by his endorsement of the bill of lading to a bond fide purchaser for a valuable consideration, without notice of any adverse interest, the latter becomes, as against all the world, the owner of the goods. This is the result of the principle, that bills of lading are transferable by endorsement, and thus may pass the property. It matters not whether the consignee in such a case, be the buyer of the goods, or the factor or agent of the owner. His transfer in such a case, is equally capable of divesting the property of the owner, and vesting it in the endorsee of the bill of lading. And, strictly speaking, no person but such consignee can, by any endorsement of the bill of lading, pass the legal title to the goods. But if the shipper be the owner, and the shipment be on his own account, and risk, although he may not pass the title by virtue of the mere endorsement of the bill of lading, unless he be the consignee, or, (what is the same thing) it be deliverable to his own order, yet by any agreement, either on the bill, or by a separate instrument, he can pass the legal title to the same; and it will be good against all persons except such a purchaser for a valuable consideration, by an endorsement of the bill of lading itself. Such an assignment not only passes the legal title as against his agents and factors, but also against creditors, in favor of the assignee.”

3. Upon the other objection, as to the admission of a question put to Le Baron, by the plaintiff, it was but slightly pressed by the counsel, and we think it is not well taken.

There must be a new trial with costs to abide the event.

       As to the rights of a bond fide endorsee of a bill of lading for value, see Dows v. Perrin, 16 N. Y. R. 325.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    Williams, President of the Market Bank, v. Townsend et al.
    Taking the note of a debtor, or a transfer of property from him, as collateral security only, without any agreement to extend the time of payment of -the original debt, does not operate to suspend the remedy on the original debt, either against such debtor or his sureties.
    The new security being a note of the original debtor at twelve months, secured by his mortgage of real estate, the whole effect, of taking them as collateral security merely, is, that such mortgage cannot be foreclosed until the twelve months’ note becomes due.
    Mere delay to sue the principal, however long continued, does not discharge the surety.
    (Before Bosworth and Woodruff, J.J.)
    Heard, June 18;
    decided, June 27, 1857.
    This action is brought by R. S. Williams, as President of the Market Bank, against E. W. Townsend and George Williams, as makers of one note and endorsers of another, and against James B. Townsend, as endorser of the first note and maker of the last.
    It was tried on the 18th of March, 1857, before Chief Justice Oakley and a jury, and comes before the General Term on a verdict taken subject to the opinion of the Court.
    The first note is dated January 8, 1855; is for the sum of $5,000; is payable 45 days after its date, to the order of James B. Townsend, and is made by “ E. W. Townsend & Williams.” The second note is dated January 26, 1855; is for the sum of $7,000; is payable 30 days after its date, to the order of “ E. W. Townsend & Williams;” and is signed by “James B. Townsend.” ■ The complaint alleges the mating and endorsement of each note, and the delivery of it to the plaintiff before its maturity, and that before “ it became due and payable, protest of said note was expressly waived ” by the maker thereof; that no part of either has been paid, and prays judgment for their aggregate amount and interest.
    James B. Townsend did hot appear ini the action. E. W. Townsend & Williams put in an answer, in which they alleged, that , they made the first and endorsed the second note without consideration, and for the accommodation of James B. Townsend; that the plaintiff knew this before he took either note; and that before either note became due they so notified the plaintiff, and that he must look to James B. Townsend for payment. It also alleges, that at dr about the time “the said notes became due and payable, the said james B. Townsend paid the same to the plaintiff by giving his own (the said James B. Townsend’s) note for the sum of twelve thousand dollars, payable in twelve months from the date thereof, which said date was the 25th' day pf February, 1855, and at the same time executing and' delivering to the plaintiff a mortgage upon property and real estate in the city of Hew York, for the purpose of securing the payment of said note last mentioned, which said mortgage was recorded in the office of the Register of the city and county of Hew York, in Liber 476 of Mortgages, page 658, on the 2d day of March, 1855, and which said note and mortgage last above described were accepted and received by the said plaintiff in payment and satisfaction of, and for the said two notes mentioned and set forth in the plaintiff’s complaint.” That this was done without the knowledge, consent, or assent of said defendants. That, by accepting and receiving said note of $12,000 from Janies B. Townsend, and said mortgage, these defendants were discharged from all liability on each of said notes.
    On the trial the plaintiff produced and read the two notes in evidence, and rested his case. The following proceedings were then had:
    “ The counsel for the defendant, after stating his defence to the court and jury, called as a witness—

      Robert H. Haydoclc, who testified:—I am the cashier of the Market Bank, and was at the times the notes in suit were taken and when they became due; these notes were renewals of original notes held by the bank, endorsed by the firm of Walter B. Townsend & Go.; when the notes in suit fell due they were not paid; about that time I received a note for $12,000 from James B. Townsend, and a mortgage for the same amount, as collateral security for the payment of these two notes; (the mortgage and note received in evidence,) Neither Mr. E. W. Townsend nor Mr. Williams were present at the time; there was nothing said about extending time that I recollect; nothing was said about time on the notes in suit; we wanted more security, and we took what we could get.
    Being cross-examined, he said: .Nothing was ever realized from the note and mortgage-taken from James B. Townsend as security; the mortgage was the third one on the property, the first one was foreclosed, and there was not enough to satisfy that.
    The defendants’ counsel here announced to the Court, that he abandoned all defence, as far as the note for $5,000 was concerned.
    The plaintiff’s counsel offered to show that at the time this indebtedness accrued to these defendants, the money received on account of the note for $7,000 was for E. W. Townsend & Williams, and that James B. Townsend made the note for their accommodation.
    The defendants’ counsel objected to this being shown. The Court overruled the objection, and defendants’ counsel duly excepted.
    Cross-examination resumed: I learned from James B. Townsend, the maker, that this note was for the benefit of E. W. Townsend & Williams.
    (The defendants’ counsel objected, on the ground, that admissions of James B. Townsend were incompetent evidence to this testimony. Objection sustained.)
    James B. Townsend was a member of the firm of E, W. Townsend & Williams; he became so in March, 1854.
    (Defendants’ counsel objected, because the complaint set up that the copartnership consisted but of two members. The Court held that the description in the complaint of E» W.

      Townsend and Williams, as co-defendants, did not "bind the plaintiffs as to the number of members in the firm. Defendants’ counsel excepted.)
    To the Court: I understood, from James B. Townsend, that he was a special partner, and had an interest of $15,000 in the firm.
    The following testimony was taken subject to the objections of defendants’ counsel, as before taken.
    Cross-examination continued: He told me he was a special partner at a time he wished to borrow $1,000 for the firm; he said that the old firm of Walter B, Townsend $ Co., consisting of Walter B. Townsend, E. W. Townsend, & Williams, were indebted to him in the sum of about $15,000; that when Walter B. Townsend died, the other members of the old firm formed a new partnership, consisting of E. W. Townsend & Williams; and that they took him in as a special partner, by crediting the sum of $15.000 due the old firm to him on their-books.
    Both sides rested.
    The Court directed the jury to find a verdict for the plaintiffs for $13,727 Ty„ (the amount claimed, and interest), subject to the opinion of the Court at General Term, and to be heard there in the first instance, with liberty to the Court to annul, or modify the verdict as to the $7,000 note, as they may be advised. Judgment suspended in the meantime. Verdict accordingly.”

      A. Wakeman, for plaintiff.

      A. Dickinson, for defendants, made and argued the following points.
    ' First.—By giving time to the maker, without the consent of the endorsers, the endorsers were discharged.

      People v. Jansen, 7 John. 332; Rathbone v. Warren, 10 John. 587; King v. Baldwin, 2 John. Ch. 554.
    Second.—The taking of collateral security, payable at a future time, is, in the absence of proof to the contrary, an agreement to wait until the security becomes due. (Wood v. Jefferson Co. Bank, 9 Cow. 194.) Third, the plaintiff’s offer to . show that at the time the indebtedness accrued to these defendants, the money received on account of the note for $7000 was for E. W. Townsend and Williams, even if such fact were shown by competent evidence, amounts to nothing, as it is shown that the note was in renewal of another, endorsed by Walter B. Townsend & Co.; and even if it were not so, time given to an accommodation maker discharges the endorser. The ruling of the judge, in permitting the evidence, was erroneous. Fourth, the testimony of witness Haydock, as to the statement made by James B. Townsend, is incompetent to charge the defendants E. W. Townsend and George Williams as to co-partnership, and should not have been admitted. (Whitney v. Ferris, 10 John. R. 66; Mitchell v. Roulstone et al., 2 Hall’s R. 351, 357.) Fifth, the complaint alleges that the firm of E. W. Townsend & Williams consisted of but the two persons; and, under such circumstances, the plaintiffs certainly cannot drag a third party into the firm upon alleged statements of such third party, and then, by alleged admissions of such third party, bind the firm of E. W. Townsend & Williams.
    James B. Townsend was competent to testify to such facts as might charge his co-defendants, and the evidence of his statements to a third party, though sufficient to charge himself (James B. Townsend,) were insufficient to charge his co-defendants.
    The testimony of Robert H. Haydock, objected to by the defendants, and admitted subject to such objection, was erroneously admitted, and should have no weight in determining the amount of recovery.
    A new trial should be granted or judgment given for the plaintiff for the $5,000 note alone.
   By the Court. Bosworth, J.

The delivery, by Jas. B. Townsend, of a note made by him, for $12,000, payable 12 months from its date, for the amount of the two notes in suit, with a mortgage to secure the payment of it, and the acceptance by the plaintiff of such note and mortgage, merely as collateral security for the payment of the two notes in suit, did not operate jper se to suspend all right of action against Townsend, upon the two notes, until the maturity of the $12,000 note.

Unless they were accepted upon an agreement, to extend the time of payment of the two notes to Jas, B. Townsend, until the new note matured, or for some other period of time, it was in the power of the plaintiff to sue him, at any time, on returning the new note and mortgage; perhaps such a surrender would not be necessary. (Hughes v. Wheeler, 8 Cowen, 77; Frisbe v. Larned, 21 Wend. 450-453; Day v. Leal, 14 J. R. 404; Gahn v. Niemcewicz, 11 Wend. 320-321.)

The rule seems to be settled, that taking the note of the debtor, or a transfer of property from him, merely as collateral security, without any agreement to extend the time of payment of the original debt, does not operate to suspend the remedy against the principal upon the original debt, or against his surety. (Twopenny & Boys v. Young, 3 Barn. & Cres. 208.)

This case and the rule which it declared, and other cases holding the same doctrine, were cited, and the rule itself was declared as absolutely in Gahn v. Niemcewicz, as we have stated it. See Hubbell & Curran v. Carpenter, 1 Seld. 171; Pitts v. Congdon, 2 Coms. 352; Bangs v. Strong, 7 Hill, 250.

The defendants, regarded merely as sureties, on paying the two notes, might be entitled to an assignment of the collateral security.

Whether they or the plaintiff, as a condition to their right to recover against J. B.-Townsend on his original liability, before the collateral note matured, would be obliged to surrender the collateral note and mortgage, is a question, which does not now arise. I think they would not. The whole effect of taking the new note at 12 months, if taken merely as collateral security, would be this. The mortgage could not be foreclosed until that note fell due. The effect is the same, as if only a mortgage had been given at 12 months, and had been given and taken as fur-, ther security, without any agreement to extend the time of payment of the original liability.

The proposition that, mere delay to sue the principal, however long continued, does not discharge the surety, is so firmly settled, that no authorities need be cited in its support.

There must be a judgment for the plaintiff' on the verdict. Judgment was so entered.


author: By the Court. Woodruff, J.

text:
    Patrick L. Rogers v. Jose Verona.
    The action was brought to recover the price of goods which the complaint averred had been sold and delivered to the defendant. The purchase was proved to have been made by the defendant, but the goods were delivered to a third person, and for the use of such person. Upon this ground, and upon the authority of Smith v. Leland, 2 Duer, 497; the referee dismissed the complaint.

      Seld, that there was not a failure to prove the allegations in the complaint in their entire scope and meaning, but merely in some particulars. Hence, the variance under § 169 of the Code, ought not to have been deemed material, as there was no proof that the defendant had been actually misled by it to his prejudice in maintaining his defence.

      Seld, also, that the variance ought to have been disregarded under § 176, which requires the Court to disregard any error or defect in the pleadings, which shall not affect the substantial rights of the adverse party. Smith v. Lekmd explained and distinguished.
    (Before Bosworth and Woodruff, J.J.)
    Heard, June 16;
    decided, June 27, 1857.
    This action comes before the Court at General Term, on an appeal by the plaintiff from a judgment in favor of the defendant, entered on the report of a referee, dismissing the plaintiff’s complaint.
    The complaint herein avers that the plaintiff sold and delivered to the defendant at his request the goods mentioned in an account annexed to the complaint.
    The testimony showed that the goods were for a boy named Diaz “by order of the defendant,” who had purchased goods before for the boy Diaz, and had paid bills for him, and that on and after the presentation of the bill, for these goods, made out in the name of the defendant, he repeatedly promised to pay it.
    The referee has found that the goods were not delivered to the defendant, but to the boy Diaz, and that the goods were for the exclusive use of the boy.
    Considering himself bound by the decision of this Court in Smith v. Leland, 2 Duer, 497, and that the decision in' that case would forbid a recovery under a complaint alleging a sale and delivery to the defendant, the referee has reported that the complaint should be dismissed. From the judgment entered thereon the plaintiff appealed.

      B. M. Stilwell, for plaintiff and appellant.

      F. R. Coudert, for defendant and respondent.
   By the Court. Woodruff, J.

It is too plain, we think, to admit of controversy, that where a defendant purchases goods, which by his direction are delivered to a third person, he is liable for the value thereof, as for goods sold and delivered to him. That before the Code of Procedure, a recovery could be had in such a case under a declaration averring a sale and delivery to the defendant, is quite certain. The common counts in assumpsit would cover such a transaction.

If the Code of Procedure requires that the precise circumstances should be stated according to their literal truth, instead of according to their legal truth and effect, then the complaint here varies from the facts found by the referee in this, that the goods instead of being delivered to the defendant personally were delivered to, the boy Diaz, by the defendant’s authority.

This was not a failure to prove the plaintiff’s allegations in their entire scope and meaning, but a variance in some particulars only, and by the express terms of § 169 of the Code, no such variance between the allegation and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his defence upon the merits; and whenever it is alleged that the party has been so misled, that fact must be proved to the satisfaction of the Court.

By § 170, where the variance is not material as provided in the last section, the Court may direct the fact to be found according to the evidence. And by § 176, the Court is required to disregard any error or defect in the pleadings, which shall not affect the substantial rights of the adverse party.

Under the clear obligation imposed by these sections of the Code, we think that the variance should have been disregarded, i .The defendant did not prove that the variance had misled him ■ in any sense. Probably he was not misled at all.

The bill of particulars furnished him with the items when the complaint was served.

The plaintiff’s bill for the same goods had been rendered to him, and he had repeatedly promised to pay it. The defect in the complaint, if any, was not such as could affect the substantial rights of the defendant.

The case of Smith v. Leland, was in some respects peculiar. The Court deemed the finding of the referee against the weight of the evidence, and adjudged that, a sufficient ground for ordering a new trial. In that case the alleged purchase was by a third person professing to be authorized to purchase and receive the goods on the defendant’s account. No evidence, there, showed or tended to show that the defendant himself made or ratified the actual purchase.

It was quite unnecessary for the Court to consider, and counsel do not appear to have called upon the Court to consider, whether, (if the finding of the referee had been according to the weight of the evidence), the variance even in that case might not have been deemed immaterial. Indeed the attention of the Court does not appear to have been called to any such question, and as a new trial was to be ordered it was of no materiality.

What is said in that case in regard to the defect in the declaration, may therefore, we think, be taken as expressing the opinion of the Court in regard to the appropriate manner of stating a sale and delivery to a third person, on the account and credit of the defendant, rather than as deciding that in a case such as we are now considering a variance of the description here found may not be disregarded.

It is true that the referee has not in his report, by an explicit finding, stated that the defendant made the purchase, but he places his decision upon the ground that delivery to a third person, under an authority from “the purchaser,” _when the goods are for the exclusive use of such third person, is not sufficient to support a complaint which avers a sale and delivery to the purchaser. If by this, is meant that if A purchases a hat, and directs the seller to deliver it to B, for B’s use, proof of these facts would not sustain a complaint alleging in the usual form a sale and delivery to A. We think the case of Smith v. Leland, was not intended to sanction the rule. We also think that although it would be competent in such case, and more in accordance with the design of our present system of pleading, to set out the precise circumstances, yet to hold that the variance was so material that a complaint should be dismissed on that ground, whén the defendant was fully apprised of the precise claim, long before suit brought, and had promised to pay it, and when there is no pretence that the defendant had been misled, would be making the rules of pleading more strict than they were before the Code, and more strict than the Legislature intended when they said that “the allegations of a pleading shall be liberally construed with, a view to substantial justice between the parties.”

In regard to the other points submitted by the defendant’s counsel it must suffice to say that, the repeated promises of the defendant to pay the bill for the goods was sufficient evidence of value, and this also in connection with positive proof, that these goods were by mistake omitted when other bills were rendered, relieves the case from any difficulty arising from the rendering of a bill not including these charges. There was no final settlement of accounts in the sense claimed, to constitute a bar to the present claims.

And as to the suggestion that the promise was void, it is not only not found that the goods were not sold upon his sole credit, but the whole evidence shows, we think, that he was in truth the only debtor.

The judgment must be reversed, and a new trial ordered. Costs to abide the event.


author: By the Court. Bosworth J.

text:
    Whiting et al., Respondents, v. Otis, Defendant and Appellant.
    Questions of fact to be determined upon conflicting evidence, and as to the credibility of the .witnesses by whom such evidence is given, it is the province of the jury to decide. Their verdict will not be set aside, on the ground that it is not warranted by the evidence, unless it is clearly wrong.
    In such a case, if irrelevant and incompetent testimony is admitted against the objection of the defendant, a verdict against him will be set aside, when such tes- • timony was calculated to prejudice his defence with the jury.
    When the main question was whether the defendant, falsely and fraudulently, and to the damage of the plaintiffs, represented a third person to be worthy of credit, evidence that, the defendant, on a subsequent settlement of bis claims with such third person, by taking payment in goods, received some of the goods sold, by the plaintiffs to such third person through the alleged fraud of the defendant, is inadmissible, when no attempt has been made to prove that the defendant knew that fact, at the time he accepted such goods.
    So also, is evidence that, a witness for the plaintiffs heard that the defendant, after the alleged fraud, went to the residence of such third person, to obtain a settlement and payment of the amount owing to the defendant from such third person. It is error to preclude the defendant from putting questions to a witness for the plaintiffs, pertinent to matters as to which he had been examined by the latter, and excluding his answers, when competent and material.
    (Before Bosworth & Woodruff, J.J.)
    Heard, June 16;
    decided, June 27, 1857.
    W. L. Whiting, M. T. C. Kimball and D. J. Whiting, copartners, bring this action as plaintiffs against Pierson M. Otis, defendant, to recover damages, sustained by reason of the defendant’s falsely and fraudulently representing one John Tripp of Syracuse, to be worthy of credit, on which representations the plaintiffs relied and sold him goods.
    The action was commenced in March, 1856, and tried in December, 1856, before Mr. Justice Slossoh, and a jury. The plaintiffs obtained a verdict, and this action comes before the General Term, on an appeal by the defendant, from an order denying a motion for a new trial. The appeal presents questions of law arising on decisions made at the trial, as well as the question, whether the evidence given is sufficient to warrant the verdict ?
    The plaintiffs and the defendant are merchants doing business in the city of New York, and the representations, alleged to be false and fraudulent, and the sale by the plaintiffs to Tripp, relying on the truth therof, were made in October, 1854.

      D. Dodge Kelly, a witness for the plaintiffs, testified as to the representations made by the defendant, and to conversations, between himself and the defendant, after Tripp had failed. J. Sanford Oiis, a witness for the defendant, testified in relation to the same transactions, and the testimony of these two witnesses was conflicting. Kelly, among other things, testified that the plaintiffs sold to Tripp, over $600 in amount, on credit, taking notes at five and six months, except for a balance of $93.75, which was sold on 60 days credit. That after the interview, at which the defendant made the representations complained of, he did not call on the defendant again until after Tripp had failed to pay the sixty days’ bill. The witness further said, “ I then called on him, and he said that he thought the account of Tripp was a hard case. That he considered Tripp’s affairs in a bad state. I asked him as to the propriety of going to Syracuse, and he said- he thought it would not pay. I recollect nothing else. I went to Syracuse a few days after this second interview. I found Tripp’s affairs bad; I saw a small amount of goods, a variety of boots and shoes.
    “ Ques. Did you learn, when at Syracuse, that the defendant had just been there ?
    “ This question was objected to by defendant’s counsel and the said Justice overruled the said objection, to which decision of the said Justice, the defendant’s counsel excepted.
    “ Ans. I learned that one of the Otis’s had been there. Can’t say which one. When I returned to Hew York, I called again on defendant at his store, and saw him. I made various enquiries to ascertain what goods of Tripp’s Mr. Otis had got. Defendant showed me some of the goods that he got from Tripp. And said he could not make on what he had got, more than seventy cents on the dollar, on the amount of his claim.” “ He stated that Tripp was behind in his payments at the time of the1 sale. That was the siibstance of what he said. I saw the goods he had got from Tripp.
    “ Ques. Was any of the goods you then saw, the same goods the plaintiff had sold to Tripp ?
    Defendant’s counsel objected to this question, on the ground that it was irrelevant and immaterial, and the said justice overruled the said objection, and the defendant’s counsel excepted.
    “Ans. I recognized some of the goods as the same the plaintiffs had sold to Tripp.”
    The evidence of J. Sanford Otis, was to the effect that the firm, of which the defendant was a member, sold to Tripp, in October, 1854, to the amount of $240, on a credit of four months. That in February, 1855, after this debt became due, the defendant went to Syracuse, and settled with Tripp for this and prior indebtedness, taking goods in payment, and that the second interview, testified to by Kelly, took place in March, 1855.

      John Tripps examination, taken de bene esse, was introduced by the plaintiffs, who read parts thereof, and among others, the following questions and answers, viz.:—
    “ 23d Ques. Up to the time of the purchase of the goods from plaintiffs in October, 1854, had you any doubt of your ability to pay your debts and continue your business ?
    A-ns. Well, I don’t know that I had, though I was pretfy hard up; if my goods would fetch first cost, I thought I could pay my debts.
    24th Ques. Did you buy the goods of the plaintiffs, and of J. S. & P. M. Otis, in October, 1854, with the belief that you could pay for them and with intent to do so ?
    Ans. I did.”
    The defendant offered to read the 6th cross-interrogatory to Tripp, and his answer thereto, which are as follows:
    “ 6. Ques. Did you at that time believe yourself to be solvent, good for all you bought, and able to go on with your business ?
    A ns. Yes, sir, I believed I was at that time, though I was behindhand with some notes or demands against me.”
    The plaintiffs objected to its admission, the Court excluded it, and the defendant excepted.
    Such other of the proceedings had, and testimony given, as are necessary to be known, in order to understand the decisions made at the General Term, are stated in the opinion of the Court. The jury found a verdict for the plaintiffs, for $693 95.
    The defendant moved for a new trial on a case containing the evidence given and exceptions taken. The motion was denied, and from the order denying that motion, this appeal is brought.
    S. P. Nash, for plaintiffs.

      Wm. H. Leonard, for defendant.
   By the Court. Bosworth J.

There is direct conflict between the testimony of Kelly, for the plaintiffs, and of J. S. Otis, for the defendant, in relation to the representations made by the defendant as to the solvency of Tripp. The same remark is equally applicable to the testimony of those two witnesses, as to what the defendant said, in the interviews between him and Kelly, after the failure of Tripp.

If the representations testified to by Kelly were made, and, if the defendant, after Tripp’s failure, made the statements to which Kelly testifies, there can be no doubt of the plaintiffs’ right to recover. The jury had the witnesses before them, and would, naturally, in deciding upon evidence so conflicting, be influenced to some extent, by the manner of each witness.

The questions of fact to be decided, and those of credibility to be determined, are questions for the jury.

There were some circumstances to aid them in forming a conclusion, which are not present to the Court on an appeal.

We do not feel at liberty to say that the verdict of the jury is so clearly against evidence, as to justify us in setting it aside, on that ground.

But when the testimony on the part of the plaintiff is in such direct conflict with that on the part of the defendant, it is obvious that, very slight considerations may influence a jury to accept the testimony of one witness in preference to that of the other. Justice, to each party, requires that he should not be subjected to any possible prejudice by the admission of incompetent, or the exclusion of competent and pertinent testimony.

That the defendant’s firm, on receiving goods in payment of what Tripp owed them, received some which he had bought of the plaintiffs, was a fact which should not have been treated as strengthening the plaintiffs’ case, or weakening the defendant’s, unless the defendant had knowledge or reason to suspect, at the time he took them, that Tripp had so purchased them.

There was no attempt to prove such knowledge. Yet the admission of that evidence was pressed by the plaintiffs, and though its reception was objected and excepted to, by the defendant, was received by the Judge. Kelly, as well as Tripp, was closely examined with a view to establish that fact. It was, therefore, treated as a material fact, and which, if proved, was entitled to consideration.

The Court, in admitting the evidence against the objection of the defendant, treated it as material.

There is not the slightest proof, nor was there any attempt to prove, that the defendant or his firm knew that Tripp had purchased any of these goods of the plaintiffs. They were not-received until after the four months credit given by the defendant’s firm, on the sale made to Tripp, in October, 1854, had expired. That sale amounted to $240. The other notes held by defendant’s firm matured, one in Hovember, and two in December, 1854. Hence, there was no haste on the part of the defendant’s firm, in seeking payment from Tripp.

It was not-sought until some two months after one bill sold by the plaintiffs to him had become due.

We do not think this testimony was relevant for any purpose. It was calculated to prejudice the defendant with the jury. The admission of the evidence being urged and admitted as material, we cannot see that the jury were not influenced by it. The Judge erred in admitting it, and a new trial should, be granted.

We think the Judge also erred in excluding the 6th cross-interrogatory to Tripp, and his answer thereto. They were of the same nature as the 23d and 24th cross-interrogatories, and the answers to the latter.

The 6th cross-interrogatory, and the answer to it, were legitimate and proper, on a cross-examination. The evidence was pertinent and material, with respect to the credibility of Tripp, and of all such evidence given by him, as it might have been urged to the jury, tended to show that Otis had knowledge from Tripp, before making the representations complained of, that, although Tripp might possibly be solvent, the prospects were, that he could not long continue his business.

We think the Judge erred in allowing Kelly to testify what he heard at Syracuse, in respect to one of defendant’s firm having been there. Such evidence was incompetent. It was not merely irrelevant, but it was illegal. Hearsay evidence as to any matters in issue in the action was totally inadmissible.

If this were the only exception, we might refuse a new trial, if we could justly take the ground that the answer to the question could not have prejudiced the defendant. It is undeniable that one of defendant’s firm was at Syracuse in February, 1855.

But in one aspect, this evidence might have prejudiced the defendant.

Kelly testified that when the bill sold by plaintiffs to Tripp, at 60 days from October 5th, 1854, fell due, he called on the defendant ; that the defendant then said he thought Tripp’s affairs were in a bad state, and that the defendant thought it would not pay to go to Syracuse, and that Kelly went to Syracuse in a few days after this interview. This testimony, if credited, would locate this conversation, and Kelly’s journey to Syracuse, early in December, 1854.

What Kelly heard while at Syracuse, he was allowed to testify, and to such testimony the defendant excepted. There is no testimony, besides this, which tends to show that either member of defendant’s firm had been to Syracuse between the sale in October, and February, 1855.

Even Kelly, on his cross-examination, locates this interview in March, 1855. But he does not choose to say that he had not been to Syracuse in the previous December. He does state, however, that, although the defendant said at that second interview, that It would not pay very largely to go to Syracuse: I did, however, go.”

There is no evidence, besides Kelly’s, that either of defendants’ firm went to Syracuse before February, 1855. Tripp did not stop business until October, 1855.

The jury may have concluded, if they placed more reliance on the testimony of Kelly, than on that of J. S. Otis, that Kelly called on the defendant early in December, when Tripp failed to pay the sixty day bill, and then had such an interview with the defendant, and immediately after that went to Syracuse; and there heard that one of the defendant’s firm had been there pre‘ viously to secure their claims. The jury, if they believed this, might justly regard the defendant’s conduct with more suspicion, than they would if it was clear that the defendant had manifested no concern about his own claims until after all of them had matured, and Tripp had wholly failed to pay.

In the one aspect of the case, the defendant when the new credit had not more than half expired, had become alarmed, and had been to Syracuse and taken payment of the debts due and not due, by receiving goods at less than their value, thus showing a great anxiety to get something, and a consciousness that he could not expect to do better by delay.

■ In the other, he manifested no premature anxiety, nor made any efforts to secure his debts, until after all had become due, and Tripp had failed to pay any part of either.

If we did not feel obliged to grant a new trial on other grounds, we should have forborne to examine this exception, not only because it was not made a point on the argument, but because the defendant’s counsel, on his attention being called to it by the Court, disclaimed relying upon it, as sufficient to entitle him to a new trial. We have deemed it proper to advert to it, lest by possibility the case should again come before the Court, containing the same exception, when it might not be waived.

A new trial must be granted, with costs to abide the event.


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    Thomas Whitlock, Philip L. Freneau and William L. Anderson v. John McKechnie.
    The consideration of the three notes, on which this suit was brought, was a purchase of goods made by the defendant from the firm of Whitlock, Ereneau, Anderson & Co., the payees in the notes, and the sole defence was that when the goods were purchased, one Vose was a partner in the firm, and ought, therefore, to have been made a plaintiff in the action. It appeared, however, that the notes in suit were a renewal of those first given for the goods, and that before this renewal Vose had ceased to be a partner.

      Held, that as the complaint averred that, the plaintiffs are the payees in the notes mentioned, and that they are the lawful holders and owners thereof) and these allegations are not denied in the answer; the fact that Vose was a partner when the goods were purchased was wholly immaterial, and that upon this ground alone the plaintiffs were entitled to judgment.

      Held further, that it was competent to the plaintiffs to show that before the notes in suit were given, Vose had retired from the firm, and had assigned to the plaintiffs all his interest in the debt which the notes represented, since the necessary effect of the evidence was to prove that the plaintiffs, as the sole owners of the debt, were the sole owners of the notes, thus effectually disproving the allegation that Vose (who, it was thus shown, never had any interest in the notes) was a necessary party to the action.
    The objection that this evidence ought not to have been received, as it tended to show that the plaintiffs were suing, in part, as the assignees of Vose, although no such assignment was stated in the complaint, was certainly groundless. The evidence, on the contrary, proved that as the notes, when delivered, belonged wholly to the plaintiffs, no assignment from Vose was necessary or could have been made; although, under-the statute, when the words, “& Co. ” are added to the name of a mercantile firm, they raise a presumption that there is a partner not named, yet this presumption may be overcome by positive proof) and in the opinion of the Court was so overcome, on the trial of this action. It was proved, that although the notes were given to the firm of Whitlock, Breneau, Anderson & Co., yet the plaintiffs were in fact the sole payees.
    Judgment for plaintiffs upon the verdict.
    (Before Bosworth & Woodruff, J.J.)
    Heard, June 3;
    decided, June 27, 1857.
    Oh the trial of this action, a verdict was ordered for the plaintiff, subject to the opinion of the Court, at General Term. It was tried before Chief Justice Oaklet and a jury, in March, 1857.
    The action is brought upon three several promissory notes made by the defendant, payable to the order of Whitlock, Freneau, Anderson, & Co., and dated May 13th, 1856.
    The complaint avers, that the plaintiffs are the payees in the said notes mentioned, and are now the lawful holders and owners of the same.
    The only defence set up in the answer is, that the notes were given for goods purchased by the defendant, from the firm of Whitlock, Freneau, Anderson, & Co., which firm consisted of the plaintiffs in this action, with one Charles L. Yose, who, at and prior to the time aforesaid, was an active general co-partner with the plaintiffs, doing business under the name and style aforesaid, and the defendant thereupon insists that there is a defect of parties, plaintiffs.
    Upon the trial the plaintiffs produced and read the notes in evidence and rested.
    The defendant then proved that he purchased goods from the firm of Whitlock, Freneau, Anderson, & Co., in the year 1855; that Yose was then a partner with the plaintiffs in "that firm that he gave notes for such merchandise; that Yose ceased to be a partner on the 31st of December, 1855 (or 1st of January, 1856); that he then went out of the firm, assigned all his interest in the partnership effects to the plaintiffs, and had no interest there afterwards; that the notes now in suit were given in renewal of the said original notes; that they were made payable to Whit-lock, Freneau, Anderson, & Co., to designate the plaintiffs, who, at the date thereof, were the only persons then interested in the previous notes, and then also the persons composing the firm.
    The defendant objected to any proof that Yose had, previously to the making of these notes, assigned his interest to the plaintiffs, because there was no such allegation in the complaint.
    The defendant still insisting that Yose should have been made a party plaintiff, the Chief Justice directed a verdict for the plaintiffs for §329,22 (the amount of the notes with interest), subject to the opinion of the Court. The defendant excepted to the decision. The questions of law, arising at the trial, were directed to be heard at the General Term, in the first instance, and the entry of judgment to be suspended in the mean time.

      J. R. Hills, for plaintiffs.

      F. C. Cantine, for defendant.
   By the Court. Woodruff, J.

The complaint avers, that the plaintiffs are the payees in the notes mentioned, and that they are the lawful holders and owners of the notes.

These allegations are not denied, and upon this ground alone, we think the plaintiffs were entitled to judgment for the amount of the notes. The fact set up in the answer, that the consideration of the notes was a purchase of goods by the defendant from the plaintiffs and Yose, at that time a partner with the plaintiffs, was wholly immaterial, if in truth the notes themselves were made payable to the plaintiffs, and they were the holders and owners thereof. The answer does not even state that Yose was a partner at the time the notes were given, nor that he has any interest therein.

But if the answer could be deemed to raise any material issue, the proof was uncontradicted and decisive in favor of the plaintiffs. It showed that before the giving of these notes Yose had retired from the firm; that the plaintiffs had become the owners of the claim, and that, in fact, these notes were given and made payable to the plaintiffs by their then firm name. The circumstance that Yose was once interested in the claim was wholly immaterial; his interest had ceased; the debt was due to the plaintiffs, and the defendant’s promise was to them.

The exception taken to the admission of evidence that Yose assigned his interest in the effects of the previous copartnership is groundless. That evidence was strictly responsive to the case sought to be made by the defendant’s answer, and Ms proof that Vose was once a member of the firm. It was not offered for the purpose of showing, and it did not show that Vose assigned the notes in srnt to the plaintiffs; but it showed that he never had any interest in these notes, and that the consideration and the legal title was in the plaintiffs, at the very giving of the notes. Thus it disproved the claim that Vose should have been made a party plaintiff; and although the defendant’s evidence had- done that pretty effectually already, the plaintiffs had a right to add farther evidence to the same pomt if they thought proper.

The defendant’s counsel on his pomts submitted to us, refers to § 3, of the act concerning limited partnersMps, (1 Rev. Stat. 765,) and insists that the use of the word, “and company,” by the plamtiffs, is primé facie evidence, that the firm was composed of more persons than those whose names appear in the firm name. Although the statute relating to limited partnerships, does not appear to have any bearing upon the subject, since here is no pretence that there was any limited partnersMp, we, nevertheless, tMnk that the defendant is right in saying that the use of the term referred .to is, as against the plaintiffs, primé fade evidence, that there is a partner not named. Our general statute requiring that where the designation, “ and company,” or “ & Co.” is used, it shall represent an actual partner or partners, creates such a presumption. But it can be overcome by positive proof, and was most effectually overcome on the present trial.

Ko other question in reference to, or wMch might arise under the Statute, was raised on the trial, or on the argument of the appeal. The debt for which the action is brought, was due by the defendant. The form of the indebtedness, originally was to the firm of Whitlock, Anderson, Freneau & Co., of which Vose was a member. He having made a transfer to the plaintiffs, they were the real parties in interest, and could recover in their own names therefor.. It was natural, and we have no doubt, legal, in taking a note for the debt, to continue for the mere purpose of the extension of credit, the same payees in form as had before designated the creditors to whom the debt was due; and there seems no very good reason why the note should not have been so treated. Taking such a note for a previous debt could hardly b.e deemed carrying on business under a firm name, which was forbidden. In this mode the debt might be discriminated from the business of the new firm.' The plaintiffs’ counsel, and the witness appear, however, to regard the firm, described as payees, as under the circumstances of the case indicating only the plaintiffs, who, in truth, had the sole interest.

" The right to recover would have been equally clear, had Yose’s original interest been averred, and his transfer stated.

The plaintiffs should have judgment upon the verdict with costs.


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    Anton Hauck v. Joseph Hund.
    The payee and first endorser of a note, cannot recover against the second endorser, either in an action on the note itself, or on the allegation and proof of a verbal agreement, that the note was endorsed by the second endorser to accommodate the maker, and to secure payment to the first endorser, of a loan of money made to the maker on the security of such endorsement, and on the agreement of the second endorser to pay the note at maturity, if the maker did not.
    To allow a recovery in such a case would violate the rule which prohibits the clear legal import of a written contract to be varied by parol, and would violate the Statute of frauds, which declares all agreements to answer for the debt or default of another, unless in writing and subscribed by the party to be charged, to be void.
    (Before Bosworth and Woodruff, J.J.)
    Argued, June 3;
    decided, June 27, 1857.
    The questions which arose on the trial of this action, being questions of law only, a verdict was taken for the plaintiff subject to the opinion of the Court, and such questions were then directed to be heard at the General Term, in the first instance. The counsel of the parties agreed at the trial, such agreement being evidenced by an order then entered, that, the Court at General Term might dismiss the complaint, if so advised. The cause now comes before the General Term, on a case presenting the questions of law, so directed to be there heard. The action was tried before Mr. JuSTicil Woodkuff and a jury, in March, 1856. The facts, on which the questions of law arise, are as follows;

      The only written contract held by the plaintiff, (so far as the evidence in this action disclosed the facts,) to which the defendant is a party, reads as follows, viz.
    “ $450 TW. Hew York, May 4, 1855.
    “One month after date, I promise to pay to the order of Mr. Anton Hauck, four hundred and fifty T”„0- dollars, valúe received.
    (Signed) “ Wir. Seeback, 15f Bowery.
    (Endorsed) “Joseph Hund, 121 Hester.
    “Anton Hatxck, 267 Bowery.”
    The endorsements upon the note, of the names of the defendant, Joseph Hund, and of the plaintiff, Anton Hauck, are in the order of priority above written. This note is a renewal of a former note made by Seeback for the same sum, dated Feb. 1, 1855, and payable three months after its date to the order of Hauck, and endorsed by Hund and Hauck, separately, and in the same order as the renewal note.
    Seeback applied to the plaintiff in January, 1855, for. a loan of money, and the plaintiff requiring security for its repayment, the defendant Hund agreed with the plaintiff, that if he would lend the money to Seeback, Hund would endorse the note of Seeback to be given for the money loaned, and if Seeback did not pay the money loaned, Hund would pay it himself. The defendant, for the purpose of fulfilling that agreement, and with intent to become bound to the plaintiff for the sum specified in the note of Feb. 1, 1855, placed his name thereon; and the plaintiff, in reliance upon that agreement, discounted that note. The plaintiff at that time not having money which he could lend, but being a dealer in cheese, and Seeback being pressed for money, the plaintiff, at his solicitation, and in order to raise money for Seeback’s use, and without any intent to get more than legal interest, sold 2,506 pounds of cheese at thirteen cents per pound, that being the best price which could be obtained, although the fair market value was then fifteen cents per pound, and paid the moneys received therefor, and other moneys of his own, to an amount, including the loss upon the cheese at two cents per pound, equal to the amount of the note; Seeback having agreed, in order to induce the plaintiff to make such sale, to bear such loss. This sale was made, and the proceeds thereof, and other moneys of the plaintiff, were paid by Mm to Seeback, in reliance upon the aforesaid agreement and endorsement, the note so endorsed by the defendant as aforesaid having been delivered to the plaintiff before he paid such moneys to Seeback.
    The sale of the cheese was a bond fide transaction, and was not intended by the plaintiff or Seeback as a cover to conceal an intent to secure to the plaintiff more than at the rate of seven per cent, interest on the money loaned. The purchaser of the cheese sold it for eighteen cents a pound not long after he bought it.
    On the day the note of Feb. 1, 1855, matured, the note in suit was made and endorsed, and delivered to the plaintiff, in renewal thereof, and for the purpose and with the intent of continuing the several liabilities of Seeback and Hund to the plaintiff, intended to be created by the agreement hereinbefore set forth, and the original note and the endorsement thereof by the defendant.
    When the note in suit became due, payment of it was duly demanded of Seeback, who refused to pay it; due notice of such demand of payment, and of such refusal, was given to the defendant Hund.
    The note in suit, with interest on it from its maturity to the time of the trial of this action, amounted to $471.
    A verdict was taken for that sum for the plaintiff, subject to the opinion of the Court at General Term, upon the questions of law arising upon the facts above stated, and with liberty to the Court, (granted by the consent of the counsel given at the trial) to dismiss the complaint if so advised, and to either party to turn the case into a bill of exceptions.
    The case was submitted on printed points.

      Cutler, Townsend,, and Van Wagoner, for plaintiff.

      F. S. Stalknecht, for defendant.
   By the Court. Bosworth, J.

Such an agreement as has been proved, is an agreement of Hund, to be answerable for the debt or default of Seeback. On such an agreement Hund is not liable, unless it is in writing, and subscribed by him.. 2 R. S, 135, § 2, sub. 2.

The only written agreement held by the plaintiff to which Hund is a party, is one by which, according to its legal effect, Hauck the plaintiff, promises to pay to Hund, or any subsequent endorser of the note, the note itself, if Seeback fails to pay it, provided that payment of it is demanded of Seeback on the day it falls due, and notice of such demand, and of Seeback’s default, is duly given to Hauck.

Hund does not agree, either by the terms of the written contract, or by its legal effect, to pay anything to Hauck, in any event.

If the plaintiff can recover in this action, he must do so, by violating two settled rules of law.

First. He must be permitted to prove by parol, that the actual agreement was radically different from the written one, which he cannot do.

Second. When such agreement has been proved by parol, he must be permitted to recover upon it, while the statute is peremptory, that the defendant shall not be charged upon such an agreement when proved verbally, merely because it was not reduced to writing and signed by the defendant.

These views, though briefly stated, appear to us to be a perfect answer to the plaintiff’s right to recover.

« It cannot be denied that the effort of the Courts to find some distinction on which they could make parties liable upon their contracts, when clearly proved, although the only written evidence as to what they agreed, was a note endorsed in form like the present, has led to decisions apparently conflicting, in relation to the question before us.

Whenever the Courts depart from the plain meaning of the statute, or a well established rule, in search of some extremely technical consideration, to obviate the supposed hardships of a particular case, it is not strange that conflicting decisions should occur, and that following one questionable precedent after another may lead to consequences, that render it necessary to#ecur to fi^ed principles and abide by them as rules of decision.

The object of the statute exempting a person from liability upon his promise or agreement to answer for the debt or default of another, unless the agreement is in writing and subscribed by the person sought to be charged, was to prevent frauds and perjuries.

The rule which forbids the receipt of verbal evidence to establish an agreement contrary to the terms, or clear legal import of the contract of the parties as reduced to writing and signed by them, is one of obvious necessity. Without a firm and uniform application of it, there can be no certainty or safety in the business transactions of life.

It is better for the public that, an individual should occasionally suffer, in consequence of his having omitted the formalities made by law essential to a valid contract, as a penalty for his ■ carelessness, than th^t, written contracts deliberately drawn, and formally signed, should be subject to be varied in their terms, by the uncertainty of human memory, and the selfishness of interest, or that statute law should be disregarded by charging a party under circumstances, which that law declares shall create no liability.

Whether there was any such mistake in the form of drawing the note, as would create a right in favor of the plaintiff to have it reformed by a Court of Equity is a question which does not now arise. (Phelps v. Garrow, 8 Paige, 322.) Ho such relief has been asked, nor has any case been stated by the complaint, with a view to establish a right to it. The complaint states a cause of action arising on contract, and seeks the recovery of money only.

The cases of Hall v. Newcomb, 7 Hill, 416; Spies v. Gilmore, 1 Com. 321; Durham v. Manrow, 2 id. 533; Hall v. Farmer, 2 id. 553; Brewster v. Silence, 4 Selden, 207; Hahn v. Hull, 2 Abb. 352, and Cottrell v. Conklin, 4 Duer, 45, show a disposition to . hold, and some progress in holding parties to their contracts, as they have made them. They deny the right to create by judicial legislation a liability where none exists, by the terms or legal import of the written contract, and enforce the statute of frauds, so as to exempt a party from liability upon contracts, which that statute declares to be void.

We think the verdict should be set aside, and a judgment entered for the defendant, dismissing the complaint with costs.

       See Draper v. Snow, 6 Duer, 662.


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    The Corn Exchange Bank v. The Cumberland Coal Company.
    It is undeniable that a corporation may be bound by the act of an agent where the agent acts in the discharge of his duties, and within the scope of his powers as such, although the particular act may not have been directed or authorized by any formal resolution of the directors of the company.
    So a corporation is bound by the act of an agent done on its behalf and in its name, when it accepts the benefit of the act, although the agent had no prior authority, express or implied. The acceptance of the benefit is an adoption of his act.
    But it is certain, that in every case, in order to bind a corporation, there must be proof of the prior authority of the agent, general, or special, or of the subsequent adoption of his act.
    When the powers of the agent are solely derived from an express authority, the terms of the authority must be strictly pursued, or it must appear that the corporation has accepted the benefit of his act, or has otherwise adopted it.
    In the principal case, two members of an executive committee of the defendants, who were only authorized to act when the president, as one of their number, was present, in his absence made a contract for a lease by the defendants of certain rooms belonging to the plaintiffs, and it appeared that the defendants had never entered on the occupation of the rooms.

      Seld by the Court that the contract was void, and that no action thereon could be maintained against the defendants for the recovery of rent.
    Verdict for plaintiffs set aside, and new trial granted.
    (Before Bosworth & Woodruff, J.J.)
    Heard, June 9 ;
    decided, June 27, 1857.
    Case upon a verdict for the plaintiffs, taken subject to the opinion of the Court at General Term. This action was tried before Oh. J. Oakley and a jury, in December, 1856. It was brought to recover a quarter’s rent of certain rooms in a building belonging to the plaintiffs. It was alleged that the defendants had leased the rooms for one year, at the rent of $2,500.
    The controversy turned solely on the validity of the contract of hiring, and all the material facts upon which the decision of the question depended are fully stated in the opinion of tfye Court.

      T. C. T. Buckley, for the plaintiffs.

      T. D. James, for the defendants.
   By the Court. Woodruff, J.

It appears by the evidence herein, without contradiction, that by the by-laws of the defendants, it is provided that their concerns “ shall be managed by a president and a board of twelve directors, of which board, the president shall be a member, and have the casting vote when the board is equally divided. Or by an executive committee of three directors, * * * and the president in like manner shall have the casting vote when the committee is equally divided, and that at stated meetings the president and four directors, and at intermediate meetings the president and two of the executive committee, shall constitute a quorum for the transaction of any business.”

And further, that “ in case of absence or sickness of the president, the board of directors or executive committee, as the case may be, shall have power to appoint a president, pro tempore.”

It further appeared that the president of the plaintiffs, was himself a director, and at the time of the transactions in question, a member of the executive committee of the defendants. And, therefore, in his dealings with the defendants through their executive committee, he must be taken to have had full knowledge of these by-laws, under which the concerns of the defendants were managed.

At a meeting of the board of directors of the defendants,, on the 4th day of April, 1855, nine directors being present,-and among them, Mr. Dunham, the president of the plaintiffs, the defendants’ president being absent, A. M. Sherman, Esq., was appointed chairman of the meeting; and on this occasion Mr. Dunham was appointed a member of the executive committee to fill a vacancy caused by a resignation.

At this meeting the attention of the board being called “ to the proposition to lease offices from the Corn Exchange Bank,” the proposition was “referred to the executive committee with full power, and to report at the next meeting of the board.”

The executive committee consisted of Messrs. Thompson, Bloodgood, and Dunham; and Mr. Mehaffey was the president.

Mr. Dunham, when appointed a member of the executive committee, stated to the board that, as he was acting for the Corn Exchange Bank (the plaintiffs), in the matter of leasing them rooms, he should not meet with the executive committee on that subject.

On the following day Messrs. Bloodgood and Thompson, being at the office of the defendants, concluded on behalf of the defendants (the president not being present), to take the rooms, and accordingly Mr. Bloodgood addressed and sent a note to Mr. Dunham, as president of the plaintiffSj in these "Words:—

“Office of the C. C. & I. Co.

Hew York, April 5, 1855.

Dear Sir.:—This Company will take the rooms over the bank.

By order of the Ex. Com.

E. Bloodgood, of the Ex. Com.”

The president of the defendants, on his return, learning what had taken place, requested Mr. Dunham, the plaintiffs’ president, to release the defendants from their engagement; this was refused. The power of Dunham to bind the plaintiffs appears to have been derived from a resolution of the plaintiffs’ Board of Directors in these terms:

“ On motion resolved, that the renting of the offices in the banking house be referred to the officers with power.” And the testimony showed that the officers of the bank were the president and cashier; and there was evidence that the bank went into that building the previous year and that the president was the officer who had always made the contracts for renting the rooms in the building, and that the cashier collected the rents.

The defendants never entered into the occupation of the ' rooms, and this action is brought to recover rent thereof for three months, viz., from May 1st to August 1st, 1855, after the rate of $2,500 per annum, and there was evidence sufficient to show that the renting, to which the correspondence and resolution referred, was orally spoken of asoa renting for one year, from May 1, 1855, at the rent mentioned, viz., $2,500 per annum.

We are of opinion that no contract of hiring was established which was binding upon the defendants.

It is not necessary to deny that corporations may become bound by the acts of their agents, done in the discharge of their duties, and within the scope of the power of the agents, and that without a formal vote of the Board of Directors: nor to deny that contracts will he implied against corporations, when they have accepted the benefit of what is done by the agent in their name, and have so adopted the act.

Under what various circumstances a formal act of the Board of Directors may be dispensed with it is not necessary to say, but this is clear, there must be an authority to contract, .or there must be an adoption of the contract, otherwise the corporation is not bound.

If an agent have been clothed with powers sufficiently comprehensive, he may bind the corporation. This may be by an express grant of authority, or by the very appointment to an office, the ordinary duties of which involve the exercise of the alleged power.

The present case requires no consideration of these general inquiries. We have before us just the powers conferred by the defendants, and the manner in which they were to be exercised, and we also find the plaintiffs dealing with the defendants with knowledge of both.

No contract was made with the plaintiffs by a general agent. The defendants did not occupy the rooms, and by accepting the benefit of the alleged agreement, become impliedly bound to pay the rent.

The subject of taking the rooms in question was referred to the defendants’ executive committee with power.

That committee, therefore, had under this reference, and perhaps also under their general authority to “ manage the concerns of the company,” power to bind the defendants.

But to constitute a quorum for the transaction of any business, it was necessary that the president and two members of the.committee should be present. If the president was absent the committee must appoint a president pro tempore.

Instead of a formal meeting, two members of the committee confer together and agree to take the rooms, and give notice accordingly. This we think was not enough. It is left in some doubt by the evidence whether the president of the defendants was not in the city, though not at the defendants’ office at the time; at all events, his place does not appear to have been filled, or if the appointment of Mr. Sherman, chairman of the Board of Directors, had any effect beyond the meeting of the Board itself, then he was not present at the meeting of the committee. Probably his duties as chairman ceased with the meeting of the Board.

We think it quite clear that the sending of the letter in question created no contract binding upon either the plaintiffs or the defendants. What took place afterwards consists of efforts on the part of the officers of the defendants to induce the plaintiffs to relinquish any claim, and the manifestation of a determination toy the plaintiffs to insist on the contract. ,

The general rule that a corporation can only act in the mode prescribed by the law of its creation, where the prescribed mode is restrictive and not cumulative in its nature, is applicable by analogy to this case. (Dawes v. the North River Ins. Co., 7 Cow. 462.) Although the restrictions here are contained in the by-laws of the defendants, knowledge of those by-laws is brought home to the plaintiffs through their president.

And not only so; the very basis of the plaintiffs’ claim is an authority to the executive committee given by a resolution of the Board, passed in the presence of the plaintiffs’ president, and the action of' that committee could only bind the defendants when-had in the manner which the laws of its government prescribed.

It is urged, also, that the defendants were not bound because, in this transaction, Mr. Dunham acted alone, when he had no authority from the plaintiffs themselves to let their offices without the concurrence of the cashier. We are of opinion that, under the resolution of the plaintiffs’ Board, read in evidence, if that stood alone, it would have been necessary for the plaintiffs to show that both of the officers of the Bank concurred in the letting. Still, had the undertaking, on the part of the defendants, been made in such form and manner as would bind them, probably the sanction of the plaintiffs’ Board of Directors, implied in the statement contained in one of the letters read in evidence? which states that the Board think they cannot annul the contract, might sufficiently show an approval of the act of their President. And besides, there was evidence tending to show the previous usage of the Bank, which indicated an actual concurrence of the two officers in the letting of the rooms by the President, from time to time, and by reasonable inference, the approval by the Bank of the exercise of that power, in the manner in which it had theretofore been done.

We do not think it necessary to inquire here, to what extent a Banking Company may employ its capital in the erection of offices for the purpose of renting them. We do not suppose that the right to own a building is rigidly confined to the exact number of rooms their immediate purposes require. There may be good reasons for anticipating an increase of business, and providing for its transaction. There may be other reasons why they may have one or more rooms than their immediate business requires them to use. We should be reluctant to say, in such case, that they must suffer those rooms to remain unoccupied, or that the tenant who occupies may refuse to pay rent.

This point-was not raised at the trial, and does not, therefore, properly arise here.

The verdict must be set aside and a new trial ordered—costs to abide the event.


author: By the Court. Slosson, J.

text:
    Samuel C. Hanford, Respondent, v. Daniel C. Higgins, Defendant & Appellant.
    A request by the defendant to the plaintiff, to attend, as physician and surgeon, upon a third person, arid a promise by the defendant to the plaintiff that, if he will so attend, the defendant will pay therefor, and the bestowing of such attendance by the plaintiff, upon such request, and relying solely upon such promise, render the defendant liable to pay what such attendance is reasonably worth. His promise need not be in writing to be obligatory. It is an original undertaking. The fact that he was under no obligation, prior to making such request and promise, to furnish or procure such attendance, does not make it essential to the validity of such a promise, that it be in writing.
    But the defendant in such a case may, at any time, give notice to the plaintiff, that he will not be liable for attendance or services subsequently rendered, and on so doing, the plaintiff can make no claim on him for services or attendance subsequent to such notice.
    A defendant has no right to be examined in his own behalf, merely because the wife of the plaintiffs assignor of a thing in action (being the plaintiff’s cause of action) has been examined for the plaintiff.
    (Before Dues, Slosson, & Woodkuejf, J.J.)
    Heard, April 8;
    decided, June 27, 1857.

      This action comes before the General Term, on appeal by the defendant from the judgment. It was tried before Mr. Justice Bosworth and a jury, in June, 1856, when a verdict was rendered for the plaintiff for $500 damages.
    The complaint states two causes of action:
    1. As assignee of Wm. 0. Mead, for board of and nursing one William C. Hetzell, from September, 1854, to June, 1855, at defendant’s request, and on his promise to pay therefor, the sum claimed, over and. above all payments made on account thereof, being $334.
    2. For attendance by the plaintiff, as physician and surgeon, upon said Hetzell, within the same period, at the like request, and on the like promise, for which $500 was claimed.
    It appeared that William O. Hetzell, on the 14th of September, 1854, being then a journeyman sail-maker in the defendant’s employ, had his leg fractured, and was taken to the hospital, from which place he was removed to Mr. Mead’s, on the 19th, that he might be better nursed and attended to. While he was at the hospital, Mrs. Mead, with whom he had formerly boarded, saw him, and messages from the defendant to Mrs. Mead, and from her to him, were carried by Joseph 0. Hetzell, which constituted part of plaintiff’s proof that Mrs. Mead took William C. Hetzell to her house, on being requested and employed by the defendant so to do, and relying on his promise to pay therefor.
    The proof, upon the question, whether the defendant employed the plaintiff as physician and surgeon, consisted of messages sent by the defendant, through third persons.
    One Thomas Bums, was examin ed for the defendant, and gave evidence tending to show that he was instructed by the defendant, while Wm. 0. Hetzell was at Mrs. Mead’s, on the defendant’s being requested to employ a consulting physician, to inform her and the plaintiff, that he had nothing to do with the employment of a doctor, that all he had agreed to do or would do, was to allow William $5 a week for three months, and that he communicated such message. Evidence was given with a view to contradict his statements, as to what he did in truth say to Mrs. Mead and the plaintiff, when assuming to communicate the message,“the defendant had sent to them.
    Evidence was given as to a bill, to the amount of $1203 having been made out by Mrs. Mead, and sent to the defendant by one McKinstry, and whether it was made and sent as being the whole amount of her claim, and the defendant insisted that if he was liable at all, for her services, his liability was limited to the sum named in that bill. The defendant’s theory of the case was, that Mrs. Mead agreéd with W. 0. Hetzell, while he'was at the hospital, absolutely, and unconditionally to take him and nurse him, and that defendant’s promise was collateral to this, and was merely a promise to allow to William $5 a week for three months, to assist and relieve him, and that he never authorized any one to employ a physician and surgeon, or a nurse, at his expense, or agreed to compensate for such services.
    Mrs. Mead was examined as a witness for the plaintiff. She having been so examined, and the plaintiff claiming to recover for her services and for the board and nursing of Wm. C. Hetzell, under an assignment by Mr. Mead, her husband, of his claim therefor, the defendant offered himself as a witness in his own behalf, and on being objected to, the Court excluded him, to which defendant’s counsel excepted.
    As the questions decided, relate to exceptions taken by the defendant to the charge of the Judge, and to his refusal to charge in the terms of requests made to him in that behalf, the evidence given is not stated.
    When the testimony was closed, the counsel for the respective parties summed up the case, and the defendant’s counsel requested the Judge to charge the jury as follows:- 1. That the promise proved by the evidence of Joseph Hetzell is void, and that the defendant is not bound thereby. 2. That if Mrs. Mead agreed to take William C. Hetzell at the hospital, any subsequent promise of defendant is collateral and void. 3. That in order to have a verbal promise on the part of the defendant to pay for the board or medical attendance of William C. Hetzell binding, there must have been some obligation on the part of the defendant to furnish such board and medical attendance, otherwise the promise is void for want of a writing. 4. That the promise of defendant was in the nature of a gratuity and revocable at any time; that the notice sent by Mr. Burns was a revocation of any promise; and defendant is not liable after that time. The same of defendant’s refusal to pay the bill., which was communicated to the plaintiff.

      That the plaintiff is bound by the charges in his complaint and can recover only at that rate for the time up to the notice-
    That the plaintiff is limited as to Mead’s bill to the amount of $120, contained in the bill sent over by Mr. McKinstry.
    The Court charged, inter alia, as follows:
    Did the defendant, before Mrs. Mead unconditionally agreed to take Hetzell into her house, and board and nurse him, promise to pay her for so doing; and did she receive him solely on the credit of such promise ? If so, the plaintiff is entitled to recover for such board and nursing.
    If Mrs. Mead unconditionally agreed to receive him, and board and nurse him, before the defendant made any promise to her, and she received him to be boarded and nursed in pursuance of such unconditional agreement, the defendant is not liable, although he subsequently promised to pay her.
    Were her services commenced solely on the credit of a promise by the defendant to pay her charges ? If they were, he is liable, although his promise was not in writing. To which charge defendant then and there excepted.
    The liability of the defendant, therefore, depends upon the facts, which you may find the evidence establishes. If she refused to allow Hetzell to come to her house, until the defendant was seen, and some satisfactory arrangement had been made with him for the payment of her charges, and the defendant sent a request to her to take him, and promised that he would pay the expenses, and she took him relying solely upon such promise, he is liable. To which defendant’s counsel excepted.
    If you find that she agreed absolutely to take Hetzell before the defendant had been seen on the subject, and that she took him in consequence of such agreement, he is not liable, although he subsequently agreed to pay her for her services and for his board.
    If you find the facts which the Court has stated would make him liable, then the next question is, for how much would he be liable? Unless she agreed to take him at an agreed price per week, the defendant is liable for what her services are really worth. If any price was agreed upon, the evidence does not show the defendant a party to it. If any price was fixed, it must have been between her and Hetzell. You have heard what they both swear on this point, and, from that and the other evidence, you will determine how the fact is. An agreement with HetzeH as to price would not bind the defendant, and would be strong evidence that Mrs. Mead did not take HetzeH relying on the defendant as the party to whom credit was exclusively given by her.
    If, at any time, defendant gave notice that he would not be Hable, or that he denied aH liability, from the time of such notice there would be no claim on him for future services.
    The question is, what notice did Burns give to Mrs. Mead when defendant was sent to, about a consulting physician, not what message defendant sent, unless it was communicated to the plaintiff. What message did defendant send back when the Mil of $120 was presented ? If that denied having anything to do with paying any charges, it was equivalent to a notice that he would not be Hable for the future.
    The same principles apply to the claim made by the plaintiff for his professional services. Did he commence them, relying solely on a promise of defendant to pay for them? If there was such a promise, and plaintiff commenced, relying solely on that promise, defendant is Hable for the fair value of the services up to the time that he gave the plaintiff notice that he would be no longer Hable. On this point, the evidence is different from that relating to the claim of Mrs. Mead. There have been no payments to plaintiff by HetzeH, and no communication between the plaintiff and defendant personally on the subject. The communications as to them were through third persons.
    If you shaU find such facts as, under the instructions given to you, make the defendant liable to pay either or both of these claims, then you wHl determine the proper compensation to be aUowed for the claim or claims which you shall find to have been satisfactorily proved. If you hold the defendant Hable to pay the proper and reasonable charges for nursing and attending HetzeH by Mrs. Mead and famfiy, you wiH deduct from the sum you shaH fix as their value, or to be paid, the amount which Mrs. Mead received from HetzeH.
    The Court refused to charge further or different in respect to the requests made by the defendant’s counsel.

      The defendant’s counsel excepted.
    The jury, after retiring to deliberate, came into Court, and rendered a verdict in favor of the plaintiff for $500 damages.
    Judgment having been entered on the verdict, the defendant appealed from it to the General Term.

      Gilbert Dean, for appellant,
    made and argued the following points:
    I. The promise proved was clearly void by the statute of frauds.
    1. There was no obligation on the part of defendant to provide for Hetzell.
    2. Hetzell requested Mrs. M. to take him, and the plaintiff to attend him.
    3. He was legally and morally liable to pay.
    4. The promise that is claimed to be binding was made after Mrs. Mead had taken him, and plaintiff had attended him.
    II. But any verbal promise made by Higgins, to pay for board, &c., of Hetzell, was void.
    1. The statute of frauds requires both a consideration and a writing.
    2. In this case there is a consideration, but no written promise. (Kingsley v. Balcome, 4 Barb. 131 ; Green v. Cresswell, 10 Adolphus & Ellis, 453; Roberts oh Frauds, 209; Jones v. Cooper, Cowper, 227: “You must supply my mother with bread, and I will see you paid.”)
    3. The contrariety of evidence, and the difference that existed
    between defendant and plaintiff, and Mrs. Mead, as to defendant’s obligations, show the necessity of a writing in all such cases. ,
    4. That portion of the charge which says, that if Mrs. M.’s services were commenced solely on the credit of a promise by defendant to pay charges, defendant is liable, was clearly erroneous, as applied to this case.
    HI. The Court erred in refusing to charge as requested by the defendant in his first, third and last request.
    The right to require a specific charge on any point of law raised by the evidence, is undoubted, (3 Kernan, 338, Zabriskie v. Smith.)]

      ■ 1. The first request was right—Was it complied with ?
    2. Iu a case like this, there are peculiar reasons why a jury should be instructed specifically as to the effect of any particular promise.
    3. The third request involves a point before discussed.
    4. The last request claimed that a party, after presenting a bill, was bound by its amount when no error was shown.
    IV. The contract proved was void for want of mutuality. There was no obligation on the part of either Mrs. Mead or plaintiff, for a breach of which defendant could have sustained an action.
    The assent to a binding contract must be mutual. Every agreement ought to be so certain and complete that each party may have an action upon it. It must be obligatory on both parties, or it binds neither.
    A written agreement “ to remain with another, two years, for the purpose of learning a trade,” is void, for the want of an engagement in the same instrument to teach. (3 Car. & Payne, 289, Lees v. Whitcomb.)
    V. A new trial should be granted, because the verdict is wholly without evidence.
    1. The amount is wrong; the claim was for $834 for eight months. The Court held we were not liable after the notice (two months). Verdict is for $500.
    2. There is no evidence of any authorized communication to plaintiff, except by Joseph Hetzell.

      C. Schaffer, for plaintiff and respondent.
   By the Court. Slosson, J.

The charge to the Jury presented the questions, involved in this case, as favorably to the defendant as a correct exposition of the law admitted of, in respect to both claims, and under the charge, their finding is conclusive upon these points. 1st. That Mrs. Mead undertook the care and boarding of Hetzell, relying solely on the defendant’s promise that the expense thereof would be paid by him. 2d. That the plaintiff’s services were rendered on the faith of a like promise. This takes the case out of the statute.

It is impossible to say, from the amount of the verdict, at what rate the board, lodging, and services of Mrs. Mead, or the services of the plaintiff were estimated. But as the Court charged that, unless she agreed to take Hetzell at a certain price per week, the defendant would be liable for what her services were really worth, and in respect to the plaintiff’s professional services, that the defendant would be liable for their fair value up to the time that he gave the plaintiff notice that he would be no longer liable, we must assume that the jury fixed the amount upon a principle which they considered the evidence to have warranted.

The assignor of the claim for board, &c., was Mr. Mead the •husband, and he was not examined. The examination of his wife as a witness, (which was proper) does not bring the case within § 399 of the Code. This is a sufficient answer to the exception to the ruling of the Judge excluding the offer of the defendant as a witness, and makes it unnecessary to decide whether the offer was too broad as not having been restricted in terms to “ the same matter,” to which Mrs. Mead had testified.

In respect to the requests to charge, made by the defendant’s counsel; the Court properly refused to charge the first, as it was for the jury to determine whether in fact the services were rendered solely upon the faith of the defendant’s promise or not, and the Court correctly charged the law in either alternative.

The second request was substantially charged.

It is not necessary that a party promising absolutely to pay for goods to be sold, or services rendered to another, should be under an obligation to pay, at the time he makes such promise. The question is, whether the goods are sold or services rendered, on the sole credit of the party so promising; if they are, the promise is not to pay the debt of another, but an original undertaking, and therefore not within the statute of frauds requiring it to be evidenced by a writing. The Court therefore properly refused to charge the third request. (Dixon v. Frazee, 1 E. D. Smith’s R. 32; Flanders v. Crolius, 1 Duer, 206.)

The fourth request was charged in substance.

In respect to the request to charge, that the plaintiff could only recover at the rate of charges as stated in his complaint, up to the time of the notice, it is sufficient to say, that the Court having instructed the jury that, if at any time the defendant gaye notice that he would not be liable, or that he denied all liability, from the time of such notice there would be no claim on him for future services,” and the jury having found $500 only for both classes of service, it does not appear, which way they may have found the fact of notice, nor that they have exceeded in their verdict the amount claimed in the complaint as due for the board and nursing. The defendant is therefore not prejudiced by the omission or refusal of the Judge to charge that proposition specifically.

In respect to the request to charge that the plaintiff was limited as to Mead’s bill'to the amount of $120, contained in the bill sent over by McKinstry, the evidence shows that that bill was made out in March, whereas the services continued until June; the Judge therefore properly refused to charge that proposition.

The exceptions to the charge, we tbinlr unfounded. On the whole charge the law was correctly laid down to the Jury.

The judgment must be affirmed.