(forn^U ICam irtiool ICihrary Cornell University Library KFN5975.W14 1893 V.2 The law and practice in civil actions an 3 1924 022 881 803 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022881803 THE LAW AKD PEACTICE IN CIVIL ACTIONS AND PROCEEDINGS IN JUSTICES^ COURTS, AND ON APPEALS TO THE COUNTY COURTS IN THE STATE OF NEW YORK. INCLUDING THE PEINCIPLES OP LAW RELATING TO ACTIONS OR DEFENSES ; THE RULES OF PRACTICE, PLEADING AND EVIDENCE : TOGETHER WITH PRACTICAL FORMS AND PRECEDENTS. By WILLIAM WAIT, COnNSELLOR AT LAW. " IN THREE VOLUMES. Vol. II. By ED^WIN BAYLIES. SIXTH EDITION. With Appendix bringing down Code Amendments, Law, and Decisions TO July 1, 1893. BANKS & BROTHERS, New Yoke. . Albany. ■ 1893. Entered according to the Act of Congress, in the year one thousand eight hundred and eighty-two , By JAMES A. WILLIAMSON and DANIEL POTTBB, Executors of last will and testament of WILLIAM WAIT, deceased, In the OflBce of the Librarian of Congress at WagMngton. TABLE OF CONTENTS. PART IL The prmoiples of law relatvng to contracts in general — Continued. CHAPTER Xm. PAGE. ' Sale 1 Section 1. What constitutes a sale 1 Section 3. "What is a bailmeilt instead of a sale 4 Section 3. Sales in gross 5 Section 4. Requisites of a valid sale , , 7 Section 5. Must be subject-matter of sale , 9 Section 6. Construction of contracts of sale , 11 Section 7. When the title passes on a contract of sale , 15 Section 8. Sale or return , 33 Section 9. Conditional sales, and sales by vendors withotit title ■ 35 Section 10. Delivery of the property sold 86 Section 11. Sale of articles to be manufactured 54 Section 13. Sale or delivery procured by fraud 55 Section 13. Rescinding contracts of sale 63 Section 14. Warranty , 74 Section 15. Stoppage in transitu 104 Section 16. Sales, how affected by the Statute of frauds. . . , 110 Section 17. Rights and remedies of parties to contracts of sale 138 CHAPTER XIV. Interest on money 137 CHAPTER XV. Usury 156 CHAPTER XVI. Insurance - 190 Section 1 Contracts of fire insurance and actions thereon 190 Section 3. Insurance premium notes 207 CHAPTER XVn. Judgments • ■• ^^^ Tiii TABLE OF CONTENTS. CHAPTER XVIII. PAGE. Fixtures 226 Section 1. Heir, executors, etc _ 336 Section 3. Landlord and tenant 33& Section 3. Vendor and purchaser of real estate 383 Section 4. Mortgagor and mortgagee of real estate. 335 Section 5. When liable to execution 388 CHAPTER XIX. Statute of frauds 38» Section 1. General principles 389 Section 3. Contracts not to be performed within one year 345 Section 3. Promises to answer for the debt, default or miscarriage of another 357 Section 4. Sale of an interest in lands, etc. 373 Section 5. Agreements not within the statute 384 Section 6. Leases for one year 387 Section 7. Fraudulent sale, assignments, judgments, etc 388. CHAPTER XX. Husband and wife • 398^ Section 1. How the relation is created 398 Section 3. Rights of married women 300 Section 3. Liability of married women on contract 311 Section 4. Liability of a married woman for wrongs 333 Section 5. Liability of the husband for the support of the wife. 335 Section 6. Liability of husband for torts of his wife 831 CHAPTER XXI. Parent and child 33& Section 1. Liability of parent to maintain children 333 Section 3. Education of children 338 Section 3. Of the rights of parents 33^ CHAPTER XXn. Common counts 345 Section 1. Goods bargained and sold 845 Section 3. Goods purchased and refusal to deliver ....►._ 347 Section 3. Warranty on sale or exchange 349 Section 4. Actions to recover for labor and services 351 Section 5. Work, labor and materials furnished , 373 Section 6. Money lent and advanced 376 Section 7. Money paid, laid out and expended 378 Section 8. Money had and received 391 Section 9. Use and occupation 407 Section 10. Account stated, or balance struck, etc 411 TABLE OF CONTENTS. ix PART m. The law relating to torts or vyrongs. CHAPTER I. PAGE. Actions for torts or wrongs 418 Section 1. Greneral principles relating to torts 418 Section 2. Fraudulent representations as to credit of a third person . . . . 434 Section 3. Officers. Official neglect or misconduct. 430 Section 4. Injuring or enticing away a servant 436 Section 5. Escape 438 Section 6. False return 443 Section 7. Nuisance. General character of a nuisance 445 Nuisance afEecting personal health or comfort 449 Nuisance affecting real estate 453 Section 8. Penalties 458 Section 9. Trespass to property 467 Section 10. Trespass upon real estate 473 Possession 475 Section 11. License 485 Section 13. Of division and other fences 490 Fences 500 Damage feasant 506 Section 18. Water and water-courses 507 Diverting water of streams, etc , 509 Diversion of subterranean water 513 Obstruction of water, etc 517 Flowing, lands above 530 Flooding lands below 531 Back water upon a mill above 533 Interference with surface water 523 Section 14. Fish and game laws 535 Section 15. Trespass to personal property ' 541 Section 16. Trover 553 By whom • — 554 Against whom 559 For what property 562 The conversion 570 Conversion by a wrongful taking , 571 Conversion by a wrongful assumption of the property. 573 Conversion by demand and refusal 576 When trover cannot be maintained 585 Section 17. Negligence 585 What is such negligence as to be actionable 585 Plaintiff's own negligence as a bar to his action 590 Liability of one person for the acts of another 594 Where acts of negligence are not actionable 600 Negligence in relation to the law of the road 606 Section 18. Injuries by domestic and other animals .... 611 B X TABLE OF CONTENTS. Actions for torts or wrongs. — Continued. page. "When an action will lie for such injuries 611 When an action will not lie 617 Section 19. Frauds in sales, exchanges or otherwise 619 Section 20. Replevin 630 When the action lies 631 For what property - 635 Property taken by virtue of a tax, fine, assessment or execution, etc 636 When the action does not lie 638 Section 31, Actions under the Civil Damage Act , 644 PAET IV. The law relating to defenses. CHAPTER I. General considerations. 651 Section 1. General denial 651 Section 2. Affirmative defenses 656 Section 3. Another action pending 659 Section 4. Infancy 662 Who is an infant 662 What acts are void or voidable 663 Right to disaffirm acontract 664 What is an affirmance or ratification 665 Disaffirmance of contract 667 Liability for torts or wrongs 667 Liability for necessaries , . 670 Actions against infants 672 Section 5. Lunacy, idiocy and unsoundness of mind 672 Section 6. Drunkenness or intoxication 675 Section 7. Coverture 678 Section 8. Alteration or modification of contract by consent , 679 Section 9. Alteration or erasure without consent 682 Alteration of sealed instruments, deeds, etc 682 Alteration of written unsealed contracts 683 Alteration of bills or notes 684 Alterations, by whom made , 691 Presumption as to time when alteration was made 692 Section 10. Illegality of contract 694 General principles 694 Contracts in restraint of trade 696 Corrupting legislation 703 Wagers, betting and gaming, etc 704 Sunday laws , 704 Contracts tending to promote prostitution, etc 707 Contracts against public policy 709 Acts or sales by unlicensed persons 714 Usurious agreements or contracts 715 TABLE OF CONTENTS. xi Illegality of contract. — Continued. paqb. Violation of statutes , 715 Divisible contracts, part being good and part bad 717 Section 11. Impossible contracts 719 General principles , , 719 Act of God 719 Act of the law, or legal impossibility. 731 Physical impossibility . . 722 Section 12. Higher security, merger, extinguishment, etc 721 Section 13. Performance , 738 Prevention and dispensation 738 Default in doing the first act 730 Cumulative and alternative stipulations 730 Time of performance 731 Mode of performance , , 733 Excuses for non-perf ormsmce 734 Of part performance 734 Section 14. Former adjudication , '735 Former recovery by the plaintiff 785 Former suit, when plaintiff set off demand. 736 Former suit and neglect to interpose a counter-claim 738 Former action and judgment for the defendant 740 Defense must be pleaded 741 Judgment when a bar, and bow far conclusive , 741 Splitting demands 745 Splitting demands arising on contract , 745 Splitting demands for torts 747 Subject of second suit, matter of defense in former action 748 Former recovery must have been on the merits 749 Must be between same parties 750 Same subject-matter , 751 Conclusiveness of judgment 753 Section 15. Recoupment 755 What it is 755 Breach of warranty 757 Damages for fraud 757 Must arise out of contract sued on 758 Landlord and tenant, 759 Wlio may recoup 760 In what cases recoupment not allowed sureties 761 Actions for torts 763 Election to recoup 763 Defense must be pleaded 765 Pendency of another action 765 Damages., 765 Section 16. Set-off 766 Nature of set-off 766 Section 17. Counter-claim , . , . , 768 Jurisdiction of the counter-claim 770 xii TABLE OF CONTENTS. Counter-claim. — Continued. page. Must tend to diminish or defeat a recovery by the plaintiff 770 Must be a cause of action against the plaintlS, etc 771 Must be in favor of the defendant or one or more defendants, etc 771 Distinct independent demands 773 Demands arising out of or connected with the plaintifi's claim 775 Effect of the statute of limitations 777 Pleading a counter-claim 777 Form of judgment in case of counter-claim 778 Effect of a failure to interpose a counter-claim 778 Section 18. Statute of limitations 779 General principles 779 What actions are barred 779 Computation of time 781 Absence from State 788 Disabilities 791 Death of party 792 Commencement of prior action, etc 793 Exceptions 793 Mutual accounts 793 Concealment of cause of action 796 New promise 797 Conditional promise 808 Promise, by whom made 809 Promise, to whom made 810 New promise, etc., as to tort 811 Part payments 811 By whom made 813 To whom made 815 Payments, how made 816 Payment by bill or note 818 Payment in goods, chattels, etc 819 Payment must be voluntary 819 Oral admissions of payment 819 Section 19. Release 821 What a release is 821 Upon what a release operates 823 Construction of release 824 Who may execute release 825 Release of one of several parties 836 Release, when implied by law 828 Effect and conclusiveness of release 830 Section 30. Arbitrament and award 831 The submission, and who may submit 837 What questions may be submitted 840 Form and construction of submission 841 Revocation 844 Umpires 845 Hearing, and proceedings thereon 846 TABLE OF CONTENTS. xiii Arbitrament and award. — ConUrmed. page. Award, when to be made , , 849 Award, by whom made '. 850 Bequisites of an award 853 Mutuality 853 Seasonable * 854 Finality 854 Certainty 855 Possible 858 Form and execution of an award 859 Delivery of award 860 Construction , . 861 Action for breach of submission 862 Pending actions 863 Effect of an award ' 865 Impeaching awards 866 Must be pleaded 869 Section 31. Accord and satisfaction 869 Definition and general principles 869 Satisfaction, from whom to move 870 Satisfaction, to whom .• _ 871 Value of satisfaction 871 Not merely executory 872 What is a sufficient accord and satisfaction 874 What is not sufiicient as an accord and satisfaction 877 Defense must be pleaded 880 Section 22. Tender 880 What it is 880 By whom made 881 To whom made .883 When to be made 883 Where to be made 884 Manner of tendering 885 The thing tendered 892 Tender of chattels 896 Keeping tender good 898 Effect of a tender 899 Manner of pleading tender 900 Section 23. Failure of consideration 902 Section 34. Parol discharge from sealed contract 904 Section 35. Non-performance of conditions precedent 905 Section 36. Payment 907 What is.... 907 By whom -.- ...- - 911 To whom 911 Part payment '. 913 By letter 914 In forged paper. 915 Bank bills 916 xiv TABLE OF CONTENTS. Pftyujent. — ConUnwd, faob- By check 917 By note or bin 918 Applic^'tion of , 922 Voluntary payments , 928 Chattel notes , 928 Pleading 928 Section 27. Duress 928 What it is 928 When it avoids a contract 929 What does not avoid a contract 932 Section 38. Estoppel : 934 What it is 934 Kinds of 935 By record 935 By deed 936 Not favored as a defense 938 Reciprocal , , 938 Who not bound by 939 Estoppel m pais, or equitable estoppel 939 By pleadings , 941 Admission^ or assertions as to a matter of law , 941 Sales of property 942 Execution sales 943 ^ Assigned claims, etc, . . , 945 Indorsements 946 Certificates of validity 947 Official returns, etc 948 Landlord and tenant 948 Former adjudication 950 Partnership '. 950 Principal and agent 950 Corporations i 950 Performance of condition precedent , 950 Waiver of exemption laws 950 Keceiptor 951 Error of party making assertion 951 Release 958 Tender 953 TABLE OF CASES. PAGE. Abbey v. Deyo 310, 316 Abbott V. Blossom 22, 131 Abbott V. Booth 435 Abbott V. Draper. ...... 69, 73, 280, 390 Abbott V. Johnstown, Qloversville, etc., Horse R. R. Co 599 Abbott V. New York Cent., etc., R. R. Co 458 Abbott V. Tost 550 Abeel v. Badcliflf 409 Abington v. Lipscomb 584 Abrahams v. Claussen 174 Academy of Music v. Hackett 652 Acer V. Merchants' Ins. Co 193 Acker v. Acker 792 Acker v. Campbell 58, 65 Acker v. Ledyard 693 Ackerman v. Runyon.. , 672 Ackley v. Dygert 939, 940 Ackley v. Finch 188, 859 Ackley v. Westervelt 313, 318 A'Court V. Cross 779 Acton V. Blundell 509, 514 Addington v. Allen 428 Adkins v. Brewer 545 Adolph V. Cent. Park, etc., R. R. Co. 609 Adams v. Beadle 234 Adams v. Carroll , 794 Adams v. Curtis 310 Adams V. Dale 41 Adams v. Davidson 894 Adams Express Co. v. Milton 143 Adams Bx. Co. v. Reno , 392 Adams v. Fort Plain Bank 141, 786 Adams v. Freeman 406, 483 Adams v. Goddard 563 Adams v. Helm 891 Adams v. Hopkins 371 Adams v. Honness 310 Adams v. Mayor of New York. . 373, 374 Adams v. Mills. , . , 324 Adams v. O'Connor 32 Adams v. Orange Co. Bank 806 Adams v. Popham 447 Adams v. Reeves 398 Adams V. Rivers 480 Adams v. Sage 625 Adams v. Saratoga R. R. Co 480 Adams v. Scull 462 Adams v. Stevens 357 Adams v. Stratham 852 Adams v. Van Alstyne 286, 504 Mtna, Fire Ins. Co. v. Tyler 203 FAOE. Agnew V. Johnson , 564 Agate V. Richards 736 Aguirre V. Allen 113, 116 Aguirre v. Parmelee 107 Ahern v. Goodspeed 83, 85, 183 Aiken v. Buck 476, 542, 543, 549 Aiken v. Benedict 453 Aiken v. Davis 730 Aiken v. Hyde 25 Ainsley v. Mead 312, 315, 318 Ainslie v. Wilson 380, 727 Almy V. Harris 462 Almy V. Wilcox , 338 Alsager v. Close 574 Alsen V. Upsahl 548 Alt V. Weidenberg 554, 644 Althause v. Rice 476 Althorf V. Wolfe 596,598 Altman v. Altman 840 Altreuter v. Hudson R. B. R. Co 609 Alvord V. Haynes 546, 573, 631 Albro V. Agawam Canal Co 601, 604 Alder v. Boyle 906 Alder v. Savill 858, 861 Alderson v. Langdale 687 Aldred v. Constable 576 Aldrich v. Brown 358 Aldrich v. Howard 451 Aldrich v. Jackson 97, 910 Aldrich v. Pyatt 125 Aldrich v . Reynolds 160 Aldrich v. Sager 646, 648 Alexander v. Germania Fire Ins. Co. 195 200 Alexander v. Greene 589 Alexander v. Hard 481 Alexander v. Hoyt 550 Alexander v. Northwestern Univer- sity 365 Alexander v. Southey 579, 583 Alexander v. Taylor 743 Alexandria Canal Co. v. Swann 839 Alford V. Baker 918 Alfred v. Bray 546 Alger V. Johnson 655 Allaire Works v. Guion 762 Allaire v. Whitney 759 Allard v. Greasert 117, 124 Allen V. Bates 370 Allen V. Crary 632, 637, 641 Allen V, Crofoot 490 Allen V. Culver. 923, 924, 925, 926 Allen V. Eighmie 266 XVI TABLE OF CASES. PAGE. Alien V. Fiske 486 Allenv.Fox 147 Allen V. Franklin Fire Ins. Co 191 Allen V. Harper 565 Allen V. Hammond 9 Allen V. Horton 739 Allen V. Jaquish 905 Allen V. Judson 644 Allan V. Lake 77, 83 Allen V. Merchants' Bank 90 Allen v.Mille 797 Allen V. Patterson 831 Allen V. Rescous 696 Allen V. Richmond College 353 Allen V. Scarff.. , 369 Allen V. State 446 Allen V. Vermont Mut. Fire Ins. Co. 198 Allen V. Watson 844, 863 Allen V. Webster. 798 Allis V. Read 121, 133 Allison V. Matthieu 58 Alley V. Adams 569 Allgoever v. Edmunds 773 Ailing V. Munson ... 838 Allshouse V. Bamsey 885 Ambler v. Cos 373 Ambler v. Owen 285 Ambrose v. Kerrison 386 Amburger V. Marvin. ..250, 251, 254, 654 Amedon v. Gannon 703 American Exchange Bank v. Webb. 391 394 American Union Tel. Co. v. Mlddleton 473 Ames V. Downing 141 Ames V. New York Union Ins. Co. . . 199 Amidon v. Wheeler. ^ 406 Amies v. Stevens 731 Amory v. Brod wick 134 Amsden v, Manchester 631 Anderson v. Hamilton Township 355 Anderson v. Highland Turnpike Co. . 871 Anderson v. Nicholas... 34, 63, 558, 559 Anderson v. Simpson 485 Andrew v. Boaghey 914 Andrew v. Newcomb 10 Andrews v. Bond 653, 940 Andrews v. Durant 15, 33, 55, 147 Andrews v. Foster 354 Andrews v. Hart 161 Andrews v. Keeler 137 Andrews v. Kneeland 8 Andrews v. Murray 386 Andrews v. Shattnck 581 Andrews v. Smith 736 Andrews v. Union Ins. Co 306 Andriot v. Lawrence 949 Angel v. Felton 931 Anonymous 57 Ansell V. Baker 727 Anstice v. Holmes 641 Anthony v. Haneys 488 Anthony v. Wheatons 53 Antram v. Chace 866 Archer v. Boudinet 653 Archer v. English 901 Archibald v. Thomas. 167 PAGE. Argall V. Bryant 787 Argus Co. V. Mayor of Albany 845 Armitage v. Pulver 385 Armory v. Flyn 471 Armour v. Michigan Cent. B. R. Co. . 35 Armstrong v. Bufford 92 Armstrong v. Garrow 405 Armstrong v. McDonald 340, 341 Arnold v. Angel 659 Arnold v. Crowder 237 Arnold v. Delano 105 Arnold v. Downing 805, 819 Arnold v. Foot 510 Arnold v. Johnson 773 Arnold v. Kelly 562 Arosemena v. Hinckley 576 Arrex v. Brodhead 434 Arrieta v. Morrissey 403 Arrington v. Larrabee 489 Artcher v. Zeh 114, 133, 254 Arthur v. Griswold 437 Arthurton v. Dalley 738 Arctic Fire Ins. Co. v. Austin. . . 589, 590 Artisans' Bank v. Backus 694, 736 Ascher V. Grand Trunk Railway Co , . 109 Ash V. Putnam 55, 56, 58, 65 Ashburn v. Poulter 891 Ashford v. Price 363 Ashley v. Dixon 430 Ashley v. James 794 Askins v. Hearns 774 Aspinwall v. Sachi 385 Astley v. Reynolds 890 Atlanta Mining Co. v, Gwyer 165 Atcheson v. Mallon 711 Atkins V. Curwood 336 Atkins V. Hosley 98 Atkinson v. Bell 345 Atkinson v. Collins 373 Atkinson v. Hawdon 687 Atkinson v. Pocock 435 Atkinson v. Scott 401 Atkyns v. Kinnier 699, 703 Atlee v. Backhouse 400, 878, 933 Att'y-Gen. v. Gee 450 Att'y-Gen. v. Riddle 464 Att'y-Gen. v. Steward 450 Attwood v. Cornwall 916 At wood v. Holcomb 341 Atwood V. Lucas 120 Atwood v. Small 425 Auchmuty v. Ham 616, 617 Audenreid v. Randall 108 Audubon v. Excelsior Ins. Co 194 Auditors of Wayne Co. v. Benoit. . . . 373 Augsbury v. Flower 416 Aultman v. Mallory 33 Aurora Fire, etc., Ina. Co. v. Kranich. 197 Austin V. Cox 333 Austin V. Dye 36, 33 Austin V. Fuller 178, 187 Austin V. Hall 826 Austin V. Sawyer 235, 284, 481 Avegno v. Hart 608 Avendano v. Arthur 352 Averill v. Loucks 293 TABLE OF CASES. xvii PAGE. Averill v. Patterson 661 Averill v. Wilson 937 Avery V. Scott 840 Ayer v. Ashmead 837 Ayer v. Hutchins 696 Ayres v. Bane ... 806 Ayres v. French. 554, 563 Azel V. Betz 639 Babcock v. Bounell 105 Babcock v. City of Buffalo 457 Babcock v. Dill 870, 872 Babcock v. Gill 567 Babcock v. Eckler 307 Babcock v. Libbey 633 Babcock v. Monteomery Co. Ins. Co. 306 Babcock v. N. J. "Stock-yard Co 449 Babcock v. Peck 738 Babcock v. Eaymond 368 Backhouse v. Bonomi 788 Backus V. Fobes 841, 858, 865 Bacon v. Cobb 730 Bacon v. Cropsey 431, 444, 551 Bacon v. Dubarry 856 Bacon v. Eccles 113, 134 Bacon v. Wilber 857 Badge t. Hughes 649 Badgely v. Beale 357 Baglehole v. Walters 98 Bagneley v. Ha wley 98 Blagsliawe v. Goward 548 Bagshaw v. Seymour 436 Baildon t. Walton 817 Bailey v. Corliss 814 Bfiiley V. Freeman 371 Bill ley V. Mogg 368 Baily v. O'Mahony 393 Bailey v. Smith 173 Bailey v. Stone 936 Bailey v. Sweeting Ill, 134 Bailey v. Taylor 686 Bainbridge v. Pickering 671 Bains v. Ewiug 113 Bakeman v. Pooler 886 Baken v. Harder 331 Baker V. Barney 330 Bakery. Bliss 59 Baker v. Bonesteel 915 Baker y. Bourcicault 38 Baker y. Braman 285 Baker V. Cuyler 117 Baker v. Dewey 830 Baker y. Drake 146 Baker v. Greenhill 390 Baker v. Henderson 77 Baker y. Higgins 46 Baker y. Hoag 631 Bakery. Keen 338 Baker y. Leyer 635 Baker V. Martin ■ 379 Baker v. Bobbins 71 Bakery. Seely 946 Baker y. Spencer 635, 879 Baker y. Stackpole 923 Baker v. Woodruff 2, 4 Baldey V. Parker 1251 PAGK. Balbeimer r. Reichardt 65, 365 Baldwin v. Barrett 868, 865 Baldwin v, Berrian 773 Baldwin v. Briggs 773 Baldwin v. Farns worth 43 Baldwin v. Liverpool & Great Wes- tern Steamship Co 933 Baldwin v. Munn 401 Baldwin v. Murphy 933 Baldwin v. Palmer 277, 281 Baldwin v.Walsworth 739 Baldwin y. Williams 114 Ball V. Bennett 333 Ball V. Larkin 577, 741, 753 Ball V. Liney 579 Ball y. Stanley 895 Ballard v. Burgett 36, 33, 34 Ballard y. Lookwood 428 Ballard y. Sampson 36 Ballin v. Dillaye 313 Ballou V. Kip 438 Ballou y. Parsons 941 Balmey. Wombough 138,185, 186 Balmsen y. Clemmons 391, 393 Baltis y. Dobin 191 Bamfield v. Tupper 813 Bancroft v. Wardwell 409 Bangs V. Bailey 145 Bangs y. Duckinfield 318 Bangs y. Gray 218 Bangs V. Mcintosh 145, 318 Bangs y. Skidmore 313 Bank Of America y. Woodworth .... 686 Bank of Chenango v. Hyde 737 Bank of Chenango y. Osgood 829 Bank of Chillicothe v. Dodge.. . 377, 395 Bank of Commerce y. Union Bank. . . 395 396, 686 Bank of Commonwealth y. Van Vleck 894 Bank of Genesee y. Patchin Bank. . . 459 Bank of Hartford Co. y. Waterman. . 787 Bank of Lansingburgh y. Crary 379 Bank of Portland v. Brown 987 Bank of Po'keep.sie y. Ibbotson. 827, 839 Bank of Montgomery y. Reese 349 Bank of Monroe y. Widner 844 Bank of the State of Georgia v. Lewin 186 Bank of Salina y. Alyord 161 Bank of Silver Creek v. Talcott 290 Bank of U. S. v. Owens 716 Bank of U. S. v. Russell 687 Bank of Utica y. Mersereau 938 Bank of Utica v. Wagar 167, 188 Banks v. MoClellan 149 Banks v. Van Antwerp 161 Banta v. Savage 438 Barber v. Cary 391 Barber v. Kerr 630 Barber v. Lyon 53 Barbery. Nye 533 Barber y. Pott 397 Barber v. Rose 657, 761, 765 Barclay's Appeal 831 Barclay y. Gooch 381 Barger v. Durvin 815 XVIU TABLE OF CASES. PAGE. Bard v. Poole 186 Barden v . Briecoe 266 Barhydt v. Ellis 197 Barhyte v. Hughes 774, 775 Barker v. Binoinger 543, 556 Barker v. Bradley 266 Barker v. Bucklin 263, 265 Barker V. Cassidy 393 Barker v. Clark 629 Barker V. Halifax 382 Barker v. Hibbard ^36 Barker V. Hodgson 733 Barker v. Hoff 416 Barker v. Matbews 543, 550, 558 Barker v. Miller 543, 557 Barley v. Walford 436 Barkley v Wilcox 535 Barlow v. Myres 263 Barnard v. Campbell. . 34, 35, 36, 56, 59 Barnard v. Kellogg 90, 91, 95 Barnard v. Monnot 863 Barnard v. Poor 588 Barnard v. Tales 90 Barns v. Graham 897 Barnes v. Hathaway 673 Barnes v. Hathorn 446 Barnes v. Harris 223 Barnes v. Johnson 391 Barnes v. Quigley 350 Barnes v. Roberts 362 Barnes v. Willett 443 Barnett v. Chrystal Palace Co. . 579, 583 Barnett v. Selling 636, 641 Barney v. Brown 54 Barney v. Dewey 103 Barr v. Armstrong 327 Barrett v. Barrett S40 Barrett v. Buxton 677 Barrett v. Deere 883, 913 Barrett v. Third Avenue R. K. Co. . 838 Barrett v. Warren. . . . 576, 634, 635, 642 Barretto v. Snowden 166 Barringer v. N. Y. Central R. R. Co. 590 Barrow v. Armand 346 Barry v. Prune 567, 931 Barry v. Equitable Life Assur. Soc. . 931 Barry v. Ransom 268, 385 Barry v. Rush 838 Barth v. Burt 765 Bartholomew v. Finnemore 73, 664 Bartlett v. Emery 416 Bartlett v. Hoppock 88 Bartlett v. Pentland 912 Bartlett v. Wheeler 353 Bartlett v. Wymau 930 Bartley v. Richtmyer 343 Barton v. Hermann 374 Barton v. Port Jackson, etc., P.R. Co. 716 Bass V. Pierce 543 Bassett v. Cunningham 846 Bassett v. Lederer 658 Bassett v. SpoflFord 33 Bastable v. City of Syracuse 534 Batchelder v. Heagan 588 Batchelor v. Priest 685 Bate V. Payne 381 PAGK. Bateman v. Bluck 456 Bateman v. Piuder 810, 831 Batterbee v. Davis 890 Batterman v. Pierce . . 756, 757, 760, 763 Bates V. Conkling 37 Bates V. Davis 650 Bates V, Seabury 933 Battey v. Button 843, 851 Battle V. Taylor 687 Bathgate v. Raskin 154, 773, 786 Batsford v. Emery 706 Battle V. Rochester Citv Bank 63, 380, 390 Battley v. Faulkner. . " 786 Batturs v. Sellers Ill Bauder v. Bauder 150 Bauendahl v. Horr 33 Baulec v. N. Y. & Harlem R. R. Co. . 603 Baum V. Mullen 333, 334, 333 Baxter v. Nurse 354 Baxter v. Portsmouth 673 Baxter v. Second Ave. R. R. Co 593 Bay V. Gunn 664, 666 Bayley v. Homan 873 Bay ley v. Merrell 633 Bayliss v. Cockcroft 173 Bayliss v. Street 807 Bazeley v. Porder 328 Beach v. Endress 833 Beach v. Purman 550 Beach v. Gray 409 Beach v. Parmenter 608 Beach v. Raritan, etc., R. R. Co 560 Beach v. Raymond 365 Beadle v. Munson 165 Beadleston v. Sprague 463 Beale v. Thompson 723 Beales v. Benjamin 167 Beals V. Guernsey 147, 296 Bean v. Farnam 838 Bean v. Macomber 867 Beard v. City of Brooklyn 937 Beardsley v. Sherman 330 Beaty v. Swarthout 658 Beaumont v. Brengeri 130 Beaumont v. Reeve 383, 707 Beavers v. Lane 20, 35, 59, 60 Becar v. Flues 257 Beck V. Dyson 613 Becker v. Boon 900 Beck with V. Griswold 454, 744, 748 Bedam v. Clerkson 853 Bedford v. Terhune 410 Bedinger v. Wharton 73 Beebe V. Bull 737 Beebe v. Johnson 723 Beebe V. Mead 556 Beebe v. Robert 8, 85, 95 Beecher v. Bennett 633 Beecker v. Vrooman 757 Beck V. Carter 448 Beer v. London, etc.. Hotel Co , 345 Beers v. Reynolds 143 Beirue v. Dord 89, 93, 94, 95 Belknap v. Mclntyre 773 Bell V. Crawford 808 Bell V. Day 166 TABLE OF CASES. XIX PAGB. Bell V. Holford 294 Bell V. Lamphrey 790 Bell V. Leggett 713 Bell V. Lent 177 Bell V. McElwain 209 Bell V. Offut 347 Bell V. People 338 Bellv. Shibley 208, 230 Bellasis v. Hester 784 Bellinger V. Craigue. . 369, 653, 653, 745 749, 753 Bellinger v. Kitts 891 Bellows V. Sackett 479 Belshaw v. Bush 870, 871 Behlien v. Fowls 234 Bement V. Smith 133, 345 Bemis v. Leonard 783 Bench v. Sheldon 638 Bendernagle v. Cocks 747 Bendit v. Annesley 907 Benedict v. Field 130, 981 Benedict v. Howard 564 Benedict v. Huntington 296 Benedict v. Martin 600 Benedict v. Schaettler 106 Benedict v. Stuart 359 Benjamin v. Bank of England 559 Benjamin v. Saratoga Co. Mut. Ins. Co. 205 Benjamin v. Storr 447 Bennett v. Buchan 83, 97 Bennett v. Clough 696 Bennett v. Cook 149, 788, 790, 908 Bennett v. Ellison 290 Bennett v. Ford 610 Bennett v. Francis 902 Bennett v. Hull 126 Bennett v. Judson 427, 952 Bennett v. Lycoming Co. Mut. Ins. Co . . 301 Bennett v. North British, etc., Ins. Co 196 Bennett v. Pierce 838 Bennett v. Pratt 244 Bennett v. Scutt 278 Bennett v. Smith 299 Benson v. Paine 725 Bentley v. Griffin 335 Bentley v. Phelps 431 Benton v. Pratt 424, 429 Bents V. Armstrong 534 Bergin v. Wemple 353 Berlin v. Mapes 168 Bernard v. Lupping 356 Bernasconi v. Anderson 415 Berrel v. Davis. -. 913 Berrian v. Mayor of New York 77 Berrien v. Wright 188, 790 Berry v. Doremua 257 Berry v. Mayhew 393 Bertholf v. O'Reilly. . 645, 648, 649, 705 Bertrand v. Taylor 564 Besley r. Palmer. 738 Besshears v. Rowe , 366 Best V. Bander 369, 716 Bes,t V. Strong 403 Betts V. Betts 358 Butts V. Brown PAGE. 373 Betts V. Hoyt 656 Betts V. Lee 667 BeUford v. Snell 52 Bevans v. Rees 890 Bickerdike v. Bollman Bierce v. Red Bluflf Hotel Co. . , 918 109 Biery v. Haines 688 Biffin V. Bigwell 831 Bigelow V. Benedict , 11, 13 Bigelow V. Davis 406 Bigelow V. Finch ,.... 937 Bigelow V. Grannis 666 Bigelow V. Law 703 Bigelow V. Reed 694 Biggs V. Hansen 848 Biggs V. Perkins 93 Bigler v. Nat. Bank of Newbnrgh. . . 234 Bigler v. N. Y. Cent. Ins. Co 205 Bilbrough v. Metropolis Ins. Co. ... . 204 Billings V. Vanderbeck. . . . 349, 879. 898 Billingtou v. Wagoner 175, 178, 184 Billiter v. Young 573 Binck V. Wood 740, 829 Binuington v. Wallis 707 Bird v. Bird 852 Bird V. Brown 106 Birdseye v. Frost 84 Birkbeck v. Ackroyd 309 Birkbeck v. Stafford 371 Birkhead v. Brown 741, 753, 753 Birkmvr v. Darnell 368 Bischoff V. Wethered 234 Bishop V. Banks 446, 449, 452 Bishop V. Bishop 228, 237, 660 Bishop V. Sniffen 146 Bissell V. Balcom 131 Bissell V. Hopkins 146 Bissell V. Kellogg 939 Bissell V. Kip 441 Black V. Smith 890 Black V. White 376 Blackburn v. Grmsby 873 Blackenny v. Goode 355 Blackley v. Sheldon 557 Blackman v. Nearing 783 Blackman v. Pierce 109 Blackman v. Simmons 613 Blackmere v. Shelby 10 Black River Ins. Co. v. N. Y. Trust and Loan Co 633 Blades V. Free 331 Blades v. Higgs 488 Blair v. Bank of Tenn 690 Blair v. Bartlett. .653, 653, 743, 749, 753 Blair v. Wait 873, 940 Blairv. Wilson 917 Blair, etc.. Land Co. V. Walker 355 Blake v. Ferris 599 Blakeman v. Mackay 77, 80 Bl an chard v. Blanchard 821 Blan chard v. Ely 756, 759, 766 Blanchard v. Lilley 855 Blanchard v. Weeks 256, 357 Blanding v. Sargent 356 Blankenahip v. Berry 579 XX TABLE OF CASES. PAGE. Blasdale v. Babcock 103 Blattmaclier v. Saal 7SJ4 Bleaden v. Charles 381 Bledsoe v. Nixon. 149 Blemerhasset v. Pierson 905 Blinn v. Chester 914 Bliss V. Cottle 65 Bliss V. Greeley . 516 Bliss V. Kennedy 513 Bliss V. Matteson 704 Bliss V. Shwarts 878 Blivin V. Bleakley 948 Blodgett V. Wadham 170 Blood V. Shine 858 Bloodgoodv. Bruen.. 803, 805, 810, 815 Bloodgood V. Ingoldsby 374, 761 Bloom V. Burdick 435 Bloomer v. Moves 775 Bloomer v. Sherman 844, 849 Blossom T. Barrett 634 Blossom V. Lycoming Fire Ins. Co.. . 303 Blount V. Windley 917 Blow V. Russell 890 Blowers v. Sturte vant 339 Bloxam v. Sanders 559 Bloxsome v. Williams 706 Blum V. Marks 106 Board of Supervisors v. Budlong. . . . 339 Bockes V. Hathorn 910 Bocko ver v. Harris 773 Bocock V. Pavey 935 Bodell V. Gibson 818 Bodenham v. Purchas 909 Bodine v. Exchange Ins. Co 199 Bodine v. Killeen 306, 314 Bodle V. Chenango Mut. Ins. Co 304 Boehen v. Williamsburgh Ins. Co. . . 199 Bogart V. O'Reagan 64 Bogert V. Haight 473, 477, 484 Bogert V. Vermilya 790 Bog Lead Co. v. Montague 116 Bohm V. Goldstein 703 Bolton V. Colder 608 Bolton V. Richard 909 Bouekins v. Bevan 83 Bonesteel v. Plack 30 Bonesteel v. Vanderbilt 401 Bonesteel v. Van Etten 253, 783 Bonn V. Hoxie 19 Bonnel v. Qriswold 463 Bonner v. Liddell 853 Bonney v. Bonney 837 Bonney v. Seely 380 Bonynge v. Field , 372 Bouynge v. Waterbury 373 Boughton V. Standish 67 Boulware v. Robinson 381 Boody v. Rutland, etc., E. R. Co 348 Bool V. Mix 665, 667 Boom V. City of Utica 451 Boormau v. Jenkins 74, 95 Boomer v. Koou 653, 655 Booth V. Boston & Albany R. R. Co. . 603 604 Booth V. Elghmie 367 Booth V. Powers 655 PAGE. Booth V. Smith 871, 872 Booth V. Spuyten Day vU Rolling Mill Co 134, 349, 720 Bordeaux v. Erie Ry. Co 599 Bordewell v. Colie 102 Borrowe v. Milbank Borthwick v. Carruthers 666 Borst V . Corey 937 Bosanquet v. Wray 925 Bossange v. Ross 173 Boston Mills v. EuU 758, 774 Boston Water Power Co. v. Gray. . . . 868 Boatwick v. Dry Goods Bank 35 Both well V. Brown 403 Bouchaud v. Dias 753 Boughton V. Flint 783 Boughton v. Seamans 865 Boulton V. Jones 7 Boults V. Mitchell 485 Bourne v. Ashley 563 Boutwell V. O'Keefe 117, 133 Bovee v. King 55 1 Bowdell V. Parsons 732 Bo we V. Gano , 795 Bowen v. Bell 285 Bowen v. Bradley 138 Bowen v. Fenner 574 Bowery Nat. Bank v. Duncan 377 Bowery Nat. Bank v. Mayor 375, 907 Bowie V. Kansas City 396 Bowlby V. Bell 381 Bowman v. Agricultural Ins. Co 199 Bowman v. Clemmer 91 Bowman v. City of New Orleans . 512 Bowman v. Cornell 433 Bowman v. Eaton 583 Bowman v. Tallman 360 Bowman v. Teal ^ . . . . 549 Bowman v. Troy & Boston R. R. Co. 593 Bowne v. Joy 663 Bowry v. Bennett 409 Boyce v. Brockway 572 Boyce v. Higgins 461 Boyce v. Washburn 138 Boyd v. Brotherson 686, 690 Boyd T. Hitchcock 872, 874, 914 Boyden v. Moore 890 Boyerv. Pack 149, 394 Boyle V. Roche 583 Boynton v. Page 706 Boynton v. Veazie 54 Brabin v. Hyde 118, 123 Brackett v. Barney 177 Brackett v. Wymah 712 Bracy v. Kibbe 343 Bradford<,y4^rey 392 Bradford v?Fox 918 Bradford v. Manly 83 Bradford v. Spyker 811 Bradley v. James 820 Bradley v. Copley 555, 559 Bradley v. Wheeler 17 Bradner v. Howard 938 Bradshaw v. Beard 386 Bradt v. City of Albany. 474 Brady v. Durbrow 908 TABLE OF CASES. XXI PAGE. Brady V. N. W. Ins. Co 206 Brady v. Mayor, etc., of Brooklyn. . . 838 Brady v. Rensselaer R. B. Go 593 Brady v. Sackrider 269 Brady v. Weeks 449 Brady v. Wilcoxon 143 Bragg V. Morrill 96 Bragdon v. Somerby 398 Brainerd v. Dunning 436, 546 Brainard v. Jones 153 BraitUwaite v. Skinner 431 Braman v. Hess 170 Brampton v. Beddoes. 703 Branct v. Burnlay 913 Brand v. Focht HI Brandon v. Newington 893 Branham v. San Jose 397 Brazill v. Inham 658, 768, 865, 866 Brazill v. Moran 383 Breckenridge v. McAfee 33 Brecknock, etc., Co. v. Pritchard. . . . 721 Breed v. Cook 139, 919 Breed v. Hurd 886 Breen v. Armstrong 379 Breidert v. Vincent 943 Brendtson v. Strang 107 Brent v. Kimball 544 Bretton v. Prat 853 Brewer v. Fleming 891 Brewer v. Salisbury 87 Brewer v. Sparrow 585 Brewster v. Baker 30, 942 Brewster V. Countryman 102 Brewster v. Kitchell 731 Brewster v. Silence. . . 343, 348, 344, 368 Brewster v. Silliman 643 Brewster v. Striker 943 Brewster v. Wakefield 137 Breyfagle v. Beckley 146 Brice v. Hamilton 925 Bridenbecker v. Lowell 936, 937 Bridge v. Main 83 Bridgewater, etc., Plankroad Co. v. Bobbins 465 Briggs V. N. A. Mercantile Ins. Co. . . 307 Briggs V. Partridge 375 Briggs V. Parkinson 89 Briggs V. Smith 866, 867, 869 Briggs V. Vanderbilt 401 Brightman v. Eddy 564 Brightman v. Inbabitants of Bristol. .. 457 Brigham v. Tillingliast 290, 394 Brill V. Flagler 453 Brink V. Dolsen 406, 407 Brink v. Hanover Fire Ins. Co. . 198, 203 304 Brinkerhoff v. Wemple 405 Brinkley v. Brinkley 399 Brisbane v. Cole 410 Bristol V. Burt 575 Bristol V. Tracy 63 Brit. Am. Ins. Co. v. Joseph 306 Britton \. Angier 266 Britton V. Cole 557 Britton v. Frink 400 Britton V. Turner 763 PAGE. Brizsee v. Maybee 147 Broad v. Jolllffe 697 Broadbent v. Ramsbottom 513 Broadhead v. Lycoming Ins Co 196 Broadwell v. OJetman . 349, 251, 253, 254 Brock V. Copeland ... 615 Brock V. Smith 470 Brockway v. Burnap 641, 643 Brockway v. Kinney Broder v. Gaillard 451 Bronk v. Becker 502 Brooklyn Bank v. De Grauw. 873, 877, 888 Brookman v. Metcalf 208, 211 Brookmire v. Monaghan 646 Brooks V. Avery 172, 178 Brooks V. Berryhill 981 Brooks V. Byam 11 Brooks V. Curtis 501 Brooks V. Galster 329, 231 Brooks V. Glencross 463 Brooks V. McDonnell 87 Brooks V. Moore 833, 877 Brooks V. Robinson 154 Brooks V. Schwerin 810 Brooks V. Stuart 830 Brooks V. White 914 Broome v. Taylor 330, 821, 657 Bromley v. Smith 224 Bronsonv. Fitzhugh 838, 830 Bronson v. Gleason 43 Bronson v. Wiman 65, 136, 133, 348 634, 639, 903 Broughton v. Fuller. „ 690 Broughton v. West 689 Brouwer v. Appleby 210 Brewer v. Jones 151 Brower v. Lewis 80, 95 Brower v. Peabody 34, 61 Brown v. Bateman 10 Brown v. Bigelow 78, 81 Brown v. Boorman 422 Brown v. Bo wen 523 Brown v. Bradshaw 369 Brown v. Brown.. . 264, 366, 695, 703, 854 Brown v. Burhans 85 Brown v. Bums 928 Brown v. Bush 513 Brown v. Carpenter 452 Brown v. Cattaraugus Co. Mut. Ins. Co 195, 205 Brown v. Cayuga & Susquehanna B. R. Co 454 Brown v. Collins 610 Brown v. Conger 286 Brown v. Crooke 312 Brown v. Curran 263 Brown v. Dysinger 882, 895 Brown v. Fenner. 554 Brown v. Feeter 549 Brown v. Gravel Road Co 397 Brown v. Hall 130 Brown v. Hankerson 856, 863 Brown v. Haynes 33 Brown v. lUius 460, 515 Brown v. Jones 687 Brown v. Knapp 139, 140 XXll TABLE OF CASES. PAGE. Brown v. Mayor 743 Brown v. McCune 664, 670 Brown v. Montgomery 57 Brown v. Mudgett 329 Brown V. Murphee 89 Brown v. Ryckman 652 Brown v. Scofield 479 Brown V. Tracy 439 Brown v. Wade 54 Brown v. Ware 543 Brown v. Williams 838 Brown v. Wilmerding 295 Browne v. Kennedy 509 Browne v. Vredenburgh 159 Brownell v. Flagler 550, 590 Brownell v. Talcott 930 Brownell v. Winue 170, 688 Browning v. Hart 291 Browning v. Home Ins. Co. . , 195 Browning v. Beane. ... . 399 Bruce v. Burr 130, 266 Bruce v. Lee 713 Bruce v. Pearson 101 Bruce v. Westervelt 632 Bruce v. Westcott 689, 690 Brunnett v. Clark 356 Brush V. Barrett 783 Brussell V. Williams 874 Bryant v. Crosby 76 Bryant v. Pouglikeepsie Mut. Ins. Co. 197 Bryant v. Richardson 336 Bryar v. Hillcocks 806 Brydeu v. Bryden 666 Buchanan v. Exchange Fire Ins. Co. 196 305 Buck V. Burk 43 Buck V. Wadsworth 860 Buckingham v. Hanna 934 Buckingham v. Oliver 878 Buckingham v. Payne 606 Buckley v. Buckley 337, 338 Buckley v. Artcher 56, 57 Buckley v. Furniss 108 Buckley v. Howard 337 Buckley v. Leonard 614 Buckley v. Wells 308, 310 Bucklin v. Chapin 808 Buckman v. Bergholz 150 Buckmaster v. Russell 805 Buffalo & N. Y. City R. R. Co. v. Dudley 216, 731 Bull V. Boughton 391 Bull V. Bull 876 Bull V. Hopkins 739 Bull V. Parker 890 Bullv.Rice 171 Bullard v. Raynor 179, 416 Bullard v. Saratoga Victory Manuf. Co 510, 518 Bullis V, Montgomery 436 Bullock T. Babcock 668 Bullock V. Boyd 178 Bullock V. Dommitt 730 Bullock V. Koon 848 Balkley v. Dayton 836 Bulsifer v. Shepard 899 PAGE. Bulson V. Lohnes 851 Bulwer v. Home 903 Bumgardner v. Taylor 806 Bumstead v. Dividend Mut. Ins. Co. 303 Bnnge v. Koop 833, 878 Banker v. Altbeam 809 Bunn V. Delaware, etc. K. R. Co 591 Burch V. Spencer 98 Burchfleld v. Moore 686 Burdick v. Green .... 377, 879, 918, 931 Burdick v. Post 394 Burditt V, Barry 431 Burge V. Stroberg. 79 Burghart v. Gardner 360 Burghart V. Hall 671 Burke v. De Castro 590 Burke v. Savage 554 Burkitt V. Harper , 318 Burlingame v. Burlingame, 353, 379, 380 341 Burnes v. Pennell 435 Burnside v. Twitchel] 234 Bumside v. Whitney 837 Burr V. Beers 263 Burr v. Burr ,,.., 831 Burr V. Veeder 394 Burrall v. DeGrot 183 Burrall v. Jaoot 14, 135 Burroughs v. Bayne 573 Burroughs v. Bloomer 791 Burrows v. Cook 167, 937 Burrows v. March Qas Co 591 Burrows v. Whitaker 16, 18, 120 Burt v. Dewey , , 98, 101 Burt V. Dutcher 146 Burt T. MnBain 333 Burt V. Place 403, 552 Burt V. Saxton 680 Burt V. Smith 943 Burt V. Sternburgh 752 Burtis V. Thompson 728, 729, 732 Burton v. Baker 170 Burton v. DuflSeld 283 Burton v. Hughes 554 Burton v. Stewart 757 Burton v. Tannerhill 554 Burwell v. Knight , 754 Busford V. Pearson 280 Bush V. Barnard 809 Bush V. Brainard 593 Bush V. Brown 930 Bush V. Cole 401 Bush V. Davis ' 858 Bush V. Homes 115 Bush V. Lyon []"[ 559 Bush V. Stevens 243 Bushhell v. Wheeler 12O Busk V. Davis ] 19 Buskirk v. Cleveland 123 Buster v. Newkirk 471 Butler V. Butler ] 33 Butler V. Haight, [ 129 Butler V. Kent " 533 Butler V. Mayor of New York. . 866, 868 Butler V. Miller 735 Butler V. Nehiing 147 TABLE OF CASES. xxm PAGE. Butlerv. Nlles 773 Butler V. Price 815 Butler V. Thompson 113 Butler V. Thomson . . . . , 7 Butler V. Wright 747 Butt V. Peck 293 Butterfield v. Ashley 437 Butterfield v. Klaber 453 Butterton v. Adams 846 Butterworth v. O'Brien 181 Butterworth v. Peck 918 Butts V. Perkins 818 Butz V. Ihric 523 Buxton V. Rust Ill Byers v. Van Deusen, 842, 843, 855, 857 Byrne v. Grayson 178 Byrne v. Jansen 85 Byrnes v. City of Cohoes 534 Cable V. Cooper 441 Caballero V. Home Ins. Co 206 Cadman v. Lubbock. 890 Cadwell v. Colgate 938, 940 Cahen v. Piatt 50 Gaboon v. Bank of Utica 888 Caine v. Coulton 908 Calahan v. Babcock 107, 109 Calder v. Dobell 245 Caldwell v. Cowan 555 Caldwell V. Bartlett 39, 59, 60, 63 Caldwell V. Fariell 561 Calkins v. Allerton 743 Calkins v. Barger 588 Calkins v. Chandler 264, 366 Calkins v. Falk 110, 345 Calkins v. Uriswold 6, 391, 879 Calkins v. Long 330 Calkins v. Packer 658 Callv. Scott 899 Callanan v. Brown 76 Callander v. How 909 Callander v. Howard 877 Calloway v. Laydon 648 Cameron v. Chappelle 173 Cameron v. Seaman 462 Camidge v. AUenby 916 Camp V. Root 863 Camp V. Simon 886 Campbell v. Butts. . 753 Campbell v. Campbell 253, 279 Campbell v. Cothran 371 Campbell v. Flemming 67, 625 Campbell v. Genet 773 Campbell v. Hall 935 Campbell v. International Life Ass. Co. 705 Campbell v. Mesier 385 Campbell v. McHarg 176 Campbell v. Nichols 173 Campbell v. Perkins 670 Campbell v. Sloan 168 Campbell v. Stakes 560, 668 Campbell v. Upton 838 Campbell v. Western 851 Can V. Bead 911 Canal Bank v. Bank of Albany, 394, 395 PAGE. Canastota and Morrisville Plank-road Co. V. Parkhill 899 Cauover v. Cooper 341 Cantillon v. Graves 438 Cantine v. Clark 547 Canvin v. Mayor of Nashville 398 Cape V. Gilbert 848 Cape Girardeau Co. v. Harbison 810 Capel V. Thornton 912 Card V. Case 613, 614 Garden v. McNeil 180, 372, 919 Cargey v. Aitcheson 858 Carhart v. Auburn Gas-light Co. 450, 519 Cariss v, Tattersall 090 Carley v. Wilkins... 75, 76, 77, 86, 101 Carlise v. Wallace 3 Carolus v. Mayor, etc., of N. Y 606 Carpenter v. GriflBn 3 Carpenter v. Hale 573 Carpenter v. Halsey 503 Carpentier v. Minturn 629 Carpenter v. Manhattan Life Ins Co. 763 775. 776 Carpenter v. Stevens 720 Carpenter v. Stillwell 944 Carpenter v. Underwood 394 Carpenter v. Waller 354 Carpenter v. Wells 790 Carpentier v. Willet 431 Carr v. Edwards 390 Carr v King 331 Carr V.Miner 893, 901 Carrington v. Crocker 823 Carroll V. Charter Oak Ins. Co.. 199, 300 Carroll v. Mix 583 Carroll V. N.Y.&N.H. R. R. Co... 586 Carroll v. Staten Island R. R. Co 586 Carroll v. Wiggins 32 Carruth v. Church 443 Carson v. Ingalls 174 Carter v. Black 77 Carter v. Jarvis 481 Carter v. Kingman.. , 573 Cartwright v. Green. . , 267 Carville v. Crane 369 Gary v. Bancroft 889 Cary v. Barrett 835 Cary v. Gruman 65, 350 Cary V. Hotaling 56, 57, 65, 641 Casabeer V. Mowry 458 Case V. Boughton. . 908 Case V. Ferris 857 Case V. Hall 101 Case V. Roberts 405 Cash V. Hinkle 47 Cashen v. School District 367 Cashman v. Bean 747 Cashman v. Henry. . . 263, 307, 312, 813 319, 323 Cashman v. Martin 886, 887 Casoni v. Jerome 683, 684 Cass V. N. Y. & N. H. R. R 577, 581 Cassard v. Hinman 11, 13, 56 Casebeer v. Clabfleisch 178 Cassell V. Backrack 18 Cassidy v. Begoden 104 XXIV TABLE OF CASES. PAGE. Castle V. Beardsley 340 Castle V. Burditt 784 Castle V. Noyes 743, 745 Castellanos v. Jones 551 Castello V. Qoldbeck 857 Caswell V. Allen 464 Catlin V. Grote 940 Catlin V. Gunther 173, 188 Catlin V. Martin 339, 330 Catlin V. Tobias 40 Catlin V. Valentine 449 Caton V. Caton 113, 386 Catskill Bank v. Messenger 837, 839 Catrill V. Stevens 366 Caughey v. Smith 437 Caujolle V. Ferrie 399 Caulkins v. Fry 675 Caulkins v. Hellman 115 Causidere v. Beers 393 Caverly v. McOwen 361 Cawthorne v. Cordrey 351 Cayaga R. R. Co. v. Niles 348, 378 Cazeaux v. Mali 436 Cecil V. Salisbury 666 Center v Finney 548, 593 Central Bank v . Empire Stone Dress- ing Co 716 Central Bank v. Pindar 67 Central Bank v. St. John 167 Central Bank of Brooklyn v. Lang. . 311 Chad wick v. Collins 357 Chaflfee v. Cattaraugus Co. Mut. Ins. Co 195 Chaffee v. Fort 37 Chaffee v. Thomas 383 Chamberlain v. Chamberlain 399 Chamberlain v. Cuyler 795 Chamberlain v. Farr 346 Chamberlain v. Reed 491, 495, 503 Chamberlain v. Townsend 183 Chamberlyn v. Delarive 981 Chambers v. Lewis 398 Chambers v. Winn 885 Chamboret v. Oagney 775, 776 Champion v. Joslyn 413 Champlain v. People 930 Champlin v. Laytin 629 Champlin v. Parish 383 Champlin v. Railway Passenger Ass. Co 20 Champlin v, Rowley 45, 46 Champney v. Coope 910 Chandler v. Broughton 548 Chandler v. Deatou 338 Chandler v. Edson 567 Chandler v. Egan 473 Chandler v. Herrick 839 Chandler v. Sanger 398, 933 Channon v. Lusk 564 Chapin v. Merrill 368 Chapin v. Shafer 663 Chaplin v. Ha wes 611 Chapman v. Andrews 633, 639 Chapman v. Cole 563 Chapman v. Erie Ry. Co 602 Chapman v. Gates 466 PAGE. Chapman v. Kent 14 Chapman v. Lathrop 15 Chapman v. Murch 76, 86 Chapman v. Robertson 185 Chapman v. Rose 947 Chapman v. Shepard 16 Chapman v. Spiller 897 Chappel V. Brockway 700 Chappell V. Spencer Chappie V. Cooper 836 Charles v. Branker 901 Charter v. Stevens 908 Chase v. Corcoran 353 Chase v. Day 369 Chase v. Hamilton Mut. Fire Ins. Co. 193 300 Chase v. People's Fire Ins. Co 196 Chase v. Silverstone 515 Chase v. Wingate 337 Chassemore v. Richards. . . 507, 513, 514 Chatfield v. Frost 84 Chatfield v. Wilson 616 Cheminant v. Thornton 887 Chaney v. White 166 Chesbrough v. Wright 315 Chester v. Bank of Kingston 393 Chester v. Comstock 437 Chicago V. Hesing 594 Chicago R. R. Co. v. Ames. 148 Cliicago, etc.,R. R. Co. v. Becker. . . . 594 Chicago, etc., R. R. Co. v. Doyle 601 Chileott V. Trimble 335, 383 Child V. Chappell 949 Childs V. Barnum 343, 244, 708 Chipman v. Palmer 454, 458 Chippendale v. Thurston 731 Chisman v. Count 415 Choice V. Mosely 731 Christie v. Gage 949 Christie v. Simpson 383 Church v. Brown 343, 371 Church V. Cole 333 Church V. Kidd 277 Church V. Maloy 176 Churchill v. Bennett 653 Churchill v. Hunt 183 Churchill v. Perkins 696 Churchman v. Martin 165 Churchward v. Studdy 471 City of Brooklyn v. Brooklin City R. R. Co 680 City of Brooklyn v. Tovnbee 467 City of Buffalo v. Hallbway 599, 795 City of Detroit v. Martin 398 City of Wyandotte v. White 593 City Nat. Bank of Poughkeepsie v. Phelps 243 City Savings Bank v. Bid well 187 Claflin V. Meyer 577 Claflin V. Taussig 131 Clapp V. Walter 147 Clark V. Adam 554 Clark V. Barlow 139 Clark V. Burdett 924 Clark V. Conroe 515 Clark V. Crandall 133, 680 TABLE OF CASES. XXV Clark V. Dales 133, 680 aark V. Fitch 343 Clarkv.Foot 587, 588 Clark y. Hallock 435 Clark V. Hooper 815 Clark V. Hoyle 838 Clark V. Kirwan 581 Clark V. Loomjs. , 173 Clark V. Mayor of Syracuse 446 Clark V. Metropolitan Bank 464 Clark V. Neuf ville 68 Clark V. Pease '. 930 Clark V. Pinney 145, 898 Clark V. Rankin 84, 624 Clark V. Sisson 173, 174, 176, 184 Clark T. Skinner 632 , 633 , 637 Clark V. Tucker 115, 118. 123 Clark V. Van Amburgh 806 Clark V. Wells 561 , 574 Clark V. Wilson 573 Clarke v. Dales 128 Classen v. Leopold 776 Classon v. Bailey 113, 114 Clayton v. Wardell 298, 399 Cleace v. Jones 820 Clearwater v. Brill 543, 556 Clement v. Cash 734 Clements v. May 367 Clements v. Yturria 554, 555 ClemeutHon v. Williams 779 Clerk V. Blackstock 689 Cleveland v. Loder 168 Cleveland v. Rogers 223 Cleveland v. Spier 586 Cleveland v. Williams 49 Cleves V. Willoughby 287 Clifford V, Dam 447, 448, 598 Clifford V. Parker 687 Clinton v. Brown 950 Clintoa v. Myers 509, 513, 513, 518 Clinton V. Rowland 336, 343 Clinton v. Townsend 147 Clippinger v. Hapbaugh 703 Close V. Stewart 744, 750 Clough V. Murray 679, 680 Clow V. Borst ; . 870 Clutev. Carr 281 Clute V. Robiaon 733 Clute V. Small 686, 690 Coates V. Stevens 80 Coats V. Darby 546 Cobb V. Dows 393. 394 Cobb V.Hatfield 67 Cobb V. Fisher 484 Cobb V. Titus 170 Cobbett V. Clutton 555, 583 Coburn, Ex parte 485, 487 Cock V. Honychuroh 873 Cock V. Moore 265 Cockle V. Flack , 166 Cockrell v. Aucompte 47 Cocks V. Weeks 798, 808 Cockson V. Ogle 856 Codd V. Rathbone 168 Coddlngton v. Goddard 113 Coddington v, Paleologo 41 I PAGE. Coe V. Hobby 679, 905 Coe V. Mason 799 Cofield V. Clark 54 Coggins V. Bulwinkle 747 Cogill V. Am. Exch. Bank 946 Cohen v. Mutual Life Ins. Co 734 Coitv. Beard 749 Coitv. Houston 897, 898 Coker v. Birge 451 Colby V. Stevens 899 Coldcock v. Reid , 97 Golden v. Eldred 507 Cole v. Blake 890 Cole V. Blunt 849, 850 Cole V. Drew 480 Cole V. Jessup 791 Cole V. Mann 36, 37 Cole V. Savage 178 Cole v. Stone 323 Coleman v. Bean 937 Coleman v. First Nat. Bank 245 Coleman v. Garrigues 275 Coleman v. Mead 362, 363, 364 Coleman v. Wade 865 Coles V. Coles 405 Colgrave v. Dias Santos. 580 Coller V. Shepard 585 Colley V. Streeton 759 Collier v. Coates 280, 390 Collier v. Farley 646 Collins V. Bennett 742, 753 Collins V. Blantern 713 Collins V. Carnegie 357 Collins V. N. Y. Cent. & H. R. R. E. Co 605 Collins V. Phoenix Ins. Co 193 Collins V Price 729 Collins V. Ralli 34, 62, 556 Collins V. Thayer 785 Collins V. Vanderbilt 847, 867 Collins V. Westbury . , 933 CoUinsou V. Margesson 804 Collis V. Bowen 644 Collis V. Stock 801 Collyer v. Willcock 817 Colt V. Sixth Ave, R. R. Co 597 Colton. Ex parte 335 Colton V. Dunham 159 Columbia Co. v. King 163 Columbia Turnpike Co. v.Woodworth. 465 Colville V. Besly 903 Colvin V. Holbrook 406 Col will V. Reeves 544 Combs V. Bateman 114, 133, 139 Comer v. Cunningham 20, 25, 33 Comfort V. Kiersted 22, 54 Commercial Bank of Penn. v. Union Bankof N. Y 918 Commercial Bank V. Rochester. . 383, 933 Commercial Ins. Co. v. Robinson .... 207 Commercial Mut. Ins. Co. v. Brett.. 803 Comrnipsioners of Excise v. Keller . . 333 464 Commonwealth v. Collins 345 Commonwealth v. Mason 399 Commonwealth v. Munsey 333 XXVI TABLE OF CASES. PAGE. Comstock V. DroUan 380 Comstock V. Hier 574 Comstock V. Hutchinson 350 Comstock V. Tupper 402 Concord v. Delaney 391 Conderman v. Smith 10 Conderman v. Trenchard 714 Condit V. Baldwin 166 Cone V. Delaware, L. & W. R. R. Co. 602 604 Cone V. Niagara Fire Ins. Co. . . 191, 192 Conger v. Dean 838 Conger v. Tradeamans' Bank. . . 167, 188 Conger V. Chamberlain 83 Congreve v. Morgan 448, 599 Congreve v. Smith 448 Conhocton Stone Road v. Buffalo, etc., R. R. Co 455 Conklin v. Thompson 611, 668 Conkling v. King 920 Conley v. Palmer 463 Coulin V. Cantrell 322, 823 Counah v. Hale 575, 579 Connah v. Sedgwick 294 Connecticut v. Jackson 148, 154 Connell v. Mulligan 889 Conner v. Routh 690 Conners v. Holland 146 Connop V. Levy 425 ConnoBs v. Meir 653 Conor V. Dempsey 774 Couover v. Hobart 179 Conroe v. Birdsall 664 Contant v. Chapman 431 Couturier v. Hastie 9 Conway v. Belfast Ry. Co 601, 604 Conway v. Bush 18 Conway v. Conway 909 Conway v. Reed. 338, 668 Conyers v. Ennis '109 Cook V. Basley 392 Cook V. Bradley 338 Cook V. Champlain, etc., Co 230 Cook V.Clark 151, 170 Cook V. Daggett 253 Cook V. Gregg 506 Cook V. Harper 546 Cook V. Howard 549 Cook V. Lister 871 Cook V. Litchfield 662 Cook V. Moseley 77, 79 Cook V. Nathan 397 Cook V. Patterson 554 Cooke V. ^tna Fire Ins. Co 194 Cooke V. Clayworth 675 Cooke V. Meeker 140 Cooke V. Millard 55, 114, 116, 127 Cooke V. Nathan 629 Cooley V. Belts 407 Coome V. Green 906 Coombs V. New Bedford Cordage Co. 60-3 Coon V. Brook 312 Coon V. Congden 550 Coon V. Knap 876 Coon V. Snyder 622 Cooper V. Dedrick 243 PAGE. Cooper V. First Presb. Church, etc. . . 470 Cooper V. Lloyd 887 Cooper V. Martin 837 Cooper V. Newman. 561 Cooper V. Shaver 315 Cooper V. Stower 486 Cope V. Gilbert 850 Cope V. Rowlands 716 Cope V. Wheeler. 176 Copley V. Rose 546 Copper, etc., Co. y. Spencer 281 Coray v. Matthewson 69 Cord went v. Hunt 905 Corcoran v. Holbrook 603 Cornell V. Barnes. ... 4.31,433,444, 551 Corey v. White 893 Cormack v. Molburg 947 Cormier v. Batty 576, 577 Cornell v. Cook 558 Cornell v. Hasten 826 Cornell v. Moultou 783 Cornell v. Town of Guilford 480 Corn Exchange Ins. Co. v. Babcock. . 801 314, 832 Gornfoot v. Fowke 425 Cornforth v. Rivett 767 Coruforth v. Smithard 800 Corning v. Colt 45, 48, 101 Corning v. Troy Iron, etc.. Factory. 940 Cornish v. Abington 939, 943 Cornwall v. Mills 587 Cornwall v. Haight 133, 134, 348, 866 Corrigan v. Sheffield 43, 46, 135 Corsen v. Oliver 546 Corsi V. Maretzeck 369 Cort V. Ambergate, etc., R. R 739 Corwin v. N. Y. , etc., R. R. Co. .506, 598 Cory V. Silcox 458 Cosgrove v. N. Y. Cent. R. R. Co., 590, 591 Cosgrove v. Ogden 595, 596 Coster V. Dilworth 166 Costigan v. Hawkins 67, 99 Costigau V. Newland 406 Cotheal v. Brouwer 462 Colton V. Godwin 893 Cotton V. Maurer 658 Cottrill V. Stevens 134 Couch V. Mills 839 Couch V. Rochester German Fire Ins. Co 196 Cough try v. Globe Woolen Co 590 Coaling v. Coxe 420 Coulter V. Am. Merchant's Union Ex. Co 593 Countryman v. Lighthill 453 Courtney v. N. Y. Citj Ins. Co 304 Courtney v. Earl 433 Court Wright v. Stewart 126, 373 Cousland v. Davis 558, 563 Couston V. Chapman 50 Covell v. Hart 373 Co veil V. Hill 33, 30J 34, 59 Covell V. Hitchcock 108 Coventry v. Barton 696 Coventry v, Gladstone 108 Covert V. Hughes 333 TABLE OF OASES. XXVH PAGB. Covington Drawbridge Co. v. Shep- hard 396 Cowell V. Thayer 530 Co wden v. Qottgetreu 269 Cowdrey v. Carpenter 713 Cowen V. Simpsou 628 Co wles V. Balzer 506 Cowles V. Kidder 523 Cowperthwaite v. Slieflaeld 927 Cox V. Glue 476 Cox V. Jagger 853, 862 Cozine v. Walter 444 Crade v. lugraham 833 Cragg V. Bowman 330 Craig V. Burnett 431 Craig V. Ward 427, 953 Craighton v. Comstock 47 Grain v. Beach 747 Cram v. Dresser 759 Cram v. Hendricks 173 Cram v. Union Bank 6 Cramer v. Lepper 149, 179 Crandall v, Clark 133 Crane v, Bingham 332 Crane v. Dygert 153 Crane v. Hardman 148 Crane v. Hendricks 170 Crane v. Hubbel 106 Crane v. McDonald 919 Crane v. Price 159 Cranston v. Kenny 867 Crary v. Smith 348 Crary v. Turner 439 Crawford v. King 266 Crawford v. Goulden 788 Crawford v. Lock wood 951 Crawford v. Millspaugh 821 Crawford v. N. Y., etc., R. R. Co.. 506 598 Cregier v. Cheeaebrough 858 Cremin v. Byrnes 942 Crepps V. Durden 463 Cresson v. Stout 388, 633 Creuse v. Defiganiere 804 Crisp V. Churchill 708 Crispin y. Babbitt 601, 604 Crocker v. Bragg 513 Crocker v. Gnllifer 5, 560, 561, 573 Crofoot V. Bennett 16, 18 Cromwell v. Benjamin 327, 678 Cromwell v. Gallup 485 Cromwell v. Lovett 919 Croninger v. Crocker 41, 49 Crookshank v. Burrell 127 Crooks V. Moon 15, 64, 346 Cropsey v. Murphy 449 Cropsey v. Sweeney 341, 355 Crosby V. Wadsworth 481 Crosby v. Blanchard 850 Cross V. Andrews 674 Cross V. Huntley 908 Cro.ss V. O'Donnell 38, 105, 115, 117 Crossley v. Lightowler 519 Croswell v. Crane, 387, 408 Crozer v. Pillina- 883 Cruikshank v. Brouwer 213 PAGE, Cruickshanks v. Rose 926 Crump V. Lambert 446, 453 Cruty V. Erie R'y Co 602 Cubitt V. Porter 501 Cuck V. Quackenbnsh 794 Culburn v. Lansing 220 Cullnick V. Swindell 235 Cullom V. Mock 358 Culver V. Ashley 852 Cumberland Bank v. Hall 689 Cumberland etc.. Corporation v. Hitch- ings 458 Cumberland Valley Ins. Co. v. Doug- lass 206 Gumming v. Brown ... 787 Gumming v. Hackley 380, 381 Gumming v. Ince 930, 931 Gummings v. Morris . .' 778 Cnmmings v. Vorce 635 Gummings v. Williams 171 Cummins v. Agricultural Ins. Go. . . 197 Cunliffe v. Harrison 46 Cunningham v. Bucklin 480 Cunningham v. Jones 374 Cunningham v. Spier 91 Curd V. Davis 154 Curling v. Harding 252 Currie v. Anderson 120 Curtis V. Barnes 844, 862, 868 Curtis V. Brooks 639 Curtis V. Brown 365 Curtis V. Delaware, etc., R. R. Go. . . 138 811 Curtis T. Pox , 308 Curtis V. Galvin 485 Curtis V. Gokey 696, 697, 869 Curtis V. Groat 567, 737 Curtis V. Leavitt 181, 185, 186, 291 717, 718 Curtis V. Mills 613 Curtis V. Rickards 414 Curti.sB V. Greenbanks 899 Curtiss V. Howell 67 Gusack V. Robinson 115 Gushing v. Wyman 873 Gushman v. Jewell 28, 31 Cushman v. Wooster 868 Guthbert V. Haley 184 Cuyler v, Guyler 628 Guyler v. McCartney 291 Cuyler v. Sandford 168 Daimouth v. Bennett 403, 713 Daln V. Wycoff 343 Dakin v. Dunning 903 Dalrymple v. Hunt 657 Dalton V. Daniels 90 Dalton V. Whittem 635 Dame v. Dame 279, 568 Dambman v. Schulting 830 Dana v. Fiedler 140, 145, 349 Dana v. Munro 208, 209 Dana v. Mnnson 308 Dane v. Kirkwell 674 Dane v. Mallory 434 Danforth v. Culver 798, 810 XXVlll TABLE OF CASES. PAGE. Danforth v. Dart. , 59 Danforth v. Walker 130 Daniels v. Clejfg 610 Daniels v. Hallenbeck 870, 873 Daniels v. Osborn 143 Daniels v. Potter 454 Dansville, etc., Plankroad Co. v. Hull. 465 Danube and Black Sea, etc., R. R. Co. V. Xenos 739 Darby v. Cassoway 147 Darby v. Harris 635 Dargau v. Waddill 450 Darlington v. McCunu 370 Dater v. Wellington 868 Daubne v. Hughes 337, 328 Daud V. Kingscote 485 Davenport v. Shants 234 Davenport v. Wheeler 39 Davidson v. Cooper 684, 688 Davidson v. Donadi 559 Davies v. Edwards 819 Da vies v. Nicholas 583 Davies v. Vernon 583 Davis V. Adams 18, 49, 346 Davis V. Bechstein 35 Davis V. BufCum 582 Davis V. Coleman 689 Davis V. Garr 186, 187 Davis V. Getchell 512 Davis V. Gorton 358, 786 Davis V. Graing:er 660 Davis V. Hoppock , 653 Davis V. Jones 53 Davis V. Justice 646 Davis V. Lottich 639 Davis V. Mann 594 Davis V. Marshall 545 Davis V. Mason 699, 703 Davis V. Meeker 91 Davis V. Newkirk 547 Davis V. Noaks 873 Davis V. Pattison 371 Davis V. Shields 113, 113, 383, 799 Davis V. Sims 628 Davis V. Smith 98, 155, 786 Davis V, Spencer 909 Davis V. Standish 646, 647 Davis v. Tallcot 753 Davis v. Taylor 563 Davis V. Toulmin 761 Davison v. Franklin 945 Davison v. Seymour 704, 711 Dawson v. Powell 563 Day V. Boyd 913 Day V. Brett 440 Day V. Day 457 Day V. Hammond 839, 846, 847 Day V. Leal 735, 737 Day V. K. T. Cent. R. R. Co . . . . 248, 253 Day V. Pool 06, 78, 83, 757 Day V. Poughkeepsie Mut. Ins. Co. . 204 Day V. Roth 873 Dayton v. Trull 931 Dean v. Allen 739 Dean v. Branthwaite 545 Dean v. Hewit 810 PAGE. Dearborn v. Cross 680 Deaton v. Tennessee, etc., R. R. Co. . 348 De Begins v. Armistead 716 De Bernardy v. Harding 739 De Bow V. United States 389 De Castro v. Prett 867 Decker v. Decker 383, 483 Decker v. Fisher 477 Decker v. Livingston 826 Decker v. Mathews 561, 563, 574 Dederick v. Leman 877, 913 De Fonclear v. Shottenkirk 17 De Freest v. Bloomingdale 414 De Forest v. Jewett 602 De Forest v. Strong 166 Defreeze v. Tremper 99 De GrafE v. N. Y. Cent & H. R. R. Co. 603 De Grove v. Metropolitan Ins. Co . . . 194 303 Deiffendorff v. Gage 765 Delacroix v. Buikley 679, 680, 905 Delamater v. Miller 705 Delano v. Blake 664, 667 Delano v. Curtis 583, 585 Delano v. Rawson 761 De Lavallette v. Wendt 140, 785 Delaware Bank v. Jervis. . . 100, 101, 910 Del., etc., R. R. Co. v. Kellogg 589 De Long v. Stanton 843, 843 Demarest v. Darg 743 Demeyer v. Legg 937 Deming v. Foster 91 De Mott V. Hagermau 63 Demott V. McMullen 333 Dempsey v. Tylee 937, 939 Dench v. Walker , 574 Denick v. Hubbard 688 Dennett v. Grover 489 Dennett v. Short 898 Denning v. Roome 457 Dennis v. Clark 342 Dennisou v. Carnahan 652 Denny v. Smith 790 Den's Estate 154 Denys v. Shuckburgh 787 De Peyster v. Clarkson 150 De Pierres v. Thorn 786 Deraismes v. Merchants' Mut. Ins. Co. 211 De Rider v. McKnight 14, 36, 54 Dering v. Earl of Winchelsea 885 De Santes v. Searle 652 Des Artes v. Leggett 139, 898 Deshon v. Bigelow 33 Despard v. Walbridge 949 Deutsch v. Reilly 551 DevauK v. Connolly . 401 Devendorf v. Beardsley 809, 220 Devlin v. Brady 711 Devlin v. O'Neill 3fl Devlin v. Woodgate 369 Devoe v. Brandt 57, 58, 59 De Voss V. Johnson 822, 830 Dew V. Parsons 400 Dewey v. Derby 831 Dewey v. Erie Borough 34 Dewey v. Reed 689 TABLE OF CASES. XXIX PAGE. Dewitt V. Brisbane 719 De Witt V. Morris 644 De Wolfe V. Johnson 179 Dexter v. Adams 440 Dexter v. Bevins 15, 16 Dexter v Broat 736 Dexter v. Clark 749 Dexter v. Norton 134 Dexter, etc., Plankroad Co. v. Allen. 465 Dey V. Dox 129 Deyo V. Stewart 501 Deyo's Executors v. Jones' Executors. 798 Dezell V Odell 556, 939 De Zeng v. Bailey 827 Diblee v Best 961 Dibble v. Corbett 40, 347 Dibble v Hathaway 462 Dickey V. Grant 589 Dickerman v. Abrams 312 Dickerman v. Lord 398 Dickinson v. City of Worcester 524 Dickinson v. Edwards 138, 185 Dickinson v. Shee 886 Dickson v. Wright 918 Didier v. Davidson 791 Diefendorffv. Gage 100, 657 Diedrick v. Bichley 837, 839 Dieker v. Hass 341 Diercks v. Kennedy 945 Dietrich v. Mayor, etc., of New York 395 Dike V. Erie R. R. Co 138 Dill V Bowen 72 Dillaye v. Parks 657 Dillenback v. Jerome 558 Diller v. Johnson 398 Dillon V. Anderson 783 Dingens v. Clancy 814, 316, 317 Dininny v. Pay 432 Dinkenspeil v. Franklin 945 Disborough v. Neilson 14, 46 Diabrow v. Tenbroeck 660 Dist. Bank v. Fairman, etc. Co 686 D'lvernois v. Leavitt 294 Divine v. McCormick 98 Dixv. VanWyck 174, 178, 181 Dixon V. Caldwell 561 Dixon V. Clark 889, 892 Dixon V. Clow , 473 Dixon V. Frazee 269 Dixon V. Prisbee 351 Dixon V. Hurrell 331 Dobbins v. Higglns 154 Dobson V. CoUis 251 Docket V. Voyel 382 Dodge V. Barnes 42 Dodge V. Crandall 680 Dodge V. Pearey 899 Dodworth v. Jones 635 Doe V. Brown 172, 188 Doe V. Gooch 172, 188 Doe d. Grantley v. Butcher 731 Doe d. Marquis of Anglesea v. Church Wardens of Kugeley 721 Doe V. Vallejo 149 Doke V. James 859 Dolan V. Mayor of New York 372 PAGE. Dole V, Moulton 438 Dolfinger v. Pishback 587 Doll v. Earl 383 Dolson V. Saxton 432. 444 Domestic Sewing .Mach. Co. v. An- derson 3 Dominick v. Michael 667 Donati v. Broomhead 107 Donovan v. Wilson 137 Doolin V. Ward 713 Doolittle V. Doolittle 434 Doolittle v. Nay lor 244 Dorwln v. Potter 759, 766 Doty V. Brown.. . 743, 748, 745, 748, 753 Doty V. Miller 364 Doty V. Wilson 383 Douglass V. Forrest 772 Douglass V. Holme 414 Douglass V. Howland 243 Douglas V. Patrick 883 , 886 Dougall V. Walling. 404 Douglass V. Wells 937 Douglass V. White 914 Dow V. Clark 338 Dow V. Way 286 Dowling V. McKenny 383 Downer v. Eggleston 767 Downer V. Thompson 7. 15, 45, 101 Downes v. Phoenix Bank 884 Downes v. Richardson 690 Downing v. O'Brien 320 Downs V. Ross 33, 126 Dows V. Dennistoun 38 Dows V. Kidder 35 Dows V. Perrin 34, 62 Dows V. Morewood. 926 Dox V. Day 139 Doyle V. Sharp 551 Doyle V. St. James Church 141 Doyley v. Burton 852 Drake v. Cockroft 652 Drake v. Flewellen 395 Drake v. Rogers 457 Drake v. Wakefield 641, 643 Drake v. Wells 44 Draper v. Jones 21, 130 Draper V. Snow 232, 244, 268 Draper v. Sweet 88 Draper v. Trescott 176 Draper v. Stouvenal 308, 310 Dresser v. Ainsworth 100 Dresser v. Dresser 255, 256, 781 Drew V. Sixth Ave. E. R. Co. . . 596, 597 Driggs V. Dwight 766 Drinkwater v. Goodwin 912 DriscoU v. Place 436 Driscoll V. West Bradley, etc., Manuf . Co 35 Drummond v. Burrell 251, 252 Drury v. Defontaine 706 Dry Dock Bank v. American Life Ins. and Trust Co 158, 169, 170, 173 Dryden v. Kellogg 99, 103 Dubois V. Brewer 469 Dubois V. Kelly 229, 230 Dubois V. Webster 636 , 687 XXX TABLE OF CASES. PAGE. Ducker v. Rapp 679 Duell V. Cudlipp 581 Dadden v. Guardians, etc 518 Duden v. Waitzfelder 920 Dudley v. Abuer 31 Dudley v. Boles 608 Dudley v. Danforth 296 Dudley v. Hawley 574, 634 Duff V. Snider 255 Duflf'any v. Ferguson 427 Duffee V. Mason 77, 79 Duffy V. O'Donovan 654 Duffy V. Wunscli 263 Du Flon V. Powers 834 Duke of Brunswick v. Growl 357 Dumond's Adm'rs v. Carpenter 406 Dumont V. Duforce 356 Dumont v. Smith 490 Dumont v. Williamson. 97 Duncan v. Helm 927 Duncan v. Stone 82 Duncan v. Topham 733 Dunckle v. Cocker 550 Dunckle v. Kocker 616 Dunckel v. Wiles 755 Dunham v. Bower. . . . 655, 743, 753. 763 764 Dunham v. Dey 188 Dunham v. Dodge 814 Dunham V. Gould 188 Dunham v. Jackson; 886 Dunham v. Mann 53, 346 Dunham v. Pettee 58, 133, 346 Dunham v. Bage 793 Dunham V. Waterman 293, 294, 295 Dunham v. Wyckoff. 633 Danlap v. Gregory 697 Dunlap V. Hunting 558 Duulap V. Snyder 453, 550 Dunn V. Warlters 857 Dunning v. Humphrey 880 Dunning v. Leavitt 263 Dunscomb v. Dunacomb 150 Dunstan v. McAndrews , 346 Durbrow v. McDonald 20, 58 Durell V. Mosher 584 Durgy Cement and Umber Co. v. O'Brien 106 Darling v. Kelly 546 Duryea v. Messinger 833 Dusenbury v. Keiley 787 Dunstan v. McAndrew 64 Dutcher v. Porter 414 Dutchess Co. v. Harding 06 Dutchess of Kingston's Case 741 Dutro V. Wilson 458 Duvergier v. Fellows 696 Dwight V. Peart. 823, 938 Dy ckman v. Vallente 565 Dye V. Kerr 340, 355 Dye V. Leatherdale 548 Dyer v. Braunock 299 Dyer v. Erie Railway Co 591, 593 Dygart v. Bemerschneider 286 Dygert v. Bradley 548 Dydert v Coppernoll 739 PAGE, Dygert v. Schenck 447, 467 Dykers v. Townsend 345, 284 Dykers V. Woodward 653 Eades v. Vandeput 437 Eadie v. Slimmon 388, 931 Eagan v. Pitchburg R. B 587 Bagan v. Tucker 603 Eagle Bank v. Rigney 167 Eagleson v. Shotwell 172 Eakin v. Brown 593 Eames v. Sweetser 327 Earing v. Lansingh 607 Earl V. Van Alstyne 618 Earl V. Camp 433, 538 Earl V. De Hart 508 Early v. Garrett 90 Early V Mahon 175 Easley v. Crookford 563 Eastabrook v. Smith 919 Eastern B. R. Co. v. Benedict 345 Easton v. Smith 359 Eastman r. Plumer 910 Eastman v. Shaw 173 Eastwood T. Kenyon 383 Eaton V. Alger 105, 166 Eaton v. Boston, etc., B. B. Co 834 Eaton V. Wells 900 Eaves v. Henderson 908 Eckstein v. Frank 670 Eddy V, Davidson 266 Eddy V. Harrin 933 Eddy V. O'Hara 888 Eddy V. Smith 391 Eddy V. Stanton 392 Edgar V. Shields 396 Edgecombe v. Eodd 869 Edgell V. Hart 395 Edgerton v. Page 759 Edgerton r. Ross 639 Edgerton v. Thomas 943 Edick V. Crim 633 Edmonson v. Kite 408 Edmondstone v. Thompson 796 Edward v. Trevellick 930 Edwards v. Grume 338 Edwards v. Davis 338 Edwards v. Evans . 943 Edwards v. Farmers' Fire Ins. Co. . . . 283 Edwards v. Noyes 475 Edwards v. Stewart 752, 764 Edwards v. Varick 823 Efner v. Shaw 861, 868 Ege V. Kille 234 Eggleston v. Boardman 358 Eggleston v. N. Y. & Harlem R. B. Co. 486 Ehle V. Bingham 753 Ehle V. Judson 378, 382 Eicholz v. Bannister 98 Eisenlord v. Snyder 319 Eland v. Karr 767 Eider v. Morrison 434 Eldridge v. Mather 657, 658, 765 Elkins V. Parkhurst 898 Ellen V. Topp 906 Ellicott V. Peterson 351 TABLE OF OASES. XXXI PAGE. EUicottviUe Plankroad Co. v. Buffalo, etc., R. R. Co 478 Elliot V. Cronk's Administrators 557 Elliott V. Gibbons 337 Ellis V. Craig 155 Ellis V. Duncan 514 Ellis V. James 105 Ellis V, Lersner. 641 Ellis V. Loftus Iron Co 474 Ellis V. McCormick 620 EUwood V. Monk 263 Elmendorf v. Harris . . 846, 847, 866, 867 Elston V. Chicago 397 Elsworth V. Fogg 830 Elves V. Crofts 699, 702 El well V. Chamberlin 170, 184, 623 Elwell V. Crocker 208 Elwell V. Martin 388 Elwell V. McQueen 749 Elwell V. Skiddy 757 Elwood V. Diefendorf 379 Elwood V. Smith 641, 642 Ely V. Cook 291, 292 Ely V. Ehle 634, 659 Ely V. McKnight 285 Ely V. Ormsby 118, 122 Ely V. Supervisors of Niagara Co . . . 457 Embrey f. Owen 511 Embury v. Conner 742, 758 Emery v.Baltz 761, 771 Emery v. Hitchcock 853, 857 Emery v. Smith 251 Emmet v. Hoyt 844, 857 Emmett v. Norton 330 Emmett v. Beed 212 Emmons v. Scudder 398 Emory v. Addis 645, 649, 650 Englander v. Rogers 886 English v. Smocks 163 Ennis v. Harmony Fire Ins. Co . ... 190 Entick V Carrington 473 Eppendor v. Brooklyn, etc., R. R. Co. 597 Equitable Life Ins. Soc. v. Cuyler. . . 180 Erben v. Lorillard 253, 280 Erwin v. Downs 946 Erwin v. Lapham 913 Erwin v. Voorhees , 621 Esmay v. Fanning 576 Esmond v. Van Benschoten 680, 905 Espy V. Fenton 408 Esterly v. Cole 142 Esterly v. Purdy 166 Estevez v. Purdy 166 Estey V. Boardman 564 Esty V. Aldrich 257 Etchberry v. Levielle 707 Etheridge v. Osborn 753 Eulrich v. Bichter 507 Eustaphieve y. Ketchum . . 319 European and Australian Royal Mail Co. V. Royal Mail Steam Packet Co. 728 Evans v. Ashley 282 Evans v. Begleys 929 Evans v. Davies 813 Evans v. Harris 33, 53, 345 Evans v. Merriweather 513 PAGE. Evans V. Po wis 873 Evans v. Verity 415 Evans v. Wells 825 Evans v. Wright 575 Evansville, etc., R. R. Co. v. Wolfe.. 344 594 Everett v. Hall 33 Everett v. London Assur. Co 206 Everett v. Parks 38 Everit v. Strong 773 Bverson v. Carpenter 664, 667 Ewing V. Howard 161 Ewer V. Jones 420 Exall V. Partridge 890 Excise Com. v. Taylor 467 Eyles V. Ellis 909 Fabbricotti v. Launitz 756, 765 Fagan V. Scott 486 Fairbanks v. Corlies 623 Fairbanks v. Mothersell 818 Fairbanks v. Wood 783 Fairchild v. Bentley 614, 617 Fairchild v. Case 439 Fairfield Bridge Co. v. Nye 55 Fake v. Eddy , 151, 153 Fake v. Smith. . v 100 Fales V. McKeon 108, 350, 351 Falk V. Fletcher 558 Fallon V. Central Park, etc., R. R. Co. 344 Fallon V. Kelehar 856 Falls V Belknap 938 Fancher v. Goodman 69, 74, 889 Fannin v, Anderson 790 Fanning v. Consequa 138 Farley v. Cleveland 263, 264 Farmer v. Walter 934 Farmers', etc.. Bank v. Atkinson. ... 34 Farmers' Bank of Amsterdam v. Blair. 823 Farmers and Mechanics' Nat. Bank v. Hazeltine 62 Farmers and Mechanics' Bank v. Joslyn 174, 175 Farmers and Mechanics' Nat. Bank V. Logan , 62 Farmers', etc.. Bank v. Sherman 908 Farmers' Loan, etc., Co. v, Mann. . . . 148 Farnsworth v. Clark 268 Farrant v. Thompson 560 Farrar v. Chauffetete 238, 575 Farrell v. Farrell 342 Farrell v. Higley 940, 944 Farrington v. Caswell 295 P'arrington v. Payne 748 Farron v. Sherwood 375 Fash V. Kavanah 411 Faulkner, Matter of 911 Faulkner v. Brown .... 554 Faulkner v. Lowe 722 Fausler v. Parsons 431 Favenc v. Bennett 912 Faviell v. Eastern Counties Ry. Co. . . 839 Fay V. Grimsteed 659 Pay V. Muzzey 563 Fay V. Parker 343 Fay V. Prentice 458 XXXll TABLE OF CASES. PAGE, Fazackerly v. McKnight 824 Feamster v. Wilherton 380 Featherston v. Hutchinson 696 Featherstonhaugli v. Bradshaw. 409, 410 Feeter v. Heath 139 Feiae, v. Wray 105 Fellows V. Commmissioners, etc., of Oneida 166 Fells V. Vestrali 375 Feltbam v. England 601 Fenly v. Stewart Ill Fenn v. Brittleton 560 Fennell v. Ridler 706 Fenton v. HoUoway 677 Fenton v. Eeed 399 Ferguson v. Carrington 635 Ferguson v. Crawford 436 Ferguson V. Hamilton 183, 184 Ferguson v. Miller 473 Ferdou v. Cunningham 357 Ferlat v. Gojon 300 Fernau v. Doubleday 176 Fernandez v. Merchants' Ins. Co 306 Fero V. Buffalo & State Line E. E. Co. 593 Ferrell v. Maxwell 368 Ferren v. O'Hara 137 Ferrie v. Public Administrator 898 Ferrill v. Brewis 563 Ferris v. Van Buskirk 475 Ferry v. Burchard 934 Ferry v. Stephens 1 Fery v. Williams 739 Fettretch V. McKay 768 Fidler v. Cooper 843, 843 Fiedler v. Cooper 866 Fiedler v. Darrin 161 Field V. Kinnear 89 Field TT. Parker 551 Field V. Eunk 43, 134 Fifield V. Elmer 33 Filer v. N. Y. Cent. R. E. Co 310 Filke V. Boston & Albany R. E. Co. . 603 Filkins v. Whyland 104 Filliter v. Phippard 605 Fillmore v. Horton 582 Filmer v. Debler 839 Finch V. Brook 886 Finch V. Cleveland 366 Finch V. Finch 386 Finch V. Gridley 368 Finn v. Sleight 937 Fiquet v. Allison 564 Firmln v. Firmin 567 First Baptist Church v. Bigelow. 376, 383 First Baptist Church v. Brooklyn Ins. Co 356 First Baptist Church v. Witherell. . . 470 First Nat Bank V. Crowley 55 First Nat. Bank v. Leach 917 First Nat. Bank v. Owen 173 First Nat. Bank v. Wheeler 394 First Nat, Bank of Toledo v. Shaw. . 63 First Nat. Bank of Utica v. Ballou . . 813 814, 815, 830 Fish V. Cottenet 194 Fish V. Dodge 440, 453, 454 FAOE. Pish V. Ferris 560, 668 Fish V. Folley 747 Fish V. Roseberry 97 Fish V. Skut 616 Fisher v. Bridges 708 Fisher v. Brown 563 Fisher v. Dixon 331 Fisher v. Fredenhall 65, 67 Fisher v. May 876 Fisher v. Moore 900 Fisher v. N. Y. Cent., etc., R. R. Co. 463 Fisher v. Saffer 235 Fisher v. Shattuck 934 Fiske V. Bailey 333 Fiske V. Hibbard 807 Fitch V. Beach 126 Fitch V. Peckham 355 Fitch V. Redding 918 Fitts V. Hall 73 Fitzgerald v. Fitzgerald 305 Fitzgerald v. Fuller 37 Fivaz V. Nichols 695 Flagg V. Dryden 897 Flaherty v. Andrews 483 Flake v. Nuse 887 Flanagan v. Demarest 47 Flanders v. Crolius 369 Fleeman v. McKeon 30, 35, 39 Fleet V. Hegemau 477 Fleetwood v. City of N. T 383 Fleming v. Davis 512 Fleming v. Slocum 631 Fleuner v. Flenner 386 Fletcher v. Button 401, 733 Fletcher V. Cole 30 Fletcher v. Harcot 696 Fletcher v. Smith 515 Fletcher v. Updike 793, 799, 810 Flight V. Chaplin 159 Flint V. Corbitt 137 Flores v. Johnes 709 Flower v. Lance 383, 384, 398 Flynn v. Allen 97 Flynn v. Hutton 344 Flynn v. McKeon 389 , 680, 905 Fobes V. Shattuck 566, 585 Foden v. Slater 138 Fonda v. Gross 395, 665 Fonda v. Van Home 547, 633, 637 Foot V. Bentley 78, 104 Foot V. Bronson 534 Foot V. Marsh 16 Force v. City of Elizabeth 148 Ford V. Babcock 791 Ford V. Brownell 397 Ford V. Cobb \ 335I 336 Ford V. Fitchburg R. B. Co 803 Ford V. Smith 443 Ford V. Surget .' 563 Ford V. Tiley " 733 Ford V. Williams '.'.'.'.".. 941 Fordley's Case ,[ 731 Fores v. Johnes ,[] 365 Forman v. Forman ,[[ 148 Forney v. Benedict [ 809 Forrest v-. Mayor of N. T ...', 383 TABLE OF CASES. XXXlll PAGE. Porsdick v. Collins 574 Forsyth V. Wells 563 Fort V. Gooding 341 Port V. Whipple 603 Forth V. Parsley 554, 559 Forward v. Pittard 721 Fosdick V. GrofF 652 Foshay v. Ferguson 388, 929, 933 Foster v. Conger 312 Foster v. Dawber 910 Foster v. Goddard 610 Foster v. Kirby 396 Foster v. Newbrough 358 Foster v. Newlaud 945 Foster v. Perkins 543 Foster v. Pettibone 5, 55 Foster v. Stewart 437 Foster v. Taylor 716 Foster v. Trull 875 Fouldes V. Willoughby 572 Fountain v. Draper 649 Fowler v. Abrams 349 Fowler v. Butterly 931 Fowler v. Clearwater 273, 785 Fowler v. Down 543 Fowler v. Hallenbeck 340 Fowler v. Hunt 791 Fowler v. N. Y. Indemnity Ins. Co. . 19 191 Fowler v. MoUer 393 Fowler v. Seaman 318 Fowler v. Van Surdam 404 Fox V. Jackson 436 Fox V. Sloo 355 Foy V. Talbert 934 France's Estate 386 Francis v. Castleman 146 Francis v. Hawkesley 805 Francis v. Herz 290 Francis v. Schoellkopf 447, 450, 458 Franklin v. Schemerhorn 650 Franklin Bank v. Eaymond 396 Fraschieris v. Henriques 107 Fraser v. Wyckoff. 363 Frazer v. Prazer 820 Frazier v. Brown 515 Frazier v. Harvey 62 Frazier v. Hilliard 10 Frazier v. Penn. K. R. Co 603 Precking v. Rolland. . . 306, 313, 313, 316 318, 331, 657 Preegard v. Barnes 435 Preeland v. South worth 335 Freeman v. Adams 849, 863 Freeman v. Auld 863 Freeman v. Baspoule 858 Freeman v. Cooke . . . 935, 939, 943, 953 Freeman v, Falton Fire Ins. Co 190 Freeman v. Harwood 563 Freeman v. Howe 662 Freeman v. Robinson 335 Freeman v. Underwood 554, 563 Freer v. Denton 729 Freiberg v. Branigan 314 French v. Kennedy 150, 154 French v. Irwin 917 PAGE. French v. New 679 French v. Shotwell 181 French v. White 377 Preethy v. Freethy 311 Frets V. Frets 845 Friar v. Grey 906 Friend v. Harrison 707 Frink v. Green 823 Frink v. Hampden Ins. Co 191 Frisbie v. Larned 872, 874, 920 Frost V. Duncan 478 Frost V. Frost 911 Frost V. Koon 943 Frost V. Mott 631 Frost V. Plumb 560 Frost V, Saratoga Mut. Ins. Co 198 Frost V. Farr 256 Fry V. Bennett 653 Fryatt v. Sullivan Co 235 Fudickar v. Guardian Mut. Life Ins. Co 867, 868, 869 Fuller v. Acker 634 Fuller V. Jewett 603 Fuller V. Lewis 635 Fuller V. Read 765 Fulmer v, Seitz 689 Fultz V. House 907 Furman v. Van Sise 339 Purniss v. Ferguson 97 Qaar v. Louisville B. Co 159 Gaff V. Howyer 120 Gage V. Dauchy 310 Gage V. Hill 755 Gage V. Parker 6, 621, 637 Gagg V. Vetter 586 Gahn v. Niemcewicz 736 Gallagher v. Nichols 732 Gallaher v. Vought 340 Gallup V. Perne 140, 141, 358 Galvin v. Prentice 253, 390 Gambert v. Hart 361 Gans V. Frank 789, 790 Gans V. St. Paul Ins. Co 198 Ganssly v. Perkins 650 Garbutt v. Smith 73 Gardner v. Buckbee 753, 753 Gardner v. Pinlay 559 Gardner v. Gardner 677 Gardner v. Lane 7 Gardner v. Mayor, etc., of Troy 384 Gardner v. McEwen 621 Gardiner v. Morse 711 Gardinier v. Tubbs. . 295 Gardner V. Walsh 688 Garfield v. Kirk 358 Garfield v. Paris 120 Garland v. Carlisle 572 Garr v. Gomez 937 Garmon v. Bangor 586 Garr v. Mairet 359 Garrard v. Cottrell 381 Garrard v. Pittsburgh, etc.,R. R. Co. 561 Garretson v. Seaman 318 Garth v. Cooper 177 XXXIV TABLE OF OASES. PAGE. Garwood v. N. T. C. & H. R. R. Co. . 510 513. 513 Gatesv.MoKee 243 Gates V. Preston 743, 749, 753 Gattorno v. Adams 40 Gault V. Brown 130 Gaunt V. Fynney 453 Gaussen v. Morton 487 Gay V. Ballou 337 Qautier v. Douglass Manuf. Co. . 66, 93 Gay V. Gardiner 151 Gay V. Waltman 837 Gaylord v. Van Loan 810 Geary v. Physic 113 Geer v. Archer 383 Geere v. Mare 713 Gelen V. Hall 431 Gelhaar v. Ross 434, 557 Genin v. IngersoU 149 Genln v. Lock wood 918 Genin V. Tompkins 20, 41 Gent V. Lynch 476 George v. Tallman 6 Gerhard v. Bates 435, 426 German Nat. Bank v. Meadowcroft. . 568 Germond v. People 930, 938 Gerrish v. New Market Manuf. Co. . . 531 Gerwig v. Sitterly 174 Gibbs V. Continental Ins. Co 197, 840 Gibson v. Choteau 781 Gibson V. DickiB 707 Gibson V. Holland 110 Gibson v. Tobey 273, 919 Giddey v. Altman 31 Gidney V. Earl 479, 480 Gifford V. Kollack 340 Gihon V . Le vy 658 Gihon V. Stanton 378 Gilbert v. Beach 595 Gilbert v. Cram 768 Gilbert v. Dickerson 565 Gilbert v. N. Y. Cent., etc., R. R. Co. 15 Gilbert v. Port 907 Gilbert v. Rounds 653 Gilchrist v. Brooklyn Grocers' Manuf. Ass'n 416 Giles V. Crosby 375 Giles V. Hart 901 Giles V. O'Toole 766 Qilkesou v. Smith 900 Gillespie v. Forest 521 Gillespie v. Mayor, etc., of New York 155 Gillespie v. Rosekrants 799 Gillespie v. Torrance. . 658, 758, 761, 763 904 Qillet V. Mason 473 Gillet T. Mayuard 353 Gillet V. Roberts 576 Gillet V. Van Rensselaer 141 Gillett V. Averill 161, 170, 171 Gillett V. Balcom 237 Gillett v. Johnson 512 Gilligan v. N. Y. & Harlem R. R 344 Gillies V. Lent 324 Gillis V. Space 366 Oilman v. Andrews. 327 PAGE, Oilman v. Hill 115, 134 Oilman v. Moore 897 Gilmore v. Atlantic & Pacific R. R. Co. 656 Gilmore v. Ferguson 173 Gilmore v. Newton 561 Gilmour v. Thompson 388 Qilpins V. Consequa 723 Gilson V. North Grey, etc 587 Gilson V. Stewart 727 Ginochio v. Orser 441 Gillett V. Maynard 389 Gillett V. Sweat 689 Girardy v. Richardson 411, 708 Given v. Kellv 565 Glacius V. Black 374, 733, 907 Glad well v. Steggall 432, 423 Glaholm v. Hays 906 Glasscott V. Day 887 Glassner v. Wheaton 576 Gleason v. Clark 360 Glen & Hall Manuf. Co. v. Hall 763 Glen V. Whitaker 38 Glendening v. Sharp 590 Glenn v. Kays 474 Glentworth v. Luther 364 Qlidden v. Child 267 Glynn v. Bank of England 820 Globe Marble Mills Co. v. Quinn. 330, 333 Gobell V. Archer 113 Gock V. Keneda 836 Goffv. Kilts 473 Goggerley v. Cuthbert 563 Goddard v. Foster 351 Godard v. Gould 31, 333 Goddard v. Merchant's Bank. . . 394. 396 Godefroy v. Jay 363 Godfrey v. Moser , 141 Godts V. Rose 19 Godwin v. Culley 800 Goelet V. Asseler 585 Goelth V. White 69, 73, 380, 390 Goetz V. Foos 264, 366 Goings V. Patten 416 Goit V. National Protection Ins. Co. . 199 204 Golightly V. Jellicoe 842 Goldberg v. Dougherty 736 Goldrich v. Ryan. 90 Goldsmith -p. Bryant 31 Goldsmith v. Jones 456 Goldsmith v. Obermeir 364 Gomez v. Garr 852, 857 Good V. Cheseman 873 Good V. Curtiss 118 Goodale v. Tuttle 513, 525 Goodland v. Blewith 883 Goodrich v. Dunbar 738 Goodrich v. Jones 234 Goodrich y. Reynolds 163 Goodrich v. Tracy 915 Goodsell V. Myers 664, 666 Goodwin v. Avery 610 Goodwin v. Francis 113 Goodwin v. Holbrook 43 Goodwin v. Mass. Mut. Life Ins. Co. 198 Goodwyn v. Cheveley 506 TABLE OF CASES. XXXV PAGE. Goodyear v. Vosburgh 379 Gordon v. Harper 542, 543, 545, 552 559 Gordon v. Hostetter 573 Gorden v. Price 873 Gordon v. Strange 915 Gore V. Gibson 676 Gorliam y. Fisher 115 Gorwin v. Carey 554 Gosman v. Cruger 320 Gossler v. Schepler 105 Gottsberger v. Bad way 243 Gould V. Cayuga Co. Nat. Bank 67 Gotwald V. Bernheimer 598 GougU V. Dennis 428 Gould V. Boston Duck Co. 518 Gould V. Moring 242, 244 Gould V. Segee 659 Goulding v. Davison 383 Gourdier v. Cormack 476, 600 Grady v. Crook 399 Graeiu v. Adams , 160 Gragg V. Hull 585 Graham v. Chryatal 139 Graham v. Fireman's Ins. Co 195 Graham v. Linden 889 Graham v. Selover 814 Gram v. Cadwell 826 Granite R. R. Co, v. Bacon 685 Granger v. George 787 Grant v. Allen 474 Grant v. Button 758 Grant Co. v. Sels 399 Granger v. George 797 Grant v. Peudery 257 Grant v. Skinner 29 Gratz V. Gratz 856 Graves v. Brinkerhoff. 6, 395 Graves v. Friend 919, 930 Graves v. McKeou 473 Graves v. Shattuck 608 Graves v. Smith 560 Gray v. Angier 899 Gray v. Barton 1, 877 Gray v. Davis 119 Gray v. Durland 339 Gray v. Fowler 174 Gray v. Gannon 734 Gray v. Green 900 Grav V. Harris 532 Gray v. Hook 710, 717 Gray v. Lessington 72, 664 Gray v. Second Ave. R. R. Co 591 Greaaly v. Codling 447 Greely v. Stilson 485 Green v. Amess 796 Green v. Armstrong 284 Green v. Brookins 264 Green v. Cady 481 Green v. Clarke 554, 751 Green v. Da vies 415 Green v. Disbrow 793, 794, 818 Green v. Edick 564 Green v. Green 63, 72, 664, 665 Green v. Greenbank 669 Green v. Harris 256 PAGE. Green v. Kemp 179 Green v. London Gen. Omnibus Co. . 547 Green v. Miller 850 Greene v. Nunnemaeher 450 Green v. Phillips . 884 Green v. Pole 844 Green v. Roberts 352, 355 Green v. Seranage 931 Greenbury v. Wilkins 706 Greenby v. Hopkins 153 Qreenthal v. Schneider 50 Greenway v. Fisher 562 Greer v. Church 3 Gregg V. Wells 942, 943 Gregory v. Burrall 744 Gregory v. Piper 548 Gregory v. Stryker 55 Gregory v. Thomas 726 Greton v. Smith 410 Grey v. Groennap 857 Gridley v. Gridley 861 Gridley v. Rowland 661 Grier v. Sampson 608 Griffin v. Alsop. 583 Griffin v. Bixby 469 Griffin v. Cranston 293 Griffin v. Creppin 475 Griffin v. Hampton 911 Griffin v. Marquardt 390 Griffin V. Martin 502, 504 Griffith V. Beecher 940, 942 Griffith V. McCullum 456 Griffith V. Wells 369, 715 Grippen v. N. Y. Cent. R. R. Co 591 Grissler v. Powers 946 Qrizewood v. Blane 12 Groat V.Gill 17 Groate v. Groate 805 Grocers' Bank of New York v. Fitch. 872 Groif v. Griswold 325 Grout V. Knapp 475 Groshon v. Lyon 660 Gross V. Kierski 98 Grosvenor v. Atlantic Fire Ins. Co. . . 658 Grosvenor v. Hunt 865 Grosz V. Jackson 238 Grover v. Buck 282 Grover v. Sholl 522 Grubb's Appeal 143 Grube v. Schultheis 374 Grand v. Van Vleek 547 Grussy v. Schneider 882 Grymes v. Sanders 67 Guardian Mut. Life Ins. Co. v. Ka- shaw 166 Guckenheimer V. Angevine 67, 71 Gurney v. Atlantic & Great Western Ry.Co 757 Guernsey V. Raxford 149, 162, 413 Guest V. Worcester, etc., Ry. Co. . . . 281 Guggenheimer v. Gieszler 138, 160 Guild V. Baldridge 396 Guild V. Butler 875 Gulick V. Ward 711 Gummer V. Village of Omro 245 Gunn V. Head 149 XXXVl TABLE OF CA.SE8. PAGE. Qurney v. Atlantic, etc., R. R. Co. 66, 92 Gurney v. Kenny 578 Haas V. Damon 573 Hackett v. Smelsley 650 Hadley v. Ayres 141 Haflf V. Blossom 851 Hager v. Danforth 489 Haggart v. Morgan 840 Haggarty v. Palmer 20, 35 Hague V. Porter 38 Hague V . Powers 893 Haiglit V. Avery 814 Haight V. Badgeley 437, 490, 658 Haight V Wright 340 Haile v. Lillie 673 Haile v. Nichols 937 Haines v. Tucker 46, 184 Haire v. Baker 753 Haines v. Pearce 919 Haldeman v. Bruckhard 515 Haldenby v. Teeke 901 Hale V. Andrews 784 Hale V. Angel 332 Hale V. Patton 885 Hale V. Russ 690 Haley v. Bannister 837 Haley v. Earle 590, 591 Hall V. Arnold 390 Hall V. Ayer 359 Hall V. Bryan 799 Hall V. Clement 937, 938 Hall V. Conder 90 Hall V. Constant 923 Hall V. Daggett 162 Hall V. Earnest 173 Hall V. Erwin 58 Hall V. Haggart 171 Hall V. Ins. Co. of North America. . . 197 Hall V. Levy 823 Hall V. Luther 937 Hall V. Meriwether 24 Hall V. Naylor 56, 58 Hall V. Pickard 545, 553 Hall V. Pierce 346 Hall V. Robinson 558, 576 Hall V. Sheehan 824 Hall V. Smith 873 Hall V. Tuttle 633 Hall V. Waterbury 486 Hall V. Western Transp. Co 409 Hall V. Wilson 173 Hallenbeck v. Cochran, 118, 119, 121, 122 Hallenbeck v. Dewitt 620 Hallett V. Norion 369 Hallock V. DeMunn 330 Hallock V. Dominy 551 Hallock V. Losee 795 Hallock V. Rumsey 686 Halsey v. McCormick 508 Halsey V. Reid 783 Halatead v. Seaman , 868 Halterline v. Rice 82, 55 Ham V. Mayor 600 Ham V. Van Orden 118 Hambleton v. Vere 437 PAGE. Hamilton v. Canfield. . .'. 718 Hamilton v. Douglass 311 Hamilton v. Ganyard 48, 49, 50, 97 Hamilton v. Singer Manuf. Co 67 Hamlin v. Dingman 431 Hammond v. Christie 872 Hammond v. Corbett. . . 340 Hammond v. Happing 174, 175, 187 Hammond v. Pennock 437 Hamuun v. Richardson. 97 Hamphouse v. Gaffner 484 Hancock v. Bliss 798 Hancock v. Gomez 403 Handaysyde v. Wilson 611 Handley v. Wharton 799 Hanford v. Artcher 395 Hanford v. Higgins 271 Hanger v. Abbott 734 Hanks V. Naglee 708 Hanmer v. Wilsey 549 Hanna V. Mills 130,138, 346 Hannah v. Lankford 913 Hansard v. Robinson 888 Hansee v. Phinney 175 Hanson v. McCue 515 Hanson v. Meyer 19 Hanson v. Towle 798, 809 Harbeck v. Craft , 917 Harbeck v. Vanderbilt 910 Hardcastle v. South Yorkshire R'y Co. 448 Hardenburgli v. Lockwood 503, 504 Hardie v. Grant 330 Harding v. Davies 883 Harding v. Edgecumbe 815 Harding v. Tifft 938, 926 Hardmann v. Bowen 291 Hardy v. Innes 854 Harger v. McCullough 165 Harger v. Wilson 173 Hargous v. Ablon 101 Hargous v. Lahens , 883, 888 Hargous v. Stone 49, 94, 95, 96 Harknese v. Sears 234 Harlem v. St. Louis, etc., R. R. Co. . 590 Harmon v. Harmon 398 Harman v. Reeve 135 Harmony v. Bingham.. .370, 388, 389, 733 932 Harmon v. Bird 903 Harpell v. Curtis.. 597, 610 Harper v. Albany Mut. Ins. Co 197 Harper v. Fairley 811, 813 Harper v. Godsell 1 Harper v. Harper 356 Harper v. Leal 951 Harper v. N. Y. City Ins. Co 197 Harriman v. Harriman 878 Harrington v. Higham 854 Harrington v. Snyder 756 Harris v. Bernard 757, 763 Harris V. Curet 776 Harris v. Curnow 858 Harris v. Frink. . . .279, 380, 390, 482, 483 Harris v. Hammond 755, 765 Harris v. Harris 753 Harris v. Huntback 376 TABLE OF CASES. XXXVJl PAGE. Harris v. Jex 883, 893 Hariis v. Morris 330 Harris v. Mulock 887, 888 Harris v. Pratt 105, 107 Harris v. Rathbun 907 Harris v. Reynolds 840 Harris v. Roof's Ex'rs 703 Harris v. Runnels 716 Harris v. Story 620, 914 Harris v. Thompson 446 Harris v. Wilson 843 Harriss v. Williams , , 134 Harrison v. Blackburn 475 Harrison v. Brooks 451 Harrison V. Close 839, 878 Harrison v. Elvin 113 Harrison v. Hannell 177 Harrison v. Luke 1 Harrison v. Marshall 706 Harrison v. Wilkin 937 narrower v. Ritson. . , 456 Hart V. Aldridge 437 Hart V. Bush 117 Hart V. Clouser 639 Hart V. Fitzgerald 639 Hart V. Hess 352 Hart V. Lanman 840 Hart V. Mayor, etc., of Albany 457 Hart V. Mills 24, 46, 124 Hart V. Nash 819 Barter v. Morris 361 Hartfield v. Roper 344, 594 Hartford Sorghum Manuf. Co. v. Brush 24 Hartley v. Cummings 698 Hartley v. Harriman 612 Hartley v. Harrison 179 Hartley v. Tatham 889 Hartman v. Proudfit 375 Hartness v. Thompson 672 Hartshorn v. Brace 947 Harttman v. Tegart 329 Harvey v. Archbold 164 Harvey v. Cherry 191 , 192 Harvey v. Dewoody 457 Harvey v. Dunlap 548, 610 Harvey v. Harris 7 Harvey v. Stevens. . . 110 Harwood v. Benton 516 Hasbrouck v. Loundsbury 38, 75 Hasbrouck v. Weaver 332, 464 Haskin v. N. Y. Cent. & H. R. R. R. Co 602 Haslem v. Lock wood 563, 564 Hassam v. Griffin 438, 441 Hastings v. Westchester Fire Ins. Co. 191 Hastings v. Whitley 699 Hatch V. Benton 737 Hatch V. Fogerty 360 Hatcher v. Rocheleau 736 Hathaway v. Bennett 11 Hathaway v. Howell 545 Hathorne v. Hodges 69 Hatop V . Neidig 293 Hatzell V. Barber 949 Hanse v. Cowing 455 PAGE. Havemeyer v. Cunningham 13, 346 Haven v. Winnisemmet Co 846 Havens v. Patterson 63 Havens v. Foster 395 Hawes v. Lawrence 40 Hawkins v. Hoffman 582 Hawkins v. Pemberton 77, 78, 82 Hawks V. Hinchcliff 725 Hawkins v. Stark 910 Hawks V. Weaver 163 Hawks V. Winans 591 Hawley v. Beverly 381 Hawley v. Cramer 712 Hawley v. Foot 873, 877 Hawley v. Griswold 935 Hawley v. Keeler 124 Hawley v. Northern Cent. Ry. Co. . . 602 Hay V. Cohoes Co 474 Hay V. Star Fire Ins. Co 199 Haycraft v. Creasy 428 Hay den v. Demets 17, 21, 36, 52 Haydock v. Coope 291 Haydock v. Stow 275 Haydou v. Williams 798, 799, 808 Hayes v. Bowman 509 Hayes v. Huflfstater 398 Hayes v. Miller 481, 587 Hayes v. People 299 Hayes v. Phelan 646 Hayes v. Roose 753 Hayes V. Waldron 518 Haynes v. Hart 63, 390 Haynes v. Rudd 388, 402, 713 Hays V. Hathorn 773 Hays V Hays 839 Hays V. Phelps 392 Hays V. Stone 919 Hayward v. Bennett 729 Haywood v. Jones 659 Hazeltine v. Smith 868 Hazelton v. Week 483 Head v. Stevens 903 Heald v. Carey 572 Hearn v. Hiehl 872 Hearne v. Keen 383 Heath V. Mahoney 665 Heath v. Powers 911 Heath v. Randall 488 Heath v. Westervelt 558 Hebert v. Lege 477 Heelas v. Slevin 887 Heeney v. Heaney 484 Heermance v. Taylor 115 Heffner v. Wenrich 687 Hefley v. Baker 475 Ilegan v. Eighth Ave. R. R. Co. 608, 609 Heidenheimer v. Mayor 165 Heiman v. Schroeder 154 Heinckley v. Earle 63 Heine v. Anderson 52 Helbutt V. Hickson 93 Hellings v. Shaw 779 Hellman v. Strauss 381 , 389 Helphrey v. Chicago, etc., R. R. Co. 889 Helps V. Winterbottom 781 Helshaw v. Langley 113 XXXVUl TABLE OF CASES. PAGE. Hemmens v. Bentley 650 Hemmenway v. Mullock 683 Hemmen way v. Stone 689 Hemming v. Trenery 684, 691 Henderson V. Eason 405 Hendricks v. Decker 554, 657, 741 Hendrickson v. Beers 404 Henfree v. Bromley 684, 691 Henley v. Soper 839 Henman v. Dickinson 686 Hennequiu v. Butterfield 369 Hennequin v. Naylor 57 Henneqiiin v. Sands 21 Henry v. Betts 338 Henry v. Daley 761 Henry v. Goldnay 660 Henry v. Henry 835 Henry v. Lowell 550, 651 Henry v. Marvin 558 Henry v. Root 663, 665, 666 Henry v. Staten Island Ry. Co. . 601, 603 Hensler v. Jefrin 324 Hepburn v. Griswold 893 Herbert v. Turball 663 Herkimer v. Rice 192 Herkimer Co. Mut. Ins. Co. v. Fuller. 217 Herman v. Adriatic Fire Ins. Co. . . , 196 Herrick v. Garter 3 Herrick v. Wolverton 146 , 785 Herring v. Hoppock 27, 28, 547 Herring v. Sawyer 931 Hervey v. Nourse 587 Herring v. Willard 30 Herrington v. Robertson 318 Herrman v. Merchants' Ins. Co 196 Hersey v. Benedict 58, 631 Hertzog v. Hertzog 351 Heaketh v. Fawcett 880 Hess V. Fox 384 Hetfield v. Cent. R. R. Co 485 Henshaw v. Robins 82 Hewes v. Jordan 114, 121 Hewett V. Bronson 355, 386 Hewett V. Warren 669 Hewett V. Miller 346 Hewett V. Watkins 503 Hewlett V. Owens 564 Hexter v. Knox 943 Hibbard v. Stewart 549 , 942 Hibblewhite V. McMarlng 11 Hickey v. Burlington Ins. Co 206 Hickling v. Hardey 922 Hickock V. Hickock 407 Hick, In re 850 Hicks V. Whitmore 130 Hidden v. Waldo 878 Hier v. Grant 655 Higgenbotham v. Lowenbein 434 Higgins V. Breen 353 Higgins V. Hopkins 351 Higgins V. Mayer 753 Higgins V. Murray 23, 345 Higgina v. Newtown, etc., R. R. Co. . 375 Higgins V. Reynolds 480 Higgins V. Turner 949 High V. Wilson 552 FAas. Highmore v. Primrose 414 Hillv. Beebe 726, 918 Hill V. Berry 646 Hillv, Covell 581, 584 Hill V. Grav 629 Hillv. Hanford 341 Hill V. Hill 487, 936 Hill V. Meeker 163 Hill V. Meyers ' 282 Hill V. North 91 Hillv. Reed 208, 213 Hill V. Robison 569 Hillv. Thorn 852 Hillv. Winsor 589 Hills V. Lynch 38 Hills V. Mesnard 879 Hills v.Place 899 Hills V. Sughrue 723 Hills V. Varet 645 Hillard v. Austin 370 Hillier v. Allegheny Co. Ins. Co. . . . 206 Himrod Furnace Co. v. Cleveland, etc., R. R. Co Ill Hinckley v. Baxter 563 Hinckley v. Emerson 550 Hinde v. Whitehouse 52 Hinds V. Barton 588 Hinkley v. Kersting 91 Hinsdale v. White 410 Hintermister v. First Nat. Bank 462 Hintley v. Westmeath 380 Hinton v. Locke 90 Hiort v. Bott 570, 573 Hirsch v. Trainer 674 Hirschorn v. Canney 33 Hiscock V. Harris 853, 853, 854, 856 858, 861, 869 Hissong V. Hart 444 Hitchcock V. Cadmus 393 Hitchcock V. Coker 698, 699 Hitchcock V. Covill 65 Hitchman v. Walton 334 Hoag V. Parr 885, 891 Hoag V. Vanderburg Co 451 Hobart v. Hackett 561 Hochster v. De La Tour. . . 738, 738, 739 Hodge V. Sexton 35, 405 Hodges V. Hunt 666 Hodges V. Raymond , 533 Hodges V. Richmond Manuf. Co 356 Hodges V. Shuler 946 Hodgkinson v. Fletcher 330 Hodson V. Wilkins 696 Hoe V. Sanborn 66, 96 Hoes V. Van Hoesen 833, 835, 880 Hoffman v. Armstrong 469 Hoffman v. Carow , 33, 60 Hoffman v. Dunlap 836, 839 Hoffman v. N. T. Cent. & H. R. R R. Co 593 Hoffman v. Union Ferry Co 591 Hofnagle v. N. Y. Cent., etc., R. R. Co 601 Hogan V. Brooklyn 943 Hogwood V. Edwards 474 Hogsett V. Ellis 281 TABLE OF CASES. xxxix PAGE. Holbrook v. Wight 579, 583 Holcroft V. Barber 354 Holden v. Dakin 89, 90 Holker v. Parker 839 HoUaday v. Marsh 491, 503 Holland v. Hodgson 237 Holley V. Townsend 863 Holliday V.Morgan 80 Hollingsworth v. Napier 53, 106 Hollingsworth v. Swedenborg 340 Hollins V. Fowler 573 Holman V. Dord 8, 81 Holman v. Johngou 095 Holme V. Guppy — Holmes v. Anderson 650 Holmes v. Bell 727 Holmes v. De Camp 413, 931 Holmes v. Holmes 364, 903 Holmes v. Muckrell 800, 806 Holmes v. Mather 610 Holmes v. Nuncaster 553 Holmes v. Rankin 143 Holmes v. Tremper 230 Holmes v. Weed 379 Holmes v. Wetmore 171 Holmes v. Williams 182, 184 Holmes v. Wilson 455 Holtzman v. Castleman 337 Homan v. Liswell 783 Hone V.Allen 310 Hone V. Ballin 310 Hone V. Boyd 210 Hone V. Folger 310 Honegisberger v. Second Ave. R. R. Co 344 Honliston v. Smyth 338 Honsee v. Hammond 450, 518 Hood V. Manhattan Fire Ins. Co 305 Hook V. Pratt 708 Hooper v. Hudson River Fire Ins. Co. 193 Hooper v. Stevens 819 Hooper v. Strasburger 930 Hoover v. Peters 98 Hope Ins. Co. v. Reed 308 Hopf V. Myers 747 Hopkins v. Lane. 773 Hopkins v. Logan 383 Hopkins v. Tanqueray 77, 83 Hopkins v. Wyckoff. 715 Hopping V. Quinn 361 Horn V. Bray 368 Horn V. Cole 940 Hornby v. Cramer 883 Hornby v. Lacy 913 Horner v. Graves. . . 699 Hornerv. Wood 765, 766 Homfager v. Hornfager 660 Horton v. Davis. . . 944 Horton v. Green 77 Horton v. Hendershot 433, 434, 551 556, 557, 558 Horton v. Morgan. 363 Hosford V. Nichols 138, 185 Hotchkiss V. Gage 89, 90 Hotchkiss V. Le.Roy 360 Hovey v. American Mut. Ins. Co 301 PAGE. Howard v. Borden 50 Howard v. Chapman , 912 Howard v. Daly 739, 783 Howard v. Farley 149 Howard v. Hoey 66, 96 Howard v. Holbrook 243 Howard v. Rice 913 Howard v. Sexton 847 Howard v. Shepherd 433 Houbie v. Volkening 885 Hough V. Horsey 179 Houghton V. Houghton 866 Houghton V. Swarthout 443 Hounsell v. Smyth 448 House V. House... 337 Houston V. Laffee 486 Houston V. Pollard 853 Houston V. Shindler 119 Hovey v. Rniitli 228 Howe v. Buffalo, etc., R. R. Co 381 Howe Sewing Machine Co. v. Hanpt. 583 Howell V. Adams 782 Howell v. Kroose 581, 635 Howell V. Mills 713 Howell V. McCoy 450, 518, 520 Howell V. Young 787 Howes V. Woodruff 796 Howland v. Cuykendall 785 Howland v. Edmonds 316, 785 Howland v. Howland 31 1 Howland v. Myer 31 1 Howland v. Rench 933 Howlett V. Howlett 824, 835, 830 Hoyt V. Byrnes 883 Hoyt V. Hall 70 Hoyt V. Gelston 476, 542 Hoyt V. Hoyt • 824 Hoyt V. Sprague 891 Hoyt V. Van Alstyne 542 Hubbard v. Bliss 32 Hubbard v. Briggs 436 Hubbard v. Chenango Bank 890 Hubbard v. Moore 357 Hubbard v. Williamson 685 Hubbell V. Meigs 428 Hubbell V. Rochester 479 Huckins v. People's Ins. Co 206 Hudler v. Golden 636 Hudson V. Johnson 913 Hudson V. Roberts 613 Huebner v. Roosevelt 794 Hughes v. Alexander 753 Hughes v. Wheeler . . 377, 879, 918, 931 Hulbert v. Nichol 830, 821 Hurlbut V. Carter 220 Hull V. Corcoran 560 Hull V. Peters' 884 Hulsman v. Bleaching Co 519 HuHz V. Gibbs 328 Humphrey v. Humphrey 933 Humphreys v. Guillow 689 Humphreys v. Persons 322 Hungerford's Bank v. Dodge 178 Kaai, Me parte 337 Hunt V. Amidon 379 Hunt V. Bate 382 xl TABLE OF OASES. PAGE. Hunt V. Hudson River Fire Ins. Co. . 191 Hunt V. Hunt 234 Hunt V. Johnson 307, 308 Hunt V. Kane 584 Hunt V. Nevers 908 Hunt V. Pratt 543 HuDt V, Eich 479 Hunt V. Singer 67 Hunt V. Wyman 1, 24 Hunter v. Gibbous 797 Hunter v. Hudson River I. & M. Co. . 55 Hunter v. Le Coute 885 Hunter v. Osterhoudt , 926 Hunter v. Welch 406 Hunter v. Wetsell 131, 123 Huntiagton v. Babbitt 809 Huntington v. Finch 689 Huntington v. Havens 937 Huntby v. Beecher 313, 314 Huntress v. Patten 178 Hard v. Green , 378 Hurd V. Hunt 167 Hurd V. Miller 408, 473 Hurd V. West 4, 476, 543 Hurffv. Hires 16 Hurlbert v. Nichol 811 Hurlburt v. Post 773 Hurst V. Bambridge 856 Hurat V. Orbell 401 Hurst V. Parker 811 Husted V. Mathes 318 Hussey v. Sibley 930 Huston V. Stringham 179 Hustons V. Winans 839 Hatchings v. Miner 363 Hutchings v. Munger 28 Hutchins v. Masterson 333 Hutchins v. Shaw 468 Hutchinson v. Bell 924 Hutchinson v. Brand 433, 443 Hutchiusoa v. Ford 11 Hutchinson v. Hutchinson 356 Hutmaker v. Harris 1 Hyatt V. Esmond 314, 316, 318 Hyatt ». Wait 145, 314 Hyatt V. Whipple 316, 316 Hyde v, Cookson 5, 55, 559 Hyde v. Goodnow 185, 187 Hyde v. Johnson 809 Hyde v. Lathrop ... 18 Hyde v. Stone 146, 564 Hyiand v. Sherman 97 Hynds v. Schenectady Co. Mat. Ins. Co 196 Hyuis V. Shultz 520 Hynes v. McDermott 299 111. Cent. R. R. Co. v. Graybill 449 Illinois, etc., R. R.Co. v. Hetherington 593 Ilott V. Wilkes 549, 550 Imbert v. Hallock 433, 550 Imlay V. Wikoff 857 Imperial Gas-light Co. v. Broadbent. 445 Imperial Gas Co., v. London Gas Co. 797 Independent Ins. Co. v. Agnew 206 Indianapolis, etc., R. R. Co. v. Petty. 506 PAGE, Indianapolis, Peru & Chicago R. R. Co. V. Tyng 427, 630 Ingalls V. Lee 170 Ingersoll v. Skinner 468^ Ingraham v. Baldwin 674 Ingraham v. Gilbert 338, 382, 871 Ingraham v. Hammond 640 Inman v. Qriswold 914 Inman v. Western Fire Ins. Co. 201, 302 Innes v. Stephenson 911 Inslee v. Hampton 738 Inslee v. Lane 109 Insurance Co. v. Boon 207 Insurance Co. v. Norton 198 Ireland V. Horsemen 553, 573 Ireland v. Johnson 124 Irvine v. Milbank 838 Irvine v. Stone 135 Irvine v. Wood 414 Irving V. Excelsior Fire Ins. Co. 193, 303 Irving V. Thomas 93 Irving V. Wilson 400 Isaacs V. Beth Hamedash Soc . . 838, 851 Isaacs V. N. Y. Plaster Works. . . 44. 133 ■ 348 Isherwood v. Whitmore 896 Isle Royal Mining Co. v. Hertin 567 Ives V. Goddard 737 Ives V. Jones 696 Ives V. Van Epps. 657, 757, 758, 760, 763 Jacks V. Nichols 168, 176 Jackson v. Ambler 853, 856, 857, 861 863, 867 Jackson v. Bartlett 439, 913 Jackson v. Bradford 938 Jackson v. Brinkerhoflf 939 Jackson v. Brookins 646, 649 Jackson v. Burchin 665, 667 Jackson v. Bull 938 Jackson v. Cadwell. 397 Jackson v. Campbell 149 Jackson v. Carpenter 665, 667 Jackson v. Covert 136 Jackson v. Crafts 883 Jackson v. De Long 856 Jackson v. Dement 936, 938 Jackson v. Fassitt 183, 184 Jackson v. Gurnsey 397 Jackson v. Harder 476 Jackson v. Harper , 948 Jackson v. Hasbrouck 553 Jackson v. Hazen 476 Jackson v. Hoffman 935 Jackson v. Hubble 938 Jackson v. Johnson 937 Jackson v. King 631 Jackson v. Malin , 691 Jackson v. Murray 938 Jackson v. Myers 477 Jackson v. Osborne 693 Jackson v. Packard 176 Jackson v. Parkhurst 936 Jackson v. Roberts 215, 319 Jackson v. Shaffer 736, 727 Jackson V. Spear 940 TABLE OF CASES. xli PAGE. Jackson v. Stevens 936 Jackson t. Stackhouae. 823, 824, 828, 830 Jackson v. Van Slyke 308 Jackdou V. Wheeler. 936 Jackson v. Willaon 937 Jacksou V. Winue 299, 300 Jackson v. Wright 938 Jacob V. Emmet 151 Jacobs V. AUard 518 Jacobs V. Allen 290 Jacobs V. Morange 383 Jaeger v. Kelley 296 James v. Griffin 107 James v. Isaacs 870 James v. Le Roy 437 James v. Muir 110 James v. Patten 113, 282, 800 Jamison v. Cornell 943 Jamieson v. Millemann 486, 487 Jamison v. Ludlow 396 Janvrin v. Town of Exter 399 Jaques v. Public Administrator 299 Jarrett v. Kennedy 425 Jarvis v. Driggs 742 Jassoy V. Horn 144 Jaycox V. Caldwell 307 Jencks v. Alexander 927 Jelliet V. Broad 697 Jenkins v. Getting 231 Jenkins v. Gillespie 839 Jenkins v. Hooker 703 Jenkins v. Tucker 386 Jenks V. Robertson 680 Jenness v. Wendell 134 Jennings v. Chenango Co. Mut. Ins. Co 197 Jennings v. Brown 708 Jennings v. Broughton 67 Jennings v. Jones 935 Jennings v. Mendenhall 895 Jennings v. Rundall 669 Jennings v. Throgmorton 411, 708 Jervoise v. Silk 336 Jessup V. Hulse 296 Jewell V. Harrington 939 Jeremy v. Goochman 383 Jewell V. Wright 138, 185 Jewett V. Miller 940 Joest V. Williams 677 Johns V. Bailey 356 Johns V. Johns 300 Johnson v. Bank of U. S 689, 690 Johnson v. Berkshire Ins. Co 206 Johnson v. Browne 3 Johnson v. Buck 245 Johnson v. Bush 719 Johnson v. Carnly 631, 644 Johnson v. Cattle 117 Johnson v. Couillard 583 Johnson v. Comstock 551, 884 Johnson v-. De Peyster 783 Johnson v.. Elwood 633 Johnson v. Gibson 335 Johnson v., Gilbert 130, 273, 919 Johnson v.. Ea&pp 264 Johnson v. Luxton 736 PAflK. Johnson v. May 408 Johnson v. Miln 244, 760 Johnson v. McQinness , 397 Johnson v. McLane 84 Johnson v. Monell 57 Johnson V. Oppenheim 410 Johnson v. Parmely 937 Johnson v. Powers 561 Johnson v. Silsbee 341 Johnson v. Smith 744, 751, 752 Johnson v. Titus 903 Johnson v. Weed 919 Johnston v. Allen 331 Johnston v. Brannau 151 Johnston v. Columbia Ins. Co . . 900, 902 Johnston v. Peugnett 321, 322 Johnston v. Sumner 330 Johnston v. West of Scotland Ins. Co. 207 Johnstown Cheese Manuf. Co. v. Veghte 515, 516 Jolly V. Rees 330 Jones V. Barkley 729 Jones V. Barlow 386 Jones V. Bradner 38 Jones V. Broadhnrst 870 Jones V. Bullitt 914 Jones V. Caswell 713 Jones V. Cook 441 Jones V. Cuyler 857 Jones V. Earl 109 Jones V. Estis 463 Jones V. Fort 563 Jones V. Hake 173 Jones V. Jincey 352, 355 Jones V. Judd 722 Jones V. Just 91 Jones V. Mechanics' Bank 117 Jones V. Murray 98 Jones V. Perry 613 Jones V. Roddick 399 Jones V. Ryde 915 Jones V. Savage 931 Jones V. Seligman 506 Jones V. Sheldon 496 Jones V. Walker 315, 378 Jones V. Wasson 93 Jones V. Welwood. 841, 843, 853, 856, 866 Jones V. Woods 355 Jordan v. Hyatt 847, 863, 867 Jordan v. National Shoe and Leather Bank 771 Joselyn v. Joselyn 405 Josliu v. Cowee 74 Jowers V. Blandy 33 Joyce V. Adams 81, 88 Jube V. Brooklyn Fire Ins. Co. . 197, 803 Judd V. Ensign 883 Judd V. Dennison , 757 Judd V. Fox 633, 637 Judge V. Cox 613 Jadson v. Cook 546 Judson V. Gray 371, 372 Judson V. Wass , 733 Junction R. R. Co. v. B'k of Ashland, 172 Justice V. Lang 118 Jutte Yi Hughes 458, 524 xlii TABLE OF CASES. PAGE. Kain v. Fisher 237 Kain v. Old 78 Kain v. Smith 604 Kane, Matter of 336 Kane v. Fond du Lac 838 Kane v. Johnston 715 Kane v. Smith 148 Kans. Pac. Ry. Co. v. Wyandotte Co. 398 Kaufman v. Griesemer 534 Kavanaugh v. Day 139 Kay V. Whittaker 178 Kasson v. People 750 Kayser v. Sichel 65, 130 Kearney v Fitzgerald 649, 650 Keating v. N. T. Cent., etc., R. R. Co. 597 Keay v. New Orleans Canal Co 457 Keeler v. Bartine 838 Keeler v. Davis 940 Keeler V. Field 30, 35 Keeler v. Neal 873 Keeler v. Salisbury 680, 833 Keeler v. Vandervere 16, 135 Keeney v. Home Ins. Co 304 Keep V. Kaufman 147 Keep V. Keep 839, 863 Keese v. N. Y. Cent. R. R. Co 591 Keflfe V. Milwaukee, etc., R. R. Co.. . 594 Kein v. Tupper 46, 135 Keith V. Pinkham 597 Keller V. Phillips 337 Kellerman v. Arnold 650 Kelley v. Upton 13, 15, 18, 133, 346 Kellogg V. Curtis 947 Kellogg V. Gilbert 439, 913 Kellogg V. Hickok 148, 163 Kellogg V. Richards 873, 914 Kellogg V. Slawson 390, 295 Kellor V. Philips 337 Kelly V. Commonwealth Ins. Co. of Penn 194 Kelly V. Mayor of N. Y 599, 600 Kelly V. Solari 394 Kelly V. West 881, 884, 899 Kelsey v. Darrow 847 Kelsey v. Durkee 231 Kelsey v. Griswold 582 , 787 Kelso V. Tabor 333 Kelty V. Long 317 Kemp V. Balls 870 Kemp V. Neville 431 Kendrick v. Forngy 380 Kennedy v. Brown 415 Kennerly v, Nash 145 Kennett v. Milbank 803, 809 Kenney v. Planer 488 Kennistou v. Merrimack Co. Ins. Co. 306 Kenny v. First Nat. Bank of Albany. 910 Kenny v. People 678 Kent V. Hudson River R. R. Co 740 Kentv. Kent 355, 356 Kent V. Reynolds 833 Kent V. Walton 173, 184 Keuyon v. N. Y., etc., R, R. Co 594 Kercheis v. Schloss 393 Kermeyer v. Newby 917 Kerr v. Kerr. . ; 224 I'AGK. Kerr v. Mount 435 Kershaw v. Cox 690 Ketchum v. Barber 169 Keteltas v. Fleet. '. 65 Keyser v. Harbeck 59. 60, 584 Keyser v, Waterbury 638 Kidd V. Belden 27. 950 Kiddell v. Burnard 80 Kidder v. Hunt 353 Kiernan v. Rocheleau 65 Kiersted v. Orange & Alexandria R. R. Co 408, 409 Kilgore v. Wood 565 Kill V. Hollister 839, 840 Killmore v. Hewlett 128, 379 Killough V. Alford 916 Kilner v. O'Brien 160 Kimball v. Brown 795 Kimball v. Keyes 331 Kimberly v. Patchin 16, 53 Kincaid v. Archibald 799, 806 Kincaid v. Brunswick 883 Kincaid v. Logue 479 Kincannon v. Carroll 690 King v. Bowen 853 King V.Brown 279,380, 719 King V. Despard 270 King V. Finch 883 King V. Fitch 56, 58, 71 King V. Fuller 737 King V. Haley 645 King V. Hoare 660 King V. Macclesfield 353 King V. Morris, etc., R. R. Co 445 King V. N. Y. Cent. , etc., R. R. Co. . . 599 Kingham v. Robins 901 Kingsley v. Balcome 268 Kingsley v. City of Brooklyn. . . 374, 728 Kingsley v. Vernon . , 952 Kingston Bank v. Eltinge 391, 397 Kingston Bank v. Gay 910 Kington v. Kington 915 Kinley v. Fitzpatrick 81 Kinne v. Ford 41 Kinney v. Kiernan 67, 70 Kinney v. Schmitt 683 Kinnier v . Kinnier 224 Kinsler v. Pope 873 Kipp V. Wiles 39 Kirby v. Mills 810 Kirciiner v. Myers 646, 650 Kirk v.Blashfield 936 Kirton v. Braithwaite 883, 913 Kissam v. Barclay 330 Kissam v. Roberts 554, 658 Kissock V. House 933 Kitchel V. Schenck 169 Kitchen v. Lee 666 Kitchen v. Place 686 Kleiue v. Catara 868 Klinck v. Price 187 Klingman v. Holmes 343 Kline v. Beebe 666 Kline v. L'Amoreux 671 Kline v. Queen Ins. Co 193 Knapp V. Hyde 933 TABLE OF OASES. xliii PAGE. Knapp V. Smitli 308, 310, 632 Kuapp V. Wallace 363 Kuaus V, Jenkins 845 Knauth v. Bassett 935 Kneetle v. Newcomb 951 Knickerbocker Life Ins. Co. v. Hill. . 180 Knickerbocker Life Ins. Co. v. Nelson, 179 180 Knight V. Albert 448 Knight V. Beach 884. 899 Knight V. Burton 855, 861 Knight V. Clements... 687,814,820, 821 Knight V. Legh 563 KniU V. Williams 689 Knoblach v. Kronschnabel 50 Knowles v. Michel 414, 415 Knowlton v. Congress, etc., Spring Co 388, 695 Knowlton v. Mickles 249, 867 Knox V. Bushell 387 Knox V. Goodwin 161 Knox V. Nutt 269 Knoxv.Lee 893 Kock V. Emmerling 364 Koehler v. Wilson 931 Koehring v. MuemminghoflF 150 Koerner v. Oberly 648 Kohler v. Wells 398 Kohn V. Lovett 448 Konitzky v. Meyer 368, 379 Koon V. Mazuzan 479 Koop V. Handy 104 Kortright v. Cady 901 Kountz V. Hart 689 Kowing V. Manly 331 Krach v. Heilman 646 Kraus V. Arnold 886 Kreisa v. Seligman 718 Kreiter v. Nichols 650 Krom V. Schoonmaker 675 Kromer v. Heim 872, 873 Krone v. Krone 818 Krulder v. Ellison 38 Kuhlman v. Orser 445 Kuhn V. Stevens 679 Kylev.Gray 577 Lack V. Wright 906 Lacker v. Ehoades 58 Lackin v. Del. & Hud. C. Co 148 Lacy V. Wilson 891 Ladd V.Moore 69, 70 Lafarge v. Halsey 761 La Farge v. Herter 176, 941 Lafayette, etc., R. R. Co. v. Huffman. 594 Laflin v. Griffiths 235 La France v. Krayer 649 Laing and Todd, In re 852 Lake v. Artisans' Bank 395 Lake v. Morris 44 Lake v. Tysen 414 Lake Shore, etc., E. R. Co. v. Roach. 636 637 Lakin v. Ames 484 Lamb v. Lathrpp. 897, 898 Lambourne v, .Cprk 831 PAGE. L'Amoreux v. Vischer 946 Lancashire v. Mason 949 Lancaster v. Eve 279 Laneey v. Clark 910 Landers v. Frank St. Church 370 Landers v. Watertown Fire Ins. Co., 196 300, 205 Landis v. Uric 737 Landon v. Emmons 554 Lane v. Atlantic Works 588, 589 Lane v. Dixon 544 Lane v. Hill 415 Lane v. King 337 Lane v. Losee 161, 171 Langdon v. Gray 174 Langridge v. Levy 433, 434, 435 Langtou v. Hughes 716 Langworthy v. Bromley 403 Lanigan v. N. Y. Gas-light Co 596 Laning v. N. T. Cent. R. R. Co 603 Lannen v. Albany Gas-light Co 596 Lansing v. Blair 799 Lansing v. Fleet 440 Lansing v. Montgomery. , 750, 939 Lansing v. Stone 588, 605 LaPage v. McCrea 920 LaPlace v. Aupoix 580 Lappin v. Charter Oak Fire Ins. Co., 330 331 Lar V. Chouteau . 381 Larason v. Lambert 784 Larkin v. Robbing 863 Larabee v. Sewall 593 Lasher v. Northwest Ins. Co 840 Lasher v. Northwest Nat. Ins. Co., 191 193, 195 Lasher v. Williamson 761, 771 Lask V, Scott 108 Latham v. Westervelt 440, 443 Latimer v. Wheeler 546, 631, 643 Lattimore v. Harsen 680 Laurence v. Hopkins 798, 803 Laverty v. Snethen, 583 Law V. Merrills 187 Lawley v. Hooper 619 Lawrence v. American Nat. Bank. . . 897 Lawrence v. Brown 940 Lawrence v. Fox 263 Lawrence v. Gallagher 113 Lawrence v. Griffen 173 Lawrence v. Hunt 740, 754 Lawrence v, Jenkins 504 Lawrence v. Kemp 330, 338 Lawrence V. Kidder 701 Lawrence v. McCready 308 Lawrence v. Nelson 216 Lawrence V. Simmons 63 Lawrence v. Simons 403 Lawrence v. Taylor 375, 280 Lawrence v. Trustees, etc 148 Lawrence v. Woods 680, 873 Lawton v. Keil 77 Layton v. Pierce 731 Lazarus v. Fuller 814 League v. Waring 919 Leame v. Bray 610 xliv TABLE OF CASES. PAGE. Leatherdale v. Sweepstone 886 Leavitt v. DeLanny 169 Lebalister v. Nash 899 Lechmere v. Hawkins 767 Iiedyard v. Jones 444 Lee V. Chadsey 166 Lee V. Clark 936 Lee V. Decker 783 Lee V. Kimball 108 Lee V. Pembroke Iron Co 523 Leeds v. Mechanics' Ins. Co 301 Leggat V. Reed 335 Les;gett v. Bank of Sing Sing 831 Lehmair v. Griawold 776 Lehman v. Marshall 180 Leitch V. Holliater 391 Leland v. Manning 726 Lemere v. Elliott 414 Leonard v. Barker 393 Leonard v. Belknap 569 Leonard v. Collins 603 Leonard v. Fowler 95 Leonard v. Pitney 797 Leonard v. Vredenburgh 364 Le Page v. McCrea 873, 874 Lerned v. Nannemacher Ill Lester V. White 381 Letts V. Brooks 389 Levee Commissioners v. Harris .... 355 Leven v. Smith 19, 35, 131 Levi V. Dorn 937 Levy V. Burgess 134, 907 Levy V. Green 49 Levy's Accounting 393 Lewellen v. Garrett 395 Lewis V. Davison 696 Lewis V. Greider 64, 346 Lewis V. Johns 546 Lewis V. Jones 914 Lewis V. Maloney 660 Lewis V. Mason 107 Lewis V. McMillen 69 Lewis V. Palmer 60, 551 Lewis V. Payn 683, 683 Lewis V. Springfield Ins. Co 207 Lewis V. Stein 450 Lichty V. Hugus 786 Liddle v. Market Fire Ins. Co 199 Lidlow V. Wilmot 381 Lightbody v. North America Ins. Co., 194 Lightbody v. Ontario Bank 916 Lightly V. Clouston 487 Lignot V. Redding 774 Lillie V. Hoyt 405, 407 Limbert v. Fenn 542 Lindner v. Sahler 324 Lindsay V. Davis 81 Lindsley v. Ferguson 69, 620, 625 Line v. Nelson 827 Linsell v. Bonsor 80'? Lincoln v. Buckmaster 586 Liotard v. Graves 148 Lippincott v. Ashfield 265 Lisk V. Sherman. . . 379 Lisle V. Rogers 687, 689 Litchfield v. White 393 PAGE. Littauer v. Goldman 96, 100 Littell V. Nichol's Admra 885 Little V. Banks 363 Little V. Deen 466 Little V. Phoenix Bank 917 Little V. Wilson 250, 353, 354, 654 Littler v. Holland 905 Littlewood v. Williams 400 Li vermore v. Northrop 575 Livermore v. Peru 397 Livesey v. Omaha Hotel Co 907 Livingston v. Bain 103 Livingston v. Bishop 750 Livingston v. Harrison. 889, 901 Livingston v. McDonald. 534 Livingston v. Miller 139 Livingston v. Ralli 840 Livingston v. Stoessel 578 Livingston v. Tremper 343 Livor V. Orser 549 Lobb V. Stanley 800 Lobdell V. Stowell 146, 564 Locke V. Filley. . . 841, 850, 851, 858, 869 Lockhart v. Liohtenthaler 591 Locknane v. Emmerson 689 Lock wood V. Barnes 348, 352 Lockwood V. Bull 556, 583 Lockwood V. Thomas 331 Lockwood V. Thorne 411, 413 Loeschigk v. Bridge 394, 396 Logan v. Houlditch 578 Logue V. Qillick 901 Long V. Greville 817 Long v. Knapp 53 Long V. Warren 623 Longendyke v. Longendyke 311 Lougmaid v. HoUiday 433, 424 Longridge v. Dorville 878 Looby v. Village of West Troy. 879, 880 Loomis V. Cline 343 Loomis V. Decker 803 Loomis V. Ruck 320 Loomis V. Stuy vesant 946 Loop V. Litchfield 590 Loosey v. Orser 443 Loomis V. Pulver 748 Loomis V. Terry 615 Lord V. Kenny 74 Lord V. Ostrander 661 Lord V. Price 556 Lord V. Thompson 328 Losee v. Buchanan 588 Lothrop V. Foster 281 Lounsbury v. Depew 934, 938 Lovett V. Hamilton 906 Lovejoy v. Dolan 608 Loveland v. Ritter 168 Lovell V. Howell 601 Lovell V. Martin 553 Lovell V. Orser 439, 9] 3 Lovelock V. Franklyn 733 Lovett V. Cornwall gig Low V. Pen 10 Lowenstein v. Mcintosh 865, 866 Lower v. Winters 253 Lowndes v. Dickerson 477 TABLE OF CASES. xlv PAQE. Loyd V. Johnson 357, 709 Lloyd V. Johnson 357, 709 Lloyd V. Mathews 363 Lyall V. Edwards 824 Lycoming Ins. Co. v. Barringre 306 Lynde v. Budd 665 Lynch v. Fallon 365 Lynch v. Kennedy 945 Lynch V. McNally 618, 614 Lynch v. Nurdin 344, 594 Lynch v. The Mayor 535 Lynde v. Rowe 335 Lyron v. Blakeman 483, 484 Lyon V. Blossom 845 Lyon V. Clark 153 Lyon V Kramer 569, 575 Lyon V. Valentine 363 Lubbering v. Kohlbrecher 687 Lyon V. Yates 435 Lucas V. Trumbull. 560 Lucus V. Worswick 394 Lucy V. Monflet 51 Ludden v. Hazen 39 Luddington v. BeU. . . . 833, 874, 877, 878 Ludiugton v. Miller 876 Ludlow V. Carman 864 Ludlow V. Grozart ' 857 Ludwig V. Jersey City Ins. Co 194 Lummis v. Kasson 433, 444 Lupin V. Marie 31 Lupton V. Lupton 140 Luse V. Jones 544 Lush V. Druse 189 Luther v. Winnisimmet Co 457 Mabee v. Crozier 184 Maber v. Maber 813 Machin v. Geortner 478 Mack V.Burt 652, 655 Mack V. Mack 308 Mackay v. Mackay 33 Mackie v. Cairns 394, 395 Macomber v. Dunham 187 I^tacomber v. Parker 18 Macon & Augusta E. R. Co. v. Mayes. 599 Maenner v. Carroll 448 Magnin v. Dinsmore 583, 589 Magor V. Chadwick 518 Maguire v. Baker 538 Mazuzan v. Mead 170 Mahaney v. Penman 738 Maher v. Central Park, etc., R. R. Co. 587 Maher v. Hibernia Ins. Co 195, 196 Mahoney v. Atlantic & St. Lawrence R. R.Co 599 Mahony v. O'Callaghan 404 Mahood v. Tealzor 357 Mailer v. Express Propeller Line. . . . 147 Main v. Cooper 479 Mainv.King 74, 389 Main v. Schwarzwaelder 237 Malcom v. Lo veridge 59 Malin v. Malin 691 Malins v. Brown 381 Mallan v. May... 699 Malone V, Hathaway 601, 608 PAGE. Maloney v. Dows 653 Mallory v. Gillett 261, 263, 364 Mallory v. Leach Mallory v. Willis 3, 4, 5 Manby v. Scott 326, 671 Mangam v. Brooklyn City R. R. Co. . 593 594 Manhattan Brass and Manuf. Co. v. Thompson 313, 313 Manhattan Co. v. Osgood 163 Mann v. Evertson 97 Mann v. Wit beck 390, 293, 630 Manning v. Johnson 334 Manning v. Keenan 436 Manning v. Manning 150 Manning v. Winter 655, 768 Manning v. Young 166 Manny v. Harris 155, 893, 899 Mansfield v. Trigg 67 Manwairing v. Sands 330 Maples V. Millon , 331, 335 Marely v. Shults 530 Marine Bank v. Fiske 36, 576, 585 Marine and Fire Ins. Bank v. Jauncy. 918 Marine, etc., Ins. Co. v. Stock well... 308 Markham v. Jaudou 146 Markle v. Hatfield 915 Marland v. Stan wood 46 Marley v. Noblett 257 Marquette, etc., R. R. Co. v. Harlow. 408 Marsack v. Webber 880 Marsden v. Cornell 554 Marsden v. Qoole. ► 888 Marselis v. Seamen 383, 464 Marsh v. Backus 637 Marsh v. Falker 427, 621 Marsh v. Fraser 143 Marsh v. Griffin 689 Marsh v. Howe 159, 160 Marsh v. Martindale 167 Marsh v. N. Y. & Erie R. R. Co 606 Marsh v. Oneida Central Bank 925 Marsh v. Packer 844 Marsh v. Richards 5, 562 Marsh v. Shute 463 Marsh v. TruUinger 523 Marsh v. Wickham 2 Marshall v. Baltimore & O. R. R. Co. 703 Marshall v. Cohen 450 Marshall v. Davis 633, 684, 640 Marshall v. Gray 350 Marshall v. Oakes 331 Marshall v. York, etc., R. Co 423 Marston v. Gale 486 Marston v. Sweet 254, 654 Martendale v. FoUet 687 Martin v. Angell. 940 Martin v. Barton Iron Works 356 Martin v. Houghton 484 Martin v. Legett 374 Martin v. McCormick 384 Martin v. Payne 343 Martin v. Riddle 824 Martin v. Robson 333 Martin v. Silliman 363 Martin v. Williams 853, 862 xlvi TABLE OF CASES. PAGE. Martin v. Wood 442 Martineau v. Kitching 19 Marvin v. Peeter 162 Marvin v. McCullum 173 Marvin v. Pardee 456 Marvine v. Hymers... 162, 163, 167, 168 Marx, Matter of 337 Maryland v. Baltimore, etc., R. R. Co. 894 Mason v. Anthony 183 Mason v. Bradley 689 Mason v. Breslin 257 Mason v. Decker Ill Mason v. Hill 509 Mason v. Libbey 307 Mason v. Lord 1 81 Mason v. Wallis 850 Mason v. Williams 942 Mason's Bx'rs v. Alston 935 Masson v. Bovet 67, 68, 71 Massoth V. Delaware & H. Canal Co. . 587 Master v. Miller 687, 692 Masters v. Barrette 686 Mather v. Crawford 948 Mather v. Perry 271 Mathews v. Baxter 677 Mathews v. Harsell 554 Mathewson v. Perry 340 Matson v. Farm Buildings Ins. Co. . 196 Matson v. Trower 849 Matteson v. N. Y. Cent. R. R. Co 301 Matte wau Co. v. Bentley. 65, 67, 70, 73 575 Matthews v. Coe 146, 166 Matthews v. Piestel 544 Mattice v. Allen 132 Mattison v. Marks , 911 Mattocks V. Young 890 Matts v. Hawkins 501 Maxamilian v. Mayor 600 Maxey v. Larkin 661 Maxon v. Scott 313, 319 Maxwell v. Longenecker 406 May V. Burdett 613 May V. Harvey 580 Mayberry v. Willoughby 814 Maybee v. Sniffen 683, 693 Mayer v. Friedman 789 Mayer v. Mayor of New York ....... 397 Mayfield v. Moore 372 Mayfield v. Wadsley 125 Mayor v. James 653 Mayor v. Ricker 384 Mayor, etc. , v. Swan 480 Mayor, etc. , v. Ward 480 Mayor of Alexandria v. Patten 925 Mayor, etc., of Auburn v. Draper .... 405 Mayor, etc., of N. Y. v. Bailey. . 532, 599 Mayor, etc., of N. Y. v. Butler. . 859, 863 868, 869 Mayor, ete., of N. Y. v. Exchange Fire Ins. Co 230 Mayor, etc., of N. Y. v. Hamilton Fire Ins. Co 199 Mayor, etc. , of N. Y. v. Hyatt 464 Mayor of New York v. Mabie. . . 759,760 Mayor, etc., of N. Y. v. Ordrenan. . . . 463 PAGE. Maze V. Miller 872 McAlpin V. Powell 449 McAnhur v. Pease 444 McArthur v. Wilder 3 McBride v. Hagan 841, 852 McButt V. Hirsch 728 McCabe v. Farm Buildings Ins. Co . . 196 McCahill v. Kipp 597 McCaig V. Erie Ry. Co 605 McCall V. Nave 876 McCalment v> Whitaker 513 McCamus v. Citizens' Gas-light Co . . . 598 McCartee v. Chambers 373 McCartney v. Welch 307 McCarty v. Blevins 10 McCaughey v. Smith 688 McCay v. Barber 97 McClave v. Paine 364 McClelland v. West 80S McCleeryv. Allen 394 McClung V. Kelley 85 McCoUum v. Seward 141 McConnell v. Blood 387 McConnell v. Murphy 47 McCoon V. Smith 939 McCormick v. Horam 534 McCormick v. Kansas City, etc. , R. R. Co 534 McCormick v. Pennsylvania R. R. Co. 147 McCormick v. Penn. Cent. R. R. Co. 311 571, 573, 575, 579, 583 McCourt v. People 474 McCoy V. Artcher 98 McCoy V. Huffman 341, 664 McCrackan v. Chowell 83 McCrea v. Purmort 375, 383, 831 McCready v. Woodhull 566 McCready v. Wright 51 McCreery v. Willett 443 McCue V. Garvey 387 McDonald v. Buffum 443 McDonald v. Christie 765 McDonald v. Hewitt 15, 28 McDonald v. Pierson 24 McDonald v. Williams 133, 135 McDougall v. Cooper 396, 876 McDougald v. Dougherty 883 McDougall V. Fogg 903 McDougall V. Travis 640 McDowall V. Thomas 867 McDuiBe v. Beddoe 441 McEachron v. Randies 64, 847 McElfresh v. Kirkendall 333 McBlroy v. McLean 390 McEntee v. N. J. Steamboat Co. 571, 579 McEntee v. Scott 36 McEvoy v. Humphrey 650 McFarland v. Crary .". 358 McGarrell v. Murpty 482 McGarry v. Loomis 594 McQavie v. Chamberlain 147 McGavock v. Woodlief 864 McGeary v. Osborne 234 McGibbon v. Schlessinger 64, 346 McGiffiu V. Baird 98, 101, 103 McGinn v. Worden 558, 581 TABLE OF CASES. xlvii PAGE. McGirr v. Sell 32 McQivney v. Phoenix Fire Ins. Co. . . 193 McGlucky v. Bitter 251, 254 McGoIdrick v. Willits 34, 85 MoGoon V. Shirk 894 McGoven v. Avery 395 McGrath v. Clark 686, 687 McGraw v. Fletcher 89, 91 McGraw v. Walker 783 McGregor v. Brown 379 McGrew v. Forsyth 810 McGuinty v. Herrick 545, 737 McGuire v. Callahan 677 McGuire v. Van Pelt 180 McGutchen v. McGayhay 330 McHard v. Whetcrof t 884 McHose V. Fulmer 349 Mclniffe v. Wheelock 883 Mclntyre v. Kline 55 Mclntyre v. Ogdeu 653 Mclntyre v. Preston 208 Mclntyre v. Williamson 834 McKeage v. Hanover Fire Ins. Co. . . . 231 233 McKee v. Cheney 704 McKee v. Judd 580 McKeon v. Hagan , 321 McKenzie v. Parrell 243, 653 McKeon v. See 458 McKeon v. Whitney 410 McKerras v. Gardner 740 McKinstry v. Solomons 846 McKinnev v. Snyder 810 McKnight v. Devlin . . 754, 758, 763. 764 McKnight v. Dunlop.. 116, 143, 349, 754 830 McKnight v. Hunt 652 McKnightv. Walsh 837 McKnight v. Wheeler 185 McKone v. Wood 615 McKyring v. Bull 658 McLain v. Van Zandt 594 McLaughlin v. Washington Co. Mut. Ins. Co 203 McLean v. Farden 479 McLean v. Hugarin 787 McLean v. Nicholl 110 McLees v. HalL : 355 McLeod V. Jones 44, 488 McLudon v. Frost 367 McMahon v. New York & Erie R. R. Co 139, 140, 148 McManus v. Finan , 451 McMaster v. Prest., etc., Ins. Co. North America 203 McMuUen v. RafEerty 784 McMurray v. Ra wson 405 McNabb v. Pond 481 McNamara v. Edmister 63 McNamee v. Tenny 801 McNaughton v. Cameron 573 McNeal v. Emerson 488 McNeil V. Tenth National Bank. . 32, 85 McNeilly v. Richardson 899 McNiel V. Davidson , . . 358 McNitt V. Clark 731 McPherson v. Cheadell 369, 715 McPherson v. Cox 355 McRea v. Cent. Nat. Bank of Troy. . . 233 333 MoVeany v. Mayor of New York 373 McVean v. Scott 688 McVey V. Cantrell 317 McWhorter v. McMahon 383 Meacham v. CoUignon 556 Mead v. Bunn 634 Mead v. Case 127 Mead v. Degolyer 39, 45, 48 Mead v. Stratton 645, 646, 647, 649 Mead v. Northwestern Ins. Co 198 Meagher v. DriscoU 481 Mears v. London, etc., R. R. Co 545 Mechanics' Bank v. Hazard 913 Mechanics' Bank of Brooklyn v. Towusend 182 Mechanics' Bank of Williamsburgh V. Foster 659 Medbury v. Watrous 664 Meech v. Smith 141 Meech v. Stoner 404 Meeker v. Wright 301, 307 Meister v. Birney 943 Meister v. Moore 399 Mellen v. Hamilton Fire Ins. Co. 301, 304 Mentges v. N. Y. & Harlem R. R. Co. 598 Meuges v. Frick 783 Mercer v. Jackson 343 Mercer v. Vose 141 Merchant v. Bunnell 310 Merchants' Bank v. Curtiss 871 Merchants' Bank v. Griswold 138 Merchants' Bank v. Livingston 558 Merchants' Exch. Bk. v. Commercial Warehouse Co 179, 180, 181 Merchants' Nat. Bank v. Sells 438 Merchants' Mut. Benefit Ins. Co. v. Leeds 210 Merchants' Mut. Ins. Co. v. Rey 309 Merchants' Mut. Ins. Co. v. Under- wood 210 Meriden Britannia Co. v. Zingsen. . . . 780 Merriam v. Field 78 Merrick v. Suydam 641 Merrick v. Trustees 695 Merrill v. Agricultural Ins. Co. . 197, 717 Merrills v. Low 187 Merriou v. Field 97 Merritt v. Benton 168 Merritt v. Brinkerhoff 517, 531 Merritt v. Earl 856, 720 Merritt v. Millard 393, 403 Merritt v. Read 435 Merry weather v. Nixon 386 Merwin v. Star Fire Ins. Co 191 Meserole v. Archer 588 Messmore v. N. Y. Shot and Lead Co. 87 349 Metcalf V. Baker 591 Metropolitan Bank v. Van Dyck 893 Metropolitan Society v. Brown 235 Metz V. Albrecht 18, 133 Meyer v. Amidon 437 xlviii TABLE OF CASES. PAGE. Meyer v. Muscatine . . 162 Meyer v. Roosevelt 893 Meyer v. Second Ave. K. E. Co 548 Michel V. Ware 98 Michigan, etc., R. R. Co. v. Danham. 899 Mickles v. Tou.sley 549 Middlebury College v. Chandler 671 Middle District Bank v. Deyo 440 Middleditch v. Ellis 727 Middleton v. Pritchard 509 Middleton v. Weeks 861 Milarkey v. Foster 447 Milburn v. Belloni 8 Miles V. Bacon 380 Miles V, Gorton 559 Milgate v. Kebble 559 Milk V. Rich 266 Millard v. Hewlett 664 Millard v. Jenkins 443 Millard v. Whitaker 726 Miller v. Adams 551 Miller v. Adsit 632 Miller v. Auburn & Syracuse R. R. Co. 484 Miller v. Barber 58, 621, 755 Miller v. Baschore 798 Miller v. Branham 789 Miller v. Burroughs 137 Miller v. Callaway , 431 Miller v. Church 455 Miller v. Coates 877, 933 Miller v. Cook 243 Miller v. Covert 746. 747 Miller v. Eagle Ins. Co 192, 204 Miller v. Erwin 176 Miller v. Trenton 386 Miller v. Finlev 675 Miller v. Gilleiaud 687 Miller v. Gilmau 772 Miller V. Hull , 177 Miller v. Irish 363 Miller v. Jones 18 Miller v. Kirby 541, 542 Miller v. Laubach 524 Miller v. Manice 738, 751, 753 Miller v. Martin 587 Miller v. Miller. 512, 932, 933 Miller v. Patterson 650 Miller v. Plumb 234 Miller v. Roessler 706 Miller v. Switzer 333 Miller v. Van Anken 864 Mills V. Fowkes 818, 935, 926 Mills V. Gould 64, 134 Mills V. Hunt 124 Mills V. Martin 637 Mills V. Mills 703, 704, 711 Mills V. Saunders 154 Mills V. Starr 686 Mills V. Wyman 338 Mill ward v. Littlewood 724 Milne v. Gratrix 844 Milner v. Field 906 Milnes v. Duncan 394 Millspaugh v. Mitchell 576, 642 Miner v. Mayor, etc., of New York. . . 273 Minick v. City of Troy 310 PAGE. Minton v. Wood worth 439, 464 Mitchel V. Reynolds 697 Mitchell V. Bush 867 Mitchell V. Carrone 867 Mitchell V. Cook 884 Mitchell V. Griffin 267 Mitchell V. Hawley 879 Mitchell V. Merrill 897 Mitchell V. Vermont Copper Mining Co 895 Mitchell V. Williams 577, 583 Mitchell V. Worden 56, 57, 59 Mobile, etc. , R. R. Co. v. Jones . ... 260 Moens v. Heyworth 425 Moflfat V. Parsons 883 Moffatt V. Dickson 906 Moffatt V. Van Doren 644 Mohawk Bank v. Broderick 917 Mohney v. Evans 336 Mohr V. Boston, etc., R. R. Co 107 Mollett V. Wackerbarth 684 Mollison V. Eaton , 551 Molton V. Camroux 673 Mondel v. Steel 733 Moukman v. Shepherdson 383 Monnett v. Sturgess 163 Monnot v. Ibert 583 Montague v. Benedict 326 Monterey, etc., Plankroad Co. v. Chamberlain 466 Monterey, etc., Plankroad Co. v. Faulkner 466 Montgomery v. Hutchinson 447 Monroe v. Chaldeck 900 Monroe v. HofE 919 Moody V. Buck 566 Moody V. Keener 563 Moody V. Moody 776 Moody V. Smith 275, 279, 280 Mooney v. Manghan o47 Moore v. Bixby 118 Moore v. Campbell 47 Moore v. Cockroft 853, 859 Moore v. Davis 739 Moore v. Deyoe 178, 180 Moore v. Erie R. R. Co 569 Moore v. Fox 254. 369 Moore v . Harvey 408 Moore v. Holland 5 Moore v. Hudson River R. R. Co 733 Moore v. McKibbin 582 Moore v. Metropolitan Nat. Bank ... 34 Moore v. Noble 350 Moore v. Piercy 24 Moore v. State 785 Moore v. Westervelt 359, 430 Moore v. Weston 834 Moran v. McLarty 620 More V. Howland 169, 170 Morehouse v. Comstock 92 Morehouse v. Crilley 458 Morenus v. Crawford 649 Morey v. Medbury 18 Morford v. Davis 185 Morgan v. Bain 63 Morgan v. Birnie 906 TABLE OF CASES. xlix PAGE. Morgan v. City of Hallowell 449 Morgan v. Cox 668 Morgan v. Ooyne 392 Morgan v. Dudley ; 431 Morgan v. Gregg 570 Morgan v. Groflf 718 Morgan v. Hughes 330 Morgan y. Mechanics' Banking Assn. 160 177 Morgan v. Palmer 400 Morgan v. Plumb 743, 787 Morgan v. Powers 77 Morgan v. Rowlands 812 Morgan v. Skidmore 736 Morgan v. Smith 51 Morrill v. Aden 669 Morrill v. Cooper 377 Morrill v. Moulton 561 Morris v. Chapman 696 Morris v. Danielson 634 Morris v. De Witt 639 Morris v. Floyd 179 Morris v. Grier 839 Morris v. Martin 330 Morris v. Rexford 74 Morris Run Coal Co. v. Salt Co 867 Morri.s v. Shryock 108 Morris v. Slite 730 Morris v. Thompson 93, 98 Morrison v. Buchanan 568 Morrison v. Currie 910 Morrison v. McKinnon 172 Morrison v. N. Y. Cent. R. R. Co 592 Morrow v. Congan 653 Morrow v. Morrow 807 Morse v. Bogert 376 Morse v. Brackett 67 Morse v. Hovey 178 Morse v. Wilson 163 Morss V. Osborn 754 Morss V. Stone 5 Mortlock V. BuUer 619 Morton v. Gloster 560 Morton v. Ostrom 383 Morton v. Tibbett 115, 119 Moseley V. Moseley 296 Moses V. Bierling 364 Moses V. Mead 97, 98 Moses V. McFarlane 391 Moses V. Trice 918 Mosher v. Carpenter 947 Moshier v. Utica & Schenectady R. R. Co 454 Moss V. Sweet 23 Mott V. Consumers' Ice Co 595, 941 Mott V. Burnett 773 Mott V. Comstock 831 Mott V. Mott 697 Mott V. Palmer 380, 469 Mott V. Robbins 710 Mottram v. Hever 106, 110 Mottram v. Mills 378, 837 Moule V. Brown 917 Moulton V. Bennett 400 Mount V. Derick 579 Mount V. Lyon 134, 348 G PAGE Mowatt V. Wright 888. 394, 397 Mowbray v. Cady 24 Mowbry v. Mowbry 337 Mowrey v. Walsh 58, 59 Mowry V. Chase 234 Mowry v. Bishop 148, 149, 162 Mowry v. Central City Ky 586 Mowry v. Shumway. 163 Moyer v. Shoemaker 391, 407 Muckey v. Howenstine 345 Mudrock v. Aikin 393 Muir V. Schenck 835 Muldon V. Whitlock 919, 930 Mulford V. Clewell 648 Mulhado v. Brooklyn City R. R. Co. . 597 Mulheisen v. Lane 578 Mullain v. Thomas 89 Mullaly V. Mayor 716 Muller V. Eno 65, 66, 74, 760 MuUer v. McKesson 613, 614 Muller V. Pondir 105 MulvehuU V. Mill ward 343 Mulvey v. State 333 Mumford v. Brown 482 Mumford v. Hawkins 143 Mumford v. McPherson 104 Mumford v. Whitney 485, 488 Munch V. N. Y. Cent. R. R. Co 598 Munger V Hess 669 Munro v. De Chemant 331 Munro v. Potter 815 Munroe v. Alaire 853 Munroe v. Butt 353 Munroe v. Gates 531 Murden v. Priment 763, 774 Murdock v. Chenango Co. Mut. Ins. Co. 195 197 Murdock v. Gifford 337 Murdock v. Prospect Park, etc., R. R. Co 486 Murfey v. Brace 58 Murphy v. Boston & Albany B. R. Co. 601 603 Murphy v. Deane 591 Murphy v. Ottenheimer. 335 Murphy v. Smith 603 Murphy v. Winchester 8 Murray v. Bethune 903 Murray v. Burling 575 Murray v. Fisher 790 Murray v. Judson 178 Murray v. Mann 435 Murray v. Richards 401 Murray v. Sells 939 Murray v. Smith 76, 77, 285 Murray v. Vanderbilt 403 Mussen v. Price 932 Mustard v. Wohlfard 72 Mutual Benefit Life Ins. Co. v. Davis 209 Mutual Life Ins. Co. v. Hunt 674 Myers v. Byington 886 Myers v. Dixon 862 Myers v. Van Alstyne 464 Mygatt V. N. Y. Protection Ins. Co. . . 212 215 Mygatt V. Washburn 645, 788 1 TABLE OF CASES. PAGE. Mygatt V. Wilcox . 141, 786 Mynard v. Syracuse, etc., R; K. Co. . . 589 720 Nagle V. Baylor 675 Nance v. Alexander 408 Nash V. Mayor 383 Nash V. Mitchell.. 313, 314, 315, 316, SaO Nash V. Mosher 544, 634 Natcher y. Natcher 383 Nash V. Russell 397 Nat. Bank y. Lewis 176 National Bank v. Smoot 163 National Bank of Chemung v. City of Elmira 545 National Bk. of Gloyersville v. Place. 175 National Bank of Newburgh v. Big ler 923,933, 934 National Bk. of Newburgh y. Smith. 935 National Fire Ins. Co. v. Loomis .... 283 National Fire Ins. Co. y. McKay 770 National State Bank of Newark v. Boylan 773 National Union Bank of Watertown V. London 377 Nations v. Hawkins 563 Naugatuck Cutlery Co. v. Babcock. . 58 Nave y. Home Ins. Co 307 Naye y. Fletcher 873 Naylor v. Schenck 765 Nazro y. Fuller 686 Neale y. Sheffield 831 Nealley v. Qreenough 933 Neass y. Mercer 379 Neate y. Harding 398 Needles v. Needles 833 NeflF V. Clute 438, 439 Neflf y. Horner 689 NefE v. Thompson 631, 637 Neidig y. Eifler 33, 31 Neil V. Bellamy 367 Neiler V. Kelley 563 Neill y. Popular Life Ins. Co 303 Neligh y. Bradford 837 Nellis V. Bellinger 318 Nellis V. Bradley 70, 71 Nellis y. Clark 403, 695 Nellis y. N. Y. Cent. K. R. Co 599 Nelson y. Cowing 8, 8.') Nelson y. Hyde... 376 Nelson v. Kerr 153 Nelson V. Plimpton Fire Proof E. Co. 134 Nelson y. Robson 890 Nelson v. Vermont & Canada R. R. Co. 599 Nettleton y. Sikes 488 Neyin y. Ladue 467 Newcomb V. Cabell 1 Newbery v. Wall 93, 111, 113, 341 Newcomb y. Clark 373 Newcomb y. Cramer 43, 133 Newcomb v. Raynor 837 Newell V. Griswold 143 Newell V. Nat. Bank of Somerset 163 Newell V. People 718 Newell y. Salmons ; . . 693 Newhall v. Vargas 105 PAGE. New Hampshire Fire Ins. Co. v. Noyes 336 Newland y.- Douglass 867 Newman v. McComas 809 Newman y. Tiernan 431 Newport y . Cook 336 Newsam y. Finch 633, 681 Newton v. Belcher 943 Newton y. Bronson 375 Newton v. Galbraith 897 Newton y. Houck 743 Newton v. Liddiard 943 Newton v. Porter 567 Newton v. Wales 680 New Tork Car Oil Co. v. Richmond. . 573 New York Cent. Ins. Co. v. Nat. Pro- tection Ins. Co 301, 303 New York Cent. R. R. Co., Matter of. 605 New York Fireman's Ins. Co. v. Ely. 163 167 New York Fireman's Ins Co. v. Stur- gess IS''' New York Ins., etc., Co. y. Manning. 137 New York Life & Trust Co. y. Beebe. 171 New York, etc., B. R. Co. v. Marsh. . 383 384 New York State Bank v. Fletcher ... 872 930 New York State Loan and Trust Co. V. Helmer 695, 716 Nexsen v. Lyell 933 Niagara Bank y. Rosevelt 937 Niblack y. Goodman 810 Nichol V. Ridley 283 Nichols V. Bastard 543, 554 Nichols V. Dusenbury 759 Nichols V. McBwen 393 Nichols y. Michael 56, 57, 58, 70, 643 Nichols V. Nussbaum 184, 946 Nichols y. Pinner 57 Nichols V. Rensselaer Co. Mut. Ins. Co 849 Nichols v. Townsend 66, 757 Nichols y. Tracy 838 Nicholson v. Bradford Union 49 Nicholson v. Leayitt 294 Nickleson y. Stryker 343 Nickelson v. Wilson 713 Nlckley v. Thomas 638 Nickodemus v. East Saginaw 398 Nightingale y. Chaffee. , 918, 919 Niven v. Belknap 943 Nixon V. Jenkins 383 Noble y. Holmes 434, 557 Noble y. Kelley 835, 831 Noble V. Smith , 441 Noble y. Sylvester 563 Nobles v. Bates ■ 697 Nodine v. Doherty 705 Noe v. Christie 880 Noel V. Murray 373, 919 Nolan y. Whitney 906 Nolton v. Western R. R. Co 423 Nonea y. Homer 250, 253, 354 Noonan v. City of Albany 524 Norfolk R. R. Co. v. McNamara 737 TABLE OF CASES. PAGE. Norris v. La Farge 757 Norris v. Wood 945 Nortliam v. Bowden 563, 564 North American Fire Ins. Co. v. Mowatt 155 Noitliern R. R. Co. v. Miller 216 Northrop v. Burrows 457 Northrap V. Hill 786 Norton v. Coons 385 Norton v. Ellam 784 Norton v. Fagau 330 Norton v. Marden 395 Norton v. Rensselaer and Saratoga Ins. Co 308 Norton v. Schoiefield 450, 580 Norton v. Wales 346 Norton v. Wehb 731 Norton v. Woodruff 3 Norway Plains Co. v. Bradley 523 Norwich v. New Berlin 716 Nourse v. Prime 164 Nowlen v. Colt 568 Noyes v. Chapin 385 Noyes v. Terry 337 Nurse v. Craig 331 Nye V. Moseley 707 Oakey v. Wilcox 686 Oakland R. E. Co. v. Fielding 343 Oakley v. Boorman 903 Oats V. Hudson 933 Oberlander v. Speis 427 O'Blenis v. Karing 761, 771, 773 O'Brien v. Brietenback 135 O'Brien v. Commercia] Fire Ins. Co.. 303 O'Brien v. Norris 106, 109 O'Brien v. Brietenbach 709 Ochsenbein v. Shapley 596 O'Connor v. Bagley 740 Odell V. Greenly 170 Oddv V. James 253 O'Donnell v. Harmon ,. . . , 693 Offley V. Clay 913 O'Flaherty v. Union Ry. Co 594 Ogborn v. Hoffman 876 Ogden V. Aster 416 Ogden V. Barker 718 Ogden V. Benas 395 Ogden V. Bodle 661 Ogden V. Coddington 758 Ogden V. Lucas 563 Ogden V. Prentice 326 Ogden V. Saunders 351 Ogle V. Graham 686 O'Hagan v. Dillon 592 Ohio & Mississippi R. R. Co. v. Kas- son 178, 179 Olcott V. Tioga R. R. Co 789 Olcott V. Rathbone 918 Olcott yi. Wood 841 Old Colony R. R. Co. v. Miller. 516 Oliver v. Fielden 906 Oliver Lee & Co.'s Bank v. Walbridge. 167 168 Olmsted v. Dennis 431 Olmstead v. Hotaling 56, 58, 65 PAGE. Olmstead v. Raymond 439 Olmstead v. Webster 735 Olyphant v. Baker 16, 17 Omaha Horse Ry. Co. v. Doolittle. . . 591 593 Ombony v. Jones 830 Onderdonk v. Ranlett , 744, 750, 755 Oneida Bank v. Ontario Bank 377 Oneida Manuf. Soc. v. Lawrence 76 CNeill V. Capelle 383 O'Neill V. James 943 O'Neil V. Buffalo Fire Ins. Co 304 Oothout V. Thompson 811 O'Reilly v. Good 636 O'Riley v. McOhesney 518 O'Rourke v. Hart 595, 606 Organ v. Stewart 134 941 Ormes v. Dauchy. 696, 943 Orr V. Bigelow 346 Orr V. Williams 897 Orser v. Storms 476 Osborn v. Gautz 33, 78, 93 Osborn v. Schenck 564, 565, 576 Osborne v. Bobbins 931 Osgood V. Carver 547 Osgood V. Dewey 409, 948 Osgood V. Maguire 663 Otis V. Harrison 215, 695 Otis V. Jones 549 Otis V. Sill 940 Otis V. Williams 436, 551 O'Toole V. Garvin 369 Ott V. Schroeppel 859, 860, 869 Ottawa University v. Parkinson 359 Ottawa University v. Welch .• 359 Ottumway Woolen Mills Co. v Haw- ley 283, 387 Otts V. Alderson 92 Ousterhout v. Day 371 Outwater v. Dodge 116, 118, 126 Overton v. Hardin 173 Owen V. Boerum . 842, 844, 855, 859, 860 Owen V. Cawley 313, 317 Owen V. Griffin 317 Owen V. Parsons 355 Owens V. Holland Purchase Ins. Co.. 195 Owens V. Loomis 661 Owens V. State 456 Oxendale v. Wetherill 46 Oxford V. Hallett 476 Oxley V. Watts 548 Pack V. Mayor of New York 599 Packard v. Dunsmore 53 Packard v. Getman 683 Pacific Iron Works v. Long Island R. R. Co 38 Paciffc Iron Works v. Newhall 89 Paddock v. Brown 369 Paddon v. Taylor 35 Page V. Foster 853 Page V. McCrea 914 Paige V. McMillan 34 Paige V. Ott 40, 45, 48 Pain V . Whittaker 545, 559 Palmer v. Conley 464 lii TABLE OF CASES. PAGE. Palmer v. Davis 839 Palmer v. Eldridge 476 Palmer v. Hand 20, 30 Palmer v. Gurnaey 727 Palmer v. Mayor, etc., of New York. 705 Palmer v. North 144 Palmer v. Palmer 784 Palmerton V. Huxford 875, 878 Pankey v. Mitchell 686 Pangburn v. Patridge 632 Panzerbeiter v. Way dell 872 Paradine v. Jane 722 Parchmau v. McKinney 927 Pardeev.Wood 872 Parker v. Baxter 33, 35, 39 Parker v. Byrnes 107 Parker v. Gossage 106 Parker v. Griswold 473 Parker v. Latner 560 Parker v. Parker , 145 Parker v. Ramsbottom 169 Parker v. Schenck 127 Parker v. Shuford 810 Parker v. Staniland 481 Parker v. Walrod 557 Parker V. Wallia 120 Parkham v. PuUlam 162 Parkins V. Cady 919 Parmelee v. Lawrence 827 Parmelee t. Wilks 707 Parrott v. Knickerbocker, etc., Ice Co. 147 Parks V. Francis 248 Parks V. Morris Axe and Tool Co . . . 66 78, 85, 87 Parshall v. Lamoreaux 178, 183 Parsball v. Tillon 653 Parsons v. Aldrich... 853 Parsons v. Chamberlain 784 Parsons v. Dickinson 543 Parsons v. Lloyd , 787 Parsons v. Loucks 55, 127 Parsons v. Sutton 774 Partenheimer v. Van Order 617 Partridge v. Commercial Fire Ins. Co. 196 Partridge v. Gildermeister 135 Pasley v. Freeman 425, 427 Passenger v. Thorburn 86 Pattee v. Qilmore 578 Patnote v. Saunders 889 Paton V. Winter 687, 690 Paton V. Westervelt 295 Patterson v. Birdsall 174 Patterson v. Choate 144 Patterson v. Hull 925 Patterson v. Patterson 386, 772, 781 Patterson v. Westervelt 442 Pattison v. Hull 926 Pattison v. Richards 762, 775 Patron v. Crofts 112 Paul v. Hadley 627 Paul v. Eeed 32 Paulin v. Howser 338 Payler v. Homerahaln 830, 831 Payne v. Burnham 940, 941 Payne v. Eden 711, 712 Payne V. Slate 809, 814 PAOE. Pea V. Pea 234 Peabody v. Bloomer 773 Peabody v. Washington Co. Mut. Ins. Co 193 Peacock v. Dickerson 887 Peacock v. N. Y. Life Ins. Co 204 Peale v. PUibhs 662 Peak V. Lemon 824 Pearce v. Brooks 357 Pearce v. Whale 715 Pearce v. Wilkins 827 Pearl V. Wells 829 Pearpoint v. Graham 783 Pearsell v. Kingsland 178 Pearse v. Pettis 70 Pearse v. Smith. . 33, 556, 561, 570, 575 576, 577 Pease v. Walsh 704 Pease v. Warren 911 Peck v. Briggs 404 Peck V. Burr 718 Peck V. Crouse 391 Peck V. Hotchkiss 661 Peck V. Hurlburt 787 Peck V. N. Y. Cent., etc., R. R. Co. . 596 Peck V. New York & Liverpool U. S. Mail Co 796 Peck V. New York & Liverpool Steam- ship Co 786, 812 Peck V. North Staffordshire R. E. Co. Ill Peckham v. Henderson 456 Pedder v. Watt 909 Peer v. Humphrey 34 Peirse v. Bowles 892 Peltier v. Collins 7, 104 Pelton V. Westchester Fire Ins. Co . . 193 Pemberton v. Vaughan 699, 703 Pembroke Iron Co. v. Parsons 47 Pender v. Fobes 78 Pennebacker v. Tomlinson 204 Penfield v. Thayer 394 Pennell v. Hinipan 939, 940 Penn. Canal Co. v. Bentley 586 Penn. R. R. Co. v. Hope 589 Penn. R. R. Co. v. Kerr 589 Penny v. Corwithe 681 Penny v. Porter 731 Penton v. Robart 330 Penraddock's Case 453 People V. Albany Com. Pleas. . . 637, 638 People V. Ball 459 People V. Bank of North America . . . 563 575 People V. Bartlett 722 People V. Bennett 459 People V. Benton 372 People V. Board of Police 453 People V. Call 689, 690 People V. Cook 723 People V. County of N. Y 927 People V. Crilley 467 People V. Cushney 723 People V. Dennison 775 People V. Dewey 493, 495, 503 People V. Gasherie 153 People V. Goodvrin 285 TABLE OF OASES. liii PAGE. People V. Hopson 431 People V. Hewlett 940 People V. Kelsey 949 People V. Kendall 669 People V. Kolb 462 People V. Lord 711 People V. Manning 720 People V. Miller 372 People V. Monroe Com. Pleas 369 People V. Moores 670 People V. Nostrand -. . . . 431 People V. Onondaga C. P 864 People V. Pettit 329 People V. Roe 467 People V. Runkle 481 People V. Smith 736 People V. Stephens 50, 750 People V. Supervisors 838 People V. Supervisors of Chenango . . 545 People V. Supervisors of Cortland . . . 879 People V. Townsend 848 People V. Tubbs 720 People V. Vilas 749 People V. Warren 483, 550 People V. Young Men's Society 356 Pepper v. Gorham 849 Pepper v. Haight 716 Pepoon V. Stagg 690 Percival v. Hiokey 660 Perring v. Hone 689 Perrine v. Hotohkiss 172 Perkins V. Giles 858,867 Perkins v. Perkins 316, 502 Perkins v. Savage . 402 Perkins v. Washington Ins. Co 194 Perkins v. Wing 861, 867 Per Lee v. Beebe 735 Person v. Giver 23 Perry v. Fitzhowe 457, 487 Perry v. Lansing 591 Perry v. Mulligan 839 Peter v. Steel 353 Peters v. Fleming 670, 671 Peters v. McKeon 401 Peters v. Newkirk 846, 866, 867 Peters V. Opie 729 Peters v. Sanford 735 Peterson v. Haflher '. 338 Peterson v. Knoble 648, 650 Petrie v. Peeter 953 Pettis V. Ray 873 Pettit V. Bradden 369 Peyser v. Mayor 384, 388, 931 Pheasants v. Pendleton 16 Phelps V. Barton 441 Phelps V. Bostwick 401, 407 Phelps V. Cutler 53 Phelps V. Johnson 736, 828 Phelps V. McGee 41 Phelps V. Nowlen 516 Phelps V. Quinn 85 Phelps V. Williamson 799 Phifer v. Cox 480 Philadelphia v. Gilmartin 450 Philips V. Knightley 853 Phillips V. Beal 809 Phillips v. Berick 746, 747 Phillips V. Bevans. , 461 Phillips V. Ballard 917 Phillips V. Hall 546 Phillips V. Mahan 830 Phillips V. Ward 660 Phillips V. Williams 133 Philo V. Butterfield 166 Philpott V. Jones 935, 936 Philpott V. Kelley 574 Phinuey v. Earle 739 Picard v. McCormiok 1 Piokard v. Collins 445, 450, 454 Pickard v. Sears 939 Pickering v. Dowson 98 Pickett V. King 815 Pickett V. Leonard 814 Pickman v. Trinity Church 395 Pidcock V. Bishop 92 Pierce v. Dart 447 Pierce v. Drake 65, 131 Pierce V. Emery 10 Pierce v. P^iunce 154 Pierce v. George 337 Pierson v. Hooker 835 Pierce v. Hosmer 473 Pierce v. Kearney 735 Pierce v. Kirby 838 Pierce v. Morrison 853 Pierce V. Nichols 145 Pierce v. Parker 838 Pierce v. Pierce 339, 409, 875 Pierce V. Schenck 5, 55 Pierce v. Sweet 834 Pierce v. Thomas 363 Pierce v. Van Dyck 577, 634 Pierrepont v. Barnard. 279, 483, 484, 488 Pierson v. Post 471 Pike V. Acker 941 Pilkingtou v. Scott 698, 702 Pillsbury v. Moore 520 Pilsbury v. Webb 573 Pinchon v. Chilcott 415 Pinckney v. Hagadorn 284 Pinckney v. Hegeman 439 Pindar v. Kings Co. Ins. Co 198 Pine V. Rickert 394 Pinkerton v. Bailey 810 Pinnell's Case 914 Pinney v. Andrus 78 Pinney v. Hall 63 Pintard v. Tackington 879 Pippin V. Sheppard 433 Piser V. Stearns. 39, 763 Pitcher v. Turin Plankroad Co 397 Pitkin v. Long Island R. R. Co 248 Pitney v. Glens Falls Ins. Co.. . 133, 205 Pitt V. Smith 677 Pitts V. Beckett 110 Pitts V. Hunt 814 Pitts V. Wooten 809 Pittsburgh, etc., B. R. Co. v. Heck. . 346 Pixley V. Clark 533 Planche v. Colbum 739 Plantv. Gunn 933 Plant V. Schuyler 653 liv TABLE OF CASES. PAGE. Piatt V. Smith 380, 859 Plattv. Stout 400 Piatt V. Tuttle 561 Plimpton V. Curtiss 254 Plowman v. Riddle 897 Plumb V. Cattaraugus Co. Mut. Ins. Co 300, 940 Plummerv. Mold 943 Polhemus v. Heiman 76 Pollak V. Gregory 713 Pollard V. New Haven R. R. Co. . . . 590 Pollen V. Le Roy 64, 346, 733 Polley V. Lenox Iron Works 575 Pollock V. Ehle 15, 145, 661 Pollock V. Stables 363, 381 Pomeroy v. Ainsworth 138, 158, 159 163, 185, 186, 187 Pomery v. Drury 733 Poock V. Miller 335 Poplett V. Stockdale 365, 709 Popplewell V. Hodkinsou 515 Port Carbon Iron Co. v. Graves 91 Porter v. Bright 91 Porter v. Havens 714 Porter V. Kingsbury 661 Porter v. Lobach 378 Porter v. Mount 679 Porter v. N. T. Cent. R. R. Co 599 Porter v. Williams 394 Portsmouth v. Portsmouth 399 Post V. Dan 179 Post v. President, etc., Bk. of Utica. . 179 Postlethwaite v. Parkes 343 Potter v. Cromwell 383, 338, 334 Potter V. Lansing 442 Potter V. Seymour 600 Potter V. Virgil 339 Potts V. Plaisted 885 Poughkeepsie & Salt Point P. R. Co. V. Griffin 316 Poulin V. Broadway, etc., R. R. Co. .. 597 Powell V. Divett 684 Powell v. Jones 160 Powel v. Little 913 Powell V. Powell 568, 577 Powell V. Waters 173 Powell V. Woodworth 68 Power V. Hathaway 789, 790 Power V. Lester 311 Power V. Pinkerton 947 Powers V. Clarkson 383 Powers V. Council Bluffs 458 Powers V. Witty 743 Pratt V. Adams 168, 188, 695 Pratt V. Crocker 831, 833, 830 Pratt V. Foote 918 Pratt V. Hackett , 853, 860 Pratt V. Ogden 484, 485 Pratt V. Parker 51 Pratt V. Potter 484, 547 Prendergast v. N. Y., etc., R. R.Co. . 594 Prentice v. Achorn 677, 678 Prentice v. Dike 88, 89, 349 Prentice v. Geizer 518 Prentice v. Knickerbocker Life Ins. Co 198 PAGE. Presb. Church v. City of New York . 695 Prescott V. Norris 669 Prescott V. Wright 93 Prevot V. Lawrence 313, 318 Price V. Brayton 331 Price V. Furman 72 Price V. Helyar 549 Price V. Lyons Bank 167, 168, 176 Price V. McCallister 3 Price V. Moulton 734 Price V. Neal 396 Price V. Trusdell 267 Prickett v. Prickett 340 Prideaux v.Bunnett 7 Priest v. Price 393 Priest V. Watkins 911 Prime v. Koehler 363, 364 Prince v. Down 373 Prince v. Lynch 837 Prindle v. Anderson 387 Prindle v. Caruthers 652 Pringle v. Phillips 59 Pringle v. Spaulding 275 Prichett V. Cook 3 Prichett v. Mitchell 178 Proctor V. Sargent 703 Proctor V. Robinson 885 Prospect Park, etc., R. R. Co., Matter of 605 Prouty V. Eaton 768 Prouty V. Lake Shore, etc., B. R. Co. 138 Providence Ins. Co. v. Martin 206 Prugnell v. Gosse 697 Pryue v. Westfall 557 Puckett V. Roquemore 403 Puxford V. Maxwell 933 Pullenv. Bell 563 Pulliam V. Taylor 872 Pulling V. People 707 Pulver V. Mclntyre 438 Purdy V. Austin 798 Purdy V. Delavan 858, 856 Purdy v. N. Y., etc., B. B. Co. . 506, 598 Purdy V. Phillips 146 Purves V. Landell 606 Pursell v. Fry 141, 310 Putnam v. Lewis 931, 932 Putnam v. Payne 550, 453 Putnam v. Wise 398 Putnam v. Wyley 543, 476 Qaackenbush v. Ehle 356, 749, 781 Quackenbush v. Leonard 148, 163 Quackenbos v. Sawyer 173 Quain v. Russell 646, 647 Quassaic Nat. Bk. v. Waddell 317 Queen v. Lee 337 Queen v. Saddlers' Co 106 Quick V. Wheeler 46 Quin V. Lloyd 658 Quinn v. Stout 34 Quincey v. White 413 Quinlan v. Sixth Ave. R. R. Co 598 Quintard v. Bacon 117, 120 Quintard v. .De Wolf 370 Quintard v. Newton 81 , 349 TABLE OF OASES. Iv PAGE. Race V. "Ward 484 Rackham v. Marriott 803, 804, 808 Radburn v. Morris 831 Radich v. Hutching 398, 932 Rahilly V. Wilson 3 Railibone v. Hooney 935 Rail V. Potts 431 Railroad Co. v. Brown 599 Railroad Co. v. Jones. 586 Railway Co. v. McCartliy 378 Rainboit v. East 286 Ralli V. Dennistoun 909 Ralph Y. Stuart 585 Ralston v. Kohl 374 Ramsdell v. Morgan 164 Ramsey v. Lewis 385 Ramsey v. Morrison 160 Ramsour v. Thomas 926 Randall v. Bacon 884 Randall v. Brigham 481 Randall v. Newson 97 Randall v. Raper 87 Randall v. Rhodes 78 Randall v. Sweet 671 Randall v. Wilkins 791 Ranger v. Hearne 78 Rannie v. Irvine 699 Rankin v. Blackwell 686 Rankin v. De Mott 894 Rapelye r. Mackie 15, 23 Rappleye v.Adee 130 Rappelyea v. RusselL 387 Raper v. Birkbeck 684, 691 Rathbone v. Stocking 391 Rathbun v. Platner 390 Rathbun v. Rathbun 675, 936 Ratzer v. Ratzer 660 Ran V. People 467 Ravee v. Farmer 843 Rawls V. Deshler 109 Rawley v. Brown 635, 641 Rawlins v. Vandyke 338 Rawlinson v. Clarke 703 Rawls V. Deshler 20, 31, 33 Rawson v. Dole 443 Rawson v. Grow.' 141 Rawson v. Penn. Cent, R. R. Co 311 Rawstron v. Taylor 513 Ray V. Ryers 476 Rav V. Hogeboom. . . . ; 441 Ray V. Tubbs 668 Raymond v. Bearnard 155, 389, 899 Raymond v. Loyl 335, 671 Raymond v. Merchant 921 Raymond v. Richardson 653 Raymond v. White 230, 338 Raymond v. Williams 143 Raynes v. Bennett 337 Rayner v. Bryson 149 Raynor v. Robinson 786 Raynor v. Timerson 373 Reab v. McAllister 143, 757 Read v. aoldring 883 Ready. Hurd 813, 816, 830 Read v. Hutchinson 625 Read v. Legard 331 PAGE. Read v. Markle 787 Read v. Mutual Safety Ins. Co 903 Reade v. Menisefl 733 Real Estate Trust Co. v. Keech. 174, 175 Real Estate Trust Co. v. Rader 945 Real Estate Trust Co. v. Seagrave. . . 946 Reddington v. Chase 563 Reddington v. Gilman 918 Reddle v. Varmer 18 Redlich v. Doll 686 Redman v. Hendricks 633 Redpath v. Vaughn 730 Reed v. Bank of Newburgh 896 Reed v. Boardman 933 Reed v. Eastman 179 Reed v. Randall 50 Reed v. Reed 308 Reed v. Roark 686 Reed v. Smith 176 Reed v. Sands 295 Rees V. O verbaugh 691 Regina v. Collingwood 437 Regina v. Daniel 436, 437 Regina v. Welsh 698 Reid V. Bartlett 876 Reimer v. Nagel 641 Relyea v. Ramsay 851, 852 Remfrey v. Butler 397 Remington v. Harrison County Court 838 Remington v. Palmer 727 Renaud v. Peck 74 Renick v. Orser 441, 443 Remick v. Sandford 120 Renwick v. Morris 446 Rensselaer Glass Factory v. Reid. . . . 141 Ressequie v. Brownson 864 Retan V. Drew 884 Renton v. Maryatt 91 Reuss V. Pickley Ill Rew V. Barber 99, 129, 919 Reynolds V. Boston, etc., R.R. Co. 106, 109 Reynell v. Champernoon 548 Reynolds v. Clark 453 Reynolds v. Garner 750, 941 Reynolds v, Lounsbury 939, 940 Reynolds v. N. Y. Cent. R. R. Co ... 594 Reynolds v. Orvis 435 Reynolds v. Robinson t 310 Reynolds v. Shaler 575 Reynolds v. Shuler 230 Rex V. Edwards 437 Rex V. Pedley 454 Rexford v, Widger 179 Rexter v. Starin 593 Rhoads v. Railway Passenger Ins. Co. 194 Rhodes v. Woods 643 Ricard v. Sanderson 363 Rice V. Churchill 43 Rice V. Forsyth 78, 91 Rice V. King 744, 751, 752 Rice V. Manley 430 Rice V. Mather 170 Rice V. Peet 281, 675 Rice V. Roberts 274 Rice V. Welling 174, 175 Rice V, Woods 825 Ivi TABLE OP CASES. PAGE, Rich V. Basterfield 455 Rich V. Lord 830 Rich V. N. Y. Cent. & H. R. R. R. Co. . 418 431 Richard v. Brehm 299 Richards v. Allen 353 Ricljards v. Heather 413 Richardson v. Atkinson 574 Richardson v. Barnes 782 Richardson v. Bouck 85 Richardson v. Dingle 560 Richardson v. Duncan 929 Richardson v. Grandy 77 Richardson v. Jackson 887, 890 Richardson v. Kier , 580 Richardson v. Mason 81 Richardson v. Mead 365 Richardson v. McDougall 503 Richardson v. Pierce 256 Richmond Manuf. Co. v. Atlantic De Laine Co 519 Richmond Manuf. Co. v. Davis 689 Richmond v. Praim 440 Rickard v. Stanton 281 Ricker v. Cross 52 Riddle v. Backus 256 Riddle v. County of Bedford 431 Rider v. Union India Rubber Co. 736, 941 942 Rider v. White 614 Ridgeway v. Kennedy 32 Ridley v. Ridley 255 Rigge V. Burbridge , 733 Rightmyer v. Raymond 5, 55 Rigney v. Smith 944 Riley v. Boston Water-power Co . . . 563 Rindge v. Baker 281' Rindge v. Cobraine 877 Rindge v. Judson 242 Rings V. Crooks 810 Ripley v. Mxua. Ins. Co 195, 199 Ripley v. Gelston 389 Ripley v. McClure 729 Ritter v. Phillips 188 Hitter V. Worth 660 Rives V. Guthrie 784 Roach V. New York & Erie Ins. Co. . 199 Roach V. Quick 671 Robert V. Garnie 923 Roberts v. Berdell 784, 787 Roberts V. Eastern Counties R. R. Co. 876 Roberts v. Fisher 920 Roberts v. Jenkins 80 Roberts v. Marriett 861 Roberts v. Morgan 76, 80 Roberts v. Randel 641 Roberts v. Read 788 Roberts v. Tucker 110 Robertson v. Bickrell 784 Robertson v. Ketchum 63 Robertson v. Marsh 402 Robertson v. McNiel 837, 841 Robertson v. Smith 725 Robertson v. Vaughn 126 Robbins, etc., Co. v. Brewer 151 Robbing y. DUlaye 169 PAGE. Robbins v. Packard 560 Robinson v. Batchelder 896 Robinson v. Cook 890 Robinson v. Cox 707 Robinson v. Cushman 354 Robinson V. Dauchy 59, 60 Robinson v. Ezzell 399 Robinson v. Garth 282 Robinson v. Gosnold 330 Robinson v. Kalbfleisch 710 Robinson v. Mercer Co. Ins. Co 206 Robinson v. McGregor 150 Robinson v. Nahon 331 Robinson v. N. Y. C, etc., R. R. Co. 591 Robinson v. Reed 688 Robinson v. Stewart 653 Robinson v. Weeks 581 Robinson v. Wiley 951 Robson V. Drummond 733 Rochester Ins. Co. v. Martin. 947 Rochrborn v. Schmidt 943 Rockford, etc., R. R. Co. v. Leub.. . 46 Rockwell V. Baldwin 509 Rockwell V. Charles 188 Rockwell V. Hartford Fire Ins. Co. . . 193 Rockwell V. Saunders 480, 555, 640 Rockwell V. Nearing 506 Rodger v. Comptoir d'Escompte de Paris 108 Rodgers v. Phillips 117, 120 Roderigas v. East River Sav. Inst . . . 911 Rodes V. Bronson 893 Roebling v. Duncan 57 Roediger v. Simmons 403 Rogan V. Perry 479 Rogers v. Ackerman 77, 79, 86 Rogers v. Arnold 682, 633 Rogers v. Kneeland 240 Rogqrs v. Long Island R. R. Co 311 Rogers v. King 768 Rogers v. Maw 390 Rogers v. Place 947 Rogers v. Rogers 456, 737 Rogers v. Rutter 887 Rogers v. Thomas 105, 106 Rogers v. Van Hoesen 42 Rogers v. Vosburgh 687 Rogers v. Weir 436, 578, 579, 634 Roget V. Merritt 130, 921 Rohrbach v. Germania Fire Ins. Co . 191 200 Roll V. North Cent. R. R. Co 592 Rome V. Brenton. ... 564 Rommell v. Wingate 46 Rood V. N. Y. & Erie R. R. Co. 481, 604 Boose V. Perkins 646 Roosevelt v. Bull's Head Bank. 887, 899 901 Roosevelt v. Mark 724 Roosevelt v. Mart 815 Roosevelt v. New York & Harlem R. R. Co 900, 901 Root V. Chandler 544, 547 Root V. French 55, 58, 59 Rooth V. Wilson. 543 Rosa V. Butterfield 181 TABLE OF CASES. Ivii PAGB. Rose, Admr., v. Bryant 830 Rose y. Dipkaon 172 Hose V. Duncan 888 Rose V. Rose 908 Rose y. Truax 703, 718 Rosenfield v. Palmer 551 Roseboom v. Billington 820 Roseboom v. Roseboom 405 Rosenbaum v. Gunter 243 Rosentball v. Dessau 109 Ross V. Butler 446 Ross V. Cassldy 641 Rossv. Curtis 393, 394 Ross V. Faust 509 Ross v. Mather 350 Ross V. Mitchell 351 Ross V. N. y. C. & H. R. R. R. Co. . . 601 Ross V. Ross. . . . 354, 794, 799, 803, 806 Ross V. Sadgbeer 697, 698, 699, 700 Ross y. Terry 100 Rossv. West 399 Roston V. Morris 564 Roth V. Palmer 65, 67, 131 Rourke v. Short 13 Rourke V. Storv 879, 930 Roussel V. St. Nicholas' Ins. Co. .190, 191 Rowe v: Smith 323, 333 Rowe V. Thompson 800, 810 Rowland v. Miln 370, 371 Rowley v. Bigelow 105 Rowley v. Empire Ins. Co 305 Rowley V. Qibbs 147, 643 Rowley v. Stoddard 837, 829 Royce V. Burt 754 Royce v. Watrous 940 Rucker v. Donovan 109 Ruckman v. Bryan 718, 404 Ruckman v. Pitcher. . . .141, 403, 404, 407 Rudde V. Ruckgaber 768 Rudderow v. Huntington 103 Rudston V. Yates 856 Ruggles V. Keeler 789 Ruhl V. Phillips 296 Rusk V. Soutter 870 Russell V. Allen 639 Russell V. Baugley 912 Russell V. Burton 655, 703 Russell V. Butterfield 644 Russell V. Carrington 16, 53 Russell V. Hubbard 435 Russell V. Lytle 873 Russell V. Minor 35, 131 Russell y. Nicoll 13, 39, 46, 113 Russell V. Slade 355 Russell V. Turner 443 Rust V. Eckler 65 Rust V. Low 504 Rutherford V. Smith 161 Ryan v. Dox 277 Ryan v. Fowler 590 Ryan v. Lewis '"''4 Ryan v. Sanes 331 Ryan v. Ward 878, 822 Ryder, Matter of 335 Ryder v. Hathaway 30 Rydery, Manse! 949 H PA«E. Ryder v. Neitze 98 Byder v. Wombwell 336 Ryerss v. Farwell 940, 949 Ryerson v. Eauffield 576 Sackett y. Palmer 344 Safford, ex parte 117, 120 Sage V. Earpeuding 743 Sage V. Shutz 31 Shaler v. Singer 950 Sainter v. Ferguson 698 Sale v. Darragh 113, 116 Salisbury v. Stainer 94 Salmon Falls Manuf . Co. v. Goddard . 114 Salomon v. Van Praag 577 Salt Springs Nat. Bank v. Wheeler.. 583 Saltus V. Everett 34, 61 Sammis v. McLonghlin 310 Samoa's Case 856 Sampson v. Hoddinott 511 Samson v. Rose 639 Sanborn v. Benedict 10, 346 Sanborn v. Flagler 110, 113 Sanford v. Mayor of N. T 384 Sanford v. Ruckman 358 Sanford v. Sanford 792 Sander v. Hoffman 703 Sanders v. Gillespie 364 Sanderson v. Goodrich 715 Sanderson v. Penn. Coal Co 519 Sands v. Annesley 145 Sands v. Boutwell 315 Sands v. Church 179 Sands v. Gelston 798 Sands v. Graves 315, 318 Sandsv. Hill 311 Sands v. Sanders 318 Sands v. St. John 209, 216, 653 Sands v. Taylor 64, 95, 346 Sansom v. Rhodes 731 Saratoga County Bank v. King. .695, 717 Sarch v. Blackburn 611, 615, 617 Sarjeant v. Blunt 583 Sargeant v. Sunderland 911 Sargent v. Butts 850 Sargent v. Gile 583 Sasportas v. Jennings 932 Satterlee v. Frazier 359 Satterlee v. Jones 710, 711 Satterlee v. Ten Byck 772 Satterthwaite v. Vreeland 363 Saunders v. Chamberlain 653 Saunders v. Frost 884 Saunders v. Graham 890 Savage v. Corn Exchange Fire, etc., Ins. Co 202, 304 Savage V. Howard Ins. Co 302 Savage v. Medbury 309, 319, 786 Savage v. Perkins 641, 643 Savacool y. Boughton 433, 550 Savings Institution v. Burdick. . .530, 633 Savings Institution v. Weedon 784 Sawyer v. Dulany 597 Sawyer v. Sauer 343, 597 Sawyer v. Vermont, etc., R. R. Co. . 488 Sawyer v. Warner 655 Iviii TABLE OF CASES. PAGE. Sayles v. Smith 705 Sayre v. Wheeler 856 Scarborough v. Reynolds 839 Schack V. Anthony 734 Schenectady & Saratoga Plankroad Co. V. Thatcher 316 Schenke v. Rowell 375 Schellv. Plumb 256 Schermerhorn v. Am. Life, etc., Co. . 177 Schermerhorn v Buell 478 Schermerhorn v. Jenkins 657 Schermerhorn v. Loines 930 Schermerhorn v. Metropolitan Gas- light Co 596 Schermerhorn v. Tallman 170 Schermerhorn v. Van Allen 654 Schibsby v. Westenholtz 334 Schieffelin v. Stewart 150 SchiflFer v. Dietz 67 Schmidt v. Kattenhorn 556 Schmidt v. Milwaukee, etc., R. R. Co. 594 Schmitzer v. Oriental Paint Works. . 95 Schnaderbeck v. Worth 775 Schneider v. Hosier 648, 650 Schoenberg v. Voight 340 Schoettgen v. Wilson 4.31 Scholey v. Halaey 936 Schooley v. Mumford 389 School District v. Dauchy 55 Schoonmaker v. Brooks 459 Schoonmaker v. Clearwater 755 Schoonmaker v. Roosa 838 Schoonmaker v. Vervalen 17, 53 Schoouover v. Irwin 489 Schroeder v. Crawford 645 Schroeppel v. Corning 188 Schubart v. Harteau 774 Schular v. Hudson R. R. R 656 Schultz V. Halsey 850, 863 Schunemann v. Paradise 670 Schureman v. Withers 370 Sohurtz V. Kleinmeyer 80 Schutt V. Baker 87 Schuyler v. Leggett 387 Schuyler V. Russ 84, 194 Schuyler v. Van Der Veer . 856, 863 Schwartz v. Oppold 655 Scidmore v. Smith .... 437, 463 Scofield V. Whitelegge 635 Scott V. Bay 449 Scott V. Dixon 436 Scott V. Elmendorf 358 Scott V. England 345 Scott V. Hix 99 Scott V. Pentz 14 Scott V. Sadler 945 Scott V. Saflford 163 Scott V. Uxbridge, etc., Ry. Co 888 Scott V. Walker 690 Scott V. Warner 6 Scott V. Watson 338 Scouton V. Eialord 808 Scoville V. Griffith '. 583 Seovil V. Scovil 793 Scranton v. Booth 4H Scranton v. Clark 98 FASB. Scrlbner v. Kelley 617 Scripture v. Lowell Ins. Co 306 Scudder v. Andrews 695 Scully V. Kirkpatrick 719, 730 Seaborne v. Blackston 913 Seaman v. Lee 519 Seaman v. Low 65 Seaman v. Luce 644 Seaman v. Ward 749 Searles v. Sadgrave 889 Sears v. Brink 340 Sears v. Patrick 407 Seaton v. Benedict 335, 336 Secomb v. Nutt 109 Second Nat. Bank of Watkins v. Miller 330 Secor V. Sturgis 745 Sedgwick v. Stanton 703 Seed V. Lord 33 Seiber v. Price 930 Seigel V. Gould 365 Selden v. Del., etc.. Canal Co 484 Selick V. Addams 861 Sellers v. Bickford 905 Sellick v. Addams 841 Selway v. Fogg 50, 635 Seman v. Hasbrouck 363 Semms v. Hartford Ins. Co 734 Seneca County Bank v. Lamb . . 369, 716 Seneca County Bank v. Schermerhorn 168 Serjeant v. Holmes 740 Severance v. Kimball 939 Sewall V. Gibbs 145 Seward v. Beach 466 Sewell Y. Fitch 136 Sexton V. Montgomery Co. Mut. Ins. Co 301 Seyds v. Hay 578 Seymour v. Brown 8 Seymour v. Cagger 361 Seymour v. Marvin 164, 934 Seymour v. Minturn. . 831, 833, 831, 877 913 Seymour v. Newton 543 Seymour v. Street 790 Seymour v. Strong 169 Seymour v. Wilson 395 Shackell v. Rosier 696 Shadforth v. Hi^n 906 Shaughnessy v. Kens. Ins. Co.. 309, 319 Shank v. Shoemaker. 707 Shannon v. Burr , 473 Shannon v. Comstock 870, 900 Shaper, ex pa/rte 674 Sharman v. Brandt 113 Sharon v. Qager 981 Sharon v. Mosher. 350 Sharp V. Curtis 501 Sharp V. Johnson , 373 Sharp V. Whipple 193 Sharp V. Whittenhall 633, 638 Sharp V. Wright 388, 711 Sharpe v. Kelly 949 Sharve v. Joyce 809 Shattuck V. Green 98 Shaw V. Beve'ridge ... 470 Shaw V. Davis 433 TABLE OF CASES. lix PAGE. Shaw V. Bepublic Life Ins. Co 739 Shaw V. Roberts 206 Shaw V. Stine 428 Shaw V. Thackeray 675 Shaw V, Woodcock 389 Shearman v. Niagara Falls Ins. Co . . 198 Sheehy v. Mandeville 874 Shelby v. Bacon 662 Sheldon v. Atlantic Fire and Marine Ins. Co 199 Sheldon v. Dodge 293, 295 Sheldon v. Hopkins ". 223 Sheldon v. Hoy 555 Sheldon v. Payne 444, 948 Sheldon v. Sherman 352 Sheldon v. Skinner 564, 566, 898 Sheldon v. Smith 294 Sheldon v. Van Buskirk 551, 687 Shellington v. Howland , 734 Shelton v. Pendleton 336 Shelton v. Springett 335 Shepard v. Hoit 405 Shepard v. Phillbrick 237 Shepard v. Shepard 307 Shepard v. Watrous 842 Shephard v.Little 285 Shephard V. Watrous 865,867, 934 Shepherd v. Gilroy 89 Shepherd v. Hees 503 Shepherd v. Philips 377 Shepherd v.Phybns 92 Sheppard v. Earles 99 Sheppard v. Hamilton 941 Sheppard v. Stiles 856 Shepley v. Davis 19 Sherburne v. Goodwin 830 Sherfy v. Graham 867 Sheridan v. Genet 372 Sherideu v. Smith 901 Sherman v. Barnard 718 Sherman v. Champlain Transp. Co.. . 99 Slierman v. Elder 581 Sherman v. Johnson 624 Sherman v. Mclntyre 414 Sherman v. Way 574 Sherrill v. Crosby 278 Sherwood v. Agricultural Ins. Co. . . , 202 221 Sherwood V. Archer 160, 184 Sherwood v. Stone 367 Shewalter v. Ford .80, 84 Shields v. Pettle 13, 50, 67, 73 Shindler V. Houston 115,118, 119 Shipsey v. Bowery Bank 924 Shirley v. Vail 355 Shirts V. Overjohn 947 Shoemaker v. Benedict 814 Short V. Stone 733 Shorter v. Nelson 321 Shotwell V. Mali 436 Shotwell V. Wendover 898 Shuey v. United States 899 Shufelt V. Shufelt 179 Shngart v. Egan 646 Shuler v. Boutwell 736 Shuler v. Gillett 686 PAGE. Shull V. Ostrander 83 Sbultz V. Halsey 859 Shute V. Dorr. ... 251,252,253.389, 341 Shuttleworth v. Winter 308 Sibert v. Wilder 810 Sibley v. Lambert 818, 820 Sibree v. Tripp 914 Sickels V. Pattison , 756, 763 Sickles V. Carson 800 Sickles V. Gould 542 Sickles V. Mather 795 Sid well V. Mason 801 Siflfken v. Wray 105 Sizel V. Johns 319 Sill V. Rood. 757 Silltman v. Wing 639 Silsbury v. McCoon 567 Silsby V. Trotter 485 Silver v. Cummings 366 Silvernail v. Cole 379 Simm'onds v. Hubble 119 Simmonds v. Swaine 858 Simmons v. Clark 873 Simmons v. Swift 57 Simons v. Johnson 880 Simons v. Monier 587, 598 Simonton v. Clark 798, 808 Simonton v. Loring 587, 596 Simpkins v. Rogers 485 Simpson v. Buck 389 Simpson v. Crippen 134 Simpson v. Eggingtou 870 Simpson v. French 900, 901 Simpson v. Pearson 989, 940 Simson v. Brown 268, 824 Simson v. Ingham 925 Sinclair v. Bank 788 Sinclair v. Tallmadge 733 Singer Manuf. Co. v. Rawson 931 Singerland v. Swart 153 Sipperly v. Stewart 140 Sisaon v. Hibbard 386 Sissons V. Dixon 715 Six Carpenters Case 490 Sizer v. Miller 188 Sizer v. Syracuse, etc., R. B. Co 602 Small V. HerKimer Manuf. Co 781 Small V. Sloan 693 Smedberg v. Simpson 185 Smedberg v. Whittlesy 184, 185 Smith V. Applegate 919, 924 Smith V. Barse 864 Smith V. Benson 234, 469 Smith V. Brady 253, 374 Smith V. Briggs 374 Smith V. Brown 914 Smith V. Church 835 Smith V, City of Albany 695 Smith V. City of Rochester 600 Smith V. Cla'rk. . ' 2 Smith V. Colby 563 Smith V. Countryman 624 Smith V. Cross. 263 Smith V. Dunning... 316, 831, 657 Smith V. Dygert 607 Smith V. Elliott. 455 k TABLE OF CASES PAGB. Smith V. Empire Ina. Co 195 , 200 Smith V. Exchange Fire Ins. Co 193 Smith V. Felt 478, 546 Smith V. FrankBeld 744 Smith V. Frost 563 Smitli V. Geortner 337 Smith V. Graydon 870 Smith V. Hall 775 Smith V. Hicks 385 Smith V. Hill 558 Smith V. Holbrook 737 Smith V. Hubbs 695 Smith V. Hudson 117 Smith V. Hughes 7 Smith V. Ingram 473, 477 Smith V. James 5 Smiih V. Johnson 853 Smith V. Jones 746 Smith V. Joyce 869 Smitii V. Justice 80 Smith V. Kennedy 316 Smith V. Kenrick 514 Smith V Kerr 876 Smith V. Knapp 443 Smith V. Lewis 46 Smith V. Loomis 899 Smith V. Lynes 30, 35, 39 Smith V. Mayor of New York 373 Smith V. McCluskey 744 Smith V. McConathy 449 Smith V. McGowan 693 Smith V. McNair 97, 916 Smith V. McNamara 373 Smith V. Miller 476, 541 Smith V. Milliken 117 Smith V. Morrill 570 Smith V. Mumford 333 Smith V. N T. C. E. E. Co 138 Smith V. Oliphant 671 Smith V. Orser 643 Smith V. Page 877 Smith V. Pelah. 613 Smith V. Pettee 64 Smith V. Price 334, 481 Smith V. Reese Eiver Co 438 Smith V. Reynolds 645, 646, 650 Smith V. Rockwell 888 Smith V. Rogers 367 Smith V. Rollins 560 Smith V. Eowley 931 Smith V.Ryan 811, 813, 818 Smith V. Sanborn 731 Smith V. Smith 188, 383, 545, 685 883, 936 Smith V. Sparkman 17 Smith V. Stewart 408 Smith V. Storm 934 Smith V. Sweeny 839 Smith V. Thorne 804, 865, 808 Smith V. Velie 141, 795 Smith V. Van Nostrand 839, 854, 866 Smith V. Warden 551 Smith V. Ware 883 Smith V. Weeks 740 Smith V. Weld 689 Smith V. Wilson 931 PAGE. Smith V. Wilcox 356 Smith V. Young 578 Smithers v. Bircher 77 Smyth V. Lumbardo , 945 Snedeker v. Warring 237 Snook V, Hellyer 853 Snow V. Cable 310 Snow V. Judson 439 Snow V. Leatham 563 Snow V. Parsons 518, 563 Snow V. Perry 895 Snow V. Williams . . ~ 943 Snydam v. Clark 53 Snydam v. Keyes 550 Snyder v. Braden 933 Snyder v. Neefus 113 Snyder v. Vaux 567 Snyder v. Warren 783 Sjoerds v. Luscombe , 733 Skeate v. Beale 933 Skelding V. Whitney 737 Skidmore v. Eomaine 674 Skinner v. Stewart 543, 558 Skipper v. Stokes 10 Slack V. Brown 901 Slade V. Arnold 356 Slade V. Morley 346 Slater Mut. Fire Ins. Co. v.Barstow. 319 Slaughter's Admrs. v. Gerson 633 Slauson v. Englehart 751 Slawson v. Watkins 737 Slingerland v. Morse 885, 897 Slocum V. Hooker 657, 673 Slosson V. Duflf 169 Solinger v . Earle 388 Solly V. Forbes 737, 830 Solomon v. McKinstry 855, 861 Solomon v. Neidig 46 Soltau V. De Held 453, 457 Somerby v. Buntin 257 Soulard v. Peck 391 Sousely v. Burns 347 Southall V. Eigg 435 Southern Cent. R. E. Co. v. Town of Moravia 151, 153 Southern Express Co. v. Dickson 108 Southern Life Ins. & Trust Co. v. Packer 181 Southgate V. Atlantic, etc., R. R. Co. 358 South Royalton Bank v. Suffolk Bk. 516 Southwell V. Beazley 355 Southwick V. Sax 923 Southworth v. Smith 891 St. Ferdinand, etc. , Academy v. Bobb. 337 St. Helen's Smelting Co. v. Tipping. . 446 St. John V. Purdy 874, 930 St. Louis, etc., E. R. Co. v. Kaulbru- mer 563 St. Louis, etc., R. E. Co. v. Rice 438 St. Louis, etc., R. E. Co. v. Thomas.. 399 St. Paul, etc., R. E .Co. v. Schormer. 509 St. Peter V. Dennison 474 Stackus V. N. Y. C, etc., R. E. Co. .. 587 Stacy V. Graham 153, 407, 884 Stafford v. Bacon 382, 876 Stafford v. Bryan 798 TABLE OF CASES. Ixi PAGE. Stafford v. Ingersoll. . , 501, 502 Stafford v. Pooler 50 Stafford v. Roof 663, 665 Stagg V. Alexander 874 Staley v. Jameson 788 Stall V. WUbur 228, 564 Stammers v. Macomb 335 Stanley v. Western Ins. Co 207 Stanton v. Demerritt ] 76 Stanton v. Eager 105 Stanton v. Henry 859 Stanton v. Small 11, 53 Stanton v. Thomas 393 Staples V. Smitli 543 Stapleton v. Nowell 901 Starr V. Child 509 Starr V. Peck 631 Startup V. McDonald 41 State V. Abraham 649 State V. Ballingall 649 State V. Cleaves . 333 Statev. Davis 300 State V Goold 599 State V. Jennings 436 State V. Raster 449 State V. Meager 586 State V. Pay son 449 Statev. Polke 689 State V. Sluder 398 State Bank v. McCoy 677 State Savings Bank v. Kircheval. . . . 235 Staunton v.. Parker 710 Stearns v. Tappin 835, 831 Stearns v. Washburn 345 Steele v. Buck 730 Steele v. Souder 814 Steele V. Taft 112 Steele v. Whipple 176 Steelman v. Mattlx 730 Stein V. Burden 450 Stein V. Indinapolis, etc., Ass'n 180 Steinbach v. La Fayette Fire Ins. Co. 198 Steinbach v. Relief Fire Ins. Co., 743 744, 751 Steinfelt v. Levy ■. . . 708 Steinfield v. Levy 356 Steinman v. Magnus 914 Steinweig v. Erie Railway 589 Stenton v. Jerome 389, 413 Stephens v. Aulls 703 Stephens v. Baird 944 Stephens v. Elwell 573 Stephens v. McNeill 919 Stephenson v. Feezer 563 Stephenson V. Hall 343 Sterling v. Warden 485 Stern v. Drinker 265 Stevens v. Armstrong 595, 599 Stevens v. Barringer 151, 155 Stevens v. Bostwick 321 Stevens v. Brennan 55, 58, 59 Stevens v. Eno 23 Stevens v. Hyde 58, 62, 71, 73, 635 Stevens V. McNeill 918 Stevens v. Park 917 Stevens v. Stevens 337 PAGE. Stevens v. Walker 362 Stevens v. Webb 731 Stevens v. Wheeler 108 Stevenson v. Maxwell 145 Stever v. Lamoure 763, 765 Stewart v. Bock 757 Stewart v. Bramhall 181 Stewart v. Donnelly 897 Stewart v. Doughty 284, 481 Stewart v. BUice 138 Stewart v. Keteltas 374 Stewart v. Martin 563 Stewart v. Petree 163 Stewart v. Wells 631, 633, 637, 546 Stief V. Hart 489 Stiles V. Hooker 530, 523 Stiles V. Stewart 233 Still V. Hall 139, 758 Stillman v. Squire 634 Stillwell V. Bowling 44 Still well V. Otis 263 Stillwell V. Staples 193 Stitt V. Little , 427 Stockdale v. Onwhyn 365, 709 Stockelejr v. Thomson 148 Stockton V. Coleman 178 Stockwell V. Holmes 158 Stockwell V. Phelps 639 Stockwell V. Veitch 637 Stokes V. Recknagle 52, 891 Stokes V. Turitchen 388 Stolle V. iEtna Fire Ins. Co 204 Stone V. Augusta 509 Stone V. Browning, 50, 111, 115, 120, 241 Stone V. Emerson 348 Stone V. Hooker 696 Stone V. Marsh 911 Stone V. Miller 546, 739 Stone V. Perry 32 Stone V. Pointer 99 Stone V. Seymour 933, 934 Stone V. Sprague 891 Stone V. Woods 440 Stoner v. Evans 149 Storey v. Brennan 403 Storey v. Krewson 888 Storm V. Livingston 578, 584 Storm V. Smith 98 Storms V. Snyder 285 Story V. Elliot 850 Story- V. Hammond 450 Story V. Salomon 12 Stout V. Woodward 273 Stoughton V. Lynch 141 Stoveld V. Brewin 903 Stow V. Hamlin 359 Stowell V. Chamberlain 750 Stowell V. Otis 549, 632, 633, 641 Stracy v. Stevens 377 Strang v. Holmes 871, 874 Street v. Blay ; 402 Strickland v. Parker 564 Strickland v. Walker 799 Strickland v. Wool worth 456, 479 Stringhaim v. Stewart 603 Strohl V. Levan 338 Ixii TABLE OF CASES. PAGE. Strong V. Blake 886, 887 Strong V. Dean 832, 835, 831 Strong V. Doyle 563 Strong V. Foot 836 Strong V. Grannis 929 Strong V. Harvey 887 Strong V. Skinner 291, 293 Strong V. Stevens 918 Strong V. Strickland 939, 940 Strong V. Taylor 37 Stroud V. Butler 433, 435, 545, 551 Stuart V. Binsse 653 Stuart V. Hawley 587, 588 Studabaoker v. Marquardt 179 Studwell V. Shapter 665 Sturges V. Keith 577 Sturgis V. Spofford 463 Sturm V. Atlantic Mut. Ins. Co 192 Styart v. Rowland 414 Stymets v. Brooks , 340 Spaids V. Barrett 933 Spain V. Hamilton 159 Spalding v. Rosa 134 Spalding v. Vandercook 757 Sparks v. Mesick 77, 99 Sparrow v. Kingman 937 Spaulding v. Preston 695 Spaulding v. Vandercook 900, 903 Spelman v. Fisher Iron Co 603 Spencer v. Ayrault. 151 Spencer v. Hale 117 Spencer v. Halstead 249, 252 Spencer v. Handley 425 Spencer v. Tilden 171, 898 Spencer v. Tisue 913 Spencer v. Tooker. 890 Speyer v. Colgate. 134 Speyers v. Lambert 241 Spinner v. N. Y., etc., R. R. Co. 506, 598 Spooner v. Brewster 544 Spoor V. Holland 558 Sprague v. Blake 49, 116, 121, 124 Sprague v. Holland Purchase Ins. Co. 196 200 Springer v. Dwyer 761, 772 Squire v. Grevell 855 Succession of Pereuilhet 355 Sucklinge v. Coney 886 Sufferu V. Townsend 486 Suffolk Bank v. Worcester Bank 881 Sugart V. Mays 176 Sullivan v. Fosdick 137, 782 Sullivan v. Scripture 610 Sullivan V. Sullivan 340, 355 Sullivan v. Toledo, etc., Ry. Co 601 Sullivan v. Toole 337 Sumner v. People 159 Sumner v. Tileston 523 Sumner v. Woods 31 Summers v. Vaughn 83 Sunderlin v. Struthers 939 Sun, etc.. Association v. Tribune As- sociation 705 Supervisors of Onondaga v. Briggs. . . 639 Supervisors of Schenectady v. Mc- Queen 737 PAGE. Susquehanna Valley Bank v. Loomis. 396 Sussdorff V. Schmidt 364 Sutton V. Ballon 54 Sutton V. Buck 554 Sutton V. Campbell 33 Sutton V.Page 877 Sutton V. Toomer 690, 687 Suydam v. Barber 735, 728 Suydam v. Bartle , 164 Suydam v. Clark 7 Suydam v, Jenkins 147, 643 Suydam v. Jones 905 Suydam v. Smith 463 Suydam v. Westfall 164 Swanwick V. Southern 19 Swart V. Borst 661 Swartwout v. Payne 174 Sweet V. Bradley 86, 349, 351 Sweet V. Irish 784 Sweet V. Palmer 438 Sweet V. Spence 163 Sweet V. Titus 910, 917 Sweeting v. Halse 690 Sweetland v. Tuthill 900 Sweetman v. Prince 50, 103 Swift V. Gage 479 Swift V. Opdyke 134, 125 Swift V. Pierce 269 Swires v. Parsons 355 Swords V. Edgar 455, 477 Sworda V. Owen 369, 716 Sykes v. Halstead 328, 387 Sykes v. Lawlor 343 Sylvester v. Ralston 408 Syme v. Harvey 331 Syracuse Chilled Plow Co. v. Wing . 307 Syracuse, etc., R. R. Co. v. Collins. . . 917 Taber v. Jenny ,564 Tabor v. Robinson 335 Tafft v. Sargeant 663, 666 Taggard v. Curtenius 727 Taggard v. Roosevelt 287 Taintor v. Hemingway 727 Talbot V. McGee 839 Talmadge v. Rensselaer, etc., R. R. Co 286, 504 Tallmadge v. Wallis 244 Talmage v. Pell 178 Talmage v. White. 47, 735 Tallis V. Tallis 698, 699 Tallman v. Atlantic Ins. Co 193 Tallman v. Franklin Ill, 284 Tallman v. Smith 633 Tallman v. Turck 576, 634, 643 Tally V. Ayres 586 Tanner v. Bank of Fox Lake. . . 918, 919 Tanner v. Dolentine 485, 486 Tanner v. Hallenheck 443 Tanner v. Smart 808 Tanner v. Trustees of Albion 451 Tappan v. Brown 710 Tappan v. Ely 685 Tappen v. Van Wagenen 903 Tapley v. Tapley 932 Tattersall v. Hass 749 TABLE OF CASES. Ixiii PAGB Tatton V. Wade 428 Taylor t. Baldwin 383 Taylor V. Bradley 482 Taylor v. Brittau 325 Taylor y. Higgins 380 Taylor v. Jackson 178 Taylor v. Pope 561 Taylor v. Reid 401 Taylor v. Taintor 732 Taylor V. Tillotsou 23, 73 Taylor v. Welch 515 Taylor v. Wing 138 Tazewell v. Whittle 809 Teaft V. Hewitt 232 Teall V. Barton 588 Teall V. Felton 560 TebbettB v. Hapgood 327 Teed v. Teed 123 Ten Byck v. Houghtaling 410 Tenth National Bank v. Mayor 151 Terhune v. Colton 923 Terhune v. Taylor 174 Terrell v. Walker 891 Terry v. Bissell 97 Terry v. Butler 294 Terry v. Wheeler 15, 17, 18 Terwilliger v. Wheeler 542 Tewkesbury v. Bennett 77 Teyn, Matter of 340 Texier v. Gouin 658 Tharpe v. Stall wood 547 Thayer v. Brackett , 887 Thayer v. Brocks 457 Thayer v. Marsh 937 The Idaho 569 The Pioneer 357 The Queen v. Lee 237 Thetford v. Huhbard 889 TUeriott v. Bagioli 327 Third Nat. Bank v. Blake 313 Thomas v. Achilles 315 Thomas v. Barton 67 Thomas v. Brackney 518 Thomas v. Colton 569 Thomas V. Clapp 433, 550 Thomas v. Dickson 281, 285 Thomas v. Evans 886 Thomas v. Henry 374 Thomas v. Hammond 255 Thomas v. Heathorn 913 Thomas v. Hunter 806 Thomas v. Kelsey 937 Thomas v. Morgan 613 Thomas V. Murray... 159, 161, 170, 172 Thomas v. Nelson 409 Thomas v. Phillips 543 Thomas v. Quintard 72 Thomas v. Robinson 238 Thomas v. Sorrell 488 Thomas v. Thomas 405 Thomas V. Todd 915 Thomas v. Weed 443 Thomas v. Wallon 219, 220 Thomas v. Winchester 689 Thomson v. Bank of British North America 783 PAGE. Thomson v. Thomson 305 Thompson V. Ash ton 89 Thompson v. Blanchard 395, 943 Thompson v. Bower 408 Thompson v. Boyle 358 Thompson v. British Bank of North America 916 Thompson v. Brown 905 Thompson v. Button 687 Thompson v. Charnock 840 Thompson v. Commissioners 808 Thompson v. Davies 713 Thompson v. Gordon 256 Thompson v. Gould 253 Thompson v. Howe , 467 Thompson v. Lockwood 440, 939 Thompson v. Lumley 653 Thompson v. McElarney 485 Thompson v. Otis 394 Thompson v. Ray 33 Thompson v. Sayro 369 Thompson v. Sickles 780 Thompson v. Shirley 580 Thompson v. Sixpenny Savings Bank 577 Thompson v. Taylor 380 Thompson v. Wood 900 Thorgood v. Robinson 580 Thornbarrow v. Whitacre 723 Thome v. McVeagh 76 Thome v. Mosher 947 Thome v. Smith 911 Thorndike v. United States 895 Thornton v. Carson 853 Thornton v. Grange 341 Thornton v. Illingworth 666 Thorold v. Smith 912 Thorp V. Burling 543 Thorp V. Bateman 336 Thorpe v. Coombe 773 Thorpe v. Shapleigh 337 Thrall v. Lathrop 573 Thrasher v. Tuttle 913 Thurber v. Harlem, etc., R. R. Co. . . 844 587 Thurman v. Wild 871 Thurst V. West 755 Thurston v. Spratt 99 Tiemeyer v. Turnquist 307, 313, 313 333 333 Tifft v. Hortou 233, 335,' 236 Tifft V. Moor 175 TifEt V. Tifft 338 Tildenv. Blair 186 Tillotsou V. Preston 486 Tillotson V. Smith 518 Tillou v. Britton 884 Tillou V. Clinton & Essex Mut. Ins. Co 684, 693 Tilt V. La Salle Manuf. Co 64 Tilton V. Alcott 873. 877 Tilton V. Hamilton Fire Ins. Co 205 Timan v. Leland 826 Timmons V. Nelson 46, 135 Tinker v. Merrie 582 Titman v. Titman 341 Titus V. Glens Falls Ins. Co., 198, 303, 304 Ixiv TABLE OF CASES. PAGE. Titus V. Morse 935 Titus V. Perkins 856 Titus V. Scantling 838 Tobey v. Barber 918, 920 Tobias v. Rogers 385 Todd V. Crookshanks 563 Todd V. Stoakes . 380 Toler V. Armstrong 695 ToUv. Hiller 148 Toll V. Whituey 209, 219 Tombs V. Rocliester & Syracuse R. R. Co 606 Tome V. Four Cribs of Lumber . . . 353 Tompkins v. Haile 576 Tompkinson v. Hyatt 69 Topping V. Root 14,47,133 Tonawanda R. R. Co. v. Hunger, 501, 504 505, 549, 586, 590 Torrey v. Bank of Orleans 937 Torrey v. Burnett 330 Torrey v. Hadley 130, 373, 373, 919 Toulandon v. Lachenmeyer 789 Tourtellot v. Rosebrook 588 Touaaint v. Martinnant 380 Town of Ligonier v. Ackerman 938 Town of Pierrepont v. Lovless 599 Town of Suifield v. Hathaway 514 Town of Verona v. Peckham 393 Townsend v. Corning 148, 163, 177 Townsend v. Crowdy 396 Townsend v. Dyckman.. , 400 Townsend v. Empire Stone Dressing Co.... 680 Townsend v. Hubbard 383 Townsend v. IngersoU 816 Townsend v. Northwestern Ins. Co.» 194 Townsend v. Olin 445 Townsend v. Stearns 395 Townsend v. Wells 897 Townsend v. Townsend 308 To wsley v. Denison 413, 416 Tracy v. Talmadge 718 Tracy v. Troy & Boston R. R. Co 506 Tracy v. N. Y. & Harlem R. R. Co. . 643 Traders' Ins. Co. v. Robart 191 Trapliagen v. Burt 377 Traver v. Eighth Ave. R. R. Co 343 Travis v. Scriba 315 Tread well v. Archer 160, 185, 330 Treadwell v. Brauder 657 Treadwell v. Himmelmann 875 Treadwell v. Hoffman 313 Treadwell v. Reynolds 50, 130 Treadwell v. Stebbins 753, 753 Treat v. Hathorn 635 Trebilcock v. Wilson 894 Tremain v. Cohoes Co 474 Treman v. Allen 314 Trent Navigation Co. v. Wood 731 Trevor v. Wood 113 Trieber v. Andrews 51 Trigg V. Taylor 687 Trimble v. Dodd 337 Trippv Riley 585 Trotter v. Curtis 164 Trotter v. Grant 141, 153 PAGE. Troup V. Smith 797 Trousdale v. Anderson. 810 Trovinger v. McBurney 707 Trow V. Glen Cove Starch Co 684 Trowbridge v. Mayor of Albany 765 Troy City Bank v. Lauman 946 Troy & Lansingburgh R. R. Co. v. Kane 636 Troy & Rutland R. E. Co. v. Kerr. . 316 Trubee V. Alden 663 Trueman v. Hurst 413 Truettel v. Barandon 563 Truscott v. Davis 183, 184, 940 Truscott V. King 934 Trullinger v. Kofoed 933, 926 Trustees of Baptist Church v. Brook- lyn Fire Ins. Co 194, 199 Trustees of East Hampton v. Kirk . . 943 Trustees, etc., of Jordan v. Otis 466 Trustees of Kohnstaunn 806 Tubb V. Harrison 837 Tucker v. Barrow 415 Tucker v. Housatonio R. R. Co 573 Tucker v. Ives 143 Tucker v. Newman 453 Tucker v. Virginia ■ 351 Tuckerman v. Bigler 314 Tuckerman v. Brown 310, 311 Tuff V. Warman 591 Tuffts V. Braisted 233 Tugman v. Nat. Steamship Co 391 Tugwell V. Hayman 386 Turberzille v. Stampe 587 Tucker v. Richmond 715 Turley v. North America Fire Ins. Co. 303 TurnbuU v. Osborn 653 Turner v. Bank of Fox Lake 917 Turner v. Brown 1 Turner v. Crisp 830 Turner v. Evans 703 Turner v. Martin 803 Turner v. Roby 333 Turner v. Swainson 852, 858 Turner v. Vaughn 797 Turner v. Waldo 564 Turney v. Dodwell 819 Turnow v. Hockstadtsr 353 Tuska V. O'Brien 635, 743, 753 Tuthill V. Davis 176 Tuthill V. Morris 898 Tuthill V. Wheeler 35 Tuttle V. Everett 384 Tuttle v. Gladding 579, 943 Tuxbury v. Miller 713 Tweed v. Mills 11 Twinam v. Swart 635 Twomley v. Cent. Park, etc., R. R. Co. 592 Twopenny v. Young 737 Tybout V. Thomson 396 Tylee v. Yates 162, 716, 945 Tyler v. Mtna, Fire Ins. Co 193 Tyler v. Dyer 868 Tyler v. New Amsterdam Fire Ins. Co , 194 Tyler v. Stevens 130, 272, 919 Tyler v. Strang 18, 37 TABLE OF CASES. Ixv PAGE. Tyler v. Taylor 564 Tyler V. Willis 755 Tyler T. Wilkinson 509 Tynan v. Bridges 831 Tjng V. Commercial Warehoiise Co . 161 Tyson v. Rickard 159 Uhler V Semple 187 Underbill v. Beinor 557 Underwood v. Farmer.s' Joint-stock Ins. Co 203 Union Bank v. Coster's Executors. . . 342 Union Bank of Rochester v. Gregory. 167 Union Nat. Bank v. Wheeler 181 United Ins. Co. v. Foote 307 United States v. Ames 838 United States v. Childs 876 United States v. Eggleston 386 United States v. Linn . . 688 United States v. Robeson 374 United States v. Wilder 813 United States v. Wiltberger 462 United States Bank v. Bk. of Georgia. 894 United States Bank v. Chapin 137 United States Reflector Co. v. Rush- ton 116 United States Trust Co. v. Harris. . . 83 90, 91 Updike V. Campbell 451 Updyke v. Ten Broeck 256 Upstone V. Merchant 687 Upton V. Tribilcock 631 Upton V. Vail 437 Utica Ins. Co. v. American Mut. Ins . Co 304 Utica Ins. Co. v. Bloodgood 163, 810 Utica Ins. Co. v. Cadwell 166 Utica Ins. Co. v. Lynch 150 Utica Ins. Co. v. Tilman 167 Utica, etc., R. B. Co., Matter of 605 Utter V. Stuart 68, 280, 390 Vail V. Lewis 545 Vail V. Rice 133, 348 Vail V. Vail 935 Valentine v. Conner 160 Valentine v. Valentine 843, 859 Valpey v. Manley 389, 400 Van Allen v. Allen 350 Van Allen v, Feltz 799 Van Alstine v. Wimple 378 Van Arman v. Byington 353, 355 Van Beuren v. Van Gaasbeck . . 137, 141 143 Van Benachouten v. Lawson 148 Van Bracklin v. Fonda 98 Van Bramer v. Cooper 673 Van Brunt v. Eoff 688, 691 Van Brunt v. Schanck 553 Van Brunt v. Van Brunt 825, 830 VanBuskirk V. Stow 728 Van Deusen v. Sweet 674 Van Deusen v. Young 475, 476 Vandenburgh v. Truax 549 Vandenheuvel v. United Ins. Co 141 Vanderbilt.v. Richmond Turnpike Co. 548 I • PAGE. Vanderpool v. Husson 599 Vanderwiele v. Taylor 513, 525 Van Derveer v. Wright 383 Van Doren v. Baity 565 Van Dorn v. Young 340 Van Duzer v. Howe 165, 947 Vane y. Cobbold 425 Van Epps v. Harrison. 624, 657, 757, 760 Van Etten v. Curriet 639 Van Etten v. Hurst 434 Van Etten v. Trouden 919 Van Every v. Adams 358 Van Hassell v. Borden 580 Van Hoesen v. Coventry 513 Van Hoozer v . Cory 10 Van Horn v. Everson 622 Van Ingen v. Snyder 787 Van Keuren v. Parmelee. . . 813, 814, 815 Van Keuren v. Saxton 355 Van Kleek v. Le Boy 56, 58 Van Leuven v. Lyke 550, 615 Van Lien v. Byrnes 364 Van Lien v. Scoville Manuf . Co 587 Vanneman v. Powers 334 Van Nest v. Conover 641 Van Ostrand v. Reed 104 Van Kensselaer v. Chad wick 837 Van Rensselaer v. Jewett 139, 140 Van Bensselaer v. Jones 139 Van Bensselaer v. Kearney 935 Van Bensselaer's Executors v. Rob- erts 924, 935 Van Biper v. Ackerman 90 Van Bossum v. Walker 398 Van Santen v. Standard Oil Co 381 Van Schoick v. Niagara Fire Ins. Co. 196 300 Van Slyke v. Lettice 864 Van Slyck v. Taylor 439 Van Steenburgh v. Tobias 616 Van Tassell v. Wood 165, 177, 181 Van Valkenburgh v. CrofEut 353 Van Valkinburgh v. Watson 335 Vauvivee v. Vanvivee 861 Van Winkle v. Ketcham 664 Van Woert v. Albany, etc., R. B. Co. 116 357 Van Wormer v. Mayor of Albany . . . 447 Van Wormer v. Van Voast 441 Van Wyck v. Allen 77, 79, 83, 87 Van Wyck v. Baker 396 Van Wyck v. Watlers 166 Vasse V. Smith 668 Vaughan v. Hancock 381 Vaughan v. Menlove 587 Vaughan v. TafE Vale B. B. Co 605 Vaughn v. Hopson 31, 36 Vedder v. Vedder 454, 875 Vernam v. Smith 949 Vernol v. Vernol 50 Vernon v. School District 395 Verona Central Cheese Co. v. Mur- taugh 463 Viall v. Genesee Mut. Ins. Co 198 Vibbard v. Johnson 103 Vickery v. Dickson 177 Ixvi TABLE OF CASES. PAGE. Vlele V. Judson 943 Viele V. Troy & Boston R. R 868 Vielie v. Osgood 377, 283 VieDs V. Brickie 355 Vilas V. N. T. Cent. Ins. Co. 195, 196, 200 Vilas V. Jones 176 Vilhac V. Biven 894 Vining v. Baker 569 Vining v. Gilbreth 52 Vincent v. Germond 118 Village of Delhi v. Toumans 515 Vincent v. Leland 77 Vissclier v. Greenbank Alkali Co 47 Volans V. Owen 645, 646, 647 Von Brack v. Peyser 428 Voorhees v. Earl 65, 67, 78, 407 Voorhees v. Olmstead 36 Voorliies v. VoorMes 665 Voorhis v. Mayor 374 Voorliis V. McGinnis. . 233, 234, 235, 336 Vorebeck v. Roe 279 Vos V. Robinson 204 Vosburgh v. Brewster 933 Vosburgh v. Teator 273, 504 Vosburgh v. Welch 545 Vrooman v. Turner 263 Vyse V. Wakefield. 730 Wabanusee Co. v. Walker 398 Wabash Elevator Co. v. First Na- tional Bank 32 Wachter v. Albee 798 Waddell v. Darling 770, 774 Wade's Case 890 Wadlington v. Covert 919 Waffle V. N. Y. C. R. R. Co 524 Wager v. Troy Union R. R. Co 479 Waggoner v. Jermaine 454 Waggoner v. Milliugton 686 Wagoner v. Corkhill 766 Wagner v. Long Island R. R. Co. . . . 513 Wailing v. Toll 657, 671 Wain V. Warlters 340 Wainman v. Kynman 813 Wait V. Green 33 Wait V. Morris 808 Wait V. North Eastern R. R. Co 594 Wait V. Ray 366 Waite V. Barry 855 Waite V. Harper 712 Waite V. Leggett 396 Wakeman v. Dalley.. 436, 427, 631, 630 Wakeman v. Robinson 548, 610 Wakeman v. Sherman 808, 810 Walden v. Sherburne 143 Waldrou v. Chase 16 Waldron v. Romaine 38 Walker v. Butler 817 Walker V. Butterick 5 Walker v. Frobisher 849, 867 Walker v. Goodrich 786 Walker v. Hallock 431 Walker v. Johnson 255 Walker v. Millard 73 Walker v. Moore 401 Walker v. Perkins 707 PAGE. Walker v. Richards 369 Walker v. Sherman 227 Walker v. Spring 639 Walker v. Stevens 606 Wall V. East River Mut. Ins. Co 195 Wall V. Trumball 431 Wallace V. Breeds 19 Wallace v. Drew 454 Wallace v. Kelsall 871 Wallace v. Morss 670 Wallace v. Storry 333 Wallard v. Worthman 546 Waller v. King 854 Waller v. Lacy 799 Wallis V. Harrison 487 Wallman v. Society of Concord 733 Walmsley v. Milne 335 Walpole V. Carlyle 361 Walrath v. Richie 123 Walrath v. Thompson 407 Walraven v. Jones 355 Walrod v. Bennett 652 Walsh V. Durkin 662 Walsh V. Hartford Fire Ins. Co 200 Walsh V. Mead 455, 596 Walsh V. Powers 665 Walsh V. Young 73 Walter v. Dewey 885 Walter v. Middleton 444 Walter v. Post 483 Walter v. Ross 108 Wanzer v. De Baun 728 Warburton v. Storr .... : 844 Ward V. Byrne 701 Ward V. Kilpatrick 331, 238 Ward Y. liawrence 363 Ward V. Macauley 542, 545, 552 Ward V. Shaw 15 Ward V. Woodburn 641 Warden v. Marshall 44 Warfield v. Dorsey 283 Warfield v. Walki'ns 733 Waring v. Indemnity Fire Ins. Co. . . 193 Waring v. Loder 193 Waring v. Mason 67, 74, 95 Waring v. Penn. R. R. Co 554, 577 Waring v. Smyth 683, 691, 693 Warner v. Dunham 835 Warner v. Erie Ry. Co 601, 603 Warner v. Shed , 550 Warren v. Doolittle 463, 467 Warren v. Leland 379, 469 Warren v. Mains 895 Warren v. Sabin 501 Warren v. Skinner 876 Warren v. Slade 783 Warren v. Smith 266 Warren v. Sweeney 819 Warren v. Van Pelt 757 Warrington v. Early 685, 687 Warwicke v. Noakes 915 Washburn v. Gilman 519 Wasmer v. Delaware, L. & W. R. R. Co 454, 591, 592, 597, 599 Wason V. Ro we 81 Waterbury v. Graham 371 TABLE OF OASES. Ixvii PAGE. Waterbury v. Sturtevant 296 Waterman v. Barratt 933 Waterman v. Vose 6B7, 689 Waters' Heater Co. Vi Mansfield 24 Waters' Patent Heater Co. v. Tomp- kins 104 Watkins v. Baird 929 Watkins v. Halstead 382 Watkins v. Paine 50 Watkins v. Woolley 578 Watkinson v. Inglesby 872, 873, 874 Watson, ex parte 107 Watson V. City of Toronto 450 Watson V. Heatberington 918 Watson V. Hetberington 888 Watson V. King 564 Watson V. Muirbead.. 361 Watson V. Eandall 265 Watson V. Sherman ■ 276 Watson V. Trelkeld 331 Watson V. Watson 856 Wattles V. Marsb 441 Watts V. Kinney 473 Watts V. Van Ness 366, 705 Watts V. Willett 434 Watson's Executors v. McLaren, 243, 945 Waugb V. Bassell 684, 690, 691 Waverly Nat. Bank v, Halsey 291 Wade V. Carr 610 Waydell v. Luer 874 Wayman v. Hilliard 415 Wayne Co. Savings Bank v. Low. . . . 186 Weaver v. Barden 35, 59 Weaver v. Ward 674 Webb V. Bevan 488 Webb V. Carter 807 Webb V. Dickinson 934 Webb V. Goldsmith 876 Webb V. Prot. Ins. Co 306 Webb V. Rome & O. R. R. Co .-. 588 Webber v. Davis 573 Webber v. Gay 433, 550 Webster v. Granger 95 Webster v. Hudson River R. R. Co. . 591 Webster v. Phoenix Ins. Co 198 Weed V. Ellis 838, 853, 854 Weeks v. Ellis 433 Weeks v. Mallairdett 683 Weeton v. Woodcock 330 Wehle V. Haviland 146, 386 Weil v. Fischer 945 Weil V. Silverstone 569 Weir V. Groat 321 Weirv. Hill 352 Weis V. Brennan 59 Welch V. Goodwin 395 Welch V. Louis 479 Welch V. Marvin 266 Weld V. Oliver 565 Wellard v. Rice 567 Welland Canal Co. v. Hathaway 989 Weller v. Hersee 697, 698, 699 Wells V. Abernethy 146 Wells V. Chapman 178 Wells V. Horton 256, 781 PAGE Wells V. Lain 863, 864 Wells V. Perkins 341 Wells V. Steam Navigation Co 589 Wells V. Wells 393 Welm V. Gage Co 451 Welsh V. Cochran 486, 547 Welsh V. Germ. Am. Bank 41 Wemple V. Stewart 13, 13 Weuman v. Mohawk Ins. Co. . . 785, 818 Went worth v. Barnum 663 Wentworth v. Buhler 342 Wenzlick v. McCotter 455 Wescott V. Gunn 736 Wesley City Coal Co. v. Healer 593 Wesling v. Noonau 891 Wesson v. Chamberlain 440, 441 West V. Blakeway 904 West V. Cartledge 409 West V. Moore 669 West V. Morris 830 Westfall V. Parsons 390 Westfall V. Peacock 64 Westfall V. Van Anker 477 West Branch Ins. Co. v. Helfenstein. 304 Westcott V. Fargo 583 Westcott V. Keeler 378 Westcott V. Thompson 4 Westcott V. Tilton 4 Western, etc., v. Chicago, etc 245 Western R. R. Co. v. Avery 785 Western R. R. Co. v. Bayne 636 Western Transp. Co. v. Hawley 107 Western Union Tel. Co. v. Mayor. . . 384 Westervelt v. Ackley 313, 318 Weston V. Alden 513 Weston V. Downes 405 Wetherbee v. Green 567 Wetherell v. Jones 716 Wetmore v. Campbell 889 Wetmore v. O'Brien 173 Wetmore v. Tracy 456, 457 Weyburu v. White , 404 Wharton v. King 858 Wheadon v. Olds 394, 396 Wheat V. Cross ., 7 Wheatley v. Martin 838 Wheaton v. Baker. 65, 67, 70, 73, 73, 630 Wheaton v. Hibbard 462 Wheaton v. Olds 6 Wheaton V. Pike 149 Whedon v. Champlin 316 Wheldon V. Lowell 488 Wheeler v. Allen 689, 642 Wheeler V. Brant 614 Wheeler v. Cropsey 926 Wheeler v. Guild 912 Wheeler v. Knaggs 895 Wheeler v. Newboald 89 Wheeler v. Nichols 52 Wteeler v. Reynolds 277 Wheeler V. Ruckman. 749 Wheeler v. Train 632 Wheeler v. Van Houten 842, 848 Wheeler v. Warner 146, 784 Wheeler v. Webster 947 ]xviii TABLE OF CASES. PAGE. Wheelerv. Wheeler 713 Wheeler v. Worcester 513 Wheelock v. Lee 180 Wheelock v. Tanner 888 Whelan v. Kinsley , . . 784 Whelan v. Lynch 146 Whelan v. Reilley 891 Whidden v. Seelye 563 Whipple V. Foot 384 Whippy V. Hillary 809 Whistler v. Forster 34 Whitaker v. Hartford, etc., R. R. Co. 146 Whitaker v. Cone 716 Whitaker V. Farmers' Union Ins. Co. 193 Whitaker v. Merrill 585 Whitaker r. Whitaker 307, 919 Whitbeck v. Skinner 759 Whitbeck v. Van Ness 139, 919 Whitcomb v. Gilman 356 Whitcomb v. Hungerford 555, 559 White V. Aylesworth 748 White V. Branch 72 White V. Brooks 564 White V. Carroll 369 White V. Continental Nat. Bk 896 White V. Coventry. 2fl5 White V. Cuyler 727 White V. Demary 578 White V. Dodds 69, 71 White V. Drake 6.53 White V. Foster 209 White V. Guirons 481 White T. Haas 686 White V. Haight 309 White V. Havens 315 White V. Jones 698 White V. Livingston 481 White V. Madison 193 White V. Merritt 434 White V. Miller 78, 82, 85, 87, 144 White V. Osborn 564, 565 White V. Reagan 788 White V. Seaver 623, 758 White v. Stillman 156, 188 White V. Syracuse & Utica E. R. Co. 316 White v. Talmage 660 While V. Wager 308 White V. Ward 839 White V. Wright 169 Whited V. Germania Fire Ins. Co 196 200 Whitehall Transp. Co. v. N. J. Steam- boat Co 147 Whitehead v. Anderson 106, 109 Whitehead v. Kennedy 358 Whitebouse v. Fellows , 787 Whitehonse v. Moore 363, 381 Whiteside v. Hyman 439 Whitlock V. Bueno 131 Wliitlock V. Squire 901 Wliitmarsh v. Hall 663 Whilmei- V, Frye. 687 Whitney V. Allaire 759, 760 Whitney y. Biselow 830 Whitney v. Black River Ins. Co 107 Whitney v. Coapman 555 PAGE. Whitney v. Heywood 99 Whitney v. Hitchcock 343 Whitney v. Kelly 290 Whitney v. Slauson 571, 582 Whitney v. Sutton 76, 77, 79, 86 Whitney v. Whitney 311 Whitney Arrns Co. v. Barlovir 378 Whittaker v. Burhans 477 Whitten v. Haydeu 173 Whittingham v. Ideson 544 Wickelhausen v. Willett 443 Wickersham v. Lee 008 Wickham v. Miller 396 Wier V. Wier 355 Wier's Appeal 446 Wiggin V. Bush 713 Wiggin V. Orser 443 Wiggleswortb v. Steers 677 Wightman v. Devere 648 Wightman v. Wightman 299 Wilbrandv. Eighth Ave. R. R. Co.. 609 Wilbur V. Cartright 84 Wilbur V. How 713 Wilcox V. Howell 946 Wilcox V. Lee 749 Wilcox V. Smith 433 Wilcox V. Wilcox 340, 355, 405 Wilcox V. Wood 783 Wilcox Silver Plate Co. V. Green. 38, 117 Wild V. Harris 7;24 Wilde V. Jenkins 416 Wilderv. Case 738, 763 Wilder v. Seelye 888, 901 Wilds V. Smith 107 Wiles V. Peck 840 Wiley V. Brigham 413 ■ Wiley V. Slater ; 617 Wilhelm v. Schmidt 919 Wilkes V. Ferris 36, 53 Wilkins v. Bromhead 55 Wilkins v. Mitchel 838 Wilkinson v. Byers 878 Wilkinson v. First Nat. Ins. Co. 199, 780 Wilkinson v. Lloyd 401 Willard v. Fox. 755 Willard v. Germer 876, 920 Williams. Iii re 852, 866, 869 Willard v. Merritt 50 Willard v. Sperry 747 Willey v.' Warden 877 Williams v. Ayrault 663 Williams v. Babcock 313 Williams V. Birch 55, 60 Williams v. Carpenter 915 Williams V. Firemans' Fund Ins. Co. 196 Williams v. Gridley 830 Williams v. Griffith 935 Williams v. Hance 165 Williams v. Hersey 148 Williams v, Holland 610 Williams v. Houghtaling 154 Williams v. Hutchinson 341, 355 Williams v. Ingram 91 Williams v. Jarrett 687 Williams v. Ins. Co. of N. America. . 190 Williams v. Lake 388 TABLE OF CASES. Ixix PAGE. Williams v. Mason 569 Williams v. Montgomery 374 Williams v. New York Cent. R. R. Co. 446 480 Williams V. Phelps 875 Williams v. Sherman 46, 151, 410 Williams v. State 300 Williams v. Tilt 178 Williams v. Storm 173 Williams v. Vanderbilt 719 Williams v. Willis 658, 768 Williamson v. Berry 1 Williamson v. Dodge ; . 319 Williamson v. Lock's Creek Com. Co . 518 Williamson v. Sammons 98 Willins V. Smith 809 Willink V. Vanderveer 620 Willis V. Chipp 880 Willis V. De Castro 830 Willner v. Morrell 580 Willoughby v. Moiilton 67 Willson V. Force 65, 131, 630 Wilmont v. Hurd 88 Wilmot V. Smith 883, 913 Wilson V. Burr 357 Wilson V, Cook 640 Wilson V. Conine 146 Wilson V. Crawford 379 Wilson V. Davis 148 Wilson V. Dean 159 Wilson V. Finney 3 Wilson V. Forsyth .390, 891, 294 Wilson V. Genesee Mut. Ins. Co. 301, 305 Wilson V. Herkimer Co. Mut. Ins. Co. 195 Wilson V. Larmouth 737 Wilson V. Martin 349, 353 Wilson V. Marsh 104 Wilson V. Reed 564 Wilson V. Roberts 344 Wilson V. Susquehanna Turnpike Co. 593 Wilson V. Waddell 515 Wilson V. Wagar 46 Wilson V. Young 839 Wilt V. Welsh 669 Wilts Nav. Co. v. Swinton, etc., Co. . 450 Wiltsie T. Northam 765 Wiltshire v. Sidford 501 Winans v. Huston 839 Winans v. Peebles 308 Winchell v. Bowman 814 Winchell v. Hicks. . . . 798, 799, 803, 805 809, 814, 943 Winegar v. Fowler 940 Wing V. Gray 331 Wingate v. Smith 567, 568 Wingard v. Tift , 485 Winn V. Crosby 293 Winnev. McDonald 30, 33 Winship v. Jewett 867 Winslow V. Norton 108 WinstedBk. v. Webb 174 Wintle V. Freeman 444 Wintermute v. Light 231, 334 Winterton v. Winterton 810 Wintringham v. Lafoy 393, 546 Witbeck v. Van Rensselaer 545 PAGE. Withee v. Brooks 356 Witherell v. Maine Ins. Co 306 Witherspoon v. Van Dolar 653 Witowski V. Brennan 430 Wood V. Auburn, etc., R. R 837 Wood V. Benson 135 Wood V. City of Williamsburgh . . . 476 Wood V. Corcoran 366 Wood V. Edwards 737 Wood V. Erie Railway Co 463 Wood V. Griffith 854 Wood V. Hewett 279 Wood V. Hickok 143, 143 Wood V. Hitchcock 887 Wood V. Jackson.. 744. 750, 753, 754, 755 Wood V. Lafayette 373 Wood V. Leadbitter 486, 488 Wood V. Manley 44, 487 Wood V. Orser 633, 640 Wood V. Phillips 482 Wood V. Perry 901 Wood V. Robbins 144 Wood V. Shultis 280 Wood V. TunniclifE. . .. 838, 844, 850, 860 Wood V. Wand 519 Wood V. Wheelock 344 Wood V. Wilcox 409 Wood V. Wood 311 Woods V. Armstrong 716 Woods V. Williams 833 Woodburn v. Chamberlain 58 Woodford v. Patterson 37 Woodman v. Hubbard ' 660 WoodruflFv. Hurson 160,161, 167 Woodruff V. Beekman. 485 Woodruff' V. Imperial Fire Ins. Co.. 195 197 Woodruff V. Noyes 109 Woodward v. Aborn 450 Woodward v. Barnes 337 Woodward v. Seely 485 Woodward v. Washburn 437 Woodworth v. Bank of America 689 Woodworth v. Bennett 388, 393 Woodworth v. Payne 377, 481 Woodworth v. Sweet 307 Woodworth v. Woodworth 295 Wolcott V. Van Santvoord 155 Wolf V. Chalker 452 Wolffv.Koppel 367 Wolfe V. Hawes 353 Wolfe V. Lacy 148 Wolfe V. Marshall 398 Woolever v. Knapp 405 Wooley V. Constant 681 Woolsey v. Brown 313, 320, 322 Wontner v. Shairp 425, 426 Wooster v. Jenkins 380 Worcester v. Worcester Ins. Co 206 Worley v. Spurgeon 650 Wormsley v. Church 450 Worrall v. Muuh 275 Worrell v. Irving Fire Ins. Co 65 Worster V. Forty-second St.R.R. Co. 662 Worth V. Edmonds 719, 720 Worthington v. Qrimsditch 816 Ixx TABLE OF OASES. PAGE. Worthy v. James 356 Worthy v. Johnson 99 Wragg V. Swart 371 Wright V. Barnes 46 Wright V. Brown 56, 57 Wright V. Butler 391 Wright V. Goddard 903 Wright V. Hart 89^ 90 Wright V. Hooker 371 Wright V. How , 533 Wright V. Howard 509 Wright V. Laing 935 Wright V. Maiden, etc., R. R. Co. . . . 594 Wright V. Maseras 660 Wright V. N. Y. Cent. R. R. Co. 600, 603 Wright V. Stavert 349 Wright V. Weeks 345, 376 Wright V. Wright. . . . 386, 399, 311, 853 Wyckoff V. Meyers 374 Wylie V. Birch 444 Wylie V. Kelly 133 Wyman v. Farnsworth 383 Wvmau V. Goodrich 264, 366 Wyman v. Hart 395 Wyman v. Smith 363 Wyman v. Wyman 330 Tale V. Dederer. 313, 333 Yale V. Edgerton 266 Yamhill Bridge Co. v. Newhy 565 Yate V. Willan 902 Yates V. Bond 99 Yates V. Freckleton 913 FAas. Yates V. Lansing 430 Yates V. MuUin 379 Yates V. Pelton 563 Yates V. St. John 434 Yaw V. Kerr 799 Yeates v. Read 675 Yeomans v. Chatterton 711 Yonkers & New York Fire Ins. Co. v. Bishop 743 Yorgensen v. Yorgensen 475 Yost V. Stout 563 Young V. Bushnell 941 Young V. Corall 428 Young V. Dake 257, 387 Young V. Heermans 390 Young V. Hill. . . . 148, 149, 163, 415, 416 736, 727 Young V. Hunter 35, 364 Young V. Jones 877 Young V. Marshall 131 Young V. N. Y. Cent. R. R. Co 941 Young V. Rummell 754 Young V. Timmins 703 Young V. Willett 147, 643 Youngs V. Hickenp 472, 541 Zahriskie v. Smith 437, 438 Zachrisson v. Ahman 635 Zachrisson v, Poppe 39 Zinc V. People 33 Zimmerman v. Erhart 311 Zouch V. Parsons 665 ZuUer V. Rogers 66 CHAPTER XIII. SALE. Section 1. What constitutes a sale. A sale is an agreement by which the title or ownership of property is transferred from one person to another for a legal consideration. The word " sale " means, at all times, a contract between parties to pass rights of property for money, which the buyer pays, or promises to pay, to the seller for the thing bought and sold. Williamson v. Berry, 8 How. (U. S.) 544 ; New- coml V. Cabell^ 10 Bush (Ky.), 460; Sutmaker v. Harris, 38 Penn. St. 491. A transfer of the special property only of the seller, and not of the general or absolute title, is not a sale of the thing, for, in law, a thing may in some cases be said to have two owners, one of whom has the general, and the other a special property in it. See Hunt v. Wymcm, 100 Mass. 198 ; Harper v. Oodsell, L. K., 5 Q. B. 424. So if the price or consideration for a thing, instead of being paid in money, is paid in goods or merchandise, the transaction is not a sale, but a bar- ter or exchange. Harrison v. Luke, 14 M. & "W. 139 ; Picard v. McCormick, 11 Mich. 68. The rules of law, however, are alike in all cases, whether the contract is one of sale, or of exchange ; and the only difference is, that the transfer of the property from one to the other is a transaction in which each agrfees to accept of property instead of money as an equivalent for the property transferred. Where the thing transferred is a chose in action the transaction is usually termed an assignment. If the property or thing is voluntarily trr^nsferred, and no valuable consideration is given therefor, the transaction is a gift, and not a sale. Gray v. Barton, 55 IsT. Y. 68 ; S. C, 14 Am. Eep. 181 ; Ferry v. Stephens, &^ N. Y. 321 ; Tv^ner v. Brown, 6 Hun, 331. In sales, the person who transfers the property is called the vendor or seller ; while the person who receives it, and agrees to pay the price, or pays it, is called the buyer, purchaser, or vendee.. In assignments, the person who transfers his interest is termed the assignor ; while the person who receives it is termed the assignee. It is not always easy to determine whether & given transaction is a sale, even when it is clear that it is not a contract of barter or exchange. There are cases in which the transaction may be a bailment of property SALE. What constitutes a sale. instead of a sale of it, and this distinction is sometimes of very great importance to the rights of the contracting parties. In all contracts of sale, there must be an intention on the part of the parties, that the title to the property sold shall pass from one to the other, and that the price shali be payable absolutely ; though there may be conditional sales, as will be seen hereafter, and that will not affect the rule already stated, so far as it relates to the question whether a given transaction is a sale, or a bailment of property. The defend- ants, having received a quantity of leather from the plaintiff, gave a receipt in these words : " Keceived the following leather, etc., which we agree to pay for at the following rate : one shilling deduction to be made on each side of upper leather from the price above, and two shillings per pound for the sole leather, with the privilege of returning any quantity of the said leather, which may remain on hand when the settlement is made." It was held that this was a sale of the leather to the defendants, and not a delivery to them to sell on commission, and that parol evidence was inadmissible to explain the transaction. Marsh V. Wickham, 14 Johns. 1 67. A contract, by a merchant, to deliver hides to a tanner to be tanned, and then returned to the manufacturer to be sold, and out of the sale the tanner to be paid, and the manufacturer to keep the balance, is held to be such a sale to the manufacturer as renders the hides liable to be attached as his property. Prichett v. Cook, 62 Penn. St. 193. The defendant, who owned a flouring and custom mill, contracted to "take" the wheat of the plaintiffs, which was to be of good mer- chantable quality, and to " give " them one barrel of superfine flour, at his mill, for every four thirty-six-sixtieths bushels. He was to pack the flour in first-rate barrels, and warrant it to pass inspection ; on,e7 half of the flour to be delivered on a given day, and the other half on a given day later, or as much sooner as he could make it ; this was held to be a sale of the wheat, and not a bailment, and that the destruction of the mill and the wheat did not excuse the defendant from deliver- ing the flour. Norton v. Woodruff, 2 IST. Y. 153, and note, id. 586. So, where a contract was made between a miller and other persons, for the manufacture of wheat into flour, he engaging on his part for every four bushels and flfty-five pounds of wheat received, to deliver one barrel of superfine flour, and there was no stipulation or understanding that the wheat delivered should be kept separate from other grain, or ihat the identical wheat should be returned in the form of flour, this was held to be a sale and not a bailment of the wheat. Srmth v. Glarjc, 21 Wend. 83 ; Baker v. Woodruff, 2 Barb. 520. Where wheat was SALE. What constitutes a sale. sent to a miller upon a contract that the sender might have the same amount back again, or as much flour as it would make, or the price thereof, the miller to mix that sent with his own, the transaction was held to be a sale, and not a bailment. Ca/rlisle v. Wallace, 12 Ind. 252. So of a deposit of grain with a warehouseman, with the under- standing that he is to ship and sell it on his own account, and, when the depositor desires to sell, pay him the highest price or return a like quantity and quality. Bahilly v. Wilson, 3 Dill. (C. 0.) 420 ; Johnson V. Browne, 37 Iowa, 200. The plaintiff sold and delivered to the defendant dry goods, which the latter agreed to pay for in nails at a certain price, to be delivered on or before a future day specified. The transaction was held not to be a purchase of nails, nor even an exchange of dry goods for nails ; but that the seller of the dry goods might recover for their purchase-money, with interest from the day it became payable. Herrick v. Ca/rter, 56 Barb. 41. Where the owner of a farm leases it, with the cows and sheep then on it, to a tenant for the term of five years, at a certain annual rent, and the lease provides that cows of equal age and quality shall be returned to the landlord, at the end of the term, and also the sheep ; this is a sale of the sheep and cows, and a creditor of the tenant may levy upon them and seU them. Carpenter v. Oriffin, 9 Paige, 310 ; Wilson v. Finney, 13 Johns. 358. So where a chattel was rented at a certain rate per month, with an agreement that when the rents paid should amount to a specified sum, it should be the property of the lessee, and the chattel was delivered in pursuance of the contract, it was held to be a contract of sale, and that the title vested in the lessee so far as to be liable to be taken on a distress for rent. Price v. McCalUster, 3 Grant's Cas. 248. A sale under the guise of a renting of personal property passes the title to the property to the vendee. Greer v. Chv/rch, 13 Bush (Ky.), 430 ; Do- mesUc Sewing Machine Co. v. Anderson, 23 Minn. 57. A receipt in these words : " Received of J. W. three barrels of white fish, to be paid for when sold, at six dollars per barrel," is evidence of a sale of the fish, at the price specified, and not a iailmeni. And after a lapse of three years and a half a sale of the fish will be pre- sumed to have been made by the person to whom they were delivered, especially when they were bought to be sold again, and the vendor may recover without proving an actual sale of the fish by the vendee. Mc Arthur v.. Wilder, 3 Barb. 66. The case of Seymour v. Brown, , 19 Johns. 44, has been repeatedly overruled. See MaUory v. Willis, SALE. What is a bailment instead ot a sale. 4 N. Y. 76, 90 ; Ba^^r v. Woodruf, 2 Barb. 520, 524; S. C, 2N. Y. 153, 157. § 2. What is a bailment instead of a sale. There is a class of cases which will show that some transactions are regarded as bailments and not as sales of property. Where a brewer sold and delivered sixty- seven barrels of ale, bearing his brand, to a retailer, upon an agreement that the barrels should be returned after the ale was drawn, but that, if any of them were not returned, the retailer should pay $2 a piece for the barrels, it was held that the property in the barrels remained in the vendor, and that the specification of their value ope- rated not to give an election to the vendee to retain them at that price, but to fix the damages in respect to such as he might be unable to return. Westcott v. Thompson, 18 N. Y. 363. And where the purchaser of ale in barrels, under a similar contract, sold a portion of his purchase to a third person, with a similar under- standing as to the return of the barrels, it was held that the first vendor might recover the value of such barrels from the third person, after a demand of the barrels and a refusal to deliver them. Westcott v. Tilton, 1 Duer, 53. Where sheep are let for a year for a pound of wool a head, and the identical sheep are to be returned, the transaction is a bailment and not a sale, and therefore the title to the sheep remains in the person who lets them. Hurd v. West, 7 Cow. 752. But if the contract is in the alternative that the same sheep may be returned, or others of as good quality may be substituted, then the transaction is a sale. lb. ; ante, 3. The plaintiffs agreed to deliver good merchantable wheat at a flouring mill carried on by the defendant, " to be manufactured into flour." The defendant agreed to deliver one hundred and ninety-six pounds of superfine flour, packed in barrels to be furnished by the plaintiffs, for every four bushels and fifteen pounds of wheat. He was to be paid sixteen cents per barrel, and two cents extra in case the plaintiffs made one shilling net profit on each barrel of flour. The defendant was to guarantee the inspection of the flour. The plaintiffs were to have the " offals or feed," which the defendant was to store until sold ; it was held that this transaction was a bailment and not a sale of the wheat. Mallory v. Willis, 4 N. Y. 76. Where a contract is made with the manufacturer to deliver to him raw materials which he is to return manufactured, the contract is one of bailment and not one of sale, and the title to the article manufactured remains in the original owner. If, however, the contract simply requires the i-eturn of a manufactured article of equal value, then it is one of sale, and the SALE. Sales in gross. title of the raw material is changed. Foster v. Pettibone, 7 N. Y. 433 ; Hyde v. Goohson, 21 Barb. 92 ; Smith v. Ja/tnes, 7 Cow. 328 ; Rightmyer v. Raymond, 12 Wend. 51 ; Pierce v. Sohenck, 3 Hill, 28. Where one person receives a stock of goods from another, upon an agreement to sell and account for the goods to the owner, or to return the same as good as when taken, with interest, and the person who is to thus sell and account, etc., is to use the wagon and sleigh of the person who furnishes the goods in making the sales, the transaction is a bail- ment and not a sale, and the title of the goods remains in the bailor. Morss V. Stone, 5 Barb. 516. In determining whether a given contract is one of bailment or sale, the true test is, must the identical thing delivered, even in an altered form, be returned? If so, the contract is one of bailment aad not of' sale, and the title to the property is not changed ; but when there is no obligation to restore the speciiic article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed. Such a transac- tion is a sale. Mallory v. Willis, 4 N. Y. 85 ; Foster v. Pettihone, 7 N. Y. 433 ; Marsh v. Richards, 3 Hun, 550 ; S. C, 6 Sup. Ct. (T. & C.) 29 ; Moore v. Holland, 39 Me. 307. Where the party receiving the property, by a writing given by him at the time, admits that the title is in the party delivering it, and agrees that it shall so continue till the price is fully paid, and mean- while to use the property in a particular way, he is a mere bailee, and is answerable for a conversion, if he uses the property differently. Crocher v. Gullifer, 44 Me. 491. A contract for one party to take goods from the other and return monthly the amount of sales, at the prices charged by the latter, who will furnish the former with all goods in his line, imports a consign- ment of the goods for sale, and not a sale of them by the second party to the first. Walker v. ButtericTc, 105 Mass. 237. § 3. Sales in gross. Property is sometimes sold in gross, as when certain specified property is sold by the quantity, without weighing, measuring, etc., at a price agreed upon for the whole quantity. And such sales are as valid as any other. Where a person who has sold cattle at a fixed price per pound, the weight to be afterward ascertained, vol- untarily relinquishes his right to have them weighed, and agrees to accept a sum in gross, rather than be at the trouble of weighing them, and putting the purchaser to inconvenience and expense, or delay him in getting the propei'ty to market, and the sum thus agreed on is paid to him, he cannot after\vard, in the absence of any fraud on the part of SALE. Sales in gross. the purchaser, maintain an action against him, to recover the ditference hetween the gross sum received and the value of the cattle, by weight, at the price originally stipulated ; and even though the purchaser has, before the making of the second agreement, ascertained the exact weight of the cattle, in the absence of the vendor, and also conceals from him the fact that the cattle have been weighed, that will not con- stitute a fraud for which an action will lie, so long as the purchaser neither says nor does any thing to mislead or deceive the vendor in respect to the actual weight. Oage v. Parker, 25 Barb. 141. A general bill of sale, purporting to transfer the assignor's interest in all the assets belonging to his partnership, suffices to pass an item of assets, the existence of which was unknown by the parties. Cram v. Union Banh, 42 Barb. 426 ; S. 0. affirmed, 1 Abb. Ct. App. 461 ; S. C, 4 Keyes, 558. Thus, W. bought all the interest of M. in the property of the firm of K. & M., and then formed a partnership with K., agreeing to put in all the property he received from M. Under this agreement it was held that a bank deposit in the name of R. & M., of which both the parties were ignorant at the time, became the part- nership property of the new firm, W. & E. lb. But where the contract is made upon an assumed state of facts in re- lation to which there is a mutual mistake, the contract is not binding. Where a contract was made for the sale and delivery of a quantity of oats, at a specified price per bushel, and a portion of them was meas- ured out in pursuance of the agreement, and the parties both assumed that a given number of bushels had been measured out, and they then mutually agreed to guess at the remainder of the oats, and to call them a specified number of bushels, at which they were to be sold, " hit or miss," but the estimate of the quantity which had already been meas- ured out was founded upon a mutual mistake of the parties, in esti- mating that the tallies of the measuring agent represented half bushels, and not whole bushels, in consequence of which error, there had been a mistake of the parties as to the quantity which had been actually measured out previous to the agreement to sell the remainder of the oats in gross ; it was held that the purchaser was entitled to re- cover the money which he had overpaid in consequence of the mistake. Wheadon v. Olds, 20 Wend. 174. See Scott v. Wa/mer, 2 Lans. 49 ; George v. Tollman, 5 id. 392 ; Calkins v. Griswold, 11 Hun, 208 ; Graves v. Brinkerhoff, 4 id. 305 ; S. C, 6 Sup. Ct. (T. & C.) 630. The principle is that if parties, believing that a certain state of things exists, come to an agreement with such belief for its hasis, they are re- SALE. Beqaisitea of a valid sale. mitted to their original rights on discovery of their mutual error. Harvey Y.Ha/rris, 112 Mass. 32. § 4. Requisites of a valid sale. The essential elements which enter into and make up the contract of sale are : competent parties to enter into a contract, an agreement to sell, and the mutual assent of the parties to the subject-matter of the sale and the price to be paid there- for. If any of these ingredients be wanting, there is no sale. Gardner V. Lane, 12 Allen, 39 ; Butler y. Thomson, 92 IT. S. (2 Otto) 41 2, 414. As it regaixis the assent of parties to a contract of sale, such assent must not only be mutual, but it must be freely given and without mis- take or imposition. If the contract be procured by compulsion or du- ress, it is voidable at the will of the party suffering it. See 1 Wait's Act. and Def . 85. But a mistake as to the person with whom the contract is made may, or may not, invalidate the sale, according to circum- stances. In the common case of a sale for cash, a mistake of identity would be immaterial, but where a personal trust or confidence forms the consideration of the contract, the identity of the person is an im- portant element therein, and a mistake in this respect prevents the con- tract from coming into existence for want of assent. Boulton v. Jones, 2 Hurlst. & Korm. 564. So, a common mistake of fact as to the subject-matter of the sale, or the price, or the terms, going to show the want of mutual assent, without which no contract can arise, must be distinguished from a mistake made by one of the parties in relation to a fact wholly collateral, and not affecting the essence of the contract itself. Wheat v. Gross, 31 Md. 99 ; S. C, 1 Am. Eep. 28. Thus a mis- take by the buyer in supposing that the thing bought by him will answer a certain purpose, for which it turns out to be unsuitable, is not a mistake as to the siibject-matter of the contract, but as to a collateral fact, and affords no ground for pretending that he did not assent to the bargain, whatever may be his right afterward to rescind it, if the seller warranted its adaptability to the purpose intended. lb. ; Smith v. Hughes, L. E., 6 Q. B. 597; Prideauxy. Bunnett, 1 0. B. (K S.) 613. There is no contract of sale if there is a material difference between the note of the bargain delivered by a broker to the vendee and that delivered to the vendor. Peltier v. Collins, 3 Wend. 459 ; Suydam V. Clarh, 2 Sandf. 133. And where the contract is a verbal one, aiid the parties disagree as to a material portion of the terms of such con- tract, there will not be a contract of sale unless the party who claims that a sale was made can establish, by evidence, to the satisfaction of a jury, or a justice sitting instead of a jury, that there was a mutual SALE. Bequisites of a valid sale. assent to the terms of the contract, of the character claimed by the party who seeks to enforce the agreement. This rule relates to express contracts, as distinguished from implied ones ; because, when there has been a sale and delivery of property without any agreement as to price or time of payment, the law will de- termine the rights of the parties ; since in that case the price will be due immediately, in the absence of any agreement to give a credit ; and the value will be determined by the usual market price of similar articles in the vicinity or market, which will be established by the evidence. When it is claimed that property has been sold to the defendant, the burden of proving that fact clearly lies upon the plaintiff ; and where a contract was made by the defendant with one B. to build a house and finish it for the defendant, for which B. was to furnisb the mantels, and the defendant addressed a note to B., saying, " I want mantels for my house precisely like those ordered by Mr. Burton from Messrs. Murphy & Dimond, also tiling. Will you have the same ordered at once ? " This note was delivered by B. to the plaintiffs (Mnrphy & Dimond), who furnished the mantels, and the same were sent to the defendant's house and put into it. It was held that the plaintiffs had no right to treat the paper as an order addressed to them, nor to rely upon it as the evidence of B.'s authority as the defendant's agent ; and that there was no contract between the plaintiffs and the defendant, and that the latter was not liable to pay for the goods. Murphy v. Winchester, 35 Barb. 616. A contract of sale may be made by a duly authorized agent of either of the parties, in the same manner that any other contract may be made by an agent for his principal. A principal, when discovered, is liable on the contract of his agent, where the goods are bought by an agent who does not disclose the name of his principal at the time of the purchase ; and where the name of the principal is disclosed after the sale, so as to give a right of action by the vendor against him for the price of the goods sold, the principal may, on his part, maintain an action against the vendor, for a violation of his part of the agreement ; as for instance, a breach of warranty. Beobe v. Robert, 12 Wend. 413 ; Nelson v. Cowing, 6 Hill, 336 ; Andrevis v. Kneeland, 6 Cow. 854 ; Holman v. Bord, 12 Barb. 336 ; MiCburn v. Belloni, 34 Barb. 607; see Vol. I, 419, 488. Contracts in reference to sales of personal property may relate to property then in existence, or to articles which are to be subsequently procured or manufactured. Some agreements transfer the title at once, and others provide for a future transfer of the title. This subject will SALE. Must be a subject-matter of sale. be discussed in a subsequent place when treating of sales as absolute, or as executory. § 5. Must be a sulbject-matter of sale. When the parties are negotiating in relation to property which is supposed to be in existence, and with the intention of transferring the title immediately, it is im- portant that such property should then be in existence. If a contract is made for the sale of a horse, cow or sheep, and at the time of making the contract of sale such horse, etc. , is dead ; or if a contract is made for the sale of merchandise, or personal property, which, at the time of making the contract, is destroyed by fire or otherwise, the contract will be entirely void, if the parties were ignorant of the death or destruc- tion of the property at the time of making the contract. Allen v. JBammondr, 11 Pet. (U. S.) 63 ; Oontv/rier v. Hastie, 5 H. L. Cas. 673. If a substantial portion of the property is destroyed or non-existent at the time of the sale, and the parties suppose that it is existent, the buyer may rescind the contract if he elects to do so, or he may, if he chooses, accept the portion of it which can be delivered, on paying the price agreed upon for the whole property. The vendor cannot compel a purchaser to accept a portion of the property sold, although a portion of it is destroyed by accident. Nothing less than a full performance of the contract on his part will be excused in such a case. See Vol. I, 227, 228. The rights of the purchaser are fully protected by this rule, since he may rescind the contract if he chooses, or he may receive such portion of the property as is still in existence, on paying the contract-price for the whole. It might be supposed that either the vendor or the pur- chaser might elect to have that portion of the property dehvered which is capable of delivery, by making a proportionate deduction from the entire price, but it is evident that such a rule would authorize either party to compel the other to perform an agreement which he never made ; and it is no part of the province of the law to make contracts for parties, but merely to enforce such contracts as they may have made for themselves. This rule applies to those cases in which the parties contract for the sale of property which is supposed to be existent ; but we shall see in a subsequent place that, when the contract relates to a future delivery of property which is to be subsequently made or purchased, the vendor will not be excused from performance of his contract on account of a destruction of the property which he may have made or purchased for the fulfillment of his contract. In such a case, the vendor takes all this risk by the terms of his agreement, and he is liable to damages for its non-performance, notwithstanding his inability to pe» 2 10 SALE. K— ^— — — » Must be a subject-matter of sale, form it may have been caused by accident or otherwise. The law requires him to take all such risks into account when he makes his contract. But when a contract is made for the sale of property which is destroyed, although it is supposed to be existent, there is such a mutual mistake of facts as to excuse either party from performing it, with the single exception that, in case of a partial destruction of the property, the purchaser may elect to accept that portion which remains, by paying the entire price which was to be paid for all the property purchased. In such a case the vendor cannot refuse to deliver such portion of the property as he has, since he was bound to deliver that together with the portion which may have been destroyed ; and if the purchaser will accept a portion of the property, and pay the full contract-price therefor, without a delivery of the residue, the vendor has no cause of complaint. That property must have an actual or potential existence in order to be the subject of a sale, and that the vendor must have a present dis- posable interest in it, is so well settled as to have become elementary. Van Hooser v. Gori/, 34 Bai'b. 9. A thing may be the subject of sale, although not in actual existence, if it has a potential or possible existence as the product or increase of that which is in existence, and if the right to it when it shall come into actual existence is a present vested right. Thus, a man may sell the wool to grow upon his own sheep, or the crops to grow upon his own land, or the milk that a cow may yield during the coming year. Yan Hoozer v. Cory^ 34 Barb. 9 ; And/rem V. Newcomh, 32 N. Y. 417 ; McCa/riy v. Blevins, 5 Yerg. (Tenn.) 195 > Samiborn v. Benedict, 78 111. 309. And see Condermcm v. Smith, 41 Barb. 404. If one sells goods in which he has no property at the time of sale and subsequently acquired title before the repudiation of the contract by the other party, the property in the goods, immediately on the acqui- sition of a title by the seller, will vest in the buyer. Blachmere v. Shelby, 8 Humph. (Tenn.) 439 ; Frazer v. Hilliard, 2 Strobh. (S. C.) L. 309, 317. But a mere possibility or contingency, not founded upon a right or coupled with an interest, cannot be the subject of a present sale, though it may be of an executory agreement to sell. Skipper v. Stokes, 42 Ala. 255. And see Pierce v. Emery, 32 N. H. 484 ; Brown v. Bate- mwn, L. E., 2 C. D. 272. Thus a sale of fish hereafter to be caught passes no title to the fish when caught. Low v. Pen, 108 Mass. 347 ; S. C, 11 Am. Rep. 357. And a mortgage of a crop to be raised on a farm during a certain term, but which is not yet sovm, passes no title, and .the BALE. 11 Construction of contracts of sale. mortgagee has no claim against a purchaser of the crop for it or its value. Hutohimon v. Ford, 9 Bush (Ky.). 318 ; S. 0., 15 Am. Eep. 711. Every species of personal property is a subject of sale ; and it is not essential to the validity of a sale that the thing should have a corporal existence or be capable of manual delivery. It is sufficient if it has an actual value, however intangible it may be. Thus the route of a news- paper carrier {Hathaway v. Bennett, 10 N. Y. 108) ; the good-will of a trade {Tweed v. Mills, L. R., 1 0. P. 39) ; a copyright to print and sell a manuscript (2 Bl. Com.) ; or a license to manufacture patented machines, may be the subject of sale. BrooTcs v. Byam, 2 Story (C. C), 525. Nearly all choses in action may be sold or assigned, so as to vest the party purchasing with all the rights of his assignor. But, as there are some things peculiar to the sale or transfer of this species of property, the subject has been treated separately. See Vol. I, 812. § 6. Construction of contracts of sale. Contracts of sale may be absolute or conditional, executory or executed, express or implied, oral or written, sealed or unsealed. "Where the contract relates to the sale of property of more than $50 in value, the statute of frauds imposes certain restrictions upon the common-law rule as to the validity of the contract, which will be noticed hereafter. Other statutes may afEect the validity of the contract, and the question whether or not the contract comes within the prohibition of the statute may be one of construction. The question as to what will transfer the title to the goods sold from the vendor to the vendee may depend wholly upon the intention of the parties to the sale as gathered from the language of the contract or their acts, and be a mere question of construction. The question as to whether a given transaction is a sale or a mere wager is one of construction also. A contract for the sale of goods, to be delivered at a future day, is not invalidated by the circumstance that, at the time of the making of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expecta- tion of becoming possessed of them at the time appointed for delivery, otherwise than by purchasing them after making the contract. Stanton V. Small, 3 SaUdf. 230 ; Cassard v. Rinman, 1 Bosw. 207. See Hihhle- white V. McMoring, 5 M. & "W. 462. But the form of a con- tract of sale may be resorted to as a mere cover for betting on the future price of the commodity agreed to be sold, and if this is the real meaning of the transaction, and no actual or real purchaser is intended the contract is illegal and will not be enforced. Bigelow v. Benedict, 12 SALE. Coustruction of contracts of sale. 70 ]Sr. Y. 202 ; S. C, 26 Am. Eep. 573. If it was the intention and understanding of the parties to the contract at the time of its execu- tion that the goods purporting to be sold should not be delivered, but that the difference between the market-price on the day of delivery and that stipulated in the contract should be paid by one of the parties to the other, according as such contract-price might exceed or fall short of that stipulated, the contract is not a legitimate mercantile specula- tion, but is a mere wager, and as such is void under the statute. 2 R. S. 980, § 8, 5th ed. ; 1 E. S. 662, § 8, Ist ed. ; Cassard v. Einmcm, 1 Bosw. 207; Bigelow v. Benedict, 70 N. Y. 202; Orisewood v. Blane, 78 Eng. 0. L. 525 ; Bourhe v. Short, 34 Eng. L. & E. 219. See Story v. Salomon, 71 N. Y. 420. Whether such was the intention of the parties is a question of fact to be determined by the jury or justice on extrinsic evidence. Cassard V. Hinman, 1 Bosw. 207. Where a contract of sale is in writing, the intention of the parties must be collected from the whole instrument, and in order to carry that intention into effect, the literal import of particular words, when they are inconsistent with the intention which is ascertained from the whole instrument, may be disregarded. Kelley v. Upton, 5 Duer, 336. A contract made in the city of New York, for the sale of five him- dred bales of cotton, to be delivered on its arrival at New York from New Orleans, at any time between the date of the contract, which was the ninth day of February, and the first day of June thereafter, to be paid for in cash on delivery, the cotton to be weighed, and two per cent allowed, is an executory contract, and the title to the cotton does not pass. The word sold at the commencement of such a writing means contracted to sell. Russell v. Nicoll, 3 Wend. 112. The defendants agreed, by a written contract, to deliver thirty thousand spruce plank ; and, in the same contract, they also agreed to dehver to the plaintiff, in addition, all the merchantable plank of the description and proportions therein mentioned, which the defendants might saw at their mill during the ensuing winter, to be delivered at F. the ensuing summer and winter, etc. ; it was held that this agreement did not require the defendants to saw any plank at their mill, but merely that they should deliver such plank as they might saw of the character specified. Wemple v. Stewart, 22 Barb. 155. The contract was executory, therefore, and it was also optional with the vendors whether they would saw and deliver the planks. The plaintiffs executed a written memorandum importing that they had sold to the defendants one hundred and fifty tons of pig iron, of a SALE. 13 Construction of contracts of sale. certain quality, on board the ship S., it being understood by both parties that the ship was then at sea. This is not a sale, but an agreement to sell the iron on condition that it arrives in port ; and therefore, when the ship arrived with the quantity of iron on board, but which was of a quality inferior to that specified, it was held that the contract was at an end, and that it did not bind either party. Shields v. PetUe, 4 E". Y. 122 ; Riissell v. Nicoll, 3 Wend. 112. But where, on the 1st of May, 1856, the defendants entered into an executory contract, for the sale to the plaintiffs of an invoice of sugar, per Anna Kimball, seven hundred tons, more or less, to arrive on or before the first of August, sugar to be of current quality, etc. The sugar had then been shipped on board the vessel, and was on its way to this country, but did not arrive until after the first of August. Part of it was dam- aged on the voyage, and the residue the defendants refused to deliver, on tbe ground that the contract was at an end, because the vessel did not arrive within the time specified ; it was held that this was an absolute sale ; and that the additional clause in the agreement, " to arrive on or before the first of August," did not make the sale conditional, depend- ing on the arrival at that time. Havemeyer v. Cunningham, 35 Barb. 515. This case differs from Russell v. Nicoll, 3 Wend. 112, because in that case the cotton was to be weighed, etc., before delivery. But in this case the court held the sale to be absolute, and they said, on pages 519, 520 : " There are two classes of cases in which the designation of the time of arrival in such contracts has been held to be a condition precedent to the obligation to perform. One of these classes is where the contract is to take effect on arrival, etc. The other is where the article sold is not known to be on board of any vessel, but is expected by some vessel to arrive at a particular time. In both cases the contract is held to be conditional, depending on the arrival of the goods at the time stated." The contract in this case was for the sale of the whole invoice, more or less, and the identification did not require any separation, measuring, weighing, etc., and the title passed without any actual de- livery. Toll & McArdle, merchants in Ohio, by an agreement in writing, sold to the plaintiff one hundred and seventy-four sacks of wool, con- taining about thirty thousand pounds, which they had previously ship- ped to the defendants, in New York, upon the following terms : The wool to be weighed in New York by a city weigher ; the plaintiff to pay all charges for transportation and insurance, and for storage and cartage in New York, and none other ; to pay thirty cents per pound for the wool, and sixty-two and a half cents a piece for each sack. The 14 SALE. Construction of contracts of sale. plaintiff paid $3,000 on account, and agreed to pay the balance on the delivery of the wool to him in New York. If any of the wool should have been sold by the defendants before the agreement was presented to them in New York, the sale to the plaintiff was to be limited to the balance in their hands ; it was held that this agreement was executory and contingent, and transferred no title to the plaintiff that could enable him to maintain an action for the wrongful conversion of the property. Cha/pman v. Kent, 3 Duer, 224. The acceptance of an order for the delivery of a specified quantity of property, which is accepted by the person upon whom it is drawn, does not operate to transfer the title to any particular property, nor does it operate as a sale of the articles specified. Such an acceptance merely amounts to a promise to deliver the property at a future time, on request. It is a special undertaking, and in order to recover upon it, the payee must declare upon it as such. Burrall v. Jacot, 1 Barb. 165. "Where A. agreed to deliver to B., by the first day of May, from seven hundred to one thousand barrels of meal, for which B. agreed to pay on delivery, at the rate of $6 a barrel, and A. delivered seven hun- dred barrels, and also, before the first day of May, he tendered to B. three hundred barrels more to make up the one thousand barrels, which B. refused to accept ; it was held that B. was bound to receive and pay for the whole thousand barrels ; that it was optional with A. to deliver any quantity between seven hundred and one thousand barrels ; that the quantity was optional as to A. only ; and that the law holds a contract valid which is optional as to one of the parties and absolute as to the other. Disborough v. NeiUon, 3 Johns. Cas., 81 ; Topping v. Boot, 5 Cow. 404. When, upon the trial of a cause it is doubtful upon the evidence whether a written contract for the sale of goods signed by the vendor and delivered to the purchaser, was delivered absolutely or conditionally, the question, as a question of fact, must be submitted to the jury or the justice in their place. Soott v. Pentz, 5 Sandf . 572, So, when the contract is a verbal one, it is a question of fact, upon aU the evidence, whether the contract was executed or executory. De Bid- der V. McKnight, 13 Johns. 294. When a condition outside of the contract is annexed to its delivery, the purchaser must be allowed a reasonable time for its performance, and if within that time he tenders a performance, the agreement becomes absolute. Scott v. Pentz, 5 Sandf. 572. Where the agreement between the parties provides that payment is, to be made on or after delivery at a particular plaqe, it may be fairly inferred SALE. 15 When the title passes on a contract of sale. that the contract is executory until such delivery. But a mere agree- ment on the part of the vendor to transport the goods sold to a place named for delivery does not render executory a contract of sale otherwise completed on his part. Terry v. Wheeler, 25 N. Y. 520. A sale of goods by contract at a price named, less a percentage for cash payable on a day specified, is a sale for cash ; and the goods are to be delivered and the price paid at the day fixed. Crooks v. Moore, 1 Sandf. 297. A sale is presumed to be for cash, unless the giving of a credit is proved. PoUock v. EhZe, 2 E. D. Smith, 541. Where goods are sold, to be paid for in cash, but no time is agreed upon for the payment, the payment and delivery are simultaneous acts. Chapman v. Lathrop, 6 Cow. 110. § 7. When the title passes on a contract of sale. Contracts of sale, like all other contracts, may be absolute or conditional, executory or executed, express or implied. The question as to when title to the thing sold passes to the vendee under either form of contract is not free from difficulty. Much will of course depend upon the form of the contract, and the intention of the parties, as the same is to be gathered from the terms employed and the circumstances of each particular case. No general rule of universal application can be given; but there are certain general rules to be derived from the multitude of decisions, which may be of use in determining in which of the parties to a contract of sale the title to the subject-matter of contract is vested, when there is nothing in the language of the contract itself which renders it sui generis. 1. It is competent for the parties to a sale to agree as to what acts shall be done by the vendor before title shall vest in the purchaser ; and when they have done so, no title will pass until such acts are performed or performance waived. Kelley v. Upton, 5 Duer, 336 ; Gilbert v. New York Central & Hudson R. B. R. Co., 4 Hun, 378 ; S. C, 6 Sup. Ct. (T. & C.) 662; And/rews v. Dwcmt, 11 K Y. 85, 42; Dexter v. Bevins, 42 Barb. 573. 2. Ordinarily, in the sale of personal property, which requires some act of the vendor to complete delivery, such as counting, weighing, or measuring to ascertain the quantity, no title passes until such weighing or measuring takes place. Dexter v. Bevins, 42 Barb. 573 ; Downer v. Thompson, 2 Hill, 137 ; McDonald v. Hewitt, 15 Johns. 349 ; Ward v. Sham, 7 Wend, 404 ; Rapeh/e v. Machk, 6 Cow. 250. But this rule is subject to the qualification of the rule above stated, that the parties may, by their agreement, provide that the title shall pass without the formalities of counting, weighing or measuring ; and when 16 SALE. When the title passes on a contract of sale. this intention is clearly manifested the title will be held to pass without the performance of these acts. Bv/rrovjs v. Whitaker,inS. T. 291; Olyjphcmt v. Baker, 5 Deino, 3T9 ; Dexter v. Bevins, 42 Barb. 573 ; Keeler v. Yandervere, 5 Lans. 313. Thus, where the owner of wheat lying in a mass in his warehouse sold six thousand bushels of the mass at a specified price, and executed to the vendee a receipt acknowledging that he held the wheat subject to the purchaser's order, it was held that the separation of the grain sold from the common mass was not necessary to pass the title. Kimherly v. Pat- chin, 19 N. Y. 330. So where a person sold forty-three thousand bricks in an unfinished kiln, containing a larger quantity, and formal possession of the whole brick-yard was taken by the purchaser, it was held that he acquired title to the forty-three thousand although no separation was made. Crofoot^. Bennett, 2 N. Y. 258. So upon the sale of four hundred bushels of corn, stored with other grain of the same kind in an elevator, it was held that the delivery by the vendor to the vendee of a receipted bill of sale, upon payment of the purchase-price, and subsequently of an order for the corn drawn upon the elevator by the* person upon whose account the corn was stored, sufliciently manifested an intention to pass the title and rendered the transaction an executed contract, without actual separation or delivery of the property. Russell v. Carrington, 42 N". Y. 118 ; S. C, 1 Am. Eep. 498. In Virginia, New York, New Jersey, Connecticut and Maine, the courts have held the broad doctrine, without qualification, that on a contract of sale of a certain quantity from a larger bulk, uniform in kind and quantity, the property will pass, though there be no separation of the quantity sold, if such be the intention of the parties, and that no rule of law will overrule such intention if it be otherwise clearly ex- pressed. Pheasants v. Pendleton, 6 Eand. 473 ; Kimherly v. Patchin, 19 N. Y. 330 ; Pussell v. Carrington, 42 id. 118 ; S. C, 1 Am. Eep. 498 ; Hurffy. Hires, 40 N. J. L. 581 ; S. C, 29 Am. Eep. 281 ; Chap- man V. Shejpa/rd, 39 Conn. 418 ; Waldroiu v. Chase, 37 Me. 414. But it is otherwise when the articles composing the mass are of dif- ferent qualities and values, making not merely separation but selection necessary. Chapman v. Shepard, 39 Conn. 413 ; Hurff v. Hires, 40 N. J. L. 581. And in order to substitute an arrangement between the parties for a manual delivery of a parcel of property mixed with an ascer- tained and defined larger quantity, it must be so clearly defined that the purchaser can take it, or if necessary maintain replevin for it. Foot v. Marsh, 51 N. Y 288. SALE. 17 When the title passes on a contract of sale. The tendency of the modern decisions is to give effect to contracts of sale according to the intention of the parties, to a greater extent than is found in the older cases, and to engraft upon the rule that the property passes by the contract of sale, if such be the intention, fewer exceptions, and those only which are founded on substantial considerations affecting the interests of the parties. 3. It is a general rule of the common law, that a mere contract for the sale of goods, where nothing remains to be done by the vendor be- fore delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser. OlypJiant v. JBaker^ 5 Denio, 3Y9 ; Bradley v. Wheeler, 44 N. Y. 495 ; Hayden v. .Demets, 53 id. 426, 431 ; SGhoonmaher v. Yervalen, 9 Hun, 138 ; Chroat V. OUe, 51 ISr. Y. 431. Except for the purpose of satisfying the statute of frauds, the seller is not bound to deliver the property sold unless he has agreed to do so, and the buyer must take it where it is at the time of the sale. Bradley V. Wheeler, 44 N. Y. 495 ; 8mith v. Sparhman, 55 Miss. 649 ; S. C, 30 Am. Eep. 537. " Independently of the statute, any words importing a bargain, whereby the owner of a chattel signifies his willingness and consent to sell, and whereby another person shall signify his consent to buy it, in presenti, for a specified price, would be a sale and transfer of the right to the chattel. To avoid frauds and perjuries, the statute requires either that the possession shall pass, or that something shall be given in earnest to bind the bargain, or that some note or memorandum, in writing, of the bargain be signed by the parties or their agents, when the price of the goods and merchandise shall be of the value or exceed $50." Spencer, J., De Fonclear v. Shottenki/rJc, 3 Johns. 174. The qualification to the common-law rule above stated, that the title will pass " when nothing remains to be done by the vendor," etc., means that nothing is to be done by the vendor to ascertain the identity, quan- tity or quality of the article sold, or to put it in the condition which the terms of the contract require. Terry v. Wheeler, 25 N. Y. 520. If all that remains to be done is to make a simple computation to ascertain the gross amount of consideration, all the elements of that computation being already ascertained, this is not such a thing remaining to be done as will prevent the title from passing. Bradley v. Wheeler, 44 l^.Y. 495. "Where chattels, fully identified, are sold at a designated fixed price each, the fact that the number of articles is not known and is to be as certained solely for the purpose of fixing the total value will not prevent the title from passing. Groat v. Oile, 51 N. Y. 431. And generally, if 3 18 SALE. When the title passes on a contract of sale. the goods sold are clearly identified, the title will pass although it may be necessary to number, weigh or measure them in order to ascertain what would be the price of the whole at the rate agreed upon between the parties. Crofoot v. Bennett, 2 N. Y. 258 ; Tei^y v. Wheeler, 25 id. 520. The question as to where the title of the property is does not depend so much upon what is to be done as the object to be eflEected by it. If the acts unperformed are necessary to the identification of the property which is the subject of the contract of sale, the title does not pass ; but if the object of the acts unperformed is merely to ascertain the total value at designated rates, the change of title is eflEected. Bur- rows V. Whitaker, Yl N. Y. 291. Where lumber, on being sold, is piled by itself, preparatoiy to ship- ping, and possession of the whole is delivered, a measurement is not necessary to vest the title in the purchaser. Tyler y. Strang, 21 Barb. 198. See Eyde v. Lathrop, 3 Keyes, 597 ; S. C, 3 Trans. App. 320 j 2 Abb. Ct. App. 436; Burrows v. WJvitaker, Yl JST. Y. 291, 297. Where the delivery of the thing sold, and the payment of the price,, are to be simultaneous acts, the title, until delivery or payment, remains in the seller. Kelleyy. Upton, 5 Duer, 336 ; MaoomherY. Pa/rher, 13 Pick. 178 ; Reddle v. Yaamier, 20 id. 280. In the absence of any special agreement, payment and delivery are to be deemed concurrent acts, and an action for non-performance cannot be maintained by either party, without showing a readiness to perform on his part. Metz v. Alhrecht, 52 111. 491 ; Davis v. Adams, 18 Ala. 264. And see CassellY. BacJcrack, 42 Miss. 56; S. C, 2 Am. Eep. 590. On a sale of chattels for cash, the buyer cannot take the goods or sue for them without payment ; and where the vendor sold to the plaintiff a quantity of hops, to be paid for on delivery, and the vendor sent the hops to the defendants, who were forwarders and warehousemen, to be delivered to the plaintiff on payment of the purchase-price in cash, it was held that the title did not pass before payment, and that the plain- tiff, having neglected to make payment and receive the hops for an unreasonable time after being notified of their arrival, could not maintain trover against the defendants, who shipped them to another market in pursuance of the orders of the vendor. Oonway v. Bush, 4 Barb. 564. But see Morey v. Medhury, 10 Hun, 540. When it is not the inten- tion of the vendor to part with the possession of the property until he is paid the price agreed upon, in money, he will not lose title to the property by inadvertently allowing the purchaser to get possession with- out payment. Miller v. Jones, 66 Barb. 148. See, also, Martvneau v. SALE. 19 When tlie title passes on a contract of sale. Kitohing, L. E., T Q. B. 436 ; S. C, 2 Eng. R. 539 ; Lewn v. Smith, 1 Denio, 571. In the examination of the authorities on the question of title to goods tinder a contract of sale^ the distinction between the right which the vendee has under the contract as against third persons, and the right which he has as against his vendor, must not be overlooked. A vendee in possession of goods under an executory contract, though he never acquires title as against his vendor, may have his action against a stranger who carries them away. In an action against the third party for the conversion of the goods, title in the plaintiff is not essential if he has, at the time of the taking and the commencement of the action, the right to the possession of the goods taken. As has been stated, title to goods sold may pass to the vendee without payment or delivery when such was the intention of the parties. The difficulty lies in determining what acts or words evince such an intention. The question whether the property has passed under a contract of sale has generally arisen where the right of an unpaid vendor is in issue. Payment of the price is so essential an ingredient of sale that neither in law nor in morals is the buyer entitled to have the goods until he pays for them ; and when the right of the vendor to retain the goods has arisen, the courts have laid hold of slight circumstances to retain in him the property until the purchase-money is paid. See Hanson V. Meyer, 6 East, 614 ; Wallctoe v. Breeds, 13 id. 522 ; Shepley v. Dwois, 5 Taunt. 616; Bush v. Dams, 2 M. & S. 397; Swanwiok v. Southern, 9 A. & E. 895 ; Godts v. Rose, 17 C. B. 229. An understanding that the title to personalty shall pass before full payment may be implied from circumstances. Bonn v. Hoxie, 40 Mich. 401 ; S. C, 29 Am. Eep. 282. Where a valid contract is made for the sale and delivery of the wheat in a specified boat for cash, and the buyer designates a vessel into which the wheat is to be delivered, and the seller accordingly has it measured as is customary in such cases, and placed on board of such vessel, and sends to the buyer a duplicate measurer's return or certificate of the quantity, and a bill for the wheat at the contract-price, and the seller thereupon requests payment from the buyer, who answers that he wUl pay on Saturday (the second day thereafter), and the seller makes no objection thereto ; and where there is no fraud in making such contract or obtaining such delivery, a person in good faith, advancing money on the same day to such buyer on the security of such wheat, and on the faith of his being the owner thereof, will obtain a valid title thereto as against the seller to the extent of such advance ; although such buyer 20 SALE. When the title paasea on a contract of sale. fails after obtaining such advance, and thus becomes unable to pay to the seller any part of the contract-price. Durbow v. McDonald, 5 Bosw. 130. See S. 0. again, sub nom. Winne v. McDonald, 39 N. Y. 233. Such a delivery being all the delivery which the parties contem- plated or the contract required, it was subject to no condition unless it be an implied one, that payment be made if demanded, when all the wheat was delivered. lb. Upon a contract to sell goods, where no credit is stipulated for, the vendor has a lien, so that if the goods be actually delivered to the vendee, and upon demand then made, the vendee refuses to pay, the vendor may lawfully take the goods as his own, because the delivery was conditional. Palmer v. Hand, 13 Johns. 434. See Haggerty v. Palmer, 6 Johns, Ch. 437 ; Keeler v. Field, \ Paige, 312 ; FUtcher v. Cole, 23 Vt. 114 ; Ryder v. Hathaway, 21 Pick. 298. Where goods are sold, to be paid for in cash or by notes on delivery, if delivery is made without demand of the notes or cash, the presump- tion is that the condition is waived, and a complete title vests in the purchaser ; but this presumption may be rebutted by proof of acts or declarations or circumstances showing an intention that the delivery shall not be considered complete until performance of the condition, and the question of intention is one of fact. But after actual delivery, although as between the parties to the sale the delivery be conditional, a bona fide purchaser from the vendee obtains a perfect title, though a voluntary assignee of the purchaser would not. Com.er v. Ownning- ham, Y7 N. T. 391 ; Smith v. Lynes, 5 id. 41 ; Fleeman v. Mc- Keon, 25 Barb. 474 ; Beavers v. Lane, 6 Duer, 238 ; Haggerty v. Palmer, 6 Johns. Ch. 437. It is now authoritatively established in this State, that a condition that title shall not pass until payment, when attached to delivery upon an actual completed contract of sale, is avail- able only as against the vendee and persons claiming under him, other than bona fide purchasers without notice. Comer v. Cunningham, 11 K. Y. 391 ; Smith v. Lynes, 5 id. 41 ; Pawls v. Deshler, 3 Keyes, 672 ; S. C, 3 Trans. App. 91 ; 4 Abb. Ct. App. 12. Where a party contracts to deliver stocks to another, for cash on delivery, the acts of delivery and payment are to be simultaneous, and the purchaser, if he does not pay the cash upon the delivery of the stock, is immediately liable to an action for a breach of the contract. Genin V. Tompkins, 12 Barb. 265. The fact that the day of performance of the contract is to be at the option of the purchaser, and that he claims the delivery of the stock at a certain time, and that it is then delivered to him without immediate payment, does not alter the case. The pur- SALE. 21 When the title passes on a contract o£ sale. chaser's checks which, when presented to the bank on which they are drawn, are dishonored for want of funds, are not payment ; nor do they extend the time of payment. lb. Upon a valid tender by the vendor of specific chattels under an exec- utory contract of sale, the property passes to the vendee, at whose risk it is retained by the vendor. Hay den v. Demets, 53 N. Y. 426. A contract for the purchase of a quantity of cotton at a specified price per pound, deliverable thirty days from date and payable on de- livery, the buyer to pay storage, insurance and interest after ten days, and to deposit five dollars per bale with the vendor, is an executory agreement and the title remains in the vendor. The deposit in such a case is an advance toward the price, and in case the cotton is destroyed by fire before the time of delivery, such advance may be recovered of the vendor. Joyce v. Adams, 8 1^. T. 291. Where goods are sold for which a note is to be given at six months, if the goods are delivered and the note not demanded until nearly two months after the sale, the condition will be deemed to have been waived, and the title will pass so that the vendee may sell the goods to one of his creditors in payment of his debt, and his title will be su- perior to that of the vendor, in an action of replevin. Hennequin v. Sands, 25 Wend. 640. Where goods are sold for which notes are to be given, and the property is subsequently delivered by the vendor without at the time requiring the notes or annexing any condition to the delivery, such delivery is a waiver of the obligation, which other- wise the vendee must have complied with before he could have de- manded the goods, and the vendee becomes absolute owner. Lv/pvn v. Marie, 6 Wend. Y7. A vendor of personal property in such a case has not a lien upon the property sold, as has the vendor of real estate upon the premises conveyed by him. lb. Where the memorandum of a contract of sale of merchandise, which was signed by a broker as the agent of the parties, contained a pro- vision that the note to be given by the purchasers should he made satis- factory to the sellers, it was held that the obvious construction of the contract was that the delivery of the merchandise and the giving of the notes were to be simultaneous acts and each was to be the condition of the other. Such a contract differs from ordinary contracts in which the sale is for cash or notes ; because, in this case, a further act is nec- essary on the part of the vendors, before the vendees will have it in their power to fulfill the contract, viz. , the notes to be given are to be satisfactory to the vendors. This provision will render a sure clearly and unequivocally conditional. Draper v. Jones, 11 Barb. 263. Upon 22 SALE. When the title passes on a contract of sale, a sale of merchandise on a credit of four months, upon notes to be made satisfactory to the sellers, a clerk of the vendors delivered the merchandise at the time agreed upon, to the cartman of the vendees, and another clerk shortly after the delivery called on the vendees with the bill of parcels, which contained the words, " at four months with satisfactory security. " The vendees asked him what kind of notes would be satisfactory, and he replied, " just what the bill calls for. " He again called upon the vendees, and they then said that they had not fixed upon the paper that they would give ; but they proposed the note of a third person for the vendor's consideration, who said they would inquire about him. But before the clerk had time to inquire again, the vendees had stopped payment, and no note was ever given. The sheriff having levied upon and taken the merchandise by virtue of an execution against the purchasers, the vendors brought an action of re- plevin against him for the taking, and it was held that there was evi- dence enough to go to the jury upon the question whether the sale and delivery of the property was conditional ; and that the judge before whom the cause was tried, erred in ordering a nonsuit. lb. The title of the vendors is not divested by the receipt of the goods by the vendees, where it is apparent that such was not the intention of the parties, and where upon a conditional sale of property, the property is delivered to the purchaser without a compliance with the condition being insisted on at the time. Yet if it is insisted upon immediately afterward, when a bill of sale is rendered, and the vendees fully recog- nize and acknowledge the condition as still subsisting and binding upon them, this is sufficient to uphold the condition. lb. A sale of lumber on credit, and a conditional delivery of it to the purchaser for transportation by him, and a delivery to consignees for sale, in the name of the original owner and as his property , the avails to be paid to him to the extent of the unpaid purchase-money, and the surplus to such purchaser, give to the latter no title to the property, or authority to sell it, or to create a lien upon it for advances. Covell v. Hill, 6 ]Sr. T. 374. "When property is to be manufactured by the vendor, or is to be purchased by him for the purpose of performing the contract at a future time, the general rule is that the title does not pass until a de- livery of the property. See Comfort v. Kiersted, 26 Barb. 472; Machay v. MaoTcay, 1 Lans. 506 ; HaZterUne v. Bice, 62 Barb. 593 ; Sutton V. Campbell, 2 Sup. Ct. (T. & 0.) 595 ; Andrews v. Durante 11 N. Y. 35; Higgins v. Murray, 73 id. 252; Butler v. Butler, 77 id. 472 ; Abbott v. Blossom, 66 Barb. 353. SALE. 23 Sale or return. In case of judicial sales, if the property sold is mingled with other property, the oflScer making the sale must separate the property sold from the mass of property with which it is mixed or the title will not pass. Stevens v. Mio, 10 Barb. 95. In a contract for the sale of logs which are to be delivered at a dis- tant place, the contract will be executory until delivery, as between vendor and vendee. Evans v. Ha/rris, 19 Barb. 417. I Marking logs is an equivocal act and may be for the purpose of tak- ing possession, or it may be evidence of acceptance, or it may be done merely for the purpose of identification. lb. On a sale of cotton which is to be weighed, the sale is executory, and the title does not pass. Ha- pelye v. Maohie, 6 Cow. 250 ; Joyce v. Adams, 8 N. Y. 291. An agreement for the sale of lumber which is to be measured and inspected at a future time is an executory sale, and until delivery, the title remains in the vendor. McDonald v. Hewett, 15 Johns. 349. A contract for the sale of wheat, of which a portion is unthreshed, is an executory sale. Downs v. Ross, 23 Wend. 270. § 8. Sale or return. There is a class of sales in which the purchaser has a specified or a reasonable time in which to determine whether he Avill become the owner. Such contracts are known as contracts of " sale ' or return." In such cases, the purchaser sometimes desires to examine the quality of the articles which he receives, or he wishes to test the value or usefulness of some kind of machine, etc., with a right to re- J^ turn the things received if they do not suit the person who receives them. When goods are sold under a contract of " sale or return,' ' they jass to the pai'chaser, subject to an option in him to return them within a reasonable time, and if he fails to exercise that option within a reason- able time, the contract is discharged of the condition, the sale statids as an absolute sale, and the price may be recovered in an action for goods sold and delivered. Moss v. Sweet, 16 Q. B. 493 ; Taylor y. Tillotson, 16 Wend. 494. In such contracts the title passes to the purchaser, sub- ject to his right to return the property and reinvest the former owner "with the title to it. But until such election is made, the goods are at the risk of the purchaser, and in case they are lost, injured, destroyed, •or stolen, the loss will fall upon the purchaser. His contract is, that he, is the purchaser, or that he will return the articles in as good conditions as he received them, subject to any special modification which may have , been made in the particular instance. Taylor v. Tillotson, 16 Wend. 494. , See Person v. Cvuer, 29 How. 432 ; Neidig v. Eifler, 18 Abb. 353. This kind of contract is common to all classes of persons, from the seller of a single article to a manufacturer or wholesale dealer. Where 24 SALE. Sale or return. goods are sent from a manufacturer or a wholesale dealer to a retail merchant, in the hope that he will purchase them, and with the under- standing that what he may choose to take he shall have as on a contract of sale, and what he does not take, he will retain as consignee for the owner, the goods are said to have been sent on sale and return. The goods taken by the receiver as on a sale will be considered as sold, and the title to them is vested in the receiver of them; the goods he does, not buy are considered as a deposit in the hands of the receiver of them, and the title is in the person who sent them. Bouv. Law Diet., " Sale and Return ;" 1 Bell's Com. 268, 6th ed. If a part of the goods ordered on " sale or return " are kept, and the rest returned, a new contract arises in respect to the portion kept, and the price of such portion may be recovered in an action for goods sold and delivered. Hart v. Mills^ 15 Mees. & Wels. 87. The rules of law relative to sales " on trial " are, in many respects,, similar to those relative to the bargain of " sale or return." An option to purchase if the buyer likes is, however, essentially different from an option to return a purchase if he should not like ; for in the one case,, the property will not pass iintil the option is determined ; while in the other, the property passes at once, subject to the right to rescind and return. Hunt v. Wyman, 100 Mass. 198. In sales " on trial," the buyer has the full period agreed upon within which to return the property if not approved of, but no more. See Moore v. Piercy, 1 Jones (N. C.),. 1 31. And, where no specified period has been fixed in advance, a reason- able time is implied. Paige v. McMillan, 41 "Wis. 337. It is the duty of the buyer, if he disapprove, to make his disapproval known to the seller in due season, or the contract will become binding by the resolu- tion of the condition. Johnson v. MeLane, 7 Blackf . (Ind.) 501 ; Quinn V. Stout, 31 Mo. 160 ; Waters' Heater Co. v. Mansfield, 48 Vt. 378 ;, Mowbray v. Cady, 40 Iowa, 604. See Hall v. Meriwether, 19 Tex. 224. And although the seller lives at a distance, the buyer is bound to seek him ; and if his residence was unknown, he must show that he endeav- ored to discover it. Failing in these respects, the contract will become absolute. Dewey v. Erie Borough, 14Penn. St. 211. In arriving at a determination whether to keep the thing or not, an actual trial must be made. ITie testimony of experts that the machinery could not have operated is inadmissible. McDonald v. Pierson, 38 Barb. 128. And the buyer is bound to bring to the trial of it honesty of purpose and judg- ment, according to his capacity to ascertain his own wishes ; but he is- not necessarily bound to use the care and skill of ordinary persons in" making the determination. Ha/rtford Sorghum Manuf. Co. v. Brushy SALE. 25 Conditional sales, and sales by vendors without title. 43 Vt. 528. And it is immaterial that tlie chattel, after its return to the seller, worked well under his management, without alteration or repair. Aiken v. Hyde, 99 Mass. 183. It has been held that, if the seller accept a return, he cannot object that no trial had been made. Young v. Hunter, 6 N. Y. 203. § 9. Conditional sales, and sales toy yendors without title. Where goods are sold on condition of being paid for on delivery, in cash or commercial paper, or on condition of receiving on delivery se- curity for payment, an absolute and unconditional delivery of the goods by the vendor without exacting, at the time of delivery, a performance of the condition, or attaching any other condition to the delivery, is presumptively a waiver of the condition of the sale, and a complete title passes to the purchaser, if he was guilty of no fraudulent contri- vance to obtain possession. But the presumption of a waiver of the con- dition may be rebutted by proof of acts, declarations or circumstances showing an intention that the dehvery shall not be considered com- plete until performance of the condition. The question of intention is one of fact. If the fact is established that the intention of the ven- dor was that the delivery should not be complete before the perform- ance of the condition, the vendee and persons claiming under him, other than a lona fide purchaser without notice, will take nothing by the delivery, and the vendor may immediately resume the possession of the goods. But after actual dehvery, although as between the parties to the sale such delivery be conditional, a bona fide purchaser from the vendee obtains a perfect title. Comer v. Cunnvngham, 77 N. Y. 391 ; SwUh V. Lynes, 5 id. 41 ; Fleem^n v. MoKeon, 25 Barb. 474 ; Beavers V. Lane, 6 Duer, 238. And see Leven v. Smith, 1 Denio, 571 ; Russell V. Minor, 22 Wend. 659 ; Tuthill v. Wheehr, 6 Barb. 362. In the last three cases cited the goods were to be paid for on delivery, but that was not done, and there was no waiver of the condition ; and it was held that the title did not pass as between vendor and vendee. Where goods are sold upon the condition that the title to them shall not pass to the vendee until payment; such vendee cannot transfer any title to them, as against the vendor, by an assignment to a single creditor, for the purpose of securing his debt, nor by a general assignment in favor of all his creditors. Eeeler v. Field, 1 Paige, 312; Haggerty v. Pahner, 6 Johns. Ch. 437. In such cases the vendor may reclaim the goods by "replevin, or he may recover their value of such creditors, in case they convert them to their own use, or refuse to redeliver them on demand. lb. ^. . , One having possession of personal property as a bailee for hire, with 4 Vni- TT nacres «K 5, as amended by chap. 495 26 SALE. Conditional sales, and sales by vendors without title. an executory and conditional agreement for its purchase, which conditions have not been performed, has himself no title to the property, and can give no title to a purchaser, although such purchaser acts in good faith and parts with value, without notice of the want of title of his vendor. Austin V. Dye, 46 N. Y. 500 And see Ballard v. Burgett, 40 id. 314 ; McEntee v. Scott, 2 Sup. Ct. (T. & 0.) 284; S. C. aff'd, 58 N. Y. G54 ; Cole v. Mann, 62 id. 1. These decisions are placed upon the principle that a bona fide pur- chaser of personal property, other than commercial paper, acquires no better title than his vendor, although the latter has possession at the time of the purchase. The cases illustrating the effect of a conditional sale or conditional delivery are numerous. The owner of a yoke of oxen let them for use to one Morgan, who agreed to pay $1 per day for their use ; at the same time it was agreed that if Morgan should deliver to the owner of the cattle a given quantity of lumber, at a place specified, the cattle should be his ; and that, if he failed to deliver the full amount of lumber, the amount actually deliv- ered should be received by the owner of the cattle at a fixed price per thousand, and applied in payment for the use of the oxen. The oxen were delivered, under this agreement, to Morgan, who failed to deliver the full amount of lumber, and mortgaged the cattle to a third person for moneys advanced in good faith. It was held, in an action between the owner of the cattle and the mortgagee, that the latter acquired no title to the cattle by the mortgage. Austin v. Dye, 46 N. Y. 500. In another case the owner of a yoke of oxen agreed with one France that, when the latter should pay $180, he would sell him the oxen, and that, until such payment, France should have the possession of the cattle. The oxen were delivered under this agreement, but the purchase-money was never paid. In the mean time France sole the oxen to a honafide purchaser. It was held that the purchaser acquired no title to the oxen, Ballard Y. Sampson, 40 N. Y. 314. It was agreed by parol between the vendor and purchaser of certain machinery, that the title thereto should remain in the vendor until it was paid for, and a note was given for the purchase-price, which was never paid. It was held that the agreement was valid ; that the title re- mained in the vendor notwithstanding the giving of the note, and that such title could not be divested by a sale of the land upon which the machinery was located. McEntee v. Scott, 2 Sup. Ct. (T. & C.) 284 T S. C. affrmed., 58 K Y. 654. Where the owner of property consigns it to another under an agree- ment that when paid for it shall become the property of tlie consignee. SALE. 27 Conditional sales, and sales by vendors without title. the fetter acquires no title to it before such payment, and it is not liable to levy and sale upon execution against hira. Cole v. Mann, 62 N. T. 1. And see Herring v. Hoppock, 15 id. 409. ' But a hona fide purchaser of property for vahie, and without notice from one to whom it has been delivered for the purpose of sale, will acquire a valid title notwithstanding a secret agreement between the owner and the vendor that the title should not pass to the latter until he had paid the owner therefor. Fitzgerald v. Fuller, 19 Hun, 180. The plaintiff manufactured a boiler, engines, and other machinery, and put them into the defendant's steamboat, under a contract which pro- vided that the vendor was to be paid a certain specified price, a portion of which was to be secured by a chattel mortgage upon the property, which was to be executed by the defendant when the plaintiff had com- pleted his contract. After the engines and boiler were placed and par. tially fastened in the boat, but before the work was completed or ready to be delivered, the defendant clandestinely went off to Canada with the boat, and on his return refused either to execute the chattel mort- gage or to pay for the machinery, or to permit the plaintiff to remove it. In an action of replevin, brought by the plaintiff, the jury having found that there had been no absolute and unconditional delivery of the machinery to the defendant, nor such an annexation of it to the boat that it could not be removed without injury to the boat, it was held that the plaintiff had not lost his title to the property, but might maintain the action. Kidd v. Belden, 19 Barb. 266. "Where the sale is made upon the condition that the title shall not pass until the property is paid for, it is also held that the creditors of the vendee will not get any title either by a levy and sale under an execu- tion, or by a purchase and an agreement to apply the price in payment of an existing debt. Strong and Dubois entered into a written contract by which the former agreed to sell, and the latter to purchase, a canal- boat for $300, provided thai amount should he paid hy Dubois in freighting wheat and flour on the canal under the direction of Strong ; this was held to be a conditional sale, and that no property vested in Dubois which could be levied upon and sold under an execution issued ' against his property until the purchase-money was fully paid. Strong v. Taylor, 2 Hill, 326 ; Tyler v. Stn-amg, 21 Barb. 199. Under a hona fide contract of this nature, the vendee is entitled to the possession of the thing sold, for the purpose of paying for it in the manner stipulated ; but it is to be thus possessed as the property of the vendor till the con- dition of payment is fulfilled. lb. Where a chattel is delivered to one who has bargained in writing for the purchase thereof, and agreed to 28 SALE. Conditional sales, and sales by vendors without title. pay therefor at a future day, under an express contract that no title is to vest in him until payment, the property of the vendor is not divested, and the purchaser takes, at most, only a right by implication to the use of the chattel until default in the stipulated payment. Herring v. Mop- ■pock, 16 N. Y. 409 ; S. C, 3 Duer, 20. A creditor of the party thus acquiring possession, upon whose execution the sheriff has levied upon the chattel, and who, after notice to the sheriff of the claim of the vendor, indemniiies him against responsibility for a sale, and the sheriB; there- upon sells the property, is liable in an action by the vendor for its value, although the execution in his favor was satisfied by a sale of other jxroperty previous to the sale of the chattel. lb. Where the agreement for the sale of personal property is merely verbal, instead of being in writing, it is equally as valid as a written agree- ment ; and if the sale is made upon condition that no title is to pass until it is paid for, such verbal agreement is legal and binding. Hashrouck v. Lounsbury, 26 N. T. 598. Where the property thus sold is oxempt from levy and sale on execution, a creditor of the vendee caimot law- fully sell or authorize the sale of it upon a judgment and execution in his favor against such vendee. And if he does direct a sale of it, he will be liable to an action in favor of the vendee. And if such creditor bids off the property upon the execution sale, and he subse- quently refuses to deliver it to the vendor on his demand, after the purchase-price has become due, he will be liable to pay the vendor the full value of the property, notwithstanding he may have paid the judgment recovered by the vendee for the wrongful sale on the execution. The judgment in favor of the vendee, and its payraect in full, does not bar an action by the vendor to recover the value of the property. lb. Although such conditional sales are valid as between vendor and vendee, or those standing in their shoes, yet j* the vendee tenders the purchase-money before it is due, on the day it is due, or even after the pay-day, this is sufficient to depriv e the vendor of any right of taking and selling the property after such tender. HuteUngs v. Munger, 41 Barb. 396 ; S. C. affirmed, 41 JST. Y. 155 ; Cushmam, v. Jewell, 7 Hun, 525. Where goods are purchased for cash on delivery, that is, the price to be paid within ten days, the very terms and import of the arrangement are that there is to be a qualified delivery, which is to precede payment. Dows V. Dennistoun, 28 Barb. 393. An understanding, arrangement or custom, that the possession of goods shall be intrusted to the vetidee for the purpose of enabling to realize upon them, and thus provide the means for the payment of the price, cannot be construed into an abso- SALE. 29 Conditional sales, and sales by vendors without title. lute transfer of the title to the property, as between the original parties to it, or persons having no greater equities than the original parties. lb. And if, under such circumstances, the goods are delivered to the pur- chaser on board of a vessel, and he receives a bill of lading therefor, which, together with a bill of exchange drawn upon it, he transfers to third persons before he has himself paid for the goods, upon an agree- ment that such third persons shall pay the amount of the bills within ten days, the latter cannot, as against the original vendors, set ofi against such bills the amount of debts owing to them by the purchaser from the original vendor. lb. And see Fleemwn v. McKean, 25 Earb. 474. Skinner was the owner of three shingle machines and belting, which he had recently purchased in the State of Maine, and he made a writ- ten agreement with Gulick, which was as follows : Gulick agreed to pay Skinner the sum of $810, within five months, for the machines, belting, time, service and expenses of Skinner, which sum Skinner agreed to take for the property ; and the agreement then provided that Skinner lent the property to Gulick as above stated, and if Gulick failed to make the payment as agreed, Skinner was to be at liberty to take the property away, to enable him to realize the amount and inter- est ; it was held that this was a conditional sale, and that Skinner was entitled to the property in preference to a purchaser who had bought the property at a sherift's sale on an execution issued against the prop- erty of Gulick. Grant v. Sleirmer, 21 Barb. 581 ; Piser v. Stearns, 1 Hilt. 86 ; Yol. I, 268, 269. But, although the law tolerates a separation of the apparent from the real ownership of chattels in some cases, when the honesty of the transaction is made to appear, yet when the purposes for which the possession of property is delivered to a buyer are inconsistent with the continued ownership of the vendor, the transaction will be presumed fraudulent as against purchasers and creditors. The form of the trans- action will be deemed colorable, and the title be held to have vested absolutely in the buyer. Ludden v. Hasen, 31 Barb. 650. Hackett purchased a quantity of liquors of the plaintiff for the pur- pose of stocking an unlicensed grocery, and he gave the vendor a re- ceipt therefor, which specified that the same were to remain the prop- erty of the seller until paid for, the liquor to be paid for when sold, or returned when called for ; it was held that the transaction could not be upheld as a conditional sale ; that by the contract of sale and the delivery of the liquors to Hackett to make a part of his stock in trade and to be retailed to his customers, the property vested in him, and became 30 SALE. Conditional Bales, and sales by vendors without title. liable for his debts. lb. ; Bonesteel v. Flack, 41 Barb. 436 ; D&olm v. O'NeiU, 6 Daly, 305. See Chamberlam v. Dickey, 31 Wis. 68. There are some other cases which enforce this rule in its application to cases in which property is sold for the purposes of retailing or for trade. See Herring v. Willard, 2 Sandf. 420, and cases cited. "Where the vendor of goods, sold upon condition, stands by and sees his vendee sell the property to a hona fide purchaser without giving notice of his rights, he will be held to have sanctioned the sale, and will be estopped from questioning the title of such purchaser. Brew- ster V. Baker, 16 Barb. 613. So, on the other hand, if the purchaser from such a vendee has notice of the condition ; or, if he has notice of such facts as are sufiScient to put him upon the inquiry as to the ownership, he will not get any title as against the original vendor, Covell V. Hill, 6 N. Y. 374. There are several cases which hold that a hona fide purchaser from a vendee who purchased upon such a condi- tion will not get any title as against the original vendor. Where goods are sold to be paid for on delivery, if, on the delivery being completed, the vendee refuses to pay for them, the vendor has a lien for the price, and may resume possession. And if, during the delivery, and before it is completed, the purchaser sells or pledges them to a third person, for a valuable consideration, but without notice to the original vendor, the lien of the latter will not be affected, and he may recover them from such subsequent purchaser. Palmer v. Handy 13 Johns. 434. In one case the plaintiff delivered a safe to one Young, under a bargain for the sale thereof, and the agreement expressly provided that the plaintiff neither parted with the title, nor did Young acquire any, until the payment of the purchase-price, for which a note was given, payable in six months. It was also agreed that in case pf a de- fault in payment, the defendant might enter Young's premises and re- take the safe, and that, in that event. Young was to pay for the use of the safe, with all reasonable charges. The purchase-price was not paid, and Young mortgaged the safe to the defendant, to secure him for the rent of the store, which accrued subsequently to the time of the deliv- ery of the safe to Young ; it was held that Young had no title to the safe ; that the mortgage did not transfer any title to the safe to the defendant ; and that an action of replevin could be maintained by the plaintiff against the defendant to recover the possession of the safe. Herring v. WiUard, 2 Sandf. 418. A sale of chattels may be conditional, either as to the right of prop- erty in them, or as to their possession. When the right of property SALE. 31 Conditional sales, and sales by vendors without title. passes to the vendee, but not the right of possession, the possession may be delivered conditionally, so that the vendor can, as against the vendee, rescind the sale or enforce his lien, if the price is not paid ac- cording to the condition ; though he cannot, in such a case, do so, to the prejudice of a iona fide purchaser for value, from his vendee. Bawls V. DeshUr, 28 How. 66; S. 0. affirmed, 3 Keyes, 5Y2; 4 Abb. Ot. App. 12. But where a sale and delivery of chattels is made upon the express condition that the right of property in them is not to vest in the vendee until the purchase-money is paid or received, no title to the property will pass until the condition has been performed. lb. The distinction between a conditional sale, as it respects the right of prop- erty, and a sale conditioned only as to the possession, or a sale induced by fraud, is, that in the former case there is a bare possession without any right of property, while in the latter two cases there is a right of property and also the possession of the property. lb. Where chattels are leased, at a specified rent, with an agreement for the sale of them if the rent should be punctually paid, this is neither a conditional sale, in jpresenti, nor a chattel mortgage, in the sense that requires it to be filed ; and the title does not pass until the agreed pay- ments are made ; and the bailees cannot transfer a good title to the chat- tels, even to a hona fide purchaser for value. Neidig v. Eifi&r, 18 Abb. 353 ; Cushman v. Jewell, 1 Hun, 525. And see Sctge v. Shuts, 23 Ohio St. 1 ; Goldsmith v, Bryomt, 26 Wis. 34 ; Oiddey v. Altman, 27 Mich, 206 ; Sumner v. Woods, 52 Ala. 94 ; Dudley v. Abner, id. 572 ; Vcmghn V. Hopson, 10 Bush (Ky.), 337. A written contract entered into by and between the plaintiffs and S. F. & Co., provided that certain machinery was to be manufactured by the former and setup in the mill of the latter, and that the plaintiffs were to remain owners of the machinery until it was paid for. The machinery was set up in the mill according to the contract, the mode of annexa- tion being such that it could be removed without injury to the build- ing ; it was held that the machinery did not, by the annexation, be- come a part of the realty, so as to pass by a deed of the mill and lot executed by S., the owner thereof, but that it continued to be personal property, and to belong to the plaintiffs so long as the purchase-money remained unpaid, and that the plaintiffs could maintain an action to recover the possession or the value thereof, in case of a conversion of it by the defendants. Qoda/rd v. Oould, 14 Barb. 662. In the following cases it has been held that a sale and delivery ot goods upon condition that the title shall not pass until the payment of the price in cash give the vendee no title which he can convey to a 32 SALE. »^. Conditional sales, and sales by vendors without title. purchaser in good faith and for a valuable consideration. Thompson v. Boy, 43 Ala. 224 ; Carroll v. Wiggins, 30 Ark. 402 ; Bauendahl v. Eorr, 7 Blatchf. [0. C] 548; Deshon v. Bigelow, 8 Gray, 159; Aultmam, v. Mallory, 5 Neb. 178; S. C, 25 Am. Eep. 478; Jowers V. Blandy, 58 Ga. 379 ; Midgeway v. Kennedy, 52 Mo. 24; Fifield v. Elmer, 25 Mich. 48; Adams v. O'Connor, 100 Mass. 515; S. C, 1 Am. Eep. 137; Paul v. Beed, 52 N. H. 136; Dunoam, v. Stone, 45 Yt. 118; Wabash Elevator Co. v. ii^?V5i! iV^ai!. ^a?i/?;, 23 Ohio St. 311; McOirr v. xSeB, 60 Ind. 249. "Where goods are sold on time and delivered to the vendee, it being part of the contract that they are to be paid for by the negotiable note of the vendee, such payment is a condition prece- dent to the sale, and the title to the goods will not vest without such payment or a waiver of it. Hirsohorn v. Canney, 98 Mass. 149 ; Stone V. Perry, 60 Me. 48 ; Seed v. Lwd, 66 id. 580. And it has been further held that property in possession of a vendee, who is not to be- come the owner of the title until the purchase-price is fully paid, may, at any time before such payment, be mortgaged or sold by the vendor to another person, and that such person will acquire a title to the property superior to that of the conditional vendee. Everett v. Hall, 67 Me. 497. And see Brown v. Haynes, 52 id. 578 ; Hubbard v. Bliss, 12 Allen, 590. It has been held in this State that where chattels are sold conditionally and delivered to the vendee, the vendor's rights in the property remain as against the vendee and his voluntary assignees ; but not as against a bo7ia fide purchaser without notice. Wait v. Oreen, 35 Barb. 585 ; 62 id. 241 ; 36 N. Y. 556 ; 46 How. 449 ; 2 Trans. App. 340. But this case, although decided by the court of last resort, has been so often questioned and distinguished by later decisions, that it is of doubtful authority ; and if it is to be sustained as an exposition of the present law of this State, it must be upon the theory that the facts of the case establish a conditional delivery and not a conditional sale. See Austin v. Bye, 46 N. Y. 500, 502 ; Balla/rd v. Burgett, 40 id. 314, 321 ; Comer v. Cunningham, 77 id. 391, 397 ; McNeil v. Tenth National BanJc, 55 Barb. 59, 68 ; S. C, 46 N. Y. 325. But see Bawles v. Deshler, 3 Keyes, 672 ; S. C, 3 Trans. App. 91 ; 4 Abb. Ct. App. 12; Winne v. McDonald, 6 Trans. App. 207, 217. The cases which have been cited are sufficient to show that the de- cisions are not uniform upon this question so far as it relates to bona fide purchasers. In some of the cases no notice has been taken of the distinction which exists between those cases in which property was sold fo be paid SALE. 3a Conditional sales, and sales by vendors without title. for in cash, and the cash payment waived by a delivery of the property without payment, and those cases in which it was expressly agreed that the title should not pass until the property was paid for. In cash sales, it may be said that the sale is on an implied condition that the title does not pass until payment. But, in such a case if the vendor delivers the property without payment, he thereby waives the implied condition, and relies upon the responsibility of the vendee as his means of obtaining payment. And, in any such case, it is a question of fact whether the implied condition was waived, and if a juiy or justice find that it was waived, it is very clear that a iona fide purchaser would be protected. See Parker v. Baxter, 86 J^. Y. 586 ; Osborn V. Oants, 60 id. 540. It is evident, however, that such a transaction differs essentially from a sale in which it is expressly agreed that no title to the property shall pass until the purchase- price is paid. In such a case the delivery of the property would be entirely consistent with the agreement, and the courts have clearly established the general rule that, in such cases, neither the vendee nor his creditors or voluntary assignees, nor persons having notice of the condition, will get any title until the price is paid. Where goods are sold and are to be paid for in cash on delivery, if the vendor waives the condition, and delivers the goods without the money, he then transfers the possession, and intends to transfer the title to the goods, and he at least impliedly consents to look to the personal credit of the vendee for payment. In that case it will be seen that the vendor intended to part Mdth the title to the property, as well as to transfer its possession to the vendee, and if he wished to protect his claim by a lien upon the property, or to obtain any other security for his money, it was his duty to have taken the proper steps for that pur- pose. But, in those, cases in which it is expressly agreed that the title shall not pass until payment of the purchase-price, there is no inten- tion that the title shall pass with the possession, as in the other case mentioned, and if the title does pass, it must happen without the con- sent of the vendor, since his intention was to retain the title until he received the purchase-price. If property is stolen from the owner, the thief cannot transfer any title, even to a harm fide purchaser. Hoffman v. Ca/row, 22 Wend. 285 ; Breokenridge v. McAfee, 54 Ind. 141 ; Bassett v. Spqfford, 4& N. Y. 387 ; S. C, 6 Am. Eep. 101 ; Zvnk v. People, 77 JST. T. 114, 121. See Pease v. Smith, 61 id. 477. The reason is this: the owner did not consent nor intend to part with the title to his property, and the purchaser from the thief must beware of whom he purchases, 5 34 SALE. Conditional sales, and sales by vendors without title. or submit to the consequences which result from his want of care. And when property is sold upon condition that the title shall not pass until it is paid for, the purchaser from such a vendee should be careful to know whether he will get a title. There is generally an implied war- ranty of title, and if such a purchaser buys from a responsible person, he will not meet with any loss. It may be said, however, that a hona fide purchaser from such a conditional vendee ought to be protected, because the possession of the property is transferred to him by the ven- dor. But that circumstance is not of itself sufScient to deprive the real owner of his property. A mere transfer of the possession of the property is not sufficient to authorize a person to regard the pos- sessor as the owner of the property, as against one who is its actual owner. Covill v. Hill, 4 Denio, 323 ; Collins v. lialli, 20 Hun, 246 ; Farmers and Mechanic^ Nat. Bank v. Atkinson, 14 N. T. 587 ; MoGoldrick v. Willits, 55 id. 612. See Ba/rnard v. Cainphell, 55 id. 456 ; 14 Am. Eep. 289. It is no answer to this to say that the transfer of the possession enables the possessor to obtain greater credit than he would otherwise have ; because if a mere possession would enable the possessor to trans- fer a title to a hona fide purchaser, there would be no safety in bail- ments or mortgages of property, since the bailee or mortgagor could, under such a rule, transfer a title which he never had, and the real owner might be deprived of his property without his consent. Vol. I, 296. The only ground on which it can be held that on a conditional sale the vendor can transfer the title of the property to a hona fide pur- chaser is, that public policy requires some such rule. A thief cannot transfer a title, nor can a bailee or mortgagor of property after for- feiture, unless it is the mere equity of redemption. And it is a rule of most extensive application, that no person can transfer any greater title than he himself has to the property transferred. Anderson v. Niclwlas, 5 Bosw. 121 ; Dows v. Perrin, 16 JST. Y. 325 ; Saltus v. Everett 20 Wend. 267 , 275 ; Covill v. Hill, 4 Denio, 323, 327 ; Brower v. Peahody, 13 N. Y. 121 ; 2 Kent's Com. 324 original page ; Whistler v. Forster, 14 C. B. (N. S.) 248 ; Peer v. Humphrey, 2 Ad. & El. 495 ; Ballard v. Burgett, 40 N. Y. 314. The only exceptions to this rule relate to negotiable instruments and bank bills. There is no greater hardship in requiring a purchaser to beware of the title he gets when he piirchases from one who has purchased conditionally, than there is in those eases relating to stolen pi-operty, or to purchases from bailees or mortgagors. No person can transfer title to the prop- erty of another unless the owner has clothed him with authority, real ^ SALE. 35 Conditional sales, and sales by vendors without, title. or apparent, so to do. McOoldrick v. WilUts, 52 N. Y. 612. And an unauthorized sale, although for a valuable consideration and without notice vests no higher title in the vendee than was possessed by the vendor. Wea/oer v. Ba/rden, 49 N. Y. 286. But if the rightful owner has invested another with the usual evidence of title to property, or an apparent authority to dispose of it, he will not be allowed to make claim against an innocent purchaser for a valuable consideration, dealing upon the faith of such apparent ownership or right of disposition. lb. BriscollY. West Bradley c& Ca/ry Mcmuf. Co., 59 N. Y. 96 ; McNeil V. Tenth National Bank, 46 id. 325 ; S. C, 7 Am. Eep. 341 ; Moore V. Metropolitan National Bank, 55 N. Y. 41 ; S. C, 14 Am. Eep. 173 ; Armour v. Michigan Central B. R. Co., 65 K Y. Ill ; S. C, 22 Am. Rep. 603; BosPwick v. Dry Goods BamJc, 67 Barb. 449. JDows v. Kidder, 84 IST. Y. 121; Packer v. Baxter, 86 id. 586. But two things must concur to create an estoppel by which an owner may be deprived of his property by the act of a third person without his as- sent. First. The owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of ito Second. The person claiming the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. Barnard v. Campbell, 55 N. Y. 456 ; S. C, 14 Am. Rep. 289. It is only where the owner has by his own afiBrmative act conferred the apparent title and ownership upon another, upon the faith of which the property has been purchased for value, that he is precluded from asserting his real title. Davis v. Bechstein, 69 N. Y. 440. Property is sometimes purchased by a vendee who obtains it by practicing a gross fraud upon the vendor. In such cases a hona fide purchaser from such a fraudulent vendee will get a perfect title, if the vendor delivered the possession, and intended to transfer the title to the property. Paddon v. Taylor, 10 Abb. (N. S.) 370; S. C, 44 N. Y. 371 ; Hodge v. Sexton, 1 Hun, 676 ; S. C, 4 Sup. Ct. (T. & C.) 54. In such cases the vendor intends to part with the title, and if he is deceived he must bear the loss as against a lona fide purchaser; although the vendor may recover the property as against the fraudulent vendee, or his creditors, or voluntary assignees, etc. The reason of this rule is, that a sale of this kind enables the fraudulent vendee to perpe- trate a fraud in which an innocent third person, or the original vendor must be loser, and since the latter put it in the power of the fraudulent vendee to commit such a fraud, it is proper that the loss should fall upon him who had it in his power to protect himself and others from 36 SALE. Delivery of the property sold. loss. If one buys a chattel conditionally and obtains possession by fraudulent representations, and then sells to an innocent purchaser, it is held that the title vests in the latter. Vaughn v. Hopson, 10 Bush (Ky.), 337. But the owner of property, which has been tortiously taken from him, is not estopped from reclaiming it by the fraudulent act of the tortious taker to which he was not a party, and which he in no way aided ; to create an estoppel he must have enabled the wrongdoer to perpetrate the fraud. Ma/rvne Banh v. Fish, 9 Hun, 363. S. 0. 71 N. Y. 353; Barnard v. Campbell, 65 Barb. 286; S. C, 55 N. Y. 456 ; 14 Am. Rep. 289. And see, Voorhees v. Ohnstead, 3 Hun, 744 ; S. C, 6 Sup. Ct. (T. & C.) 172; 66 N. Y. 113. § 10. Delivery of the property sold. It has been already shown that the title to personal property may be legally transferred without an actual delivery of the articles sold, or of any portion of them, and also that there may be a delivery of personal property imder a contract of sale without passing the title to the property. A. delivery of the property sold may be necessary to pass the title for the reason that the parties have either expressly or impliedly made the delivery an essential part of the contract of sale. So the delivery of all or a part of the property sold, may be necessary to satisfy the statute of frauds and give validity to the contract of sale. If the contract relates to the sale of property, for a price under $50, or if the contract of sale is in writing properly signed by the parties or their lawful agent, or if at the time of the sale the vendee pays some part of . the purchase-money, a delivery will not be necessary to satisfy the statute. Thus, if a person offers to sell a cow to another person for $25, payable in six months, and the proposition is accepted, the title will pass though the money is not paid nor the cow delivered, if such was the intention of the parties. The requirements of the statute of frauds will be con- sidered in a subsequent section. There are some questions to be considered in respect to the place, and mode of delivery, and what will be a sufficient delivery under the con- tract of sale. The manner of delivery must depend upon the contract of the parties, the nature of the subject of sale, and its situation at the time of the sale. If the goods are ponderous or bulky, a manual delivery is un- necessary. It is enough that they are placed in the power of the vendee. Hayden v. Demets, 53 N. Y. 426. A tender of a warehouse receipt with an offer to pay storage and charges is sufficient, lb. WUkes v. Ferris, 6 Johns. 335. See DeBidder v. McKnight, 13 id. 294. A. bought the boards which were to be made out of a -ertain quan- SALE. 37 Delivery of the property sold. tity of logs in the possession of B. and to be paid for at a stipulated price per hundred feet wlien the boards should be sawed. The boards were sawed, piled and notice given to the purchaser, and it was held that considering the nature of the article sold, the delivery was suf- ficient to render the sale valid, and to transfer the title to the purchaser. Bates V. Oonkling, 10 "Wend. 389. See Woodford v. Patterson, 32 Barb. 630. On the 8tli of December, 1848, the plaintiff bargained with W. a tan- ner for the purchase of fifteen sides of harness leather, which were then in W.'s shop in an unfinished state, at a certain price per poimd when finished. The plaintiff paid W. $30, as the probable value of the leather, and if it should exceed that amount the plaintiff was to pay the excess. On the 18th of December, W. notified the plaintiff that the leather was finished, and desired him to call and select the sides he had purchased. The next day the plaintiff went to W.'s shop and took away five sides. The plaintiff, and W.'s servant, by W.'s direction, selected nine sides and put them by themselves in the middle of the shop, and some others which were himg up. The sides remained to be cleaned, etc., which was about three hours work, and then W.'s servant was to send them up to the plaintiff. After this, and during the same day, W. sold all his property to the defendants, who took possession of the shop and the leather in question. It was held that the delivery of the leather to the plaintiff was complete, and transferred the title to him, and that he could recover the value of it from the defendants who had refused to give it up. Brewer v. Salisbury, 9 Barb. 511. Where merchants residing in the city of New Tork receive an order for goods from pei'sons residing at a distance, no particular directions being given as to the manner in which the goods shall be forwarded, and the vendors proceed to select the goods ordered, and a portion of them, after being packed in boxes, is placed on board of a vessel, for transportation, the carman taking receipts from the master of the ves- sel for each load, no person but the shipper is entitled to a bill of lading. And if the shipper is also the holder of the receipts, he may direct to whom the bill of lading shall be made oiit ; or in otlier words, to whom the goods shall be deliverable. And until he does so, the right of pos- session remains in himself. Accordingly, where goods were thus placed on board of a vessel for transportation to the purchaser's place of resi- dence, and receipted for by the master ; it was held, that there was not such a delivery to the purchasers as rendered the goods liable to betaken by virtue of an attachment, issued and executed before the vessel sailed. 38 SALE. Delivery of the property sold. on the ground that the purchasers were non-resident debtors. Jones v. Bradner, 10 Barb. 193. If the vendee of goods orders them to be forwarded bj a carrier, though he does not name him, a delivery to a carrier will enure as a constructive delivery to the vendee, and thus satisfy the count for goods sold and delivered. Hague v. Porter, 3 Hill, 141. But a delivery to a carrier, without the consent of the vendee either express or implied, will not enure as a delivery to the latter. lb. Everett v. Pa/rks, 62 Barb. 9. Nor will a delivery to a general carrier not designated or selected by the vendee constitute such a delivery and acceptance under the statute of frauds as to pass title to goods of more than $50, in value, sold by a verbal contract. Eodgers^. Phillips, '^O'S. Y. 519. Where a vendor sends goods by a carrier with express directions to collect the price on the delivery of the goods, this is not such a delivery to the purchaser as will pass the title in the goods to him until the carrier has completed the delivery ; and if the goods are lost or destroyed on their transit, before delivery to the purchaser, he will not be liable for the price. Baker v. Bourcicault, 1 Daly, 23. A delivery of goods by a vendor to a carrier selected by the purchaser, pursuant to directions, is a good delivery to the latter. Wilcox Silver Plate Co. V. Green, 72 N". Y. 17 ; Glen v. Whitaker, 51 Barb. 451 Cross V. O'Donnell, 44 E". T. 661 ; Erulder v. Ellison, 47 id. 36 S. C, 7 Am. Eep. 402 ; Pacific Iron Works v. Long Island R. R. Co. 62 N. Y. 272. But a delivery of the goods to a carrier other than the one selected by the vendee will not be a delivery to him. Hills v. Lynch, 3 Kob. 42. The property in goods, sold in bond at New York for exportation to Canada, passes to the purchaser upon delivery to a carrier selected by him, although they remain subject to a lien for duties, and to the cus- tody of the officers of the customs imtil authority to pass them is received at the port of exportation, which authority the vendor volun- teered to obtain. Waldron v. Romaine, 22 N. Y. 368. Where the owner of property authorizes a broker to sell it, and the property is at the time in bond and afloat, and such broker contracts to sell it for cash at a specified price per ton, "to be delivered alongside of the ship," it is essential to a legal delivery of it, that such entries be made by the vendor at the custom house, and that such documents be furnished by him as will confer upon the purchaser the power to control it. Where, in such a case, such vendor, though requested to do so, wholly neglects to make such entries, or to furnish such documents, and by reason thereof the property is not placed within the actual and Delivery of the property sold. legal control of the purchaser, the vendor cannot recover from the pur- chaser the contract price. Zaohrisson v. Poppe, 3 Bosw. 171. Where a delivery is apparently absolute, and without any contempo- raneous declarations qualifying it, the onus of proving the delivery conditional, vests upon the vendor. If no such proof is given, the delivery will be deemed al)Solute, and title to the goods will vest in the purchaser. Caldwell v. Bartlett, 3 Duer, 341 ; Smith v. Lynes, 5 N. T. 42. See Parlcer v. Baxter, 86 id. 586. When the time for the delivery of property is fixed by the contract, in express terms, there can be little difiiculty as to the time of perform- ance. When no time is specified in the contract, the vendor may tender a delivery of the propei'ty, and demand payment immediately ; and so in like manner the vendee may tender the price and demand an immediate delivery of the property. The time for delivering prop- erty sold, is sometimes fixed by the happening of some future event. Where a quantity of cotton was sold in New York, and it was to be delivered on its arrival at New York from New Orleans, at any time between two specified dates ; it was held that the vendors were not chargeable for the non-delivery until its arj'i/oal in New York, and that the specification of the time in such a case is merely a limitation fixing the period beyond which neither of the parties are bound by the contract, and not an agreement that the cotton shall at all events be delivered by the specified day. Russell v. Nicoll, 3 Wend. 112. And where a portion of the cotton arrived at the port of New York before the last specified day, but the balance had not arrived ; it was held that the vendor was not bound to deliver that portion of it which had ar- rived ; because the vendee is not bound to receive, nor is the vendor obliged to deliver any quantity less than the whole. Id. The defendant, in October, 1845, made a contract to deliver to the plaintiff a canal boat load of oats, " on or about the first of Novemher next." In an action to recover damages for the non-delivery of the oats ; it was held that the measure of damages was the difference be- tween the contract price and the market value of the oats within a reasonable time after the 1st of November. Kipp v. Wiles, 8 Sandf. 685. To warrant a recovery upon a special contract to pay for goods to bo delivered within a certain time and at a certain place, they must all be tendered within that time and at that place. A part delivery and acceptance, some before and some after the time, will not main- tain the action. Damenport v. Wheeler, 7 Cow. 231 ; and see Mead v. Degolyer, 16 Wend. 632. A party contracting to deliver a quantity of lumber at a given day, at a certain price per foot, to be paid for on 40 SALE. Delivery of the property sold. delivery of the whole, but who delivers only a part by the day specified, cannot recover for the part delivered, though it be used by the vendee. Paige v. Ott, 5 Denio, 406. And where, in such a case, after the day had passed, the parties agreed that the contract should be considered performed on the delivery of another specified quantity of lumber at a still future day, and a portion of the lumber specified in such new contract was delivered and used by the vendee, but it was not all de- livered ; it was held that there could not be a recovery for the lumber delivered under either contract. lb. ; Catlin v. Tobias, 26 N. Y. 217. The plaintiffs, by a written contract made on the 3d of April, sold to the defendants in New York, a quantity of English linseed oil, "to arrive per ship Ma/rcia from London, sailed on or aboi'.t the lUth of March, ult. / " it was held that the statement in the contract as to the time of sailing was a mere representation and not a warranty, and be- ing made without fraud, that the defendants were bound to accept and pay for the oil, although the vessel did not sail until the 26th of March, and her arrival in fact was thereby delayed. Hawes v. Lawrence, 4 N. Y. 345. And it was further held, that evidence to show that the spring trade in oil had ceased when the vessel arrived, and that it would be subject to deterioration by being kept until the fall trade should commence was not admissible in behalf of the defendants, in an action brought against them on the contract to recover the price. lb. A. contracted to sell to B. a specific cargo of wheat, which was de- cribed in the bought and sold note as " shipped per Diletta Nimbella, as per bill of lading, dated September or October," and as being all on board of the vessel at the date of the contract ; and it was held, that this did not necessarily entitle the buyer to rescind the contract because it turned out that the wheat was not all shipped before the bill of lading was given. Gattorno v. Adams, 12- J. Scott (N. S.), 560. "Where a person contracts to purchase goods, which, at the time, are on board of a vessel at sea, and expected to arrive, it is his duty to re- ceive such goods within a reasonable time after notice of their arrival, and a tender of the goods at the place designated by him for the deliv- ery of them. Dibble v. Gorbett, 5 Bosw. 202. Where such purchaser refuses to accept a delivery within a reasonable time, he is liable to the vendor for the damages necessarily caused by such delay. lb. Although the contract be made in such form that the title to the prop- erty does not pass until the goods are delivered, yet the contract being valid and obligatory, and the purchaser having accepted the goods un- der it, it is no answer to the claim for damages for delaying an unrea- SALE. 41 Delivery of the property sold. sonable time to receive them, that the title of the purchaser does not become vested until the goods are delivered and accepted. Id. The time for the delivery may be left optional with either party, and if the person who has the option gives the other party a reasonable notice, and offers to perform on his part, the other party will be bound to com- plete the contract. Genin v. TompMns, 12 Barb. 265. A party contracting to deliver certain goods "on or before" a given day, at the option of the buyer, can be guilty of a breach of contract only on that day, unless a previous demand is made by tlie buyer. Phelps V. MoGee, 18 111. 155. And he has the whole of that day to make delivery. Adams v. Dale, 29 Ind. 273. But see Coddington v. Paleologo, L. R., 2 Exch. 193. As it respects the hour up to which the vendor can make a valid delivery, on the last day fixed by the con- tract, it seems that the purchaser is bound to accept the goods, if they are tendered to him at such " a time," on that day, as will admit of their being examined by and completely delivered to him before mid- night. Startup V. McDonald, 6 Man. & Gr. 593. But where day- light is required for the proper examination and assortment of the goods tendered, time should be given to the vendee to make such ex- amination before sunset. Croninger v. Crocker, 62 N. T. 151. In respect to the mode of delivery, mnch depends upon the charac- ter of the thing delivered. Delivering gold upon a contract for the sale of it, is precisely analagous to the payment of a debt payable in gold, and can only be accomplished by putting it in the actual possession and control of the vendee. Merely. placing it where the vendee may by possibility obtain possession and control of it is not sufficient. Kinne V. Ford, 43 N". Y. 587. When chattels are to be delivered at a speci- fied time and place, the party who is to make delivery discharges his obligation by turning out the property at the specified time and place whether the other party is there to receive it or not. If he is absent, care must be taken to a reasonable extent, to preserve the property from loss or destruction. If of a kind that exposure to the atmosphere would destroy, it must be placed where it will be protected from it, and notice given to the vendee. If consisting of gold, bullion or dia- monds, it must not be left exposed to the depredation of thieves or other hazards from which it may be protected. It is not enough, where the article delivered is a gold check, that it be placed by the vendor on the counter or desk where the gold is customarily placed when delivered to the purchaser, at such a time and in such a manner that the pur- chaser might see and obtain possession of it, but it should be placed in his "conscious" possession. Id. 6 42 SALE. Delivery of the property sold. The place for the delivery of goods sold is asiially fixed by the contract, and when that is done, the goods mnst be delivered at that place. So, sometimes the place of delivery is left optional with the purchaser, and, in that case, he must notify the vendor at what partic- ular place he wishes to have the goods delivered ; and no action will lie fur non-delivery, in such a case, until the notice is given. And when the vendor has an option to deliver goods at either of two speci- fied places, and he delivers them at one of the places, but without giv- ing the vendee notice of the delivery at that place, and the goods are lost in consequence of the want of notice, the loss will fall upon the vendor and he cannot recover the price of the vendee. Rogers v. Van Iloesen, 12 Johns. 221. The place of payment of a note paya- ble in salt or other portable article, is the residence of the creditor, where the time of payment is fixed by the contract, but the place is not designated. Goodwin v. Holhrook, 4 Wend. 377. Under a contract for the delivery of specific articles at a particular place other than the residence of the promisee, it is the duty of the promisor after making the delivery at that place, to notify the prom- isee thereof, without delay. Until such delivery and notice, the prom- isee is not in a condition to object to the quality of the articles, nor can the title pass. Newcomh v. Cramer^ 9 Barb. 402. If an article is to be delivered at a particular time and place, but it is delivered and received at another time and place without objection, strict performance will be deemed waived and the vendor may maintain an action for the pur- chase price. Baldwin v. Farnsworth, 10 Me. 414. A transfer of stock, made two days earlier than the time mentioned in the contract for the transfer is a sufiicient compliance with the contract. Dodge v. Barnes, 31 Me. 290. But goods delivered prior to the time provided for by the contract will be at the vendor's risk unless there is an accept- ance by the vendee. Corrigan v. Sheffield, 10 Hun, 227. On the sale of a lot of corn to a miller, if no place of delivery is fixed by contract, the delivery should be made at the mill of the purchaser. Field V. Runh, 22 N". J. L. 525. A note given by one who keeps a saw mill or a lumber yard, for an amount "payable in lumber at cash price when called for," without mentioning day or place of payment, is payable at the mill yard. Rice V. Churchill, 2 Denio, 145. A special demand must be made there before suit brought. But a personal demand of the maker else- where woiild be good unless met by an offer to pay at the yard. In such case the holder would be bound to go to the yard to receive pay- SALE. 43 Delivery of the property Bold. meiit. lb. A demand at the mill yai-d is sufBcient, though neither the maker nor any one authorized to make the payment be found there. The maker of such an engagement is bound to be at the place of payment at all reasonable hours prepared to perform the agreement, lb. If upon such demand the maker be absent, it may be made of any one in charge, and if there be no such person, it may be made publicly at a reasonable time. lb. The defendant, who was a shopkeeper in New York city, agreed to pay a debt of $2,000 in merchandise out of his store, at 44 Maiden Lane, on demand, and the merchandise was to be sold and delivered at not above twenty-five per cent of the cost ; and it was held that his obligation was discharged bj'' delivering goods at prices twenty -live per cent above the cost to him, though that might be much more than twenty-five per cent above the wholesale market at the time of delivery ; that he was at liberty to continue selling his goods, with- out replenishing the stock, until a demand for a delivery in full of the contract ; and that so long as he retained sufficient for that purpose, the other party could not complain that he was left to a selection from an inferior assortment, and goods less marketable than at the date of the contract ; that after reasonable notice to select his goods at tlie place named in the contract, the plaintiff was bound to accept them at any other reasonably convenient place to which they might be removed, and that a subsequent demand at the original place, or elsewhere, for a delivery at the original place was ineffectual ; that a refusal to deliver goods to the value of $20, which had been packed up in boxes for removal, after notice to the plaintiff to call for his pay at the defendant's original location, did not constitute a breach of the con- tract ; and the contract permitted a demand of merchandise in parcels. Buck V. Burh, 18 N. Y. 337. As a general rule, the store of the merchant, the shop of the mechanic or manufacturer, and the farm or granary of the farmer, at which commodities sold are deposited or kept, is the place of delivery, when the contract is silent as to place. But this rule ceases to be ap- plicable when the collateral circumstances indicate a different place. Bronson v. Gleason, 7 Barb. 472. Where the goods are a subject of general commerce, and are pur- chased in large quantities for reshipment, and the purchaser resides at the place of reshipment, and has, at such place, a storehouse and dock for that purpose, the place of business of the purchaser, is ordinarily the place of delivery, lb. Where a manufacturer of salt at L., execu- ted a writing as follows : " I have this day agreed with B. & C. of 44 SALE. Delivery of the property sold. Oswego, to sell them one boat load of salt per week, cmd deliver the same to them m good order, equal to 400 barrels in each week, from this time to the first of November next," etc., it was held that upon the reasonable construction of the agreement, in connection with the surrounding circumstances, the salt was to be delivered at Oswego. Id. Under a contract for the sale of goods to be delivered on a future day in a certain city, the buyer has a right to fix the place of delivery in such city. Stillwell v. Bowling, 36 Mo. 310. If, at the time of sale, the goods be in the buyer's own possession and under his control, there is presumed to be no other place of delivery agreed upon. Warden v. Marshall, 99 Mass. 305 ; Lake v. Morris, 30 Conn. 201. A sale of chattels, which are at the time upon the land of the seller, will author- ize an entry upon the land to remove them, if, by the express or implied terras of the sale, that is the place where the purchaser is to take them. WoodY. Manley, 11 Ad. & El. 34 ; Brake v. Wells, 11 Allen, 141. In such case a license is implied, because it is necessary to carry the sale into complete eiiect. It forms a part of the contract of sale. McLeod v. Jones, 105 Mass. 403 ; S. C, 7 Am. Rep. 639. Proof of readiness to receive and ability to pay is essential where the time and place of the delivery has not been fixed by the contract, and where the place is to be designated by the party who is to receive the same. Isaacs v. N. Y. Plaster Works, 8 Jones & Sp. 277. The contract usually determines the quantity or number of articles which is required to be delivered in performance of the agreement. And when the contract specifies the particular quantity that is to be delivered, which can be determined by measuring, weighing, or count- ing, the terms of the contract must be complied with, by delivering the specified quantity, on the part of the vendor, and its acceptance by the vendee. The vendor has no right to deliver or tender any greater or any less quantity or number of articles sold, than is specified in the agreement; and the same rule applies to the vendee, who cannot demand the delivery of more, nor can he demand less, than the agreed quantity. Tlie plaintiff, having received an order from the defendant to forward two hundred and fifty barrels of cement, sent by a carrier two hun- dred and sixty barrels, which the defendant refused to receive, saying, among other things, that there was more than he had ordered ; where- upon the carrier took the cement away, and stored it. Afterward, a letter was written to the plaintiff by the defendant, in which he placed his refusal to receive the cement on the sole ground that the quality was not good, but admitted that the order had been complied with as to the number of barrels. The plaintiff then brought an action for the SALE. 45 Delivery of the property sold. value of tlie two hundred and fifty barrels of cement, declaring as for goods bargained and sold, and for goods sold and delivered / but he was nonsuited at the trial, because the number of barrels ordered had been delivered to the carrier as part of a larger number, without being counted out or separated, and that thereupon no sale had taken place ; and it was held that the nonsuit was erroneously granted, and that the case should have been submitted to the jury ; for, if the entire quantity of cement delivered to the carrier, was intended as a mere compliance with the order, and was not sent for the purpose of charging the defendant with the excess, he was liable. Downer v. Thompson, 6 Hill, 208; reversing S. C, 2 id. 137. The Supreme Court held that the vendor ought to be nonsuited, because he had not deli vei'ed the precise number of barrels agreed upon ; while the Court for the Correc- tion of Errors reversed the judgment, on the ground that it was a question of fact to submit to the jury, whether the vendor intended to require the acceptance of mOre than the specified niimber of barrels. But both courts agreed upon the principle that the vendor must deliver the precise num- ber ordered, neither more nor less. Where manufacturers in the country sent an order to merchants in the city for a quantity of plough castings, to be forwarded on the canal, and only a part of which were forwarded, and those by land carriage, by means whereof the expense of transportation was greatly increased ; it was held, in an action for the price of the property forwarded, that the plaintiffs were not entitled to recover without showing an acceptance of the goods by the defendants. Cornmg v. Colt, 5 Wend. 253. Where a contract was made for the sale and deliveiy, within a given period, of one hundred tons of pressed hay, to be paid for at a speci- fied price per ton, part in advance, and the residue when the whole quantity should he delivered, and the vendor, within the time stipu- lated, delivered only about one-half of the specified quantity, and then brought an action to recover for the quantity delivered at the stipulated price ; it was held that the delivery of the whole quantity was a con- dition precedent, and that the plaintiff was not entitled to sustain his action, the defendant, on his part, not having waived or prevented a full performance. Ghamplin v. Rowley, 18 Wend. 187. So, where a contract for the sale and delivery of personal property speci- fies the quantity, price and time of performance, the vendor is not entitled to recover under a quantum, meruit for a portion less than the tohole quamtity agreed to be delivered, notwithstanding that the vendee has consented to a variation of the contract as to price and fe'me of performance. Mead v. Degolyer, 16 Wend. 632 ; Paige v. Ott, 5 46 SALE. Delivery of the property sold. Denio, 406 ; Champlin v. Rowley, 13 Wend. 258 ; affirmed, 18 id. 187. And see Vol. I, 221. When property is sold, which from its nature must be delivered in parcels, if the contract is to pay on delivery, payment cannot be de- manded until the whole is delivered. Timmons v. Nelson, 66 Barb. 594 ; Soloman v. Neidig, 1 Daly, 200 ; Corrigam, v. Sheffield, 10 Hun, 227 ; Kein v. Tapper, 52 N. Y. 550 ; Baher v. Biggins, 21 id. 397; Williams v. Sherman, 48 Barb. 402. And where the vendor fails to make complete delivery according to the contract the vendee may re- turn the parcels first delivered. Oxendale v. Wetherill, 9 Barn. & Cr. 386. And see Haines v. Thicker, 50 N. H. 307. If the goods tendered exceed the quantity agreed upon, the buyer is entitled to refuse the whole, as, where an order was given for two dozen of wine and four dozen were sent, it was held that the whole might be returned. Hart V. Mills, 15 Mees. & Wels. 85. And see Cunliffs v. Harrison, 6 Exeh. 903 ; Rommel v. Wingate, 103 Mass. 327. On the other hand, if, un- der a contract to deliver a parcel of goods of a certain description, there be an essential deficiency in the parcel, such as would and ought to be regarded as material to the whole, the buyer is not bound to accept and pay for either the whole or a part. Wright v. Barnes, 14 Conn. 518; Wilson V. Wagar, 26 Mich. 452 ; Rockford, etc., R. R. Go. v. Leub^ 63 111. 288 ; Smith v. Lewis, 40 Ind. 98 ; Marland v. Stamdwood, 101 Mass. 470. There are some cases in which the vendor is excused from delivering the precise quantity, or indeed any part of the property agreed to be sold. Where a contract was made in New York for the sale of five hundred bales of cotton, on its arri/oal at New York from New Orleans, at any time between J;he date of the contract, which was the ninth day February, and the first day of June thereafter, to be paid for in cash on delivery, the cotton to be weighed, etc., the title does not pass in such a case ; and where a part of the cotton arrived within the specified time, but the remainder did not, it was held that the vendor was not bound to deliver any portion of the cotton. RusseU v. Nieoll, 3 Wend. 112. Where the contract leaves it optional with the vendor to deliver any quantity without limit, or any quantity not less than a given one, and not exceeding another specified one, the vendor may, in the first case, deliver any quantity he chooses; and in the latter case he may deliver any quantity, not being less nor more than that specified in the contract. Disborough v. Weilson, 3 Johns. Cas. 81. See Quick v. Wheeler, 78 N. Y. 300. The same rule applies when the option as to SALE. 47 Delivery of the property sold. quantity is left to the vendee. And where the vendee has an option to increase the quantity of the articles to be delivered, on his giving a rea- sonable notice, between two specified dates he is bound to give notice before the last of the days specified. Topping v. Hoot, 5 Cow. 404. The quantity to be delivered is sometimes stated in the contract with the addition of the words " about, " " more or less, " etc., indicating that the quantity is not restricted to the exact number or amount speci- fied, but that the seller is to be allowed a reasonable latitude in the per- formance of his contract. See Moore y. Campbell, 10 Exch. 323 ; Gockerell v. Auoompte, 2 0. B. (N. S.) 440 ; PembroTce Iron Co. v. Parsons, 5 Gray, 589. And the words "say about six hundred, " in a contract for the sale of spars, were held to be words of expectation and estimate only, not amounting to an understanding that the quantity should be six hundred ; and a tender of four hundred and ninety-six spars, which were all of the specified lot that met the requirements of the contract, was held to be a substantial performance by the vendor. McConnell v. Murphy, L. E., 5 P. C. 203. But the words "more or less," in a contract for the sale of twenty-three thousand feet of lumber, were held not to allow a variation of seven thousand feet. Craighton v. Comstock, 27 Ohio St. 548. A contract for the sale and delivery of a " cargo, " or " boat-load " of barley, of about nine thousand bushels, is an entire, indivisible contract. It cannot be sepa- rated into parts, and is incapable of part performance. Neither less nor more than a " cargo of barley " can be tendered as performance by the vendor. Nor is the purchaser bound to accept a cargo of less than about nine thousand bushels. Flamaga/n, v. Dema/rest, 3 Rob. 173. See, also, Tahnage v. White, 3 Jones & Sp. 218 ; Visscher v. Oreen- bank Alkali Co., 11 Hun, 159. In a contract for the sale and delivery of " sixty-five head of fat hogs, to weigh two hundred and twenty-five pounds and over, " it was held, in an action for refusing to receive the hogs, first, that the contract called for hogs weighing two hundred and twenty-five pounds each ; second, that parol evidence, to the effect that by custom this language was understood to mean that the hogs should average that, was not ad- missible. Cash V. Hinkle, 36 Iowa, 623. When the contract requires the delivery of an entire quantity as a condition precedent to the right to recover any thing, the parties may agree that a delivery of a portion of the property is sufficient, and in «uch case if the vendee accepts a portion of the property, and waives ihe delivery of the remainder, the vendor may recover for the quantity 48 SALE. Delivery of the property sold. actually delivered and accepted. Corning v. Qolt, 5 Wend. 253 : Downer v. Thompson, 6 Hill, 208. But in such cases the evidence must show clearly that the vendee agreed or consented to accept the quantity delivered, and waived a per- formance as to the residue. The plaintiff in such case cannot avail himself of an account stated by the vendee, crediting the vendor with the quantity delivered at a stipulated price, and debiting him with a certain sum as damages sustained by the failure of an entire per- formance, where he refuses to settle with the vendee on the basis of such account stated. Mead v. Degolyer, 16 Wend. 632. So where there is a partial delivery within the time limited, and the vendee con- sents to an extension of the time upon condition that another specified quantity should be delivered, and the vendee delivered a part of the latter quantity, but failed to deliver the residue, it was held that there was no waiver, and that the plaintiff could not recover for either quan- tity delivered, although it had been used hy the vendee. Paige v. Ott, 5 Denio, 406 ; Vol. I, 219, 227, 228. Where one agrees to sell and deliver a crop of corn in " merchanf>- able order," he ia bound to deliver sound and ripe corn, and the vendee is not bound to accept any other. And where the defendant, by a written contract, agreed to sell and deliver to S. & M. his crop of corn then growing on about thirty acres of ground, to be delivered in "mer- chantable order," it was held, that he was bound to deliver all the merchantable corn that grew on the thirty acres, and no more ; and where the defendant claimed the right to deliver the whole crop, al- though it was conceded to have been of unmerchantable quality, and tendered the good and liad corn together, witliout proposing or offering to deliver any, except in that way, it was held that this was not a proper tender or offer of performance ; and that the purchasers were not bound to receive the corn tendered in fulfillment of the agree- ment, but might treat the contract as broken, and bring their action to recover the damages they had sustained. Hamilton v. Ganyard, 34 Barb. 204. Under a contract for the delivery of thirty thousand pounds of wool, "in good merchantable order," etc., a tender of a larger bulk, in par. eels, each containing wool, not within the description of the contract as to quality or condition, from which the vendee might, with great la- bor, select the quantity of the quality purchased, is an insufficient ten- der ; and a refusal to perform the contract by the vendor, except by a delivery of wool in bulk, the good and bad mingled together, requiring labor to separate them, is a breach of the agreement for which the van- 48 SALE. Delivery of the property sold. actually delivered and accepted. Corning v. Qolt, 5 Wend. 253 ; Downer v. Thompson, 6 Hill, 208. But in such cases the evidence must show clearly that the vendee agreed or consented to accept the quantity delivered, and waived a per- formance as to the residue. The plaintiff in such case cannot avail himself of an account stated by the vendee, crediting the vendor with the quantity delivered at a stipulated price, and debiting him with a certain sum as damages sustained by the failure of an entire per- formance, where he refuses to settle with the vendee on the basis of such account stated. Mead v. Degolyer, 16 Wend. 632. So where there is a partial delivery within the time limited, and the vendee con- sents to an extension of the time upon condition that another specified quantity should be delivered, and the vendee delivered a part of the latter quantity, but failed to deliver the residue, it was held that there was no waiver, and that the plaintiff could not recover for either quan- tity delivered, although it had been used hy the vendee. Paige v. Ott, 5 Denio, 406 ; Vol. I, 219, 227, 228. Where one agrees to sell and deliver a crop of corn in " merchant- able order," he is bound to deliver sound and ripe corn, and the vendee is not bound to accept any other. And where the defendant, by a written contract, agreed to sell and deliver to S. & M. his crop of corn then growing on about thirty acres of ground, to be delivered in "mer- chantable order," it was held, that he was bound to deliver all the merchantable corn that grew on the thirty acres, and no more ; and where the defendant claimed the right to deliver the whole crop, al- though it was conceded to have been of unmerchantable quality, and tendered the good and bad corn together, without proposing or offering to deliver any, except in that way, it was held that this was not a proper tender or offer of performance ; and that the purchasers were not bound to receive the corn tendered in fulfillment of the agree- ment, but might treat the contract as broken, and bring their action to recover the damages they had sustained. Hamilton v. Ganyard, 34 Barb. 204. Under a contract for the delivery of thirty thousand pounds of wool, "in good merchantable order," etc., a tender of a larger bulk, in par. eels, each containing wool, not within the description of the contract as to quality or condition, from which the vendee might, with great la- bor, select the quantity of the quality purchased, is an insufficient ten- der ; and a refusal to perform the contract by the vendor, except by a delivery of wool in bulk, the good and bad mingled together, requiring labor to separate them, is a breach of the agreement for which the ven- SALE. 49 Delivery of the property sold. dee will be liable in an action for damages. Oroni/nger v. Crocker, 62 N. Y. 151. It was the duty of the seller, in such case, to assort the wool and separate that which would answer the description of the con- tract from that which was unmerchantable and of an inferior quality, and to tender such only as the vendee was bound to accept. lb. See Gleveland v. Williams, 29 Tex. 204 ; Nicholson v. Bradford Union, L. R., 1 Q. B. 620. But upon a contract to sell and deliver fifty bales of cotton of the vendor's first picking, a tender of fifty-five bales, with a proposal that the vendee select out the fifty bales, is a substantial com- pliance with the contract. Davis v. Adams, 18 Ala. 264. The dis- tinction is obvious. In the one case the goods tendered are not all of the quality called for by the contract and call for labor in selection ; while in the other all the goods tendered answer the description of the contract, and the selection requires no labor. It has been held that where goods ordered were sent packed in a crate with other goods not ordered, the mingling of the goods was a violation of the vendor's duty, although the two sets of goods were perfectly distinguishable. Levy V. Green, 8 EU. & Bl. 575. In every executory contract for the future sale and delivery of arti- cles of mercliandise, the law will imply an agreement that the property bargained for shall be of merchantable quality ; and where one agrees to sell and deliver a crop of com in "merchantable order," he is bound to deliver sound and ripe com, and the vendee is not bound to accept of any other. Hamilton v. Ganya/rd, 34 Barb. 204 ; 3 Keyes, 45 ; 2 Abb. Ct. App. 314. So, where the sale relates to property which is in existence, if the vendor represents or warrants it to be of any particular quality, he will be bound to deliver an article of the quality warranted, or respond in damages. But the vendee is at liberty to accept an article which is inferior to that which he purchased. And although, by the terms of a contract, an article agreed to be delivered is to be of a merchantahle quality, sbill if an inferior article be delivered and accepted, the pur- chaser, when called on for payment, is not entitled to a reduction from the contract-price, on the ground of the inferior quality of the article ; he must refuse to accept it, or if its inferiority be subsequently discov- ered, he must return it, or require the vendor to take it back. Sprague V. Blake, 20 Wend. 61 ; Ha/rgous v. Stone, 5 N". T. 73. It is well settled that, in cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished does not correspond with the contract, does not survive the acceptoMce of the property by 7 50 SALE. Delivery of the property sold. the vendee after an opportunity to aacertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. Beed v. Randall, 29 N. Y. 358. And see Hamilton v. Ganya/rd, 2 Abb.Ot. App. 314; S. C, 3 Keye8,45; Affirming S. C, 34 Barb. 204; Kndblach v. Kronsohnabel, 18 Minn. 300 ; Treadwell v. Reynolds, 3& Conn. 31; CoustonY. Chapman, L. R., 2 Sc. App. 250; Stafford -v. Pooler, 67 Barb. 143 ; CfreenthMl v. Schneider, 52 How. 133. So, where a vendee has received and accepted under a contract of sale a portion of the goods contracted for, the fact that the goods so accepted were of a quality inferior to that called for by the contract does not authorize him to repudiate the contract altogether, and to refuse to accept the residue. He may demand goods of the stipulated quality, and if the balance when offered prove to be of an inferior quality, he may refuse to accept ; but if they are such as the contract calls for, he is bound to receive them. Cahen v. PlaU, 69 IST. T. 348 ; S. C, 25 Am. Eep. 203 ; reversing 8 Jones & Sp. 483. And see Waikvns v. Fame, 57 Ga. 50. And the rule that an acceptance of property, under a con- tract of purchase, induced by fraud, and payment for the same with knowledge of the fraud, is a waiver of the fraud, and of all objections which might have been taken, founded thereon, is Well settled. Sweet- man v. Prmce, 26 K T. 224 ; Selway v, Fogg, 5 Mees. & Wels. 83; Vemol V. Vernol, 63 N. Y. 45 ; People v. Stephsna, 71 id. 527, 557. See Willa/rd v. Merritt, 45 Barb. 295. Where the sale is a conditional one, and the property is at sea on board of a vessel bound to the place of making the contract, if the property is of an inferior quality, so that the defendant is not bound to take it, yet if he receives a portion of the property before ascertaining its quality, and then refuses to accept or pay for it because it is not of the quality required by the contract, he will be bound to return the property to the vendor, on his demand, and if he is unable to return it, in consequence of having used it, he wiU be bound to pay for the property at the market- price at the time he received it. Shields v. Pettie, 4 N. Y. 122. The question of acceptance is ordinarily one of fact. It is a question for the jury whether, under all the circumstances, the acts which the buyer does, or forbears to do, amount to an acceptance. Morton v. Tib- hett, 15 Q. B. 428. But where the uncontroverted facts afford no ground for finding an acceptance, or where the evidence is such that the court may feel bound to set aside a verdict so finding, it is the duty of the court to take the case from the jury. Howard v. Borden, 13 Allen, 299 • Stone V. Browning, 68 1^. Y. 598. The plaintiff sold a hogshead of cider to the defendant, by sample, as good draught cider. After the SALE. 51 Delivery of the property sold. arrival of the cask, the defendant, on the 28th of May, wrote as followiS to the plaintiff : "The cider differs from the sample, and the little I have sold has been complained of in every instance ; and should this continue, I shall be obliged to return it to you." The plaintiff did not answer this letter until the 24th of June. The defendant, in trying to sell it, used twenty gallons, but finding it unserviceable, refused to pay for the rest, which he returned to the plaintiff. It was found as a fact, that the twenty gallons were more than sufficient to enable the defendant to test the quality of the bulk ; but it was held that the omission of the plaintifE to answer the letter of the defendant, of the 28th of May, was evidence from which a jury might presume that the plaintiff acqui- esced in a further trial of the cider, and that the defendant had not so ac- cepted the bulk as to be liable to pay for the whole. Lucy v. Monjlet, 5 Hurlst. & Norm. 229. If the vendor delivers an article of a quality superior to that required by his contract, he cannot require the vendee to pay more than the con- tract-price. An actual delivery of property sold is sometimes impossible at the time of making the contract of sale, and yet, it is frequently the case that the parties desire to transfer the title to the property although the possession cannot be immediately given. This may be done in various ways. If the property is, at the time of sale, incapable of actual de- livery, on account of its character or situation, the delivery of the bill of sale, or other evidence of title, is sufficient to transfer the title and possession to the vendee. Pratt v. Pcn'hmcm, 24 Pick. 42 ; Morgcm v. Smith, 29 Ala. 283 ; Trieber v. Andrews, 31 Ark. 163. The custom in the port of New York, upon the sale of grain is, that the purchaser selects a measurer, and the measurer so selected is ap- pointed by the board of measurers to perform the duty ; and where the measurement is, in fact, made by a measurer appointed by the board, the custom is substantially complied with, and it is immaterial whether the measurer is selected by the seller or the purchaser ; and when the quantity sold has been ascertained by such a measurement, and the pur- chaser has an order for the delivery of the grain, upon the storekeeper in whose custody it is, the delivery, so far as the seller is concerned, is complete. MoCready v. Wright, 5 Duer, 571. Where the goods are in the possession of a bailee of the vendor, the bill of sale gives an immediate and valid title to the purchaser without a formal delivery of the possession. The possession of the bailee be- comes that of the purchaser. Such a bill of sale is not merely a transfer of a right of action, but of the goods themselves, and gives an imme- SALE. 53 Delivery of the property sold. day, a notice on the day fixed, of readiness to deliver, accompanied by accepted orders upon the party having the flour in store, with an offer to make an actual delivery, is sufficient. Stanton v. Small, 3 Sandf. 230. Where goods are ponderous or bulky, or cannot conveniently be delivered mMnually, the law does not require an actual delivery thereof, but only that they should be put under the absolute power of the ven- dee, or that his authority as owner should be formally acknowledged ; or that some act should be done typical of a surrender of them on one side and an acceptance of them on the other. lb. The law requires such delivery only as is consistent vsdth the nature and situation of the thing sold. And where, in an action upon a contract for the sale and purchase of flour, brought by the vendor against the purchaser, it is proved that it is the usage for flour, in a storehouse or vessel, to be sold by accepted delivery orders, and to pass by the transfer of the orders from hand to hand, without actual delivery of the flour, such usage will be held to have entered into the contemplation of the parties, and to have constituted a part of the contract. lb. Where a vendor of flour, upon the purchaser's objecting to the manner of the tender of the flour (which was made by accepted orders of persons having it in store), offers to turn it out on the sidewalk, or to cart it to the purchaser's door, or to any other part of the city he will name, provided the pur- chaser will say he will take it, and the purchaser tells the vendor to do as he pleases, without telling him what to do, or whether he will take it, this is a sufiicient tender on the part of the vendor. lb. But where flour was deliverable upon a day certain the delivery of an order by the seller to the buyer for flour on a barge, in the hold of which the flour is deposited, is not a compliance with the contract, there being no actual delivery or tender of delivery of the flour itself, on the day speci- fied. Suydain v. Ola/rh, 2 Sandf. 133. Where the article sold is a quantity of iron in a bonded warehouse, it is not necessary that it should be brought to the purchaser in order to tender a delivery ; it is suf- ficient that a tender be made of the permit by which it might be ob- tained. Dunham v. Mamm,, 8 N. Y. 508 ; Dunham v. Pettee, 1 Daly, 112. A contract to deliver shares in a joint-stock company does not require the actual delivery of scrip certificates, which are the mere indicia of property, but the party contracting to deliver the shares sufficiently performs his engagement when he places the other in the position of being the legal owner of them. H^mt v. Ounn. 13 J. Scott (IST. S.), 226. Marking logs is an equivocal act, and may be for the purpose of taking possession, or merely for that of identity ; or it may be evidence of acceptance. Eoans v. Harris^ 19 Barb. 417. 54 SALE. Sale of articles to be manafactnred. Where all the logs and boards designated by a particular mark are sold while afloat, a constructive or symbolical delivery only is required, and this may be done by the performance of any act which shows that the seller has parted with the right and claim to control the property, and that the purchaser has acquired that right. JBoynton v. Veazie, 24 Me. 286. Selecting and marking sheep in the possession of a third party, who is desired to retain possession of them for the purchaser, is a sufficient deliver}'' to complete the sale and pass the property. Barney V. Brown, 2 Vt. 374. So where the seller pointed out certain cattle of his which were running with others in a pasture, and designated their price, which the purchaser agreed to take as they were, and at the stipulated price, it was held that this constituted a delivery of the cattle. Brown v. Wade, 42 Iowa, 647. See Sutton v. Ballou, 46 id. 517. But upon a sale of cattle alleged to be in the possession of a third party, if the cattle are not in such possession, the seller's order for them, addressed to such third person and delivered to the purchaser, will not effect a delivery of the cattle. Cojleld v. aarle, 2 Col. T. 101. Where, on a sale of land, the vendor also agrees to purchase certain ponderous articles (a set of grist-mill stones) on the premises, and he then enters into possession of the land, the articles sold still remaining upon it, this is a sufficient delivery. De Midder v. MoKnight, 13 Johns. 294. Whether a contract for a sale of chattels has been completed, when the agreement is a verbal one, is a question of fact for the jury, and the plaintiff ought not to be nonsuited, on the ground that the contract was not fully made out, if there is some evidence to prove the sale. lb. § 11. Sale of articles to be manufactured. Where an article agreed to be sold is yet to be manufactured, the title does not pass until there has been some act on the part of the vendor which amounts to a delivery, and some act on the part of the vendee which amounts to an acceptance. Comfort v. Kiersted, 26 Barb. 472. To make a sale complete so as to vest title in the vendee, the thing sold must not only be in existence, but it must be identified. lb. Where D. agreed to manufacture for K. a quantity of shingles, at a specified price per thousand, which shingles should l)e the property of K., as fast as they were made, it was held, that the contract conveyed no present right of property to K. in the shingles, but that, it being an agreement to be executed in fut/uro, he had only a right of action against D. for not executing the agreement ; and also, that before the title would vest, even after the shingles were made, something must be done which would amount to at least a constructive delivery. lb. SALE. 55 Sale or delivery procured by fraud. Where a party orders a thing to be made, such as a carriage or any other article, it does not become his property tmtil it is delivered into his possession, even though he may have paid for it in advance, or fur- nished a large portion of the materials of which it is constructed ; but during its production it is, and after it is finished it continues to be, up to its delivery, the property of the person who produced it. WUhins V. Bromhead, 6 Man. & Gr. 963 ; Molntyre v. KUne, 30 Miss. 361 ; Halterline v. Rice, 62 Barb. 593 ; Parsons v. Louohs, 4 Robt. 216 ; S. C. affirmed, 48 N. Y. 17 ; 8 Am. Eep. 517 ; First Nat. Bank v. Crowley, 24 Mich. 492 ; Favrfield Bridge Co. v. Nye, 60 Me. 372 ; JSchool Disiafict v. BoMohy, 25 Conn. 530 ; Andrews v. Dwromt, 11 N. Y. 35. In this State it has been established by a long course of decisions, "that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. Ooohe V. MiUard, 65 N. Y. 352 ; S. C, 22 Am. Eep. 619. But if the ■chattel contracted for is at the time in existence the contract is one of «ale, although the vendor is to do some work upon it to adapt it to the uses of the vendee. lb. Where raw materials are dehvered to be manufactured, and the manufactured article is to be divided between the respective parties in •certain proportions, the transaction is but a bailment, and the owner of the materials retains his title to them until his contract is completely executed. Pierce v. Sehench, 3 Hill, 28 ; Bighimyer v. Raymond, 12 Wend. 51 ; Foster v. Pettihone, 7 N. Y. 433 ; Hyde v. OooTcson, 21 Barb. 92 ; Gregory v. Strylcer, 2 Denio, 628. § 12. Sale or delivery procured by fraud. There is another class of cases which is somewhat analogous, though the rule is widely differ- ■ent in the two cases. When a sale is procured by the fraud of the vendee, it may be laid down as a universal rule, that, as between vendor and vendee, the latter will not acquire any title to the property which he may have obtained by his frauds, provided the vendor elects to re- scind the sale, and seeks to recover the property. Hunter v. Hudson River I. t& M. Co., 20 Barb. 494 ; Ash v. Putnam, 1 Hill, 302 ; Root V. French, 13 Wend. 570; Williams v. Birch, 6 Bosw. 299; Stevens V. Brermam,, 79 N. Y. 254. A sale and delivery of goods, procured through a false representa- tion of the vendee in regard to his solvency and credit, passes no title as between the parties ; and the vendor may maintain either trover or 56 SALE. Sale or delivery procured by fraud. replevin as against such vendee. Cm'y v. Hotaling, 1 Hill, 311 ; Olm- stead V. Hotaling, id. 317 ; Ash v. Putnam, id. 302. The right of a vendor, who has been induced to part with his goods by the fraud of the vendee, to reclaim them within a reasonable time, can only be defeated by one who has paid value, or made advances or incurred responsibilities upon the credit of the apparent title of the vendee, and without notice of the fraud or knowledge of circumstances to put him upon inquiry. Ba/rnard v. Campbell, 58 N". Y. 73 ; S. 0.^ 17 Am, Rep. 208. Where a fraudulent vendee makes a general assignment for the benefit of his creditors, and the property so fraudulently obtained is delivered to the assignee, a joint action may be maintained against such vendee and his assignee by the defrauded vendor for the recovery of the property. Nichols v. Michael, 23 N. Y. 264. To avoid the sale in such a case, it is not necessary that the fraudulent representa- tions should be such as would sustain an indictment for obtaining goods by false pretenses. lb. But to justify a vendor in treating a sale of personal property as void, and in retaking the property on the ground of false and fraudulent representations, such representations must be made to him, or made for the purpose of being commimicated to him, and with the design of influencing his conduct. Yan Kleech v. Le Roy^ 37 Barb. 544; S. C, 4 Abb. Ct. App. 479; 4 Abb. (N. S.) 431; 4 Trans. App. 295. If such false statements are made to a stranger, without any intent to influence the conduct of the plaintiff", this can- not be made a pretext for avoiding a sale made by the plaintiff him, self. lb. But where goods are purchased with a preconceived design of not paying for them, and with a knowledge by the vendee that he is insol- vent at the time of the purchase, this is such a fraud as will invalidate the sale as between the vendor and vendee. Ash v. Putnam, 1 Hill» 302 ; Wright v. Brown, 67 N. Y. 1. And where the sale is procured through the fraud of the vendee's agent, the rule is the same. Olmstead v. Hotaling, 1 Hill, 317. See Xing V. Fitch, 2 Abb. Ct. App. 508 ; S. C, 1 Keyes, 432. No one can enforce a contract which his agent has fraudulently obtained, al- though he neither authorized nor had any notice of the fraud prior to the execution and delivery of the contract. Cassa/rd v. Hinman, 6 Bosw. 8. Upon a purchase of goods upon credit, the insolvency of the purchaser, and his concealment of the fact, is not sufficient of itself to vacate the purchase for fraud. Hall v. Way lor, 6 Duer, 71 ; Buckley V. Artcher, 21 Barb. 585 ; Mitchell v. Worden, 20 id. 253. The law SALE. 57 Sale or delivery procured by fraud. does not, in ordinary cases, impose upon a purchaser of property the duty of disclosing his circumstances to the seller, at the time of the sale, or before it, however desperate his pecuniary circumstances are to his knowledge. Mitchell v. Worden, 20 Barh. 253 ; Buckley v. Artcher, 21 id. 585 ; Nichols v. Fmner, 18 N. Y. 293 ; Wright v. Brown, 67 id. 1 ; Brown v. Montgomery, 20 id. 287. If the vendee is carrying on his business as usual, and is insolvent to his own knowledge, he may nevertheless purchase goods without dis- closing his circumstances. But if the vendee has broken up his busi- ness, and made a general assignment in favor of his creditors, it is his duty to disclose these facts to the vendor, and a violation of that duty amounts to a fraud, which will avoid the sale as between vendor and vendee. Mitchell v. Wm'den, 20 Barb. 253 ; Buckley v. Artcher, 21 id. 585. And if there is a condition of known insolvency undisclosed, and an existing intention on the part of the purchaser not to pay for the property, fraud may be aflSrmed. Wright v. Brown, 67 N. T. 1 ; Nichols V. Michael, 23 id. 264 ; Hennequin v. Naylor, 24 id. 139. A trader who has become embarrassed and insolvent, and yet has reason- able hopes that by continuing in business he may retrieve his fortunes, may buy goods on credit, making no false representations, without the necessary imputation of dishonesty. Nichols y. Pinner, 18 E^. T. 295 ; Brown v. Montgomery, 20 id. 287 ; Johnson v. Monell, 2 Keyes, G55 ; Chaffee v. Fort, 2 Lans. 81. But no case can be found holding that a trader who was hopelessly insolvent, who knew that he could not pay his debts, and that he must fail in business and disappoint his creditors, could honestly take advantage of a credit induced by his apparent prosperity, and thus obtain property that he had every reason to be- lieve he could not pay for. In such a case he does an act the necessary result of which will be to cheat and defraud another, and the intention to cheat will be inferred. Anonymous, 67 N. T. 598 ; affirming S. 0., sub nom. Roebling v. Duncan, 8 Hun, 602. See Devoe v. Brandt, 53 N. Y. 462 ; Chaffee v. Fort, 2 Lans. 81. Such a fraud may be as easily consummated by a suppression of the truth as by the suggestion of a falsehood, and the law does not require a false affirmation as the only basis upon which to prove the fraud. Devoe v. Brandt, 53 N. Y. 462. Where a sale is alleged to have been procured through fraud, by means of the declarations which the vendee has made about his cir- cumstances, his declarations, while making purchases at other places about the same time, are admissible in evidence, to show a fraudulent 'ntent in the alleged fraudulent purchase. Camj v. Hotaling, 1 Hill, 58 SALE. Sale or delivery procured by fraud. 311; Olmstead v. Hotalmg, id. 317; Hcdl v. Nwylor, 6 Duer, Yl ; Hathorne v. Hodges, 28 N. Y. 486 ; NoAigatuck GuUery Co. v. Bab- cock, 22 Hun, 481 ; Hall v. Erwm, 60 Barb. 349 ; MUler v. Ba/rh&r, 66 N. Y. 558 ; Van EUeJc v. Zewy, 4 Abb. Ct. App. 479 ; S. C, 4 A^b. (N. S.) 431 ; 4 Trans. App. 295; Kwig v. Mich, 1 Keyes, 432; Her- sey Y. Benedict, 15 Hun, 283. But evidence cannot be given to show what representations were made by the purchaser to another firm, in respect to his pecuniary cir- cumstances about the time of the purchase from the plaintiff, when it is not shown or pretended that he purchased any goods of that firm on credit, or that he defrauded or intended to defraud such firm. Mwrfey V. Brace, 23 Barb. 561 ; Durbrow v. McDonald, 5 Bosw. 131. The creditors of a fraudulent vendee will not get any title as against the vendor, when such creditor obtains his title by a levy and sale on an execution issued against the property of the vendee for an antece- dent debt. Mowrey v. Walsh, 8 Cow. 238 ; Ash v. Putnam, 1 Hill, 302 ; Ack&r v. Campbell, 23 Wend. 372 ; I>evoe v. Brandt, 53 N. Y. 462. See Naugatuch Cutlery Co. v. Bdbcoak, 22 Hun, 481. So, the vendor may reclaim the property in such a case, if the vendee has turned it out to his creditor in payment of an antecedent debt. Hoot V. French, 13 "Wend. 570; Stevens v. Brennan, 79 N. Y. 254. So, if such fraudulent vendee has mortgaged the property to secure an antecedent debt, the claim of the vendor will be preferred. lb. ; Wood- hum V. Chamherlin, 17 Barb. 446. So, a transfer of the goods by such vendee to an assignee in trust for the benefit of creditors will not give any title to the assignee as against the vendor. Nichols v. Michael, 23 JST. Y. 264 ; Hall v. Naylor, 6 Duer, 71 ; Steve^is v. Hyde, 32 Barb. 171 ; LacTcer v. Rhoades, 51 N. Y. 641. Where A. and B. applied to 0., to purchase goods for A., who was recommended by B., and by their direction the goods were sent to B.'s house, who afterward took a bill of sale of them from A., who ab- sconded without paying C. ; it was held that C, in an action of trover against B., might go into evidence to show that the goods had been ob- tained from him fraudulently, and by a collusion between A. and B., under a pretense of a purchase, for fraud would avoid the contract of sale ; and that the plaintiff might give evidence of subsequent acts of collusion and fraud by A. and B. to obtain goods from other persons, in order to show the previous intentions of A. and B., which the jury might infer from circumstances. Allison v. Matthieu, 3' Johns. 235. The law is well settled as to the rights of bona fide purchasers from a fraudulent vendee. But, before stating the rule, it will be well to SALE. 59 Sale or delivery procured by fraud. determine who is a bona fide purchaser. It may be safely laid down as law, that no person, as against the true owner, is to be deemed a hona fide purchaser from the first vendee, when it appears that he has neither advanced money nor property, nor incurred liabilities upon the faith of such vendee's apparent title, nor where he had notice of the fraud of the vendee or knowledge of circumstances sufiBcient to put him on inquiry. Barnard v. Campbell, 58 N. Y. Y3 ; S. 0., lY Am. ■Rep. 208 ; Stevens v. Brennan, 79 J^. Y. 254 ; Weiss v. Brennam,, 9 Jones & Sp. 177. See Weaver v. Barden, 49 N. Y. 286 ; Boot v. French, 13 "Wend. 570. He is not a hona fide purchaser when a recov- ery by the true owner would leave him in the same condition as if no contract of purchase had been made by him. Beamers v. Lam,e, 6 Duer, 232 ; Bobinson v. Bauchy, 3 Barb. 20. And in a suit by the true owner to recover the goods against a person who claims title under a fraudulent vendee, the burden of proving that he is a purchaser in good faith and for value, is upon the purchaser. Stevens v. Brennan, 79 N. Y. 254 ; Bmoe v. Brandt, 53 id. 462. It is suflBcient to impeach the hona fides of a purchase of chattels from a fraudulent vendee, that the purchaser had notice of such facts and circumstances as would naturally excite the suspicion of a man of ordinary prudence and caution. If he has such notice and forbears to make inquiry, he is not a purchaser in good faith within the meaning of the rule that a hona fide purchaser from such vendee, in the ordinary course of business, for value, will acquire a valid title as against the defrauded vendor. Banforth v. Ba/rt, 4 Duer, 101 ; Weiss v. Brennan, 9 Jones & Sp. 117 ; Mitchell v. Warden, 20 Barb. 253 ; Govell v. Hill, 6 N. Y. 374 ; Pringle v. Phillips, 5 Sandf. 157 ; Devoe v. Bramdt, 53 N. Y. 462; Baker v. Bliss, 39 id. 70; S. C, 6 Trans. App. 346. Where the owner of property dehvers the possession of it, under a contract of sale, and he intends at the time to part with his title and property in the things delivered, any bona fide purchaser who takes a delivery of the property from the first vendee will obtain a title which is valid as against the first vendor, although the latter may have been induced to sell and dehver them by fraud, or by false pretenses, which are indictable, and which would authorize him to disaflirm the contract as against such fraudulent vendee. Caldwell v. Bartlett, 3 Duer, 341 ; Keyser v. Harhech, id. 373; Malcom v. Loveridge, 13 Barb. 372; Movyrey v. Walsh, 8 Cow. 238 ; Root v. French, 13 Wend. 570. So a bona fide mortgagdb will get a good title if he advances the money for which the mortgage is given. Malcom v. Loveridge, 13 Barb. 372. So, one who in good faith, without notice of such fraud, receives such 60 SALE. Sale or delivery procured by fraud. goods from a fraudulent vendee, on consignment for sale, and ad- vances money thereon to such vendee, acquires a lien thereon, and such original vendor cannot reclaim the goods from him without repaying his advances. Williams v. Birch, 6 Bosw. 299 ; Cald/well v. Bartlett, 3 Duer, 341. A purchaser in good faith from such consignee will hold the goods in preference to the original vendor. lb. When it appeared that the contract of sale to the subsequent pur- chaser, by the fraudulent vendee, was so far executory that the thing sold had not been delivered, nor any portion of the price paid, so that, in the event of a recovery by the true owner, such purchaser would sustain no damage beyond the possible loss of anticipated profits, it was held that the original owner had a title paramount to such subse- quent purchaser. Beavers v. Lane, 6 Duer, 232. Where one in good faith makes advances on goods obtained from such vendee, and he obtains a documentary title thereto, and the con- structive but not the actual possession of the goods, he is not Mable in trover to the first owner for not giving him the manual possession of the goods, on a demand made and an offer to refund his advances, when he oliers to assign all his documentary evidence of title to the goods, and to confer upon the original owner all the actual power of disposition of them which he possesses. Keyser v. Harbeck, 3 Duer, 373. In action by the original vendor against one who purchased from liis fraudulent vendee, the presumption is, that such subsequent purchaser bought in good faith from the fraudulent vendee. Stocking bought a cow of the defendant, and gave his note for the purchase-money, and agreed tliat if the note was not paid, he would deliver up the cow as security ; Stocking some time afterward sold the cow to C. Lewis, who sold to J. Lewis, the plaintiff. The defendant took the cow from the plaintiff, who brought an action for such taking, and the defendant offered to show that Stocking was guilty of a fraud in the purchase from him ; but it was held that the evidence was not admissible, unless the defendant first showed that those persons who purchased of Stock- ing, and subsequently to that time, had knowledge of the alleged fraud, and that the presumption was, that such purchases were made in good faith. Lewis v. Palmer, Hill & Denio, 68. Where property has been stolen, no person can get a good title from the thief, even if he is a l)ona fide purchaser. JEoffman, v. Carow, 22 Wend. 285 ; S. C, 20 id. 21 ; Robinson v. Dauchy, 3 Barb. 20. Where the owner of personal prop- erty has not conferred upon the vendor of it an app|rent right of prop erty, or right of disposal, a purchaser is not protected against the claims of the owner, although such purchaser acquires the property for a fair SALE. 61 Sale or delivery procured by fraud. and valuable consideration, in the usual course of trade, without notice of any conflicting claim, or knowledge of any suspicious circumstances calculated to awaken inquiry, or put him on his guard ; and it was held that the purchaser of a part of a cargo of a vessel was not protected against the claims of the real owner, although the purchase was made under a bill of lading regular and fair on its face ; it appearing on the trial, that the master of a vessel in which the goods were originally shipped had fraudulently, at an intermediate port, transhipped the goods into another vessel, and procured a bill of lading in his own name, which he transferred to his own agents, the vendors. Saltnis v. JEverett, 20 Wend. 275. On the Yth of October, the plaintiffs, in the city of New York, con- tracted to sell to Lovett & Co.. fifty barrels of potash, to be paid for on delivery ; and thereupon Lovett, one of the purchasers, engaged freight for the potash from the owners of a vessel which was about to sail to Liverpool. On the 9th of October, the plaintiffs, pursuant to the con- tract of sale, sent the potash on board the vessel, and took from the defendant, Peabody, who was master, receipts therefor in their own names ; and on the same day Lovett stole the receipts from the plaint- iffs, and, on presenting them to the owners of the vessels, procured a bill of lading for the potash in his own name, upon which and a bill of exchange drawn against the shipment, he procured an advance to about the value of the property. Lovett & Co. were insolvent and contracted for the property, intending not to pay for it ; and the plaintiffs, within a few days after the bill of lading had been procured, demanded the potash of the master, who declined to deliver it, and it was transported to Liverpool, and delivered pursuant to the bill of lading. In an ac- tion by the plaintiffs against the master, it was held, first, that the plaintiffs had not parted with their title to the potash ; and second, that the master was liable to them for its value, notwithstanding the bill of lading was given to Lovett, and the advance made to him upon its credit, without notice and in good faith, and although, by the custom of merchants and ship-owners in New Tork, bills of lading are made out and delivered to the person producing the ship's receipts, without reference to the party named in them, and without any assignment of them from such party. Brower v. Peabody, 13 N. Y. 121. A bill of lading is only so far negotiable as to protect a hotiafide indorsee thereof, for value, from the exercise by the consignor of the right of stoppage in tn'omsitu / but w^ien such biU of lading is obtained by fraud from the owners of the goods, and there has been in point of fact no sale of them, an indorsee, though taking the goods in good faith and for value, 62 SALE. RescindiDg contracts of sale . can obtain no better title to the goods than the indorser had. The bill is of no effect except when the assignor has at the time some right or authority, operative as against the owner, until rescinded by him. JDows V. Perrin, 16 N. Y. 325. See First Nat. Bamk of Toledo v. Shorn, 61 id. 283 ; 69 id. 624 ; Fa/rmers amd Mechcmics' Nat. Banh v, Logan, 74 id. 568 ; Farmers and Mechanics' Nat. Bank v. Hazeltme, 78 id. 104 ; Collins v. Ralli, 20 Hun, 246. One who has either tortiously or feloniously, without the knowledge of the owner, obtained the possession of a certificate of stock having a power of attorney in blank annexed thereto, cannot confer title on a third person by selling and delivering the same for a valuable con- sideration, although the purchaser acts in good faith, believing he is dealing with one who owns or has due authority to sell such stock. Anderson v. Nicholas, 5 Bosw. 121 ; S. C, 28 IST. T. 600. One who receives such a certificate and power, and sells the same, or causes the same to be sold, by direction of one whom he supposes to be the owner, or to have due authority, is liable to the actual owner for a conversion of the stock, notwithstanding he has paid over the proceeds to the per- son employing him. lb. One who deals with or disposes of the per- sonal property of another (the same not being negotia^ble paper) must see to it that he acts by the authority of some one who has power sufficient to warrant such dealing or disposition. lb. One who tortiously pos- sesses himself of another's chattels, without a delivery from the true owner, or his consent, express or implied, can vest no title to them in a purchaser, though honafide. Caldwell v. Barilstt, 3 Duer, 341, 352, and cases cited. § 13. Rescinding contracts of sale. The right of rescinding con- tracts is an important one, and the law in relation to it is of frequent application. It may be laid down as a general rule, that in all con- tracts of sale either party may rescind the contract if the other party was guilty of a fraud in making such contract. The manner of re- scinding and the conditions and qualifications to be observed will be explained hereafter. When either party exercises the right of rescind- ing a contract, the effect of it wiU be to restore both parties to the posi- tion and rights which they enjoyed before the contract was made, un- less one or both of the parties have done some act which renders that impossible. Stevens v. Hyde, 32 Barb. 171. And the rule is the same where the contract is rescinded by the mutual consent of the parties. Battle V. Rochester City Bamk, 3 N. Y. 88. In the absence of fraud the right to rescind a contract of sale is dependent upon the agreement of the parties and springs either from the original terms of the con- SALE. 63 Rescinding contracts of sale. tract or from a sudsequent mutual assent to break it up. See Ileinckley V. Ea^le, 8 El. & Bl. 410. The contract may be avoided by mutual rescission at any stage, and upon whatever terms may be agreed upon between the parties, provided that all who have acquired rights under the sale acquiesce in the arrangement. Frazier v. Harvey, 34 Conn. 409; Morgrni v. Bam., L. R, 10 0. P. 15 ; S. C, 11 Eng. E. 220. If the contract provides that one of the parties shall have the right to re- scind the contract in a-certain event, the rescission must be made on the happening of that event ; for the law does not give to a party the right to enjoy the avails of the contract for an indefinite time after the right to terminate it exists, and to subsequently assert that it is not obligatory upon him. Bristol v. Tracy, 21 Barb. 236. In order to maintain an action to recover back money paid under a special contract, the plaintiff is bound to show the contract at an end, either by a fuU performance thereof by both parties, or by some act of the defendant inconsistent with it, and disabling him from comply- ing with its terms, or by a rescission by the mutual consent of both parties. Lawrence v. Simmons, 4 Barb. 354. The law will not allow a party who is wholly in default to recover back money paid in part performance of an executory agreement, who has afterward broken it and refused to go on and perform the residue. Eaynes v. Hart, 42 Barb. 58 ; Oreen v. Qreen, 9 Cow. 46 ; Havens v. Patterson, 43 N. Y. 218. An exchange of horses was made between the plaintiff's agent and the defendant, upon terms which, as the defendant knew, the plaint- iff had himself refused to adopt as the basis of an exchange. The plaintiff did not know of the bargain until after it was made, nor did he know the terms of it, and that it was contrary to his proposition, until after the death of the horse received in exchange had put it out of his power to return it, and he repudiated the bargain as soon as he knew what it was ; it was held that an action might be maintained by the plaintiff' to recover the value of the horse delivered by his ageiit to the defendant. Bobertson v. Ketchum, 11 Barb. 652. "Where a note was given for a fanning mill, conditioned that if the maker was not suited with it he should return the same in a given time to the payees, they, in that event, to furnish him with a new mill, it was held that the maker of the note having returned the mill within the time and refused to accept a new one, though offered him by the payees, he was entitled to no abatement from the amount of the note by reason of latent defects in the mill. Pinney v. Hall, 1 Hill, 89. If the purchaser of goods which, by the terms of the contract of 64 SALE. Rescinding contracts of sale. sale, are to be delivered and paid for at a specified time, does not ten- der the price and take the goods within the time agreed upon, the ven- dor may request him to pay for and take the goods, and in case of his refusal, may abandon and rescind the contract, and dispose of the goods as if no contract had been made, or he may resell the goods, and recover of him the sum lost by the resale, together with the expenses of keeping the goods. McEachron v. Ra/iidles, 34 Barb. 301 ; Boga/rt v. G' Reagan, 1 E. D. Smith, 590 ; Crooks v. Moore, 1 Sandf. 297; Swnds v. Taylor, 5 Johns. 395. No notice of the time and place of resale need be given to the vendee. Pollen v. LeRoy, 30 ]Sr. Y. 549 ; Boga/rt v. 0' Reagan, 1 E. D. Smith, 590. Notice of intention to sell in case the contract is not performed is all that the law requires. McOibbon v. ScMessinger, 18 Hun, 225 ; Lewis v. Greider, 49 Barb. 606 ; S. C. affirmed, 51 N. Y. 231. And see WestfaM v. Peacock, 63 Barb. 209 ; Mills v. Oould, 10 Jones & Sp. 119. It is not necessary that the sale should be made at the place of delivery desig- nated in the contract. McGiblon v. Schlessvnger, 18 Hun, 225. All that is required of the vendor in such case is that in making the sale he shall act with reasonable care and diligence, and in good faith. He must be the judge of the time and place of sale provided he acts in good faith and with reasonable care and diligence. Dustan v. McAn- drew, 44 N. Y. 72. But he should make the sale without unnecessary delay, and at the earliest practicable period after the refusal of the vendee to accept the goods according to his contract. lb.; Tilt v. La Salle Silk Manuf. Co., 5 Daly, 19. All that can be required is that the sale shall be made within a reasonable time, and if so made, it cannot be invali- dated by showing that it might have been made sooner than it was. Smith V. Pettee, 70 N. Y. 13. In making the sale the vendor acts as the agent of the vendee, and will doubtless be bound to obey any instructions which may be given by the latter, as to the time and man- ner of sale, which the vendor can follow without sacnficing his lien on the goods for the contract-price. In the absence of such instructions the vendee must exercise a reasonable discretion. lb. There is no rule of law which requires such resale to be made at auction, or in any particular mode. The seller must dispose of the goods on the resale in good faith, in the mode best calculated to pro- duce their value. If the usual mode of selling the particular goods in market be at public auction, the seller ought to dispose of thsm in that manner. If the custom be to sell them through a broker, it is the duty of the seller to offer them in the market through a broker's agency. Crooks v. Moc>re, 1 Sandf. 297. SALE. 65 Rescinding contracts of sale. Where goods are sold which are to be paid for on delivery, and the vendee takes possession of the goods by fraud, or without the consent of the vendor and his waiver of the condition, such vendor may recover the possession of the goods in an action of replevin. Acker v. Gamp- hell, 23 Wend. 372. And see Sale on Condition, etc., ante, 25 ; Sales Procured by Fraud, etc., a/nte, 55. Where a contract of sale, has been procured by a fraud, the vendor may treat the sale as a valid one, if he so elects, and the fraudulent vendee will be bound, notwithstanding his own fraudulent acts. JBron- son V. Wimam, 8 N. Y. 182 ; Matteawan Co. v. Bentley, 13 Barb. 641 ; Balheimer v. Beichardt, 55 How. 414. But either party to a contract of sale may rescind it, if it was procured by the fraud of the other party. And the cases in which vendors have rescinded contracts of sale on account of the fraud of the vendee are very numerous. Ash V. Putnam, 1 Hill, 302 ; Gary v. Hotailing, id. 311 ; Olmsted v. Hotailirig, id. 31T ; Willson v. Foree, 6 Johns. 110 ; Keteltas v. Fleet, 7 id. 324 ; Hitchcock v. Covill, 20 Wend. 167 ; Bliss v. Cottle, 32 Barb. 322 ; Wheaton v. Baker, 14 id. 594 ; Seaman v. Low, 4 Bosw. 337. The vendor may recover the purchase-price of such fraudulent ven- dee immediately, since the fraud avoids any credit which was to have been given, and the vendor may at once recover the money. Willson V. Foree, 6 Johns. 110 ; Pierce v. Drake, 15 id. 475 ; Kayser v. Sichel, 84 Barb. 84 ; Roth v. Palmer, 27 id. 652. So, he may maintain an action of trover against such vendee, after a demand and refusal. HitcTicock V. Covill, 20 Wend. 167. Or he may maintain replevin to recover the possession of the goods. Gary v. Hotailing, 1 Hill, 311 ; Olmsted v. Hotailing, id. 317 ; Wheaton v. Baker, 14 Barb. 594. And so he may recover the goods from a general assignee of such fraudulent vendee. Bliss v. Cottle, 32 Barb. 322. Or he may recover them from creditors of such vendee. Ash v. Putnain, 1 Hill, 302. And see am,te, 55. A breach of warranty made by the vendor is not a sufficient ground for the vendee to rescind the contract of sale, and to insist upon return- ing the goods sold. The purchaser is not entitled to rescind the sale, return the chattels and demand a return of the price paid, unless there was fraud in the sale on the part of the vendor, or there was an express agreement that they might be returned if they were not such as they were warranted to be. Kiernam, v. Rocheleam, 6 Bosw. 148 ; Camf v. Gruman, 4 Hill, 625 ; Voorhees v. Eoff'l, 2 id. 288 ; MuUer v. Eno, 14 N. Y. 597; Fisher v. FredenhaU, 21 Barb. 82; BustY. Eckler, 9 66 SALE. Rescinding contracts of sale. 41 ]Sr. Y. 488 ; Parks v. Morris Ax and Tool Co., 54 id. 586 ; Day V. Pool, 52 id. 416 ; S. C, 11 'Am. Eep. 719 ; Nichols v. Townsend, 7 Hun, 375 ; Zuller v. Rogers, id. 540. There is sometimes an implied warranty which may authorize a re- fusal to receive goods sold, or even to return them, after they have been delivered, though this is not strictly upon the ground that the contract is rescinded, but because the goods delivered are not such as the contract requires. Where goods are to be manufactured in future, the vendee may require a merchantable article. Howard v. Hoey, 23 "Wend. 350 ; Hoe v. Sanborn, 21 E". Y. 552 ; Muller v. £:no, 14 id. 597, 602. Upon an executory contract for the sale of personal property there may be a warranty ; and where the warranty is as to its intrinsic qual- ity, which mere observation or inspection will not determine, upon re- ceipt and subsequent discovery of a breach, the vendee can recover upon the warranty, and is not bound to release or offer to return the property. Bay v. Pool, 52 N. Y. 416; S. C, 11 Am. Eep. 719; Zuller V. Rogers, 7 Hun, 640 ; Parks v. Morris Ax and Tool Co., 54 N. Y. 586. A return, or its equivalent oflEer, is only necessary where a rescission of the contract is sought, and is neither necessary nor ad- missible where a warranty simply is reKed upon. lb. An executory contract to manufacture and deliver articles, corresponding in all respects to a sample shown, binds the party to furnish articles equal to the sample in manufacture, material, description, quality, fitness and dura- bility, for the use for which they were designed. And if a defect exists which could not be determined by examination upon the receipt of the articles, but only upon use, it is not the duty of the vendee to rescind the contract, and return or offer to return the property upon discovery ; but he may retain them and recover or recoup his damages. Oumey v. Atlantic, etc., Railway Co., 58 N. Y. 358. See, also, Gautier v. Douglass Manuf. Co., 13 Hun, 514. Where, in an executory contract for the purchase and sale of personal property, there is no warranty, express or implied, an acceptance by the vendee after examination, or after an opportunity for examination, in the absence of fraud, is conclusive of an assent upon his part that the property is of the quality contracted for. Dutchess Convpamy v. Hand- ing, 49 N. Y. 321. But where the acceptance is induced by artifice or fraud of the vendor, by reason of which an examination is prevented or interfered with, the acceptance is not binding as an assent to the quality, and the vendee's rights under the contract are unimpaired thereby. lb. When a party would rescind a contract of sale for fraud, he must act SALE. 67 Rescinding contracts of sale. promptly on discovering such, fraud. Wheaton v. Baker, 14 Barb. 594 ; Matteawan Go. v. Bentley, 13 id. 641 ; Fisher v. FredenhaU, 21 id. 82 ; Central Ba/nh v. Pindar, 46 id. 467 ; Schiffer v. Diets, 83 N. Y. 300. If the vendee of property is silent and continues to treat the property as his own, he will be deemed to have waived the objec- tion and will be as conclusively bound by the contract as if the mistake or fraud had not occurred. See Thomas v. Ba/rton, 48 IST. Y. 193, 200 ; Orymes v. Sanders, 93 U. S. 55 ; Boughton v. Standish, 48 Yt. 594 ; Jennings v. Broughton, 5 De G. ]\£. & G. 139. And the buyer is not only bound to rescind for fraud at the earHest practicable moment, but he must rescind the contract wholly or not at all. Shields v. Pettee, 2 Sandf . 262 ; Morse v. BracJcett, 98 Mass. 205 ; Kinney v. Kiernan, 49 N. Y. 164. He cannot retain either the whole or a part of the con- sideration received under an entire contract. Willoughby v. Moulton, 47 ISr. H. 205 ; Campbell v. Fleming, 1 Ad. & El. 40. The purchase of a specific number of packages of an article, at a given price per package, is an entire contract and cannot be rescinded by the buyer as to some, and affirmed as to others. Mansfield v. Trigg, 113 Mass. 350 ; But see Costigan v. Hawkins, 22 Wis. 74. If the vendee would re- scind a contract for fraud he must return, or offer to return, the prop- erty purchased. Voorhees v. Eai'l, 2 Hill, 288 ; Both v. Palmer, 27 Barb. 654 ; Masson v. Bovet, 1 Denio, 69 ; Wheaton v. Baker, 14 Barb. 594 ; Waring v. Mason, 18 Wend. 426 ; Fisher v. FredenhaZl, 21 Barb. 82 ; MatteoAjoan Co. v. Bentley, 13 id. 641 ; Schiffer v. Dietz, 83 N. Y. 300. A party cannot have the benefit of a rescission of the con- tract while he holds the obligation of the opposite party as the con- sideration of the contract, without offering to cancel it at the trial. Central Bank v. Pindar, 46 Barb. 467. The general rule is, that the party who would rescind a contract on the ground of fraud, for the purpose of recovering what he has advanced upon it, must restore the other party to the condition in which he stood before the contract was made. Cobb v. Hatfield, 46 N. Y. 533 ; Mas son V. Bovet, 1 Denio, 69 ; Hunt v. Svnger, 1 Daly, 209 ; S. 0. affirmed, 41 N. Y. 620, n. ; Cv/rtiss v. Howell, 39 id. 211 ; Ouckenheimer v Angevvne, 81 id. 394; Gould v. Cayuga County National Bam,k, 86 id. 75. And see Hamiilton v. Singer Manufactniring Co., 54 111. 370. But where the party who practiced the fraud has en- tangled and complicated the subject of the contract in such a manner as to render it impossible that he should be restored to his former con- dition, the party injured, upon restoring or offering to restore what he has received, and doing whatever is in his power to undo what has been 68 • SALE. Rescinding contracts ot sale. done in the execution of the contract, may rescind it and recover what he has advanced. Masson v. .Bovet, 1 Denio, 69. Where the buyer has himself rendered a re-delivery impossible, he cannot, of his own mo- tion, rescind a fraudulent sale. Glark v. JVeufville, 46 Ga. 261. But a buyer who is entitled to rescind the contract for fraud, but who delays doing so for the purpose of affording the seller at his re- quest an opportunity of attempting to make the thing sold of value and satisfactory to the buyer, is not precluded by such delay from thereafter rescinding the contract. Powell v. Woodworth, 46 Vt. 378. The defendant, being the plaintiff in a judgment, and about to cause land of the judgment debtor to be sold on execution, fraudulently repre- sented to the plaintiff that the land to be sold was free from auy prior incumbrance, when, in truth, it was subject to older liens to more than its value, and thereby induced him to become the purchaser at the sheriff's sale for a considerable sum, and received from him in payment of his bid the note of a third person, held by the plaintifE for a larger sum than the amount bid, giving back his own note for the balance, it was held that the plaintiff, who had, immediately upon the discovery of the fraud, offered to give up the note received by him and to assign the certificate of sale, could maintain replevin against the defendant for the note so transferred to the defendant by him. Massmi v. Bovet, 1 Denio, 69. So where a vendor, in pursuance of a right reserved in the contract of sale, declares the contract void, and re-enters and takes possession of the lands, and sells the same to another person, this amounts to a rescission of the contract by him, and the vendee may, in an action for money had and received, recover back the payments made by him. Utter v. Stuart, 30 Barb. 20. On the 19th of June, 1857, the plaintiffs bought a quantity of sheep of the defendant for the sum of $168, paying $50 of the price down, and agreeing to pay $50 on the twenty-second day of that month, and to take the sheep away and pay the balance of the purchase- money within ten days of sale. The plaintiffs did not pay the $50 on the twenty-second day of June, and did not call for the sheep and offer to pay the balance of the price within ten days. On the seventh day of July the defendant told the plaintiffs that the sheep were sold to another person, and refused to let the plaintiffs have them. In an action brought by the plaintiffs to recover back the $60 paid at the time of the sale, and for damages, it was held that if the defendant meant to enforce the contract, he should have given notice to the plaint- iffs that if they did not take the sheep and pay the balance of the pur- chase-money by a specified time, he should sell the sheep and look to SALE. 69 Rescinding contracts oi sale. the plaintiffs for any deficiency ; that having resold the sheep without giving such notice, the defendant rescinded the contract m toto, and lost all right of action against the plaintiffs for their breach of it, and became liable to refund to them the $50 paid on it, and that, therefore, the plaintiffs were entitled to recover the $50 paid by them, with in- terest thereon from the time the defendant rescinded the contract, but that, being themselves in the wrong, they could not recover any dam- ages of the defendant for his rescission of the contract ; and also that it was not necessary to demand the $50 of the defendant before bring- ing their action to recover it back. Fancher v. Goodman, 29 Barb. 315. Before a purchaser of real estate can rescind the contract of pur- chase and claim to recover back the moneys paid by him on account of the price, he is bound to restore to the vendor the possession of the premises. He cannot occupy under the contract, and thus enjoy the benefit of it, and at the same time treat it as rescinded, and reclaim the purchase-money. Ooelth v. White, 35 Barb. 76 ; Abhott v. Draper, 4 Denio, 51 ; Lindsley v. Ferguson, 49 JST. Y. 623 ; Tompkins v. Hyatt, 28 id. 347 ; Lewis v. MoMillen, 41 Barb. 420 ; Goray v. Matthewson, 7 Lans. 80 ; S. C, 44 How. 80. There are eases in which the omission to return what has been re- ceived is excusable in point of law. The defendant obtained mer- chandise frem the plaintiff under fraudulent representations, paying part of the price in cash and giving his note for the balance. At the maturity of the note the defendant could not be found, upon inquiry, at his last place of residence ; it was held that an action of trover would lie without a tender of the money or note, and that it was sufficient if the note were produced and tendered at the trial. Ladd v. Moore, 3 Sandf. 589. Though a party who rescinds a contract is bound to re- store what he has received upon it, yet this is upon the condition that such party shall thus restore himself to his own original position. lb. "Where a fraudulent purchaser has absconded, leaving the purchase- money unpaid, a return to him of the notes given for such price be- comes impracticable, and the vendor is, therefore, not required to offer to return the notes before bringing an action to disaffirm the sale. In such a case, it is sufficient to produce the notes at the trial. Hathorne V. Hodges, 2^ N. Y. 486; White v. JDodds, 42 Barb. 654; S. C, 28 How. 197 ; 18 Abb. 250. And, as against a third person claiming under a fraudulent vendee, in order to establish a rescission of the contract of sale, it is not neces- sary to prove a return of, or offer to return, any securities received 70 SALE. Rescinding contracts of sale. thereon if the vendor refrains from asserting any title to those securi- ties founded upon the original contract. Kinney v. Kiernam., 49 N. Y. 164. And see Pearse v. Pettis, 4Y Barb. 276. Where the plaintiff sold a quantity of stoves to J., and received in payment two notes made by M. for a part of the amount, and the note of J. for the balance of the purchase-money, and J. subsequently sold a part of the stoves to honajide purchasers, and the defendant became the purchaser of the remainder, and the plaintifPs then applied to M., and obtained from him four additional notes made by him, for a part of the purchase-money, and prosecuted two of them to judgment, and, after demanding the stoves of the defendant, they brought an action to recover the possession thereof, on the ground that the purchase by J. ^ei& fraudulent, but without rescinding the contract or offering to return the note given b}'' J. or those given by M. ; and it was held that the action could not be maintained. Wheaton v. Baker, 14 Barb. 594. And see Hoyt v. Hall, 3 Bosw. 42. "It is true, as a general rule, that a party who would disaffirm aeon- tract must return, or offer to return, whatever he has received upon it. But in cases of fraud, when nothing is parted with by the fraudulent vendee but his own promissory notes, such a return, or offer to return, is not necessary before action brought, it is enough if the notes are produced on the trial, ready to be canceled. Nellis v. Brad- ley, 1 Sandf . 560 ; Ladd Vi Moore, 3 id. 589. In a sale procured by fraud no title passes, the vendor still retains his legal right to the goods ; and rescinding the contract of sale rescinds the contract of payment, and hence the notes fall with the contract. lb. Most of the cases in which a return has been held necessary, before action, related to execu- tory sales, and where the party sought to rescind because of the failure of the other party to fulfill the agreement. In such cases, a tender is no doubt a condition precedent to a right of action." Nichols v. Mi- chael, 23 N. Y. 264, 267, James, J. It is not any more necessary to tender a negotiable note than any other, if the note has not been nego- tiated, but still belongs to the vendor. lb. But where negotiable notes were given by the vendee, payable at a bank which discounted the notes and owned them at the time of the commencement of the action, and no tender or offer was made by the vendor to return or cancel the notes before action brought, it was held that the plaintiff could not maintain an action to recover the value of the goods, although he pro- duced them at the trial, and offered to cancel them. MatUaman Co. v. Bentley, 13 Barb. 641, 644. And where a vendor sells goods and receives from the purchaser a SALE. 71 Rescinding contracts of sale. promissory note made by a third 'person in payment, and he afterward sues the purchaser for goods sold, on account of fraudulent representa- tions made by him as to the solvency of the maker of such note, by which he was induced to receive the note, the vendor must, in order to recover, show that he returned or tendered the note to the defendant before suit brought. And if he has recovered a judgment upon it against the maker, an assignment of the judgment must be tendered before suit. Baker v. Rdbbins, 2 Denio, 136 . In an action to recover back property which has been fraudulently obtained upon credit, it is not necessary that the plaintijS cancel the notes to the defendant if he produces them at the trial. But if he has received the notes of other persons, or other property, he must restore or offer to restore them before suit. King v. Fitch, 1 Keyes, 432 ; S. C, 2 Abb. Ct. App. 508. Where a vendor seeks to rescind a contract of sale on the ground of fraud and to recover the property from the fraudulent vendee, he is not required to reimburse the latter for advances to others, or for ex- penditures made to effectuate his fraud, although the vendor would have the benefit of such advances and expenditures on repossessing himseK of the property. GucTcenheimer v. Angemne, 81 N. T. 394. The law cares very little what the loss of a fraudulent party may be • and exacts nothing for his sake. lb. ; Masson v^ Bovet, 1 Denio, 69, 74. If, since the purchase, the purchaser has assigned all his property to trustees, in trust for the benefit of creditors, and the assignees are in possession of the property, a tender of the money or property received by the vendor, upon the sale, may properly be made to the assignees instead of the purchaser. Stevens v. Hyde, 32 Barb. 171. The vendor may recover the property from such an assignee precisely as though he were the fraudulent vendee. Ih.; JVellisr. Bradley,! ^aiidLi.?>&Q. It is not necessary that a demand of property in the hands of the general assignee of the fraudulent vendee should be preceded or accompanied by a declaration of disaffirmance of the contract, or by a statement that such disafiirmance is on the ground of the fraud perpetrated by the fraud of the original purchaser in making the purchase. White v. Dodds, 42 Barb. 554; S. C, JS Abb. 250; 28 How. 197. It has been held in this State that if an infant has executed a con- tract on his part by the payment of money or delivery of property, he cannot afterward disaffirm it and recover back the money or claim a return of the property without restoring to the other party the consid- eration received from him. Bartholomew v. Finnemore, 17 Barb. 428. 72 SALE. Rescinding contracts of sale. And it has been also held that the terms upon which a rescission by an infant will be allowed are a restoration of the property to the person of whom he received it, and the payment of such a sum as, with the payments on account of the purchase, equals the deterioration of the property in value, caused by the infant's use of it. Gray v. Lessing- ton, 2 Bosw. 257. But this rule must be taken with the qualification, that the infant, at the time of the rescission, stUl is in possession of the money or property received by him. Dill v. Bowen, 54 Ind. 204. And see Bedinger v. Wharton, 27 Gratt. (Ya.) 857. The right to re- pudiate is based upon the incapacity of the infant to contract, and that incapacity applies as well to the avails as to the property itself ; and when the avails of the property are improvidently spent or lost by speculation or otherwise during infancy, the infant will not be held re- sponsible for an inability to restore them. Thus, where an infant has consumed the consideration given him for his deed of certain land, restitution of the amount cannot be required as a condition of his dis- affirmance of his conveyance. Green v. Green, 7 Hun, 492 ; S. C. affirmed, 69 N. T. 553 ; S. C, 25 Am. Kep. 233. And see Fitts v. Hall, 9 N. H. 441 ; Walsh v. Young, 110 Mass. 399 ; Musta/rd v. Wohlfard, 15 Gratt. (Va.) 329 ; Price v. Furman, 27 Yt. 268. So, it has been held that an infant may recover personal property sold or ex- changed by him, without returning the money or property received therefor. White v. Branch, 51 Ind. 210. And that it is no defense to an action by an infant to recover possession of a horse, that another horse received by him in exchange therefor had been so misused by him that, though sound and of equal value with the horse given by him in ex- change at the time of the transaction, it became unsound and of no value, and that afterward the plaintiff offered to rescind, then making known his infancy to the defendant, who had no knowledge thereof at the time of the exchange, lb. But see Bartholomew v. Finnemore, 17 Barb. 428. Upon a sale of an interest in a patent, the purchaser is precluded from setting up the want of value in the invention, or the insufficiency of the materials, where he has sold the right transferred to him to an- other for value. He cannot defend an action for the unpaid purchase- money on that ground. It would be otherwise if there had been a war- ranty or express representation of the value or character of the article. By parting with the patent, he has disabled himself from reinstating the plaintiff in its possession, and the contract cannot be rescinded without that. Thomas v. Quintard, 5 Duer, 80 ; Wheaton v. Baker, 14 Barb. 594. SALE. 73 Rescinding contracts of sale. When a contract is rescinded, the entire contract must be rescinded. The vendee cannot elect to rescind in part, and hold the residue of the contract vahd. Voorhees v. Ewrl, 2 HiU, 288 ; Shields v. Peitee, 2 Sandf . 262 ; Goelth v. White, 35 Barb. 76 ; Abbott v. Draper, 4 Denio, 51 ; Matteawan Co. v. Bentley, 13 Barb. 641 ; Wheaton v. Baker, 14 id. 594 ; Stevens v. Hyde, 32 id. lYl. The vendee cannot retain any benefit whatever under the contract, and still insist upon a rescission of it. lb. He cannot both repudiate the contract and yet enforce it in the same action. He cannot allege that it was void for some purposes, and then insist that for other purposes it is valid. Ga/rbutt v. Smith, 40 Barb. 22 ; Walkffr v. Millard, 29 N. Y. 375. And, although the contract may relate to several different articles at different prices, he cannot retain some of them and rescind the contract as to the others. Yoorhees v. Ea^l, 2 Hill, 288. So as to quality or kind of goods, the vendee cannot accept some and reject others, he must rescind entirely or not at all. Shields v. Pettee, 2 Sandf. 262. He cannot retain a part of the goods and then recover damages for the non-delivery of the entire quantity, because they do not correspond with the article sold and agreed to be delivered. He must either receive the article as it is, or he must return the portion delivered, and then enforce his claim for damages. He can recover no damages if he re- fuses to return the part delivered. lb. Where a contract is entered into for the sale of a chattel, the price paid, and the article delivered to the purchaser, with the right to return it to the vendor within a stipulated time, provided the purchaser does not in any way injure it while in his possession, and the property is re- turned to the vendor, who accepts it and repays the price, an action lies against the purchaser if he has been guilty of a misrepresentation or a fraudulent concealment in respect to an injury done to the property while in his possession. Taylor v. Tillotson, 16 Wend. 494. To sub- ject the purchaser to an action in such a case, it is not necessary to show that the injury was intentional, or that it was occasioned by gross neg- ligence, lb. During the time the purchaser retains the property in such a case, the title is vested in him, and he is at all risks of loss or injury to the property. lb. But where, after the sale of a chattel, it is agreed that the vendee may, within a reasonable time, return it and receive back the price, if returned in as good condition as at the time of the delivery, and the vendee afterward rescinds the contract and returns the chattel to the vendor, who receives it without objection and gives back the price, the latter is concluded by his own act from maintaining an action against 10 74 SALE. Warranty. the vendee for any deterioration of the chattel not arising from a secret injury. Lord v. Kenny, 13 Johns. 219. A party may have a right to rescind a contract for fraud, but he is not bound to exercise that right by a rescission of the contract. He may elect to treat the contract as a valid one, and then enforce such other legal remedies as the law gives him. So, when goods are sold vrith a warranty, and the vendee has a right, by the terms of his con- tract, to rescind the contract and return the goods, if they do not answer the warranty, he is not bound to return the goods, but he may retain them and sue the vendor for a breach of the warranty. Wa/rmg V. Mason, 18 "Wend. 426 ; Boorman v. Jenkins, 12 id. 566 ; Renaud, v. Peck, 2 Hilt. ] 3Y ; Muller v. Eno, 14 IST. Y. 598. The purchaser may recover for the breach of warranty, although he has sold the goods and no claim b as been made upon him, and although he is not liable to any one on account of the alleged defect. Muller v. Eno, 14 N. Y. 598 Renaud v. Peak, 2 Hilt. 137. A return of the goods is never necessary, unless the vendee wishes to rescind the contract of sale. Waring v. Mason, 1 8 Wend. 426 ; Boor- man V. Jenkins, 12 id. 566 ; Muller v. Eno, 14 IST. Y. 59Y, 602. If the vendor rescinds the contract on account of the fraud of the vendee, and reclaims the goods from him, such vendor cannot after- ward maintain an action to recover the purchase-price of the vendee. So, where the vendee failed to pay cash for the goods as he agreed to do, and when the vendor took the goods, for that reason, in an action of replevin, that is a rescission of the contract, and the vendor cannot maintain an action to recover the purchase-price. Morris v. Rewford, 18 N. Y. 552 ; Fam,cher v. GoodmoM, 29 Barb. 315. If the fraudulent vendee has transferred the goods with others in trust for the payment of antecedent debts, an acceptance by the vendor, after discovery of the fraud, of a written assignment of the vendee's claim for the surplus after payment of the debts, will be an unequivocal affirmance of the sale and subsequent transfer and an abandonment of the right to reclaim the goods, even though the assignment provided that the transaction should not have that effect. Joslin v. Gowee, 52 N. Y. 90 ; S. 0. again, 56 id. 626. In an action by a purchaser to recover back money paid in part exe- cution of a contract, which has been rescinded by the vendor, the plaintiff is not obliged to prove a tender or readiness to pay the whole price. Main v. King, 8 Barb. 535. § 14. Warranty. Sales of personal property form so large a por- tion of the contracts made, that a careful explanation of the law in re- SALE. 75 Warranty. lation to the law of warranty cannot fail to be useful. But the remedy of a party may not always seem to be clear, since he may have more than one form of action, or may think he has a right of action when the law does not give him any under the circumstances of the particu- lar case. When a sale has been made, and the vendee thinks that he has a right of action on account of the improper conduct of the vendor, the vendee will need to be careful in discriminating accurately between three separate classes of cases: 1. Where a fraud is involved. 2. Where a warranty has been given in express terms, or where one may be implied. 3. Where a representation or statement has been made, which is erroneous, but neither fraudulent nor incorporated into the contract. The subject of frauds in sales will be discussed separately hereafter. There is a broad distinction between a sale of goods with a warranty of quality, and a fraud in a sale of similar articles. If a man sells a horse to another, and expressly warrants him to be sound, the contract of warranty is broken if the horse proves to be otherwise. The purchaser in such cases relies upon the contract, and it is immaterial to him whether the vendor did or did not know of the unsoundness of the horse. In either case he is entitled to recover all the damages which he has sustained by reason of the breach of that contract. An express warranty extends to all the defects or faults which it covers, whether they are known or unknown to the vendor. Garley v. Wilhins, 6 Barb. 55Y. But if the vendor says to the purchaser, " I do not know whether the horse is or is not sound, and therefore will not warrant him ; all I can say is, that I have long owned him, and know of no unsound- ness ;" here is manifestly no warranty, and if the vendor spoke the truth, no fraud. If, however, the vendee can show that the horse was unsound, that the vendor knew it to be so at the time of the sale, and that, in consequence of the false representations made by him, the vendee was defrauded, the vendor would be liable, not for a breach of contract of warranty, for he had made no such contract, but for making representations which he knew to be false. In such a case, the guilty knowledge of the vendor would constitute an essential ingredient in the fraud, and in an action against him, it should be both alleged and proved. The remarks already made relate to the distinction between an ex- press warranty and a fraud ; but the same distinction exists between cases of implied warranties and frauds. There is a class of representa- tions or statements which a vendor may make which are not always consid- ered as amounting to a warranty. Oases frequently occur, in which, upon entering into contracts, misrepresentations made by one party 76 SALE. Warranty . have not. been in any degree relied upon by the other party. If the party to whom the representations were made, had himself resorted to the proper means of verification before he entered into the contract, it may appear that he relied upon the result of his own investigation, and not upon the statements made to him on the other side ; or, if the means of investigation and verification were at hand, and the attention of the party receiving the representations were drawn to them, the cir- cumstances of the case may lead a jury to impute to the party alleged to have been misled such a knowledge of the facts as, upon due in- quiry, he ought to have obtained, the notion of any reliance having been made upon the representations made to him being necessarily ex- cluded. Again, in endeavoring to ascertain what reliance was placed on representations, they should be considered with reference to the subject-matter which they concern, and to the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of accurate knowledge, and the other is entirely ignorant, and a contract is entered into after repre- sentations made by the party who knows, or is supposed to know, with- out any means of verification being resorted to by the other, it may well enough be presumed that the ignorant man relied on the state- ments made by him who was supposed to be better informed ; but if tlie subject is in its nature uncertain, if all that is known about it is a matter of inference from something else, and if the parties making and receiving representations on the subject have equal knowledge and means of acquiring knowledge, and equal skill, it is not easy to pre- sume that representations made by one would have much influence on the other. Contracts of warranty are governed by the same rules of law that apply to all other contracts, and therefore a warranty need not be expressed in any particular form of language. If the vendor, at the time of sale, afiirms a fact as to the essential qualities of his goods in clear and definite language, and the purchaser buys on the faith of such affirmation, that is an express warranty. Polhemus v. Heiman, 45 Cal. 573 ; Murray v. Sviith, 4 Daly, 277 ; Callanan v. Brown, 31 Iowa, 333; Tlwrne v. MoVeagh, 75 111. 81 ; Bryant y. Crosby, 40 Me. 9 ; Oarley v. Wilhins, 6 Barlj. 557 ; Oneida Manufacturing Society v. Lawrence, 4 Cow. 440. The word warrant need not be used in order to constitute a contract of warranty. Ghapmam, v. Murch, 19 Johns. 290 ; Roberts v. Morgan, 2 Cow. 438 ; Whitney v. Sutton, 10 Wend. 411. An assertion of the vendor concerning the articles sold, if it be relied on by the vendee, and understood by both parties as an absolute SALE. 77 Warranty. assertion and not merely the expression of an opinion, will amount to a warranty. Carley v, Wilkms, 6 Barb. 557. But representations, descriptive of the thing sold, or which may be taken as an expression of the opiuion of the vendor, do not necessarily import a warranty. Lww- ton V. Keil, 61 Barb. 568 ; Tewheshury v. Bennett, 31 Iowa, 83 ; Baker V. Henderson, 24 Wis. 509 ; Cart&r v. Black, 46 Mo. 384 ; Horton v. Green, 66 N. C. 596 ; Hopkins v. Tanqueray, 15 0. B. ISO. If, how- ever, the representations are as to the quality of the thing sold, or its fit- ness for a particular purpose, and are intended as a part of the con- tract of sale, they wiU constitute a warranty if the vendee purchases, relying upon them. lb. ; Richardson v. Chrandy, 49 Vt. 22. Thus, if the vendor of a horse, during the negotiations for a sale, recites what work the horse has done, and says that he can work well enough then, this is a direct affirmation of the ability of the horse to labor, and is a warranty. Morgan v. Powers, %^ Barb. 35. It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as weU as understood by the vendee, as a warranty. If the contract is in writing and it contains a clear warranty, the vendor will not be per- mitted to say that he did not intend what his language clearly and ex- plicitly declares ; and so if it be by parol, and the representation as to the character or quality of the article sold be positive, not a mere mat- ter of opinion or judgment, and the vendee understands it as a war- ranty, and he rehes upon it and is induced by it, the vendor is bound by the warranty, no matter whether he' intended it to be a warranty or not. He is responsible for the language he uses, and he cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee. Hawkins v. Pemberton, 51 IST. Y. 198 ; S. C, 10 Am. Rep. 595. See, also, Srmthers v. Bircher, 2 Mo. App. 499. If the con- ' tract is by parol, the question whether what passed between the parties amounted to a warranty or was merely a recommendation, or an ex- pression of an opinion, is a question of fact to he determined by the justice or the jury as a fact, unless the language used has a fixed or technical meaning. Mwrray v. Smith, 4 Daly, 277 ; Duffee v. Mason, 8 Cow. 26 ; Whitney v. Sutton, 10 Wend. 413 ; Blakeman v. Mackay, 1 Hilt. 266 ; Rogers v. Acherrmm, 22 Barb. 184 ; Cook v. Moseley, 13 Wend. 277 ; Van Wyck v. Allen, 6 Daly, 376 ; Vvncent v. Lelamd, 100 Mass. 432 ; Alla/n v. Lake, 18 Ad. & EI. [¥. S.] 565. But if the question is as to the effect of a written contract, the interpretation of the language used is within the province of the court. Sparks v, Mes- 78 SALE. Warranty. sich, 65 N. C. 440; Merriam v. Field, 24 "Wis. 640; Brown v. Bigelow, 10 Allen, 242. If a representation is made in the course of a negotiation for a sale, and the contract of sale is afterward reduced to writing and signed, and does not contain the representation, it is excluded from the contract and does not amount to a warranty. Kain v. Old, 2 Barn. & Ores. 627 ; Bcmdall v. Rhodes, 1 Curt. 0. C. 90. And seePendei'Y. Fobes, 1 Dev. & Bat. (N. C.) 280. And, as a general rule, parol evidence is inad- missible to add a warranty to a written contract of sale, or to extend a warranty therein expressed. Merriam v. Field, 24 "Wis. 640 ; Rice v. Forsyth, 41 Md. 389 ; Ranger v. Eea/rne, 37 Tex. 30. The oral con- tract of warranty may, however, be collected from the language and conduct of the parties at two or more interviews. Pinnsy v. Andrus, 41 Vt. 631. And the tones, looks, gestures, and the whole manner of the conversation may be weighed by the jury in connection with the other surrounding circumstances of the transaction. Horton v. Green, &Q 'S. 0. 596. An express warranty may likewise be made out from parol words and acts followed by certain writings. Thus, where a sale of merchai^dise, with warranty, is made verbally upon credit, the quantity not being then ascertained, and the seller forwards a writ- ten bill of sale thereof, stating quantity and price only, and subse- quently ships the goods to the buyer, the whole transaction becomes an executed contract of sale with warranty, as of the time when the goods are shipped. Foot v. Bentley, 44 N. Y. 166 ; S. C, 4 Am. Eep. 652. It has been held that a warranty is an incident only of consummated or completed sales, and has no place as a contract, having present vitality and force, in an executory agreement of sale. Osborn v. Qa/ntz, 60 N. T. 640. But it is also held that an express warranty may accom- pany the delivery of goods upon an executory contract and may be en- forced as such ; and where the warranty relates not to the external char- acter of the article sold, but to its intrinsic quality, not the subject of the direct and immediate observation of the senses, the party to whom it is given may rely upon it, and recover his damages without returning or offering to return the property purchased. Pa/rhs v. Morris Ax md Tool Co., 54 N. Y. 5S6 ; Pounce v. Bow, 57 id. 16 ; Boa/ v. Pool, 52 id. 416; S. 0., 11 Am. Eep. 719. A warranty may relate to the quality or condition of the article sold, or to its character. There is no distinction in principle between representations as to quality, condition or character, and what will amount to a warranty in one case will in the other. Eawkvns v. Pern- lerton, 51 N. Y. 198 ; Bounce v. Bow, 64 id. 411 ; White v. Miller, SALE. 79 Warranty. 71 id. 118; S. C, 27 Am. Eep. 13; Van Wyck v. Allen, 69 N. Y. 61. The distiiictions made in some of the older cases are no longer re- garded in this State, and it is now held that a sale of a chattel by a particular description is a warranty that the article sold is of the kind specified. lb. From the cases already cited, it is evident that a warranty may be oral or written, may accompany an executed or executory contract of sale, and may relate to the character, quality or condition of the article sold. It is also evident that whether the language used by the parties was or was not understood and relied upon as a warranty of the facts stated is in case of oral contracts a question of fact. A few cases will be given in illustration of these general rules. In one ease the vendor said that the horse sold was not lame, and that he would not be afraid to warrant him sound every way, as far as he knew. The horse subse- quently proved lame, but as to the fact whether it was so at the time of the sale, the evidence was contradictory. The justice gave judg- ment for the plaintifE, which was affirmed by the Supreme Court. Coolo V. Moseley, 13 Wend. 277. In another case, the vendor sold a colt, and during the negotiations, the vendee mentioned that the colt looked poor ; when the vendor said " there is nothing the matter with the colt ; it is well and sound, and will make a fine horse." The colt proved to have been diseased at the time. The court held that the words might amount to a warranty ; or be a matter of opinion merely, which was a question for the jury under all the circumstances. Duffee v. Mason, 8 Cow. 25, 26. In making an exchange of horses, the horse of the defendant being lame at the time of the exchange, and the plaintifE expressed his apprehensions as to the lameness, and the defendant said " he is a sound horse except the scratches, and when he gets well of the scratches, he will be well of the lameness ; " upon this the exchange took place. The horse was cured of the scratches, but the lameness continued, and would be permanent. The jury found that this was a warranty, and the judg- ment was afiirmed, on the ground that the finding of the jury was conclusive. Whitney v. Sutton, 10 Wend. 411. The question whether words used by a vendor upon a sale of a horse, in respect to his age, amounts to a warranty is a question of fact for the jury. Rogers v. Ackermam,, 22 Barb. 134. But it has been held that a representation that the animal is of any specified age is a warranty that he is no older. Surge v. Sbrdberg, 42 Ga. 89. Where a broker, on a sale of cotton by sample, assures tlie purchasers that the samplei 80 SALE. Warranty. are fairly and honestly drawn, and that they may depend upon the bales turning out, when opened, equal to the samples, this, if not conclusive evidence of an agreement to warrant, is enough to go to the jury, on that question. Brower v. Lewis, 19 Barb. 5Y4. A distinct assertion of the quality of a chattel, made by the owner during a negotiation for its sale, which it may be supposed was intended to cause the sale, and which was operative in causing it, is suificient to constitute a warranty, if the jury are satisfied that such was the intention. This was so held in an ac- tion for a breach of warranty of the soundness of oysters, where the plaintiff said he did not want the oysters if they were not good ; to which the defendant said, " I cut holes in the ice and took them out fresh." Blakeman v. Machay, 1 Hilt. 266. The plaintiff told the de- fendant that he would not exchange horses, unless the defendant would warrant his horse to be sound, to which the defendant answered, " he is a sound horse except the bunch on his leg." The plaintiff gave proof tending to show that the horse had the glanders. Verdict and judg- ment for the plaintiff, and held evidence of a warranty. Roberts v Morgan, 2 Cow. 438. As it regards the buyer's rights under a warranty of soundness in the sale of a horse, the rule is stated to be that one who buys a horse warranted sound must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either does diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which in its ordinary pro- gress will diminish the natural usefulness of the animal, or if the horse has either from disease or accident undergone any alteration of struct- ure, that either actually does at the time, or in its ordinary effects will, diminish the natural usefulness of the horse, such horse is unsound. Parke, B., in Coates v. Stevens, 2 M. & Rob. 157 ; Kiddell v. Bur- nard, 9 M. & W. 668. And see Roberts v. Jenhins, 21 N. H. 116 ; Sohurtz V. Kleinmeyer, 36 Iowa, 392 ; Holliday v. Morgan, 1 El. & El. 1. Every species of unsoundness, which causes damage to the pur- chaser, whether by total loss of the property, or by imposing a neces- sity to incur expenses to a partial extent, is a breach of a warranty of soundness. Shewalter v. Ford, 34 Miss. 41T. Where a horse was purchased to use in harness and the vendor said he was " all right," it was held to be a warranty of soundness and of his fitness for use in harness. Smith v. Justice, 13 "Wis. 600. And testimony that the plaintiff offered a certain price for a horse upon SALE. 81 Warranty. condition that he was sound, and received the price offered, was held to be suflScient to go to the jury as evidence of a warranty. Quintard V. Newton, 5 Eobt. Y2. So, where the jury found the words " I recom- mend this horse as having one good eye," to be a warranty, the court refused to disturb the verdict. Kinley v. Fitzpatrich, 5 Miss. 59. So, a bill of sale of " one horse, sound and kind," is a warranty of soundness ; and it is held that upon such warranty the vendor is liable if the horse proves to be incurably lame, although the purchaser saw the horse and knew that he was lame before the sale, and the vendor being spoken to on the subject, refused to give a warranty. Brown v. Bigelow, 10 Allen, 242. But see Wason v. Howe, 16 Yt. 525. So, an assertion by a vendor of cows that " they are all coming in in good season in the spring," the vendor knowing from the vendee's state- ments that this is important for the purposes for which the vendee is buying them, may be found by a jury to constitute a warranty. Richard- son V. Mason, 53 Barb. 601. But an answer by the seller, given in reply to a question as to the soundness of a horse, that "he thought he was" sound, does not amount to a warranty. lAndsay v. Davis, 30 Mo. 406. Upon the sale of goods which were fancy articles, it was falsely stated by the agent of the owner that they were French goods, new, and in good order, and just imported from France; it was held that such representations were not mere puffing ones, nor statements as to the value or condition of the goods which a mere inspection could de- tect ; but that the averments were material, as the goods were a fancy article depending in a great degree for their value iipon the fact that they were French, just imported, and new ; and, consequently, fashion- able and salable. Holman v. Dord, 12 Barb. 336. In an action on the case on a false warranty, it 'is enough to aver and to prove that the warranty was false, and that the purchaser was deceived by it. lb. Where the language employed by the vendor is the mere expression of his opinion in relation to the article sold, and it was so understood by both parties at the time, there wiU be no warranty. Where personal property is purchased upon a misrepresentation of its value, but such representation is made in good faith, and in an honest belief of its truth, the purchaser must pay a note given by him for its price, he having retained the property bought, although it may have been worth- less at the time of the purchase. To constitute a defense to an action to recover the contract-price of property sold, it is necessai-y to prove more than that the vendor expressed an erroneous opinion of its value, in which the purchaser chose to confide, instead of exercising his own 11 82 SALE. Warranty. judgment exclusively, or consulting others more competent to judge than himself, where the opinion was honestly expressed, and no deceit was practiced to put him off his guard. United States Trust Co. v. Harris, 2 Bosw. 76; McCrachan v. Cfiolwell, 8 N. Y. 133. A. dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a repre- sentation that it is the thing described ; and this constitutes a warranty. White V. Miller, 71 N. Y. 118 ; S. C, 27 Am. Rep. 13. Thus, if dealers in garden seed inform a firm of market gardeners that they have raised and have for sale a quantity of " large Bristol cabbage seed " and solicit orders therefor, and on receiving an order minute it on a catalogue opposite the name of the variety ordered, and after- ward deliver seed marked and billed as " large Bristol cabbage," they will be held to have warranted that the seed was of that variety. lb. So when the defendants sold to the plaintiff a parcel of turnip seed and gave them a sold note in which it was described as " Skirving's Swedes," the court held that the statement in the sold note was not a mere representation or matter of description, but that it amounted to a warranty that the seed was Skirving's Swedes. Allan v. Lahe, 18 Ad. & El. N. E. 561. And it is now generally held that where a bill of parcels is given upon a sale of goods, describing the goods or designating them by a name well understood, such bill is to be con- sidered as a warranty that the goods sold are what they are thus de- scribed or designated to be. See WhiteY. Miller, 71 E". Y. 118 ; Hen- shaw V. Robins, 9 Mete. 83 ; Bradford v. ManVy, 13 Mass. 144 ; BoneTcins v. Sevan, 3 Serg. & E. 37 ; Bridge v. Main, 1 Starkie's K P. 505. Where an article having the appearance of blue vitriol, and not capable of being distinguished from that article by mere inspection, is sold at public auction as blue vitriol, the person purchasing it, relying on the statement of the auctioneer as to its character, may insist that the representation that it was blue vitriol is a warranty. Ha/wkins v. Pem- herton, 61 N. Y. 198 ; S. C, 10 Am. Rep. 596. If, at the time of sale,^ the vendor represents the goods sold to be an article known in the market by a particular name, and the vendee purchases, relying upon the statements, without having an opportunity to examine the goods to ascertain whether they agree with the representations, or if he does examine them, but an examination will not enable him to discover whether they agree with the representations, a warranty is implied that the goods are of the kind, character and description represented. Vam, Wych v. Allen, 69 N. Y. 61 ; S. C, 25 Am. Rep. 136^ SALE. 83 Warranty. The general rule is, that a warranty, to be binding, must be made at the time of the sale. Shull v. Ostrander, 63 Barb. 130. A warranty made after that time would be without consideration, and would be void unless some new consideration is given to support it. Summers v. Vaughn, 35 Ind. 323 ; S. C, 9 Am. Eep. Til; Congor V. Chamherlain, 14 Wis. 258. But in relation to representations or offers of warranty which have been made during negotiations that occurred some time before the actual sale, the rule is not settled uniformly. If negotiations are entered into, and representations are made or a warranty offered, and the parties break off all further negotiations upon the subject, there will not, by the English law, be any warranty, if a sale subsequently takes place without any further representations of warranty. 1 Com. Dig. 359, Deceit A. 11 ; Hopkins v. Tanquary, 15 0. B. 130 ; 2 Car. & Kir. N. P. Q4o&. In one case in this State, however, it appeared that a vendor offered to warrant a horse sound, during a negotiation, but the sale did not take place at the time, though a few days afterward the vendee purchased the horse. There was no evidence of any warranty at the time of the sale ; but it was held that a verdict in favor of the plaintiff, who sued for a breach of the warranty, was conclusive. Wil- moi v. Surd, 11 Wend. 584. In such a case the jury were perhaps authorized to infer that, in the absence of any further negotiations be- tween the parties, they intended that the previous negotiations should be considered a part of the transaction at the time of the sale, and if that were so, a clear warranty was made out. If, however, the jury had found the other way, their verdict would have been equally conclusive. It is now settled law in this State that representations made by one offering to sell property to another negotiating for its purchase are a part of the res gestce, and binding upon the person making them, although a bargain is not concluded at the time, if afterward, as a con tinuance of the negotiation, such other person becomes a purchaser. Ahern v. Ooodspeed, 72 N. Y. 108. The general rule is, that a warranty does not extend to those defects which are plainly open and visible at the time of the sale. Day v. Pool, 52 N. Y. 416 ; S. C, 11 Am. Eep. 719 ; Bennett v. Bucham, 76 K Y. 386. And where a negro was sold with a warranty that he was in good health, and in all respects sound, and the bill of sale and warranty were in writing, it was held that the vendor might show, in an action for a breach of warranty, that the, vendor, at the time of the sale, pointed out to the vendee the defect in question, which was, that the left arm was thin and crooked and that it was plainly visible, and a verdict in favor 84 SALE. Warranty. of the defendant was sustained. Schuyler v. E%os8, 2 Gaines, 202. The reason why a warranty is not construed to bind the vendor to answer for visible or known defects is, that both parties are supposed to intend that such defects shall be excluded from the warranty. But a warranty may be made by express terms to include visible or known defects as well as any others. And if the vendor expressly warrants that a present lameness of a horse will be cured in a given time, or, that it will not injure him, the warranty is valid, and an action will lie for a breach of it. To prevent a recovery for a breach of warranty upon the sale of a horse, on the ground that the defects existed, and were visible at the time of the sale, it must be shown that the defects were such as could be discerned by an ordinary observer examining the property with a view of trading for it or of purchasing it, and were not such as to re- quire skiU to detect them. Birdseye v. Frost, 34 Barb. 367 ; Chatfield V. Frost, 3 Sup. Ct. (T. & 0.) 357 ; Shewalter v. Ford, 34 Miss. 417. If a horse warranted perfect is without an eye or a tail, this gives no cause of action, and the general rule applies that a warranty does not extend to patent defects. But the rule does not extend to a case where the purchaser was aware of the existence of disease, yet its precise character not being obvious to the senses, its extent was uncertain and unknown. Nor does the rule apply where the vendor leads the purchaser to .believe that the apparent defects are in reality not a cause of unsoundness. Chatfield v. Frost, 3 Sup. Ct. (T. & 0.) 357. The acts and declarations of a vendor may be such at the time of sale that he will be estopped from subsequently insisting upon the de- fense, that the defects in the property were visible at the time of the Where, upon the sale of a quantity of wool, the only poi-tion of the wool visible was that which protruded from the corners of the blankets in which it was tied up, and where the purchaser, at the time of the sale, remarked that the wool seemed damp, to which the vendor replied that it was not damp, but was dry and in good order, it was held that the ven- dor's assertion was a warranty that the wool was not damp, and that it was in good order, and that it covered any defect which related to the condition of the wool. Wilbur v. Gartright, 44 Barb. 536. In such a ease the purchaser has a right to rely upon the vendor's statement, and he need not examine the article further, and if the statement is untrue, the purchaser may recover such damages as he has sustained by reason of the defect. lb. ; Gla/rh v. Ranhin, 46 Barb. 570. But a SALE. 85 Warranty, mere praise of personal property, such as wool, or a horse, or other chattel, indulged in by the owner when ofEering it for sale, does not amount to an implied warranty of its quality or condition, if the buyer has an opportunity to examine it and fails to do so, and no artifice is used by the seller to prevent him from making an examina- tion. Byrne v. Jansen, 50 Cal. 624. And see Rioha/rdson v. Bouck, 42 Iowa, 185. A warranty may exist in the case of an executory contract, when the defect in the property is incapable of discovery at the time of delivery. In such case the purchaser may retain the property and sue upon the warranty ; but if the defect is open, visible and notorious at the time of delivery, the purchaser is bound to reject the articles and refuse to re- ceive them as a compliance with the contract, or he will waive his right to damages. Parks v. Morris Ax Co., 54 N. T. 586 ; Brown v. Burhans, 4 Hun, 227. See Phelps v. Quinn, 1 Bush (Ky.), 375 ; McClung v. Kelley, 21 Iowa, 508 ; Bounce v. Bow,.?>^ N. Y. 16. "Where upon the trial of an action in justice's court for the breach of a warranty in the sale of a horse, the question whether the defects complained of were visible at the time of the sale or trade so as to take them out of the operation of the warranty is before the justice or a jury and is passed upon by either of them, such finding is conclusive. Birdseye v. Frost, 34 Barb. 367. The question whether the defects were visible, and therefore not reached by the warranty, is not a ques- tion of law merely ; it has been sometimes called a mixed question of law and fact. lb. Tlie question, however, is really one of fact, from which the legal conclusion follows when the facts are settled. If the defects are not visible without skill, etc., then a general warranty in- cludes them ; if they are visible to one not skilled, then the warranty does not extend to such defects. An agent who is authorized to sell an article is presumed to possess the power of warranting its quality and condition, unless the contrary appears ; and this is so whether the agency is general or special. Nel- son V. Cowing, 6 Hill, 336 ; Beebe v. Robert, 12 Wend. 413 ; Ahem v. Ooodsjpeed, 72 N. Y. 108, Vol. I, 483. But the representations of the agent about the subject-matter of the contract must be made during and in the course of the negotiation, while the agent is actually representing his principal therein, or they will have no more effect than if made by a mere stranger. Ahem v. Ooodspeed, 72 N. Y. 108. See White v. MilUr, 71 id. 118. To sustain an action upon a warranty, it is not necessary that all the representations made by the defendant should be false, or that all should 86 SALE. Warranty. be actionable. If any part of the representations are actionable, it will suffice. Sweet v. Bradley, 24 Barb. 549. Where a partner, upon sell- ing promissory notes belonging to the firm and which were sold for their benefit, stated to the purchaser that he would warrant them to be good notes, and that they would be paid ; that they were given for a valuable consideration, and were' regular business paper ; that the makers were responsible, and worth $40,000 or $50,000, and that the indorser was worth $25,000 ; which representations were false and the makers insolvent, — it was held, that the firm was bound by the representations made by the partner on selling the notes, and that an action would lie against all the members of the firm, upon the warranty, lb. ;Yol. I, 541. A positive affirmation of a fact is a sufficient warranty. And an affirmation in regard to an existing fact, which is distinctly and positively made, in negotiations for a trade or sale, should be regarded as a contract, and enforced as a warranty. lb. ; Oarley v. Wilkins, 6 Barb. 557 ; Whitney v. Sutton, 10 "Wend. 411 ; Sogers v. Acleermam,, 22 Barb. 134 ; Chapman v. Murch, 19 Johns. 290. Where a warranty of a thing has reference to a purpose for which it is to be used, the rule of indemnity, on a breach of the warranty, must include the damages which naturally followed, and might be expected to follow, its "vdolation, when the thing warranted is put to the intended and understood use ; provided such damages are in their nature certain, and it is also certain that they proceeded from the breach of the war- ranty. Passenger v. Thorium, 35 Barb. 17 ; S. C. affirmed, 34 N. T. 634. The plaintiff, who was a market gardener, applied to the defendant for seed of a particular kind of cabbage, the Bristol. The defendant being acquainted with the plaintiff's business, and the purpose for which the seed was wanted, produced some seed, and showed the vendee a sample of the cabbage which the seed would produce ; and the vendor declared that he knew the seed was Bristol cabbage seed and he warvanted it as such. The seed was purchased and planted, and it proved not to be Bristol cabbage seed, and the crop produced was of but little value ; it was held that the vendor was liable for his breach of warranty, and that the measure of damages was such loss as the plaintiff could prove lie had sustained because the crop was not what the warranty required it should be. lb. This would be the differ- ence in value between the crop raised from the defective seed and a crop of Bristol cabbages such as would have ordinarily been produced that year. White v. Miller, 71 N. T. 118 ; S. C, 27 Am. Eep. 13 ; S. 0. again, 78 N. Y. 393. Gains prevented as well as losses sustained SALE. 87 Warranty. may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach. Messmore v. N. T. Shot cmd Lead Co., 40 N. Y.-422. But mere contingent or speculative gains or losses, with respect to which no means exist of ascertaining with any certainty whether they would have resulted or not, are rejected, and the jury will not be allowed to consider them. lb. ; White v. Miller, Tl N. T. 118 ; S. C, 27 Am. Kep. 13. Where material is sold, to be manufactured into articles of merchan- dise, with warranty of its quality for the purpose, upon a breach, the difference in value between the articles made of the defective material and similar articles made of material equal to the warranty is a proper measure of damages. And the vendee is not confined to the market-prices in ascertaining that difference. Parks v. Morris Ax and Tool Go., 60 Barb. 140 ; S. C, 4Lans. 103 ; 41 How. 18 ; S. C. affirmed, 54]Sr. Y. 386. So, upon a sale of hop roots, the vendee at the time of sale, and with knowledge that the buyer purchased the same for cultivation, warranted them to be female or productive roots, when in fact a large number of them were male or unproductive roots. The crop having proved a failure, the buyer brought his action to recover damages for a breach of the warranty, and he was held to be entitled to recover all the damages sustained by him, including the difference between the value of the crop actually raised and of that of the crop that would have been raised had all the roots been female or productive ones. Schutt v. Baher, 9 Hun, 556. So, where the plaintiff, a farmer, purchased seed from the defendants which they warranted was cabbage seed of a particular variety and growth, with the intention of planting it and raising a crop of cabbages, and the defendants knew with what intention he made the purchase, — it was held that the measure of damages for a breach of the warranty, where there was no crop at all produced, was the fair value of the crop which would under ordinary circumstances have been raised if the seed had been what it was represented to be, taking into consideration all the hazard arising from the elements or from natural causes which might have prevented a full crop, and deducting what it would cost to harvest the crop and prepare it for market. Van Wych V. AlUn, 6 Daly, 876 ; S. C. affirmed, 69 N. Y. 61 ; S. C, 25 Am. Kep. 136. And see Randall v. Baper, El. Bl. & El. 82 ; Brooks v. Mc- Donnell, 41 Wis. 139. But where property is sold with a warranty, to be applied to a particu- lar use, if it be of such a nature that its defects can be readily ascertained, and in fact are ascertained, and yet the purchaser persists in using it, 88 SALE. Warranty. whereby losses and expenses are incurred, he does so in his own wrong, and cannot recover the amount of such expenses and losses as damages for a breach of the warranty. Thus the defendants sold to the plaintiffs a quantity of steel, warranting it to be first-class steel with knowledge that it was to be used to make oU-driUs. The steel proved unsuitable for that purpose, and the defects in it were discovered as soon as the plaintiffs began to use it, — and it was held that they had no right after that to go on making drills in the expectation of recovering of the de- fendants, upon the warranty, the expenses or loss of profits. Draper v. Sweet, tract of warranty in such cases is, that the vendor has a perfect title to the goods sold ; that the same are unincumbered, and that the pur- chaser will acquire, by the purchase, a title free and clear, and shall enjoy the possession without disturbance by means of any thing done or suf- fered by the vendor. lb. It is, therefore, immaterial whether the pur- chaser, at the time of his purchase, knew of a previous levy upon the goods by the sheriff. He has a right to rely upon the implied war- ranty ; and if he is evicted by a sale of the goods under a previous exe- cution, he has a right of action against the vendor. lb. One who transfers a chose in action impliedly warrants, at the least, that there is no legal defense to its collection arising out of his own connection with its origin. Delama/re Bank v. Jarvis, 20 N. T. 226. The party accepting the transfer is at liberty to act upon the implied assertion of the validity of the paper, and to bring an action for its col- lection. When defeated, he is entitled to recover from the assignor the costs incurred in such action. lb. The holder of a note, which had a usurious inception in his hands, transferred it without indorsement and without notice of the facts to the plaintiff, and the latter brought an action upon the note, to which the defense of usury was successfully interposed. The defendant had notice of the plea, and was called upon to assume the conduct of the action, but he declined to do so, though deny- ing that there was any legal defense ; it was held that the plaintiff was entitled to recover the amount of the note, with interest, besides the costs of the action in the suit in which the defense of usury was inter- posed. Va.;Fake v. Smith, 7 Abb. (N. S.) 106. And see Hoss v. Terry, 63 N. Y. 613. The warranty implied on the sale of a note tainted with usury ex- tends only to the title and genuineness of the paper, where the vendor transfers it without indorsement and without knowledge of the defect. In order to establish an implied warranty as to the validity of the note, it must be shown that the vendor transferred the note with knowledge of the usury. Littauer v. Goldman, 72 N. Y. 506. In the cases in which the vendor has been held to warrant the validity of usurious paper, it wiU be found that the vendor had knowledge of the usury acquired at the time the paper was made, or before its transfer. In the most of them -the vendor was a party to the illegal transaction. In a general sale of personal property, where there is no express warranty, and the article is not to be manufactured or raised by the vendor, nor is the contract an executory one to furnish a particular ar- ticle, the general rule is, that there is no implied warranty of the kind SALE. 101 Warranty. or quality of the article sold. Ante, 88. And see Ga/rley v. Wilkins, 6 Barb. 558; Biefendorff y. Gage, 1 id. 18. Where goods are sold in close packages, and there is a mutual mis- take as to the qvMnUty, the vendee is entitled to recover from the ven- dor for any deficiency, at the rate at which they were purchased. But he cannot recover remote damages resulting from the quantity being so deficient. Hargous v. Ahlon, 3 Denio, 406. Therefore, where cloth was purchased in New York, for the Mexican market, the vendor knowing their destination, and the vendee shipped them to a Mexican port where they were entered at the custom-house, according to the invoice by which they were purchased, which by a mutual mistake represented the number of yards to be considerably greater than the actual quantity, and the vendee was by this means obliged to pay du- ties and commissions on the quantity deficient, it was held that the vendee could not recover this excess from the vendor. lb. ; S. C, 5* Hill, 4Y2. Where the vendee sends an order for a particular quantity of goods, he will not be bound to accept those sent, if they differ in number or quantity from that specified in the order. Corning v. Colt, 5 Wend. 253 ; Bruce v. Pearson, 3 Johns. 534 ; Downer v. Thompson, 2 Hill, 137 ; S. 0., 6 id. 208. When there is an express contract as to the quantity which is sold, the vendor has no right to send any more or any less than the terms of the contract authorize. And where there is no express contract, but the vendee sends an order for a particular quantity of goods which is specified in the order, the vendor is bound to send the quantity specified, and if he sends more {DowTier v. TTiomp- son, 6 Hill, 208); or less {Bruce v. Pearson, 3 Johns. 534), the vendee will not be bound to accept them ; and if the goods are lost before they are accepted by the vendee, the loss will not fall on the vendor. Ib„ The vendee may accept the quantity sent, and if he does so, he will be liable to pay for them. Corning v. Colt, 5 Wend. 253. Want of title in the vendor of personal property is no defense to an action brought for the recovery of the purchase-money, where there has been no recovery by the real owner against the purchaser, iinless he has either returned the property to the vendor, has had his possession interfered with, or has paid the real owner for the property. MoGiffin V. Baird, 62 N. Y. 329 ; Case v. Hall, 24 Wend. 102. And see Dela- wa/re Bank v. Jarvis, 20 N. Y. 230. The effect of the implied war- ranty of title on the sale of personal property is to guaranty the pur- chaser against eviction or injury from other parties. If the prop- erty is taken from the purchaser by title paramount, or if the pur- 102 SALE. Warranty. chaser is compelled to pay the true owner the value of the prop- erty, in either case it is a defense to an action for the purchase-price. So if the vendee returns the property on discovery of the defect of title, he may have an action upon the irapHed warranty, and of course a defense to an action for the purchase-price, in which he will have the burden of proving title in the third person ; and upon the same prin- ciple, if for any reason it is impracticable or even undesirable to return the property, perhaps the vendee may pay the claimant its value with- out legal proceedings, and avail himself of it as a defense upon assum- ing the burden of establishing the validity of the claim. McGiffin v. Baird, 62 N. Y. 329. This is the extreme extent of the rule of pro- tection recognized in any adjudged case. lb. Where there has been a breach of an implied warranty of title to a chattel, the vendee is not bound to await legal action against him. If he is satisfied of the in- sufficiency of his vendor's title, and that the true owner would recover the property in an action, he may surrender it, and recover its \alue in an action against his vendor, by affirmatively establishing that tlie ven- dor was without title ; or he may await the prosecution of an action. Burt V. Dewey, 40 N. Y. 283 ; Sweetman v. Prince, 26 id. 224. Where a suit is brought by the true owner against the vendee of per- sonal property, and the vendor has notice of the action and is requested to defend it, which he neglects or refuses to do, a recovery by such owner against the vendee will be a conclusive bar to a right of action by the vendor to recover the purchase-price ; or it will be conclusive evidence in favor of the vendee to recover back the purchase-money from the vendor. Barney v. Dewey, 13 Johns. 224; Blasdale v. Bahcock, 1 id. 517; Burt v. Dewey, ^Q JN". Y. 283 ; Sweetman v. Prince, 26 id. 224. And see Bordewell v. Colie, 1 Lans. 141 ; S. C. affirmed, 45 E". Y. 494 ; Dryden v. Kellogg, 2 Mo. 87. A vendor of personal property, who has notice of a suit against his vendee in respect to the property sold, is as much bound to indemnify his vendee as if he had entered into an express covenant for tliat pur- pose. Brewster v. Countryman, 12 Wend. 446. A purchaser who defends a suit in a justice's court against a claim made upon tlie prop- erty sold to him is not bound to carry up the cause by appeal, if the judgment passes against him. lb. Where the vendor is a witness in a suit between a third person and the vendee, in relation to the title to the property, that is sufficient notice to such vendor to defend the action. Brewster v. GoxmtTyman, 12 Wend. 446 ; Barney v. Dewey, 13 Johns. 224 ; Blasdale v. Bahcock, 1 id. 517. Where the services of a negro (whose services it was supposed might SALE. 103 Warranty. be disposed of) were sold for a term of five years, and he left the em- ployment of his master, asserting his freedom, and it appeared that he was in fact free at the time of the sale, it was held, in an action by the vendor against the vendee to recover the sum agreed to be paid for his services, that the consideration of the promise was illegal ; and in anal- ogy to the rule of law applicable to the sale of chattels, that the asser- tion of freedom in this case was equivalent to the legal eviction of a| vendee, on the claim of the true owner. Lvoingston v. Bain, 10 Wend. 384. A purchaser with knowledge that the goods are claimed by a third person, who voluntarily pays the price of the goods to such third per- son, cannot afterward, in a suit brought by the vendor against him for the price, set up as a defense the want of title in the vendor, and that he has paid the price to the true owner. Yihhard v. Johnson, 19 Johns. 77. Where goods were sold by an auctioneer, without any warranty or misrepresentation, and the same turned out to be spurious, and the labels upon them counterfeit, it was held that it was no defense to an action upon a note given by the purchasers for the purchase-price, there being no proof that the auctioneer knew the fact of the spurious nature of the goods, or that he had any better means of judging their genuine- ness than the buyer possessed. Rudderow v. Huntington, 3 Sandf. 252. The statute of 1845, making it a penal offense to vend merchan- , disc having forged or counterfeited trade-marks, knowing them to be such, etc., without disclosing the fact to the purchaser, would prevent the vendor from recovering the price of the goods sold, if he was aware of their spuriousness. lb. But it must appear that the vendor hnew the marks to be forged or counterfeited, or that there was a war- ranty of the genuineness of the goods, or some misrepresentation on his part, to prevent a recovery. lb. The original fraud in the counter- feiting of trade-marks does not attach itself to the goods in the hands of an owner ignorant of the offense, and fasten upon him the penalties of a wrong of which he is innocent, lb. Where a horse is sold by a written bill of sale, containing a warranty as to soundness, the written merges all cotemporaneous parol agreements, such as an agreement that the seller will take back the horse and refund the money within a speci- fied time, and the purchaser is limited, in his recovery for any defects warranted, to such damages as arise from a breach of the written war- ranty. Fales V. MoKeon, 2 Hilt. 53. Where a party on the sale of an article makes representations amounting to a warranty, and the sale is consummated by a written transfer without a clause of warranty in-. 104 SALE. Stoppage in transitu. serted, the vendee, in an action for a breach of such alleged warranty, will not be permitted to show the representations and assertions which were made previous to the execution of the instrument of transfer, the presumption of law being that the written contains the whole contract. Van Ostrand v. Heed, 1 Wend. 424 ; Waters Patent Heater Co. v. Tompkins, 14 Hun, 219. So, where the contract is required to be in writing, by the statute of frauds, any warranty which is relied upon must be stated in the memo- randum, and parol evidence of a warranty not contained in the writing is not admissible. Peltier v. Collins, 3 "Wend. 459 ; Mumford v. Mg- Pherson, 1 Johns. 414 ; Wilson v. Marsh, id. 503. But where, upon the sale and purchase of a horse, a bill of sale was executed by the vendor, specifying the price and acknowledgiug its receipt, it was held that the instrument was to be construed as a mere receipt for the pur- chase-money, and not as a contract whose written terms could not be varied by parol ; and that parol evidence of a verbal warranty was, therefore, admissible. Filhvns v. Whylam.d, 24 Barb. 379 ; S. C, 24 N. Y. 338. And where a written warranty of property was given, it was held that parol evidence was admissible to show that the vendor informed the vendee of certain visible defects, and pointed them out to him at the time of the sale. Schuyler v. Russ, 2 Oaines, 20M. So, if a sale of merchandise of more than $50 in value is made orally on credit vnth a warranty, the quantity not then being as- certained, the fact that the vendor afterward forwards to the purchaser a bill of sale, which is silent as to the warranty, will not render that part of the contract inoperative. See Foot v. Bentley, 44 J!J. Y. 166 ^ S. C, 4 Am. Eep. 652. And generally, where a contract is first con- cluded by parol, and a paper is afterward drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence is adndssible to show the actual terms of the sale, and that there was a warranty, though it does not appear in the memoran- dum or receipt. Cassidy v. Begoden, 6 Jones & Sp. 180 ; Koop v. Sandy, 41 Barb. 454. § 15. Stoppage in transitu. When a vendor has sold goods on credit, and he learns that the vendee is insolvent, such vendor may stop such goods in their transit, and resume their possession at any time while they are in the hands of a carrier or middleman, and before- they reach the possession of the vendee. The origin of this right, and the principles upon which it is founded, Beem to this day to be undetermined, although the right itself has been recognized for nearly two hundred years. In courts of equity the SALE. 105 Stoppage in transitu. right has been supposed to be based upon some principle of common law, while in courts of law it has been called a principle of equity which the common law has adopted. In some cases the theory has been advanced that the exercise of the right is to be regarded as the rescission of the sale ; and in others that it is simply an assertion of the right to enforce a Hen for the purchase-price. Which theory will be ultimately adopted in this State is uncertain, but the prevailing current of American decisions favors the theory of a lien. See Bahcoch v. Bon- neU, 80 IST. T. 244; Rowley v. Bigelow, 12 Pick. SOY; Stanton v. Eag&r, 16 id. 46Y-475 ; Arnold v. Delcmo, 4 Cush. 33, 39 ; Ifew- hall V. Vargas, 13 Me. 93 ; S. C, 15 id. 314; Rogers v. Thomas, 20 Conn. 53 ; Ellis v. James, 5 Ohio, 88-98 ; Harris v. Pratt, 17 N. Y. 263. The question is not one of mere speculative interest, as the rights and obligations of the parties under the different theories would be es- sentially dissimilar. If the stoppage i/n, transitu is in effect a rescission of the contract, the parties are thereby restored to their original rights and may treat the contract as if it had never existed. See ante, 62. If, on the contrary, the right is deemed a mere assertion of the vendor's lien, the vendor must hold the property reclaimed until the expiration of the credit, and be able to deliver it on payment of the price, the purchaser having the right to pay the price at the time stipulated, and take the property, and the vendor having the right, on default of pay- ment at the time stipulated, to sell the property on notice to the ven- dee. See Bahoook v. Bonnell, 80 N. Y. 244. And it has been held in this State that when the seller retakes the property in the exercise of the right of stoppage, he is not reinvested vrith the title, but simply placed in the actual possession of the goods, holding them as security for the purchase-price, under a kind of equitable lien adopted by the law for the purpose of substantial justice. Cross v. 0\DonneU, 44 N. Y. 661 ; S. C, 4 Am. Kep. 721. This right exists between vendor and Tendee only, or between parties who stand substantially in that relation. And, therefore, a mere surety of the ve^idee, where he is not primarily liable for the purchase-price, cannot stop the goods in transitu to secure himself, although the vendee is insolvent. Siffken v. Wray, 6 East, 371. The right is not, however, confined strictly to the seller. Muller V. Fondir, 55 K Y. 325 ; S. C, 14 Am. Eep. 259. The right may be exercised by one who pays the price of goods for the vendee and takes from him an assignment of the bill of lading as security for his advances. Gossler v. Sohepler, 5 Daly, 476. And the right has been sustained in behalf of a mere factor or purchasing agent, not only as to his advances but also as to his commissions. Feise v. Wray, 3 East, 93 ; Newhall v. Vargas, 13 Me. 103. 14 106 SALE. Stoppage in transitu. Wiere the right of stoppage in transitu is exercised in behalf of the vendor, by one who has at no time had any authority to act for him, a subsequent ratification of the vendor will be too late if made after the transit is ended {Bird v. Brown, 4 Exch. 786); though it would be otherwise if made before the transit is ended, or before the delivery to the vendee. Whitehead v. Anderson, 9 Mees. & Wels, 518; Durgy Cement and JJmler Co. v. CBrien, 123 Mass. 12. The right to stop in transitu can only be exercised against an insol- vent or bankrupt buyer, or guasi buyer. But the privilege, unless waived by the vendor, ought properly to extend to cases of insolvency, whether existing at the time of sale or occurring at any time before the actual delivery of the goods. Benedict v. Schaettler, 12 Ohio St. 615 ; Reynolds v. Boston, etc., R. R. Co., 43 IST. H. 580 ; O'Brien v. N orris, 16 Md. 122 ; Blum v. Maries, 21 La. Ann. 268. But it was held in Connecticut that the buyer's failure must, in point of fact, have been later than the sale. Rogers v. Thomas, 20 Conn. 54. By the word " insolvency " is meant a general inability to pay one's debts. Parher v. Oossage, 2 Cr. M. & E. 617 ; Durgy Co. v. O'Brien, 123 Mass. 12. And if this fact exist, no matter how proved, if sufficiently and satisfactorily proved, the law requires no more. lb.; The Queen V. Sadlers' Co., 10 H. L. Gas. 404 ; Hays v. Mouilh, 14 Penn. St. 48. One of the chief difficulties which arises in practice is to determine when the right to stop the goods ceases. If they have reached the actual possession of the vendee before the right is exercised, it wiU then be too late for the vendor to reclaim them. If a vendor delivers to his vendee a bill of parcels for goods lying in a public warehoiise, together with an order for their dehvery, and the vendee goes to the warehouse, produces the order, has the goods marked with his initials, pays the storage upon them, and then returns them into the warehouse, the vendor's right of stoppage in transits is gone. Hollingsworth v. Napier, 3 Gaines, 182. The vendor's right of stoppage in transitu does not cease on the arrival of the goods at the port of delivery, until they have come to the vendee's actual possession, or his constructive possession by a deliv- ery to his agent. Mottram v. JSeyer, 5 Denio, 629 ; S. C, 1 id. 483. A vendor's right is not terminated by the goods coming to the hands of a shipping agent appointed by the vendee, though they are deliv- ered, to him to await further directions, in respect to the time and mode of shipment to the vendee, at an ultimate destination previously fixed, and not to be affected by such subsequent directions. The tran- sit continues until the goods come to the possession of the vendee or SALE. 107 Stoppage in transitu. of some agent authorized to act in respect to the disposition of them otherwise than by forwarding them to the vendee. Harris v. Pratt, 6 Duer, 606 ; S. C, 17 N. Y. 249. And the right is only extinguished by the actual and complete delivery of the goods consigned to the ven- dee or to some agent of the vendee for him. Mohr v. Boston, etc., R. R. Qo., 106 Mass. 67 ; Aguirre v. Farmelee, 22 Conn. 473 ; Gala- han V. Bahcoch, 21 Ohio St. 281 ; S. C, 8 Am. Eep. 63. The deliv- ery of the goods by the vendor to a carrier, by the order of the agent of the vendee, for the purpose of b^ng forwarded, is not such a con- structive delivery to the vendee as to put an end to the right. lb. And after the arrival of the goods at the place of destination, and while in the hands of the carrier or wharfinger or warehouseman, for the mere purpose of delivery to the vendee, the vendor may resume the possession. James v. Oriffin, 2 M. & W. 633 ; Berndtson v. 8t/ramg, L. R, 4 Eq. 481 ; Ex parte Watson., L. E., 5 Ch. Div. 35; S. C, 21 Eng. Eep. 764. So, goods in public store awaiting the comple- tion of their entry at the custom-house by the payment of the duties, are to be deemed still in transitu. Western Transp. Co. v. HawUy, 1 Daly, 327; Donath v. Broomhead, 7 Penn. St. 301. But it is held that the right ceases when the goods are bonded and deposited in a warehouse in the joint custody of the purchaser or consignee and the custom-house authorities, under the present warehouse system. Fras- chieris v. Henriques, 6 Abb. (jS". S.) 251. And see ParTcer v. Byrnes, 1 Low. Dec. 539 ; Zewis v. Mason, 36 Up. Can. (Q. B.) 590. But see Wilds v. Smith, 41 id. 136. An assignee in trust for creditors of the insolvent vendee is not a purchaser for value, and he takes the goods subject to any right of stoppage in transitu which may exist against his assignor. Harris v. Pratt, 17 N. Y. 249 ; S. C, 6 Duer, 606. Two partners carried on a business at New York, and at Nottingham in England, under different firms, one partner residing at each of those places. They bought goods of the plaintiffs in the name of the English firm, informing them that such goods were purchased for the New York house, and directing them to be sent to E. S. & Co. , of Liv- erpool, to await further instructions in respect to shipment. They were accordingly sent to E. S. & Co., and by them, in accordance with the directions of the English firm given shortly afterward, shipped to the New York firm. Before their arrival at New York, the vendees became insolvent and made an assignment of all their assets to the de- fendants in trust for the payment of the debts of the firm. The plaint- iffs, while the goods were yet on shipboard, and on the same day such 108 WALE. Stoppage in transitu. assignment was made, asserted their right of stoppage -m transitu, and notified the defendants thereof, who, before receiving such notice, had made an entry of the goods at the custom -house ; and it was held that the transit had not ended, and that the plaintiffs had a right to stop the goods. lb. The right continues whilst the goods remain in the hands of a warehouseman, although at the place where they were directed to be sent, if that is an intermediate point between the place of sale and the ultimate destination of the goods. Covell v. Hitchcock, 23 Wend. 611. Where a party, residing at a distance from his correspondent, ordered a quantity of merchandise, directing it to be forwarded to an interme- diate place, and the goods were accordingly forwarded, and after their arrival at the intermediate place, were delivered to a common carrier employed by the purchaser, but before reaching his residence, the pos- session of the goods was resumed by the vendor on the ground of the in- solvency of the purchaser ; it was held that the goods not having ar- rived at the place of their final destination, the transitusvf &suot ended, and the vendor had a right to stop and detain them until their price was paid ; and that he might do so, notwithstanding that a portion of the goods ordered had been actually received by the pm-chaser at his residence, previous to the exercise of the right of stoppage as to the residue. Buckley v. Furniss, 17 Wend. 504. But see Stevens y. Wheeler, 27 Barb. 658, in which it was said that a part delivery terminated the right. It has been held that where goods are sent by a carrier, and the vendee gives an order to a third party to get the goods, that if such person gets the goods from the cai-rier, this will be a good delivery, and will prevent the vendor from stopping the goods, although the possession was obtained before the goods had reached the termination of the route by which they were to be sent. Stevens v. Wheeler, 27 Barb. 658. The right of stoppage m transitu may be defeated by a sale to a third person and an indorsement of the bill of lading, in good faith, and for a valuable consideration ; and this is the only legal mode of de- feating the right. Winslow v. Norton, 29 Me. 421 ; Walter v. Eoss, 2 Wash. (C. C.) 287 ; Audenreid v. Randall, 3 Clif. (C. C.) 99 ; Mor- ris V. Shryook, 50 Miss. 590 ; Coventry v. Gladstone, L. R., 6 Eq. 44 • Southern Express Co. v. Dickson, 94 U. S. 552 ; Lee v. Kimball, 45 Me. 172. And the transfer of this bill of lading to a hona fide trans- feree defeats the right, although the consideration was past, and not given at the time of the delivery of the bill. Lask v. Scott, L. E., 2 Q. B. Div. 376; S. C, 21 Eng.Eep.169. But see ^0(^^e?- v. Comptoir i'Escompte de Paris, L. E., 2 P. C. 393. SALE. loy Stoppage in transitu. But although the right may be defeated by a sale to a third person, and an indorsement of the bill of lading in good faith, for a valuable consideration, yet an apparent sale, fraudulently made without consid- eration, for the purpose of defeating the right, wiU not have that effect. Mosenthall v. Dessau, 11 Hun, 49. And if, by the vendee's order, a portion of the goods are sold on the way, the remainder may be stopped. Secomh v. NuU, 14 B. Monr. (Ky.) 261. Nor will the seizure of goods m transitu, at the suit of the vendee's creditors, extinguish the right of stoppage ; and the unpaid vendor may maintain an action for them or their value against the officers making the seizure. O^Bfien v. Nor- Hs, 16 Md. 122 ; Budker v. Donovan, 13 Kans. 251 ; Inslee v. Lane, 57 N. H. 454 ; Calahan v. Baloock, 21 Ohio St. 281 ; S. 0., 8 Am. Eep. 63. But if the vendor attach the goods as the property of the vendee while they are in the course of transportation, such attachment will destroy the right to stop them m transitu. Woodruff v. Noyes, 15 Conn. 335. See Rawle v. Deshler, 28 How. 66 ; S. 0. affirmed, 4 Abb. Ct. App. 12 ; S. 0., 3 Keyes, 572. If, after the goods are ordered, the vendee die insolvent, and no de- vice or fraud to deceive the seller was used, and the goods were subse- quently sent, and are taken possession of by the administrator of the vendee, the seller cannot reclaim the property. Conyers v. Ennis, 2 Mas. (C. 0.) 236. It is not essential to the exercise of the right of stoppage in transitu that there should be an actual seizure of the goods before delivery to vendee. A demand of the carrier, notice to him to stop the goods, or a claim and endeavor to get possession is sufficient. Rucker v. Dono- van, 13 Kans. 251 ; S. C, 19 Am. Eep. 84; Whitehead v, Anderson, 9 M. & W. 518 ; Aseher v. Grand Trunk By. Co., 36 Up. Can. (Q. B.) 609. And upon demand by the vendor, while the right of stoppage in 1/rwnsitu continues, the carrier will become liable for a con- version of the goods, if he declines to re-deliver them to the vendor, or delivers them to the vendee. Reynolds v. Boston, etc., R. R. Co., 43 N. H. 580 ; Blackmam, v. Pierce, 23 Cal. 508. Notice to the agent of the carrier, who in the regular course of his agency is in the actual cus- tody of the goods at the time the notice is given, is notice to the car- rier. Jones V. Earl, 37 Cal. 630 ; Bieroe v. Red Bluff Hotel Co., 31 id. 160. A demand of the property from the vendee, made before its actual delivery to him, and while it is in the custody of the custom-house officers, is not a sufficient demand to enable the vendor to reclaim it. The demand must be made of the carrier or middleman in whose cus- no SALE. Sales, how affected by the statute of frauds. tody it is at such time, and under such circumstances that they may prevent a delivery to the vendee. Mottram v. Meyer, 5 Denio, 629 ; S. C, 1 id. 483. § 16. Sales, how affected by the statute of frauds. The com- mon-law rules in relation to sales have been materially affected by the statute, where the value of the property sold is $50 or more in value. The statute provides as follows : " Every contract for the sale of any goods, chattels or things in action, for the price of $50 or more, shall be void, unless : 1. A note or memo- randum of such contract be made in writing, and be subscribed by the parties to be charged thereby ,• or, 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, 3. Unless the buyer shall at the time pay some part of the purchase-money." 3 E,. S. 221, § 3, 5th ed. " Whenever goods shall be sold at public auction, and the auc- tioneer shall at the time of sale enter into a sale-book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account such sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section." 3 E. S. 322, § 4, 5th ed. " Every instrument required by any of the provisions of this title to be subscribed by any party may be subscribed by the lawful agent of such party." 3 R. S. 222, § 8, 5th ed. These three sections quoted are all in the same title. The sections of the statute quoted require the consideration of three things : 1. The sufficiency of the note or memorandum of the contract of sale, including its subscription ; 2. The acceptance and receipt of the property sold which will dispense with the writing ; and 3. The payment which will have the same effect. The memorandum of a contract for the sale of goods required by the statute must express every essential element of the contract. McLeom, V. Nicholl, 7 Hurlst. & JSTorm. 1024 ; Pitts v. Beckett, 13 M. & W. 743 ; Calkins v. Folk, 38 How. 62 ; S. C, 1 Abb. Ct. App. 291 ; Harvey v. Stevens, 43 Vt. 653. But the form of the memorandum is not material. If it shall contain a distinct and clear statement of the terms of the agreement, and of the names of the parties, the statute is understood to be sufficiently complied with. Roberts v. Tucker, 3 Exch. 632 ; Sanborn v. Flagler, 9 Allen, 476 ; James v. Muir, 33 Mich. 223 ; Oihson v. Holland, L. E., 1 C. P. 1. Several writings, though executed at different times, may be construed together for the SALE. Ill Sales, how affected by the statute of frauds. purpose of ascertaining the terms of tlie contract, and for the purpose of taking an action founded thereon out of the operation of the statute. Talkmm v. FrwnMin, 14 N. T. 584 ; Lerned v. Na/nne- maoher, 9 Allen, 412 ; Peak v. North Staffordshire R. B. Co., 10 H. L. Cas. 472. The buyer's written acknowledgment of a seller's invoice or bill of parcels may, together with such instrument, constitute a suit- able memorandum, if given pursuant to a bargain. Batturs v. Sellers, 5 Harr. & J. (Md.) 117; Buxton v. Bust, L. E., 7 Exch. 279 ; S. C, 2 Eng. Kep. 675. So, a written proposal, containing the names of the contracting parties, and all the terms of the proposed agreement, signed by the proponent or by some other person thereunto lawfully author- ized, when accepted and assented to by the party to whom the same is made, is a sufficient memorandum ; and the delivery of such instrument as a proposal, and the acceptance thereof, and assent thereto by the party to whom it is made, may be proved by parol testimony. Him/rod Furnace Co. v. Cleoelam,d, etc., B. B. Co., 22 Ohio St. 451 ; Mason v. Becker, 72 N. Y. 595 ; Beuss v. Piokley, L. E:, 1 Exch. 342. A letter containing an admission of the purchase of goods by the writer from the person to whom it is sent, but without expressing the consideration or terms^ of purchase, is not a sufficient note or memo- randum to take the case out of the operation of the statute. Ne-wbery V. Wail, 65 K T. 484 ; Stone v. Browning, 68 id. 598. All the essentia] parts of the contract must be evidenced by the writing, and if any of these are omitted, the defect cannot be cured by oral evidence. lb. In a recent Enghsh case it was held that a memorandum or letter which contains all the necessary elements of the contract is sufficient to charge the signer, although it be accompanied by an express repudia- tion of the contract by him. Bailey v. Sweeting, 9 C. B. (N. S.) 843. But see Newbery v. Wall, 65 IST. T. 484, 488. But, where a memorandum is sufficient in form, it must be legally obtained before it will be of any value to its possessor ; and where goods of more than $50 in value are sold by a parol contract, but the purchaser obtains possession of the bill of lading without the seller's consent, and without paying any of the purchase-money, this will not take the case out of the statute of frauds, so as to bind the seller to perform the contract. Brand v. tocht, 30 How. 313 ; S. C, 3 Eob. 426; affirmed, 3 Keyes, 409; 2 Trans. App. 357; 5 Abb. (K S.) 225. The statute does not require that the note or memorandum of the contract of sale shall be subscribed by both parties. It will be sufficient 112 SALE. Sales, how affected by the statute of frauds. if it is subscribed by the party against whom it is sought to be enforced ; and it is not necessary that it should be subscribed by the party who seeks to avail himself of its advantages. Fenly v. Stewa/rt, 5 Sandf. 101; Davis v. Shields, 26 Wend. 341 ; Russell v. Nicoll, 3 id. 112; Steele v. Toft, 22 Hun, 453 ; Snyder v, Meefus, 53 Barb. 63 ; Justice V. Lcmg, 42 N. Y. 493. Brokers are frequently employed to make contracts, and they are then the agents of the parties who employ them, though they are sometimes employed by both parties. In one case, one Sturges was authorized by both parties to efPect a sale of some hemp. The hemp was to be sold by sale to Darragh ; and Sturges subscribed a bill of sale in this form : New Yoek, IQth August, 1850. " Sold for account of WiQiam A. Sale, Jr. " To Mr. John Daekagh. " Bales jute hemp a $80.00 per ton, six months. This hemp is to remain in store at the expense and risk of the seller for the expiration of the first month ; thereafter at the expense and risk of the purchaser. Mr. Darragh is to pay for this hemp as he may want to take it away, at the rate of eight per cent per annum discount. Tare 6 lbs. per bale." The greater part of the hemp was delivered to Darragh in parcels from time to time, and was received by him and paid for on delivery, but none of it was delivered until nearly a week after the execution of the contract ; and it was held that the delivery and acceptance of a part of the hemp, though subsequent to the execution of the contract, took the case out of the statute of frauds, and rendered Darragh liable in an action for damages for his refusal to accept all the hemp ; and it was further held that Sturges being authorized by both parties, as a broker, to effect the sale, a memorandum in writing, signed by him in his own name, was a sufiBcient note or memorandum in writing, within the meaning of the statute of frauds, to charge the parties. Sale v. Da/rragh, 2 Hilt. 184. Where a broker acts as agent for both parties, his signature to the note or memorandum of the agreement is binding on both principals, provided the memorandum be otherwise sufficient under the statute. Patron v. Grafts, 16 C. B. (N. S.) 11. If the broker's note contains the names of the vendor and vendee, and the terms of sale, and is de- livered to both parties, this makes a valid contract of sale within the statute of frauds. Newberry v. Wall, 84 N. Y. 576. SALE. 113 Sales, how aflfected by the statute of frauds. An entry of sale by a broker in bis books in the regular coarse of his business, stating the date, the full name of both parties, connected by "to," a description of the goods sold, and the terms of the bargain, _ although not subscribed by any one, was held to be a sufficient memo- randum in writing within the statute. Coddington v. Qoddard, 16 Gray, 436. And see Bams v. Ewing, L. E., 1 Exch. 320 ; Butler v. Thompson, 92 U. S. (2 Otto) 412. But where, upon making a con- tract of sale and purchase, a broker brings the parties together, after which the parties negotiate with each other directly, and the broker makes an entry of the sale in his book, such entry will not bind either party, nor will it prevent either party from giving parol evidence of the contract. Aguvrre v. Alien, 10 Barb. 74 ; Lawrence v. Gallagher, 10 Jones & Sp. 309 ; S. C, 73 JST. Y, 613. A broker's bought-and-sold notes, which do not agree as to the mate- rial terms of the contract, are not a memorandum such as satisfies the statute. Bacon v. Eccles, 43 Wis. 227. The signature of a clerk of a telegraph company to a message was held to be suffiicient where the original instruction had been signed by the party. Goodwin v. Francis, L. E.., 5 C. P. 295. And see Trevor V. Wood, 36 N. T. 307. It is, however, necessary that the agent of the party to be charged be some third person, and not the other con- tracting party. Sharman v. Brandt, L. R., 6 Q. B. 720. And he must sign in the capacity of agent. Gobell v. Archer, 2 Ad. & El. 600. And a memorandum made by the agent of both parties and signed by him in his own name, in the absence of the parties, not by their agreement, but at his own instance and for his own use and con- venience, was held to be insufficient to take the case out of the statute. Noakes v. Morey, 30 Ind. 103. The note or memorandum in writing required by the statute of frauds, in order to bind the party to be charged therewith, must be subscribed by such party underneath or at the end of such note or memorandum. James v. Patten, 6 N. Y. 9 ; Davis v. Shields, 26 Wend. 341. In respect to the character of the signature or subscrip- tion to the memorandum, the statute is silent. A mark made by the party as his signature is sufficient if so intended. Harrison v. EVovn, 3 Q. B. 117. When a person is unable to write, the touching of the top of the pen while another writes his name will be a compliance with the statute. Helshaw v. Langley, 11 L. J. Ch. 17. The statute will also be satisfied when the signature is by initials, Sanborn v. Flag- ler, 9 Allen, 478 ; Gaton v. Gaton, L. R., 2 H. L. 127 ; or written with a pencil, Geary y. Physio, 5 Barn. & Ores. 234; Glasson v. 15 114 SALE. Sales, how affected bj the statute of frauds. £ailey, 14 Jolms. 484 ; or printed or stamped upon the memorandum. Schneider t. Norris, 2 M. & S. 286. And see Salmon Falls Manuf, Co. V. Goddard, 14 How. (U. S.) 456. The statute in express terms applies to the sale of things in action. A parol contract to sell a chose in action for the price of $50 or more is void by the statute of frauds, unless the evidences of the demand, or some of them, be delivered to the buyer, or he pay a part of the purchase-money. Artcher v. Zeh, 5 Hill, 200 ; BaMI/umn v. Williams, 3 Mete. 365. The rule which relates to the sale of personal property and choses in action is equally applicable to the exchange of such things. Combs sued Bateman upon a note, which was given under the fol- lowing circumstances : An agreement by parol was made by which one Ehle was to exchange a span of horses with Bateman, who was to give two yokes of oxen, worth $80 each, and his note for $20^ payable in oats. The agreement was made in the morning, but the property was not exchanged nor any delivery made ; but Bateman gave the note and was to drive his oxen to the house of Ehle and make the exchange for the horses on the same afternoon. He did not do so, and afterward Ehle tendered him the horses and demanded the oxen, but the defendant refused to perform the contract, and now insisted that the contract was void by the statute of frauds, and the note, there- fore, without consideration. The note was transferred to the plaintiff after it became due, and it was held that he could not recover upon it, because the verbal agreement was void by the statute, and the note was, therefore, without consideration. Combs v. Bateman, 10 Barb. 573. An oral contract for the sale of personal property of more than $50 in value is valid under the statute, if the purchaser accepts and receives a part of the property purchased, though no part of the pur- chase-money is paid. An acceptance and receipt are both necessary. The contract is not vahd unless the buyer both accepts and receives a part of the property purchased. These are two distinct acts. There may be an actual receipt without an acceptance, and an acceptance without a receipt. The receipt of goods is the act of taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often an evidence of an acceptance, but it is not the same thing. The receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. Coohe v. Mil- hwd, 65 ]Sr. Y. 352 ; S. 0., 22 Am. Eep. 619 ; Eewes v. Jordom, 39 Md. SALE. 115 Sales, how affected by the statute of frauds. 472; S. C, 17 Am. Rep. 578. Beyond the mere receipt, there must be some act or conduct on the part of the buyer indicating and manifest- ing his intention in receiving them to accept them absolutely and un- conditionally in execution and full performance of the contract of sale. Stone V. Browning, 51 E". Y. 211 ; S. C, 44 How. 131 ; 13 Abb. (JST. S.) 188 ; Heermcmce v. Taylor, 14 Hun, 149 ; Gaulkins v. Hellman, 47 ]Sr. T. 449 ; S. C, 7 Am. Rep. 461 ; Shindler v. Houston, 1 N. Y. 261 ; GlarJc V. Tucker, 2 Sandf. 157; Oihnan v. Hill, 36 N. H. 311 ; Oor- ham, V. Fisher, 30 Yt. 428. This is particularly true when by the terms of sale the purchaser is to have the opportunity of inspecting and examining the goods before the completion of the purchase. For example, if, by the terms of a verbal contract for the sale of goods of more than $50 in value, the goods are to be de- livered at the store of the purchaser for examination for the pur- pose of seeing whether any portion of them are so defective as to entitle him, according to the custom of trade, to return them or make a deduction in the notes to be given therefor, the mere receipt of the goods by the purchaser is not an acceptance which will take the ease out of the statute. To constitute an acceptance in such case the pur- chaser must have made the examination and pronounced is satisfactory, or have dealt with the goods, or have done some unequivocal act evinc- ing his intention to accept them unconditionally as his own property. Stone V. Browning, 51 N. Y. 211 ; 68 id. 598. The goods delivered under such a contract may be of the precise kind and quality repre- sented by the vendor, and he may have fully performed his part of the contract, so that a refusal on the part of the vendee to accept the goods would be unreasonable, but this will not affect the question of accept- ance, or dispense with such acceptance as the statute requires. lb. If he refuses the goods, assigning grounds false or frivolous, or as- signing no reason at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. lb. But there is nothing in the statute which requires that the accept- ance and receipt should be at the same time. The acceptance may precede, be contemporaneous with, or subsequent to the actual receipt of the goods. Cross v. O'Donnell, 44 N. Y. 661 ; S. C, 4 Am. Rep. 721 ; Cusack v. JSdbi/nson, 1 B. & S. 299. And see Bush v. Holmes, 53 Me. 417 ; Morton v. Tihbett, 15 Ad. & El. (N". S.) 428. Therefore when the vendee has selected a particular article, and agreed to pay a certain price for it when it is delivered, the selection and agreement may be deemed an acceptance in advance of the receipt, in the absence 116 SALE. Sales, how affected by the statute of frauds. of evidence to the contrary, which, with a subsequent delivery to the vendee, will satisfy the requirements of the statute. United States Reflector Go. v. Eushton, 7 Daly, 410. And see Outwater v. Dodge, 6 Wend. 402 ; CooTce v. Millard, 65 N. Y. 352, 368, 369 ; S. C, 22 Am. Rep. 619 ; Bog Lead Co. v. Montague, 10 0. B. (N. S.) 481, 489, 490. Where, by the terms of an agreement for the sale and purchase of goods, cash is to be paid on the delivery of the goods, payment of the money is sufficient evidence that the goods have been delivered, in pursuance of the contract, for the purpose of taking the case out of the statute of frauds. Aguirre v. Allen, 10 Barb. 74. A verbal agreement for the sale of personal property, exceeding $50 in value, is valid, where a part of the property has been deliv- ered to the purchaser and accepted by him under the agreement, al- though such delivery and acceptance took place several months after the making of the verbal agreement. MoKnight v. Dunlop, 5 N. Y. 537. The plaintiff, by a verbal agreement, in June, 1844, purchased five thousand bushels of barley malt of the defendant, at a fixed price, to be paid for by the plaintiff's note, whenever $1,000 worth of the malt should be delivered. The defendant, in August and Sep- tember, delivered about fourteen hundred bushels in pursuance of the agreement, and refused to deliver the residue ; it was held that the contract was valid, and that the plaintiff was entitled to damages for the non -delivery of the residue of the five thousand bushels. lb.; Sprague v. BlaJce, 20 Wend. 61 ; Sale v. Da/rragh, 2 Hilt. 184. The plaintiff contracted by parol to sell, and the defendant to buy, one thousand cords of wood, or so much thereof as the plaintiff could cut and deliver, at a specified price per cord, no time for performance being fixed. The plaintiff delivered, and received pay for about three hundred and twenty-two cords, and had about two hundred cords more ready for de- livery. This he commenced to draw, and had piled nineteen cords by the side of the defendant's road, when he was notified not to bring more, and the defendant refused to pay for the nineteen cords. In an action to recover damages, it was held that the partial delivery and acceptance answered the requirements of the statute of frauds, and validated the contract. Van Woert v. Albany, etc., R.B. Co., 67 N. Y. 538. Where the plaintiff entered into a pai-ol agreement with the defend- ants to furnish them all the meal they wanted, at stipulated prices, payable partly in cash, partly in railroad stock, and partly in railroad bonds; and he subsequently delivered meal to the defendants, at various times, under the contract, and received from them some cash SALE. 117 Sales, how affected by the statute of frauds, payments, but no stock or bonds were issued to him, and he waived the delivery thereof, and agreed to accept certain requisitions from the chief engineer upon the railroad company instead ; and he never re- called such waiver until he had himself broken the contract — it was held, in an action by the plaintiff to recover a balance due to him for the meal delivered, that the defendants were entitled to recoup their damages for the failure of the plaintiff to deliver the meal, when re- quired to do so. Boutwell v. G'Keefe, 32 Barb. 434. In the case just cited, the delivery of the meal was under the contract, and in pursu- ance of its tenor, and therefore the contract was binding upon both parties after such part delivery. A delivery to, and acceptance by, one of several joint purchasers renders the contract valid as to all. Smith v. MilUken, 1 Lans. 336. So the acceptance and receipt which the statute requires may be made by an agent of the buyer empowered for that purpose; but an agent with authority from the buyer to receive is not necessarily the buyer's authorized agent to mcept. Thus, it is well settled that a common car- rier, whether selected by the seller or by the buyer, to whom the goods are intrusted, without express instructions to do any thing but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the statute. Smith v. Hudson, 6 B. & S. 431 ; Johnson V. Cattle, 105 Mass. 447 ; S. C, Y Am. Rep. 545 ; Alla,rd v. Oreasert, 61 N. T. 1 ; Eodgers v. Phillips, 40 id. 519 ; Wilcox Silver Plate Co V. Green, 72 id. 17 ; Jones v. Mechanics' Bank, 29 Md. 287. And the same may be said of wharfingers and others similarly employed for mere purposes of custody. QuintardY. Bacon, 99 Mass. 185 ; HaH v. Bush, El. Bl. & El, 494. But after acceptance of the goods, delivery by the vendor to a carrier designated by the vendee will answer the requirements of the statute. The carrier designated by the vendee can bind him, as his agent, by receiving. Cross v. O'Donnell, 44 N. Y, 661 ; S. C, 4 Am. Eep. 721. And see Ex parte Safford, 2 Low. Dec. 568 ; Spencer v. Hale, 30 Vt. 314. An act done by one of the parties to a contract, which is rightfully treated by the other party as a trespass, cannot, by a subsequent under- standing, be made a sufficient partial delivery and acceptance of goods, to take a case out of the statute of frauds. Balcer v. Cuyler, 12 Barb. 667. The parties entered into a verbal contract, whereby the plaintiffs agreed to sell, and the defendant to purchase, all the wheat the plaintiffs had in their warehouse which should remain after P. 118 SALE. Sales, how affected by the statute of frauds. & Co. should tp.ke away eight hundred bushels which had been sold to them. The defendant afterward, in the absence of the plaint- iffs, without any permission, and before P. & Co. had taken away their part, took from the warehouse over one hundred bushels of the wheat. The plaintiffs, on being informed of such act, complained of it, and insisted that it was not authorized by the contract, and said that the wheat must be returned. Subsequently P. & Co. took away their eight hundred bushels, and there remained in the warehouse about three hundred and forty bushels, which the plaintiffs requested the defend- ant to take away and pay for, calling it the defendant's wheat. The defendant promised to do so, but did not, and the plaintiffs, after due notice to him, sold the wheat and brought an action to recover the differ- ence between the price obtained and the contract-price, and it was held that the action would not lie. lb. But where, on a sale of cattle, no earnest money was paid, nor any memorandum in writing made, and the cattle were to remain in the possession of the vendor, at the risk of the vendee, until he called for them ; and the vendee afterward came and took away the cattle, without saying any thing to the vendor ; this was held to be sufficient delivery within the statute, to render the vendee liable to pay the purchase-price. Yincent v. Oermond, 11 Johns. 283. A delivery of goods by the vendor, and an acceptance by the agent of the purchaser, is sufficient to take a case out of the statute, and to render the sale valid. Outwater v. Dodge, 6 "Wend. 397. To constitute, a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary. There must be some act of the parties, which amounts to a transfer of the posses- sion by the vendor, and an acceptance by the vendee. Shindler v. Houston, 1 IST. T. 261 ; Clarh v. TucJcer, 2 Sandf . 157 ; Ballenleok v. Cochran, 20 Hun, 416 ; My v. Ormsby, 12 Barb. 570, 572 ; Ham v. VanOrden, 4 Hun, 709 ; Brabm v. Eyde, 32 N. Y. 519 ; Moore v. Bixby, 4 Hun, 802 ; Good v. Curtiss, 31 How. 4. The plaintiff and the defendant bargained orally respecting the sale, by the former to the latter, of a quantity of lumber, piled apart from other lumber, on a dock in view of the parties at the time of the bargain, and which had before that time been measured and inspected. The parties having agreed as to the price, the plaintiff said to the defendant, " the lumher is yoursP The defendant then told the plaintiff to get the inspector's bill, and take it to one House, who would pay the amount. This was done the next day, but payment was refused. In an action to rect'ver the price, it was held that there was no delivery and acceptance of the lumber, within the meaning of the statute, and that the sale was, there- SALE. 119 Sales, how affected by the statute of frauds. fore, void, and that the plaintiflE could not recover, and a judgment ia iis favor was reversed. Shvndler v. Houston, 1 N. Y. 261. On a re- trial of the action, the same facts were proved, and in addition thereto it was proved that, before the trial of the action, but after the suit was commenced, House, acting as the defendant's attorney, but with- out authority, had given his check for the price of the lumber to one Raymond, an attorney of the plaintiff, and Raymond had given a re- ceipt in full or for so much money. The check was dishonored, and never paid. And between the time of the settlement and the ma- turity of the check the defendant took the lumber and converted it to his own use ; and it was held that the taking possession of the lumber by the defendant was a completion of the purchase, and obviated the •objection as to the statute ; and that it was a ratification of the act of iis agent by subsequent assent. Houston v. Shindler, 11 Barb. 36. In another case, the plaintiif and defendant being together near two stacks of hay belonging to the plaintiff, and in sight of one of them, ■entered into an oral contract for the sale of the hay, the defendant agreeing to pay $190 for it, and $10 more if he should do well with it. The plaintiff then said, " the hay is yours," to which the defendant as- sented. It was held that there was no delivery or acceptance of the hay, sufficient to take the case out of the statute of frauds. Hall&n- heck V. Coohrwih, 20 Hun, 416. Upon a sale of personal property, any acts of the parties indicative of the exercise of ownership by the vendee may be submittted to the jury as evidence of receipt and acceptance, to take the case out of the statute. Orcvy v. Davis, 10 N. Y. 285. A. sold B. a stock of goods in a store. After the verbal bargain, an inventory of the goods was taken, B. going through the store and calling off the parcels, and A. entering them in the inventory, which was headed, " B. bought of A.," etc. On leaving the store, A. offered B. the keys, which he declined to take until the next day, saying that he had no insurance. The ven- dor then offered to assign his own policies, when the purchaser re- quested the vendor's clerk to take the keys for him until the next morning, which he did ; and it was held that these facts were suffi- cient evidence to go to the jury, of a receipt and acceptance by the pur- chaser, lb. Ordinarily it is a question of fact for the justice or a jury, whether, imder all the circumstances, the acts which the buyer does or forbears to do amount to an acceptance. Morton v. Tibbett, 15 Q. B. 428 ; Simmonds v. HulUe, 13 0. B. (N. S.) 258. But if the uncon- troverted facts afford no ground for finding an acceptance, or where 120 SALE. Sales, how afifected by the statute of frauds. the evidence is such that if given in a court of record the court would feel bound to set aside a verdict finding an acceptance, it is the duty of the court to nonsiiit. Stone v. Browning^ 68 N. Y. 698. If the vendee has exercised some decisive act of ownership over the goods, as by pledging them, or selling them to another person, it afEords very strong proof of the intention to accept. Beaumont v. Brengeri, 5 C. B. 301. So, a long and unreasonable delay in returning the goods, or in giving notice of their rejection, would afford stringent proof of acceptance. Bushell v. Wheeler, 15 Q. B. 442 ; Gaff\. Howeyer, 69 Mo. 346 ; Treadwdl v. Reynolds, 39 Conn. 31. And see Parker V. WalTAs, 5 El. & Bl. 21. A constructive delivery and acceptance of goods may be sufficient to bind the contract of sale under the statute. Garfield v. Pwris, 96 U. S. (6 Otto) 557. And see Brown v. Hall, 6 Lans. 177. Thus, ordinarilj', in the absence of any fraud or mistake,, an acceptance of a bill of lading of the goods by the buyer is equiva- lent to an acceptance of the property mentioned in it. Currie v. An- derson, 2 El. & El. 592 ; Eodgers v. Phillies, 40 IST. Y. 519. See Quintard v. Bacon, 99 Mass. 185. So, marking goods with the name of the purchaser, by his consent, is held to constitute an acceptance of the goods, provided all the terms of the contract have been agreed upon. Thus, where sheep were selected and separated from the rest of the flock, and the buyer's mark was put upon them, and then, after such separation, it was agreed to let them run with the seller's sheep for a few days, it was held that the jury were warranted in finding that there was a sufficient delivery and acceptance of the sheep to take the sale out of the statute. Rappleye v. Adee, 65 Barb. 589 ; S. C, 1 Sup. Ct. (T. & 0.) 126. And where goods had been weighed in the presence of the vendee, and placed by themselves in the vendor's warehouse^ marked with the vendee's name, and to be delivered when sent for, it was held to be such an acceptance as would take the sale out of the statute. Ex parte Safford, 2 Low. Dec. 563 ; S. C, 15 Bankr. Eeg.^ 564. If the goods were sold by sample, and the seller seeks to recover the price in an action for goods sold and delivered, he must show not only a change of possession, but a change with intent, on the buyer's- part, to take possession thereof as owner, and not merely for inspection. Remick v, Sandford, 120 Mass. 309. The effect of the acceptance and actual receipt of part of the goods, however small, is to prove the contract of sale. At/wood v. Lucas, 53 Me. 608 ; Damfiorth v. Walker, 40 Yt. 257 ; Qault v. Brown, 48 N. H. 183 ; S. C, 2 Am. Eep. 210 ; Burrows v. Whitaker, 8 Hun, 260 ; S. C. affirmed, 71 N. Y. 291. And it is held not to be inconsistent with SALE. 121 Sales, how affected by the statute oi frauds. this, that the vendee should have the right, with respect to the residue of the goods, when offered in fulfillment of the contract, to object that they are not such in quantity and quality as the contract requires. But in all cases where the goods bargained for have been accepted and actu- ally received by the vendee, he is thereby precluded, in the absence of fraud, from objecting that they do not correspond with the contract. Bewes v. Jordan, 39 Md. 472 ; S. 0., 17 Am. Eep. 578. It will be noticed that the statute of frauds does not limit the time within whicb the goods sold must be received and accepted, and, there- fore, the courts in construing the statute have uniformly held that these acts may accompany the contract of sale or may follow it in point of time. But it is not so as to the payment which is to take the place of the written memorandum of sale. The statute expressly requires that the payment, which is to give validity to the otherwise void con- tract, shall be made at the time the contract is made. Sprague v. Blake, 20 Wend. 61 ; Rallenhech v. Cochran, 20 Hun, 416. ISTo sub- sequent payment will, of itself, take the contract out of the operation of the statute of frauds. lb. ; Hunter v. Wetsell, .57 N. Y. 375 ; S. C, 15 Am. Eep. 508. But where a contract of sale has been made which is good at common law, but void under the statute of frauds, and the parties subsequently meet, and for the express purpose of then com- plying with the statxite a/nd making the contract valid, a payment is made by the purchaser at the request of the seller, such payment is made at the time of making the contract v/ithin the meaning of the statute ; or where, in case of such void contract, the parties subsequently come together and substantially restate, reaffirm or renew its terms, so as then and there by the meeting of their minds to m,ahe a contract, and then payment is made upon the contract, the statute is complied with. Hunter v. Wetsel, 57 JST. Y. 375 ; S. C, 15 Am. Rep. 508 ; S. C, again, 84 N, Y. 549 ; Hallenhech v. Oochram,, 20 Plun, 416 ; Bissell v= Balcom, 39 JST. Y. 275 ; S. C, 7 Trans. App. ^VZ^Allis v. Read, 45 E". Y. 142. Thus, where the plaintiff and defendant made a verbal agreement for the sale of cattle, at a price exceeding $50, without any actual de- livery or payment of any part of the price, but the next day the plaint- iff called upon the defendant for a payment to "bind the bargain so that there will be no chance to back out," and for that purpose a pay- ment is made of a part of the price, the contract is valid and binding within the statute, Bissell v. Balcom, 39 N. Y. 275 ; S. C, 7 Trans. App. 21 2. So, where the plaintiff's agreed verbally with the defendants for the purchase of a quantity of cloths, no portion of the purchase- 16 122 SALE. Sales, how affected by the statute of frauds. money being then paid or goods delivered, but subsequently, when by the first arrangement a payment became due, the parties again met and upon further negotiations and agreements, varying somewhat the origi- nal void contract, the plaintiff delivered to the defendants a promissory note to be collected and applied on the purchase-price of the cloths, and also conveyed to them certain merchandise which they were to sell, and after deducting their commissions, apply the avails to the pur- chase-price of the cloth ; it was held that the minds of the parties must be deemed to have then met upon all the terms and conditions of the agreements for the sale of the cloth, and that it then became, by the plaintiffi's transfer of the note and consignment of the merchandise, a valid and binding contract under the statute. Allis v. Head, 45 N. T. 142. But where a payment is made on a contract void under the statute, and at the time of payment the contract is neither restated nor referred to, save by implication, such payment is not made at the time of making the contract within the meaning of the statute. Sallenbeok V. Cochran, 20 Hun, 416. Giving the purchaser's own note is not a part payment within the mean- ing of the statute. Combs v. Bateman, 10 Barb. 573. But when a check is delivered and received as payment, which was good when drawn, and is paid on presentation, this is a payment " at the time " within the meaning of the statute and satisfies its requirements. Hun- ter V. Wetsell, 84 N. T. 649. The statute does not mean that the payment must be made upon the instant that the contract is entered into, in the sense that the making of the payment must constitute parts of one and the same continuous transaction ; and although some delay must elapse between the acceptance and payment of a check given for the purchase-price of goods, this will not invalidate the sale. lb. An agreement to indorse the price of the property upon a chattel mortgage held by the purchaser against the vendor, without any in- dorsement being in fact made, does not constitute a payment, Ely v. Ormsby, 12 Barb. 570 ; and in such acase a creditor of the vendor will hold the property in preference to the vendee, if the property is left in the possession of the vendor. lb. And see Artcher v. Zeh, 5 Hill, 200. Where a sale of goods is made on an agreement that the price shall be applied to the payment of a precedent debt, such price must be actually applied by a receipt or otherwise, to bring it within the excep- tion in the statute of frauds, founded on payment of all or a part of the price. Clark v. Tucker, 2 Sandf. 157; Mattice v. Allen, Z Key es, i92; S. C, 3 Trans. App. 263; 3 Abb. Ct. App. 248; Pitney v. SALE. 123 Sales, bow affected by the statute of frauds. Qlevm Falls Ins. Co., 65 N. Y. 6. And see Teed v. Teed, 44 Barb. 96 ; Walrath v. Hiohie, 5 Lans. 362. If the purchase-money is to be applied to pay an open account, in whole or in part, the creditor and pur- chaser should part with some written evidence of such application which shall bind him, and put it in the power of his debtor and vendor to enforce the contract. The application must be made at the time, and be evidenced by acts rather than words. JSrabin v. Hyde, 32 N. T. 519. Thus, where A., a debtor, sold to B., his creditor, a bill of goods of more than $50 in value, the price of which was not applied, by receipt or otherwise, to the debt, and there was no proof of any agreement that it should be so applied ; but, on the contrary, it appeared from the bill of parcels that the purchaser was to give a note at ten months, payable to his own order, — it was held that there was no part payment of the purchase-money which would take the case out of the statute. Wylie V. Kelly, 41 Barb. 594. And see Buski/rJc v. Cleveland, 41 id, 610. So the defendant, by an oral agreement, promised to deliver to the plaintiff a quantity of batter, of a value exceeding $100. The defendant was, at the time of this bargain, indebted to the plaintiff in the sum of $6.50, for a barrel of flour, which was charged to him on account, and it was a part of the agreement that this sum should apply as part payment for the butter. The plaintiff made an entry of the sale in a memorandum book, as well as a statement of the acceptance of the barrel of flour, in part payment of the butter. This entry was made in the memorandum book at the defendant's house, at a distance from the plaintiff's books of account ; but no entry was made in the plaintiff's account books to show that the flour was paid for by the butter, or otherwise, — and it was held that this was not a sufficient part payment to take the case out of the statute. Teed v. Teed, 44 Barb. 96. So A., being the owner of a mowing machine, and being indebted to B. in the sum of $55, proposed to B., verbally, the machine not being present, that he should take it in satisfaction of his indebtedness, to which B. assented. The machine remained in the hands of A. for some time afterward, and T?as then, without B.'s request, delivered into the possession of C.,from whom it was taken under execution against A. In an action brought bv B. to recover the value of the machine against the constable who had seized it imder the execution, it was held that such action could not be sustained, as there was not a valid sale from A. to B., under the statute of frauds. Walrath v. Ritchie, 5 Lans. 362. But a promise to pay the seller's creditor, accepted by the latter, who thereupon discharges the seller, is held to be a part payment of the 124 SALE. Sales, how affected by the statute of frauds. price within the statute. Ootterill v. Stevens, 10 Wis. 422. And see Ireland v. Johnson, 28 How. 463 ; S. C, 18 Abb. 392. The part performance which will take a parol contract for the sale of goods out of the operation of the statute of the frauds must be with the assent of both parties. Payment to an agent of the vendor of the purchase-money is as eifectiial to remove the case^from the operation of the statute as payment to the principal. But the fact of agency must be established without resort to the void agreement. The authority of the agent to receive payment may be shown by an act on the part of vendor, recognizing the agency, or by a subsequent ratification of the act of the assumed agent in receiving the payment. Such a ratification is equivalent to an original authority to receive it. Hcmley v. Keeler, 53 K Y. 114. The payment which under this statute ^Ul validate a contract must be a payment of a part of the purchase-price of the goods sold by the contract sought to be enforced. Payment for goods previously sold and delivered, although made under a claim by the vendee that the goods in question were included in the first contract, and in consideration of the new agreement, is not sufficient. Organ v. Stewart, 60 IS". Y. 413. Where goods, amounting in the aggregate to upwards of $100, are purchased at auction in several parcels, upon distinct and separate bids, to be paid for in a note at a future day, the whole constitutes but one contract, and the delivery of some of the parcels is sufficient to take the case as to the residue out of the operation of the statute of frauds. Mills V. Hunt, 20 Wend. 431 ; S. 0., 17 id. 333 ; Sprague v. Blakey 20 id. 61 ; Swift v. Opdijhe, 43 Barb. 274. Where the plaintiif sold the furniture in his hotel and his stable stock at the same auction, and all upon the same terms and conditions, and the defendant purchased a large number of separate articles, upon as many separate bids, and at separate and distinct prices, many of which were less than the statutory limit, this was regarded as an entire contract for the whole of the property thus purchased by the defend- ant at the aggregate price, and so within the statute of frauds. Jennsss V. Wendell, 51 IST. H. 63 ; S. C, 12 Am. Eep. 48. And it is stated as a general rule, that if the sale be of a number of articles at the same time, neither of which is of a price to bring it within the statute, but which in gross exceeds the statutory limit, the contract is deemed to be entire, and to fall within the statute. Gilman v. HUl, 36 N. H. 318 ; Field V. Runh, 22 N. J. 525 ; Eart v. Mills, 15 M. & W. 85 ; Bailey V. Sweeting, 9 0. B. (N. S.) 843; Allard v. Greasert, 61 N. Y. 1. SALE. 125 Sales, bow affected by the statute of frauds. The mere circumstance of a separate price being iixed upon each article makes no such difference as will take the case out of the operation of the statute. lb. ; Baldey v. Parker, 2 Barn. & Ores. 37. The defendant, by his agent, made a parol contract with the plaintiff to purchase of him a quantity of apples and his crop of barley, the apples to be delivered ^immediately, and the barley as soon as a car could be procured for shipping it, and to be paid for, respectively, on deliv- ery. Nothing was advanced upon the contract at the time in part pay- ment, either for the apples or the barley ; and the articles were not then delivered, or either of them, or any part thereof. But the apples were subsequently delivered, accepted and paid for, and it was held that the contract in respect to the apples, and that in respect to the barley, were in effect separate in regard to their execution. Aldrich v. Pyatt, 64 Barb. 391. It was also held that the articles sold, being of different characters, to be delivered at different times and paid for respectively on delivery, the contract was to be executed distributively ; and that the delivery and receipt of the apples and payment therefor did not take the case out of the statute of frauds, so far as it related to the barley. lb. See, also, Swift v. Opdyke, 43 Barb. 2Y4 ; Keeler v. Van- dervere, 5 Lans. 313. Where an agreement is void in part by the statute of frauds, and good for the residue, non-enforcement is the result as to the whole con- tract. Harman v. Peeve, 18 C. B. 587 ; Irvine v. Stone, 6 Oush. 508. Thus, a contract for the purchase of coals at Philadelphia, and to pay for the freight of the same to Boston, if void by the statute of frauds as to the sale, is void also and cannot be enforced as to the freight, although the latter part, if it stood alone, would not be within the statute. lb. But the part which would be valid, if it stood alone, may be held valid if it can be separated from the part which is void. lb. ; Mayfidd v. Wadsley, 3 Barn. & Ores. 361 ; Wood v. Benson, 2 Or. & Jerv. 94. Questions frequently arise as to the application of this statute to exec- utory contracts of sale. There may be an agreement for a future pur- chase of property which is now in existence, or there may be an agree- ment for a future purchase of property which is not now existing, but is to be supplied hereafter for the sum agreed on, which is to be re- garded merely as the price of the article, or there may be an agree- ment to pnrchase hereafter, an article which is to be manufactured by the seller, and the bargain implies that the money to be paid is for the manufacturing as well as for the article or its materials. A verbal executory agreement for the sale of an existing article, which is to be 126 SALE. Sales, how affected by the statute of frauds. delivered at a future day, is void by the statute. Jackson v. Covert, 5 Wend. 139; Bennetts . Hidl, 10 Johns. 364. Where there is an agree- ment for the sale of an ark load of lumber, a portion of which islanded, and the landing of the residue suspended until an inspector can be procured to measure it, and the vendor, after waiting a day for an in- spector, reloads the portion landed and goes away with the lumber, an action of trover does not lie against him at the suit of the vendee. Fitoh V. Beach, 15 Wend. 221 ; Outwater v. Dodge, T Cow. 85. So, a verbal agreement to sell seven hundred bushels of wheat, of which two hundred and fifty bushels were threshed and in a granary, but the residue was unthreshed, but which the vendor agreed to thresh and deliver, together with that which was threshed, which was to have a second cleaning, the whole to be delivered at a specified time and place, and to be paid for on delivery, it was held that the agreement was void by the statute. Dovms v. Hoss, 23 Wend. 270. There is a class of cases, however, which are executory in their nature, that have been held valid when the agreement is one which relates to an article that the vendor is to manufacture, and he is also to furnish the mate- rials employed in making the article, and although the price of the finished article exceeds $50. The reason assigned is, that it is a contract for labor, and for materials found, instead of the sale of a chattel. A contract for the purchase of articles deliverable on a future day, to be manufactured by the vendor, is a contract for work and labor, and therefore is not within the statute, even when all the materials are furnished by the manufacturer. Robertson v. Vaughn, 5 Sandf. 1 ; 8ew- ell V. Fitch, 8 Cow. 215. An agreement by a mechanic to furnish ma- terials and do the carpenter work and turning, according to a specified plan and specification, for buildings to be erected upon the lands of an- other, is not a contract for the sale of goods within the meaning of the statute of frauds. It need pot, therefore, be in writing, signed by the party sought to be charged. Courtwright v. Stewart, 19 Barb. 455. The true criterion for determining whether a contract is for the sale of goods, and therefore within the statute of frauds, or for work and labor and materials, and so not within the statute, is to inquire whether the work and labor required, in order to prepare the subject-matter of the contract for delivery, is to be done for the vendor himself, or for the vendee. In the former case the contract is really a contract of sale, while in the latter it is a contract of hiring. lb. See Bronson v. Wi- mem, 10 Barb. 406 ; S. C, 8 K Y. 182. It is settled by a long course of decisions in this State that an agree- ment for the sale of any commodity not in existence at the time, but SALE. 127 Sales, how affected hy the statute of frauds. which the vendor is to manufacture or put in a condition to be deliv- ered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale, and there- fore not within the section of the statute of frauds under considera- tion. Bat where the chattel contracted for is in existence at the time of the contract, although the vendor is to do some work upon it to adapt it to the uses of the vendee, the contract will be deemed one of sale within the meaning of the statute. Coo^e v. Millard, 65 N. Y. 352 ; S. a, 22 Am. Kep. 619. A contract to manufacture and deliver beer at a future time is valid, although the value exceeds $50, if the vendor is to furnish the materials. Donovan v. Wilson, 26 Barb. 138. And so of a contract to manufacture pumps, and to furnish materials therefor, where the article is to be made and delivered at a future time. Parker v. SchmcTc, 28 Barb. 38. A parol agreement was made between the plaintiff and the defend- ant, for a monument to be furnished by the former to the latter, for his deceased relative, for the price of $200. The marble, consist- ing of several pieces, or parts, was put together, into the form of the monument, which was standing in the plaintiff's shop, or in the yard adjoining, at the time. And the plaintiff agreed to polish, letter and finish the naonument, and set it up for the defendant ; it was held that this was not an agreement to sell and dehver a monument already made, and therefore void by the statute, but was an agreement to make or manufacture one, not then in existence, and was valid and binding. Mead V. Case, 33 Barb. 202. A contract to make a wagon and find the materials, and to deliver it at a future day is not within the statute. Oroohshanh v. Burrell, 18 Johns. 58. So a parol agreement for the sale of a quantity of malt, to be there- after manufactured and delivered from time to time as wanted, each parcel to be paid for on delivery at a specified price, is not within the statute. Ferren Y.O^Hara, 62 Barb. 517. A parol contract tomanu- factare and deliver a quantity of paper is not within the statute. Par- sons V. LougTcs, 48 N. T. 17; S. C, 8 Am. Rep. 517. In all these cases the subject-matter of the contract had no existence in the form or character in which it was agreed to be delivered at the time the contract was made, and therefore was not the subject of sale within the meaning of the statute. On the other hand, an agreement by one party to deliver, and the other to receive and pay for furniture, al- ready manufactured, but to be upholstered according to order, is a con- tract for the sale of goods and within the statute. Flint v. Corhitt, 6 128 SALE. Rights and remedies of parties to contracts of sale. Daly, 429. Whether a contract to cut and deliver wood, then in stand ing trees on the land of the contracting party, is within the statute of frauds or not seems to be uncertain. Smith v. New York Central R. E. Co., 4 Keyes, 180 ; S. C, 4 Abb. Ot. App. 262 ; Eillmore v. Eow- lett, 48 ]Sr. Y. 569 ; Boyce v. Washburn, 4 Hun, 792. In the case first cited the question before the court was, whether the contract was one of sale or for work and labor, and it was held to be a contract of sale within the statute. In the second case cited the question before the court was whether a contract to cut trees standing upon the con- tractor's land into cord wood and deliver the wood at so much per cord was a contract for the sale of an interest in land, and there- fore within another branch of the statute, requiring such contracts to be in writing, and it was held that no writing was necessary to give the contract vahdity. § IT. Rights and remedies of parties to contracts of sale. Where goods are sold, and, by the terms of the sale, they are to be paid for on delivery, the vendee must pay the money, or tender it to the vendee, before he is entitled to the possession of the goods. So, where goods are sold, and nothing is said about payment, the law im- plies that the goods must be paid for, or the price tendered before the vendee is entitled to take them. Clarke v. Dales, 20 Barb. 42, 61. But where goods are sold upon credit, for a specified time, or upon an indefinite credit, and by the terms of the contract nothing is men- tioned as to any security for the price, the vendee is entitled to the im- mediate possession of the goods, without payment or tender of the price, or of any security. The contract, however, must be one which is valid, and by which the title to the goods is transferred to the vendee by the effect of the contract of sale. And if the contract is void by the statute of frauds, or the title does not pass because of something to be done to the goods before delivery, the right to the possession will not pass on a sale on credit, any more than on any other sale. The time of making payment is either expressly agreed upon, or it is left to the rules of law to determine it, or it may be a question of fact to be settled by a jury, as where a person is accustomed to purchase goods of another on credit, and the vendee sends an order for goods in the usual manner in which he has been dealing; if the order is accepted and the goods put up, it may be a question of fact for a jury, whether the sale was not intended to be on credit. Though it has been seen, that in the absence of any circumstances to show that a credit was to be given, the law will imply that the goods are to be paid for on delivery. SALE. 129 Bights and remedies of parties to contracts of sale. Where, by the terms of the agreement, the time of payment and the time of delivering tlie goods are at different specified times, the agreement may be in the nature of independent covenants, in which neither party is bound to perform his part before requiring the other to do so. Box V. Dey, 3 Wend. 356 ; Dey v. Box, 9 id. 129, 133. For instance, if goods are sold, and the delivery is to precede the pay- ment of the price by six months, the vendee will, of course, be en- titled to the goods without payment or tender of the price. So, on the other hand, if the goods are sold on a credit of six months, and the vendee does not call for the goods, nor take them when tendered, if that is required by the contract, the vendor may recover the price at the expiration of the six months, although the vendee did not take goods. This rule must be understood to apply to those cases however, in which the contract is binding by the rules of law, and of a case of actual sale, not of a mere agreement for a future sale. Where goods are sold upon an agreement that the vendor will accept the note of a third person in payment for them, a tender by the vendee of such note to the vendor will change the title in the goods so that they become the property of the vendee. Des Arts v. Leggett, 16 N. Y. 582. If the tender is refused the vendee may, if he so elect, con- tinue in possession of the note as a bailee for the vendor. lb. Where the vendee gives his own note for the purchase-price of goods, the note is not a payment of the debt ; it is mere evidence of the existence of the debt, though it will operate to extend the time of payment until the time of payment specified expires. But where goods are purchased upon an agreement between the ven- dor and the vendee that the note of a third person, which is owned by the vendee, shall be taken in payment for the price of the goods, such note, if delivered by the vendee to the vendor, operates as a payment of the debt as mach as a similar amount in money would. Oonibs v. Bateman, 10 Barb. 573 ; Breed v. Cook, 15 Johns. 2il ; Bew v. Bar- her, 3 Cow. 272 ; Whiibeok v. Van Ness, 11 Johns. 409. But where the purchaser, on the sale of goods, instead of giving his own note therefor transfers the note of a third person and guarantees the pay- ment thereof, if the note is not paid when due, the vendor may recover against the vendee on an account for goods sold. Butler v. Haight, 8 Wend. 535. The vendee continues liable for the debt in such cases whether the guaranty be in writing or not, since the note is not received in payment as an absolute discharge of the debt, but is received as payment upon condition that the maker pays the note, and if he does not the vendee remains liable in the same manner as though the note 17 130 SALE. Rights and remedies of parties to contracts of sale. had never been given. Johnson v. Gilbert, 4 Hill, 178; Gardell v. MoNiel, 21 N. Y. 337; Torry v. Hadley, 27 Barb. 192; 2'yUr v. Stevens, 11 id. 486. Where goods are sold, and the vendor agrees to accept the note of a third person in payment, and the vendor sup- poses, at the time of making such agreement, that such third person is solvent and responsible, but before the goods are delivered or the note is tendered such third person becomes insolvent, the vendor is not bound to accept such note, although it is tendered by the vendee, nor is the vendor bound to deliver the goods for such note. Roget v. Merritt, 2 Caines, 117. So, where there is an executory contract for the delivery of goods, which are sold upon an agreement that upon the delivery of the goods they shall be paid for by the notes of a third party, and such third person becomes insolvent between the time of making the contract of sale and the time stipulated for its performance, the vendor is not bound to deliver the goods and accept the notes, although they are not entirely worthless. Benedict v. Field, 16 N. Y. 595 ; S. C, 4 Duer, 154. In a comparatively recent case the facts were as follows : The de- fendants, in consideration of the delivery to them of the note of a third party, agreed to sell and deliver to the plaintiff goods of certain specified kinds, the amount of each kind to be thereafter selected by the plaintiff, and the whole to be equal in value to the face of the note. After a portion of the goods had been delivered, and before the balance had been selected or set apart from the defendant's general stock, the note fell due and was not paid, and the defendants then learned, for the first time, that at the time it was delivered to them the maker of the note was insolvent. It was held that, as to the goods not yet deliv- ered, the contract was executory, and that the consideration of the con- tract having failed, they might refuse to deliver any more goods. Bruce v. Burr, 5 Daly, 510 ; S. C. afiirmed, 67 JST. Y. 237. Where, by the terms of an auction sale, the purchaser is to give ap- proved indorsed notes at six months, the vendor is not in fault for not approving and accepting notes offered to him by the vendee, unless he knows the notes to be good, or he is furnished with the means of ascer- taining them to be so. Hicks v. Whitmore, 12 Wend. 548. And see Draper v. Jones, 11 Barb. 263 ; Hanna v. Mills, 21 Wend. 90. Where the vendee has been guilty of a fraud, upon a purchase of goods on credit, the vendor may, without waiting until the time of credit has expired, reclaim the goods, or he may waive the tort and recover the y^a"'ue of the goods immediately. Kayser v. Sichel, 34 Barb. 84 ; Roth SALE. 131 Rights and remedies of parties to contracts of sale. V. Palmer, 27 id. 652; Willson v. Foree, 6 Johns. 110; Pierce v. Drake, 15 id. 475. In an action for goods sold and delivered, when the answer sets up that notes were given in payment of the debt, and that the notes were not yet due, it may be shown on the trial that the credit granted by accepting the notes was obtained by fraud ; and the plaintifE is under no obligation to anticipate the defense, and allege in the complaint the fraudulent character of the extended credit. Claflin v. Taussig, 7 Hun, 223. In the case of a wrongful conversion of personal property, it seems that the owner can waive the tort, and sue the wrong-doer in assumpsit, as for goods sold and delivered, where the latter has not sold, but re- tains the goods. Abbott v. Blossom, 66 Barb. 353. He may, at all events, when the wrong-doer has absolutely used the property for his own benefit, changing its condition and character. lb. And see Young V. Marshall, 8 Bing. 43. If the vendor has received the note of a third person in payment, he must first return that or offer to return it to the vendee, before suing for the price, or before bringing an action of replevin. Ante, 71. In an action for goods sold and delivered, the evidence showed that the defendant admitted the correctness of the bill and promised to pay it, but objected to the interest, and said he bought the goods on credit, without specifying the length of credit ; there was evidence that he had made payments on account of the bill, and that it was held that a judgment of the justice, in favor of the plaintiff, for the amount and interest, was correct. Whitloch v. Bueno, 1 Hilt. 72. Where goods are sold, and the vendee is to pay cash for them on delivery, or he is to give his own note therefor, payable at a future time, the vendee cannot require the vendor to accept his own notes in pajrment instead of money, nor as a substitute for the note which was to have been given by the vendee. In such a case the vendor is not bound to deliver the property until the money is paid, or untH such a note is given as was agreed upon. Leven v. hmith, 1 Denio, 571. And if the goods have been delivered, and the vendee refuses to pay the money as he agreed, the vendor may maintain replevin for the recovery of the goods. lb. ; Russell V. Minor, 22 Wend. 659. If, however, the vendor should de- liver the property without requiring the payment of the money, or the delivery of the note agreed upon, the vendee would be entitled to set off any notes which he held at the time against the vendor, in an ac- tion by him to recover the purchase-price. For, in that case, it would be an election on the part of the vendor to consider the goods sold. 132 SALE. Rights and remedies of parties to contracts of sale . and the title in the vendee, which would render the payment of the purchase-money a mere debt on the part of the vendee, and that would entitle liim to all the advantages of that position, including the right of eet-ofE. In an executory contract for the sale of an article to be paid for upon delivery at any time within a certain period, the obligations, of the one party to pay, and that of the other to deliver, are mutual and depend- ent ; and in an action by the seller for the price, it is not enough simply to show the defanltof the purchaser, he must show that he was ready and offered to deliver the goods. Dunhcum v. Pettee, 8 IST. T. 508. Whichever party seeks to enforce the contract against the other must show performance, or a. tender of performance on his part. lb. ; Yol. I, 21C. Where the court, in an action by the vendor upon such a con- tract, charged the jury, that, if the purchaser, during the time ap- pointed in the contract, did not demand the delivery of the article pur- chased, and offered to pay for it on the delivery, the plaintiff might recover, it was held that the charge was erroneous, and that the jury ought to have been instructed, that, in order to entitle the plaintiff to recover, he must have shown an offer of performance on his part. lb. Where the delivery of the thing sold, and the payment of the price, are to be simultaneous acts, the title, until payment or delivery, re- mains in the seller ; and where the acts are to be thus concurrent, the promises of the parties are dependent upon a mutual performance, and neither can maintain an action against the other, without showing, on his own part, an actual performance, or a legal offer to perform. That< this is the rule as to vendors, see KeUey v. Upton, 5 Duer, 336 ; Bun- ham V. Pettee, 8 N. Y. 608 ; Newcomb v. Cramer, 9 Barb. 402 ; Bout- well V. O'Keefe, 32 id. 434. But, as we have already seen, am,te, 16, the title to the property may pass without any delivery, if such is the in- tention of the parties, and the terms of the contract are consistent with sucli intention ; though the vendor will be entitled to retain the posses- sion of the property until the purchase-money is paid, if the sale was for cash on delivery, or was not a sale on credit. Where a carriage is built by a mechanic, in pursuance of a contract, and it is tendered to the customer, who refuses to accept and pay for it, and on his refusal to do so, the carriage is left in charge of a third per- son, of which the customer has notice, the mechanic, instead of selling it for what it may bring, and suing for the difference between that and the contract-price, may bring his action immediately, and declare upon the contract as upon a delivery of the property ; and he is entitled to recover the price agreed upon between the parties at the time of mak- SALE. 13S Rights and remediea of parties to contracts of sale. ing the contract. Bement v. Smith, 15 Wend. 493. Or, he may resell the carriage, and hold the purchaser liable for any loss on the resale. "Where goods are sold to be paid for by a bill or note, at a future day, which is not delivered according to the terras of the sale, the ven- dor may sue immediately for a breach of the special agreement, and recover, as damages, the whole value of the goods, allowing a I'ebate of interest during the stipulated credit ; but he cannot, however, maintain assumpsit upon the common counts until the credit has expired. Hanna v. Mills, 21 Wend. 90. To enable a vendee of a chattel to recover damages for the breach of the contract to deliver, he must prove payment, or a tender of the pur- chase-money, or other performance of the contract, upon his own part. McDonald v. Williams, 1 Hilt. 365 ; OornwaU v. Haight, 8 Barb. 328 ; Topping v. Moot, 5 Cow. 404 ; Glark v. Dales, 20 Barb. 42 ; Crandall V. Clarh, 7 id. 169. If the sale was for cash on delivery, the buyer is not entitled to recover damages for non-delivery, unless he can show that he was ready to receive and pay for the goods as delivered, and upon request for payment. Mets v. Abreoht, 52 111. 491 ; Isaacs v. N. Y. Plaster Works, 8 Jones & Sp. 27Y. But an offer by the buyer to pay the price is enough ; he is not bound to keep up a technical con- tinuing tender. Phillips v. Williams, 39 Ga. 597. In an action by a vendee upon a contract for the sale of an article to be delivered at a -particular place, if he shows that he was ready to pay at the time and place appointed, it is not necessary for him to prove payment or tender. Branson v. Wim,an, 8 N. Y. 182. If the payment was to be made in " New York funds," and it is shown that the vendee had means to pay them, there is no necessity of showing that he had obtained such funds for that purpose. lb. And, in such a case, the vendee need not prove that any demand was made by him upon the vendor. Vail v. Hice, 5 IS". Y. 155. Where the non-performance of a condition precedent is occasioned by the act of either party, either by disqualifying himself for performing on his part, or by his giving notice that he will not perform, the party seeking his remedy is not bound to aver perform- ance, or readiness to perform, on his part, but may allege the facts con- stituting his excuse ; and if the proof sustains them, he will establish his right to recover such damages as he can show he has suffered by the non-perfortnance of the other party. GlarJc v. Crandall, 27 Barb. 73. Where property is sold, and it is to be paid for on delivery, and the vendor gives notice to the vendee that he will not deliver the property, tlie vendee is not bound to demand performance, nor to tender pay- ment of the price, in order that he may recover damages against the 134 SALE. Rights and remedies of parties to contracts of sale. vendor for his non-performance of the contract. lb. And see OlarJc V. Orandall, 3 Barb. 612. And the rule is the same where the vendor fraudulently and falsely represents that he has sold the property. lb. And in the complaint, it will be sufficient to allege either of these facts in excuse of performance on the part of the plaintiEE. lb. Where the contract requires the purchaser to give security for the property pur- chased, he must offer the security in the manner required; and in an action by him against the vendor for non-delivery of the property, the purchaser must allege and prove the ofier of security. Cornwall v. Haight, 8 Barb. 328. Where the broken contract provided for the delivery of the goods to the buyer " on request,^' it is a condition precedent to the buyer's right of action that he should make this request personally, or by message or letter. But this requirement may be waived by the vendor's having incapacitated himself from complying with the request, by consuming, or re-selling, or otherwise so disposing of the goods as to render a re- quest idle and useless. Amory v. BrodwioTc, 5 B. & Aid. 712. And see Mills v. Gould, 10 Jones & Sp. 119 ; Mount v. Lyon, 49 N. Y. 552 ; Rarriss v. Williams, 3 Jones' (N. 0.) L. 483 ; Levy v. Burgess, 64 N. Y. 390 ; Speyer v. Colgate, 67 Barb. 192 ; Ifelson v. Plimpton Fire-proof E. Co., 55 N. Y. 480. A partial breach of contract, by a refusal to deliver any particular parcel of the goods, gives the buyer the right only to a compensation in damages for the partial breach. Simp- son V. Crippen, L. R., 8 Q. B. 14; S. C, 4 Eng. Eep. 200. And see Haines v. Tucker, 50 N. H. 307. So, if before the title has vested in the buyer the property is destroyed, without the fault of the seller, so that delivery becomes impossible, the seller is not liable for damages for a breach of the contract. In such cases a condition is implied in the contract itself, the effect of which is to relieve the party when per- formance has, without his fault, become impossible. Dexter v. Norton, 55 Barb. 272; S. 0. affirmed, 47 K Y. 62; S. C, 7 Am. Rep. 415. And see Spalding v. Rosa, 71 ^. Y. 40 ; Booth v. Spuyten Duyvil Rolling Mill Co., 60 id. 487. Before a btiyer is entitled to recover damages for a failure of the seller to deliver goods as agreed, when the latter has tendered goods in performance, and the former has refused them as not being of the grade agreed upon, he must prove a contract valid under the statute of frauds, for the sale and delivering of goods of the particular grade demanded. Bacon v. Eccles, 43 Wis. 227. A mere declaration of a vendor, to a third person, that he would not be able to deliver the property at the time agreed on is not evidence SALE. 135 Bights and remedies of parties to contracts of sale. of a breach on his part ; and to enable the vendee to recover damages for the non-delivery of the property, he must allege and prove pay- ment, or a tender of the purchase-money, or other pei-f ormance of the contract on his own part. McDonald v. Williams, 1 Hilt. 365. And see O'Brien v. Brietenhack, id. 304 ; Kifjp v. Wiles, 3 Sandf. 585. Where an order is drawn upon a person for the delivery of a speci- fied quantity of goods, and the order is accepted by him, it is necessary for the holder of the order to demand the goods before an action can be maintained. Burrall v. Jaoot, 1 Barb. 165. Where the defendant in his own name and upon his own credit agreed with the plaintiflEs for the purchase of a specified quantity of goods, to be paid for in the notes of a third person and on the delivery of a portion thereof, the time for the delivery of the residue is postponed to a time specified, and the plaintiffs present a bill for the quantity delivered, and the defendant denied that he was the purchaser, and refused to deliver the notes agreed for, on the sole ground that he was acting as the agent of an- other person, and was not liable on the contract, the plaintiffs are not bound to tender or offer to deliver the residue of the goods. Partridge V. Gildermeister, 6 Bosw. 57, 58. In such case the plaintiffs are en- titled, on proof of such refusal upon the ground stated, to recover the value of the portion of the goods which was delivered, if the jury are satisfied that the purchase was in fact made by the defendant and upon his credit, lb. By placing his refusal to pay for the goods upon the ground that he was not bound to pay for them at all, the defendant re- lieved the plaintiffs from delivering or tendering him any more goods, even if the postponement of the time of the delivery of the residue did not of itself entitle the plaintiffs to claim payment for the portion de- livered without waiting for such subsequent delivery. lb. When the property is sold which, from its nature, must be delivered in parcels if the contract is to pay on delivery, payment cannot be de- manded until the whole is delivered. Timmons v. Nelson, 66 Barb. 594 ; Kein v. Tujpper, 52 N. Y. (7 Sick.) 550. The delivery of a part of the goods under such a contract will give no right of action against the vendee. Gorrigam, v. Sheffield, 10 Hun, 227. When a sale is complete, and the title to the property is transferred absolutely to the vendee, several important consequences result to the parties. The risk of injury to the property, or its loss or deterioration are all with the vendee ; he has the sole right of disposal of it ; it is liable to be seized by his creditors upon legal process for that purpose ; he may maintain an action against the vendor to recover its possession in case of a refusal to deliver it, or for damages for such refusal, or for a 136 SALE. Bights and remedieB of parties to contracts of sale. conversion of it. And on the other hand the vendor is entitled to re- cover the purchase-price if delivered ; or to maintain an action for a refusal to receive and pay for the property if not delivered ; and while the property remains in the possession of the vendor he is a mere bailee. CHAPTER XIV. INTEREST ON MONET. Interest is the compensation which is paid by the borrower to the lender, or by the debtor to the creditor, for the use of money. A right to interest can arise in those cases only in which there is an express agree- ment to pay it, or when the circumstances of the case are such that the law will imply a promise to pay it, or will enforce its payment as a matter of justice to the creditor. In the absence of any statutory en- actment, parties may agree upon such a rate of interest as they choose. But there are restrictions upon this right which restrain the lender from tating a greater sum than that specified by the statute. Prior to 1879, it was provided by statute that " the rate of interest upon the loan or forbearance of any money, goods or things in action shall continue to be seven dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time." 3 E. S. 72, § 1, 5th ed. In that year the statute was amended by inserting the word " six " in the place of the word " seven " in the original statute. But the effect of the amendment was limited to contracts or obligations made after the passage of the act by a clause providing that " nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act." Laws of 1879, chap. 538. The statute applies to every case in which interest is recoverable, whether upon bonds, bills of exchange, promissory notes, or debts or demands of whatever nature. The parties may, if they choose, stipulate for a rate of interest less than that prescribed by the statute, and if they do so, the rate- agreed upon will determine the amount recoverable. Thus, where a promissory note was made in 1867, payable in ten days after date with interest at six per cent, it was held that the in- terest should be computed at six per cent according to the rate pre- scribed by the contract, until it ceased to operate by being merged in a judgment. Andrews v. Keeler, 19 Hun, 87. See also, Sullivan v. Fosdich, 10 id. 173, 181 ; Miller v. Burroughs, 4 Johns. Oh. 436 ; Van Beuren v. Van Oaasbeck, 4 Cow. 496 ; Hew Yorh Life Ins. <& Trust Co. V. Manning, 3 Sandf. Ch. 58. But see United States BTc. V. Cha^n, 9 Wend. 471 ; Brewster v. Wakefield, 22 How. (U. S.) 118 ; 18 138 INTEREST ON MONEY, Interest. Hitter V. Phillips, 53 N. Y. 586, 590. After the entry of judgment upon a contract, interest upon the recovery is to be computed at the rate prescribed by the statute in force at the time of the entry of judg- ment. Taylor v. Wing, 84 N. Y. 471 ; Prouty v. Lake Shore, etc., B. R. Co., 26 Hun, 546. In the absence of any agreement as to the rate of interest payable upon a loan, the law implies that the rate is that Kmited by statute ; and to increase that rate, a special agreement is required. Ouggen^ heimer v. Oeiszler, 81 N. Y. 293. An agreement to pay and to receive more than the statutory rate will be usurious. As a general rule, the law of the place where contracts purely per- sonal are made must govern as to their construction and validity, un- less they are to be performed in another State or country, in which case their construction and validity depend upon the law of the place of performance. Pomeroy v. Ainsworth, 22 Barb. 120 ; Balme v. Wom- hough, 38 id. 352 ; Dike v. Erie B. R. Co., 45 N- Y. 113 ; S. C, 6 Am. Rep. 43; CiirUs v. Delaware, etc., R. R. Go., 74 N. Y. 116; Merchants' Bh. v. Oriswold, 72 id. 472. If no place of performance is expressly stated or implied from the terms of the contract, the law of the place where it was made will govern. If a contract is to be performed partly in one country and partly in another, each portion is to be interpreted according to the laws of the country where it is to be performed. Where a contract for the pay- ment of money is made in one place, and payment is to be made in an- other, and no interest is expressed in the contract, the interest is to be governed by the law of the place where it is payable. Balme v. 'Wom- lough, 38 Barb. 352 ; Pomeroy v. Ainsworth, 22 id. 118; Fam,ningw. Consequa, 17 Johns. 511 ; Foden v. Slater, 4 id. 183. In the absence of any agreement on the subject, a debt is presumed to be payable at the place where it was contracted and where the creditor resides, and interest is to be computed according to the i-ate allowed by the laws in force at that place. Stewart v. EUice, 2 Paige, 604 ; Smith v. Smith, 2 Johns. 235 ; Ilosford v. Nichols, 1 Paige, 220. Where a note is signed, dated and made payable in this State by a resident thereof, with no intention that it shall be taken elsewhere for discount, it will be held invalid by the courts of this State if it is taken elsewbere and first negotiated at a rate of discount greater than that allowed by our usury laws. Jewell v. Wright, 30 N. Y. 259 ; Dickinson v. Edwards, 77 id. 573 ; overruling Bowen v. Bradley, 9 Abb. (N. S.) 395. When bonds, and a mortgage to secure payment thereof, are made in New York between parties resident there, and no provision is made INTEREST ON MONEY. 139 Interest. for the payment of the bonds elsewhere, they are presumably to be paid in New York, and interest is to be computed according to the laws of that State, although the mortgage given to seciire them is made upon real estate in Rhode Island. Kavanaugh v. Day, 10 R. I. 393 ; S. C, 14 Am. Rep. 691. And where the interest is payable, not as interest, but as damages for the non-payment of the bonds at their maturity, the same rule applies, and interest is to be computed according to the laws of the place where default is made. lb. See 4 Wait's Act. & Def. 147, 148. Where a non-resident dies in another State leaving a will, appointing an executor to whom real estate is devised, charged with the payment of a legacy to an infant, an action to enforce the legal liability of the devisee and executor, and to recover interest dur- ing the minority of the legatee, may be brought in this State; but as the cause of action arose in another State, the rate of interest allowed by the laws of that State should control. Brawn v. Knapp, 79 N. Y. 136. Where a written instrument, whether it be a bond, bill of exchange, promissory note, or other obligation to pay money, contains an express covenant or agreement to pay interest, then interest is plainly recover- able. But there are many eases in which there is no express agreement to pay interest, and yet it is payable by virtue of the rules of law. In- terest is recoverable on money due under a special contract, as where compensation for services is agreed upon at a specific sum per month. Still V. Rail, 20 Wend. 51 ; Feeler v. Heath, 11 id. 477. So interest is allowable in an action upon a covenant to pay rent, when the amount is a sum certain, and it is payable in money. Glarh v. Barlow, 4 Johns. '183. So where rent is payable in produce and work, the lessor is entitled to recover interest from the time the rent fell due, although there was no agreement for interest, and the damages are unliquidated. Yan Bens- selaer v. Jewell, 2 N. Y. 135; Livingston v. Miller, 11 id. 80 ; Lush \. Druse, 4 Wend. 313 ; VanBensselaer v. Jones, 2 Barb. 643. The old common -law rule which required that a demand should be liquidated, or its amount in some way ascertained before interest could be allowed, has been modified by general consent, so far as to hold that, if the amount is capable of being ascertained by mere com- putation, then it shall carry interest. MoMahon ,v. New YorJc c& Erie B B. €o., 20 N. Y.463, 469 ; Graham v. Chrystal, 1 Abb. (K S.) 121. And in some cases the coxirts have gone a step further and allowed interest upon an unliquidated demand, the amount of which could be ascertained by computation, together with a reference to well-established 140 INTEEEST ON MONET. Interest. market values, because such values in many cases are so nearly certain that it would be possible for the debtor to obtain some proximate knowl- edge of how much he was to pay. Van Rensselaer v. Jewett, 2 N. Y. 135 ; Sipperly v. Stewart, 50 Barb. 62. Thus, where a person hired rooms and board at a hotel for a speci- fied time and at a fixed price per week, but left before the expiration of the time, he was held liable, in an action to recover damages for the breach of contract, not only for the difference between what he agreed to pay and what the landlord received from a person to whom he had subsequently let the rooms, but also for interest on such difEerence from the expiration of the term for which the rooms were hired. J9e- Lavallette v. Wendt, 75 N. Y. 579. In this case the sum due the plaintiff at the time fixed for tlie expiration of the term was ascertain- able by mere computation, and the amount due was not unliquidated or uncertain in the sense .to prevent the accruing of interest thereon. So in an action on a contract to recover damages for the non-delivery of merchandise, it was held that the plaintiff was entitled to recover not only the difference between the contract-price and the market value, but also the interest on such difference ; and that the allowance of in- terest did not rest in the discretion of the jury. Da/na v. Fiedler, 12 N. Y. 40. But the courts are not inclined to extend the exception to the com- mon-law rule in the direction of allowing interest on a demand the amount of which is left to proof of value at the trial. See MoMahon V. New York & Erie R. R. Co., 20 N. Y. 463, 469 ; GaUup v. Perue, 10 Hun, 525. There are many cases in which interest may be charged upon what is called an implied agreement, or upon an agreement which, under the circumstances of the case, calls for the payment of interest as a matter of justice and right. In such cases the law enforces the duty to pay interest by compelling its payment. It is a general rule that when a time is specified for the payment of a legacy, and there is no direction in the will as to interest, the legacy will carry interest only from the time the legacy is payable. But there is a well-defined exception to this rule. Where there is a legacy to a minor child, or to an infant as to whom the testator is in loco parentis, and such legatee has no other provision nor any maintenance in the meantime allotted by the will, the legacy, though payable at a future day, carries interest from the death of the testator. Brown v. Knapp, 79 N. Y. 136; Lupton v. Lupton, 2 Johns. Oh. 614; Cooke V. Meeker, 36 N. Y. 15, 18. INTEREST ON MONEY. 141 Interest. As a general rule, interest is allowable on cash advanced by one per- son for another, although the advances rest in the form of a mutual, current unliquidated account. Rensselaer Glass Factory v. lieid, 5 Cow. 588 ; Gillet v. Yart, Rensselaer, 15 N. Y. 399 ; Trotter y. Grant, 2 Wend. 413, 415. So, interest is chargeable upon the sum due on a policy of insurance after a loss, and after the time when the money is due upon it. Vandenheuvel v. United Ins. Co., 1 Johns. 406, 413. A forwarding merchant is entitled to charge interest on his account, where his customer knows such is his ordinary usage. Meeoh v. Smith, 1 Wend. 315. One who has deposited money on a bet, and the money has been paid over, may nevertheless recover the money with interest thereon from the time a demand is made therefor. Ruckman v. Pitcher, 20 N. Y. 9 ; S. C, 13 Barb. 556. If one partner withdraws or uses the partnership funds in his own private trade or speculations, he must account not only for the interest on the money so withdrawn or used, but for the profits of the trade. Stoughton v. Lynch, 1 Johns. Ch. 467 ; S. 0., 2 id. 209 ; ATnes v. Downing, 1 Bradf. 321. An unliquidated demand for work, labor and services does not, as a general rule, bear interest. Rensselaer Glass Factory v. Reid, 5 Cow. 587 ; Doyle v. St. James' Church, 7 Wend. 178 ; Van Beuren v. Yan Gaasbech, 4 Cow. 496 ; Hadl&y v. Ayres, 12 Abb. (N. S.) 240 ; S. C. affirmed, 46 N. Y. 691 ; Godfrey v. Moser, 3 Hun, 218 ; S. C, 5 Sup. Ct. (T. & C.) 677 ; Gallup v. Perue, 10 Hun, 525 ; Smith v. Yelie, 60 N. Y. 106; Pursell v. Fry, 19 Hun, 595. But there may be an exception to the rule where the account for the labor and services is substantially liquidated, the value of the services undisputed, and the liability to pay is the only question litigated. See Adams v. Fort Plain Bamk, 36 N. Y. 255 ; Mygatt v. Wilcox, 45 id. 306. Both these cases were actions by attorneys to recover for professional services ; and it was held in one case that interest could be recovered from the time payment for the services was due ; and in the other, that it could be recovered from the time the account was rendered by the attorney to hif client. In an action upon an account for medical attendance, when a demand of payment is proved, but there is no evidence as to when the services were rendered nor when the demand was made, interest can be allowed the plaintiff from the commencement of the suit only. Rawson v. Grow, 4 E. D. Smith, 18. In an action to recover a bal- ance claimed to be due for services upon a quantum meruit, the plaint- iff is at least entitled to interest from the commencement of the action. Mercer v. Yose, 67 N. Y. 56 ; McCollvm v. Seward, 62 id. 316. 142 INTEREST ON MONEY. Interest. * Interest is not recoverable upon an unliquidated demand for board and lodging where there was no price or time of payment stipulated between the parties, or to be inferred from the facts, and there is no proof of any usage on the subject. Holmes v. Ramikin, 17 Barb. 454-. But, under the cases cited, if there is a fixed market value by which the rate of services rendered, or board and lodging furnished, could be de- termined, then interest would be recoverable. Interest on a bill of official fees is not recoverable unless there has been a regular taxation. Mumford v. JlawJcins, 5 Denio, 355. A merchant or manufacturer whose custom it is, after a limited period, to charge interest upon articles sold or manufactured by him, may charge interest accordingly to those who are in the habit of deal- ing with him with a knowledge of such custom. Meab v. McAlUster^ 8 Wend. 109 ; S. C, 4 id. 483. Although the law does not, in general, give interest upon an open running account for goods sold, yet it may be recovered where there was a stipulated term of credit given which has expired, or where there is an agreement, express or implied, to pay interest. Esterly v. Cole^ 3 N. Y. 502 ; S. C, 1 Barb. 235. And an agreement to pay interest may be inferred from the course of dealing between the parties, as where it has been charged and allowed under like circumstances. lb. So it may be inferred from a uniform practice of the creditor to charge interest, which is known to the customer at the time of dealing. lb. So also, where there is a general usage in any particular trade or branch of business to charge and allow interest, parties having knowledge of the usage are deemed to contract with reference to it. lb. Dealers are not presumed to know such- customs ; the knowledge must be established either by positive evidence, or by circumstances from which it may be inferred. lb. Knowledge of the usage may be established by presumptive, as well as by direct evidence. It may be presumed from the fact that both parties are engaged in the particular trade or branch of business to which the usage relates ; and also from other facts, as the uniformity, long continuance and notoriety of the usage. Esterly v. Cole, 8 N. Y. 502. The testimony of a witness that it is the unifonn practice of grocers to charge interest on goods sold, after ninety days, unless a special agreement to the contrary is made, does not amount to proof of the usage of a particular trade, of which all dealers in that line are bound to take notice, and are presumed to be informed. Wood V. HickoTc, 2 "Wend. 501. Evidence of such a custom or practice is competent, but, standing alone, it is not sufficient to establish a knowl- edge on the part of the purchaser that interest is thus chargeable. INTEREST ON MONEY. 143 Interest. Interest cannot be allowed on an unliquidated account for goods sold and delivered, where no time is fixed for payment, and where there is no agreement, express or implied, to pay interest. McKnight v. Dun- lop, 4r Barb. 36 ; Van Beuren v. Van Gaasbeck, 4 Cow. 496 ; Newell V. Oriswold, 6 Johns. 45 ; Tucker v. Ives, 6 Cow. 193 ; Kane v. Smith, 12 Johns. 156 ; Liotard v. Graves, 3 Caines, 226. See Marsh V. Fraser, 37 Wis. 149 ; GrubVs Appeal, QQ Penn. St, 117 ; Williams V. Hersey, 17 Kans. 18 ; Adams Ex^. Co. v. Milton, 11 Bush (Ky.), 49 ; Brady v. Wilcoxon, 44 Cal. 239 ; Farmers^ Loan, etc., Co. v. Mann, 4 Eob. 356. An account which consists of items on the part of the plaintiff, and only of credits and payments on the part of the de- fendant is an unliquidated account, which does not carry interest without an agreement, express or implied. Wood v. Hichok, 2 Wend. 501. Interest is due on a balance of account from the time it is liquidated ; and it is to be considered as liquidated when rendered if no objections are made to it. Walden v. SherTmrne, 15 Johns. 409 ; Daniels v. Osborn, 75 111. 615 ; Beers v. Reynolds, 12 Barb. 288 ; S. C, 11 N.Y. 97. * Interest is chargeable on a balance of accounts, only from the time that the party against whom the charge is made has notice of the deficiency on his part. Kaney. Smith, 12 Johns. 156. Where a run- ning account is presented, with interest calculated to the day of such presentment, and the debtor admits its correctness, except as to speci- fied items, and he makes a payment on account, the creditor, upon after- ward proving the correctness of the account in respect to the items objected to, is entitled to interest, from the time of presentment, upon the whole balance left unpaid. Crane v. Rardman, 4 E. D. Smith, 448. But see Rayrrmid v. Williams, 40 Iowa, 117. To the general well-settled rule that interest is not recoverable unless there was an agreement to pay it, or unless the plaintiff's demand was either liquidated or capable of being ascertained by computation merely, or could be determined by a reference to ordinary market rates, there is an exception recognized by the courts in favor of the creditor where the debtor is himself in default in not taking the proper and necessary steps to ascertain the amount of his debt. Thus, where a contract for the construction of a railroad provided that the work should be paid for according to estimates and measurements which were to be made by the engineer of the company, and the company refused to direct their engineer to make the necessary estimates, although requested by the contractor to do so, it was held that interest was allowable on thede. mand from the time of such refusal by the company. McMahon v 144 INTEREST ON MONEY. Interest. New York & Erie R. R. Co., 20 N. Y. 463. Interest is sometimes allowed where the delay in payment has been fraudulent, unjust or op- pressive. Wood V. Rdblins, 11 Mass. 504 ; Jassoy v. Horn, 64 111. 379. Interest may be recovered on the amount agreed to be paid as a compromise of a disputed right or claim ; and the interest commences running from the time when there is a performance of the acts which were to be done by the person to whom the promise was made, and to whom the money was to be paid. Palmer v. North, 35 Barb. 282. Where the principal beneficiary under a will promised the heirs at law a specified sum if they would not' oppose the probate of the. will, and the heirs assented to the arrangement, and the will was admitted to probatei it was held that interest was payable on the specified sum from the time when the will was admitted to probate. lb. Entries in the books of account of a firm, in the handwriting of one of the partners, exhibiting a debit and a credit side of an account, from which it appears a balance is due from the firm, although no balance is struck in the books, is proof sufiicient of the original indebtedness, and entitles the creditor to interest from the time that the parties inspected the accounts while in that situation. Patterson v. Ohoate, 7 "Wend. 441. This case has been overruled upon another point in it, but not in respect to the principle just stated. In an action for damages for a breach of warranty in the sale of seed, interest on the damages from the time when the crop would have been harvested and sold cannot be recovered, as the amount of the demand in such case cannot be determined by compntation simply, nor by a refer- ence to market values. White v. Miller, 71 N. Y. 118 ; S. C, 27 Am. Eep. 13 ; S. 0. again, 78 N. Y. 393. Where a claim is of such a nature that it does not draw interest from a date earher than the commencement of an action thereon, in- terest cannot be allowed from the commencement of the action nnless the claim is such that interest could be set running by a demand. If it is of such nature, the commencement of the action is a sufficient de- mand, and interest may be recovered from that time. White, v. Miller, 78 N. Y. 393. A chattel note which promises to pay a sum certain at a specified time ought to entitle the holder to recover the amount due, with in- terest from the time when default was made in the payment of it. And the rule ought to be the same when a chattel note is payable in a speci- fied number or quantity of articles, as is the case in actions for rents. Dana Y.Fiedler, 12 N. Y. 40; Clark v. Pinney, 7 Cow. 681. INTEREST ON MONEY. 145 Interust. Upon a recovery upon a premium note for the non-payment of an assessment, the plaintiff is entitled to interest from the time when the assessment became payable. Sands v. Annesley, 56 Barb. 598 ; Hyatt v. Wait, 37 id. 29. But when the assessment is less than the whole amount of the notes in suit, the plaintiff is not entitled to intferest upon the amount of the note, the recovery upon the whole amount being in the nature of a penalty. Bangs v. Mcintosh, 23 Barb. 592 ; Bwngs v. Bailey, 37 id. 630. "Where the vendee, in a contract for the purchase and sale of real estate, takes possession of the property as owner, without having paid the purchase-money, he is bound to pay interest. Stevenson v. MawweU, 2 N. Y. 408 ; Parker v. Pa/rk6r, 65 Barb. 205. Where a contract is made for the sale of real estate, and the vendor cannot, or will not, give a good title to the land, he must refund the purchase-money paid, with interest from the time when he was bound to convey, if he refuses to convey, and from the time when a deed is demanded, if he cannot give a good title. Pierce v. Nichols, 1 Paige, 244. Where the purchaser of personal chattels has paid the price in ad- vance, and the vendor neglects or refuses to deliver the property, the purchaser will be entitled to recover the value of the goods at the time when they were to have been delivered and at the place of de- livery, with interest on such value. Where the price has not been paid in advance, and the action is brought by the vendee for the non- delivery of the goods, he is entitled to recover the difference between the contract-price and the market value of the articles at the time and place of delivery, with interest thereon. Dana v. Fiedler, 12 N. Y.40. Where goods are sold at a cash sale, the purchase-price will draw in- terest from the time of the sale, if the money is not paid at that time. Sewall V. Gihbs, 1 Hall, 602. A sale is presumed to be for cash unless the giving of a credit is proved. And where a bill for goods sold includes a charge for interest upon the price, and the purchaser, upon its pre- sentation to him, promises to pay the bill as made out, the allowance of interest down to tlie time of trial is proper. Polloch v. £Me, 2 E. D. Smith, 541. Promissory notes and bills of exchange draw interest from the time when they become due, without any agreement for in- terest. And when they are payable with interest, they bear interest from the date, unless some other time is specified in the instrument. Kennerhf v. Nash, 1 Stark. N. P. 452. 19 146 INTEEEST ON MONEY. Interest. A sum of money, payable by an instrument in which interest is not mentioned, and which does not specify any time of payment, or that the money is payable on demand, draws interest from the date of the instrument. Purdy v. Phillips, 11 N. T. 406 ; Francis v. Oasfleman, 4 Bibb (Ky.), 282. But where a note is payable on demand, interest will not be allowed from the date of the note, but from the time of de- mand. BisJiojp V. Sniff en, 1 Daly, 155 ; Wells v. Aherneihy, 5 Conn. 222 ; Breyfagle v. Beckley, 16 S. & E. 264. See Herrick v. Wol- verton, 41 N. T. 581 ; S. C, 1 Am. Rep. 461 ; Wheeler v. Warner, 47 N. Y. 519 ; S. C, 7 Am. Eep. 478. So, interest, by way of damages, is recoverable upon the overdue coupons or interest warrants of rail- road bonds, from the time of demand and refusal of payment. WJilta- Jcer V. Hartford, etc., JR. B. Co., 8 R. I. 47 ; S. C, 5 Am. Rep. 547. When a contract is to pay money by installments and the payments are to commence at a future time, "with interest," the interest begins to run from the making of the contract. Conners v. Holland, 113 Mass. 50. In cases of trover, replevin and trespass, interest on the value of the property unlawfully taken or converted is allowed by the way of dam- ages, for the purpose of complete indemnity to the party injured. How that value shall be estimated is another question. In exceptional cases, where the value of the property taken is fluctuating, the courts have held that the measure of damages is the highest market-price of the goods, at the place of taking, at any time between the taking and the trial. Burt v. Butcher, 34 N. Y. 493 ; MarTcham v. Jaudon, 41 id. 235 ; Ldbdell v. Stowell, 51 id. 70. When this rule of damages is adopted, interest on the value of the goods taken is not allowed. But this rule of damages is not regarded with favor by the courts, and will be applied only in exceptional cases. See Baker v. Brake, 13 Am. Rep. 507 ; S. C, 53 N. Y. 211 ; Whelan v. Lynch, 60 id. 469 ; S. C, 19 Am. Rep. 202 ; Matthews v. Goe, 49 N. Y. 57. And in actions for the wrongful taking and conversion of personal property, where there is no question of malice or claim for exemplary damages, the plain tifE will be entitled to recover the market value of the goods at the time of the wrongful taking," and interest on that sum from the conver- sion to the time of the trial. Wehle v. Havilam,d, 69 N. Y. 448. See Wilson V. Conine, 2 Johns. 280 ; Bissell v. Hopkins, 4 Cow. 53 ; Hyde v. Stone, 7 Wend. 354. The market value is the price for which the goods could be replaced for money in the market, and not what they would bring at retail. lb. In an action of trover interest is as necessary a part of complete indemnity as the value itself, and in fix- ing the value is not any more in the discretion of the jury than the INTEEEST ON MONEY. 147 Interest. value. Andrews v. Durcmt, 18 N. T. 496; MoCormick v. Pennsyl- vania R. R. Go., 49 id. 303. Upon the same principle interest may be allowed, in actions of trespass for taking the property of the plaintiff, upon the value of the property taken, from the time of the taking to the judgment. Reals v. Qvsrnsey, 8 Johns, 446. In replevin, the damages, when limited to an indemnity, will be ascertained, by adding to the value of the property, at the time when the owner is dispossessed, the damages which he is proved to have sustained from the loss of its possession. Interest on the value which the property bore at the time of the injury, from that time to the time of the trial or judgment, must be added to complete the indemnity. Stvydam v. Jenkins, 3 Sandf. 614 ; Rowley v. Oihls, 14 Johns. 385. See Brizsee v. Mayhee, 21 Wend. 144 ; Young v. Willet, 8 Bosw. 486. In many cases, interest on the value of the property taken, from the time of the wrongful taking, would be the proper measure of dam- ages for the detention of the property, and in other cases it would not. It would be, generally, in all cases where the property detained is merchandise kept for sale, grain and other articles useful only for sale or consumption. In such cases, if the owner recovers the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity unless the property has de- preciated in value, in which case the depreciation must be added to the interest on the value, and the two items wiU furnish the amount of the damage for detention. This damage, with the property, or added to its value at the time of the trial, will give complete indemnity. But when the property has a usable value, such as horses, cows, carriages and boats, the value of the use during the time of the detention is a proper item of damages. Allen v. Fox, 51 N. Y. 562 ; S. C, 10 Am. Eep. 641. And see Ola^ v. Walter, 2 Tex. 130 ; Da/rley v. Casso- way, 2 Harr. & J. 413 ; Rutl&r v. Nehrvng,!^ 111. 488 ; MoOavick v. Chamlerlavn, 20 id. 219 ; Clinton v. Tovmsend, 46 How. 42 ; S. 0., 1 Sup. Ot. (T. & 0.) 330 ; Keep [v. Kaufmami, 6 Jones & Sp. 476 ; S. C. affirmed, 63 N. Y. 643. Interest upon the value of property lost or destroyed by the wrong- ful or negligent act of another is a proper item of damages. Parrott V. EnidkerhoGker <£; N. T. Ice Co., 46 JST. Y. 361. In an action to recover damages occasioned by the collision of two vessels, the cost of repairing the injured vessel, her rental value while undergoing repairs, and the interest on both items are properly allowed as damages. Mail. hr V. Express Propeller Line, 61 N. Y. 312 ; Whitehall Transp. Go. T. N. J. Steamboat Co., 51 id. 369. 148 INTEREST ON MONEY. Interest. Interest may be awarded upon the value of live stock killed by the negligent acts or omissions of a railroad company. Lachm v. Ddcmaa/ra & Hvdson Ca/nal Co., 22 Hun, 309. And it may also be awarded by way of punitory damages for any fraud, delinquency or injustice of a carrier to the owner of goods, as for example, where the carrier of cot- ton by boat sold the covering, thereby exposing the cotton to rain and other injuries, so that the cotton was • greatly damaged. Chicago B. H. Co. V. Ames, 40 111. 249 ; Wolfe v. Zacy, 30 Tex. 349. Where money is loaned at less than the legal rate of interest, but the contract of lending is indefinite as to the length of credit, and after the death of the lender, the borrower denies the debt and conceals the evidence of it, he is chargeable with interest at the legal rate, from the time of such denial and concealment. Lawrence v. Trustees of Leahe <& Watts Orpham, House, 2 Denio, 57Y. A judgment for a sum of money rendered in a court of record or not of record bears interest from the time when it is entered. Code of Civil Pro., § 1211. Occasionally a claim is made for interest upon interest, or, as it is usually termed, compound interest. In the absence of an express agreement to pay it, the law will not give compound in- terest. Forman v. Formam,, 17 How. 255 ; Toll v. Hiller, 11 Paige, =228 ; Wilson v. Davis, 1 Mont. T. 183 ; StocTceley v. Thomson, 34 Penn. St. 213 ; Force v. City of Elizabeth, 28 N. J. Eq. 403. A contract is not usurious by reason of stipulating for the payment of compound interest. But the courts of this State will not enforce an agreement for its payment, when the agreement is made before any interest accrues. Connecticut v. JacTcson, 1 Johns. Ch. 13 ; Yam Ben- schooten v. La/wson, 6 id. 313 ; QuacTcenbush v. Leonard, 9 Paige, 334 ; Toll v. Hiller, 11 id. 228 ; Mowry v. Bishop, 5 id. 98. Com- pound interest can only be recovered upon some new and independent agreement made after simple interest has accrued, and upon sufficient consideration, or, in mercantile transactions, upon a contract implied from the course of dealing or from custom. Youm,g v. Hill, 67 N. T- 162 ; S. C, 23 Am. Eep. 99. But, where there is a loan of money, and interest has become due and payable, an agreement may be made to include the interest then due with the principal sum, and that both shall be considered a new princi- pal and draw interest. And a note, bond or other obligation which is founded upon such an agreement is valid, and may be enforced in a court of law or equity. Kellogg v. Hickoh, 1 Wend. 521 ; Townsend V. Corning, 1 Barb. 627 ; Mowry v. Bishop, 5 Paige, 98. In such case the forbearance will constitute a consideration. But a promise to INTEREST ON MONEY. 149 Interest. pay interest upon interest, which is to operate retrospectively, and is supported by no consideration save a moral one resulting from the fact that the interest is in arrear and impaid, is not valid. Young v. HUl, 67 N. Y. 162; 23 Am. Eep. 99. And see Gunn v. Head, 21 Mo. 433; Howard v. Farley, 3 Eobt. 308 ; S. C, 19 Abb. 126 ; Bamks v. Mo- Clellan, 24 Md. 62 ; 8toner v. i:vam,s, 38 Mo. 461 ; Doe v. Vallejo, 29 Cal. 385 ; Cra7ner v. Lepper, 26 Ohio St. 59 ; S. C, 20 Am. Eep. 756. Where a debtor, upon whose obligation installments of interest which had, from time to time, become due, remained unpaid, enters into an agreement to pay the said obligation with compound interest, the promise is met by the payment of simple interest upon the princi- pal unpaid at the date of the agreement, and simple interest, also, upon the total arrears of interest at that time due and unpaid. It does not authorize the compounding of interest annually for the whole period during which interest has become due by the terms of the obligation. Guernsey v. Rexford, 63 N. Y. 631. See Bledsoe v. Nixon, 69 N. 0. 89 ; S. 0., 12 Am. Eep. 642 ; Wheaton v. Pike, 9 E. I. 132 ; S. C, 11 Am. Eep. 227. Without a special agreement, compound interest is only allowed in case of gross delinquency or intentional violation of duty. Bennett v. Coolc, 2 Hun, 526 ; S. C, 5 Sup. Ct. (T. & C.) 526 ; Bayner v. Bry- son, 29 Md. 473 ; Genin v. Ingersoll, 11 W. Ya. 549. When a mortgage is assigned by the mortgagee with the concur- rence of the mortgagor, and there is interest then due and unpaid upon the mortgage, which is paid by the assignee, as well as the prin- cipal sum, he may recover interest on the money so paid for the in- terest as well as upon the principal sum. Jaohson v. Campbell, 5 Wend. 572. A promissory note, payable one year afterdate, with in- terest to be paid quarter-yearly, is valid. Mowry v. Bishop, 5 Paige, 98. Compound interest cannot be claimed unless the debtor intends and agrees to pay it. Where a creditor claimed and received from his debtor, upon the liquidation of a security bearing annual interest, an amount ascertained by a third person who made annual rests and computed interest upon interest, both parties supposing the amount to be correct, it was held that an action for money had and received would lie to recover back the excess paid beyond the amount due by a calculation upon correct principles. Boyer v. Pach, 2 Denio, 107. An executor, administrator or trustee is not allowed to make any gain, profit or advantage from the use of the trust funds. If he neg- ligently suffers tlie trust money to lie idle, he is chargeable with sim- 150 INTEREST ON MONEY. Interest. pie interest. If he converts the trust moneys to his own use, or employs them in his business or trade, he is chargeable with compound interest. Schieffdin v. Stewart, 1 Johns. Ch. 620; Dunscomh v. Dunscomh, id. 508 ; Mcmning v. Manning, id. If he neglects to make investments, he is chargeable with the interest of the unem- ployed funds, commencing six months after the receipt of the money. DePeyster v. Clarkson, 2 "Wend. Y7; Dunsoonib v. Dunscomb, 1 Johns. Ch. 508. And see Robinson v. MoOregor, 16 Barb. 531. If a receiver loans out any part of the money which came to his hands as such receiver, even temporarily to his friends or others, it is a breach of trust. Utica Ins. Co. v. Lynch, 11 Paige, 520. Where a trustee mingles the trust funds with his own funds, and uses them, it is a breach of trust, and he will be charged with simple interest thereon, although he has not actually made a profit upon the trust fund equal to simple interest. lb. A trustee is not allowed to make a profit out of the trust funds for his own benefit ; and if he employs them m trade, whereby he makes more than simple interest, he will be charged with the whole profits, either by making periodical rests and charging him with compound interest, or in such other manner as will best carry out the principle of giving to the cestui que trust the benefit of all profits made beyond simple interest. lb. But these matters are more important to surrogates and practitioners in courts of record than to justices of the peace and litigants in their courts. Where a note is payable in a given number of years, with interest from date, at a specified rate, such interest is not payable annually, but at the maturity of the note. Koehrimg v. Muemminghoff, 61 Mo. 403 ;,S. C, 21 Am. Rep. 402; Buchman v. Bergholz, 38 N. J. L. 531. " Interest is not payable before the principal on which it accrues, un- less there be a special agreement to that effect. French v. Kennedy, 7 Barb. 452. There is no general principle of law which requires the interest on notes, bonds or other written contracts for the payment of money to be paid annually. The time at which it is to be paid must depend upon the agreement of the parties, as expressed in the contract. Bam- der v. Bander, 7 Barb. 560 ; S. C, 5 How. 41. A promissory note in these words, " For value received, I promise to pay M. B., or bearer, the sum of $1,000, payable in ten annual installments, with ase ; the first payment to become due on the 1st day of June, 1848," does not draw interest annually on the whole sum unpaid ; but interest is pay- able on the several installments only as they respectively become due. INTEREST ON MONEY. 151 Interest. lb. This decision proceeds upon the principle that interest is not pay- able until the principal sum is due, unless a difEerent agreement is made by an express contract. Interest is recoverable on contracts for the payment of money from the time when the principal ought to have been paid. Williams v. Sherman, 1 "Wend. 109. A bond, dated in October, 1827, was conditioned for the payment of a sum of money in three installments, one on the 1st day of May, 1830, another on the 1st day of May, 1832, and the third on the 1st day of May, 1834, and following the condition were these words : " or of the interest thereof, or any part thereof, to be paid yearly, and every year, on the first day of May in each year, after the same commences, then," etc. ; and it was held that the interest must be deemed to have commenced on the 1st day of May, 1828, on the whole sum unpaid. J^ake v. Eddy, 15 Wend. 76. On a bond, bearing date the 28th day of June, 18Y1, conditioned for the payment of the sum of $500 on the 1st day of April, 1873, with interest annually on the first day of April in each year, the first interest will become due on the 1st day of April, 1872. Cook v. Clarh, 3 Hun, 247 ; S. C, 5 Sup. Ct. (T. & C.) 493 ; S. C. affirmed, 68 N. Y. 178. A mortgage given for a just debt is not rendered fraudulent as against creditors by including in it interest on the debt not collectible at law, where the allowance of interest is just and equitable. Spencer V. Ayrault, 10 N. Y. 202. Interest is not considered as a part of the debt, so as to support a suit for it separately, after the principal has been paid. Johnston v. Brannan, 5 Johns. 268 ; Brower v. Jones, 3 id. 230 ; Stevens v. BaV' ringer, 13 Wend. 639. In the absence of any express promise to pay interest, the law does not make a party liable for interest until he is in default for not paying the principal. Oay v. Gardiner, 54 Me. 477. If, therefore, he has paid the principal, he cannot be put in default, and no action will lie against him to recover interest unless there was an express contract to pay interest. Bobbins, etc., Co. v. Brower, 48 Me. 481. In such cases interest, when allowable, is allowed not as part of the contract, but as an incident, and by way of damages for the de- fault, to make the creditor good for the loss he has sustained by reason of the breach or default. Southern Oeni/ral E. B. Co. v. Town of Moravia, 61 Barb. 180. Where interest is only recoverable as damages for the non-payment of the principal when it became due, the receipt of the principal debt by the creditor is a bar to any claim for interest thereon. Jacol v. Emmett, 11 Paige, 142 ; Tenth Nat. Bh. v. Mayor, 4 Hun, 429. One 152 INTEEEST ON MONEY. Interest, reason why the interest is not recoverable in such cases is that the in- terest, being a mere incident, cannot exist without the debt, and the debt being extinguished, the interest must necessarily be extinguished also. Southern Central R. R. Co. v. Town of Mora/oia, 61 Barb. 180. But an action may be maintained for the recovery of interest, although the principal of a debt has been paid, where the payment of interest is stipulated for in the contract ; it is only when interest is not stipulated for in the contract, and is recoverable merely as damages, or as an in- cident to the debt, that a creditor is precluded from sustaining an action for its recovery after accepting the principal. FaJce \.Eddy, 15 Wend. 76 ; Southern Central R. R. Co. v. Tovm of Moravia, 61 Barb. 180. In an action upon a bond conditioned to indemnify the obligee against moneys which he may be compelled to pay for a third person, the obligee may recover the moneys he may be compelled so to pay, to the amount of the penalty, together with interest upon the amount as damages for the detention. Lyon v. Clark, 8 N. Y. 148. Such a bond, although in form one of indemnity, is a bond for the payment of money only, and the obligors, although describing themselves as the attorneys of a third person, are in no respect sureties. lb. Where the sum actually due, by the condition of a bond without interest, equals the penalty, interest can be recovered as damages beyond the penalty, lb. The apparent conflict in the cases upon the question whether a re- covery in debt upon a penal bond can be had beyond the penalty arises from confounding actions on bonds for the performance of covenants, with actions on bonds for the recovery of money only. In the former class of cases the recovery is generally limited to the amount of the penalty, while in the latter it is not. lb. The recovery against a surety in a bond for the payment of money is not limited to the penalty, but may exceed it so far as necessary to inchide interest from the time of the breach. Brainard v. Jones, 18 N. Y. 35. So far as interest is payable by the terms of the contract, and until default is made, it is limited to the penalty, but after breach it is recoverable, not on the ground of contract, but as damages, which the law gives for its violation. lb. In the absence of an express agree- ment, or of a custom known to the party charged, interest cannot be charged by a forwarding and commission merchant, on items for freight, wharfage and storage ; he is entitled to interest on cash ad- vances only. Trotter v. Grant, 2 Wend. 413. As has been shown, the right to interest and the amount of the re- covery may depend upon the question whether payment was demanded before action. In some cases no demand is necessary to put the debtor INTEREST ON MONEY. 153 Interest. in default. No demand is necessary before bringing an action for money received to the plaintiff's use, where it was the duty of the de- fendant to have remitted it, and in such a case interest is recoverable from the time when it ought to have been remitted. Stacy v. Graham,, 14N.Y. 492. Interest is recoverable against a person intrusted with the collection of money, as a loan officer who retains it and converts it to -his own use, from the time when the sum ought to have been paid over. People v. Gasherie, 9 Johns. 71. A party who receives money which belongs to another, and who refuses to pay it over, is chargeable with interest, although he has a set-off, and the precise amount due from him is not liquidated previous to the commencement of the suit. Crreenly v. Hopkins, 10 Wend. 96. "Where a sheriff is in default for not paying over money pursuant to an order of the court, he is liable to pay interest on the amount from the time when a demand was made in pursuance of the order. Slingerland v. Swa/rt, 13 Johns. 255. So, if a sheriff retains money which he has collected on an execution after its return day, he is liable to pay interest. Crane v. Dygert, 4 "Wend. 675. An action may be maintained against him to recover the moneys so collected without a previous demand. Nelson v. Kerr, 2 Sup. Ct. (T. & 0.) 299 ; S. C. affirmed, 59 N. T. 224. Where a person is bound to pay over money, or to remit it, without a demand before suit, such person is liable to pay interest from the time when the money ought to have l;)een paid or remitted, although no demand has been made before suit. But, when such person is not under obligation to pay over the money, or to remit it without further instructions, or until after a demand or a notice to pay over or remit it, a demand must be made before interest can be collected of him. If a constable fails to return an execution within five days after the retam day thereof, the party in whose favor it was issued may recovef against the constable the amount of the execution, if it was issued on a judgment, for a sum of money, or if it was for the delivery of the possession of a chattel, the value of the chattel as specified in the judg- ment, together with the damages and costs awarded thereby, and in either case, with interest from the time when the judgment was ren- dered. Code of Civil Pro., § 3039. So, where money collected by aeon- stable upon an execution is not paid over by him according to law, any person entitled thereto may maintain an action in his own name upon the instrument of security given by the constable and his sureties, and may recover therein tlie sum so collected with interest from the time when it was collected. Code of Civil Pro., § 3041. The rule for computing interest is well settled in this State. " The 20 154 INTEEEST ON MONEY. Interest. rule for casting interest, when partial payments have been made, is to apply the payment, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes toward discharging the principal, and the subsequent interest is to be computed on the balance remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal ; but interest continues on the fonner principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied toward discharging the principal ; and interest is to be computed on the balance of principal as aforesaid." Kent, Chancellor, in Coniiectiout v. Jackson, 1 Johns. Ch. 13, 17. See Bathgate v. Haslevn, 5 Daly, 361. The Mississippi rule for com- puting interest is the same. Brooks v. Robinson, 54 Miss. 272. And see Den's Estate, 35 Gal. 692 ; Pierce v. Faunae, 53 Me. 351 ; Mills V. 8aund,ers, 4 Brown (Neb.), 190 ; Heimam, v. Sch/roeder, 74 111. 158 ; Dobbins v. Higgms, 78 id. 440 ; Curd v. Davis, 1 Heisk. (Tenn.) 574. The same rule obtains in the Supreme Court. " The rule of prac- tice is to calculate interest on the principal up to the time when the payment has been made ; add this interest to the principal and then deduct the payment, without regard to the time when made, whether before or after the expiration of the year. This rule, however, is to be adopted only in cases where the payment exceeds the interest due ; otherwise, it will be taking interest upon interest. Where the payment falls short of the interest due, interest must be calculated on the prin- cipal up to the time when the payments wiU overrun the interest due on the principal debt, and the deduction then be made." Williams v. Houghtaling, 3 Cow. 87, note a. Where partial payments are made upon a bond or other obligation, after the money has become due and payable by the terms of the in- strument, the day on which the payment was to have been paid is to be disregarded in the computation of interest. The rests are to be made at the times when the payments are actually made, unless the payment should fall short of the interest then due ; in which case, the rest is to be made when the first payment is received, which, taken with the previous smaller ones, in the aggregate, exceeds the amount of interest due at the time. French v. Kennedy, 7 Barb. 452. In the case of an over-payment, which becomes a partial ante-payment, with respect to future installments, the amount of such over-payment should be im- mediately applied to the principal and interest to become due on the next annual pay-day, leaving the interest to be computed on the balance. lb. INTEEEST ON MONEY. 155 Interest. In mutual accounts, interest is to be cast on tlie annual balance. 2>a- wiv V. Smith, 48 Vt. 53. "Where money is lent, to be paid at or on a certain day specified, with interest, to be paid in the meantime, at stated periods, the borrower cannot, by tendering the debt or principal before the day stipulated for its payment, stop the interest ; for the time of payment in such case, is part of the contract, and for the mutual benefit and convenience of both parties. EUis v. Grmg, 7 Johns. Oh. 7. But, after a debt is due, the debtor may tender the money due, and if the creditor refuses to receive it, he cannot recover interest from the time of the tender, although he may recover the principal. Saymond V. Bearnard, 12 Johns. 274 ; Spbncee, Ch. J., in Woloott v. Vcm Santvoord, 17 id. 253. And see Manny v. Harris, 2 id. 24. A person who is prohibited by an injunction from paying the prin- cipal will not be compelled to pay interest to the person who obtained such injunction and restrained the payment thereof. Stevens v. Bam^in- ger, 13 Wend. 639; Oillespie v. Mayor, etc., of New Yorh, 3 Edw. Ch. 512. And see North American Fire Ins. Go. v. Mowatt, 2 Sandf. Ch. 108. It is not anticipated that the rules in relation to the allowance of in- terest, heretofore given, will meet every conceivable case, nor that the principles stated will always be found to be harmonious. Many of the decisions upon the subject of interest are contradictory and irreconcil- able, so that no certain rule for guidance in aU cases can be deduced from them. The tendency of the courts is toward the adoption of liberal rules in the matter of allowing interest, and toward making such allowance a matter of right rather than of discretion. CHAPTER XV. USURY. The subject of interest for tlie use of money having been discussed, amte, 548, the next subject which requires attention is the law relating to usury. Both subjects might have been considered together, but con- venience of reference may be facilitated by a separate view of the ques- tions. Usury is the illegal profit which is required and received by the lender of a sum of money from the borrower for its use. In point of law it is entirely immaterial in what manner or form or under what device or pretense usury is taken. The ingenuity of man has been taxed in vain in the efEort to avoid the laws in relation to the subject. And whenever a court or jury can clearly see that any con- tract, whatever may be its form, is really intended as a cover for taking usury, such contract will be declared void. And where the plain un- disputed facts in a case establish a case of usury, and the defense of usury is properly interposed by answer, and on the trial a verdict of a jury is rendered in favor of the plaintiff and against such defense, it will not be of any avail, and will be set aside by the court. White v. Stillman, 25 N. T. 541. And, in such a case, where it appeared on the trial that the first taker of the note advanced the money on it, and dur- ing the negotiations with the maker, the first taker stated that he should have to charge one and a half per cent a month for discounting it, though he also spoke of getting it discounted for the maker, it was held to be erroneous to submit to the jury the question whether the taker of the note sold it as agent or broker for the maker. lb. The statutes of this State are substantially copies of the English statutes except as to the rate of interest. The several States of the Union have enacted similar statutes, though there is quite a diversity as to the rate of interest in each of them. The New York statutes, so far as it is important to give them, are as follows : " The rate of interest upon the loan or forbearance of any money, goods or things in action, shall continue to be six dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time." 3 R. S. T2, § 1, 5th ed., as amended by the Lawsof 18Y9, chap. 538. ^Qeante, 137. " No person or corporation shall, directly or indirectly, take or receive in money, goods USUEY. 157 Usury. or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance of any money, goods or things in action, than is above prescribed." 3 E. S. T2, § 2, 5th ed. " Every person who, for any such loan or forbearance, shall pay or dehver any greater sum or value than is above allowed to be received, and his per- sonal representatives may recover in an action against the person who shall have taken or received the same, and his personal representatives, the amount of the money so paid or value delivered, above the rate aforesaid, if such action be brought within one year after such payment or delivery." 3 E. S. Y2, § 3, 5th ed. " If such suit be not brought within the said one year, and prosecuted with effect, then the said sum may be sued for and recovered with costs, at any time within three years after the said one year, by any overseer of the poor of the town where such payment may have been made, or by any county superin- tendent of the poor of the county, in which the payment may have been made." 3 E. S. 73, § 4, 5th ed. "All bonds, bills, notes, assur- ances, conveyances, all other contracts or securities whatsoever (except bottomry and respondentia bonds and contracts), and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum, or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed, shall be void ; but this act shall not affect such paper as has been made and transferred previous to the time it shall take effect." 3 E. S. 73, § 5, 5th ed. See Laws 1837, chap. 430, § 1. " For the purpose of calculating interest, a month shall be consid- ered the twelfth part of a year, and as consisting of thirty days ; and interest for any number of days, less than a month, shall be estimated by the proportion which such ijumber of days shall bear to thirty." 3 E. S. 73, § 9, 5th ed. " Whenever, in any statute, act, deed, written or verbal contract, or in any public or private instrument whatever, any certain rate of interest is or shaU be mentioned, and no period of time is stated for which such rate is to be calculated, interest shall be calcu- lated at the rate mentioned, by the year, in the same manner as if the words ' per annum,' or ' by the year,' had been added to such rate." 3 E. S. 74, § 10, 6th ed. " Whenever, in an action at law, the defendant shall plead or give notice of the defense of usury, and shall verify the truth of his plea or notice by affidavit, he may, for the purpose of proving the usury, call and examine the plaintiff as a witness, in the same manner as other witnesses may be called and examined." 3 E. S. 74, § 11, 5th ed. See Laws 1837, chap. 430, § 2. 158 USUET. Usury. " No corporation shall hereafter interpose the defense of usury in any action." 3 E. S. 76, § 19, 5th ed. See Laws 1850, chap. 172, § 1. " The term ' corporation,' as used in this act, shall be construed to include all associations and joint-stock companies having any of the powers and privileges of corporations not possessed by individuals or partnerships." 3 E. S. 75, § 20, 5th ed. ; Laws 1850, chap. 172, § 2. " In any case hereafter in which advances of money, repayable on demand, to an amount not less than five thousand dollars, are made upon warehouse receipts, bills of lading, certificates of stock, certifi- cates of deposit, bills of exchange, bonds or other negotiable instru- ments pledged as collateral security for such repayment, it shall be law- ful to receive or to contract to receive and collect, as compensation for making such advances, any sum to be agreed upon in writing, by the parties to such transaction." Laws of 1882, chap. 237, § 1. "All acts or parts of acts inconsistent herewith are hereby repealed." Id., § 2. To constitute usury within the meaning of the statute, several cir- cumstances must concur. There must be a Ioom, and the statute is ap- plicable to those loans only which are in substance and effect loans of money. A loan of goods or of a chose in action, imless intended as a mere cover for a loan of money, is not within the statute, nor is a loan of stock or of grain which is to be returned in kind ; nor is a loan of money which is produced by the sale of shares of stock within the statute, where the agreement is that the borrower shall replace the stock. Di^ Dock Bank v. ATnerican Life Ins. Co., 3 N. Y. 344 ; Pomeroy T. Ainsworth, 22 Barb. 119. Where the contract is not for the loan of money or of goods, nor for the forbearance of an existing debt, the contract cannot be usurious. Stochwell v. Holmes, 33 N. Y. 53. It is essential to the nature of a loan that the thing borrowed is at all events to be returned. "WTiere the principal is honafide put in haz- zard it is no loan ; and it is not usury to take more than legal interest. Pomeroy v. Ainsworth, 22 Barb. 119. Where it appeared that in May, 1829, the defendant applied to the plaintifE to lend him £200, to which the plaintiff consented, and the defendant afterward gave him a warrant of attorney for the payment of £300 by three installments, on the following terms, viz. : £100 to be paid on Christmas day then next, if both parties should be then Hving; the further sum of £100 on Midsummer day, 1830, if both should still be living, and £100 more on Christmas day, 1830, if both should be living at that time. The first two sums of £100 each were paid, but the defendant claimed that the contract was usurious, and that he was not liable to pay the third sum of £100. The court held that the USUKT, 159 Usury. contract was not usurious, because tlie principal sum was put at risk, and liable to have been lost by the death of either party before the time specified. Flight v. Ch(vplin, 2 Barn. & Ad. 112. And see 2 Pars, on Cont.418, f, g. A mere nominal contingency, attended by no real hazard of the principal of the money lent, will not divest the transaction of its usurious character. Colton v. Dunhcmi, 2 Paige, 26Y. If the principal is actually secured and not honafide put at hazard, it amounts to a loan, and the taking of more than lawful interest is usury. Tyson v. Bikard, 3 Harr. & J. (Md.) 109. It is also essential to the nature of usury that a certain gain, exceed- ing the legal rate of interest, is to accrue to the lender as a considera- tion of the loan. If the gain to the lender, beyond the legal rate of interest, is made dependent on the will of the borrower, as when he may discharge himself from it by the punctual payment of the princi- pal, the contract is not usurious. Pomeroy v. Ainsworth, 22 Barb. 119 ; Sumner v. People, 29 N. Y. 33T ; Bpavn v. Hamilton, 1 Wall. 604 ; Wilson v. Deam, 10 Iowa, 432 ; Oaar v. Louisville B. Co., 11 Bush (Ky.), 180 ; S. C, 21 Am. Eep. 209. There are instances in which the creditor may receive an incidental advantage from making a loan, and yet the transaction will not be usurious. If the borrower, who is insolvent, agrees to pay a subsisting debt which he owes the lender, and as a consideration for a further credit, or for a further loan, this will not be usury, if the agreement merely provides for the payment of the amount which is justly and actually due on the old debt, and the amount of the new loan with law- ful interest, and a note given upon such an agreement is valid as against the maker or any indorser thereof. Marsh v. Howe, 36 Barb. 649. If a party with his own means and for his own benefit purchases out- standing demands held by others, at the request of the debtor, and for the purpose of averting a forced sale of the debtor's property, this does not constitute a loan of money to the latter within the intent of the usury laws. Crame v. Price, 35 ¥. T 494. But if there is an actual loan, and the lender stipulates for a contingent benefit beyond the legal rate of interest, and has a right to demand the repayment of the prin- cipal sum with the legal interest thereon in any event, the contract is in violation of the statute prohibiting usury, and is void. Browne v. Yredenburgh, 43 N. T. 195. The mere fact, however, that upon a loan of money, the lender exacts, as a condition of his making the loan, that the borrower shall secure to him the payment of a subsisting and genu- ine debt, due him from a third person, does not, per se, render the loan nsurious. Thomas v. Murray, 32 N. Y. 605. In such a case the bur- 160 USUET. Usury. den is upon the party alleging usury, to show that the lender, at the time of the transfer, knew or had reason to believe that the security was uncollectible. lb. ; ValeniiTie v. Conner, 40 TS. T. 248. There is likewise no usury in an agreement of a borrower to pay a subsisting debt of his own in consideration of a new debt or a further loan, pro- ^ vided the promise is to pay only the amount due on the old debt, and the amount of the loan with lawful interest. Ma/rsh v. Howe, 36 Barb. 649. And see Hamsey v. Morrison, 39 N. J. L. 391. So, if a builder contracts to build houses for a certain sum, payable in annual installments, to bear interest at a rate higher than the legal interest, the contract is not usurious if the interest is a part of the contract-price of the houses. Oraeme v. Adams, 23 Graft. (Va.) 2Y6 ; S. C, 14 Am. Eep. 130. To render a contract void, it is necessary that both of the parties to the agreement should agree, and intend, that more than the lawful rate of interest should be paid by the one and received by the' other. The object of the statute is to prevent any lender from receiving more than the legal rate of interest on a mere loan of money. It requires at least two contracting parties to make a contract, and agreements in relation to usury are no exceptions to the rule. To constitute usury, there must be an unlawful or corrupt intent confessed or proved. The party must intentionally take or reserve, directly or indirectly, as interest, or as a compensation for giving time of payment, more than the legal rate of interest. Wood/ruff v. Hwrson, 32 Barb. 657 ; Morgcm v. MecTwrnci Banhing Ass'n, 19 Barb. 584. See Guggenheimer v. Qeissler, 81 N. T. 293. To render a contract usurious, both parties must be cognizant of the facts which constitute the usury. Aid/rich v. Reynolds, 1 Barb. Ch. 43 ; Powell v. Jones, 44 id. 521. If a 'bona fide holder of a negotiable note which was tainted with usury in the hands of the original payee receives from the maker a new security for the debt, and gives up the note without any knowledge of the usury, the security which he takes in lieu of it is not usurious. KiVner v. O'Brien, 14 Hun, 414 ; Aid/rich v. Reynolds, 1 Barb. Ch. 43. But if, upon the maturity of a promissory note given for a usuri- ous loan, the borrower, for the purpose of an extension, dehvers to the lender a new note, by its terms made payable to a third person, and this note is transferred by the lender to such third person who receives it in good faith and without knowledge of the usury, it is nevertheless tainted with the usury, and void in the hands of the payee. Treadwdl V. Archer, 76 N. T. 196 ; reversing S. C, Sub nom. Sherwood v. Archer, 10 Hun, 93. This is not in conflict with the rule above stated. USUEY. 161 Usury. Where a bank discotmts a bill of exehange, and gives a certificate of deposit, payable at a future day, which is done for the accommodation and at the request of the party who obtained the discount, this will not render the transaction usurious, if there was no intent to take usury. Knox V. Goodwin, 25 "Wend. 643. But see Lane v. Losee, 2 Barb. 56 ; OUlett V. Averill, 5 Denio, 85. So, where money was loaned on bond and mortgage, but the money was not advanced on the securities for several days thereafter, and the borrower paid the interest thereon for several years, it was held that usury did not continue a valid defense. Bcmks V. Yan Antwerp, 16 How. 29. Bills or notes promising to pay the highest legal rate of interest, from a time anterior to their date, will not be presumed usurious, as they are often given after the transaction which constitutes their consideration. Rutherford v. Smith, 28 Texas, 322; Andrews v. Hart, 17 Wis. 297 ; Ewing v. Rowa/rd,1 W&W. 499. The borrower may make the lender a gift, and the amount may be in- cluded in the note given, which will be valid. Yet, a gift, under such circumstances, is a suspicious transaction, which ought to be shown by clear evidence to be a voluntary act on the part of the borrower. Wood- ruff y. Hurson, 32 Barb. 557. If the donee or creditor is innocent of any intent to exact or receive more than the legal rate of interest, his security will be valid. lb. One who makes a contract which the law declares usurious cannot escape the penalty of the offense upon a plea that he was ignorant of the law, or that he did not intend to evade the statute. Thomas v. Mwrray, 34 Barb. 158. To constitute usury there must be a corrupt agreement ; but where the lender intentionally takes more than legal interest for the loan or forbearance! of money, whether he is ignorant of the law or not, it is conclusive evidence of a corrupt agreement within the meaning of the statute. Bamk of Salma v. Alvord, 31 N. Y. 473. So the interit is essential to constitute the offense of usury ; but the intent must be de- duced from and determined by the acts. The intent which enters into and is essential to constitute usury is simply the intent to take or re- serve more than six per cent per annum for the loan or forbearance of money. If the lender knowingly and voluntarily takes or reserves a greater interest or compensation for a loan than is allowed by law, the transaction is pe7' se usurious. The offense is not condoned by want of intent to violate the statute, or by giving to the transaction another name than a loan. Fiedler v. Darrin, 50 N. Y. 437. If the taking or reserving, upon a loan of money, interest at a greater rate than six per cent per annum, results from mistake or accident it is not usury ; otherwise it is. lb.; Tyngy. Oo^rumercial Warehouse Co., 58 N. Y. 308. 21 162 USURY. Usury. A promissory note for tlie payment of a particular sum, witli interest, payable from a day anterior to the date of tiie note, does not of itself afford evidence tHat the note is usurious. Marvin v. Feeter, 8 "Wend. 533. Nor is it usurious, on selling a note payable at a future day, to take a note for the principal and interest of the note sold, computed to the day of sale, without making a rebate of interest. lb. There may be a lawful advancement of money by one person as a partner, while another furnishes labor ; and in such case the person who advances the money will not be entitled to his share of the profits of the ad- venture. But, where the contract is really one of the loan of money, in the form and under the disguise of a partnership, and for the use of the money, the borrower agrees to pay legal interest, and also a certain proportion of the profits of the trade or business, this is usurious. Sweet V. Spenoe, 35 Barb. 44 ; Morse v. Wilson, 4 Term fl. 353. But, if the capital is at risk, and the interest is to be paid out of the profits, or not at all, it will not be usury. Hall v. Daggett, 6 Cow. 653 ; Quackeixbush v. Leonard, 9 Paige, 334 ; Pomeroy v. Ainsworth, 22 Barb. 118. Contracts for compound interest are not usurious. Tylee v. Yates, 3 Barb. 223 ; Kellogg v. Hicock, 1 Wend. 521 ; Townsend v. Coming, 1 Barb. 627. Under such contracts no more than the legal rate of in- terest is taken or received. It is true that an agreement in advance for the payment of interest upon interest, as the same shall accrue, cannot be enforced. This is not because the agreement is usurious, but be- cause such an agreement is regarded in this State as against public policy, — as one that may be made oppressive to the debtor. But a new and independent agreement, made after simple interest has accrued, and upon sufficient consideration, to pay interest upon arrears of in- terest, is valid, and may be enforced. Stewart v. Petree, 65 N. Y. 621 ; S. C, 14 Am. Eep. 352 ; Guernsey v. Bexford, 63 N. Y. 631 ; Toung V. mil, 67 id. 162; S. C, 23 Am. Eep. 99. See Mil v. Meeker, 23 Conn. 592 ; Scott v. Sqford, 37 Ga. 384 ; Columbia County v. King, 13 Fla. 451 ; Parham v. Pulliam, 5 Coldw. (Tenn.) 497. So, a promissory note, payable one year from date, with interest, to be paid quarterly or semi-annually, and before the principal sum becomes due, is valid. Mowry v. Bishop, 5 Paige, 98 ; Mowry v. Shumway, 44 Conn. 493. See Oood/rioh v. Reynolds, 31 HI. 490 ; MonnettY. Stwrges, 25 Ohio St. 384 ; Meyer v. Muscatime, 1 Wall. 384. So it is not usury to take interest on discounting commercial paper upon the full amount for which it was made, where it has not longer to run to maturity than is usual with paper discounted by bankers. Marvine v. Hymers, 12 N. DSUET. 163 Usury. T. 223. The rule as to taking of interest in advance has been thus stated : " That the taking of interest in advance is allowed for the benefit of trade, although, by allowing it, more than the legal interest is in fact taken ; that being for the benefit of trade, the instrument discounted, or upon which the interest is taken in advance, must be such as will, and usually does, circulate or pass in the course of trade. It must, therefore, be a negotiable instrument, and payable at no very distant day ; for, without these qualities, it will not circulate in the course of trade. Under these limitations, the taking of interest in advance, either by a bank, or incorporated company without banking powers, or an in- dividual, is not usurious." Stjtheeland, J., in N. Y. Firemen's Ins. Co. V. Mi/, 2 Cow. 703, 704 ; and approved by Court of Appeals in Marvme v. Hymers, 12 N. T. 239, per Demo, J. And see Manhattan Co. V. Osgood, 15 Johns. 162 ; Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Newell v. Nat. JBJc. of Somerset, 12 Bush (Ky.), 57 ; Nat. Bh. v. Smoot, 2 MacArthur, 371 ; Hawks v. Weaver, 46 Barb. 164 ; English V. SmooTis, 34 Ind. 115; S. C, 7 Am. Kep. 215. The general banking laws of this State provide that " Every banking association organized and doing business under and by virtue of the laws of this State, and every private and individual banker or bankers doing business in this State, are hereby authorized to take, receive, re- serve and charge on every loan or discount made, or upon any note, bill of exchange or other evidence of debt, interest at the rate of she per centum per annum ; and such interest may be taken in advance, reckon- ing the days for which the note, bill or other evidence of debt has to nm. The knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, biU or other evidence of debt carries with it, or which has been agreed to be paid thereon ; and in case a greater rate of interest has been paid, the person or persons pay- ing the same, or their legal representatives, may recover back twice the amount of interest thus paid from the association, or private or in- dividual banker taking or receiving the same, provided that such-action is commenced within two years from the time said excess of interest is taken. But the purchase, discount or sale of a lona fide bill of ex- change, note or other evidence of debt, payable at another place than the place of such purchase, discount or sale, at not more than the cur- rent rate of exchange for sight drafts, or a reasonable charge for collect- ing the same, in addition to the interest, shall not be considered a tak- ing or receiving a greater rate of interest than six per centum per annum." Laws of 1882, chap. 409, § 68. « It is declared that the true 164 USURY. Usury. intent and meaning of the last preceding section is to place and con- tinue the private and individual bankers and banking associations or- ganized and doing business as aforesaid on an equality in the particu- lars in said section referred to, with national banks organized under the act of Congress entitled " An act to provide a national currency se- cured by pledge of United States bonds, and to provide for the circula- tion and redemption thereof appKoved June 3, 1864." Id., § 69. An agreement that an agent or factor shall receive a reasonable com- pensation, to be paid by the principal, for acceptiag and paying bills with funds furnished by the latter, is not per se usurious. Suydam v. £artle, 19 Paige, 94. And where the agreement, by its terms, con- templates an advance of money to pay the bills when they become due, if the principal does not furnish the means of payment at the day, an allegation that such agreement is usurious merely presents a question of fact, to be decided by the evidence, whether the compensation agreed to be paid was intended as a mere shift to cover a usurious premium on such advances, or was intended as a compensation for the trouble and expense of accepting and paying the bills as the agent of the prin- cipal, lb. Where such advances are made in good faith, and without any intent to take usury, the contract for the payment of a commis- sion is valid. Suydam v. Westfall, 4 Hill, 211 ; Trotter v. Gwriis, 19 Johns. 160; Seymour v. Ma/rvin, 11 Barb. 80; JSa/rvey v. Archhold, 3 Barn. & Ores. 626. If such an agreement is intended as a mere cover for usury, and both parties know it, the contract will be void. lb. And see Hamsdell v. Morgcm, 16 "Wend. 674. The question of intention in such cases is one of fact for a jury, or for a court sitting in their place ; though neither a jury nor justice can disregard the defense of usury, when- it is clearly established by the evidence. Ante, 156. A usurious contract is executed and extinguished by payment; and consequently, after usurious loans and advances have been paid, they cannot be recovered back, except that the excess may be sued for within a year, under the statute. Seymour v. Marvin, 11 Barb. 80. A lender, whether a banker or broker, may charge, in addition to the discount, a reasonable sum for his trouble and services. Nourae v. Prime, 7 Johns. Ch. 69 ; Trotter v. CurUs, 19 Johns. 160 ; Swyda/m V. Westfall, 4 Hill, 211 ; Suydam v. Ba/rtel, 10 Paige, 94. "Where a party is solicited to make a loan, and to procure the means of doing so must spend time and incur trouble and expense in collecting the same from others, and does this at the request of the borrower, and upon his agreement to pay for such services and expenses, the transaction is not USUEY. 16.' Usury. usurious. Beadle v. Munson, 30 Conn. 1T5 ; Atlanta Mining Co. v. Gwyer, 48 Ga. 11 ; Churchman v. Martm, 54 Ind. 380 ; Eaton v. Alger, 2 Abb. Ct. App. 5 ; S. C, 2 Keyes, 41. But to authorize a len- der to charge for his trouble and expense in procuring the money to loan, there must be an agreement made in good faith for that purpose only, and not for the purpose of giving to the lender a usurious com- pensation for the loan. lb. And it is held that an agreement that the lender shall receive a fixed sum for trouble and anticipated loss in sell- ing securities to raise the money to be loaned renders the loan usurious. Yan Tassell v. Wood, 12 Hun, 388. So, if the borrower agrees abso- lutely to pay commissions and expenses, in addition to lawful interest, and whether or not they shall be earned or incurred, the loan is usuri- ous. Heidenhewner v. Mayer, 10 Jones & Sp. 506 ; S. C. affirmed, 74 N. Y. 607. The drawer of a bill of exchange for $1,200 paid $50 to an accom- modation indorser for his indorsing the bill, procuring another indorser, and obtaining its discount. From the proceeds, the indorser retained $150, previously loaned by him to the drawer, and this was held not to be usury. Yan Duzer v. Howe, 21 N". Y. 531. Where a creditor, at the request of the debtor, and upon his express promise to pay the expen- ses, takes a journey to the residence of the latter, with a view to settle the demand, and afterward includes such expenses in a security taken for the debt, such security is not usurious. Harger v. MoCullough, 2 Denio, 119. But where a creditor traveled from his own residence to the residence of his debtor, which was more than one hundred miles, for the purpose of securing a debt due from the latter, and the creditor agreed to extend the time of payment for three months for one-half of the debt, and for four months for the residue, and a bond and mortgage was given for the debt, to which was added the interest for fifteen days' additional time, and for $20, as part of the creditor's traveling ex- penses, and these sums were included in the bond and mortgage — it was held that the transaction was usurious, and that the bond and mortgage were void. Williams v. Eimoe, 7 Paige, 581. The difference between the last two cases cited is, that in the former the expenses were incur- red at the express request of the debtor, and he was clearly liable to pay that amount without reference to the original debt, while in the latter case, the creditor undertook the journey of his own motion, and for his own advantage, and the debtor was under no legal obligation to pay such a charge. Where the money loaned belongs to the lender, and he makes a charge in addition to legal interest, for his trouble and services, the question whether the charge is in fact a reasonable com- 166 USURY. Usury. pensation for services rendered, or a mere pretense for obtaining usuri- ous interest is to be determined like any other question of fact. Eaton V. Alger, 2 Abb. Ot. App. 5 ; S. C, 2 Keyes, 41 ; DeForest v. Strong, 8 Conn. 519. An agreement by which a commission merchant is to receive full interest on advances, and also commissions, vrhether he makes sales or not, is not necessarily usurious ; it may be intended as a cover for usury, but that intent is a question for the jury. Cookie v. Flack, 93 U. S. (3 Otto) 344. A contract between a commission merchant and a dealer in produce, by which the former agrees to advance money at the legal rate of interest to enable the dealer to purchase or carry his produce, and is also to receive a percentage upon the money advanced as a commission for the care, management and sale of the property, is not jper se usurious; and the burden is upon the party seeking to im- peach the transaction to show a guilty intent, and that the contract was a cover for .usmy. Matthews v. Ooe, 70 N". Y. 239 ; S. C, 26 Am. Rep. 583. Where, therefore, it does not appear that the commission charged was unusual, or um-easonable, or in any way that the lender took advantage of the necessities of the borrower, a finding of a ref- eree that such a contract is usurious, is unsupported by the evidence and is a legal error.' lb. If an agent who is intrusted with money to invest for his principal at legal interest exacts a bonus for himself as a condition of making the loan, without the knowledge or assent of his principal, this will not constitute usury in the principal nor affect the security in his hands. Van Wyok v. Waiters, 81 N. Y. 352 ; Guardian Mutual Life Ins. Co. V. Kashaw, 66 id. 544; Gondit v. Baldwin, 21 id. 219; Bell v. Day, 32 id. 165 ; Barretto v. Snowden, 5 Wend. 181 ; Coster v, Dil worth, 8 Cow. 299 ; Crane v. JTuhbel, 7 Paige, 413 ; Fellows v. Com- missioners, etc., of Oneida, 36 Barb. 655 ; Estevez v. Purd/y, ^% If. Y. 446 ; Esterly v. Purdy, 50 How. 350 ; Manning v. Young, 28 K J. Eq, 568 ; Zee v. Chadsey, 3 Abb. Ct. App. 43 ; S. C, 2 Keyes, 543 ; 3 id. 225. But see PMlo v. Butterfdd, 3 Neb. 256 ; Cheney v. White, 5 id. 261. There may be cases in which a loan is made upon condition that the borrower shall do some act for the advantage of the lender, and the transaction not be usurious. Where an insurance company was applied to for a loan of money, and it was made upon the condition that the borrower would efEect an insurance with the company, which was done by paying a premium such as was usually paid by others, this was held not to be usury. Utica Ins. Co. v. Cadwell, 3 Wend. 296. USURY. 167 Usury. So, where the defendant had a bill against a drover which was not due, and he applied to the plaintiff to collect it, and to make an advance on it to the defendant, which the plaintiff did, and he also charged a commission of one per cent and the interest in advance, and took the defendant's promise to pay the full amount within thirty days, this was held to be valid. Hv/rd v. Hunt, 14 Barb. 573. Where more than legal interest is taken in consequence of a mistake in the computation of interest, and there is no intention to take unlaw- ful interest, the transaction will not be usurious. Woodruff v. Hur- 8on, 32 Barb. 557 ; Marvine v. Hymers, 12 N. Y. 223 ; Archibald v. Thomas, 3 Cow. 284; Conger v. Tradesmat\! s Banh, Hill & Denio, 34 ; N. Y. Firemen^ s Ins. Co. v. Sturges, 2 Cow. 664 ; Same v. Ely, id. 678. But, if the lender intentionally takes a larger sum than the law allows as interest, by reason of an ei-roneous opinion which he entertains as to the law, the loan will be usurious, and the security void. Utioa Ins. Co. v. Tilman, 1 Wend. 555 ; Bank of UUca v. Waga/r, 8 Cow. 398 ; Marsh v. Martmdale, 3 Bos. & Pul. 154. It is a frequent question whether the lender may receive any advan- tage which may arise from the difference of exchange between differ- ent localities. And the rule is now settled, that the law does not recog- nize any difference in the value of money at different localities within this State. There is no usury, therefore, in the discount of a note by a banker in the interior of the State, made payable in the city of New York, not for the accommodation of the maker, nor upon the expectation that he will have any funds there at the time of its maturity, otherwise than by the purchase of them at a premium ; but with the purpose of both parties to enable the banker to realize a profit from the difference of exchange existing in fact and expected to continue. Oliver Lee da CoJs Bank v. Walhridge, 19 N. Y. 134 ; Eagle Bank v. Rigney, 33 id. 613 ; Central Bank v. 8t. John, 17 Wis. 157 ; Bv/rrows v. Cook, 17 Iowa, 436. The mere fact that a note, discounted by a country bank, is made payable in the city of New York, and that a portion or the whole of the proceeds were paid to the borrower in a draft upon the city, at the usual price or charge for city drafts, does not render the draft usurious as a matter of law, in the absence of proof that the pm-chase of such a draft was made a condition of discounting the note. Union Bank of Rochester v. Gregory, 46 Barb. 98 ; Price v. Lyons BamJe, 33 N. Y. 65 ; Beales v. Bevjam>in, id. 61. So where a country bank dis- counted a note, by its terms payable in the city of New York, receiv- ing in advance the legal interest on its amount, and at the request of 168 USUKY. Usury. the person for whose account it was discounted, paid him the proceeds in sight drafts upon its correspondent in New York, charging him therefor the one-half of one per cent, which was the current premium on exchange, this transaction was held not to be usurious. Marvine v. Rymers, 12 IST. Y. 223 ; Ouyler v. Sa^iford, 13 Barb. 339 ; Mertitt v. Benton, 10 Wend. 116. But, where the notes were payable at a country bank, which re- quired the maker, as the condition of a renewal of two promissory notes past due, to give a new note for the aggregate principal, and to pay the discount upon it and the back interest upon it, and in addition to transfer to the holder at par drafts on New York and Albany worth three-fourths of one per cent premium, to an amount equal to the debt, it was held that the new note was void for usury. Seneca Co. Bomk V. Sohermerhorn, 1 Denio, 133. And see opinion of Comstook, Oh. J., in Olwer Zee (& Oo.'s Bank v. Walbridge, 19 N. Y. 141, 142; and of Allen, J., on p. 144. So, where the borrower of money in New York agreed to pay for the use of it seven per cent interest, and a part of the difference of exchange was paid by the lender (a resident of Savannah, Georgia), on the transfer of the money from Savannah to New York, immediately previous to the loan, it was held that the contract was usurious, and that the notes given for the money so loaned were void. Jacks v. Nichols, 5 N. Y. 178. Upon the renewal of an existing loan, by giving new notes payable at the same place as the former, no question of exchange can arise ; and any exaction beyond interest in such a case is usury. Price v. Lyons Bank, 83 N. Y. 65. See, also, Berlin v. Ma^es, 38 How. 288 ; Loveland v. Bitter, 50 111. 54 ; Campbell v. Sbam.-, 62 Penn. St. 481. Where, upon an application for a loan of money, it is by the agree- ment made a condition of the loan that the borrower shall receive from the lender uncurrent bills at a higher rate than their value in cash or current funds, the loan is usurious. Clevela/nd v. Boder, 7 Paige, 557 ; Pratt V. Adams, id. 615. But where a dealer with an individual banker, who carried on busi- ness under the general banking law of 1838, drew his checks on such banker, payable in foreign bills, which were received by that banker and other banks only at a discount, but circulating at their nominal par value in exchange for merchandise, and they were thus paid. In an action on a note given to the banker for bills thus paid on such checks, it was )ield, that in the absence of an agreement that the checks should be thus drawn the transaction was not usurious. Codd v. Bathhone, 19 N. Y. 37. So, where A. knew that B. had a sum of money in bills of USUEY. 169 Usury. a bank whicli was located in another State, which were not bankable in the city of New York, because they were subject to a discount, but which passed freely at par in ordinary business transactions, and A. applied to B. at New York for a loan of $5,000 in these bills for one year ; and offered to give security for the amount, and stating that he wanted the money to use elsewhere, and that the notes of such bank would answer his purpose, B. accordingly advanced the money in bills of the foreign bank, charging legal interest and received the notes of A. for the amount ; nothing being said about interest by either party. The greater part of the bills received by A. were used by him in his business. In an action upon two of such promissory notes, it was held that notwithstanding both parties might have known that the bills of the bank were at a discount in New York, yet the transaction was not necessarily usurious. Sdbbins v. Dillaye, 33 Barb. 77 ; Slosson v. Duff, 1 id. 432. A sale of stocks at their nominal value, when they are at a discount of twenty-five per cent in the market connected with a loan of money, and the entire amount included in a note, will render such note void for usury. Seymour v. St/rong, i Hill, 255 ; White v. Wright, 3 Barn. & Ores. 273 ; Pa/rTcer v. Bamshottom, id. 257. A loan of money produced by the sales of shares of stock is not usurious where the agreement is that the borrower shall replace the stock. Dry Dock BanJc v. Americmv Life Ins. add Trust Co., 3 N. Y. 344. The sale of one's credit is not a sale of a " chose in action " within the meaning of the statute. lb. Upon a sale of credit made in good faith, the vendor may reserve or secure to himself more than seven per cent without rendering the agreement usurious. Leavitt v. DeLauny, 4 K Y. 363 ; Ketchum v. Barber, 4 Hill, 224 ; S. C, 7 id. 444 ; More V. HowUmd, 4 Denio, 264. A sale of the credit of the vendor must not, however, be connected with a loan of money by him in the trans- action, or it will be usurious. lb. Where an indorser of a note does not make any advance upon it, and he has no interest in it or in the proceeds, the fact that he made a charge for his indorsement will not make the note usurious in the hands of any person who received it from the maker and paid value for it, with- out any knowledge of the transaction between the maker and the in- dorser. Kitchel V. SchenoTc, 29 N. Y. 515. Indorsing a note for the maker's accommodation for a premium, to be paid by the latter, does not make the indorser a holder, or in any way affect a party to whom the paper shall be subsequently negotiated. lb. The plaintiffs, with- out advancing any money, guaranteed. the paper of the defendants, for which they were to receive a commission of two and a half per cent for 22 170 USURY. tlBury. four months. The transaction was held to be a contract for compensa- tion for trouble and risk in raising the money for another, which was not per se usurious, and not a loan of money, goods or things within the meaning of the statute, and, therefore, not usurious. More v. Howland, 1 Edm. Sel. Gas. 371. The credit of one person may be rendered available to another by gift, sale or exchange, which is virtu- ally a sale ; and if not intended as a cover for usury, it may be the subject of a consideration to be agreed upon between the parties the same as in the disposition of other commodities. Elwell v. Clia/mher- lin, 31 N. Y. 611. The transfer by a payee of a valid available note, upon which, when due, he might have maintained an action against the maker, and which he parts with at a discount beyond the legal rate of interest, is not a usurious transaction, although the payee on such transfer indorses the note ; and on non-payment by the maker, the indorsee may maintain an action against the indorser. Crane v. Hendricks, T Wend. 569. In such a case the recovery against the indorser cannot exceed the amount which the purchaser paid with interest, etc., though he may re- cover the full amount of the note as against the maker of the note. Cook V. GlarTc, 4 E. D. Smith, 213 ; Burton v. Baker, 31 Barb. 241 ; IngallsY. Lee, 9 id. 647; Mazusan v. Mead, 21 Wend. 285 ; BroAnam, V. Hess, 13 Johns. 52 ; Brownell v. Winne, 23 How. 193. Where two persons exchange with each other notes of equal amounts for the purpose of raising money by sale of the notes, each note is a valid consideration for the other; and a sale of either, at a discount greater than seven per cent, does not render it usurious in the hands of the purchaser. Cobh v. Titus, Id's. Y. 198; S. C, 13 Barb. 45; Bioe V. Mather, 3 Wend. 62 ; Odell v. Greenly, 4 Duer, 358. But where, on an application for the loan of money, the borrower, in lieu thereof, and in exchange for his own obligation, receives the negotiable obliga- tions of the lender for the amounts which the parties intend shall be, and which are used by the borrower to raise the money, the transaction is a loan within the usury laws. And if, by the obligations exchanged, the amount ultimately to be paid by the borrower is greater than that to be paid by the lender, the transaction is usurious. Schermerhorn v. Talman, 14 N. Y. 93 ; Dry Bock Bank v. American Life Lns. Co., 3 id. 344 ; Thomas v. Murray, 34 Barb. 157 ; Gillett v. AverUl, 5 Denio, 85 ; Blodgett v. Wadham, Hill & Denio, 65. A borrower who gives his note may receive the obligation of the lender, payable on time and of less actual value than the sum secured to the lender, pro- vided it is given at the honafide request of the borrower and for his USUET. 171 ITsary. accommodation, and there is no intention to take usury. But it is not enough to repel the presumption of usury, that the proposition came from the borrower, instead of the lender. Qillett v. Averill, 5 Denio, 85 ; Lcme v. Losee, 2 Barb. 56. Certificates of deposit, issued by a life insurance and trust company, bearing interest at the rate of four and a half per cent, were exchanged by way of a loan for a mortgage made to the company, upon which interest was reserved at the rate of seven per cent ; the transaction was held to be usurious and the mortgage void. New York Life Ins. and Trust Co. v. Beebe, 1 'N. T. 364. There can be no usury in a loan of chattels, whatever may be the percentage upon their value agreed to be paid for their use, unless such loan is intended as an indirect loan of money. Bull v. Bice, 5 N. Y. 315. Where no such intention exists, a contract providing that the chattels loaned shall, when returned, have a certain fixed value, or that the borrower may, at his election, pay the amount in cash, and the -sum agreed to be paid for the use of the chattels exceeds seven per cent per annum upon such fixed value, the contract is not usurious. lb. B. loaned to K. on the 1st day of May, 1834, eleven cows, for two or four years, as R. might elect, R. to pay $50.75 on the first of May in each year, for their use. R. agreed to return the cows to B. with calf, or with calves by their sides, on the 1st day of May, 1 836 or 1838, as he should elect, worth $203, or pay that amount in cash ; B. to sustain all losses that should appear providential. The jur}' found that this agree- meni was not intended as a cover for a usurious loan of money ; and it was held that the contract was not usurious. lb. A sale of cows on a contract to return double the number, and of the same description, at the end of four years, is not usurious, fencer v. Tilden, 5 Cow. 144. So, of a sale of sheep, of which double the number was to be returned in three years. Holmes v. Weimwre, 5 Cow. 149, in note. So, letting a two-year old heifer and calf, the heifer to be returned at the end of four years, with another heifer three years old, is not usurious. Oum- mings v. Williams, 4 Wend. 679. A contract is not usurious where one person lets a certain number of sheep, and the other agrees that on receiving a year's notice he will return the same number of sheep, of the same quality and age as those received ; and that, in the meantime, he will pay annually fifty cents per head for each sheep, although the value of the sheep is less than a principal sum, the interest of which, at seven per cent per annum, would amount to fifty cents. Hall v. Maggart, 17 Wend. 280. Upon a sale of sheep on time, the buyer agreed to pay a certain sum, "vrhich was the value of the sheep at the time of the contract, at a future 172 USURY. Usury. date. He also agreed to pay and deliver to the seller a certain number of pounds of wool per head, annually, — and this was held not to be a usurious contract, although the value of the wool reserved exceeded the legal rate of interest allowed. Gilmore v. Ferguson, 28 Iowa, 220. And see First Nat. Ba/rik v. Owen, 23 id. 185. So, a contract to pay a bushel and a half of corn within a year, in return for one bushel, is not within the statute of usury, owing to the uncertain and fluctuating character and value of the article. Morrison v. McKinnon, 12 Fla. 552. And an exchange of securities, even though one party makes a profit by the transaction, is not usurious unless connected with a loan of money, and designed to cover such loan. Perrine v. HotchJciss, 2 Lans. 416. The purchase of securities at any price upon which the parties may agree is not usujious. Junction H. R. Go. v. Bcmk of Ashland, 12 "Wall. 226. "Where the lender makes it the condition of a loan, that the borrower shall purchase property of such lender at a price greatly above its value, and a note or bond is taken for the money loaned, including the price of the property sold, such note or bond will be void. Hose v. Dickson, 7 Johns. 196 ; Fagleson v. Shotwell, 1 Johns. Ch. 536; Thomas y. Mur- ray, 34 Barb. 157 ; Quaekenbos v. Sayer, 62 N. Y. 344 ; Seedow v. Prichard, 36 Yt. 183. In all cases where the contract is in form one of sale or exchange, if the court, in looking at the whole transaction, can see that the value secured to the vendor was in good faith but the price of the thing sold or exchanged by him, there can be no usury, whatever the price may be, or the mode in which it may be secured. Dry Dock Bank v. American Life Ins. and Trust Co., 3 IST. Y. 344. "Where, however, the object of the parties is a loan of money, and some- thing else under the form of a sale or an exchange is siibstituted for it, the principal of the loan or debt will be the value in money received by the nominal vendee, and any consideration paid or secured to the veindor beyond that will, in general, be considered as interest for the for- bearance, and such cases are within the statute and void. lb. A con- tract for the sale of property by the borrower at a specified price to the lender, and a hiring of the same property by the borrower, at a rent or hiring which exceeds the lawful interest on such purchase-price, with a right of re-purchase at a subsequent time by the borrower, is usurious, if the transaction is really a mere loan of money. Doe v. Oooch, 3 Barn. & Aid. 664 ; Doe v. Brown, Holt's N. P. 295. See Brooks v. Avery, 4:'^. Y. 225. Negotiable business paper, which had a valid inception, may be sold by the payee or holder for less than its face, and at such price as he sees USUEY. 173 Usury. fit, and the purchaser will be entitled to recover the full amount due upon the note, although he may thus receive more than the amount of legal interest on the money paid for the note. Kent v. Walton, 7 Wend. 256 ; Cram v. Hendricks, id. 569 ; Powell v. Waters, 8 Cow. 669 ; Cameron v. Chappell, 24 "Wend. 84. Such a note is property, and it may be sold by its owner for such price as he chooses, in the same manner that he might sell any other species of property. Harger V. Wilson, 63 Barb. 23T. But this principle does not extend to accommodation notes which ax-e made for the purpose of raising money on them. And if such a note is first sold or discounted for a sum which will give the lender or purchaser more than lawful interest for the money advanced, the note will be void for usury, even in the hands of a subsequent hoTia fide holder. HaU v. Ea/rnest, 36 Barb. 585 ; Bossange v. Hoss, 29 id. 576 ; Hall v. Wilson, 16 id. 548. See Bayliss v. CocTcGroft, 81 N. Y. 363. A note, delivered by the maker without consideration therefor to a third person, to enable the latter to raise money thereon for the maker or for himself, has no legal inception in his hands. And if he nego- tiates the note upon a usurious consideration, it is void. Catlin v. Qvmr tet\ 11 N. Y. 368 ; Williams v. Storm, 2 Duer, 52 ; Clarh v. Sisson, 4 id. 408 ; Clark v. Loomis, 5 id. 468 ; Jones v. Hake, 2 Johns. Cas. 60 ; Marvin v. MoCullum, 20 Johns. 288. See, also, Wetmm'e v. O'Brien, 3 Head (Tenn.), 723 ; Byrne v. Grayson, 15 La. Ann. 457 ; Bailey v. Smith, 14 Ohio St. 396 ; Campbell v. Nichols, 33 K J. L. 81 ; LoAJorence v. Griffen, 30 Tex. 400 ; Overton v. Hardin, 6 Coldw. (Tenn.) 375 ; Whitten v, Hayden, 7 Allen, 407. The question whether a promissory note, sold by the payee at a dis- count greater than lawful interest, had, in view of the usury law, an inception prior to the sale, depends upon the question whether it was a perfect and available instrument in the hands of the payee, so that he could maintain an action thereon. If it was executed without a con. sideration, or if not assented to and delivered as evidence of a contract, it has no inception untU the sale, and the transaction is usurious. Eastman v. Sham, 65 N. Y. 522. For example, if a person is induced, by means of fraudulent representations made to him, to agree to take an interest in a company which he is led to believe is about being formed to purchase an interest in a valuable patent right, and is in- duced to execute and place in the hands of the payee his promissory note for the amount he is to contribute as a member, merely to show to others that he was willing to take a share, such note has no incep- 174 FSURT. Usury. tion in the hands of the payee, and if sold by him at a discount greater than lawful interest, will be held usurious and void. lb. Bills of exchange are governed by the same principle, and, if the in- dorsee of a bill, or of a promissory note, deducts more than a legal rate of interest for the time which it has to run, such bill or note will be void. And this is the rule although such indorsee or purchaser did not know that the bill or note had no legal inception before he purchased or dis- counted it. Clark v. Sisson, 4 Duer, 408. Though the statute, in general terms, declares void all contracts and securities affected with usury, yet several exceptions have been allowed to its provisions in favor of innocent third parties. Dix v. Yan Wyck, 2 Hill, 522. Where a debt or note is originally free from usury, and valid, and a subsequent note or security is given, which includes a usu- rious premium for forbearance, the latter note or security is void, and cannot be enforced ; but the original debt or note is not affected by the usury, and the amount may be recovered by action. Hice v. Welling, 5 "Wend. 595 ; Swartwout v. Payne, 19 Johns. 294- ; Sammondy. nap- ping, 13 Wend. 505 ; Gray v. Fowler, 1 H. Bl. 462 ; Carson v. IngaUs, 33 Barb. 657 ; Real Estate Trust Co. v. Keeoh, 7 Hun, 263 ; S. C, 69 IST. Y. 248 ; 25 Am. Kep. 181 ; Abrahams v. Claussen, 52 How. 241 ; Langdon v. Gray, id. 387 ; Terhune v. Taylor, 27 IS. J. Eq. 80. Obligations and securities having an independent -existence and un- tainted by usury are not affected by the statute, although they are the subject of contracts tainted with usury. Patterson v. Bi^dsall, 64 N. Y. 294 ; S. C, 21 Am. Eep. 609. A valid and subsisting debt is not destroyed because included in a secui'ity or made the subject of a contract void or invalid, either because in violation of the statutes against usury or for any other reason. Al- though formally satisfied and discharged, and the security surrendered, it may be revived and enforced in case the new security is invalidated and avoided. Patterson v. Birdsall, 64 N. Y. 294 ; Gerwig v. Bitterly, 56 id. 214 ; Winsted Bank v. Webh, 39 id. 326. Farmers am,d Me- chanics' Bank v. Joslyn, 37 id. 353. But, unless the usurious contract is mutually abandoned, no action will lie upon the original considera- tion ; for although the second note is void, and no action can be main- tained on it, yet there is no implied promise to pay the original debt while an express promise exists. If, however, the second contract is mutually abandoned, and the securities are canceled or destroyed, so that they can never be made the foundation of a subsequent action, and the borrower subsequently promises to pay the amount actually received by him, such promise is legal and binding ; but as long as the usurious USUEY. 175 Usury. contract remains in force, unrescinded by the parties, a promise to repay the sum actually borrowed cannot be enforced. Hammond v. Hopping, 13 Wend. 505 ; Rice v. Welling, 5 id. 595. And see Early v. Mahon, 19 Johns. 147. The usurer is not permitted at his own election to allege his illegal act as a ground for reinstating an old security. Farmers and Mechanics' BamJc, v. Joslyn, 37 N. Y. 353. He cannot bring an action upon the usurious note, and when the defense of usury is raised, recover upon the original valid debt without setting up an original debt in his pleadings and claiming to recover thereon. Ham,see v. Phinney, 20 Hun, 153. But see Tifft v. Moor, 59 Barb. 619. So, on the other hand, the party who claims to be the victim of exaction cannot avail himself of the invalidity of a later contract as a shield from liability on one of earlier date, which was honest and free from vice. Farmers and Mecha7iici BanTc v. Joslyn, 87 IS". Y. 353. If the usurer brings his action upon the original valid contract, and the defendant claims that the original debt has become void by reason of a usurious extension of time of payment, the defense will be unavailing as an entire defense, but the defendant may be allowed in equity the sum paid for forbearance as a payment upon the original debt. Real Estate Trust Go. v. Keech, 69 IST. Y. 248 ; S. C, 25 Am. Rep. 181. If the usurer brings an action against the indorsers of a promissory note, and they defend upon the ground that they have been discharged by an extension of time of payment given to the maker without their consent, the usurer cannot avoid the defense by showing that the extension was invalid because its consideration was a usurious bonus exacted from the maker. National BanTc of Gloversville v. Place, 15 Hun, 564. The same rule applies where the defendants are the sureties on the note. Billington v. Wagner, 33 N. Y. 31. So if the maker, in an action upon a promissory note, alleges, as a defense, that the note in suit has been included in a new note given to the plaintiff, which is still outstanding, the plaintiff cannot allege that the renewal note was usurious and therefore no bar to the action. Hansee V. Phinney, 20 Hun, 153. In all the cases the doctrine is recognized and affirmed that the usurer shall not be permitted to set up his own usury to his advantage ; and that it is the victim and not the usurer who can claim protection under the statute. But the victim of the usury can use the statute only as a means of defense. He cannot use it both as a shield and a sword. Thus, if after the principal of a bond and mortgage has become due, a usurious agreement is made between the parties for an extension of time, and notwithstanding the agree- ment, the holder of the mortgage commences an action for foreclosure 176 USURY. Usury. after default in the payment of interest accruing after the extension, claiming the whole amount secured to be due, under a clause in the in- strument declaring that upon default in payment of interest the whole principal shall become due at the option of the holder the mortgagor cannot claim the benefit of the extension, and at the same time seek to defeat the forclosure by asking that the usurious considera- tion paid therefor shall be applied in payment of the interest. Church V. Maloy, 70 N. Y. 63. The usurious agreement is void and there is no valid extension ; but assuming that it is binding at the election of the mortgagor, he disaffirms it by requiring that the consideration paid shall be credited. He is entitled to the credit, but having received it, is not entitled to the extension, and the plaintiff may have judgment for the residue unpaid. lb. In some of the cases a distinction is made between a usurious con- sideration actually paid to obtain an extension of time of payment, and a usurious consideration agreed to be paid. Thus it has been held that a mere agreement made by a creditor with the principal debtor, to for- bear the payment of the debt in consideration of a usurious premium to be paid for such forbearance, is void, and, therefore, it cannot operate to discharge the sureties. But, where the usurious premium is actually paid at the time, the sureties wiU be discharged. 2 Am. Lead. Cas. 420, 421, 4th ed. ;, Vilas v. Jones, 10 Paige, 76; S. C, 1 N. Y. 274; Fer- Thon V. Doubleday, 3 Lans. 216. But, in this State, the courts have held that there is no distinction in principle whether the usurious premium is actually paid, or merely agreed to be paid ; and that in either ease the sureties are discharged. Draper v. Trescott, 29 Barb. 401 ; La Farge v. Herter, 9 N. Y. 241. The principle of these latter decisions is, that the usurer was guilty of an unlawful act in taking the usurious premium, and that he cannot, therefore, be heard to urge his own xinlawful acts as against the surety. No man is allowed to take any advantage which results from his own unlawful acts. When the original loan is usurious, all the securities therefor, however remote, or however frequently renewed, are void. Beed v. Smith, 9 Cow. 647 ; Steele v. Whipple, 21 "Wend. 103 ; Jack- son V. PacTio/rd, 6 id. 415 ; Tuthill v. Davis, 20 Johns. 285 ; Jacks v. Nichols, 5 N. Y. 178 ; Clark v. Sisson, 4 Duer, 408 ; National Bank V. Lewis, 75 N. Y. 516 ; Price v. Lyons Bank, 33 id. 55 ; C(^e v. Wheeler, 41 id. 303. And see Miller v. Irwin, 85 Penn. St. 376 ; Stanton v. Demerritt, 122 Mass. 495; Sugart v. Mays, 54 Ga. 554; Campbell v. McHarg, 9 Iowa, 354. The rule is the same, whether the new security is given by the bor- USURY. 177 Usury. rower, or by a third person for his benefit. Vickery v. Dickson, 35 Barb. 96 ; Oarth v. Cooper, 12 Iowa, 364. So, all collateral securities which are given to secure the payment of a usurious debt are equally void with the original obligations or debt. Bell V. Lent, 24 Wend. 230 ; Harrison v. Hannel, 5 Taunt. 780 ; S. C, 1 Marsh. 349. But where notes and stock are deposited as a collateral security for the payment of promissory notes given on obtaining a loan of money, upon an agreement that the avails of the collaterals are to be applied to the payment of the loan when the notes given therefor become due, if the collaterals are paid before the notes become due, and the lender uses the money, such use of the money will not amount to usury in the notes, unless it was a part of the agreement made at the time of giving the same, that the lender should have the use of the money without interest. Morgan v. Mecham.iGs' Ba/nking Assooiai/ion^ 19 Barb. 584. The parties to a usurious agreement may reform it by canceling the original security and making a new obligation for the amount due after deducting the usury, but they cannot, by any transaction between them, render valid such original usurious security. And where the holder of a usurious mortgage indorsed thereon an amount equal to the sum in- cluded in it for usury, it was held that the mortgage was nevertheless void, although such indorsement was made with the assent of the mort- gagor. Miller v. Hull, 4 Denio, 104. If a party exacts usury at the time of making the loan, and takes security for the loan in the form of a mortgage, the subsequent repay- ment of the sum retained in excess of lawful interest will not render the mortgage valid. Van Tassell v. Wood, 12 Hun, 388. But if the person making the loan exacts and receives more than lawful interest for the use of the money, but before the mortgage given as security is acknowledged, the usurious interest is repaid, the mortgage given to secure the loan will be valid. Brackett v. Barney, 28 N. T. 333. A reservation in a new security of compound interest which had accrued upon a sum previously due, made against the will of the debtor, as a condition of forbearance upon the new security, effects the new security with usury and renders it void. Townsend v. Corning, 1 Barb. 627. See cmte, 148, Interest. The statute authorizes the borrower to set up the defense of usury. 3 R. S. 73, § 8, 5th ed.; Scherm&rlhorn v. Am. Life, etc., Ins. Co., 14 Barb. 131. But there are frequently questions as to what constitutes a borrower within the meaning of the statute. And it is a matter of some importance to know who may, and who may not avail himself of this defense. The 178 USUKY. Uaury. defense of usury can be set up only by the party bound by the origi- nal agreement to pay' the sum borrowed, or by the sureties, heirs, de- visees or personal representatives of such party. Billington v. Wag- oner, 33 N. y. 31. The defense is personal to the borrower, who complains of the injury, or those standing as his legal representatives. Ohio da Mississippi R. R. Oo. v. Kasson, 37 IST. Y. 218 ; S. C, 4 Trans. App. 184 ; Pritchett v. Mitchell, 17 Kans. 355 ; S. C, 22 Am. Eep. 287 ; Taylor v. Jackson, 5 Daly, 497. And it has been settled by repeated adjudications that a mere stranger to a usurious contract cannot avail himself of the usury. Kay v. Whittaher, 44 N. Y. 565 ; Murray v. Judson, 9 id. 73 ; Dix v. Vam WycTc, 2 Hill, 522. One not a party to a usurious agreement, or claiming under a party injuriously affected by it, cannot assail the agreement on the ground of usury. Williams v. Tilt, 36 N. Y. 319. An accommodation indorser may interpose the defense of usury, in relation to the transactions between the principal parties to the paper ; for such an indorser is embraced in the term " borrower," as used in the statute. MungerforCP s Bank v. Dodge, 30 Barb. 626 ; Cassebeer V. Kalbfleisch, 11 Hun, 119. So, the grantor of a note may set up the defense of usury in the same cases in which an indorser may do so. Parshall v. Lamoreaux. 37 Barb. 189 ; Huntress v. Patten, 20 Me. 28. A surety of the principal who borrows the money is within the statute, and he may set up the defense of usury, whenever that de- fense is available to the principal, Austin v. Fuller, 12 Barb. 360 Cole V. Sa/oage, 10 Paige, 583 ; Stockton v. Coleman, 39 Ind. 106 BuUock V. Boyd, Hoff. Ch. 294 ; Morse v. Hovey, 9 Paige, 197 whether the principal desires to set up the defense or not. lb. So, an assignee in trust for the benefit of creditors may interpose this defense. Pea/rsall v. Kinsglam,d, 3 Edw. Ch. 195 ; Wells v. Chap- man, 13 Barb. 561, 563. So, a receiver of an insolvent corporation may repudiate the illegal transfer of its securities by its officers, and claim them as a part of its fund. Talmage v. Pell, 7 N. Y. 328. So of the receiver of an individual. A purchaser of land which is incumbered by a usurious mortgage may set up usury in defense to a bill of foreclosure, unless, by the terms of purchase, he took the equity of redemption merely, subject to the payment of the mortgage. Brooks v. Avery, 4 N. Y. 226. And a purchaser at a foreclosure sale under a valid mortgage is in privity of estate with the mortgagor and may insist on the invalidity of a prior mortgage for usury, both mortgages being made by the same party. More v. Deyoe, 22 Hun, 208. USUET. 179 Usury. But a mortgagee of real estate wliicli is subject to the iien of a prior judgment, which was confessed by the mortgagor upon a usurious con- sideration, is not a borrower within the meaning of the statutes relat- ing to usury, and therefore he caimot maintaiu a biU to set aside the judgment, without paying or oifering to pay the sum actually due. Bexford v. Widger, 2 IST. T. 131 ; S. C, 3 Barb. Ch. 640 ; Shufelt v. Shufelt, 9 Paige, 138. One who does not claim through or under the borrower does not stand in privity with the borrower. Ohio <& Mississippi R. R. Co. v. Kasson, 37 N. T. 218. And if a grantee or assignee takes his assign- ment or grant from the borrower subject to a lien on the property taint- ed with usury, then, as to so much of the property as is necessary to satisfy such lien, he is not in privity in estate with the borrower, for so much of the property is not assigned or granted to him. Merchanti MeoJicmge Bamh v. Gom/mercial Warehouse Co., 49 N. T. 642 ; Bullard V. Rmfnar, 30 id. 206 ; De Wolfy. Johnson, 10 Wheat. 369 ; Enicker- locher Lifelns. Co. v. Nelson, 78 IST. T. 137, 150. The purchaser of a mere equity of redemption, in premises covered by a usurious mort- gage, who buys subject to the lien of such mortgage, cannot set up usury as a defense to the incumbrance. Green v. Kemp, 13 Mass. 515 ; Huston V. Si/rmgham, 21 Iowa, 36 ; Conover v. Mohert, 24 JS". J. Eq. 120. This rule must now be deemed firmly established. It stands upon the fact that such a purchaser acquires only the right to redeem and upon the principle that if he will not avail himself of this right he cannot hold the land, and having no title in the land cannot be permitted to avoid the mortgage by plea or proof of usury. Shufelt v. Shufelt, 9 Paige, 145; Post \. Dart, 8 id. 639; Morris^. Floyd, 5 Barb. 130; Sands V. Church, 6 N. Y. 347 ; Knickerbocker Life Ins. Co. v. Ndson, 78 id. 137, 150. Nor is the defense of usury available to one who has purchased the land assuming the usurious mortgage. Hartley v. Har- rison, 24 N". Y. 170 ; Cra/tner v. Lepper, 26 Ohio St. 59 ; S. C, 20 Am. Rep. 756. And see Studabacker v. Ma/rguardt, 55 Ind. 341 ; Hough V. Horsey 36 Md. 181 ; S. C, 11 Am. Rep. 484; Beed^. Eastman, 50 Tt. 67. A subsequent grantee of premises covered by a usurious mortgage is not a " borrower," and therefore he cannot maintain a suit in equity to set aside the mortgage without paying or offering to pay the sum loaned. Post v. President, etc., of Bank of UUca, 7 Hill, 391. But whether the equitable owner of land, upon which a usurious mort- gage has been given, is a " borrower," within the meaning of the stat- ute relating to usury, and is therefore entitled to interpose the defense 180 USURY. Usury. of usury, is not clear. EquitoMe Life Ins. Society v. Ouyler, 12 Hun, 247 ; S. C. affirmed, 75 N". T. 511. The purchaser at a foreclosure sale under a mechanics' lien which attached subsequently to the record of a mortgage of the same estate, may set up as a defense in a suit for the foreclosure of a mortgage, usury in the transaction on which the mort- gage is founded. Kniokerbocher Life Ins. Co. v. Hill, 16 Abb. (N. S.) 321 ; S. C, 6 Sup. Ct. (T. & 0.) 255 ; 3 Hun, 577. Cases have been cited in the preceding pages, covering questions of law which could not arise in justice's court, for the purpose of show- ing the construction which the courts have placed upon the term " borrower,' ' as used in the statute defining usury and what persons are entitled to interpose the defense. The decisions are not harmonious ; but the rule as at present settled is, that all privies to the borrower, whether in blood, representation or estate, may both in law and equity, by the appropriate legal and equitable remedies and defenses, attack or defend against a contract or security given by the borrower which is tainted with usury, on the ground of such usury, where such contract or security affects the estate derived by them from the borrower. Mer- clwmCs Exchomge NaCl Bank v. CommierGial WwreTwuse Go., 49 N. Y. 635, 643 ; Knickerbocker Life Ins. Go. v. Nelson, 78 id. 137, 150 ; Mm-e V. Beyoe, 22 Hun, 208, 218 ; McOuire v. Vwn Pelt, 55 Ala. 344 ; Lehman v. Marshall, 47 id. 362 ; Stein v. IndioMo^oUs, etc., Assodor tion, 18 Ind. 237. Tlie right of a borrower to recover the excessive interest upon a usurious loan is assignable, and vests in the assignee in bankruptcy of the borrower upon the execution of the assignment. Wheelock v. Lee, 64 N. Y. 242. A cause of action to cancel or otherwise affect an in- stmment executed or act done, as security for a usurious loan or for- bearance, may be transferred, when the instrument or act creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not otherwise ; but in that case the transferee does not suc- ceed to the right conferred by statute upon the borrower to procure relief, without paying or offering to pay any part of the sum or thing loaned. Code Civil Proc, § 1911. Corporations are precluded by statute from interposing the defense of usury. The kinds of corporations are there specified. But it is not merely the corporation itself wMch is precluded from making such a defense. And, therefore, a receiver of a corporation is precluded from interposing the defense of usury, and he cannot claim the ad- vantage of that defense in any stage of the cause, not even at the final hearing, although such defense was alleged in pleading, and was USUEY. 181 Usury. established by proofs before the act was passed. Curtis v. Leavitt, 15 N. Y. 13 ; S. C, 17 Barb. 309. This statute is retrospective in its operation, and it applies to foreign corporations litigating in the courts of this State. Southern Life Ins. d: Trust Co. v. I^acJcer, 17 N. Y. 51. A corporation is not merely precluded frona interposing the de- fense" of usury, but it cannot recover back usurious premiums which it has paid on the loan or forbearance of money. Sutterworth v. O'Brien, 28 Barb. 187 ; S. C, 23 K Y. 275. Since the act of 1850, contracts of corporations have not been within the usury laws, and the act has been construed to include collateral contract of individuals as sureties, guarantors or indorsers for a corporation. The contract of the corporation being valid, although usurious, the contract of a surety, guarantor or indorser of such con- tract is also valid, and neither can claim any separate standing in re- spect to the defense of usury. Stewart v. Bramhall, 74 JST. Y. 85 ; Zfnion National Bank v. Wheeler, 60 id. 612 ; Bosa v. Butterfield, 83 id. 665. But this act merely prohibits the defense of usury to a usurious contract made by a corporation, and does not apply to the case where the corporation succeeds to the rights of a party who might avail himself of the provisions of the usury laws. Therefore, if a corporation succeeds to the" rights of a pledgor of property pledged to secure a usurious loan, it is not prohibited from demanding and re- ceiving the property pledged. . MerohaMs^ Exchange Nat. Bank v. Commerdal Warehouse Co. 49 N. Y. 635. "Where the defendant himself waives his defense to a judgment on the ground of usury, a subsequent purchaser under him, with notice of the judgment, cannot impeach it. French v. Shotwell, 20 Johns. 668 ; S. C., 5 Johns. Ch. 555. A judgment creditor, by selling the property of his debtor on exe- cution, may thus place himself in a situation to contest the validity of any prior lien or incumbrance affected by usury. A purchaser under a judgment and execution is an assignee by operation of law, and so stands in legal privity with the judgment debtor. Dis v. Vam. WycJc, 2 HiU, 522. See Van Tassel v. Wood, 12 id. 388, 391 ; Mason v. Zord, 40 N. Y. 476. And where an action of replevin was brought against a sheriff for goods which he had taken on an execution, where the plaintiff claimed the property under a prior mortgage executed by the judgment debtor ; it was held that the sheriff might show that the mortgage was usurious as a defense to the action. Dix v. Vom Wyck, 2 Hill, 522. 182 USURY. Usury. But where a bond was conditioned to save harmless and indemnify the obligee against his liability as the maker of a promissory note then held by a third person, and to pay the same or cause it to be paid, the obligee may, without having paid any thing, recover the amount of the note against the obligor, upon his failure to pay the holder, because if the note is not paid by the obligor, the obligee is liable immediately upon the note, and the condition of the bond is forfeited ; and in an action upon such bond against the obligor, he cannot set up usury in the note as a defense. Churchill v. Hunt, 3 Denio, 321. Where the holder and apparent owner of negotiable paper sells it to a hona fide purchaser at a discount, representing it to belong to himself and to be business paper, the transaction is not usurious as between the vendor and vendee of the paper, although the representation of the vendor was false, and it was in fact paper which had been made for the pui-pose of being sold at a usurious discount in the market. Holmes v. Williams, 10 Paige, 326. Where a party purchases accommodation paper at less than its face, on representations made by the parties to it that it is business paper, and on which he relies, he is entitled to re- cover the whole sum payable by its terms, although it exceeds the amount paid for it, with the legal interest thereon. Burrall v. DeQrotU 5 Duer, 379. The rule applies as well when the representations are made by an accommodation indorser, as when made by the maker. Mason v. Anthony, 3 Abb. Ct. App. 207 ; S. C, 3 Trans. App. 255 ; 2 Keyes, 609 ; 35 How. 477. So, a certificate given by the maker of a promissory note at the time of executing such note, and annexed thereto, in which he states that the note is given for value and will be paid when due, will estop the party giving it from falsifying his own statements, and prevent his setting up the defense of usury against a holder who has discounted the note on the faith of the certificate, giving full value, under circumstances free from suspicion, and without any design to evade the statute. Mechamics' Bank of Brooklyn v. Townsend, 29 Barb. 569 ; S. C, 17 How. 569. So, where the maker of a promissory note annexes thereto a certificate that the same is given for value, and will be paid when due, and the note is afterward sold to a third person, for an amount less than should have been paid for it if discounted at legal interest, the maker is estop- ped by the certificate from setting np the defense of usury. Cha/mher- lam, V. Townsend, 26 Barb. 611. The reporter erroneously gives this as a special term decision, when it was, in fact, decided at General Term. See 27 Barb. Errata, p. 8. Where the maker of a note employs an agent to negotiate the sale USUKY. 183 Usury. thereof, to raise money to pay their joint debts, and the latter, on selling and transferring the same, assures the purchaser that the note is valid business paper in his hands, the maker will be bound by the representa- tions of the agent, and will be estopped from setting up the defense of usury. Ferguson v. Hamilton, 35 Barb. 427. In the absence of any limitation to his authority, it is within the powers of an agent employed to sell negotiable paper to represent it as being a business note and valid. lb. See Ahem v. Ooodspeed, 72 E". T. 108. If the maker of a promissory note negotiates it through the instrumentality of an agent, who, at the time of the sale and transfer thereof, represent to the pur- chaser that the note was given for a valuable consideration, or that it is a valid business note, and the purchaser buys the note upon the faith of such representations, and in ignorance of the fact that it never had a legal existence as a note, the maker and the agent will both be estopped from alleging the contrary of such representations, or from setting up the defense of usury. ParshaU v. Lamoreaux, 37 Barb. 189. But a mere accommodation guarantor of the note, who neither made any representations in relation to the character of the paper, or of the circumstances under which it was given, nor was cognizant of the representations made to the purchaser or to any one else, will not be estopped from interposing the defense of usury in the same manner as though he were a simple indorser of the note. lb. And where the maker of a promissory note gives it to the indorser merely to enable him to raise money on it for his own benefit, without any directions or instructions, such maker is not bound by the represen- tations of the indorser that it is business paper. Jackson v. Fassitt, 33 Barb. 645 ; and reporter's note explanatory in Furguson v. Hamilton, 85 id. 439, 440. So, where the acceptor of a bill or draft gives it to the drawer merely to enable Mm to raise money on it for his own benefit without any directions or instructions, such acceptor is not bound by the representations of the drawer that it is business paper. lb. If the purchaser of a note, which is represented by the payee and in dorser to be business paper, knows the character of the paper, or has good reason to suspect its character, or does not purchase in conse- quence of the representations of the payee he cannot set up such re- presentations as an estoppel. Truscott v. Davis, 4 Barb. 495. But, if the purchaser purchased the note in good faith, and on the faith of the representations made by such payee and indorser, the latter will be estopped from setting up the defense of usury, though it would be otherwise as to the maker of the note, if such note was made for the sole accommodation of such payee and indorser to enable 184 USURY. Usury. him to raise the money. lb. Jackson v. Fassitt, 33 Barb. 645. A certificate that a bond and mortgage were executed upon a full, lawful and valid consideration, and that there was no defense thereto, or equities latent or apparent in any way affecting the same, will only protect persons dealing with the security mentioned in it in good faith, believing the truth of the statement made by it, and relying upon it as the basis of the purchase. A purchaser loaowing to the contrary can in no way be benefited by such an instrument. Nichols v. Nussbawn, 10 Hun, 214. A contract made betwefen the parties to a usurious agree- ment, that the usury shall not be insisted upon to invalidate the agree- ment, is void and cannot be enforced. Mabee v. Orozier, 22 Hun, 264. Although, where an accommodation biU or note is made, and at the time of its first negotiation, representations are made that it is valid business paper, such representations will estop those who made them from setting up the defense of usury, when an action is brought by the holder of such paper, who gave value for it ; yet if there were no such representations, and no inquiries were made as to the character of the paper, the defense of usury is not excluded by the mere omission to disclose the true character of the paper. Cla/rh v. 8isson, 4 Duer, 408. To estop the parties to a bill of exchange by their representations in respect to its consideration and validity, such representations must be outside of the face of the bill. The recital in the bill of value received, and its indorsement do not stop the acceptor or the indorser from prov- ing that the acceptance and indorsement were for the accommodation of the drawer, and that the bill had no inception until its usurious dis- count or purchase by the plaintiff. Clark, v. Sisson, 22 N. T. 312 ; S. C, 4 Duer, 408. The representations which are made as to the char- acter of the paper may be oral or in writing, and they are as effectual as an estoppel when made orally as they would be in writing. Fwgu- sorv V. Hamilton, 35 Barb. 427 ; Jackson v. Fassitt, 33 id. 645 ; TruS' cott V. Davis, 4 id. 495 ; Holmes v. Williams 10 Paige, 326. A lender cannot avoid his own contract on the ground that it con- tains a usurious reservation in his own favor. FHweU v. Chamberlam, 4 Bosw. 320 ; Billington v. Wagoner, 33 N. T. 31. Where a party to a usurious bill or note gives a new security for it to a holder for value, without notice of the usury, the new security is valid, although the holder could not have recovered on the bill or note. Smedberg v. Whittlesey, 3 Sandf. Ch. 320 ; Kent v. Walton, 7 Wend. 256 ; Outhbert v, Haley, 8 Term E. 390 ; Miner v. O'Brien, 14 Hun, 414 ; Sherwood V. Archer, 10 id. 73. USURY. 185 Usury. And where a new security is given to such a lona fide holder of a usurious note by one of the parties thereto, after it became due, it was held to be valid, notwithstanding the holder of the usurious note was apprised of the usury therein after he became its holder and before the new security was given. Smedberg v. Simpson, 2 Sandf . 85. The pos- session of a usurious note by the iadorsee is presumptive evidence that he received it before it became due, for a valuable consideration, with- out notice of the usury. lb. ; Smedberg v. Whittlesey, 3 Sandf. Oh. 320. Where the payee of a usurious note indorsed it to a third per- son for a valuable consideration, who took it without notice of the usury, and he afterward brought an action against the payee seeking to charge him as indorser, it was held that the indorsement amounted to a new and independent contract between the parties, and that the usury in the original note was no defense to the action by the holder against the payee on his indorsement. McKnight v. Wheeler, 6 Hill, 492 ; Morford V. Bwois, 28 ]Sr. Y. 481. But see Treadwell v. Archer, 76 id. 196. The law of the place at which a contract is made, or of that where it is to be performed, frequently has an important bearing upon ques- tions of usury. There are some general rules which are applicable to all contracts, and which determine whether such contracts are valid or void. The construction and validity of a contract which is purely per- sonal depends upon the law of the place where the contract is made, unless it is made in, reference to the laws of some other place or coun- try where it is to be performed or carried into effect, and, in the latter case, the contract is governed by the the law of the place where it is to be performed. Chapman v. Robertson, 6 Paige, 627; Hosford v. Nichols, 1 id. 221 ; Hyde v. Ooodnow, 3 N". Y. 276 ; Pomeroy v. Ains- worth, 22 Barb. 120 ; Curtis v. Leavitt, 15 N. Y. 14 ; Balms v. Wom- lough, 38 Barb. 352. Ante, 138. Where a note of a resident of this State is made, dated and payable in this State, and no rate of interest is named in it, and no intention of the maker existed that it should be taken out of the State for dis- count, it is invalid if negotiated in another State at a rate of discount greater than that allowed by the usury laws of this State. Dickinson V. Edwards, 77 N. Y. 573 ; Jewell v. Wright, 30 id. 259. As a general rule, interest is payable according to the laws of the place where the contract is made ; but where the contract is made in reference to the laws of another country, and it is to be performed there, the interest is to be calculated according to the laws of the place where it is to be performed. Hosford v. Nichols, 1 Paige, 220 ; Pome- roy V. Ainsworth, 22 Barb. 120. Where a personal contract by its 24 186 USUKY. Usury. terms is to be performed in another State, and the place of perform- ance is not chosen with any intention to evade our laws, but because that place best suits the honest intention of the parties, our usury laws do not apply to it, although it be made and executed here. And where a negotiation for the sale and purchase of lands in Florida was made in that State, but the final agreement and the notes given for the pur- chase-money were executed in the State of New York, the notes being payable in Florida, it was held that the notes were not void for usury, although interest at the rate of eight per cent was reserved. Berrien V. Wright, 26 Barb. 208 ; Curtis v. Leavitt, 15 N. Y. 14 ; Bard v. Poole, 12 id. 495. Where a contract for the payment of money is made in one place and payment in another, and no rate of interest is expressed in the contract, the interest is to be governed by the law of the place where it is payable. Pomeroy v. Ainsworth, 22 Barb. 120. And where a contract is to be performed partly in one State and partly in another, each portion is to be governed by the laws of the State where the performance is to take place. lb. ; Curtis v. Leavitt, 15 N. Y. 14. A note made in another State or Territory, and designating no place of payment, which bears a higher rate of interest than is allowed by the statute in this State, is not invalid on account of usury, unless it is shown that the laws of the place where the note was made prohibit such rate of interest. Davis v. Garr, 6 N. Y. 124. Where a contract is made in another State, between parties subject to the laws of that State, and in pursuance of the contract, one of the parties draws a biU of exchange in favor of the other, upon a person residing in New York, the parties wiU be considered as contracting ac- cording to the laws of the former State, and the bill will not be usuri- ous, unless it is rendered so by the laws of the State where it was drawn. Bank of the State of Georgia v. Lewin, 45 Barb. 340 ; Balrm v. Wombough, 38 id. 352. A party residing in one State who goes into another State and there makes an agreement with a citizen of that State for a loan, lawful by its laws, but usurious under the laws of the State where the borrower resides, cannot render his obligation void by making it payable in his own State. Nor does the fact that the obligation is executed in the latter State, and sent to the holder by mail, require that it should be governed by the usury laws of the State where it was signed. Wayne Co. Savings Bank v. Zow, 81 N. Y. 566 ; Tilden v. Blair, 21 Wall. 241. When a question arises in our courts upon a transaction which has occurred in another State, and there is nothing to show what the USURY. 187 Usury. law of that State is, and tlie transaction is of such a nature as to raise no presumption one way or the other, the court will follow the laws of this State. City Savings Bwnh v. Bidwell, 29 Barb. 325. A party alleging that an agreement is invalid, under the usury laws of another State, must show what the laws of that State are in relation to usury. And in the absence of such proof, the presumption is that the agreement is valid, under those laws. lb. ; PoTneroy v. Ainsworth, 22 Barb. 120 ; Davis v. Oarr, 6 N. Y. 124. A contract which is made in another State, will not be presumed to be void on account of usury, merely because the note reserves a higher rate of interest than is valid here. See Klmck v. Price, 4 W. Ya. 4 ; Uhler v. Semple, 20 N. J. Eq. 288. It is not material, on a question of usury, where the contract, note, or other security, is dated or signed ; for the place where they are de- livered is the place of its execution. The place where the instrument is executed is not important, except in those cases in which the law of that place renders it invalid or void, or in those cases in which the place of executing the paper may have some bearing in determining the place where the contract is to be performed. In general, the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be per- formed. An exception to this rule, however, exists where the contract is declared void by the law of the State or country in which it is made, but would be valid in the place where it is to be performed. In such a case, the contract cannot be enforced in either place. Hyde v. Good- now, 3 N". Y. 267. Where there is a usurious agreement upon the loan of money, it is immaterial whether the unlawful excess be actually paid or only promised to be paid ; in either case the contract is void. Hammond v. Boppvng, 13 Wend. 505. Where a note or other in^ strument is made, which on its face reserves lawful interest, it may be shown that another contract was made in writing, or by parol, at the same time, which promised to pay an additional sum as interest ; and if this is estabhshed, such note or instrument will be void for usury. Aus- tin V. Fuller, 12 Barb. 360; Macomber v. Dvmliam, 8 Wend. 550 ; MerriUs v. Law, 9 Cow. 65 ; Law v. Merrills, 6 Wend. 268. The nature of a usurious contract to extend the time of payment of a debt, and its effect in discharging a surety, has been explained. Yol. I, 674. No custom or usage can render a transaption lawful, if it falls within the prohibition of the statute relation to usmy. The statute is para- mount, and will render every contract void which is made in %dolation of its. provisions, no matter how numerous the instances, or how com- 188 USUEY. Usury. mon the practice of disregarding it. Pratt v. Adams, 7 Paige, 617 ; Dvmha/m v. Dey, 13 Johns. 40 ; Dunham, v. Oould, 16 id. 367 ; Bank of UUca V. Wager, 2 Cow. 712. The devices which are employed for the purpose of evading the usury laws are so numerous that no attempt need be made to enumerate or classify them. The books of reports abound with cases which show the perseverance and ingenuity of those who have vainly attempted to evade or to disregard the settled law. The statute is plain and no one need violate its provisions. But, whenever any person attempts to take usurious premiums for the loan or forbearance of money, his conduct is liable to be examined by a jury, or by a court sitting in their place ; and if, upon the evidence given, it is proved that a usurious premium has been taken or received, or has been agreed to be taken or received, either directly or indirectly, it is the province and the duty of such jury or court to declare the facts as they truly are ; and, upon such finding of facts, the court will adjudge, as a matter of law, that the contract is void. White v. StillmoM, 25 N. T. 541 ; Catlin v. Ounter, 11 id. 368 ; Sizer v. Miller, 1 Hill, 227 ; Rockwell v. GharUs, 2 id. 499 ; Conger v. Tradesmam^s -Bank, HiU. & Denio, 34 ; Doe v. Drown, Holt's ISr. P. 295 ; Doe v. Gooch, 3 Barn. & Aid. 664. The cases which are to be decided by a jury or by the court upon questions of fact, are those in which the contract does not show usury upon its face. For, in those cases in which the contract is usurious by its very terms and upon the face of the contract, it will be adjudged void by the court as a mat- ter of law, whenever the question is properly before such court. Every pledge, mortgage or assignment of property, which is made upon a usurious consideration and agreement, as a security for a loan of money, is absolutely void ; and the person who is thus pledged, mort- gaged, or assigned it, may recover the property in an action of replevin, or its value in an action of trover. Schroeppel v. Gornvng, 6 N. Y. 107; Schroejpjpel v. Gornvng, 5 Denio, 236. But, where there is an existing usurious debt, and the debtor voluntarily sells and dehv- ers personal property to the creditor iu payment of such debt, an action of trover cannot be maintained to recover the value of such property ; nor can any other action be maintained by the debtor against the credi- tor, except an action under the statute to recover the value of the prop- erty so sold, or the money paid on a usurious agreement. Ante, 157, § 3 ; Ackley v. Finoh, 7 Cow. 290 ; Schroeppel v. Gorning, 10 Barb. 576 ; S. C, 6 N. Y. 107. The statute which limits the right of the debtor to sue within one year, ante, 157, § 3, relates to those cases only in which a pre-existing USUKY. 189 Usury. usurious debt has been paid ; and, if the property was delivered at the time of making the usurious loan, or if money was usuriously paid at that time, an action of trover, etc., will lie to recover the value of the property, or an action may be maintained to recover the money paid, lb. The rules of pleading and of evidence in cases relating to usury will be discussed in their appropriate place, and the important cases wiU be noticed, so far as it will be proper to do so, in this work. CHAPTER XVI. INSUEANCE. Section 1. Contracts of fire insurance and actions thereon. Actions upon insurance policies are not very frequent in justice's courts. But, since there are some cases in which such actions may be brought in these courts, a very brief notice of the law may be desirable. One of the first questions for consideration is as to the power to con- tract for insilrance against loss or damage by fire. It is a universal rule that a policy of insurance is absolutely void unless the insured had, at the time of entering into the contract, an insurable interest in the property insured. Hence a complaint in an action on a policy of fire insurance must contain an averment of such an interest in the plaint- iif , or in the person for whose benefit the contract was made, in order to state a cause of action. Williams v. Ins. Co. of North America., 9 How. 365 ; Freeman v. Fulton Fire Ins. Co., 14 Abb. 398 ; S. C, 38 Barb. 247 ; FowUr v. JSf. T. Indenmity Ins. Co., 26 N". Y. 422. In case of an assignment of the policy before loss, the complaint must show that the plaintiff or his assignor had an interest in the subject insured. lb. Where the property insured is mortgaged, and the policy is pro- cured, and the premium paid, by the mortgagor, but the loss, if any, is payable to the mortgagee, the mortgagor cannot maintain an action in his own name as sole plaintiff, for the recovery of the money due on the policy, without alleging in the complaint that the mortgagee has been fully paid, and has ceased to have any interest in the policy. Emnis v. Harmony Fi/re Ins. Co., 3 Bosw. 516. If the mortgage debt has not been paid, the mortgagee ought to be joined as a co- plaintiff, or he ought to sue in his own name alone. If the mortgagee refuses to do either he may be made a defendant ; but the complaint, in that case must show the facts why he is thus made defendant. lb. If by the terms of the policy the loss is made payable to a mort- gagee of the property named therein, he may maintain an action in his own name for the loss without joining those who were in actual possession of the property at the time of the insurance, and in whose name the policy was obtained, although they were the owners of the property subject to the interest of the mortgagee. lioussel v. INSUEANCE. 191 Contracts of fire insurance and actions thereon. St. Mcholas Ins. Co., 52 How. 495 ; S. C, 9 Jones & Sp. 279. In case the loss is payable to a third person, who has no interest in the property insured, but only claims the insurance as collateral security ior liabilities incurred prior to the insurance, the latter only can main- tain an action on the policy as an appointee of the owner who is au- thorized to receive the same. FrinTcY. HaTnpden Ins. Co., 31 How. 30 ; S. C, 45 Barb. 384; 1 Abb. (N. S.) 343 ; Cone v. Niagara Fire Ins. Co., 3 Sup. Ct. (T. & C.) 33, 39 ; S. C, 60 N. Y. 619 ; Merwin v. Star Fire Ins. Co., 7 Hun, 659; Hasti/ngs v. Westchester Fire Ins. Co., 73 JSr. T. 141, 150 ; Baltis v. Dohin, 67 Barb. 507. But see Lasher V. North Western Nat. Ins. Co., 18 Hun, 98. In the latter case, it is not necessary for the plaintiff to allege in his complaint that he had an insurable interest in the property insured. Frink v. Hampden Ins. Co., 31 How. 30 ; S. C, 45 Barb. 384; 1 Abb. (N. S.) 343. When an action is brought by a mortgagee named in the policy, and the com- plaint avere that the plaintiff had an insurable interest in the property at the time the insurance was effected, the legal presumption is that such interest continued until the time of the loss, and no allegation of the existence of such interest at the time of the loss is required. Rous- sel V. St. Nicholas Ins. Co., 52 How. 495 ; S. C, 9 Jones & Sp. 279. In an action by an assignee of a policy, or of a right to recover the money due for the loss, it will not be sufficient for the plaintiff to allege his interest in the subject-matter of the action, and of the assignment thereof, in general terms, without stating details as to either. Fowler v. N. Y. Indemnity Ins. Co., 26 JST. T. 422; reversing S.C., 23 Barb. 143. It is not necessary, in a complaint, for the plaintiff to negative a breach of the conditions of the policy, on his part ; such breach, if one is alleged by the defendant, is a matter of defense to be set up by him. Hunt v. Hudson River Fi/re Ins. Co., 2 Duer, 481. A mortgagor who mortgages property by a chattel mortgage, has an insurable interest by reason of his right to the equity of redemption. Allen y. Franhlin Fire Ins. Co., 9 How. 501. And so has the mort- gagee. Roussel V. St. Nicholas Ins. Co., 52 How. 495 ; S. C, 9 Jones & Sp. 279. See Trader's Ins. Co. v. Robert, 9 Wend. 404. A legal or equitable title is not necessary to give an insurable interest in prop erty. If one has a right which may be enforced against the property, and which is so connected vsdth it that injury thereto will necessarily result in loss to him, he has an insurable interest. Rohrhach v. Oer- mcmia Fi/re Ins. Co., 62 N. Y. 47 ; S. C, 20 Am. Kep. 451 ; Harvey v. Cherry, 76 N. Y. 436. One of two several mortgagees may insure his interest in the mortgaged property, and the other wiU not be en- 192 mSUKANOE. Contraota of fire insurance and actions thereon. titled to share in the benefits of the insurance. Waring v. Loder, 53 N. Y. 581. And one of two joint-owners or owners in common of prop- erty may insure his interest separately against loss by fire, and may re- cover and retain the insurance in case of loss. Harvey v. Oherry, 76 N. T. 436 ; Miller v. Eagle Ins. Co., 2 E. D. Smith, 299. An ad- ministrator of an insolvent estate has an insurable interest in the build, ings belonging to it. Herhimer v. Bioe, 27 N. T. 163. A person whose premises have been sold under an execution has an insurable in- terest so long as the right of redemption exists in the debtor or in his creditors. Cone v. Niagara Fire Ins. Co., 60 N. T. 619. So a mort- gagor who has given a bond or obligation which is secured by the mort- gage, has after a sale of the mortgaged premises an interest in the pres- ervation of the property in order that his debt may be paid out of it which is insurable. Waring v. Loder, 53 N. Y. 581. So agents, com- mission merchants or others having the custody of property and the responsibility for its preservation may insure it in their own names and recover of the insurer the full amount named in the policy, if not in excess of the value of the property. Waring v. Indemnity Fvre InS. Co., 45 ISr. Y. 606 ; Sturm v. Atlantic Mut. Ins. Co., 63 id. 77 ; Elms V. Queen Ins. Co., 7 Hun, 267 ; S. C. affirmed, 69 IST. Y. 614. A sherifE or a constable who has taken personal property into his posses- sion by virtue of an attachment, replevin process, execution or other legal process, has a special property therein, which gives him an insur- able interest. White v. Madison, 26 N. Y. 117. And a deputy sherifE as such, is authorized without a special power for that purpose, to insure such property in the name and on behalf of his principal. lb. Where goods are sold on an execution, at a sheriff's or a constable's sale, the purchaser may recover the value of the property if lost by fire, in a case where such property was insured at the time of the sale, and where the company, subsequent to such sale, gave their consent to an assignment of the policy to the purchaser. Hooper v. Hudson Ei/ver Fire Ins. Co., 17 N. Y. 424. Where a policy upon goods and chattels covers " the property of the insured or held by him in trust," the person insured may recover the value of property intrusted to him for the purposes of being manufac- tured ; and he may recover the full value of the entire property, with- out being limited to his interest therein. Stilkoell v. Staples, 19 N. Y. 401. An insurance effected by one partner on partnership property, al- though made in his own name, and expressed to be on his sole account, will protect his undivided interest so as to enable him to recover the INSURANCE. 193 Contracts of fire insurance and actions thereon. amount of that interest, in case there is a loss. Irvimg v. Excelsior Fwe Ins. Co., 1 Bosw. 508 ; Sharp v. Whipple, id. 55T. A vendee, under a contract of piirchase, has an insurable interest. McGivney v. Phoenix Fvre Ins. Oo., iWend. 85 ; Tyler ^^.^EtnaFire Ins. Go., 12 id. 507; S. C, 16 id. 385 ; Chase v. Hamilton Mut. Fire Ins. Co., 22 Barb. 527; Acer v. Merchants' Ins. Co., 57 id. 68. And this interest exists even after the contract has become voidable at the election of the vendor by reason of the failure of the vendee to perform his part of the contract, if the vendor has not exercised his right to declare the contract void. Pelton v. Westchester Fire Ins. Co., 13 Hun, 23. A person holding personal property under a conditional contract of sale has an insurable interest. Lasher v. Northwestern National Ins. Co., 18 Hun, 98. And so has a vendor of property un- der a contract that the title shall remain in him until the property is paid for. Tollman v. AUantic Ins. Co., 3 Keyes, 87 ; S. C, 33 How. 400 ; 4 Abb. Ct. App. 345. Where a policy has been assigned as a collateral security, and an action is brought by the assignee, the complaint ought to show on its face that the assignee had an interest in the property insured at the time of the loss or it will be demurrable. Peabody v. Washington Co. Mutual Ins. Co., 20 Barb. 339. The assignor of the policy is the real owner of the property in such a case, snbject only to the rights of the assignee to the payment of his debt, and in case of a loss, the assignor may re- cover against the company to the extent of the loss. lb. Where after default in the payment of a chattel mortgage, but before the possession of the property is disturbed, the mortgagor procures a policy of insurance providing that the loss if any shall be payable to the mortgagee, the policy covers the entire property, and not merely the value of the equity of redemption. Smith v. Exchange Fire Ins. Co.., 8 Jones & Sp. 492. An agreement for insurance which is perfected by an acceptance of the risk, and the payment of the premium to the company's agent is valid, and it is binding upon the company, which is liable in case of loss, even though such loss occurs before the actual delivery of the policy to the insured. Whitaher v. Farmers' Union Ins. Co., 29 Barb. 312 ; Chase V. BamiUon Mutual Ins. Co., 22 id. 527 ; Collins v. Phoenix Ins. Co., 14 Hun, 534. In such a case it is not necessary to obtain a policy before an action can be maintained. After the loss he may maintain an action iipon the agreement and the loss, and recover a judgment for the amount actually due. Boohwell v. EaHford Fire Ins. Co., 4 Abb. 179 ; Perkins v. 25 194 INSUEANCE. Contracts of fire insurance and actions thereon. Washington Ins. Co., i Cow. 645. And see LigMbody v. North America Ins. Co., 23 Wend. 25, 18. A mere oral contract of insurance supported by a sufficient considera- tion, which is to take effect immediately, although it may be entered into contemporaneously with an agreement by the insurers to deliver, and the assured to subsequently accept as a substitute therefor, a written policy by the former in the form usually adopted by them, becomes binding and remains in force until the delivery or tender of such policy ^ and until then the condition usually inserted in such policies, requiring prepayment of the premium to make them binding, does not, unless expressly adopted by the parties in such oral contract, form any part of the contract of insurance between them. Kelly v. Commonwealth Ins. Co. of Penn., 10 Bosw. 82. In such a case, a mere demand of the premium without insisting upon it or tendering a valid policy, does not terminate the oral insurance ; and under such oral insurance the insured may recover for a loss, although after it occurred, and while the in- surers were ignorant of it, he paid them the premium, and received from them a written policy which was not binding on them because not properly countersigned. lb. A valid contract for insurance may be made by parol. Fish v. Cot- tenet, 44 IST. T. 538 ; S. C, 4 Am. Kep. 715 ; Trustees of Ba/ptist Church v. Broohlyn Fire Ins. Co., 19 id. 305 ; Audubon v. Excelsior Ins. Co., 27 id. 216 ; Rhodes v. Baihoay Passenger Ins. Co., 5 Lans. 71 ; Ludwig v. Jersey City Ins. Co., 48 IST. T. 379, 383 ; S. C, 8 Am. Eep. 556 ; Coohe v. ^P)ia Fire Ins. Co., 7 Baly, 555. There are at least five ingredients necessary to a contract of insurance^ first, the subject-matter, second, the risks insured against, thi/rd, the- amount,/ciw?'i!A, duration of the risk, and^^A the premium of insur- ance. A parol promise to insure, where only the subject, amount and premium of the insurance were agreed upon is too vague and indefinite to be binding. Tyler v. New Amsterdam, Fire Ins. Co., 4 Rob. 151. And see Be Grove v. Metropolitan Ins. Co., 61 N. Y. 594 ; S. C, 19 Am. Eep. 305. In the absence of any stipulation to the contrary, every insurer against fij-e takes the risk which is incident to making necessary repairs to the insured property. Townsend v. Northwestern Ins. Co., 18 N. Y. 168. This risk is not affected, nor is it obviated by a clause in the policy, which declares that such policy shall be void if the premises are so oc- cupied as to render the risk more hazardous than it was at the time of insuring ; because making repairs is not a mode of occupying. lb. Statements which are made in an application for insurance, where INSUEANOE. 195 Cpntracts of fire insurance and actions thoreon. they are material in relation to the risk or any part of it will be con- sidered in the nature of a warranty ; and, therefore, If they are untrue, the policy issued upon them will be entirely void. Smith v. Empire Ins. Co., 25 Barb. 497 ; Chaffee v. Catta/raugus Co. Mutual Ins. Co., 18 N. T. 376 ; Brown v. Same, id. 385 ; Murdoch v. Chma^go Co. Mutual Ins. Co., 2 id. 210 ; Wilson v. Eerhimer Co. Mutual Ins. Co., 6 id. 53 ; W(dl v. East River Mutual Ins. Co., 7 id. 370 ; Bvpley v. JEtaa Ins. Co., 30 id. 136. So, statements contained in a policy of insurance, descriptive of the property insured or otherwise, are frequently held to be warranties. Thus, where the policy by its terms insures the plaintiff against loss on his " building occupied as a dwelling," the clause wiU be construed as a warranty that the house was ocGupied, and occupied only as a dwell- ing; and if the house was in fact unoccupied, or occupied in any man- ner other than as a dwelling, there is a breach of warranty which avoids the policy. See Alexander v. Germamia Eire Ins. Co., 66 N. T. 464 ; S. C, 23 Am. Eep. 76 ; Maher v. Eihernia Ins. Co., 67 ¥. Y. 283. But see Browning v. Home Ins. Co., 71 id. 508; Woodruff y. Imperial Fire Ins. Co., 83 IST. T. 133. But no part of an application for insurance can be regarded as a war- ranty unless made so by the contract of insurance. Owens v. Holland Purchase Ins. Co., 56 N. Y. 565. And any statement in the applica- tion, which is not adopted and made the basis of the contract so as to constitute a warranty, wiU be treated as a representation, not prejudic- ing the rights of the insured, unless in some way material to the risk, untrue, and not made in good faith. lb. Lasher v. Northwestern Nat. Ins. Co., 18 Hun, 98, 103 ; S. C, 57 How. 228. To make an applica- tion constitute a part of a policy of insurance, there should be some reference to it, which evinces that the parties understood and accepted it as such. Yilas v. New York Central Ins. Co., 72 N. Y. 590. But if the policy contains a clause declaring it to be void " in case of any misrepresentation whatever, either in the written apphcation or other- wise", a misrepresentation will avoid the policy without regard to its materiality to the risk. Graham v. Firemani Ins. Co., 87 N. Y. 69. It is often the case that no formal written apphcation for insurance precedes the issuing of the policy ; and in many cases the agent of the insurer merely ascertains from the assured the location of the property and the amoxint of insurance desired, obtaining the other information required by a personal survey and examination of the premises, or by inquiries of third persons. In such cases the strict rule of warranty is relaxed, and any misstatement in the poHcy, known to the agent to be 196 msUKANCE. Contracts of fire insurance and actions thereon. false when the insurance was effected, will not be allowed to prejudice the assured. See Ghase v. People's Fire Ins. Co., 14 Hun, 456 ; Van Schoick V. Niagara Fire Ins. Co., 68 N". T. 434; Broadhead v. Lycommg Ins. Co., 14 Hun, 452 ; MoCahe v. Farm Buildings Fire Ins. Co., id. 602 ; Pa/rl/ridge v. Commercial Fire Ins. Co., 17 id. 95 ; Whited v. Qermania Fire Ins. Co., 76 N". Y. 415 ; Maker v. Hibernia Ins. Co., 67 id. 283. If there is what purports to be an application for an insurance, con- taining false answers and misstatements concerning the risk, and the paper was in fact wholly drawn up by the agent of the insurer, on a blank previously signed by the assured, the latter will not be prejudiced, as it is not his application, and therefore cannot be his warranty. Sprague v. Holland Purchase Ins. Co., 69 N. T. 128. See Landers V. Watertown Fire Ins. Co., 19 Hun, 174 ; S. C, reversed, 86 N, Y. 414 ; Vilas v. New York Central Ins. Co., 72 id. 590. If the condition of a policy of insurance prohibit the storing of certain specified articles, in the buildings insured, a violation of the conditions will render the policy void ; but a mere temporary or casual deposit of such articles in the building will not invalidate the policy. Ily7ids V. Schenectady Co, Mutual Ins. Co., 11 N. Y. 554. The provision against storing and keeping petroleum, etc., usually found in insurance policies, refers to storing and keeping in a mercantile sense, in considerable quantities, with a view to commercial trafic. Wil- liams V. Firmen's Fund Ins. Co., 54 N. Y. 569 ; S. C, 13 Am. Eep. 620. See Buchanan v. Exchange Fire Ins. Co., 61 N. Y. 26. So where the agent of the insurer, before the policy is issued, inspects the premises and sees and is informed that kerosene is used for lighting, a policy, providing that it should be void if " refined coal or earth oils are kept for sale, stored or used on the premises without written consent," will not be avoided by the continued use of kerosene without such consent. Bennett v. North British, etc., Ins. Co., 81 N. Y. 273 ; Couch v. Eoch- ester Oerman Fire Ins. Co., 25 Hun, 469. See Matson v. Farm Buildings Ins. Co., 73 id. 310. If the policy provides that the policy shall be void if the buildings become " vacant and unoccupied," the policy will not be avoided unless the building is both vacant and unoccupied. Herrman v. Merchants' Ins. Co., 81 N. Y. 184. A dwelling-house is " unoccupied " where no one lives therein, but it is not necessarily " vacant." lb. A dwelling-house to be " occupied," within the meaning of such a condition, must be used by human beings as their customary place of abode. Herman v. Adriatic Fire Ins. Co., 85 N. Y. 162. And it has been held that the ordinary provision in a INSURANCE. 197 Contracts of fire insurance and actions thereon. policy, that if at any time during the continuance of the poKcy the insured property, should become "vacant or unoccupied," the insurer shall be absolved from liability, should not be applied to buildings vacant at the time when the policy issued to the knowledge of the insurer. Aurora Fire, etc., Ins. Co. v. Kranioh, 36 Mich. 289 ; Wood- ruff y, Invperial Fire Ins. Co., 83 N. Y. 133. See Whitney y . Black River Ins. Co., 72 id. XIY; Gibhs v. Contineiital Ins. Co., 13 Hun, 611; Ctimmins v. Agricultural Ins. Co., 67 N. Y. 260; S. C, 23 Am. Rep. 111. The conditions annexed to a policy are parcel of the contract, and have the same effect as though in the body of it ; and where a condi- tion, thus forming part of a policy, is not complied with, the plaintiff cannot recover. Jvhe v. Brooklyn Fire Ins. Co., 28 Barb. 412 ; Jen- nings V. Chenango Co. Mutual Ins. Co., 2 Denio, 75 ; Murdock v. Same, 2 N. Y. 210. So a violation of any of such conditions will avoid the policy, and prevent a recovery upon it. lb. Where a contract of insurance is entire a breach of condition affects all the property at risk. But when the contract is divisible, as in a case where the policy covers several separate and distinct classes or species of property, each of which is separately valued, and the sum total of the valuation is insured on payment of a premium in gross, a breach of a condition avoiding the policy as to one of the items does not affect it as to the others ; at least where there is nothing in the terms, in the nature of the contract, or of the different subjects of the insurance, or in the surrounding circumstances from which it can be inferred that the insurer would not have been likely to have assumed the risk on one or several of the subjects of the insurance, unless induced by the profit or advantage of having a risk upon all. Merrill V. Agricultural Ins. Co., 73 N. Y. 152. If there is a discrepancy or a repugnancy between the written and the printed portion of the policy, the written portion will prevail over the printed part. Harper v. Albany Mutual Ins. Co., 17 N. Y. 194. See Barhydt v. EUis, 45 id. 107. Where the stock in trade of a manufacturer is insured, the policy is construed to imply a license to him to keep on hand and use all such articles as are necessary, and such as are ordinarily used in the manu- facture of such articles as are insured, notwithstanding the policy may prohibit in its printed terms the use or keeping of such articles. Bryant v. Poughkeepsie Mutual Ins. Co., 17 N. Y. 200 ; Harper v. Albany Mutual Ins. Co., id. 194 ; Harper v. N. Y. City Ins. Co., 22 id. 441; Hall v. Ins. Co. of North America, 58 id. 292; 198 INSURANCE. Contracts of fire insurance and actions thereon. S. C, 17 Am. Eep. 255 ; Steinlach v. LaFayalte Fvre Ins. Co., 54 N. Y. 90. See Pindar v. Kings Co. Ins. Co., 36 id. 648. A violation of the conditions of a policy renders it void, and it is entirely immaterial whether the acts constituting such violation caused the loss or not ; and a removal of the property or articles, or a cessa- tion of the performance of the acts constituting such violation, will not revive a policy once forfeited, unless the insurer by this acts waives the forfeiture, or unless both parties consent to a renewal of the risk. Mead V. NorthwesUrn Ins. Co., 7 N. Y. 530, 533, 535, 536. " Where there has been a breach of a condition contained in an insur- ance policy, the insurance company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say any thing to make the forfeiture effectual. It may wait until a claim is made under the policy and then in denial thereof, or in de- fense of a suit commenced therefor, allege the forfeiture. But it may be asserted broadly that if, in any negotiations or transactions with the assured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the in- sured by virtue thereof to do some act, or incur some trouble or ex- pense, the forfeiture is as matter of law waived ; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or estoppel." Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Allen v. Vermont Mut. Fire Ins. Co., 12 Vt. 366 ; Webster v. Phoenix Ins. Co., 36 Wis. 67 ; Cans v. 8t. Paul Ins. Co., 43 id. ] 09 ; Insurance Co. v. Norton, 96 U. S. 234 ; Goodwin V. Massachusetts Mutual life Ins. Co., 73 N. Y. 480, 493 ; Prentice v. KnicJcerhoo'ker Life Ins. Co., 77 id. 483 ; Brink v. Han- over Fire Ins. Co., 80 id. 108 ; Shearman v. Niagara Falls Ins. Co., 46 id. 526. If a policy has been rendered void by a violation of its conditions by the insured, yet if the company, with a full knowledge of such fact, subsequently assesses the premium note of the insured, and collects and receives the assessment, this will estop the company from setting up the forfeiture, and it will be liable for any loss subsequently occurring during the life of such policy. Viall v. Genesee Mutual Ins. Co., 19 Barb. 440; Frost X.Saratoga Mutual Ins. Co., 5 Denio, 154. A receipt by the insurer, through his general agent, of renewal premiums, INSURANCE. 199 Contracts of fire insurance and actions thereon. taken with knowledge of other insurance on the same property, is a waiver of the requirement of the policy that formal notice of any such insurance must be given and an indorsement made on the policy. Gwr- roll V. Charter Oak Ins. Co., I Abb. Ct. App. 316; S. 0., 10 Abb. (N. S.) 166, So, where an insurance company renews a policy, and accepts the renewal premium, after knowledge that the insured property was so used as to avoid the policy, it will be estopped from setting up such acts as a forfeiture of the policy so renewed. Ziddle v. Market Fire Ins. Co., 4 Bosw. 179, 188, and cases cited. Where the conditions of a policy provide that any action to recover for a loss must be commenced within a specified time after the proofs of loss are completed and filed, and that no action shall be maintained if commenced after that time, such condition is valid. Ripley v. JEtna Ins. Co., 30 N. T. 136 ; Roach v. Wew York & Erie Ins. Co., id. 546 ; Ames v. New 7orh Union Ins. Co., 14 id. 254 ; Mayor^, ^tc., of New Yorh v. Ha/milton Fire Ins. Co., 10 Bosw. 53T ; Wilk- inson V. First National Fire Ins. Co., 72 N. Y. 499 ; but, if the company, by its duly authorized agents, prevents an action from being commenced within that time, such defense will not be available. Ames V. N T. Union Ins. Co., 14 N. T. 254. See Hoaj y. StarFire Ins. €o., 77 id. 235. A clause in a policy of insurance which is already in existence and ■operation, that no insurance, whether original or continued, should be considered as binding until the actual payment of the premium, and a written indorsement thereof made on such policy, or a receipt for the premium given, does not invalidate a subsequent parol agree- ment that such policy shall be renewed from year to year, without pay- ing the premium at the time of such renewal, but that such premium shall be paid on demand ; and where such renewals are made from year to year, and the premium paid on demand, the company will be liable upon such policy. Trustees of First Baptist Church v. Brook- lyn Fi/re Ins. Co., 19 N. Y. 305 ; S. C, 18 Barb. 69. Such a clause is one which is inserted for the benefit of tlie insurer, and he may waive it if he chooses. Ooit v. National Protection Ins. Co., 25 Barb. 189. A general agent of the company who is authorized to make contracts of insurance for it, may waive such payment and bind the company. Sheldon v, AtloMtic Fire amd Ma/rine Ins. Co., 26N. Y. 460; Goit x. National Protection Ins. Co., 25 Barb. 189. See Boehen v. Williamshurgh Ins. Co., 35 K Y. 131 ; Bodine v. Ex- •chamge Ins. Co., 51 id. 117; Bowman v. Agricultmral Ins. Co, 59 id. 200 mSURANCE. Contracts of fire insuraoce and actions thereon. 526 ; Oa/rroll v. Oha/rter Oak Ins. Co., 1 Abb. Ct. App. 316 ; Vcm Schoich V. Niagara Ins. Co., 68 N. T. 434. But see Walsh v. Ha/rt- ford Fire Ins. Co., 73 id. 5. "Where the application for insurance is drawn, and the measurements and survey are made by a duly authorized agent of the insurers, and tlie applicant for insurance does nothing but sign such application, without even examining its correctness, he will not be bound by the statements therein contained ; and the insurers will be estopped from controvert- ing the truth of such statements. Plumb v. Cattarcuugus Co. Mutnial Ins. Co., 18 N. T. 392. See Sprague v. Holland Purchase Ins. Oo.^ 69 id. 128; Landers v. Watertown Fire Ins. Co., 19 Hun. 174; S. C, 86 N. T. 414; YiUs v. New Tori Central Ins. Co, 72 id. 590. But, if the application for insurance provides that the insurer shall not be bound by any acts or statements made to any agents, or by them, -unless such statements are contained in the application, the .inowledge of such agent of any facts not stated in the application,, will not bind the company in the absence of fraud, or in case the ap- plicant was not prevented from having such statements so inserted therein. Chase v. Hamilton Ins. Co., 20 ]S". Y. 52. But, if the applicant employs an agent of the insurer to draw up his application for insurance, such applicant will be bound by the errone- ous statements inserted by such agent in the application, even if it is done without the knowledge of such applicant. Smiths. Empire Ins. Co., 25 Barb. 497. In a number of cases decided in the Court of Ap- peals, it has been held that when a policy contains a clause to the effect that any person other than the assured procuring the insurance to be taken out shall be deemed to be the agent of the assured and not of the company, is binding on the assured, and that under this clause the com- pany are not bound by the knowledge of their agent through whom the insurance is affected. Pohrhach v. Oerma/nia Fire Ins. Co., 62 N. Y. ' 47; Alexander v. Germania Fire Ins. Co., 66 id. 464; S. 0., 23 Am. Hep. 76. But these decisions while not expressly overruled, have not been followed, and their force as authority has been materially shaken. Whited V. Oermania Fire Ins. Co., 76 IST. Y. 415, 419 ; Sprague v. Holland Purchase Ins. Co., 69 id. 128. If the courts permit the agent of the company to thus be made the agent of the assured, they also apply the principle that a company employing the agent of another to effect insurance for it cannot take advantage of the acts and omissions of that agent to the harm of his principal. Whited v. Gerrtiama Fire Ins. Co., 76 N. Y. 415, 421. No person is permitted to act in the capacity of agent for both parties; IKSUEANCE. 201 ContractB of fire insurance and actions thereon. and a contract of insurance so made, may be set aside by either party. i\r. Y. Central Ins. Co^y. National Protection Ins. Co., 14 N. Y. 85. An insurance company which authorizes one of its general agents to receive applications for insurance, which are to be submitted to the company for its approval, but to be binding upon it until its disapproval is communicated to the insured, will be bound by an agreement of such agent to extend a policy, where a loss occurs before such disapproval, or before such notice is given to the insured. Leeds v. Mechanics' Ins_ Co., 8 N. T. 351. But, where a local agent is appointed, who is authorized by a written appointment, as a regularly appointed agent and surveyor of the com- pany, and who is duly authorized to take applications for insurance, he may take such applications, but he has no legal authority to bind the company by an approval of a subsequent policy of insurance issued by another company. Wilson v. Genesee Mutual Ins. Co., 14 N. T. 418 ; Mdlen v. Hamilton Fire Ins. Co., 17 id. 609 ; S. C, 5 Duer, 101. But, it has been held that a verbal notice to such an agent of a, prior in- surance upon the same property, is valid, and will bind the company. Sexton V. Montgomery Co. Mutual Ins. Co., 9 Barb. 191 ; McEwen v. Same, 5 Hill, 101. Policies of insiirance generally contain a clause that in case of loss, the insured shall forthwith give notice thereof to the company. The word "forthwith" does not mean immediately or instantaneously after , the fire, but within a reasonable time thereafter, or with reasonable diligence. What is a reasonable time depends upon all the circumstances of the case. Bennett v. Lycoming Co. Mut. Ins. Co., 67 N. Y. 274 ; New York Central Ins. Co. v. National Protection Ins. Co., 20 Barb. 468 ; Inman v. Western Fire Ins. Co., 12 "Wend. 452. In one case where the policy contained such a clause, the loss occurred on the 20th of May, 1852, .and in an action upon the policy, the complaint alleged, " that as soon as possible after said fire, that is to say, on the 24th day of May, 1852, the plaintiffs gave notice to the defendants," and this allegation was held to authorise proof that the proper notice was given on the 21st day of May, 1852. Hovey v. America Mutual Ins. Co., 2 Duer, 554. And such a notice, if duly given, will satisfy this clause in the policy. lb. In another case, the policy required that "im- mediate " notice of the loss should be given. The office of the com- pany was located in the city of New York, and the plaintiff resided in the dty of Buffalo, where the property was insured by an agent of the company residing there. The loss occurred on Saturday night, between 26 202 msUEANCE. Contracts of fire insurance and actions thereon. New York and Albany, and the plaintiff was notified thereof by tele- graph, on Sunday or Monday ; and as early as Monday, the agent of the company at BufEalo was notified by the plaintiff of the loss, and the company were notified thereof by such agent on Tuesday ; and this was held to be a sufficient compliance with the terms of the policy. Sa/oage v. Corn Exchange Fire <& Xnlrnid Noaj. Ins. Co., 4 Bosw. 1. So, in a case where the policy required notice of loss to be given " forth- with ;" the loss occurred on the 15th day of June, the insured first knew of it on the 18th, and they sent written notice thereof to the company, by mail, on the 23d of the same month, and this was held to be sufficient. N. IT, Central Ins. Co. v. National Protection Ins. Co., 20 Barb. 468. The reversal of this case, 14 JST. Y. 85, was upon an- other ground. The object of such a clause is to require the party insured to give notice to the company of his loss with due diligence. InmanY. Western lire Itis. Co., 12 Wend. 452. And, therefore, a notice of loss given on the 2d of April, when the fire occurred on the 23d day of Februaiy, preceding, is not sufficient. lb. The complaint in such an action should allege that the notice was given forthwith, or in similar language ; and the question whether such notice was properly and legally given, will be determined at the trial on all the evidence intro- duced, lb. Where a policy requires immediate notice of loss, a delay of five months will be fatal. Sherwood v. Agricultural Ins. Co., 10 Hun, 593. See BrinJc v. Ranover Fire Ins. Co., 70 N. Y. 593 ; 80 id. 108. In case of a loss by fire, the insured is required to deliver a just and true account of his loss, as a part of the preliminary proofs ' required by the policy, and no action can be maintained uatil this is done unless there is a waiver of it by the company. Blossom v. lycoming Fire Ins. Co., 64 K Y. 162 ; SoAiage v. Howard Ins. Co., 52 id. 502; Underwood v. Farmers^ Joint-StocTc Ins. Co., 57 id. 500 ; Irving v- Excelsior Fire Ins Co., 1 Bosw. 507. If upon the trial it appears that the proofs of loss were not furnished within the time required by the policy and there is no evidence of a waiver, it is the duty of the court to nonsuit the plaintiff. Blossom v. Lycoming Fire Ins. Co., 64 E". Y. 162. It has been held that where proofs of loss have been fur- nished, the insured is bound by the statement thus made, and cannot, on the trial, impeach its truth, nor can he recover upon evidence show, ing a different state of facts. Irving v. Excelsior Fire Ins. Co.. 1 Bosw. 507. And see DeGrove v. Metropolitam, Ins. Co., 61 N. Y. 594; S. C, 19 Am. Eep. 305. But this doctrine must not be accepted with- out qualification. McMaster v. Pres., etc., Ins. Co. North America, INSUEANOE. 203 Contracts of fire insurance and actions thereon. 55 N. Y. 222; S. C, 14 Am. Eep. 239; Gumming v. Agricultural Ins. Co., 67 N. Y. 260; S. 0., 23 Am Eep. Ill ; JVeill v. Popular Life Ins. Co., 10 Jones & Sp. 259. The insured is bound to comply witli the conditions contained in the policy ; and where a part of those conditions are that the insured shall, if required by the insurers, produce and exhibit his books of account and other vouchers to the insurer or his agents, at the office of the in- surer, and also permit copies thereof to be made, the insured must com- ply with such conditions, and if he refuses to do so, after proper de- mand made by the insurer or his agent, he cannot recover without proof of a waiver, or of the inability of the insured without fault on his part to comply with the condition. JubeY. Broohlyn Fire Itis. Co., 28 Barb. 412 ; O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108. Compliance with such conditions will in some cases be excused. And where such books, papers, accounts and vouchers are burned by the fire which causes the loss, the insured will not be required to do more than to furnish the best sworn statement of the facts which he is able to make or furnish. Bumstead v. Bimidend Mutual Ins. Co., 12 N. Y. 81 ; Norton v. Rensselaer and Sa/ratoga Ins. Co., 1 Cow. 645 ; Mo- Laughlin r.Washington Co. Mutual Ins. Co., 23 Wend. 525. In such cases all that is required is that as particular a statement shall be made of the loss as the case will admit, and a gross estimate of the amount will then be sufficient. lb. If the policy contains a provision that the insured shall, if required, submit to an examination under oath, this will require him only to an- swer such questions as have a material bearing upon the risk ; and his refusal, on examination, to answer questions which have no such bear- ing will not be a violation of this provision of the policy. Titus v, Ol&ns Falls Ins. Co., 81 N. Y. 410. The preliminary proofs need not follow the precise language of the policy ; and where a certificate of some third person is required as to his belief in the fairness of the loss, and of the character of the in- sured, this certificate need not be drawn in the precise language of the policy ; it will be sufficient if the words used evidently mean the same thing, ^tna Fire Ins. Oo. v. Tyler, 16 Wend. 385, 402; S. C, 12 id. 507 ; Turley v. North Americam, Fire Ins. Co., 25 id. 374. If the preliminary proofs furnished are. defective or objectionable, the insurer ought to point out the defects or state his objections at the time they are presented, so as to enable the insured to correct them, or to supply any deficiency, if that is requisite, and if the insurer neg- lects or refuses to do this, or if he puts his refusal to pay the loss upon 204 LNSURANOE. Contracts of fire insurance and actions thereon. some other ground, he will be bound by the position assumed, aud on the trial he will not be permitted to urge any objections but those thus taten. Vos v. Bohinson, 9 Johns. 192; C Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122 ; Bodle v. Chenango Mutual Ins. Co., 2 id. 53 ; Bil- Irough v. Metropolis Ins. Co., 5 Duer, 587 ; Peacock v. N. Y. Life Ins. Co., 1 Bosw. 338 ; S. C, 20 N. Y. 293 ; Miller v. Eagle Life and Health Ins. Co., 2 E. D. Smith, 268 ; Socage v. Corn Excham,ge Fire and Inland Nav. Ins. Co., 4 Bosw. 1 ; Titus v. Glens Falls Ins. Co., 81 N. Y. 410 ; Brink v. Hanover Fire Ins. Co., 80 id. 108 ; Keeney v. Home Ins. Co., 71 id. 396. Whenever an insurance company allows a claim, the money is due from the company, although by the terms of the allowance of the claim the payment be postponed for a specified time ; and, at the expiration of that time an action may be brought for the recovery of the money. Vtica Ins. Co. v. American Mutual Ins. Co., 16 Barb. 171 . And the act of April 10, 1849, does not extend the time for the payment of such money. lb. A loss becomes due when the property is destroyed, or, at any rate, when the requisite proofs are furnished. It was not the intention of the statute, above cited, to extend the time of payment for two months after the money has become due by the terms of the policy. lb. The only effect of that provision is, to fix the time when the loss should be payable in cases in which the parties have omitted to fix sach time by the terms of their contract. lb. A policy may contain a clause which prohibits a transfer of such policy or of any interest in it, or of the property insured, and such clause be valid and obligatory. Stolle v. ^tnaFire Ins. Co., 10 "W. Va. 546. But after a loss has occurred, the insured may transfer his right of recovery against the insurer without in any manner violating such clause, or in any manner affecting the right of such assignee to recover; Mellen v. Hamilton Fire Ins. Co., 17 IST. Y. 609 ; S. C, 5 Duer, 101. Goit V. National Protection Ins. Co., 25 Barb. 189 ; Courimsy v. N. Y. City Ins. Co., 28 id. 116; West Branch Ins. Co. v. Helfenstevn, 40 Penn. St. 289 ; Pennebacker v. Tomlinson, 1 Tenn. Ch. 598. These cases seem to overrule Bay v. Poughkeej>sie Mutual Ins. Co., 23 Barb. 628. Where the policy requires that the insured shall give notice to the insurer of any subsequent insurance upon the same property, this con- dition must be complied with, or the policy wUl be void from the time of making such subsequent insurance ; and actual notice of such subsequent insurance to an ordinary insurance agent of the in- surer will not be a suificient compliance with the condition. Wilson v. INSUKANOE. 205 Contracts of fire ioBurance and actions thereon. Genesee Mutual Ins. Co.. 14 N. Y. 418. But see Rowley v. Empire Ins. Co., 4 Abb. Ct. App. 131 ; S. 0., 3 Keyes, 557. The insured is bound to give such notice to his insurers notwithstand- ing the subsequent insurer would, upon the facts existing, be authorized to avoid such subsequent policy. Bigler v. N. T. Central Ins. Co., 20 Barb. 635 ; S. C, 22 N. T. 402. See Landers v. Watertown Fire Ins. Co., 86 id. 414. But, merely taking a renewal of a policy of insurance which was existing at the time of insurance, and which was mentioned in the ap- plication of insurance, is not such another insurance as to require notice. Brown v. Cattaraugus Co. Mutual Ins. Co., 18 N. Y. 385; Pitney r. Glen's Falls Ins. Co., 65 id. 6. If the notice as to such subsequent insurance is correct as to the amount, an accidental error in stating the name of the subsequent in- surer will not affect the policy. Benjamin v. Saratoga Co. Mutual Fire Ins. Co.] 17 K T. 415. A policy of insurance upon a " steam saw mill," embraces the whole thing ; the whole mill with its apparatus ; and it does not mean merely the building itself, but includes the whole machinery necessary to make it a steam saw mill in all its parts. Bigler v. N. Y. Central Ins. Co., 20 Barb. 635 ; S. C, 22 N. Y. 402. An insurance " machinery " con- tained in a paper mill, includes upon not only the machinery, but the tools and implements used therewith for the manufacture of paper. Buchannan v. Exchange Fire Ins. Co., 61 N. Y. 26. But the policy will not cover articles which are not some part of the property insured. And, therefore, a policy upon a vessel upon the stocks, in the course of construction, will not cover timbers not united to the keel or structure thereon, although they are intended to be used, and are completely prepared for use in its framework, and are lying in the yard in the proper place to be conveniently Used for that purpose, and are valueless for use in any other vessel. Hood v. Manhattan Fire Ins. Co., 11 N. Y. 532. But such policy will cover the vessel or struct- ure, as it is made from time to time on the stocks. lb. The policy will cover such losses as are consequential upon the occurrence of the fire ; and therefore such policy covers insured property which is stolen during its removal from a burning building. Tilton v. Hamilton Fire Ins. Co.,, 1 Bosw. 367. The case contains an interesting discussion upon the ques- tion, and it reviews numerous authorities. Damages from efforts to save the property from fire, as by water, breakage by removal, and by loss or theft consequent upon exposure occasioned by the fire, are within the risk covered by a fire policy. 206 INSURANCE. Contracts of fire insurance and actions thereon. Witherell v. Maine Ins. Co.^ 49 Me. 200 ; Independent Ins. Co. v. Agnew, 34 Perm. St. 96 ; Stcmley v. Western Ins. Co., L. K., 3 Exch. Yl. But loss from either of these causes may be expressly excluded. Webb V. Prot. Ins. Co., 14 Mo. 3 ; Ferncmdez v. Merchants' Ins. Co.^ 17 La. Ann. 131. And where the loss was in consequence of removal, it must appear that the removal was reasonably necessary. Brady v. i\^. W. Ins. Co., 11 Mich. 425 ; Hillier v. Alleghany Co. Ins. Co., 3 Penn. St. 470. A loss by fire resulting from lightning is covered, but not the injury caused by its direct destruction of the property. Andrews V. Union Ins. Co., 37 Me. 356 ; Kenniston v. Merrimack Co. Ins. Co., 14 N. H. 341 ; Babcoch v. Montgomevy Co. Ins. Co., 6 Barb. 637 ; S. C. affirmed, 4 N. Y. 326. And the contract of insurance is an exception to the rule which denies compensation for injuries of which the party's own negligence or want of due care have been the primary cause. Champlin v. Railway Passenger Ass. Co., 6 Lans. 71. Mere care- lessness or negligence, however great, of the insured or his tenants or servants, is no defense, unless it amounts to fraud, or legal misconduct. Mickey v. Burlington Ins. Co., 35 Iowa, 174 ; S. C, 14 Am. R., 494 ; Cumberland Valley Ins. Co. v. Douglas, 58 Penn. St. 419 ; Shaw v. Roberts, 6 Ad. & El. 75 ; Lycoming Ins. Co. v. Barringre, 73 111. 230 ; Johnson v. Berkshire Ins. Co., 4 Allen, 388. But gross negligence may be evidence of fraud, or bad faith, which always avoids the policy, as no one can be allowed to profit by his own turpitude. Robinson v. Mercer Co. Ins. Co., 27 N. J. 134 ; Huckins v. People^ s Ins. Co., 31 N. H. 238 ; Providence Ins. Co. v. Martin, 32 Md. 310. And negligence, in matters which the policy expressly guards against, is fatal, as the resulting loss is excluded from the risk. Worcester v. Worcester Ins. Co., 9 Gray, 27. Fire by spontaneous combustion is within the risk. Bi'it. Am. Ins. Co. v. Joseph, 9 Low. Can. 448. So, damage by explo- sion caused by fire applied to gunpowder was held to be caused by the fire. Scripture v. Lowell Ins. Co., 10 Cush. 356; but where the explosion is at a distance, and the injury is caused by the concussion which follows, it is not a damage by fire. Cahallero v. Home Ins. Co.y 15 La. Ann. 217 ; Everett v. London Ass. Co., 19 C. B. (N. S.) 126. Where loss is not the direct result of the fire, the issue is whether- the fire was the proximate cause. By proximate cause is meant, not necessarily the cause nearest in time or place to the catastrophe, but the eflicient cause, the one which necessarily sets the other causes in motion. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the results mSUEANCE. 207 Insurance pTemium notes. It is only when tlie causes are independent of each other that the nearest is, of course, to be charged with the disaster. InsuTomce Co. V. Boon, 95 TJ. S. (5 Otto), llT. Where the walls of a burned build- ing fell the day after the fire, and crushed a neighboring building, the injury was held to be covered by insurance. Johnston v. West of ScoUamd Ins. Co., 7 Sess. Cas. (Sc.) 52. But where a building fell, and afterward the ruins caught fire, the fire was held not to be the cause of the loss. ]Vave v. Home Ins. Co., 37 Me. 430 ; though, so far as the building or its contents were not destroyed by the fall, but were des- troyed by the resulting fire, they are covered. lewis v. Sprvngjield Ins. Co., 10 Gray, 159. Where the fire was caused by gas which came in contact with a light and caused an explosion and following confia^ gration, it was held that the loss was not covered by a policy which excepted loss resulting from explosion. Stanley v. Western Ins. Co., L. E., 3 Exch. 71 ; JJniUd Ins. Co. v. Foote, 22 Ohio. St. 840 ; S. C, 10 Am. Eep. 735. See Commercial Ins. Co. v. Bohmson, 64 111. 265 ; S. C, 11 Am. Kep. 557 ; Briggs v. North ATnerioan and Mer- cantile Ins. Co., 53 K Y. 446. § 2. Insurance premium notes. It is not intended in this short sketch to write a treatise upon the law of insurance. But actions upon premium notes are so frequent, that a brief review of some of the prominent and more recent cases, upon that subject, may be con- venient for those who have not access to the reports of the State courts. The statutes relating to fire insurance, will be found, 2 E. S., 753, to 780, 5th ed. The general nature and object of insurance companies and of premium notes, are usually well understood. In the organization of such companies, it is the intention of the statute that all stock notes, and all premium notes, shall be held as a security for the payment of all just losses which may be sustained by any of the members of the company. 2 E. S., 757, § 44, 5th ed. ; id. 776, §§ 91, 92; id. 778, §103. The intention of the statute is observed by the courts, and they always enforce the payment of such notes, when that can be done in accordance with law. But, in such cases, the companies are acting under a special and limited authority, and they must, therefore, comply with the requirements of the statute if they would enforce the pay- ment of premium notes. There is a wide distinction between the liabiHties of those who give notes to form the capital stock of a mutual insurance company, and of those who give notes for premiums, after the stock is made up and the company brought into existence. While the former are liable on their 208 INSUKANOE. Insurance premium notes. notes, irrespective of losses, Broohman v. Metcalfe 5 Bosw. 429 ; S. C. affirmed, 32 N. T. 591, the latter are liable only for the^ro rcuta share of such losses, in common with all other available premium notes held by the company. Doma v. Munro, 38 Barb. 528 ; S. 0. affirmed, 28 N. Y. 564; Hope Ins. Co. v. Heed, 28 Conn. 51; Marine, etc., Ins. Co. V. Stockwell, 67 Me. 382. A premium note, though absolute in its form, cannot be treated as an absolute note by one who has knowledge of its real nature. Bell v. Shibley, 33 Barb. 610 ; Mcln- tvre V. Preston, 5 Gilm. (111.) 48. Whether a note given to a mutual insurance company, was given as a premium or a stock note, may be determined by the facts and circumstances attending its making, and is a question of fact for a jury. Where the note is given before the company is organized, there is ground for inference that it was given as a stock note. Jackson v. Yam, Slyke, 52 N. Y. 645. A premium note which is payable " in such portions, and at such time or times as the directors of the company may, agreeably to their charter and by-laws require," is a substantial compliance with the stat- ute of 1849, which required notes of that nature to be payable, "at the end of, or within twelve months from the date thereof." Hill v. Heed, 16 Barb. 280. Such notes are now payable "in part or in whole, at any time when the directors shall deem the same requisite for the payment of losses, etc." 2 K. S. 754, § 37, 5th ed. ; Laws of 1854, chap. 369, § 1. Where an insurance company was organized under the act of 1849, and the subscribers had either paid in cash, or given notes in advance for premiums under agreements to insure, so that the full capital had been secured as provided by section five, and the company had taken a note from a policy-holder upon the understanding that such note should be renewed from time to time for amounts not earned, it was held, in an action by a receiver of the company, that such note was not a " sub- scription note," within the meaning of the general insurance law, and that, therefore, the maker of the note was not liable for any amount beyond the amount actually earned. Elviell v. Crocker, 4 Bosw. 22 ; Lawrence v. McCready, 6 id. 329. So, a note given under the Laws of 1849, and payable " at such time or times as the directors of said company may, agreeably to their charter and by-laws require," is not a "subscription note," payable in full, notwithstanding the maker knew that the company was not organized, and although the officers of the company had, without the knowledge of the maker, presented the note to the agents of the comptroller, who allowed it as part of the pre- liminary capital of the company. Dana v. Mimson, 23 N. Y. 564 ; INSUEANOE. 209 Insurance premium notea. S. C, 38 Barb. 528, by name of Dana v. Mv/nro. But, when such note is given upon an agreement that it shall constitute a part of the capital stock of the company when its organization shall be completed, it is payable absolutely, and may be indorsed or transferred by the company at its pleasure, and upon the insolvency of the company it may be collected by the receiver. White v. Haight, 16 N. Y. 310 ; Bell v. MoElwain, 18 How. 150 ; White v. Foster, id. 151. Where a company is organized under the Laws of 1849, and a premium note is given after the organization thereof, and in the regular course of the business of insurance, it is a "premium note," and no action can be maintained upon it, except to pay for losses and expenses which accrued while the note was in force and after an assessment duly made. Toll v. Whitney, 18 How. 161; Devendorf v. Beardsley, 23 Barb. 656 ; Savage v. Medhury, 19 N. Y. 32 ; Shaughnessy v. Bens. Ins. Co., 21 Barb. 605. Where a note given for insurance, is, -upon its face, payable at such time or times as the directors of the company may, agreeably to the charter and by-laws of the company, require, it will be presumed to be a " premium note," which must be duly assessed before a recovery can be had upon it. Sands v. St. John, 36 Barb. 629. And see MerchoAiti Mut. Ins. Co. V. Bey, 1 Sandf. 184. But, nothwithstanding the face of the note, the plaintiff may allege, and prove, if he can, that such note was given and received as a " stock note," and used as such in organizing the company ; in which case the plaintiff will be entitled to recover the full amount of the note without any assessment. lb. A mutual insurance company may take a premium note from a person who procures a policy, for the amount of the premium, and such note will be valid ; but if the note of a third person is taken for the amount of such premium, it is invalid, and no action can be maintained upon it by the company. Mutual Benefit Life Ins. Co. v. Davis, 12 E". Y. 569. The policy of the law is, that the person who obtains the policy of insurance shall be liable upon the note given for the premium. lb. And see 2 K. S. 778, § 103, 5th ed. Where premium note, payable, in one year, was given in advance to a mutual insurance company, and while the note was running, the maker took out insurances in the company, on which the premiums were more than half the amount of the note, and the maker paid the note at the end of the year ; and, instead of deducting the amount from premium note, he renewed it, by giving a new note for the whole amount, payable in one year, and the company failed during the second year, it was held, that the maker was liable for the whole amount 27 210 mSUKANCE. Insarance premium notes. of the second note, without any deduction for the premiums incurred during the first year. Hone v. Ballin, 1 Sandf. 131. But, in such a case, the maker is entitled to have a deduction from the note, of all premiums which are earned against him, by the company, while such note is running, on his paying the amount of such premiums. He is not liable for such premiums, in addition to the amount of his sub- scription note. Merchmits' Mutual Ins. Co. y. Leeds, 1 Sandf. 183. A note given in renewal of the premium note which was ad- vanced to a mutual insurance company, stands on the same footing as the original note, and it goes into the hands of a receiver. Hone v. Folger, 1 Sandf. 177 ; Hone v. Allen, id. 171, note. It is no defense to the action upon such a note by the receiver that the company failed, and that on an application to it subsequently for insurances, so as to apply the same on the note, the company declined to underwrite for the makers of the note. lb. The insolvency of the insurance company does not entitle the insured to require the cancellation of his premium note on surrendering the policy, and paying ^ro rato for the time during which the policy has run. Hone v. Boyd, 1 Sandf. 481. But, where the company and the insured, by mutual consent, canceled the policy while the risk was running, it was held that both parties were discharged from their respective contracts, and that the insured was not liable for the premiums, nor any part thereof. Merchant^ Mutual Ins. Co. v. Underwood, 1 Sandf. 474. The president of a mutual insurance company, has no power on re- ceiving a premium note, to agree that such note shall be given up at its maturity. Brouwer v. Appleby, 1 Sandf. 158. "Where a note is given for the purpose of increasing the capital stock of an insurance company to the amount required by law, and to enable the company to pass the necessary examination of the commissioners to be appointed by the comptroller, upon an agreement that, after such examination, the note may be withdrawn and a note for a smaller amount substituted in its place, such transaction or agreement is a fraud upon the law, and the maker will continue liable upon the note, although it may have been withdrawn and destroyed. Tuckerman v. Brown, 33 E". Y. 297; S. 0., 23 How. 109 ; 11 Abb. 389. But where, after the filing of a petition by a mutual insurance com- pany, but before the publication of notice of the appointment of a re- ceiver, the maker of a premium note paid an assessment thereon and surrendered his policy under an agreement with an authorized agent of the company that such payment and surrender should be in full of said INSURANCE. 211 Insurance premium notes. note which was agreed to be surrendered, it was held that the transac- tion was not invalidated by the statute (2 E S. 469, § 71), that the note was extinguished, and that the receiver could not maintain an action thereon. Sands v. Hill, 55 N. T. 18. The board of directors of a mutual insurance company cannot sur- render a valid premium note without consideration, and if it is so sur- rendered improperly, a receiver of the effects of the company may recover its value from the maker in an action of trover. Brouwer v. HiU, 1 Sandf. 629. Or the receiver may sue and recover the amount due upon the note. Tuckerman v. Brown, 23 How. 109 ; 11 Abb. 389. Where the chapter authorizes a mutual insurance company to take premium notes in advance, and to negotiate them, a note payable to the order of the maker and not indorsed by him, is a valid security in the hands of the company, although the note is not negotiable for want of the maker's indorsement. lb. Central BanTc of BrooMyn v. Lang, 1 Bosw. 202. A note so negotiated to the company by the maker, is the same in legal effect as a note payable to bearer by virtue of the statute. lb. ; 3 R. S. 68, § 5, 5th ed. ; Vol. I, 696. The charter of a mutual insurance company authorized it, for the better security of its dealers, to receive premium notes in advance, from persons intending to take pohcies, aud to negotiate such notes for the purpose of paying claims or otherwise, in the course of its business, and to pay the makers a compensation for the excess above the premi- ums on their policies. Several such notes were given by different per- sons, in pursuance of a mutual agreement among the makers to give the company credit in this way, and it was held that the notes were valid securities in the hands of the company, and that each of the makers was liable to pay the full amount of his note so given, if that amount should prove necessary for the payment of the losses of the company. Deraismes v. Merolia/nts' Mutual Ins. Co., 1 N. Y. 371. The statute upholds such a note without any consideration, but if a consideration is necessary then the mutual agreement on which it was given is sufficient. lb. Such a note is a valid security in the hands of a person to whom it has been transferred by the company in payment of its losses. Rowland v. Myer, 3 N. T. 290 ; S. C, 2 Sandf. 180 ; Broohman v. Metcalf, 32 N. Y. 591. Such a transfer is valid if made by the president of the company, without a resolution of the board of directors, where the by-laws of the company authorize him to make contracts and transact the ordinary business of the company. lb. ; Yol. I, 487. Such notes are also vahd 212 INSURANCE. Insurance premium notes. securities in the hands of the receiver of such a company which has become insolvent, and he is entitled to collect such an amount on them as may be necessary to pay the losses of the company. Brown v. CrooTce, 4 N. Y. 51 ; Cruileshank v. Brouwer, 11 Barb. 228. The charter of a mutual insurance company authorized it to receive premium notes in advance from persons intending to insure in the company, by issuing its policies ; and the company received such an ad- vance note upon an agreement with the maker, that he might pay the note in premiums on policies which he might procure in his own name or for his friends ; and this agreement was fully performed, and the note returned to the maker, by the president of the company ; this was held to cancel the note, and to bar any action upon it ^ther by the com- pany or by a receiver of its assets. Emmet v. Reed, 8 N. Y. 312; S. C, 4 Sandf. 229. A mutual insurance company, organized under the general insurance laws of this State, has legal power and authority to issue poheies upon the payment of a fixed premium, without any provision, obligation or agreement on the part of the insured to answer for any contingent lia- bility which may arise in case of losses by the company. Mygatt v. N. Y. Protection Ins. Co., 21 N. Y. 52. The law makes every per- son insured a member of the corporation, and it entitles him to share in the profits of its business ; and, therefore, the contingent benefit which is secui-ed by taking out a policy for a cash premium, is sufficient to constitute the insured an insurer to the extent of his interest, and to bring the transaction within the principle of mutuality, lb. The charter of a mutual insurance company provided that all persons who should insure with the company, should thereby become members thereof during the period they should be so insured and no longer ; that they should pay losses in proportion to their deposit notes, and that at the " expiration of the term of insurance," the notes or so much as remained unpaid, should be given up to the makers ; and it was held, that the words " term of insurance " meant the term of time for which the policy of insurance was, on its face, to continue ; and that, therefore, a person thus insured was liable to contribute to the pay- ment of losses which occurred during that term, although it continued long after his own property had been destroyed by fire. Bangs v. Skid- more, 21 N. Y. 136 ; S. C, 24 Barb. 29. Where a mutual insurance company is organized under a statute which expressly requires that the notes forming its capital stock shall be payable " at the end of, or within twdve months from their date," it will not be a compliance with such statute to take a note which is INSUEANCE. 213 Insurance premium notes. not negotiable, but one wliicliis payable to the company or its treasurer for the time being, and in such portions and at such times, as the directors of said company may, agreeably to their charter and by-laws, require. Williams v. BahGooh, 25 Barb. 110. But see Hill v. Reed, 16 id. 280. The charter of a mutual insurance company provided that whenever any property insured by it should be alienated, the policy should thereupon be void, and be surrendered to the directors to be canceled ; and that upon such surrender being made, the premium note should be returned to the insured, upon the payment by him of his proportion of all losses and expenses which had occurred prior to the alienation of his property. At an annual meeting of the members of the company, a resolution was adopted, which declared, that when an insured person had alienated his property before any loss had been sustained, his premium note should not be assessed, although he had not surrendered his policy ; and this resolution was held to bar any action by the com- pany, or its receiver, upon such premium notes, for any losses which occurred after alienation of the property. Huntley y. Beecher, 30 Barb. 580. Such a resolution is valid, and it operates to dispense with the surrender of the policy, which would otherwise be required by the charter and by-laws of the company. lb. A policy of insurance, issued by a mutual insurance company, con- tained a clause which provided that the interest of the insured in the policy, or in the property insured, was not assignable without the written consent of the company ; and that, in case of such a transfer, without such consent, the pohcy should from thenceforth be void. The policy was issued to two persons who were partners, and one of them subsequently sold and transferred his interest in the policy, and in the property insured, to his associate, without the written consent of the company. After such sale and transfer, the purchaser requested the company to approve of the sale and transfer, according to the char- ter and by-laws of the company, which application was denied, unless a previous assessment should first be paid by the insured, which was never done. The company afterward became insolvent, and a receiver of its effects was appointed, who brought an action upon the premium note, against both the persons who had been partners, for losses which had occurred subsequently to the time of such sale and transfer, and of such refusal by the company to ratify such sale and transfer, and it was held that both partners were liable for such losses, notwithstanding there was a clause in the charter of the company which declared that persons in- sured in the company should be members so long as they continued 214 INSUEANCE. Insurance premium notes. insured tlierem, and no longer. Hyatt v. Wait, 37 Barb. 29. It was also held, that, whether the persons so insured were strictly members of the company or not, they had at least a qualified membership, which rendered them liable for the payment of losses. lb. But see Tucker- man v. JBigler, 46 Barb., 375. A qualified membership in a mutual insurance company, exists, and still continues, notwithstanding the termination of the period for which, an insurance was made ; and the premium note, given on such insur- ance, is liable to assessment for losses, and if the assessments are not paid within the time prescribed by law, the maker is liable for the whole amount of such note. Hyatt v. Esmond, 37 Barb. 602. Where the charter of a mutual insurance company expires by its own limitation, within the period during which a policy issued by it, is, by its terms, to continue, this fact will not render the policy entirely void, and discharge the insured from liability upon his premium note, because the policy is valid for the time it continues under the unex- pired term of its charter. Huntley v. Beecher, 30 Barb. 581. And the insured is not entitled to any rebate or deduction from the amount of an assessment, or from the premium note, for the reason that the charter of the company was to expire, and did expire, before the ter- mination of the period for which the policy was, by its terms, to con- tinue, lb. Where a mutual insurance company uses its premium notes as a basis for an extension of its charter, under the act of 1849, without the consent of the makers of such notes, this is not such a dwersion of them from their intended use, as will constitute a defense to an action upon them, unless it is shown that such use of them is prejudicial to the interests of such makers. Hyatt v. Esmond-, 37 Barb. 601. But, if an attempt is made to enforce such notes without the occurrence of losses, or if the assessment is shown to be for losses for which such notes are not liable to be assessed, that will constitute a defense to the action. lb. If a person contracts with an insurance company, as an existing cor- poration, and executes a premium note to it, for a policy of insurance, and then enjoys the benefits and protection which such policy confers, he will not, in an action upon such note, be permitted to object to the regularity or the validitj' of the organization of the company, lb. Mutual insurance companies which are organized under the general law of 1849, may divide their risks into classes, according to the degree of hazard ; and they may assess premiuna notes for those losses only INSUKA.NCE. 215 Insurance premium notes, which happened in the class to which they belong. Sands v. Boul/welly 26 JST. Y. 233 ; White v. Coventry, 29 Barb. 305 ; White v. Boss, 15 Abb. 66; 4 Abb. Ot. App. 589 ; overruling Thomas v. Achilles, 16 Bkrb. 491. All the notes of such a company constitute its capital stock ; and, if a necessity exists therefor, resort must be had to the entire funds of the company, lb. But, the notes of each department must first be assessed, and there must be a deficiency of funds to pay its debts, before a resort can be had to the funds which belong to the other branch of the company, lb. Persons who make contracts with a corporation de facto, will be estopped from denying its legafl corporate existence, lb. Where the statute, under which a mutual insurance company is or- ganized, provides that " in no case shall the premium note be more than five times the whole amount of the cash premium," a premium note which is taken for a larger amount than that prohibited, is entirely void, and no action will lie upon it against the maker. Otis v. Harrison, 36 Barb. 210. The taking of such a note is not merely unauthorized, but it is an act which is expressly prohibited by law. lb. See Chesbrough v. Wright, 51 N. Y. 662. Where however, such a company was organ- ized in 1836, and the law of 1853, prohibiting a company from taking such notes as have just been mentioned, expressly provided that exist- ing companies should be entitled to all the privileges granted by their charter, such companies may take notes for more than five times the amount of the cash premium, provided the original law and charter authorized notes of that amount to be taken. Hyatt v. Whipple, 37 Barb. 595. As has been already seen, ante, 214, mutual insurance companies may divide their business, so that a part of it is done upon the plan of cash premiums, and the other portion of it, by taking premium notes of the policy-holders ; yet this arrangement of the business affairs of the company will not change the liability of those persons who may give premium notes ; and,' if the company is liable for losses which occur in that class of cases in which cash premiums were paid, and the cash fund is not suflicient to pay such losses, the premium notes are liable to assessment for the payment of such deficiency. White v. Havens, 20 How. 177. And see Mygatt v. JST. T. Protection Ins. Co., 19 id. 61; Cooper v. Shaver, ^i Barb. 151; Jackson v. Roberts, 31 N. y. 304 ; Sands v. Graves, 58 id. 94. In an action by a receiver of an insolvent mutual marine insurance company, for the recovery of premiums due upon policies, the insured cannot set off claims due to him for losses which have been adjusted, 216 INSUEANCE. Insurance premium notes. and are payable by such company. Lawrence v. Nelson, 21 N. Y. 158. In such a case the premiums constitute a fund for the benefit of all the creditors of the company equally ; and he cannot secure any preference over other creditors, by retaining or deducting from the premiums such sums as may be due him from the company. lb. Where a note is given to a mutual insurance company for the purpose of constituting a portion of its capital stock, on its organization, such note is, in legal effect, due and payable immediately, although on its face it may purport to be payable at such times and in such portions as the directors might require. Howland v. Edmonds, 24 N. Y. 307 ; S. C, 23 How. 152 ; reversing S. C, 33 Barb. 433 ; Sands v. St. John, 36 id. 629. The statute determines the character of such a note, and it is payable without any assessment or demand. lb. The statute of limitations begins to run against such a note as soon as it is given, and the statute is a good defense to an action upon such note, if it is com- menced more than six years after that time. lb. The legislature has reserved the right to alter, amend or repeal the laws relating to insurance companies. 2 R. S. 766, § 57, 5th ed. And, therefore, it is not a valid objection to an extended charter, authorized by the act of 1849, that it makes a substantial change in the corporate powers originally possessed by the company ; the right to make altera- tions being reserved by the statute, it is substantially contained in all charters, and is a part of the contract on both sides, and assented to by every member of the company. Hyatt v. Esmond, 37 Barb. 601 ; Hyatt V. Whipple, id. 595. And, where the legislature has reserved the right to alter a charter, the assent of a corporation, by its stock- holder or by its directors, is not necessary to give validity to a legis- lative alteration of the charter. lb. And see the same principle as- serted in Schenectady and Saratoga Plankroad Co. v. Thatcher, 11 N. Y. 102 ; Buffalo and N. Y. City R. R. Co. v. Dudley, 14 id. 337, 354 ; Poughhee-psie and Salt Point PlamJeroad Co. v. Oriffln, 21 Barb. 454 ; S. C, 24 JS^. Y. 150 ; reversed, but not upon this point, Troy and Rutland R. R. Co. v. Kerr, 17 Barb. 581 ; White v. Syra- cuse am,d TJtica R. R. Co., 14 id. 559 ; Northern R. R. Co. v. Miller y 10 id. 260 ; Vol. I, 479. There is a very material difference between what are called " stock notes," which are given for the purpose of creating a capital stock upon the organization of a mutual insurance company, and those notes which are called " premium notes," which are given when a policy is obtained from a company which has been already organized and is in full operation. INSURANCE. 217 Insurance premium notes. The maker of a stock note is liable to pay it without any assess- ment whatever upon it, and to the full amount if so much shall be necessary to pay the debts, liabilities or expenses of the company. Ante, 209. But it is far otherwise with premium notes. The maker of such a note is never hable upon it for any thing more than will be sufficient to pay the maker's share of the debts, liabilities and expenses of the com- pany. 2 E. S. 754, § 37, 5th ed. ; id. 757, § U. The amount which the maker may be required to pay is not left to the arbitrary decision of any person. The statute provides that in case of losses or damage by fire, the directors of the company shall settle and determine the sums which are to be paid by the several members of the company, which sum shall always be in proportion to the original amount of his deposit note or notes. 2 R. S. 757, § 44, 5th ed. The provisions of the statute must be strictly complied with or the assessments will be invalid and cannot be enforced. In making an assessment, each note is to be assessed in proportion to its amount without any reference to the fact that some of the notes were made at a much higher rate of insurance than the others, or to the fact that by the application of cash premiums dome losses had been paid, thus exonerating some of the earlier members. Shaiighnessy v. Benssdaer Ins. Co., 21 Barb. 605. In determining the amount of an assessment, or whether a note shall be assessed at all, the directors have no right to take into con- sideration the length of time which any person has been a member of the company. Herkimer Co. Mutual Ins. Go. v. Fuller, 14 Barb. 373. They must assess the premium notes of all persons who are mem- bers at the time of making an assessment, and who are liable to pay a proportion of the losses, and if this is omitted the assessment will be invalid. lb. So, too, it will be invalid if they include in an assess- ment the amount of previous assessments from the payment of which the parties assessed had been released. lb. Where the charter of a mutual insurance company provides that each member shall be liable to pay for losses and expenses in propor- tion to the amount of his deposit note, the assessment should, in the first instance, be made upon all the premium notes, whether the makers are solvent or insolvent, and on the original amount of the notes assessed, and an efibrt should be made to collect all of the assessments, and then, if some of them are not collectible, the deficiency may be 28 218 INSURANCE. Insurance premium notes. collected of those who are responsible. Bangs v. Gray, 12 N. T. 477. And see 2 E. S. 759, § 44, 5th ed. An assessment upon a premium note will not be rendered irregular or invalid because it inchides the sum of ten per cent for expenses, besides including losses. Hyatt v. Esmond, 37 Barb. 601. Due notice of an assessment must be given to each member of a mutual insurance company before he is liable to an action for the recovery of the amount of his assessment. 2 K. S. 757, § 44, 5th ed. An assessment is not complete and consummated until it is ascertained, fixed and determined by carrying out upon the extension books the amount which each member is liable to pay. Bangs v. Mcintosh, 23 Barb. 591, 603. A notice of assessment which is published before the assessment is completed will be premature and invalid. lb. Where the by-laws of a mutual insurance company, organized under the act of 1849 (Laws of 1849, chap. 308), provided that notice of as- sessments upon premium notes should be given by publication in three newspapers published in the county where the company was organized and doing business, it was held that, in order to maintain an action to recover the assessment, it was incumbent upon the plaintiff to show that it was so published, or, at least, that the plaintiflE could not com- ply, for the reason that there was not that number of papers published in the county. Samds v. Graves, 58 N. Y. 94. Proof of publication in two papers is not sufficient, nor does it throw upon the defendant the burden of showing that there is another. lb. It is not necessary that an assessment, or the notice of it, should state the precise amount of the liability of each member ; it will be sufficient if it states the rate per cent at which the premium notes in force, at specified dates, are respectively assessed ; when this is done, each member will have data upon which to compute the amount due. Sands v. Samders, 28 N. Y. 416 ; Bangs v. Duokinfield, 18 id. 592, 598. But where the notice described the notes in different classes, as " small notes," and "large notes," with a different assessment for each class, without showing what those terms meant, or showing to which class the defendant's note belonged, the notice was held to be inopera- tive for uncertainty. lb. Before an action can be maintained upon a premium note, the com- pany, or its officers, must comply fully with the statutory requirements in relation to the assessment and collection of such notes. The liability of the maker of a premium note is not an absolute one, for the pay- ment of the sum specified upon the face of the note, but it is a con- ditional obligation which does not become absolute until the happening INSURANCE. 219 Insurance premium notes. of sucli events as the charter or the insurance law declares sufficient to create a liability to pay the note partially or wholly ; and, therefore, no action can be maintained upon a premium note until losses have occurred for which the company is liable, or expenses have been paid or incurred by the company in its business, and until a proper assess- ment has been duly and legally made for the collection of the just amount due from each member. 2 R. S. 757, § 44, 5th ed. In case of the insolvency of a mutual insurance company, and the appointment of a receiver, he is authorized to make assessments upon premium notes. " In case the corporation in regard to which a receiver has been or shall hereafter be appointed is or shall be a mutual insur- ance company, such receiver shall have full power, under the authority and sanction of the court appointing him, to make all such assessments on the premium notes belonging to such corporation, as by the charter thereof the directors of such corporation have authority to make ; and the notice of such assessment may be given in the same manner as is provided in the charter of said company for the directors of said com- pany to give ; and the said receiver shall have the like rights and remedies upon and in consequence of the non-payment of such assess- ments as are given to the corporation or the directors thereof by the charter of such corporation. 2 R. S. 779, § 107, 5th ed. ; Laws 1852, chap. 71, § 2. In an action by a receiver iipon a premium note, he must, on the trial, give some evidence, showing the existence of losses which render an assessment proper. Thomas v. Whallon, 31 Barb. 172 ; Jackson v. Moberts, 31 N. Y. 304. He is not required, however, to show the ex- istence of the several fires by which the several insured parties sus- tained losses . lb. It is enough to show that, during the time the de- fendant was insured, losses had occurred which had been settled and allowed as claims against the company, and that the defendant's note was liable to be assessed for its portion of the loss. lb. See Slater Mutual Fire Ins. Co. v. Barstow, 8 R. I. 343. The insolvency of a mutual insurance company does not increase the liability of the maker of a premium note, for the receiver cannot re- cover any more upon it than the directors of the company could have done had they made the assessment upon the note . Savage v. Medbury, 19 N. T. 32 ; Shaughnessy v. Rensselaer Ins. Co., 21 Barb. -605. And no action can be maintained upon a premium note by the receiver un- less there has been a legal assessment which determines the amount for which the maker is liable. lb. ; Toll v. Whitney, 18 How. 161. Where the maker of a note executes and delivers it to the company 220 INSUKANCE. TnsaTatice premium notes. as a premium note and not as a stock note, upon an understanding that it is to be used as a premium note and not otherwise, any appropriation of the note by the company for any other purpose than that declared will be a fraudulent diversion of it, which will render it invalid in any hands except those of a iona fide purchaser. Bell v. Shihley, 33 Barb. 610. The form of the note raises the presumption that it is a premium note and not a stock note, and in an action thereon by the receiver, he must remove that presumption by evidence before he can recover upon it as a stock note. lb. Such presumption will not be overcome by showing that the company used it as a stock note in or- ganizing the company, unless it is also shown that the maker assented to such a use of the note. lb. "Where notes are taken by the agent of an insurance company, they will be bound by the acts and statements made by such agent in pro- curing the note. lb.; Devendorf y. Beardsley, 23 Barb. 657. Where a court orders a receiver to make assessments upon premium notes, it does not adjudicate as to the liability of the company to pay or determine the amount for which assessments shall be made, or the ratio of assessments. lb.; Thomas v. Whallon, 31 Barb. 172. The decision of the court merely operates as a sanction of the acts of the receiver, who acts ministerially and not judicially. lb. A mutual insurance company may make a valid general assignment of its property for the benefit of its creditors, though it has no power to give preferences therein. Hurlhut v. Garter, 21 Barb. 221. An assessment is as necessary to be made before an assignee can sue and recover upon a premium note, as it would have been had the action been brought by the directors before assignment. lb. It was at one time held that an assignee had no power to make such assessments for the payment of losses and expenses, etc. lb. But this is now remedied by statute, and the assignee may make assessments in the same manner that an assessment may be made by the receiver of a corporation volun- tarily dissolved. 2 E. S. 779, § 110, 5th ed. ; Laws 1854, ch. 224. Where a house is insured, and the person insured dies, the loss is payable to his heirs at law, unless the policy runs to the executors, etc., when they may sue as trustees for those interested in the real estate. Wyman t. Wyman, 26 N. Y. 253. See Lappvn v. Cha/rter Oak Fi/re Ins. Co., 58 Barb. 325; CuWurn v. Lansing, 46 id. 37. But a policy may be so worded that the death of the assured will terminate the risk. Thus if it contains a provision that " if without the written consent of the company first had and obtained, the said property shall be sold or conveyed, or the interest of the parties therein be changed in any manner, INSURANCE. 221 Insurance premium notes. whether by the act of the parties or operation of law," the policy shall be void, the death of the insured, leaving a will containing a devise of the property insured, will be a change of interest within the provision, and will avoid the policy. Sherwood v. Agrioultural Ins. Go., 73 N. T. 447. The result will be the same when the assured dies intestate. Lojpj^in V. Charter Oak Fvre am,dMa/rine Ins. Co., 58 Barb. 325. CHAPTEE XVII. JUDGMENTS. Justices of the peace have jurisdiction of an action upon a judgment rendered in a court of a justice of the peace, or in a District Court of the city of New York, or in a justice's court of a city, being a court not of record. Code of Civil Procedure, § 2862, subd. 6. As the Code of Civil Procedure expressly declares that a justice of the peace shall have such jurisdiction as is expressly conferred upon him by statute, and no other, the specification of the judgments upon which an action may be brought before him in the section cited, limits his jurisdiction to the cases mentioned, and therefore no action can be maintained in a justice's court upon a judgment rendered by the Supreme Court, or by any other superior court. The Code does not limit the jurisdiction of a justice's court in relation to the amount of the judgment sued on, if it was rendered by a justice's court or other inferior court of a city, and there- fore an action may be maintained upon such judgments as are specified, whatever their amount may be, and whether rendered upon a trial or by confession. Humphreys v. Persons, 23 Barb. 313. A justice of the peace may enter a judgment upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of $500. Code of Civil Procedure, §§ 2864, 3010. Under the practice be- fore the Code a judgment creditor might bring an action in a justice's court on a judgment rendered therein, immediately after its rendition. Smith V. Mumford, 9 Cow. 26 ; Hale v. Angel, 20 Johns. 342 ; Chv/roh V. Cole, 1 Hill, 645 ; Tuffts v. Braisted, 1 Abb. 84 ; S. C, 4 Duer, 602. Under the former Code, the right of action in justice's court upon a judgment rendered therein was denied, where five years had not elapsed between the rendition of the judgment and the commencement of an action thereon, except certain cases. Code, § 71. This limitation no longer exists, but in place thereof the plaintiff is denied costs where be- fore he was denied a right of action. Code of Civil Procedure, § 3154. It is now provided that " In an action upon a judgment of a justice of the peace, brought within the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was personally served, no costs can be recovered except where the justice who rendered the judgment is dead, or out of office, JUDGMENTS. 223 Judgments. or otherwise incapable of acting, or has removed from the county, or where one of the parties has died, or where the docket of the judgment has been lost or destroyed." Code of Civil Procedure, § 3154. The statute provides for a judgment in an action brought to recover a sum of money against two or more persons jointly indebted upon con- tract, where the summons has teen served upon one or more but not upon all of them. In such case judgment may be taken against all the de- fendants jointly indebted. Code Civil Proc, §§ 1932, 3020. After sach judgment has been entered it may be made a judgment of the County Court by filing a transcript of the judgment in the ofSce of the clerk of the county in which it was rendered. An action upon a judgment so docketed may be maintained in a justice's court against the defendants summoned, only in a like case and with like effect as if they were the only defendants in the original action. Code, § 3021. When an action is brought upon a justice's judgment in the Supreme Court, a superior city court, the Marine Court, or a County Court, it is not necessary to state in the complaint facts conferring jurisdiction, but it is sufficient to state that the judgment was duly rendered, and if this is controverted by the answer, to establish upon the trial facts con- ferring jurisdiction. Code Civil Proc, § 533. But this section does not apply to justices' courts ; and in actions brought in these courts, it is necessary to state such facts as show that the justice had jurisdiction to render the judgment. The complaint must show affirmatively that the justice had jurisdiction of the subject-matter of the action, and of the person of the defendant. When sufficient facts are stated to show this, the complaint may then allege that such proceedings wer^ after- ward had, that a judgment was given, etc. When jurisdiction is clearly shown as to subject-matter, and as to person, regularity of the subsequent proceedings will be presumed, and may be alleged in the general manner in which it is done in the precedent hereafter given. The following cases show with what strictness the courts enforce the rule requiring a statement of jurisdictional facts. Ba/rnes v. Harris, 4 N. Y. 375 ; Turner v. Bdby, 3 id. 193 ; Cleveland v. Rogers, 6 Wend. 438 ; Ba/rnes v. Ha/rris, 3 Barb. 603. In declaring upon a justice's judgment which was rendered in this State, it is not necessary to refer to the statutes which give a justice jurisdiction, because the courts will take judicial notice of all general statutes. SUles v. Stewart, 12 Wend. 473, 474. But when an action is brought upon a judgment rendered by a justice of the peace of another State, the statute must be pleaded, Sheldon v. EopUns, 224 JUDGMENTS. Judgments. T Wend. 435 ; Thomas v. Robmson, 3 id. 267 ; and proved. Cole t. Stone, Hill & Denio, 360. But see Yol. I, 141, §§ 948, 949. The jurisdiction of the court of another State in which a judgment has been rendered is always open to inquiry in the courts of this State, and if that court has exceeded its jurisdiction, or has not obtained jurisdiction of the parties, the proceedings are coram, non judice, and void. Kvnnier v. Kinnier, 45 N. Y. 535 ; S. C, 6 Am. Eep. 132 ; Hunt V. Hunt, 72 N. Y. 217. Or, if the judgment has been procured by fraud upon the legal rights of the party against whom it is ren- dered, it may be questioned collaterally for that reason, in the courts of this State. lb.; Kerr v. Kerr, 41 N. Y. 272. See, also, Schihaby v. Westenhols, L. E., 6 Q. B. 155 ; Mowry v. Chase, 100 Mass. 79 ; Bis- choffY. Wethered, 9 Wall. 812. The plaintiff must show that the person who rendered the judgment was a justice of the peace at the time of its rendition. It is not neces- sary to prove the election of the justice, but it is sufficient to show that he acts in that capacity. So it must be shown that the constable was an officer ; and the same kind of proof is sufficient. The plaintiff must further show that proper process was issued, and that it was legally served. The proof of service upon which a justice acts in rendering a judgment is the constable's return. The appearance of the parties, and the proceedings on the trial, together with the rendition of the judg- ment, is also a part of the plaintiff's evidence. After proof that the justice and the constable are legal officers, the justice's docket will usually furnish all the other proof which is required. There are nu- merous facts which the statute requires a justice to enter in his docket, and those entries are made legal evidence. See Evidence, and see Yol. I, 86, § 3148. The service of the summons may be proved by the justice's docket, if it shows that such service was duly made. And where the docket showed that a constable had made a return which stated that the sum- mons -wsis persondlhf served, but did not state the time of making such service, it was held sufficient proof of a legal service to authorize a re- covery in an action upon the judgment. Bromley v. Srmth, 2 Hill, 517. Though the rule would have been otherwise on an appeal. lb. The docket must, however, state enough to show that a proper return was made by the constable. And where a justice's docket contained an entry as follows: "Sept 1 Sums 2 pers by S. B. Ward const 11 plff appears declares on note ;" it waa held that the docket did not show that a proper service of the summons was made by the constable, and that a recovery could not be sustained upon the proof furnished by the docket. Man- JUDGMENTS. 225 Judgments . nmg v. Johnson, 7 Barb. 457. The docket in this case did not show either the time or the manner of serving the summons upon the defend- ant, and for that reason it did not appear that the justice acquired juris- diction over the person of the defendant. In another case, the docket contained an entry as follows : " June 15th, sums. 15 pers. serv'd by S. Kenyon, const, etc.," and it was held that the docket showed suffi- ciently that a proper service of the summons was made. Grojf v. Oris- wold, 1 Denio, 432. The docket is merely one kind of proof upon the subject, and if it does not sufficiently show jurisdiction of the person of the defendant, it is entirely competent for the plaintiff to prove the service of the summons by the constable who served it, or by any other competent legal proof of the fact. It also ought to appear by the evidence of the justice's docket, or otherwise, that the original action was one in which the justice had jurisdiction of the subject-matter of the action, because, if the original action was one of which the justice had no jurisdiction of the subject- matter, the judgment will be absolutely void. The evidence on the part of the defendant will depend upon the issues joined. Under a general denial, the defendant may give evidence .of any facts which disprove such facts as the plaintiff is bound to prove in order to establish his case in the first instance. But whenever the defense depends upon affirmative facts, which assume the validity of the plaintiff's claim, except for the new matter constituting a defense, the evidence must be such as will tend to establish the defense interposed. Payment, accord and satisfaction, set-off, are instances of this kind. They assume that the judgment was originally valid, but rely upon subsequent matters as a satisfaction or discharge of it. And whenever an affirmative defense is interposed, the defendant is bound to prove it in the same manner as any affirmative case is proved. In a subsequent volume, precedents of many kinds of defenses will be given, and brief notes wiU be apoended to them, showing what facta ought to be proved in each case. 29 CHAPTER XVIII. FIXTUEES. Section 1. Heir, executors, etc. The law in relation to fixtures is somewhat complicated, and in some respects contradictory. Fixture is a term which is generally so employed as to denote a thing which is the very reverse of the name. To give a single definition of the term which is applicable to every class of cases is an attempt which few persons will attempt. The difficulty arises from the fact that certain articles are treated as fixtures between some classes of persons, while they are not treated as fixtures between other classes. In every case in which there can be a fixture, such fixture consists of something which was once personal property, but which has since been annexed or affixed to real estate. Such things as trees which grow out of the soil without annual cultivation are never called fixtures. The term "fixture," although conveniently used as a name for a particular kind of property, does not answer any very serviceable purpose in determining the rights of property; because although it may be a fixture as to some persons, it is not so as to others ; and be- cause, also, there are many instances in which articles which are called fixtures are removable by the person who affixed them to the real estate. The only convenient and practicable mode of explaining this sub- ject, for the purposes of this work, will be to show what articles are treated as flxtures-in those cases which occur most frequently in prac- tice. The cases in which it is important to determine the rights of the parties to this species of property arise most frequently between ven- dor and purchaser of real estate ; mortgagor and mortgagee of real estate ; landlord and tenant ; execution creditors and persons claiming the property, either as mortgagee of real estate or purchaser thereof by deed, etc. ; or by those who claim that the property is real estate, and that it cannot, therefore, be sold as personal property on an execu- tion. The question sometimes arises between the executor or adminis trator of an estate, and the heir at law. But the statute has sufficiently determined such rights. " The following property shall be deemed assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intes- FIXTUEES. 227 Heir, execators, etc. tate, and shall be included in the inventory thereof * * * 4. Things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the walls of a house so as to be essential to its support. 5. The crops growing on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultivation, excepting grass growing and fruit not gathered." 3 R. S. 169, § 6, subds. 4, 5, 6, 5th ed. " Things annexed to the freehold or to any building shall not go to the execu- tor, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in the fourth subdivision of the last section." 3 R. S. 170, § 7, 5th ed. " The right of an heir to any property not enumerated in the preceding sixth section, which by the common law would descend to him, shall not be impaired by the gen- eral terms of that section." 3 R. S. 170, § 8, 5th ed. The statutes above cited make the mode of annexation the test whether the property retains its character of personalty, and gives to the executor or administrator things annexed to the freehold or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support. Where, in the partition of real estate belonging to tenants in common, and consisting in part of a woolen factory, the commissioners treated part of the machinery found in the factory as personal property and not as belonging to the realty, the court on motion confirmed their report, it not appearing that the machinery in question was in any manner aiBxed, or fastened to the building or to the land. Walker v. Sherman, 20 "Wend. 636. The water wheels, running gear and bolting apparatus of a grist and flouring mill, and other fixtures of the same character, are constituent parts of the mill, and descend to the heirs at law as real property ; and do not pass to the executors or administrators of the deceased owner of the mill, as part of his personal estate. House v. House, 10 Paige, 158 ; so of cotton factories. Buckley v. Buckley, 11 Barb. 43. The grass and fruit growing upon lands belonging to an intestate at the time of lus decease are not assets belonging to the administrator, but descend with the land to the heir. Kain v. Fisher, 6 N. Y. 597. The widow receiving the fruits and grass which were growing on her hus- band's lands at the time of his decease, is liable to the heir for their full value, and she cannot retain one-third on account of her right of dower in the lands. lb. At common law growing crops are personal property, and can be sold and transferred as such, or taken upon execution. At common law also upon the death of the owner of the real estate, they passed, not to the 228 FIXTUKES. Landlord and tenant. heirs, but to the executor or administrator, to be administered as personal assets. So they passed to the devisee of real estate, not as a parcel thereof, but upon the presumed intention of the testator that he who takes the land should also take the crops growing thereon. But the common-law rule was somewhat changed by the statute above cited ; and under the statute they go to the executor or administrator, to be applied and distributed as part of the personal estate of their testator or intestate. If, however, the land upon which the crop is growing has been devised in such form as to convey it to the devisee, then the crop is put upon the footing of a chattel specifically bequeathed, and can be sold for the payment of debts only after all other assets, not specifically bequeathed, have been applied. If there are no debts, the whole title legal and equitable, vests at once in the devisee. Stall v. WiUmr, 77 N. Y. 158. Poles used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop, and piled in the yard with the intention of being replaced in the season of hop-raising, are a part of the real estate, and go to the heir instead of the executor or administra- tor ; and a purchaser of such poles from the executor or administrator will not get any title to them as against the heir of the testator or in- testate, or as against his mortgagee of the real estate. Bishop v. Bishop, 11 N. Y. 123. A pump and pipe, balances and scales, and beer pump are prima facie personal property, and will not descend to the heir unless affixed to the freehold or building as mentioned in the sixth section of the statute cited. See ante, 226. Whether the articles are so annexed is a question of fact for a jury or the justice sitting in their place. Hovey V. Smith, 1 Barb. 372. AU the erections connected with a cotton factory and other mills propelled by water power, including the dams, water wheels and gear- ing, and machinery fastened to the ground or building, a,re jprima facie a part of the realty, and descend to the heir at law of the owner, upon his death, and do not pass to his executors or administrators as a part of his personal estate. Buckley v. Buohley, 11 Barb. iS. They will also pass to the remainderman, as between him and the tenant for life, lb. But if a tenant for life has put up fixtures for the purposes of trade or manufacture, he is entitled to them in the same case that a tenant for years would be. lb. § 2. Landlord and tenant. Landlords and tenants not unfrequently differ in relation to the right of the tenant in removing fixtures which he may have erected upon the real estate during his term. In Kim^ v. FIXTUEES. 229 Landlord and tenant. WiloorrJ), 7 Barb. 266, Hakris, J., stated the rule thus : " The ancient rule, that whatever was attached to the freehold by the tenant became a part of the freehold, and could not afterward be removed by him, has gradually been relaxed in favor of the tenant, until now I under- stand the general rule to be, that any one who has a temporary interest •in land, and who makes additions to it or improvements upon it, for the purpose of the better use or enjoyment of it, while such temporary interest continues, may, at any time before his right of enjoyment ex- pires, rightfully remove such additions and improvements. If he omit to sever the addition or improvement until his right of enjoyment ceases, such omission is to be deemed an abandonment of his right, and thereafter the addition or improvement he has made becomes to all intents a part of the inheritance, and the tenant as well as any other person who severs it becomes a trespasser. I think this may now be stated to be the general rule, in respect to fixtures which a tenant at- taches to the freehold. To this extent has the original rule of the common law quicquid plantaPur solo, solo cedit yielded to the changed condition of society. Public policy, especially in this country, requires that the tenant should be permitted so to use the premises he occupies, as to derive from them the greatest amount of profit and comfort, con- sistent with the rights of the owner of the freehold. There may be exceptions to the general rule I have stated, but I think they will be fsund limited to cases where the removal of the additions or improve- ments made by the tenant would operate to the prejudice of the in- heritance, by leaving it in a worse condition than when the tenant took possession." In Dubois v. Kelly, 10 Barb. 496, 500, the same learned judge delivered the opinion of the court, and reafiirmed the foregoing views. And it was also held that the policy which has created excep- tions to the general rule, that whatever is affixed to the freehold cannot be removed without the consent of the owner of the inheritance, applies as well to erections for agriaultural and other purposes, as to the erec- tions for the purposes of trade ; and that to constitute a fixture, there must be such an annexation as to render removal impossible without injury to the freehold. In the last case cited, it was held that a tenant who had built a bam, stables, shed and a store-room for his accommoda- tion, might remove them at any time before the termination of his tenancy. In the absence of any agreement to the contrary, a tenant who has a right to remove a fixture must exercise it while in possession of the de- mised preinises. lb.; Brooks v. Galster, 51 Barb. 196 ; 2 Smith's Lead. Cas. 115. But if the landlord should agree to give time for their removal, 230 FIXTURES. Landlord and tenant. or if he should agree that any fixtures which the tenant should put on might be removed by him, then such removal may be made after the expiration of the term. Dubois v. Kelley, 10 Barb. 496, 500 ; Torrey v. Bwniett, 38 K J. L. 457; S. C.,20 Am. Rep. 421. A tenant may re- move fixtures during his possession after the expiration of his term. Beardsley v. Sherman, 1 Daly, 325 ; Penton v. Mobart, 2 East, 88 ; Weeton v. Woodcock, T Mees. & "Wels. 14; Dubois v. Kelly, 10 Earb. 496 ; Holmes v. Tremper, 20 Johns. 29. Under a lease of vacant ground, at a nominal rent, with covenants on the part of the lessees to erect a valuable building of a permanent na- ture, and at the expiration of the tinve to surrender the premises in as good condition as reasonable use and wear will permit, damages by the elements excepted, and with no reservation of a right to remove the building, such building belongs to the lessors, at the expiration of the term, and they have an insurable interest therein. Mayor, etc., ofNem Yorh V. Exchange Fire Ins. Co., 9 Bosw. 424. Buildings and fixtures erected on demised premises become a part of the real estate, and they are governed by the laws which regulate the descent of land to an heir as a part of the inheritance, or the passing by a deed as a part of the freehold, in all cases except those in which a right of removal has been reserved, or where the buildings and fix- tures were erected for the purposes of trade. Kissam v. Barclay, 17 Abb. 360. The following articles have been held to be removable by the tenant : A ball-room erected by a lessee of an inn, and resting upon stone posts slightly imbedded in the soil, and removable without injury to the in- heritance. Ombony v. Jones, 19 N. T. 234; S. C, 21 Barb. 520. A cider mill, and press, erected by a tenant holding from year to year. Holmes v. Tremper, 20 Johns. 29. A heater used in a tannery for heating liquors. Raymond v. White, 7 Cow. 319. Copper stills, kettles, steam tubs, etc., erected by a tenant of a distillery. Reynolds v. Shuler, 5 Cow. 323. Engines and machinery in a mill, though firmly fixed to the building, if put in by a tenant for years, for thepur- pose of carrying on his business. CooTc v. Ohamplain, etc., Co., 1 De- nio, 92 ; Globe Marble Mills Co. v. Quinn, 76 N. Y. 23. Gas fix- tures, and sitting stools, when placed by a tenant in a shop or store, although affixed to the building. Lawrence v. Kemp, 1 Duer, 363. Rails built into a fence by the tenant, under an agreement with the landlord that the tenant might remove them. Mott v. Pal/rner, 1 N. T. 564. Gas pipes which run through the walls and under the fioors of a FIXTURES. 231 Landlord and tenant. house are permanent parts of the building, but the fixtures attached to these pipes are not. Mirrors, supported in their places by hooks or supports, some of which are fastened with screws to the woodwork, and others driven into the walls, and capable of being easily detached from these supports, without interfering with or injuring the walls, are mere furniture and therefore chattels and not appurtenances of the building. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38. See Ward v. Kil- :patric1c, 85 id. 413. "Where a tenant sets out wine plants upon a farm, while he is a ten- ant, they are, as between him and his landlord, personal property, and he has a right to remove them. Wintermute v. Light, 46 Barb. 278. The tenant may mortgage such plants by a chattel mortgage, and the mortgagee, by a foreclosure of the mortgage, will have a right to re- move them. lb. So, trees planted by the owner or tenant of the soil, for the purpose ■ of transplanting and sale, are treated constructively at law as personal chattels ; and a gardener or nurseryman, who occupies premises under a lease, may, therefore, at the end of his term, remove and dispose of the trees and shrubs which he has planted in the course of business. BrooTcs V. Oalster, 51 Barb. 196 ; Maples v. Millon, 31 Conn. 598 ; Price V. £rayton, 19 Iowa, 309. And it is held that he may remove green-hoiises and hot-houses erected by him as tenant of the premises, for the purpose of carrying on his business. Syme v. Harvey, 24 Sc. Sess. Cas. 202. But see Fisher v. Dixon, 12 01. & Fin. 312 ; Jenkins V. Oething, 2 Johns. & H. 520. And where a tenant placed a steam engine, boilers, and other prop- erty in a building upon premises rented and used by him for carrying on the business of a soda, saleratus and drug factory and mill, it was held that he was entitled to remove these articles at the expiration of the term. Kelsey v. Durkee, 33 Barb. 410. Posts and boards on a farm will be regarded as personal property, if there is nothing to show that they are kept for the purpose of fencing, so as to convert them into realty. Wing v. Gray, 36 Vt. 261. And an out-going tenant has a right to take away hoppoles, which he has placed in the soil for a temporary use and with intent to remove them, as against both the landlord and the landlord's grantors. lb. There are numerous other cases which relate to other articles that are affixed to the freehold by the tenant ; but the same principle runs through all the cases, which is, that a tenant who annexes or affixes personal property to the land or buildings occupied by him, when such annexation, etc., is made for the purpose of carrying on his business, 232 FIXTURES. Vendor and purchaser of real estate. , trade or manufacture, or for agricultural purposes, may remove them by right without any agreement for that purpose, and that, too, although the articles may be so annexed, etc.,. that they would be con- sidered a part of the real estate were the question between the vendor and purchaser, or mortgagor and mortgagee, of real estate. § 3. Yendor and purchaser of real estate. As between vendor and purchaser of real estate the rule is quite strictly applied in favor of the purchaser. And the general rule is, that all buildings, ma- chinery, and other articles affixed to buildings, and intended for per- manent use in such buildings, are considered as a part of the real es- tate, and wiU pass to the purchaser by the deed of conveyance. Each case, however, has some peculiar circumstances of its own, and there will therefore be many instances in which a given case is taken out of the general rule. It must be remembered that the statutory rule, before given, making the mode of annexation of a chattel to the freehold the test to de- termine whether it is real or personal property as between the personal representatives and the heirs of a deceased person, is not controlling in cases between vendor and vendee. As between the latter parties, the criterion of a fixture is the union of these three requisites ; ji/rHt^ actual annexation to the realty or some thing appurtment thereto \ second, application to the use or purpose to which that part of the realty to which it is connected is appropriated ; third, the intention of the party making the annexation to make a permanent accession to the freehold. The purpose of the annexation and the intent with which it was made are the most important considerations. McReaY. Central Nat. Bank of Troy, m N. Y. 489 ; Potter v. Cromwell, 40 id. 287 ; Yoor- Ms V. MoOinnis, 48 id. 278 ; Teaft v. Hewitt, 1 Ohio St. 511, 529 ; Ottumwa Woolen Mills Qo. Y.Howley, 44 Iowa, 57; Hutchins v. Master- son, 46 Texas, 551 ; S. C, 26 Am. Rep. 286. The permanency of the attachment does not depend so much upon the degree of physical force with which the thing is attached, as upon the motive and intention of the party in attaching it. If the article is attached for temporary use with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent im- provement of the freehold he may. MoRea v. Central Nat. Bank of Troy, 66 N. Y. 489 ; Crane v. Bimgham, 3 Stockt. (N. J.) 29 ; Pot- ter V. Cromwell, 40 N. Y. 296, 297. In the absence of other proof of intent, the mode of annexation may be controlling. The thing annexed may be in itself so inseparable and permanent as to render the article neces- earily a part of the realty ; and in case of Ifess thorough annexation the FIXTURES. 233 Yeudor and purchaser of real estate. mode of attachment may afEord convincing evidence that the intention was that the attachment should be permanent ; as, for example, where the building is constructed expressly to receive the machine or other articles and it could not be removed without material injury to the _ building, or where the article would be of no value except for use in that particular building, or could not be removed therefrom without being destroyed or greatly damaged. These tests have been frequently employed in determining whether the annexation was intended to be temporary or permanent, but they are not the only ones, nor is it in- • dispensable that any of these conditions should exist. MoRea v. Central Nat. Bank of Troy, m N. Y. 489. Gas fixtures and mirrors, attached to the walls of a house by the or- dinary means, are merely chattels not appertaining to the building, and will not pass by a deed or under a mortgage of the premises. Nor will a mere declaration of the owner that he intends them to go with the house make them a part of the realty. McKeage v. Hojnover Fire Ins. Co., 81 N. T. 38. By a written contract between the plaintiffs and S. F. & Co., certain machinery was to be manufactured by the former and set up in the mill of the latter, and the plaintiffs were to remain owners of the machinery until it was paid for. The machinery was set up in the mill according to contract ; the mode of annexation being such that it could be removed without injury to the building ; in such a case the machinery does not become part of the realty, so as to pass by a deed thereof by S. ; but the title of the machinery remains in the person who put it hi the building, until it is paid for. Oodard v. Gould, 14 Barb. 662 ; Tift v. Horton, 53 N. Y. 377 ; S. C, 13 Am. Eep. 537. But the actual annexation of machinery to land will raise a presumption that it was so attached with a view to the permanent improvement or beneficial enjoyment of the freehold ; and in the absence of proof that the annexation was merely for the purpose of steadying and adjusting the machine, or that the intention existed at the time, and was not after- ward abandoned, that the annexation should not be permanent in its character, or that there was some agreement or relation of the parties inconsistent with the supposition that a permanent annexation was in- tended, the machinery will be deemed a fixture and part of the realty. Potter V. Crorrmell, 40 N. Y. 287. The courts are less liberal in de- termining the right to fixtures as between vendor and vendee than as between landlord and tenant. See Globe Marble Co. v. Quinn, 76 N. Y. 23. And as a general rule, upon a sale of the freehold any and all fixtures attached to it will pass, unless there is some express provision 80 234 FIXTURES. Vendor and purchaser of real estate. or valid agreement to the contrary. Hitchman v. Walton, 4r Mees. & Wels. 409 ; Fea v. Pea, 35 lud. 387 ; Harhness v. Sears, 26 Ala. 493. Thus as between vendor and vendee, the rights of no other parties in- tervening, the stationary machinery by which turning lathes, or any of those machines or which are portable and of equal use everywhere, are impelled, must be regarded as irremovable fixtures and part of the freehold, whenever such stationary machinery shall have been erected on the land by the vendor himself during his ownership, for his own use, and fixed in or to the ground, or to some substance already become a part of the freehold, whether erected for the purpose of trade or . agriculture, and such stationary machinery passes by the deed of the vendor, to the vendee conveying the land on which it stands. lb.; MeGreary v. Osborne, 9 Gal. 119; Millers. Plumh, 6 Cow. 665; Greeny. Phillips, 26 Gratt. (Va.) 752 ; S.C.,21 Am.Eep. 323; Burn- side V. Twitchell, 43 IST. H. 390 ; Davenport v. Shants, 43 Vt. 546 ; Voorhees v. MoGimiis, 48 N. T. 278; Potter v. Cromwell, 40 id. 287 ; Belthen v. Fowle, 40 Me. 310 ; Ege v. Kille, 84 Penn. St. 333 ; Bigler v. National Bank of Newburgh, 26 Hun, 520. A building which is erected by one person upon the lands of another is prima facie a part of the real estate ; but if there is an agreement on the part of the owner of the land that the building may be removed, it will be personal property. Smith v. Benson, 1 Hill, 176. Where the owner of land conveys the same, by an absolute convey- ance, wine plants, set in the ground and growing there at the time, will pass by the conveyance, notwithstanding a parol reservation thereof by the grantor. Wintermute v. Light, 46 Barb. 278. And see Smith V. Price, 39 111. 28. So, nursery trees planted by the owner of real estate become a part of the realty, and pass as such to a purchaser in the foreclosure of a mortgage executed by such owner, notwithstand- ing the owner may have executed a chattel mortgage upon the trees, which was recorded prior to the judicial sale. Adams v. Beadle, 47 Iowa, 439. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, without any intention of divert- ing from their use as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser. Goodrich v. Jones, 2 Hill, 142. And so of manure lying in a barnyard on the farm at the time of the conveyance, although laid up in heaps. lb. A building called a " shanty," about twenty feet square, stood upon land fronting the street, and it had a chimney, door and windows, was divided into two apartments and a garret, and occupied by a family; FIXTURES. 235 Mortgagor and mortgagee of real estate. this was held to he prvma facie a part of the real estate. Fisher v. Safer, 1 E. D. Smith, 611. Wheat and other growing crops will pass to the purchaser by the deed of conveyance of the land ; and a parol reservation of them will not be permitted to be proved in contradiction of the terms of the deed. Austin v. SoAoyer, 9 Cow. 39. But as between vendor and purchaser of land, upon which there is a dwelling-house without a fire- place, and without a chimney, except from the chamber floor, it was held that a stove, from which a pipe went into the lower end of this chimney, did not pass to the purchaser of the land as a fixture. Free- land V. Southworth, 24 Wend. 191. Personal property, such as a steam engine and boilers, were hired by a person and then wrongfully affixed to his real estate, which was sold to a purchaser of the land without knowledge of the wrongful acts as to the steam engine, etc. ; and it was held that the purchaser of the land could hold the steam engine, etc., and that the remedy of the former owner of the engine was solely against the person who wrong- fully affixed them to the real estate. Fryatt v. Sullivan Co., 5 Hill, 116 ; S. C., 7 id. 529, approved in Ford v. Oolh, 6 E. P. Smith, 351, upon the principle that they were so incorporated into the building as not to be removable without destroying it. Shelves, drawers and counter tables, put up by the owner to fit the building for the uses of a retail dry goods and grocery store, and without which the building would not be adapted to the business, are, as between vendor and pur- chaser, a part of the freehold, and the vendor has no right to remove them after a sale of such real estate. Tdboi' v. EoUnson, 36 Barb. 483, § 4. Mortgagor and mortgagee of real estate. M mortgagee and a purchaser of real estate stand upon a similar footing in relation to fixtures ; and such articles as a purchaser may claim under his deed will generally belong to a mortgagee on a foreclosure. Laflin v. Orif- phs, 35 Bark 58 ; Wahnsley v. Milne, 7 C. B. (N. S.) 115 ; Voorkes V. MoGinnis, 48 N. Y. 278 ; Maples v. Millon, 31 Conn. 598. Whether such articles are what are generally known as trade fixtures or not. ExparU Golton, 2 M.D. & De G. 725. And whether the articles were annexed to the freehold before the mortgage was given or afterward. Metropolitan Society v. Brown, 28 Beav. 454 ; Gullnick v. Swindell, L. R., 3 Eq. 249 ; Lynde v. Rowe, 12 Allen, 100 ; State Savings Bank V. Xircheval, 65 Mo. 682; S. C, 27 Am. Eep. 310 ; Tift v. Horton, 53 N". Y. 377 ; S. C, 13 Am. Rep. 537. As a general rule, all fixtures put upon the land by the owner thereof, whether before or after the execution of a mortgage upon it, become 236 FIXTUEES. Mortgagor and mortgagee of real estate. subject to the Hen of the mortgage. But it is well settled that chattels may be annexed to real estate and still retain their character as per- sonal property. lb.; Voorhis v. MoOmnis, 48 N". T, 278. The inten- tion with which the chattel is annexed to the freehold is one of the various circumstances by which it may be determined whether in any case this character is or is not retained. If the intention is that they shall not by annexation become a part of the freehold, as a general rule they will not. Tifft v. Horton, 53 N. T. 377 ; S. C, 13 Am. Kep. 537. But as has been shown the character and purpose of the thing annexed, the mode of annexation and the injury resulting to the free- hold from a severance may, in the absence of other evidence, be con- trolling upon the question of intention. See ante, 232. Where chattels are brought upon and affixed to lands under an agreement between the owner of the fee and the owner of the chattels^ that the character of the chattels as personal property shall not be changed, and that they shall be subject to the right of the owner to remove them, neither a prior nor a subsequent mortgagee of the realty can claim the chattels as subject to the lien of his mortgage from the mere fact that they are affixed to the freehold. Tifft v. Horton, 53 IT. Y. 337. So if an engine and boiler are sold to the owner of lands with the understanding that they are to be set up and used for manufacturing purposes in a cheap building on the lands of the purchaser, and a chat- tel mortgage is given upon the machinery sold with the understanding that the mortgage should be valid notwithstanding any annexation to the freehold, a purchaser of the lands under an execution against the owner cannot maintain trover against the mortgagee, to whom the chattels have been retransferred on default in payment, for their re- moval between the time of sale and the delivery of the sheriffs deed, where, in making such removal, no serious damage was done to the freehold or injury to the character or value of the property removed. Sisson V. Uibhard, 75 N. Y. 542. In such case the purchaser under the execution acquires the rights of the execution debtor in respect to the property, and no other or greater. lb. So, where a mortgagor of real estate bought salt-pans, and mort- gaged them to his vendor as chattels, and he then imbedded them in brick arches, from which they could be removed without injury to the real estate, and at an inconsiderable expense, and the course of the manufacture required them to be re-set annually, the original vendor was held to be entitled to them on his chattel mortgage in preference to the mortgagee of the real estate. Ford v. Cohh, 20 N. Y. 344. Looms in a woolen factory, which are not connected with the ma- FIXTURES. 237 Mortgagor and mortgagee of real estate. chinerj of the motive power in any other manner than by leather bands, and not annexed or affixed to the building in any other manner than by screws holding them to the floor for the purpose of keeping them steady while working, and which could be removed without injury to themselves or to the building, are chattels, and not a part of the real estate, and a mortgagee of the real estate cannot hold them. Murdoch v. Oifford, 18 N. Y. 28. But see Ottumwa Woolen Mill Co. v. HoAvley, 44 Iowa, 57; S. C, 24 Am. Eep. 719. As between mortgagor and mortgagee, an engine and boiler, steam- guage, water-tank, steam-pump, and shafting, designed permanently to increase the value of a building for occupation as a manufactory, are fixtures, although removable without injujy. McOonnell v. Blood, 123 Mass. 47 ; S. C, 25 Am. Eep. 12. But it is otherwise as to ma- chines not essential or especially adapted to the use of the building as a manufactory, such as machines for stripping, rolling, splitting, or stitching leather, although fastened with nails and bolts to the build- ing, lb.; Pierce v, George, 108 Mass. 78 ; S. C, 11 Am. Eep. 310; The Queen v. Lee, L. E., 1 Q. B. 241 ; Holland v. Hodyson, L. E., 7 0. P. 328. The following articles wiU belong to a mortgagee of real estate, or to a purchaser of them, on a foreclosure of the mortgage : Crops of every kind which are growing on the ground at the time of the sale under the mortgage foreclosure. Lmie Y.Kvng, 8 Wend. 584; Shspard Y.Philtbrich, 2 Denio, 174; Oillett v. Balcom, 6 Barb. 870. Hop-poles, necessarily used in cultivating hops, though piled in the hop yard after picking the hops, but intended to be used for the next crop. Bishop) v. Bishop, 11 JSr. T. 123 ; Sullivan v. Toole, 26 Hun, 203. See Noyes v. Terry, 1 Lans. 222. A furnace for heating a house, but so placed that it could not be removed without some injury to the building in which it was placed. Main v. Schwa/rzwaelder, 4 E. D. Smith, 273. A statue erected as an ornament to the grounds, and placed upon a permanent arti- ficial mound, constructed of cut stone laid up without mortar, and affixed in no other manner than by its own weight. Snedeker v. Wa/r- ring, 12 K Y. 170. Platform scales, fastened to sills laid upon a brick wall set in the ground, used for weighing stock and grain, and intended for permanent use. Arnold v. Crowder, 81 111. 56 ; S. C, 25 Am. Eep. 260. And all manure made upon the mortgaged premises. Chase v. Wingate, 68 Me. 204. When the question as to whether property is to be considered real or personal arises under the laws giving the mechanic and materialman a lien for his labor or material upon buildings erected 238 FIXTIJEES. When liable to an execution. or repaired, it is to be determined, in this State, by the rules applicable to vendoi's and vendees and mortgagors and mortgagees. If the materialman furnishes material that is so used as to become an essential part of the realty, as for example, chairs for a theater, of a pattern made with special reference to the size, shape and plan of the auditorium where they are placed, which are screwed to the floor because so constructed as to be incapable of standing alone, he may file a mechanic's lien against the premises for which the ma- terial is furnished. Grosz v. Jackson, 6 Daly, 463. And see Wa/rd V. Kilpatrick, 85 IST. Y. 413, § 5. When liable to an execution. An execution which is issued by a justice of the peace cannot be levied upon real estate, and there- fore when any article is a part of the real estate in the character of a fixture, it is generally said that it cannot be sold upon such an execu- tion. But it has been seen, ante, 226, that articles which are treated as fixtures in some cases are not so considered under other circumstances. It may be stated as a general rule, that an execution may be levied upon those articles which a tenant may claim as against his landlord, a vendor against his purchaser, a mortgagor against his mortgagee, or an heir against the executor, etc., if the execution is issued against such tenant, vendor, mortgagee, or heir. To enumerate all the articles which may thus be taken, to cite all the adjudged cases upon the question,^ or to reconcile all the conflicting decisions, will not be attempted. But a few of the more useful cases will be noticed by way of illustration. Machinery erected for manufacturing purposes, on timbers imbedded in the ground, or fastened to the timbers of a building by bolts, screws, pins or cleats, if put up with a view to its being removed without in- jury to the building, may be levied upon and sold as personal property. Farrar v. Ghauffetete, 5 Denio, 527. A heater, which is used in a tannery for heating liquors, may be sold on execution. Raymond v. White, 7 Cow. 319. So of gas fixtures owned by a tenant and placed in a store or shop. Lawrence v. Kerwp, 1 Duer, 363. So of ma- chinery for spinning flax and tow, and carding machines, used in a manufactory and attached slightly by cleats, etc. Oresson v. Stout, 17 Johns. 116. The other cases necessary to notice have already been cited, in rela- tion to tenants, purchasers, mortgagees, etc., ante, 228. Whenever such persons may claim the articles, they are liable to levy and sale upon executions which are issued against them. But whenever the landlord, or mortgagee, or purchaser of real estate, or the heir at law may claim the property, as a part of the real estate, no execution against personal property can be properly levied upon it. CHAPTER XIX. STATUTE OF FRAUDS. Seotiok 1. General principles. The statute which is usually called the "statute of frauds," is one which applies to many of the usual contracts which are daily made. The object of the statute is to pre- vent the perpetration of frauds or the commission of perjuries, in at- tempting to establish and enforce pretended contracts which were never really made. To effectuate this object, the statute requires that cer- tain agreements shall be in writing ; that the terms of the agreement, including the consideration, shall be expressed therein, and that it shall be subscribed by the person who is to be charged by it. The statute is as follows : " In the following cases, every agreement shall be void unless such agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith : 1. Every agreement that by its terms is not to be performed within one year from the making thereof; 2. Every special promise to answer for the debt, default or miscarriage of another person; 3. Every agreement, promise or undertaking, made upon consideration of marriage, except mutual promises to marry." The statute, as here quoted, reads as it was amended by chapter 462, section 1, of Laws of 1 863. The amendment consisted in striking out the clause which required the agreement to express the consideration on the face of the agreement. It will be observed that this statute does not dispense with any of the common-law requisites of a contract. There must stiU be parties com- petent to contract, a sufficient legal consideration, and the mutual assent of the parties. The practical effect of the statute is to require that some particular contracts shall be evidenced in a manner not required by the rules of the common law. Under this statute, therefore, all cases which fall within it must be legally sufficient as a common-law contract, and must, in addition, be reduced to writing, must show a consideration, and be subscribed by the party against whom it is sought to be enforced. The statute requires that all the material terms of the agreement shall be reduced to writing, as is evident from the language employed. 240 STATUTE OF FRAUDS. General principles. It declares that " every agreement shall be void, unless such agr^ment, or some note or memorandum thereof, be in writing," etc. And besides that, the reason for enacting the statute was, that there should be written evidence of agreements instead of relying upon verbal evidence, which may let in the mischiefs of fraud and perjury ; and, if the agreement is required to be in writing, nothing is more natural and proper than that the entire agreement should be reduced to writing. This view is in accordance with the common-law rule of evidence which forbids the admission of parol evidence to vary, add to, or contradict a written agreement. The law does not prescribe any particular manner in which the terms of an agreement shall be expressed in a written instrument. It will be sufficient if, from the face of the entire instrument, there is enough expressed to authorize a court to adjudge as a matter of law that a valid contract is contained in it. The statute formerly required a state- ment of the consideration, or in other words, it declared that the agreement must express the consideration. But the statute as it now stands, since the amendment, reads like the English statute in that respect, and is also similar to the statutes of this State before the enact- ment of the Revised Statutes of 1830. By the English law, and by the adjudications in this State before 1830, every agreement in writing must have shown on its face that it was founded upon a legal sufficient consideration. The statute of frauds, which requires certain agreements to be in writing, was construed by the courts to mean that the agreement must contain the entire contract, including the consideration. Wavn v. Warlters, 5 East, 10 ; 2 Smith's Lead. Cas. 147, and the cases in note. The cases in this State are explicit that a written memorandum under the statute of frauds mast show a consideration, or that it will be invalid even when the statute does not require in express terms that the agree- ment shall express the consideration. Sears v. BrvnTc, 3 Johns. 210 ; Stymets v. Brooks, 10 Wend. 207 ; Rogers v. Kneelamd, id. 219 ; S. C, 13 id. 114. The cases do not require that the consideration shall be expressed in any particular form, since it is a general principle ap- plicable to all instruments or agreements, that whatever may be fairly implied from the terms or language of an instrument is in judgment of law contained in it. lb. The effect of the amendment of the statute of frauds in 1863 is not clearly settled. In the Supreme Court of this State it is held that the effect of the amendment was to leave the law to stand precisely as it was under the interpretation of the courts before the words requiring the consideration to be expressed were inserted. Castle v. Beardsley, 10 STATUTE OF FEAUDS. 241 General principles. Hun, 343. Under this construction of the statute, the decisions above cited correctly state the law as it now exists. But in the New York Superior Court it is held that the effect of the amendment is to abolish the necessity of the consideration being in any way stated or indicated by the written agreement. Speyers v. Zambert, 1 Sweeny, 335 ; S. C, 37 How. 315; 6 Abb. (K S.) 309. Under this construction of the statute the cases above stated are no longer of authority upon this question, and have been rendered obsolete by the amendment. It is believed that the effect of the amendment of the statute in 1 863 has never been directly passed upon in the court of last resort. But under the amended statute it has been held that a letter admitting the purchase of goods by the writer from the person to whom it is written, but without expressing any consideration or stating terras of the pur- chase, is not a sufficient note or memorandum to take the case out of the operation of the statute. Newhery v. Wall, 65 N. T. 484. And in another case it is held that all the essential parts of the contract must be evidenced by the writing, and that they cannot be supplied by oral evidence. Stone v. Brovming, 68 IST. Y 598. The consideration is an essential part of every contract. If the written agreement shows any consideration upon its face, that will be sufficient in the first instance. But if it is shown that the con- sideration recited does not exist, and that it never had any existence, or from some cause it is illegal, the entire contract will fail, since no con- tract is binding unless it is founded upon a sufficient and legal con- sideration. A want of consideration or illegality in it may always be shown as a defense to an alleged contract, whether it be verbal or writ- ten, sealed or unsealed. Yol. 1, p. 210. If it is shown that the consideration which is recited in the agree- ment is illegal, that it is not sufficient, or that it has entirely failed, then the agreement cannot be enforced, whether it is a common-law agreement, or whether it is one which is affected by the statute of frauds, since this statute relates merely to the evidence which is neces- sary to establish the existence of the contract in the first instance, while a party is always at liberty to impeach such consideration by any com- petent evidence for that purpose. There are frequently cases in which the statute requu-es a written agreement, and in which there was a legal and sufficient consideration in fact, but which was not expressed in the written agreement ; and the question then occurs, whether parol evidence is admissible for the purpose of sustaining the written agreement by showing what the actual consideration was. 31 242 STATUTE OF FRAUDS. General principles. It has been repeatedly held that it will be of no avail that there wag really a legal sufficient consideration, if that consideration is not ex- pressed in the agreement itself. Brewster v. Silence, 8 N. T. 207 ; Draper v. Snow, 20 id. 331 ; Gould v. Moring, 28 Barb. 444. The contract of a surety, or that of a guarantor, is a different one from that of the principal debtor ; and although there may be a suffi- cient consideration to render the contract valid between the principal and the other contracting party, such consideration will not be sufficient to sustain an action against the surety or guarantor. This rule, how- ever, is applicable to those cases only in which the surety or the guaran- tor enters into the agreement at some time after the principal contract has been made, or when the agreements of the principal and surety or guarantor are not both made at the same time ; and when there is no consideration existing except that of the principal debtor. In such cases the consideration of the contract between the principal and the other contracting party is not any consideration as to the surety or the guarantor. Brewster v. Silence, 8 IST. Y. 207 ; Draper v. Snow, 20 id. 331 ; GovZd v. Moring, 28 Barb. 444. There is one class of cases, however, which deserves notice in this place. When a principal is about to purchase goods or property of another, and before the purchase, or the delivery of the prop- erty, the guarantor or surety subscribes a written guaranty or agree- ment to pay for the article so purchased or delivered, this will be a valid and binding agreement upon such guarantor or surety if the vendor sells or delivers the property on the faith of such written guaranty and in compliance with its terms and conditions. In such a case the written agreement is in the nature of a request to the vendor to sell or deliver the property, which the vendor is not under any obligation to do unless he agrees to do so ; but if, in compliance with the request, he does so sell or deliver the goods or property to the principal debtor, the surety or guarantor will be liable to see the debt paid in case the prin- cipal does not pay it. Church v. Brown, 21 !N". Y. 315, 328 ; Umon Bank V. Coster's Executors, 3 id. 203 ; Oates v. McKee, 13 id. 232 ; Bimdge v. Judson, 24 id. 64. And see Vol. I, 202 ; City National Bank of Poughkeejpsie v. Phelps, 86 N. Y. 484. In all such cases the consideration is expressed in the writing, because the request and the promise constitute a sufficient consideration if the request is complied with. lb. In Church v. Brown, 21 N. Y. 316, the facts were, that on the Ist day of July, 1852, the plaintiffs made a contract with one White, which was reduced to writing, and signed by the parties, by which the plaintiff's agreed, during one year, to sell to White such arti- STATUTE OF FEAUDS. 243 General principles. cles of hardware, from their store, as he might desire, upon a credit of one year, with interest after six months from the time of the purchase. Simultaneously with the execution of this agreement, the defendant subscribed an instrument in the following form, which was indorsed on the agreement : " I will be responsible for all such goods as Mr. White shall buy of the Messrs. Church, within one year from date, and which shall not be paid for according to the terms of the within contract. July 1, 1852." In pursuance of this arrangement, Messrs. Church sold and delivered goods to White, and it was held that Brown was liable to see them paid for, upon the ground that the instrument signed by him was a request for the delivery of the goods to White. Where a guaranty of the payment of rent, to grow due upon a lease, is expressed to be "in consideration of the letting," it will be in- tended, for the purpose of giving a consideration to the guaranty, if nothing to the contrary is shown, that the landlord agreed to let in con- sideration of the promise of the surety ; and this, notwithstanding the guaranty bears date after the lease. Oottsberger v. Badway, 2 Hilt. 342. In this case the court said : " That it (the guaranty) bears date after the agreement to let makes no difference. It sets forth that the letting is the consideration for the promise made by the defendant and it will be intended, though the agreement of the surety bears date afterward, if nothing to the contrary is shown, that the plaintiff agreed to let in consideration of the promise of the defendant afterward put in writing." It has been held in several cases, and it may now be regarded as settled, that the words "for value received " constitute a sufficient ex- pression of the consideration to satisfy the statute, even where the statute requires the consideration to be expressed. Miller v. Cooh, 23 N. Y. 495 ; S. C, 22 How. 66 ; BrewsUr v. Silence, 8 N. T. 207 ; Cooper V. Dedriok, 22 Barb. 516 ; Watson^s Executors v. McLaren,, 19 Wend. 557 ; Howard v. Holbrooh, 9 Bosw. 237. So where the agreement is under seal, this will be held to be a compliance with the statute by sufficiently showing a consideration, because it is said that a seal imports or implies a consideration. lAmngslon v. Tremper, 4 Johns. 416 ; Douglass v. Howland, 24 Wend. 35 ; Bush v. Stevens, id. 256 ; Childs v. Barnum, 11 Barb. 14 ; jRosenbaum v. Gtmter, 2 E. D. Smith, 415 ; McKe7bsie v. Farrell, 4 Bosw. 193. When the contract of guaranty or other agreement is sealed, it is not necessary that the body of the instrument should recite or express any consideration in language, as the seal is held to be sufficient to answer for that purpose. 2U STATUTE OF FRAUDS. General principles. It must be regarded as settled that the attaching of a seal to an agreement, or the insertion of the words "for value received," suffi- ciently expresses the consideration to satisfy the statute ; but, although this is so, it is evident that neither of these modes really and truly ex- presses the actual consideration upon which the agreement is founded, as the statute formerly required. Such a mode of complying with the statute may be said to show that there is some unexpressed consideration for the promise of the surety or guarantor, but it certainly does not express what the actual considera- tion is, which is the obvious design of the statute. This general manner of expressing the consideration seems to be sufficient to cover and include all possible considerations, although no particular consideration is expressed in the writing. And where a guaranty recited the payment of $1, and it was also under seal, it was held that proof of the non-payment of the dollar did not invalidate the guaranty, since there might have been some other consideration which the seal would import. Childs v. Barnum, 11 Barb. 14. The court held that, in such a case, a defense to be successful must show that there was no consideration of any kind whatever. A party is always at liberty to show that there is no consideration for his promise, and if it is established by the evidence that there was no consideration for such promise, the agreement cannot be enforced whether under seal or not under seal. Tallmadge v. Wallis, 25 "Wend. 107 ; Johnsmi v. Miln, 14 Wend. 195, 199. The seal will stand for a consideration until the existence of any consideration is negatived. The statute which formerly required that the consideration should be expressed in the agreement did not, thereby, in any manner change the character of the considera- tion itself. It merely required that the evidence of the consideration should be in writing, and it then left the value and sufficiency of it to the ordinary rules of law applicable to the case. If a written agreement does not show any consideration on its face, and there is no extrinsic proof of any consideration in fact, the agree- ment cannot be enforced upon common-law principles. And, in the cases in which the statute requires a written agreement to render it valid, if that is not done there cannot be any parol proof admitted to show that there was really a sufficient consideration, and in such eases the agreement will be void by the statute. SaokeU v. Palmer, 25 Barb. 179; Woodv. Wheeloch, id. 625; Brewster v. /Sifence, 8 N. T. .207 ; Draper v. Snow, 20 id. 331 ; Ooutd v. Mormg, 28 Barb. 444 ; Wilson V. Roberts, 5 Bosw. 100 ; Bennett v. Pratt, 4 l>enio, 275 ; DooUttle V. Naylor, 2 Bosw. 206. STATUTE OF FEAUDS. 245 Contracts not to be performed within one year. When an agreement is required by the statute of frauds to be in writing, there must be a compliance with the statute, and an agreement which is partly in writing and partly by parol, will be void. Wright v. Weeks, 25 K Y. 153. The contract may be exe- cuted by an agent ; and a subscription to an agreement by an agent of the party to be charged is valid under the statute of frauds, although the name or the existence of the principal does not appear upon the instrument. Dyhers v. Tovmsend, 24 N. Y. 57. A principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument, and was not disclosed, and the party dealing with the agent supposed that he was acting for himself ; and this doctrine obtains as well in re- spect to contracts which are required to be in writing as to those where a writing is not essential to their validity. Coleman v. First Mat. Bank, 53 JSI. Y. 393 ; Eastern B. B. Co. v. Benedict, 5 Gray, 566 ; Calder v. Dohell, L. E., 6 C. P. 486 ; Western, etc., v. Chicago, etc., 86 111. 246. And it seems that a contract signed by an auctioneer on be- half of an vindisclosed proprietor is a valid contract under the statute of frauds. Beer v. London, etc.. Hotel Co., L. E., 20 Eq. 412. So, the signature of the purchaser to the conditions of sale when made by the auctioneer's clerk, as the bids are publicly announced, is a sufficient signature to satisfy the statute. Johnson v. Buck, 35 N. J. 338 ; S. C, 10 Am. Eep. 243. So, the minutes of a resolution of the commou council of a city designating an official newspaper and the signature of the clerk of the common council, at the end of the minutes, constitute a note or memorandum in writing, signed by the party to be charged, within the meaning of the statute. Argus Co. v. Mayor of Albany, 55 N. Y. 49.T ; S. 0., 14 Am. Eep. 296 ; Commonwealth v. Collins, 12 Bush (Ky.), 386. See Gummer v. Village of Omro, 45 Wis. 384. The law sometimes supplies, by its implications, the want of express a^eements between the parties, but it never destroys or overrules the express agreements of the parties by implications. Calkins v. Folk, 39 Barb. 620. If the meaning of an instrument is uncertain, the in- tention may sometimes be ascertained by extrinsic evidence, but it must be a meaning which may be distinctly derived from a fair and rational interpretation of the words actually used. If it be incom- patible with sucli interpretation, the instrument will be void for uncer- tainty, and incurable inaccuracy. lb. § 2. Contracts not to be performed within one year. It is the object and the policy of the law to ascertain what is the actual truth 246 STATUTE OF FKAUDS. Contracts not to be performed within one year. in relation to disputed facts between litigant parties ; and in all cases of contracts, the intentions of the parties are carried into effect, so far as is consistent with the settled rules of law. But one of the most difficult questions which frequently arises is, to ascertain and determine what was the actual agreement of the parties. And where there is no dispute as to the facts, there is frequently a wide difference of opinion between the parties as to their legal rights upon the undisputed facts. But in such cases there is a mere legal -question to be settled by the courts. The greater share of litigation, in such cases of contracts, relates to the question what is the actual contract which it is alleged has been made. If the contract is reduced to writing, much of this difficulty is obviated. Written contracts speak one language for all the parties, and they never add any thing to the terms of the origi- nal agreement, nor are they liable to the defects of human memory by forgetting or omitting some of the important provisions of the agreement. The object of the statute is to prevent mistake, fraud or perjury in relation to such contracts as may be of sufficient im- portance to require that their existence shall be evidenced by writing. Past experience has shown the danger which exists, and the injuries which parties have suffered, in consequence of permitting important contracts to rest in parol agreements. Transactions which occurred at a remote period of time may have been forgotten wholly or partially ; different witnesses who heard the same contracts made, or who saw the same transactions, may differ widely in their recollec- tions of the matter, or they may positively, but honestly, disagree in their narration of the event, owing to the fact that some of them may have forgotten what the others distinctly recollect ; again, some of the most material circumstances may have been forgotten by all the witnesses ; so, some or all the witnesses may not recollect the language of the contract, but merely the impression which they re- ceived when they heard it, and that impression may have been very incor- rect indeed ; further, it is almost always the case that different witnesses give different versions of the same affair, even when the transaction spoken of is a recent one ; and finally, the absence or death of material witnesses may seriously affect the rights of litigant parties. Such con- siderations, and others of a similar character, show the importance and the propriety of the statute ; but when to this view of the matter is added that nothing can open a wider door for frauds and perjuries than those cases which depend upon oral evidence of the existence of the terms and STATUTE OF FEAUDS. 247 Contracts not to be performed within one year. conditions of agreements which were made years before the litigation arose, it will be seen that the rights of the citizen would be most unsafe indeed but for the provisions of this statute. In the construction of a statute it is always important to recollect the object for which it was enacted ; and the court will always so con- strue it as to prevent the mischief, or to advance the remedy which was the object of its enactment. The statute renders every verbal agreement void, if, by its terms, it is not to be performed within one year from the time when it was made. It wiU be noticed that the statute does not render every agreement void merely because it does not happen to be performed within one year, but it relates to those cases in which the agreement, 5y its term.s, is not to be performed within one year. So, it is evident that the statute was intended to reach those cases in which the agreement, by its terms, provides that there is not to be a complete performance of the entire contract within a year. Ordinarily, there cannot be room for any substantial question, whether the agreement is void by the statute, if the terms of the agreement are undisputed. When an agreement is made on the first day of January in one year, and by the tei-ms of such agreement, one person is to labor for another from the first day of May following, until the first day of May in the succeeding year, it is evident that such an agreement cannot be per- formed within one year from the time of making it, and therefore it is void by the very terms of the statute. In such a case the parties expressly agree that the performance of the agreement shall not be completed within one year. But there are many instances in which the evident intention of the parties is that the agreement shall not be performed within one year, although this intention is not expressed in direct language. If, how- ever, the legal construction of the agreement shows that it is reaUy a contract which by its entire terms is not to be performed within one year, it will be void as clearly as though the terms were expressed in explicit and imambiguous language. No evasion of the statute is to be permitted, and every agreement which is made in violation of the intent and spirit of the statute ought to be held void. In all cases which can arise under this statute, the agreement must le a verbal one, because the statute does not apply to written agree- ments. And if there is a dispute as to the true terms of the agree- ment, the question is one of fact to be determined by a jury, or by the justice sitting in their place, upon all the evidence on that question. If it is determined as a matter of fact that the agreement was not, by 248 STATUTE OF FEAUDS. Contracts not to be performed within one year. its terms, to be performed within one year, it is void ; if, on the other hand, it is found that the performance was to be complete within one year, the agreement is valid. A parol executory agreement between an individual and a railroad company that the cars of the latter shall continue to stop at a particu- lar place adjacent to his property, as a permanent arrangement, is void by the statute of frauds, because from the nature and terms of the agreement it is not to be performed within one year from the mak- ing thereof. Pitkin v. Long Island R. R. Co., 2 Barb. Ch. 222. A parol agreement by an occupant of leased lands, that a railroad company may, for a term of years, lay a track on the lands, and take stone and soil from them, is void as a contract by the statute of frauds because from its nature and terms it is not to be performed within one year. Cayuga R. R. Co. v. Niles, 13 Hun, 170. And see Doa/y. N. Y. Cent. R. R. Co., 53 Barb. 250. So, of a verbal contract by a rail- road company to support the widow of a person killed by one of its trains, and her three minor children during her life. Deaton v. Ten- nessee, etc., R. R. Co., 12 Heisk. (Tenn.) 650. And a parol promise to pay a father |100 for naming his infant son for the promisor, the money to be deposited in a certain savings bank, in four equal annual install- ments, is a promise not to be performed within a year, and so void by the statute of frauds. Parks v. Prancis, 50 Yt. 626 ; S. C, 28 Am. Rep, 517. And see Stone v. Emerson, 10 Yt. 338. So, where L. let the use of his mare for breeding purposes to B., the owner of a stud horse, under the following parol agreement : B. to pay a specified sum for the colt, if one should be foaled, the mare to re- main in L.'s possession, and he to Jkeep the colt until it became four or six months old. A colt having been raised from the mare, B. de- manded it after it became six months old, tendering the agreed sum, but L. refused to let him have it, whereupon B. brought an action of replevin ; but it was held that the agreement was void, as being one which from its nature could not be performed within a year, and that B., therefore, had no right of action. Loekwood v. Barnes, 3 Hill> 128. The court said (p. 131) : "As I understand the agreement in this case, the colt was not to be delivered to the plaintiff until it was at least four and perhaps six months old. This, added to the eleven months for gestation, would make the whole period which was to elapse before the contract could be completely executed fifteen or sixteen months. It appears, then, that by the terms of the agreement it was not to be performed within a year, and the fact of part performance within that time will not aid the case." STATUTE OF FEAUDS. 249 Contracts not to be perfoimed within one year. The defendant, on the seventeenth or eighteenth of April, agi'eed with the plaintiff, a boarding-house keeper, for rooms and board for him- self and family for one year from the first day uf May following, at a certain amount per week for the rooms, and another sum per week for board. The defendant left before the end of the year, and the plaintiff sued him to recover the stipulated price of the rooms to the end of the year, but it was held that the relation of landlord and tenant did not exist between the parties, and also that the contract was void because it was not by its terms to be performed within one year. Wilson v. Martin, 1 Denio, 602 ; Spencer v. Halstead, id. 606. By a parol agreement between the plaintiff, who was a boarding- house keeper, and the defendant, the defendant agreed to pay to the plaintiff, for the board of himself and his hired man, and accommoda- tions for his horse, the sum of £200 a year, from a specified day, the agreement to be terminable by a quarter's notice on either side. In an action against the defendant for a breach of his agreement, by re- fusing to become an inmate of the boarding-house, it was held that the agreement, though unwritten, was valid, and the action maintainable, and that it was not a contract for an interest in or concerning lands, within the statute of frauds. Wright v. Stavert, 2 Ell. & E. 721. The defendant, in January, agreed by parol to clear a piece of wood land for the plaintiff, and partly to fence one end of it, which the plaintiff was to complete, the whole to be done in one year from the ensuing spring, when the defendant was to put in a crop which, with the wood and timber, except that used for the fences, he was to have for his compensation. In an action against the defendant for the non-performance of the agreement, it was held to be within the statute and void. JBroadwell V. Getman, 2 Denio, 87. The court said : " The word ' agreement,' as used in this section, signifies ' a mutual contract on consideration between two or more persons,' and ex vi termini (from the force of the term), includes the several parties to the contract and their re- spective stipulations, every thing, indeed, which is to be done on both sides. In this case there were mutual stipulations between the parties ; the defendant was to clear the land and in part make a fence at one end of the lot. This fence was to be completed by the plaintiff, and he stipulated that the defendant should have all the timber cut on the land except what might be required for the fence, and also the use of the land for a summer crop in 1842. As this agreement was made in January, 1841, and could not be completely executed until the close of 32 250 STATUTE OF FEAUDS. Contracts not to be performed within one year. the season of 18i2, it was within the statute, and not being in writing and signed, was void. Upon this point it would seem to be difficult to raise a doubt upon the terms of the statute. An agreement is an entire thing, and where that cannot be completely executed, on hoth sides, until more than a year has elapsed, the case falls within the express words of the enactment. It is also within its spirit for ' the mischief meant to be prevented by the statute was the leaving to memory the terms of a contract for a longer time than a year. The persons might die who were to prove it, or they might lose their faithful recollection of the terms of it.' " The court then notices a rule which has been stated by some elementary writers, founded upon English decisions, which is, that " where all that is to be done by one of the parties is to be done within one year, the case is not within the statute." The exist- ence of any such rule in this State is denied, and the court said: " Every verbal contract which is not to be performed within a year from the making thereof is declared to be void. Although the terms of the agreement may require full perfoi-mance on one side within a year, I do not see how this can exclude it from the statute, the other side being incapable of execution until after the year has elapsed. The agreement is entire, and if it cannot be executed fully on both sides within the year, I think it is void. What difference does it make that one party can, while the other cannot, complete the contract within a year ? Such an agreement is not, in terms, excepted from the statute, and the reason for the enactment applies to it with full force. But it is unnecessary to pursue this subject, and I dismiss it with the remark that, although where one party has fully performed on his part within the year, the agreement may be void, still he is not remediless, for he may maintain a general indebitatus assumpsit against the party who refuses to proceed further under the contract, and thus recover a com- pensation for what has been advanced and received upon it." Where a verbal contract is made by one person to enter into the ser- vice of another for one year, but the agreement is made a week before the time for the commencement of the year's service, the contract will be void. Wanes v. Homer, 2 Hilt. 116. So where the contract is made two or three weeks or months before the time for the commence- ment of the year's service, the contract will be void. Amhwrger v. Marvim,, 4 E. D. Smith, 393 ; Little v. Wilson, id. 422. A contract was made on Sunday, the twenty-third of March, for the hiring of the plaintiff for one year's service, which was to commence Monday, the twenty-fourth of March, and £20 was to be paid on ac- count. On Monday the plaintiff received the £20 and gave to the STATUTE OF FRAUDS. 251 Contracts not to be performed within one year. defendant a receipt dated the twenty-fourth of March, and stating in the receipt that this sum was received on account of salary for keeping books from Lady day for twelve months. The jury found that there was a contract made on Monday, the twenty-fourth, for a year's service from Tuesday, the twenty-fifth of March, and gave the plaintifE £60 as damages, and the court held that it was clear that there was a contract on Monday for a year's service from that day, and that such contract was valid. Cawthorne v. Cordrey, 13 J. Scott (N. S.), 406. It was also held that the statement in the receipt that the hiring was from Lady day to Lady day was not conclusive, but might be explained and corrected by the verdict. lb- See, also, Dixon v. Frisbee, 52 Ala. 165; S. C, 23 Am. Eep. 565. A verbal agreement to work for another for several years is a pal- pable instance of a yod contract. McGluchy v. Bitter, 1 E. D. Smith, 618 ; Drummond v. Burrell, 13 Wend. 307 ; Shute v. Dorr, 5 id. 204 ; Ellicott v. Peterson, 4 Md. 476 ; Mnery v. Smith, 46 N. H. 151. A contract for personal services which, by the terms of the contract, are to continue for more than one year from the time of making the contract, is void by the statute of frauds, notwithstanding there is a clause in the agreement that either party may terminate it upon a notice of three months. Dobson v. CoUis, 1 H. & N. 81. In such a case the contract is none the less a contract which is not to be performed within a year, merely because it may be terminated within the year. If this were not the rule, contracts for any number of years might be made by parol, provided they contained a defeasance which might come into operation before the end of the first year. lb. Where an agreement is void by this statute no action can be main- tained by either party against the other for the recovery of damages for the breach of the agreement by a refusal to perform it. Drum- mond V. Burrell, 13 Wend. 307 ; Broadwell v. Getman, 2 Denio, 87. And if the parties agreed that the contract should be reduced to writing, which was not done, that will not render the contract vahd, although the plaintifE may have reduced the agreement to writing, and have tendered it to the defendant to subscribe, which he refused to do before the suit was brought. Amburger v. Marvin, 4 E. D. Smith, 393. And the rule is the same where the agreement is reduced to writing but is not subscribed by the parties. Broadwell v. Getman, 2 Denio, 87. It is an elementary principle of the civil law that where the negotia- tions contemplate and provide that there shall be a contract in writing. 252 STATUTE OF FEAUDS. Contracts uot to be performed within one year. neither party is bound until the writing is perfected and signed, Fredericks v. Fasnacht, 30 La. Ann. 117. A distinction is made be- tween those cases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that it shall be reduced to writing, and those in which it Is a part of the bargain that the contract shall be reduced to writing. In the first class of cases, the original verbal contract is in no manner im- paired by the failure to carry out the subsequent agreement to put it in writing. In the second class of cases, the final consent is suspended ; the contract is inchoate, incomplete, and it cannot be enforced until it is signed by all the parties. lb. ; Avendano v. Arthur, 30 id. 321 ; Carling v. Harding, 10 id. 225. A part performance of the agreement within the year will not render it valid, so as to give a right of action for damages for a refusal to per- form the residue of it. Broadwell v. Getman, 2 Denio, 87 ; WUson v. Ma/rtin, 1 id. 602 ; Spencer v. Halstead, id. 606 ; Drummond v. Bur- rell, 13 Wend. 307 ; Shute v. Dorr, 5 id. 204. And if one party has fully performed the agreement on his part within the year, that will not render the contract binding upon the other party. Lochwood v. Barnes, 3 Hill, 128 ; Broadwell v. Getirum, 2 Denio, 87 ; Lower v. Winters, 7 Cow. 268 ; Weir v. Hill, 2 Lans. 278 ; Bartlett v. Wheeler, 44 Barb. 162. When the agreement is void by the statute, but one of the parties has performed it partially on his part, and the other party refuses to permit him to complete the contract, or if he discharges him from ser- vice, if the contract is for personal labor, such person so prevented or discharged may recover the actual value of the services rendered, or the value of such performance so far as it is completed, whatever that value may be. Nones v. Homer, 2 Hilt. 116 ; Little v. Wilson, 4 E. D. Smith, 422 ; Broadwell v. Getman, 2 Denio, 87 ; Lochwood v. Ba/rnes, 3 Hill, 128 ; Bonesteel v. Van Etten, 20 Hun, 468. Where a verbal contract is entered into for the work and labor of one of the parties for a year, to commence at a future day, an entry upon the employment, with the acquiescence of the employer, but without a new contract, does not take the case out of the statute, and the employer will not be liable under the contract. Oddy v. James, 48 N. Y. 685 ; Turnow v. Hochstadter, 7 Hun, 80. Where the agreement is void, but it has been partially performed, and it is terminated by the assent of both parties, or where the party who fails to perform the agreement does so in pursuance of the original terms of the agreement, he may STATUTE OF FEAUDS. 253 Contracts not to be performed within one year. recover the actual value of the services rendered. Shute v. Dorr, 5 Wend. 204. When a person has entered into an oral agreement to work for an- other for a number of years for a fixed compensation, to be paid at the end of the time specified, and has fully performed the contract on his part, he cannot repudiate the contract upon the ground that it was void under the statute, and recover for the services rendered as upon a quantum meruit. Van Valkenburg v. Crqfut, 15 Hun, 147. A party is not at liberty to repudiate a contract as void under the statute, and recover on a quantum meruit until the other party is in default. lb. The default of the defendant or his refusal to go on with the contract is recognized as an essential condition of the right to recover for ser- vices rendered or money paid under any description of contract void by the statute of frauds. Galvin v. Prentice, 45 !N". Y. 162 ; S. 0., 6 Am. Bep. 58 ; Erben v. Lorilla/rd, 19 N. Y. 302, 304 ; Burlvngame V. Burlingomie, 7 Cow. 92 ; Kidder v. Runt, 7 Pick. 328 ; Thomp- son V. Oould, 20 id. 134, 142 ; Campbell v. Campbell, 65 Barb. 639. When the contract is entire and one party is willing to complete the performance, and is not in default, no promise can be implied on his part to compensate the other party for a part performance. Oalvim, v. Prentice, 45 N. Y. 162 ; S. C, 6 Am. Eep. 58. An implied promise to pay for part performance can arise only when the party sought to be charged has had the benefit of the part performance, and has himself refused to proceed, or otherwise prevented or waived full per- formance. Munroe v. Butt, 8 Ell. & Bl. 738 ; Smith v. Brady, 17 If. Y.,173. Or where, after the making of the contract, full perform- ance has been rendered impossible by death, or otherwise, without fault of the contracting party. Wolfe v. Homes, 20 N. Y. 197 ; Gal- vin V. Prentice, 45 id. 162. But if a person pays money, or renders service, or delivers property upon an agreement condemned by the statute of frauds, he may recover the money paid in an action for money had and received, and he may recover the value of his services and of his property, upon an implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement, and the other party has repudiated or refused to perform it. Day v. JVew Fork Central E. B. Co., 51 N . Y. 583 ; Gillet v. Mayna/rd, 5 Johns. 85 ; Kim^ V. Brown, 2 Hill, 485 ; Cooh v. Doggett, 2 Allen, 439 ; Eicha/rds V. AUen, 17 Me. 296. In the cases in which there has been apart performance of the agree- ment, and the party so performing lawfully quits the work before its eompfetion, with the consent of the other party, or for any legal cause; 254 STATUTE OF FEAUDS. Contracts not to be performed within one year. or where he is wrongfully discharged by the other party, he is entitled to recover what his services are worth. Little v. Wilson, 4 E. D. Smith, 422. And in the absence of any other evidence of value, he may recover according to the contract-price. Nones v. Homer, 2 Hilt- 116 ; McOlucky v. Bitter, 1 E. D. Smith, 618. The defendant need not plead the statute of frauds as a defense. A general denial of the complaint will be sufficient, because in that case the plaintiff nrast prove all the facts of his case, and if he does not pro- duce a written subscribed agreement in evidence at the trial, the action will fail. Amburger v. Marvin, i E. D. Smith, 393 ; Broadwell v. Oetman, 2 Denio, 87. See Marston v. Sweet, Q& N. Y. 266. And see Pleadings ; Statute of Frauds. It has been already seen that the contract must be one which, by its terms, is not to be performed within one year. Ante, 247. If the perform- ance of the contract within one year depends upon a contingency which may or may not happen within a year, the contract will be valid. Where a verbal contract was made on the 1st day of October, 1828, by which a party agreed to furnish timber, and build and finish a house before the close of the year 1829, this was held to be a valid contract, since the house might be built within the year ; and, to render the agreement void, it must have provided that the house should not be completed within the year. Plimpton v. Curtiss, 15 Wend. 336. So where, by the terms of a verbal promise, it was to be performed as the promisor received the amount secured by a mortgage which he had against a third person, it was held that the promise was valid, though the mortgage did not become due until more than a year there- after. Artoher v. Zeh, 5 Hill, 200. In that case the money might have been paid at any time by an ar- rangement between the mortgagor and tlie mortgagee, and, therefore, there was no agreement which, by its terms, was not to be performed within one year. The defendant promised to pay the plaintiff $2 a year for his services as a minister ; and it was shown that he had paid that sum in half-yearly payments until two years before the action was brought, and that the plaintiff continued preaching until the action was brought. The jury rendered a verdict for the plaintiff for $4, which was affirmed by the Supreme Court. Moore v. Fox, 10 Johns. 244. The court placed the right of recovery upon the ground that the services were to commence immediately ; that the payment of the sums in half-yearly installments authorized the jury to infer that the agreement was to be performed each half year ; and that the circumstances were in the na- ture of a request that the plaintiff should preach, and that the defend- ant would pay the sum agreed therefor. STATUTE OF FRAUDS. 255 ' Contracta not to be performed within one year. An agreement was made between the overseers of the poor of a town and an individual, by which the latter was to support a bastard child until it arrived at the age of five or six years, or so long as the child should remain chargeable to the town, at a stipulated price per week, the payment for the support to be made weekly if desired ; and it was held that such individual could recover the value of such support so long as the child was kept under the arrangement ; and it was also held that either party could terminate the contract by a notice to the other. McLees v. HaZe, 10 Wend. 426. The court held that if the agreement had been that the child should be supported for five or six years, and that the whole sum to be paid therefor had been made payable at the end of that time, it would have been void. But the case was decided upon the ground that there was a contingency upon which the contract might be terminated at any time, viz., that the child might not continue chargeable to the town, and also that the contract might, by its terms, be performed each week, since the payment was to be made weekly if demanded. There is another ground upon which the decision might have been founded, because the right of recovery in the case did not depend upon the question whether the contract could have been enforced. It had been seen that there may be a recovery for services which are rendered under a contract which is void by the statute, although no action could be maintained for a breach of such an agreement. Ante, 252. The last two cases have been noticed more fully than would be neces- sary, were it not for the fact that they are sometimes erroneously cited to prove that a contract which is not to be performed within a year is valid, notwithstanding the statute, and the various decisions under it. The statute of frauds, as now interpreted by the courts, does not in- clude agreements which may or may not be performed within one year from the making, but merely those which within their terms, and con- sistent with the rights of the parties, cannot be performed within that time. Russell^. Slade, 12 Conn. 455 ; Southwell v. Beezley, 5 Oreg. 143, 458 ; Thomas v. Hammond, 47 Tex. 42 ; Blackenny v. Ooode, 30 Ohio St. 350 ; Duff v. Snider, 54 Miss. 247 ; Dresser v. Dresser, 85 Barb. 573 ; Walker v. Johnson, 96 U. S. (6 Otto) 424 ; McPherson v. Cox, id. 404 ; Ridley v. Ridley, 34 Beav. 478. If the agreement may consistently with its terms be entirely performed within the year, although it may not be probable or expected that it will be performed within that time, it is not within the condemnation of the statute. Kent V. Kent, 62 N. T. 560 ; S. C, 20 Am. Rep. 502 ; Blair, etc.. Land Co. v. Walker, 39 Iowa, 406. 256 STATUTE OF FEAUDS. Contracts not to be performed within one year. It has been repeatedly held that a contract which, by its terms, is to be performed at the death of one of the parties is not within the pro- vision of the statute of frauds which requires contracts, not to be per- formed within a year from the making thereof, to be in writing. Blandmg v. Sargent, 33 JS". H. 239 ; TTpdyke v. Ten Broeck, 3 Vroom (N. J.), 105 ; I^rost v. Tarr, 53 Ind. 390 ; Hutchinson v. Hatohinson, 46 Me. 154 ; Biddle y. Backus, 38 Iowa, 81 ; Kent v. Kent, 62 N. T. 560 ; S. C, 20 Am. Eep. 502. An agreement between the grantor of lands and the grantee, that the latter, in consideration of the conveyance, shall support the former for life, is not within the statute, but may be oral. Harder v. Harper, 57 Ind. 547. And see Schell v. Plumb, 46 How. 11 ; S. C, 16 Abb. (K S.) 19 ; affirmed, 55 K Y. 592 ; Dresser V. Dresser, 35 Barb. 573. The principle upon which the decisions proceed is, that the death of such party is a contingency which may occur at any time, and that, therefore, the agreement is not one which, by its terras, is not to be performed after the expiration of one year from the time of making the contract. Quachenbush v. Ehle, 5 Barb. 469, 473 ; Wells v. Horton, 4 Bing. 40 ; Thompson v. Gordon, 3 Strobh. 197. A parol agreement that a fire policy shall be renewed from year to year, and until it is terminated by a notice from either of the parties to the other, is valid. First Baptist Church v. Brooklyn Ins. Co., 19 N. Y. 305. The court said (page 307) : " It is not the meaning of the statute that the contract must be performed within a year. If it can be so performed consistently with the language in which the par- ties have expressed themselves ; in other words, if the obligation of the contract is not by its very terms, or necessary construction, to endure for a longer period than one year, it is valid agreement, although it may be capable of an indefinite continuance. An agreement which either party can terminate at any time by a notice to the other may be binding so long a« the notice is not given, biit it is not within the language or policy of the statute. See S. C, 28 N. Y. 153. A verbal contract " to continue as long as the parties are mutually satisfied " is not within the statute, as it might be performed within one year. Green v. Harris, 9 R. I. 401. So of an agreement to print and sell the products of H.'s mill, " to continue two years or longer, if necessary, until H. made the net profit of $50,000." Hodges V. Bichmond Manuf. Co., 9 id. 482. Nor is a parol contract not to carry on a trade in a certain village within the statute, as it may be wholly performed within one year by the death of either party. Bich- ardson v. Pierce, 7 id. 330 ; Worthy v. J(mes, 11 Gray, 168 ; Blamr STATUTE OF FRAUDS. 257 Promises to answer for the debt, default or miscarriage of another. chard V. Weeks, 34 Vt. 589. An oral promise made by an inventor to a capitalist to obtain letters-patent for an invention, the agreement not appearing to be impossible of performance within a year, is not within the statute. Somerby v. jBuntin,llS Mass. 279; S. C, 19 Am. Rep. 459. So, an agreement that cattle, delivered by one of the parties to the other, shall continue to be the property of the former until paid for, may be performed within a year, and therefore is not invalid under the statute. £^sty v. Aldrioh, 46 N. H. 127; Qromt v. Pendery, 15 Kans. 236. And so of a contract to sell one thousand cords of wood, or so much thereof as the seller could cut and deliver, at a specified price per cord, no time for performance being fixed. Van Woert v. Albany, etc., H. R. Go., 67 N. T. 538. And it is held that an agree- ment made in consideration of a deed of land, to pay a debt of the grantor, need not be in writing, although not to be performed within a year. Berry v. Doremus, 1 Vroom (N. J.), 399. So an agreement connected with a leasing of lands, that the tenant wiU " during the term " (three years) erect a fence, is not within the statute, since it may be performed within the first year. Mavley v. Noblett, 42 Ind. 85. An oral contract for the leasing of real estate for a year is valid although, by the terms of the agreement, the term is not to commence until several months after the time of making the contract. Young v. Dake, 5 N. T. 463 ; Beear v. Flues, 64 id. 518 ; Mason v. Breslin, 9 Abb. (N. S.) 427 ; S. C, 2 Sweeney, 386 ; 40 How. 436. The reason for this is, that the case is governed by the statute in relation to the sale of real estate, or of some interest therein, and that the statute as to the performance of contracts within one year has no application to the case of a lease of real estate. § 3. Promises to answer for the debt, default or miscarriage of another. The statute upon the subject has been already quoted. Ante, 239, This statute appears to be one which need not cause any great difficulty in its application to practice, and yet few questions have perplexed the courts more than those arising upon its true con- struction. A careful examination of the subject will show that the main difficulties which have arisen in the, matter have been created by the courts themselves, and have not been caused by any inherent in- tricacy in the statute itself. The statute renders void those oral promises which are made for the answering for the debt, default or miscarriage of another person. And, under this statute, tlie sole question which can arise upon that point in any case is, does the promise assume to answer for the debt, default 33 258 STATUTE OF FEAUDS. Piomises to answer for the debt, default or miscarriage of another. or miscarriage of another person. If such is the character of the promise, it is clearly within the statute and void. In some of the early cases under the English statute of frauds the courts introduced two words into the discussion, which are not to be found in the statute. Those words were "original" and "collateral." And, instead of determining whether a given promise was one which assumed to answer for the debt, default or miscarriage of another person, the inquiry made was, whether the promise was an original or a collateral one. If it was determined to be an original one, it was held not to be within the statute, and was valid ; bat if it was a collateral one, it was held to be within the statute, and void. These words are sometimes appropriately used for expressing the character of the promise, but they are frequently ambiguous in their application, and hence their use would inevitably lead to error. An original promise properly signifies the first promise which a party makes ; and, in its common use by the courts, it was also employed to signify a promise which a person makes on his own behalf, as distinguished from a promise to answer for some other person. It will be evident, however, that courts cannot properly use the word "original" as synonymous with the statute language of a promise to answer for the debt, etc., of another person. Suppose that A. is indebted to B. in the sum of $100, and that, subsequently, 0. enters into an oral agreement to pay this debt, for a sufficient consideration advanced ; if 0. was not originally a party to the arrangement between A. and B. in the creation of the debt of $100, nor liable for its payment, it is evident that the promise of C. to pay it is an original promise, in the sense that it is his first promise ; but although it is an original promise, it is none the less a promise to pay the debt of A., a third person, and, therefore, directly within the language and the spirit of the statute. In such cases it is useless to determine whether the promise is an original one or not, so long as it is clear that it is a promise to answer for the debt, etc., of another person. The term collateral promise properly signifies one which runs with another promise, and as an auxiliary or guaranty. But the statute does not use this word, and the language of the statute is not synonymous with the word " collateral." It is true that in some instances the word " collateral " will properly express the nature of a given promise ; but that does not by any means show that the word is synonymous in all instances. If A. is about to purchase goods of B., and C. is present at the time, and promises B. that he will pay for the goods delivered to A. if he does not pay for STATUTE OF FEAUDS. 259 PTomiaes to answer for the debt, default or miscarriage of another. them, this may be said to be a collateral promise with that of A. to pay for the goods. And, in this instance, it is also a promise to pay for the default or miscarriage of another person. But it is also an origi- nal promise, because it is the first promise ; so that it is literally an original promise as well as a collateral one. It is evident, however, that the com:ts need not decide whether such a promise is an original or a col- lateral one, since it is sufficient to determiae that it is a promise to answer for the default of another person, which renders it void unless in writing. The word "collateral" has been generally used by the courts to signify a promise which is not for the liability of the promisor, but for the debt, etc., of another person, and in that sense it wiU not lead to the errors which have arisen from an improper use of the word "original." The improper use of these words as substitutes for the statute language naturally led to another en-or, which is of most mischievous conse- quence in its effects upon the construction of the statute. It is familiar legal learning that, at the common law, and before the statute of frauds was enacted, a promise by one person to pay the debt of another would not be binding, whether verbal or written, unless there was a considera- tion to support the promise. The statute of frauds has merely required that the promise and the consideration for such promises shall be stated in writing, and be subscribed by the party to be charged upon such promise. But the statute does not require this unless the promise made is one which assumes to answer for the debt of another person. If the promise is made by a person for the payment of his own debt, the stat- ute does not apply. The fallacy which the word original promise causes is, therefore, evident ; because, if the courts hold that every original promise is valid, because it is not within the statute, it is clear that every promise which one person makes on assuming to pay the debt, etc., of another person, is in one sense an original promise, and it must, therefore, be valid because it is an original promise. But this is not all, for the error was carried still farther. If an original promise was founded upon a new consideration advanced to the promisor, or for any other sufficient consideration, it was called an original agreement and not within the statute. Two material considerations are overlooked in such a construction of the statute, for, in the first place, the new con- sideration is nothing more than the common law required before the statute, and in the second place, though the promise is original in the sense that it is the first promise of the promisor, it is not the less a promise to answer for the debt, etc., of another person, and therefore directly within the statute. Every promise which one person makes to 260 STATUTE OF FRAUDS. Promises to answer for the debt, default or miscarriage of another. answer for the debt, etc., of another person is a new or original agree- ment on his part, and it is not binding unless it is founded upon a suf- ficient legal consideration. But the statute of frauds adds to this that the promise and the consideration musb be evidenced by a written sub- scribed agreement. The time of making the promise is not in the least material, if the promise is clearly one to answer for debt, etc., of an- other person. The promise may be made before the debt of the prin- cipal is created, or at the same time, or subsequently to it, but the same rule of construction applies in each case. A promise to pay the future debt of another person which has not yet been contracted is none the less a promise to pay the debt of a third person ; and so of a promise which is made at the time the debt is cre- ated, or of one made subsequent to its creation. Two classes of cases may be noticed here to prevent an erroneous impression in relation to what has been said, though they will be more fully explained in a sub- sequent place. If A. promises to pay a merchant for certain goods, if he will sell them to B. and B. does not pay for them, this wiU be a good ground of action against A., if the promise is reduced to writing, and the merchant, on the faith of the promise, furnishes the goods to B. who does not pay for them. So, if A. requests a merchant to deliver goods to B., and A. orders them charged to himself, in this case he is liable, because the sale of the goods is to himself, although the deliv- ery of them is to another person by his orders. The construction which the courts have sometimes given to the statutes has promoted the very mischief which the enactment of the statute was designed to prevent. The obvious intent of the statute is, that no person shall be made liable to answer for the debt, default or miscarriage of another person unless his promise is reduced to writ- ing and subscribed by him, and also that the written promise shall show a consideration for the promise. If the intent of the statute is carried into efEect, there vrill be little danger of frauds and perjuries in charging one person with the debts, etc., of another; and the reason is obvious, since there must be a written subscribed promise produced before the plaintiff can recover ; so that forgery must be added to fraud and perjury before any person can be in danger of being compelled to pay the debt, or answer for the default or miscarriage of another. But, if the construction as to original promises is to obtain, as it has been applied in some cases, the statute is a mere dead letter, so far as its value relates to a prevention of frauds and perjuries. Under such a rule no fraudulent plaintiff would claim that the de- fendant was liable upon a promise to answer for the debt, etc., of a third person, because, in that case, a written subscribed promise would STATUTE OF FEAUDS. 261 Promises to answer for the debt, default or miscarriage of another. be indispensable to a recovery ; for it is clear that an express verbal promise would not make the defendant liable. But, if it is established as a rule of law that a promise to pay the existing debt of another can be enforced through the medium of an original, verbal promise, founded upon a new consideration, the value of the statute must be materially impaired if not rendered compara- tively useless. Suppose that A. should trust B. with goods, which are not paid for by B. as he agreed, it is clear, from all the cases, that 0. could not be made liable upon a verbal promise to A. that he would pay for the goods if B. did not. If, however, the rule is established that C. may be made liable to A. upon the verbal promise to pay the debt of B., if the promise is founded upon a new consideration, the statute is effectually repealed by judicial construction, because that was the rule at the common law before the statute was enacted ; and the sole object of the statute was to require such agreements to be reduced to writing. Such a construction would let in all the mischiefs which the statute would prevent if it was carried into effect according to its actual intent. There would be nothing to prevent the grossest frauds and perjuries in proving those so-called original promises, and those new considerations, which would be made available whenever it was desired to charge one man with the payment of a debt due from another. From the foregoing remarks, it is evident that the words "original" and " collateral " ought never to be used as a test to determine whether a given case is void by the statute ; but that the sole inquiry should be, is the promise one which assumes to answer for the debt, default of miscarriage of another; if it is, the promise is void unless reduced to writing and subscribed by the party to be charged upon it. See opinion of court in Mallory v. Oillett, 21 K Y. 414, 415, 416. The cases which have been decided in relation to this statute are very numerous, and there are several of them which are not consistent with other de- cisions nor with the statute itself. No attempt will be made, there- fore, to reconcile conflicting decisions, and no more cases will be cited than are sufficient to show what the settled rules of construction are in relation to the different classes of cases decided. The remarks which have been made will seem to suggest the true test of the value of a decision which turned upon the words " original " or " collateral " promise. That class of cases which stands upon the principle that a verbal promise to pay an existing debt of another person is valid, if founded upon a new consideration, cannot be supported unless the statute is disregarded. To illustrate ; suppose that A. owes B. a debt which has 262 STATUTE OF FKAUDS. Promises to answer for tlie debt, default or miscarriage of another. been due for a year, and that 0., in consideration of $1 paid to him by B., the creditor, verbally promises to pay the debt of A., it is entirely clear that this promise is one for the payment of the debt of another person, and therefore void. There can be no doubt but that the agreement would be binding if it were reduced to writing and sub- scribed by C, since the consideration is legally sufficient. But a con- sideration may consist of something else than a benefit to the promisor ; for a detriment to the person to whom the promise is made is as valid as one in which the promisor is benefited. Vol. 1, 190. And if a creditor should forbear the collection of a debt of his debtor, at the request of a third person, who should, in consideration thereof, promise to pay the debt, this would be a sufficient consideration to make such third person liable. Id. 199. But this new consideration would not make a verbal promise binding within the statute. The law does not show any partiality for any particular consideration for a promise, if the particular consideration is a legal and sufficient one. And, therefore, there is not in reality any difference in principle as to consideration, whether it is a benefit to the promisor, or a detriment to the promisee. Any consideration which is sufficient to sustain a promise to do any other act is equally valid to sustain a promise to pay the debt of a third person. But that still leaves the statute in full force, which requires that the promise shall be in writing, and showing a considera- tion, etc., or it is void. There are some cases in which the effect of a verbal promise is to pay the debt of a third person, and in which the promise is held to be binding, although it is merely verbal. Suppose that A. is indebted to B. in the sum of $100, and that A. then sells and delivers a horse to C, who in consideration of the horse promises verbally that he will pay $100 to B. ; the agree- ment, if performed, would be to pay the debt due from A. toB., audit may be said that the verbal promise of C. was to pay the debt which A. owed to B. This, however, is not strictly the real character of the promise. It is true that one effect of a performance of the promise would be the payment of that debt ; but that is not a full statement of the transaction. For C, by the purchase of the horse, created a debt against himself in favor of A. , which he was legally bound to pay to some one, and the law permits the payment to be made to such person as A. may designate. For this reason an action may be maintained by B. against C, to recover the purchase-price of the horse, although the effect of such transaction is to satisfy the debt due from A. toB. And such an action could also be maintained by B. against C, although there were no debt due from A. to B. The practical result of such agree- STATUTE OF FEAUDS. 263 FromiseB to answer for the debt, default or miscaTriage of another. ments is that the party promising merely pays his own debt in a par- ticular manner, and the fact that it happens to pay the debt of a third person does not invalidate the transaction. And it is settled by numerous cases that when a debtor sells property, or delivers money to a third person, in consideration that he will pay an agreed sum to the creditor of such debtor, such transaction is valid and the creditor may recover the sum agreed upon. Bark&r v. BucMm, 2 Denio, 45 ; Lawrence v. Fox, 20 N. Y. 268 ; Wyman v. Smith, 2 Sandf. 331; Farley v. Clevelcmd, 4 Cow. 432; S. C, 9 id. 639; FUwood V. Monk, 5 Wend. 236 ; StiUweU v. Otis, 2 Hilt. 148 ; Seamcm V. Hashrouck, 35 Barb. 151 ; Ba/rlow v. Myres, 64 IST. T. 41 ; S. C, 21 Am. Kep. 582 ; Brown y. Cwrran, 14 Hun, 260; Riaardy. Sanderson, 41 N. Y. 1Y9 ; Freemam, v. A uld., 44 id. 50 ; Hutchings v. Mimer, 46 id. 458; S. C, Y Am. Eep. 369; Burr y. Beers, 24 id. 1Y8; LitUe V. Bamks, 20 Hun, 143. But a mere stranger cannot claim the benefit of a contract between other parties. To give a third party, who may derive a benefit from the performance of the promise, a right of action on the promise, there must be, jvrst, an intent by the promisee to secure some benefit to the third party ; and, second, some privity between the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally. Vrooman v. Turner, 69 N. T. 280 ; S. C, 25 Am. Eep. 195; Smith T. Cross, 16 Hun, 487. Thus a promise for a valid consideration by A. to B. gives no right of action to 0., he being neither privy to the contract nor to the consideration unless it was made for his benefit, and he was the party intended to be benefited ; the fact that a benefit would inure to him from the performance is not sufficient. Simson v. Brown, 68 N. Y. 355 ; Gashman v. Henry, 55 How. 234. In addition to the requirements above stated, the promise must be valid as between the promisor and promisee. A person not a party to the promise, but for whose benefit the promise is made, cannot maintain an action to enforce the promise, where the promise is void as between the promisor and promisee for fraud or want of consideration, or failure of consider- ation. Dunning v. Leavitt, 85 N. Y. 30. Where the promise is to pay the debt of another, the mere fact that it is supported by a good consideration will not save it from the con- demnation of the statute. In addition the promise must be in writing, and no matter what consideration exists, if the promise is collateral, a writing is the only competent evidence to estabhsh it. Mallory v. OUUtt, 21 N, Y. 412 ; Prime v. Koehler, 11 id. 91. 264 STATUTE OF FKAUDS. Promises to answer for the debt, default or miscarriage of another. But where the promise is not collateral, but original and independent, and arises out of some new and original consideration of benefit or harm moving between the newly contracting parties, the promise is not within the statute and need not be in writing. Leonard v. Yredenr lurgh, 8 Johns. 28 ; Mallory v. Gillett, 21 N. Y. 412 ; Sanders v. Gillespie, 59 id. 250 ; Prime v. Koehler, 77 id. 91 ; Johnson v. Knwpp, 36 Iowa, 616 ; Wymam, v. Ooodrich, 26 Wis. 21 ; Brown v. Brown, 47 Mo. 130 ; Goetz v. Foos, 14 Minn. 265 ; &reen v. Brookins, 23 Mich. 48 ; S. C, 9 Am. Eep. 74. In this class of cases the subsisting liability of the original debtor is no objection to a recovery. And where the purpose of the promise is to secure a benefit to the promisor by relieving his property from a lien, or securing and confirming his possession, the promise is original and not collateral, although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such debt, and although the performance of the promise may result in discharging the debt. Fa/rley v. Cleveland, 4 Cow. 432 ; Mallory v. Gillett, 21 N. T. 412 ; Brime v. Koehler, 77 id. 91 ; CalTcvrhs v. Cha/ndler, 36 Mich. 320 ; S. C, 24 Am. Eep. 593. The rule is well settled, but the application of the rule to the facts of an existing case is not always easy. As an example of the applica- tion of the rules above stated, suppose that the second indorser of a promissory note, before its maturity, should say to the first indorser of the same note, " If you will take and advance on this note, I will see that the maker pays it," this would be a promise to answer for the debt, default or miscarriage of the maker. But if he says " you are not now primarily liable to pay that debt, it is not yours to pay ; but if you will agree with me to become primarily liable, if you make it yours to pay and pay it, I will repay you," and the promisee pays the note in com- pliance with the request, here comes in a new and original consideration of benefit or harm moving between the newly-contracting parties, and the case is not within the statute. Sanders v. Gillespie, 59 Js[. Y. 250. So, a promise by a purchaser of land incumbered by a mortgage, that if the mortgagee will not take advantage of a default by which the entire sum secured becomes due, but would extend the time of payment of the interest then due until the next installment became due, he would then pay both installments, is not within the statute, but is an original undertaking on a new and sufficient consideration moving from the promisee to the promisor, and is binding although the purchaser at the time of the purchase did not assume the payment of the mortgage. Prime v. Koehler, 77 N. Y. 91. An agreement to forbear to sue a debtor is a good consideration for the promise of a third person to pay the debt ; but to render the prom- STATUTE OF FRAUDS. 265 Promises to answer for the debt, default or miscarriage of another. ise obligatory it must be in writing, unless the promise has for its ob- ject a benefit to be derived from the forbearance by the promisor. See Watson V. Eandall, 20 Wend. 201 ; Stem v. Drinker, 2 E. D. Smith, 401. For example, if A. promises to pay the debt of B. in case C. will discontinue a suit for its recovery against B., and C. discontin- ues the suit in consideration of the promise, C. cannot maintain an ac- tion on the promise against A., as it is void by the statute of frauds. Duffy V. Wtmsoh, 42 N. Y. 243 ; S. C, 1 Am. Eep. 514. So, a prom- ise by a third person to pay a judgment, in consideration that the plaintiff in execution will abandon a levy upon the property of the judgment debtor, is void under the statute. Stern v. Drinher, 2 E. D. Smith, 401. It is not sufficient to take the case out of the statute of frauds that the promisee has relinquished an advantage or given up a lien in consequence of the promise, if that advantage has not also directly inured to the benefit of the promisor. Cwrtis v. Brown, 5 Cush. 488. The more recent cases in this State recognize and enforce the distinction be- tween promises to pay the debt of another, entered into for the benefit of the original debtor and in aid of the original contract, and promises which, though in form are promises to pay the debt of a third person, are not made for the purpose of securing or performing the original duty, but for the benefit of the promisor, although such security or performance may be the consequence. In one case, the defendant represented to the "creditor that the debtor had placed sufficient property in his hands to pay the debt, and he promised that if the creditor would extend the time of payment of such debt, he would sell the property and pay him his debt, and also that the property should sell for enough to pay the debt. The credi- tor forebore accordingly, and the defendant was held liable to pay the debt. Lippincott v. Ashfield, 4 Sandf. 611. The court said (page 615 ) : " The promise is not, however, as defend- ant's counsel insists, to pay the debt of another. There are two promises : One to apply property in defendant's hands to pay the debt ; and the otlier, that the property shall sell for enough to pay it. Neither of these promises is a promise to pay the debt of another. The promise by a third person to apply the debtor's own property to pay his debt is not a promise by the third person to pay it himself. The guaranty added to this promise, that the property shall sell for enough to pay it is not a promise to pay it. Neither are both promises taken together a promise to pay the debt, although their effect may be to render the promisor liable for so much of it as the property should be insufficient to pay." See Barker v. Bucklm,, 2 Denio, 45, and cases cited ; Cock v. Moore, 18 Hun, 31. 34 266 STATUTE OF FRAUDS. Promises to answer for the debt, default or miscarriage of another. A promise by a third person to assume and pay a sum due to the plaintiff in consideration of the discharge of the original debtor is held to be an original and not a collateral promise, and need not be in writ- ing. Ba/rker v. Bradley, 42 N. Y. 316 ; S. C, 1 Am. Eep. 521 ; Brown v. Brown, 47 Mo. 130 ; S. C, 4 Am. Eep. 320 ; Wood v. Corcormi, 1 Allen, 405 ; Yale v. Edgerion, 14 Minn. 194 ; Britton V. Angier, 48 JST. H. 420 ; Wa/rren v. Smith, 24 Tex. 484. So, when one undertakes to pay the debt of another, and the motive of the promise is, that, by making such payment, he will also discharge his own debt, the undertaking is not within the statute of frauds, and need not be in writing. Goetz v. Foos, 14 Minn. 265 ; Besshears v. Rowe, 46 Mo. 501 ; Cotterill v. Steveris, 10 Wis. 422. A promise by an employer, for a consideration, that he will make payment of wages as they shall become earned, to a creditor of the employee, upon his demand, is held not to be within the statute. Calkins v. CJumdler, 36 Mich. 320. In such case, as the promisor is himself to receive the ben- efit for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not. lb. But in order to hold one person under his oral promise to pay for goods to be furnished to another, it is held that the creditor must have discharged the recipient of the goods from all liability. He cannot retain an option to claim payment from one or the other, at his future election. Welch v. Marvin, 36 Mich. 59. And see Barden V. Briscoe, id. 254. Where, upon the sale of a promissory note, the vendor warrants that it is good and will be paid at maturity, such guar- anty is not within the statute of frauds, and is valid though not in writing. Milk v. Rich, 15 Hun, 178 ; Mobile, etc., R. R. Co. v. Jones, 57 Ga. 198 ; Wymwn v. Goodrich, 26 Wis. 21 ; Bruce v. Burr, 5 Daly, 510 ; S. C. affirmed, 67 N. Y. 237. So a promise by a vendor of railroad bonds that if one to whom he offers them for sale will buy them, the vendor will guarantee them, so that the buyer shall not suf- fer any loss, is an original undertaking, and is valid though not in writing. Allen v. Eighmie, 14 Hun, 559. So a promise to pay a physician for professional services to be rendered in treating a third person is an original undertaking, and not a promise to answer for the debt of another, which must be in writing. Eddy v. Damidson, 42 Yt. 56. So of a promise by a widow that if a creditor of her husband's estate will forbear to file his claim against the estate, or collect it from the assets, she will pay it herself. Crawford v. King, 54 Ind. 6. So of a promise by one creditor to pay the claim of another against their mutual debtor, in consideration of the forbearance of the latter to con- STATUTE OF FEAUDS. 267 Promises to answer for the debt, default or miscarriage of another. test the validity of a judgment obtained by the former against the debtor. Smith v. Rogers, 35 Vt. 140. And generally, when the evi- dence makes a case of sale wholly on the authority, written or verbal, of the defendant, and wholly on his credit from first to last, he is an original debtor, and the law respecting a promise to answer for the debt, default or miscarriage of another, has no application. MoLudon V. Frost, 57 Ga. 448. Land was conveyed by 0. to the plaintiff as security, for a debt. He reconveyed to 0. upon the pledge to him by the defendant of certain railroad bonds, which the defendant promised to redeem at par within a year, and it was held that the defendant's promise was original and not collateral ; and that, on his failure to redeem, the plaintiff might foreclose and sell the bonds and hold him personally liable for any de- ficiency. Booth V. Eighmie, 60 N". T. 238 ; S. C, 19 Am. Kep. 171. A land-owner, who had engaged with a cropper upon his land to make him certain advances, promised a third person that, if the latter would make advances to the cropper, he, the land-owner, would be responsible for them, and it was held that the promise need not be in writing. Neil V. Bellamy, 73 N. 0. 384. A promise to a debtor to apply to the payment of a particular debt funds of the debtor, received or to be received by the promisor, is not a promise to answer for the debt of another person within the statute of frauds. Price v. Trusddl, 28 N. J. Eq. 200. And see Mitchell v. Griffin, 58 Ind. 559. A written agreement of the defendants to pay for certain bricks to be delivered to a third person, who had contracted to build a house for them, is an original promise. Glidden v. Child, 122 Mass. 483. The contract of a commission merchant, whereby he assumes the responsibility of a factor upon a del credere commission, is not within the statute of frauds relating to promises to answer for the debts, etc., of a third person, and is therefore valid, though by parol. Sherwood V. Stme, 14 K T. 267 ; Wolf v. Koppel, 2 Denio, 368 ; S. 0., 5 Hill, 458. A factor who sells goods under a del credere commission is liable to pay his principal the value of all goods sold. And if he sells goods to insolvent purchasers he is still liable to pay the amount to his own principal. Such a promise is not a promise to pay the debt of the purchaser. The factor assumes a trust when the goods are placed in his hands that he will not sell to irresponsible persons, and that he will in any event pay the amount of such sales as he may make. In such a case he is merely guaranteeing his own con- duct, not that of a third person. lb.; Cartwright v. Oreene, 47 Barb. 9. An agreement made between parties prior to or cotemporaneously 268 STATUTE OF FRAUDS. Promises to answer for the debt, default or miscarriage of another. with their executing a written obligation as sureties, by which one promises to indemnify the other from loss, is not required by the statute of frauds to be in writing to render it valid. Barry v. Ransom, 12 JS". Y. 462 ; FerreU v. Maxwell, 28 Ohio St. 383 ; S. C, 22 Am. Rep. 398 ; Morn v. Bray, 51 Ind. 555 ; S. C, 19 Am. Rep. 742 ; Eonitzhy V. Meyer, 49 N. Y. 571. The reason is that the party promising is already bound as an original promisor by his signature to the instrument, and the indemnity promised is to secure his own default and not the default of another. A parol promise, made without consideration, to indemnify and save the promisee harmless from all damages, by reason of his becoming bail for a third person, is void as being within the statute of frauds. Kingsley v. Balcome, 4 Barb. 131 ; overruling Ghapin v. Merrill, 4 Wend. 657. See BirTcmyr v. Da/rnell, 1 Smith's Lead. Cases, 134 or 371, 383-385, top paging, 5th ed. The statute is not limited to cases in which one person assumes to answer for the debt of another, but it extends to every special promise to answer for the default or miscarriage of another person. There are numerous cases in which parties agree to perform some labor, erect some building, or to do some specified act ; so there are many instances in which some surety is required for the faithful conduct of a clerk, agent, etc. In all such cases a promise to answer for the default or miscarriage of such clerk, etc., or for the performance of the special contract, must be by an agreement in writing or it will be void, not- withstanding there may be a valid legal consideration for the promise. The same rule applies to actions of tort. And a verbal promise that a third person will use a hired horse properly will be void as a promise to answer for the default or miscarriage of another person. A mere written promise which does not show any consideration, and which is not in the nature of a request (Vol. I, 202), will not be sufficient to create a liability to answer for the debt, default or miscarriage of another. Brewster v. Silence, 8 N. Y. 207; Draper v. Snow, 20 id. 831 ; S. C, 6 Duer, 662. A written, signed promise to pay the debt of a third person will be void, if no consideration appears upon the face of the writing, or if the only consideration is a past or executed one which did not arise at the request or upon the promise of the grantor. Fa/rnswcyrih v. Clark, 44 Barb. 601. If the debt, which is guaranteed is founded upon a good con- sideration, that will support the guaranty, if it is made at the same time with the creation of such debt ; but if the debt is one already existent. STATUTE OF FRAUDS. 269 Promises to answer for the debt, default or misoarriage of another. the guaranty will be void, unless there is a new consideration to support it. lb. When it is sought to charge one person with the value of goods delivered to another person, it must be shown that the sole credit was given to the person sought to be charged, and if it appears that the credit was given to the principal and the surety jointly, orthat the surety was not to be liable unless in case of a default by the principal, the surety will not be liable, and his promise is void by the statute, if the promise is a verbal one. Allen v. Soiwff, 1 Hilt. 209 ; Brady y. Saek- rider, 1 Sandf. 514; Dixon^.F razee, 1 E. D. Smith, 35; Ga/rvilleY. Crane, 5 Hill, 483 ; Brown v. Ba/rdshaw, 1 Duer, 199 ; Knox v. JSfutt, 1 Daly, 213 ; Gowdin v. Goitgetrew, 55 N. T. 650 ; Fettit v. Braden, 55 Ind. 201 ; Stoift v. Pierce, 13 Allen, 139 ; Walker v. Richards, 39 N. H. 259. It is always a question of fact to determine to whom the credit was given. And, if the evidence is conflicting upon that question, the find- ing of a jury, or of the justice in their place, will be conclusive. Man- ders V. Crolius, 1 Duer, 206 ; Ghase v. Day, 17 Johns. 114. But, if it appears, by uncontradicted evidence, that the goods were furnished to B. on his application, and that they were charged in account to him, no action can be maintained against A. for the price, notwith- standing A. may have paid a part of the debt, and a verdict against A. in such a case will be set aside as being against evidence. Brown v. BradshoAJO, 1 Duer, 199 ; Brady v. Sackrider, 1 Sandf. 514. The fact that the creditor charged the goods directly to the promisor is not con- clusive on the latter. Gowdin v. Gottgetreu, 55 N. Y. 650. There is a class of cases in which a promise may be binding if it is made before the work is completed. The defendant employed one Cave- nagh to excavate a vault, in front of his house, and Cavenagh hired the plaintiff to do the work. The plaintiff commenced the job and after working one day, he went to the defendant and declined going on with the job unless the latter would pay him. The defendant told him to go on with the job and " he should be paid." A verdict was rendered for the plaintiff at the Circuit, and the General Term affirmed a judgment thereon. Devlm v. Woodgate, 34 Barb. 252. In another case, the plaintiff was employed by G. to build for one S. a machine for crush- ing ore, S. having previously arranged with D. & Co. for payment and commencing work on the machine. Subsequently D. & Co. refused to pay for the machine, and the plaintiff, on being informed of such refusal, declined proceeding under his contract; whereupon the defendant promised, verbally, that if the plaintiff would go on and complete the 270 STATUTE OF FEAUDS. Promises to answer for the debt, default or miscarriage of another. machine, he, the defendant, would pay for it. The plaintiff completed the machine and the defendant was held liable to pay for it. Qumta/rd ^. De Wolf, M Barb. 97. The court held also that the first contract was terminated, and that the agreement of the defendant was a contract made on his own behalf, and not a promise to answer for the debt of another person. So, where A. had contracted to build a house for B., to be paid for when finished, and A. refused to go on and perform the contract because B., after the materials were collected and the building framed, had absconded, and the plaintiff was induced to proceed and finish the building upon the representation of 0. that he had purchased the interest of B. in the work, and upon his promise that he would pay A., it was held that C. was liable to pay for the work done. Kmg v. Despard, 5 "Wend. 277. So where a materialman refused to furnish materials for a house until the owner promised to pay for them, which the owner did, he was held liable to pay for the materials obtained by the contractor who bargained with the defendant to build his house. DarUngion v. MoGunn, 2 E. D. Smith, ill. These cases which have been cited all show that the work was not completed so as to create a debt in favor of the laborer against the person who made the original contract ; or that the original contract was abandoned by the laborer, and that the work was performed under the new agreement. In most of the cases it appeared too that the work done was for the partic- ular advantage of the person who promised to pay for it. They were cases too which had been submitted to a jury, who had found these facts upon proper evidence, and, as we have seen, their ver- dict was conclusive upon the questions of fact, if sustained by suffi- cient evidence. A collector of a school district levied upon certain property by virtue of a warrant duly issued by the trustees of the district, and the defend- ant agreed with the collector that, if he would leave the property in the possession of the defendant, he would produce the property or pay the tax ; the collector thereupon delivered the property to the defend- ant, who did not produce it because it had been removed ; and it was held that the defendant was liable to pay the amount of the tax to the collector, and that the case was not within the statute of frauds. Hil- lard V. Austin, 17 Barb. 141. Where the defendant signs a written instrument which requests the plaintiff to deliver property to a third person, or if the paper promises to pay for property delivered to a third person, in case the plaintiff will deliver it, such paper contains a sufficient expression of the con- Bideration ; and the defendant will be liable to pay for the goods if STATUTE OF FRAUDS. 271 Promises to answer for the debt, default or miacarriage of another. they are delivered in pursuance of such request or promise. Church V. Brown, 21 N. Y. 315 ; reversing S. 0., 29 Barb. 486. And see Bailey v. Freeman, 11 Johns. 221. A letter written by the defend- ant to G., stating that if the owner of a specified house will let it to G. at a rent named, he will become security for Or., and directing G. to state the sum and to send the papers to the writer for execution, inures to the benefit of the owner on his demising the house to G. on the faith of the letter at the terms specified ; and he can maintain an action upon the promise on the defendant's refusing to execute the proper security. And the letter expresses on its face a sufficient consideration to sustain the promise within the statute of frauds. Waterhury v. Graham, 4 Sandf. 215. A request by the defendant to the plaintiff to attend, as a physician and surgeon, upon a third person, and a promise by the de- fendant 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 defend- ant liable to pay what such attendance is reasonably worth, and his promise need not be in writing to render him liable. Romford v. Hig- gins, 1 Bosw. Ml. But the defendant, in such a case, may, at any time, give notice to the plaintiff that he will not be liable for attend- ance or services subsequently rendered, and on so doing the plaintiff can make no claim on him for services or attendance subsequent to such notice, lb. In an interview between the plaintiff, the defendant, and one H., it was agreed by parol between the three, that H. should do certain work for the defendant for which the plaintiff should pay H. in goods, and that the defendant should pay the amount to the plaintiff in lumber. The work having been done, it was held, in a suit by the plaintiff on the defendant's promise, that it was made upon a good con- sideration and was binding, and also that the promise need not be in writing within the statute of frauds. Mather v. Perry, 2 Denio, 162. It not unfrequently happens that an individual owes a debt which he desires to pay by turning out or assigning a note or account against some third person, in discharge of his own debt, with a guaranty that such note or account is valid and collectible. If the creditor chooses to accept such a note or account as an actual payment of the debt of his debtor, that will operate as a payment of the debt and a discharge of the debtor. But it is not usual for a creditor to accept of such a note or account as an actual payment, although the creditor frequently ac- cepts of such demands when accompanied with a guaranty of payment. The law is now well settled in relation to such transactions. The statute of frauds relating to promises to answer for the debt, 272 STATUTE OF FKAUDS. Promises to answer for the debt, default or miBcarriage of another. default or miscarriage of another applies only where the promisor stands in the relation of a surety for some third person, who is the principal debtor; and where, in an action on a written promise to guarantee the payment of a chattel note, it appeared that the defend- ant transferred the note to the plaintiff, and made the guaranty in con- sideration of moneys paid by the plaintiff for the defendant at his request, it was held that the promise was valid, though it expressed no consideration. Johnson v. Oilbert, 4 Hill, 178. So, where the payee of a note indorsed the same to the defendant, and the latter transferred it to the plaintiff for a valuable consideration advanced by him at the time, and the defendant executed a guaranty of the payment of the note upon a separate paper which did not express any consideration ; it was held that the plaintiff could recover on the guaranty, or that he could recover for money lent and advanced upon an implied as- sumpsit. Tyler v. Stevens, 11 Barb. 485. In another case the plaintiff sold a horse to the defendant, upon an agreement of the latter to de- liver to the plaintiff a good and collectible note of some third person, who was responsible for the amount, which was $200. The defendant subsequently sent to the plaintiff a note made by one P., a stranger to the plaintiff. The plaintiff took the note and laid it away, remarking that he did not know the man. When the note became due P. was in- solvent. It was held that the note was not received and taken by the plaintiff in absolute payment of the price of the horse, but as a condi- tional payment ; and that the note proving to be worthless, the plaintiff could recover the price of the defendant. Torry v. Hadley, 27 Barb. 192. The defendant on making a purchase of a horse agreed to deliver, in part payment, the chattel note of a third person for a wagon, and the defendant told the plaintiff that such third person was good, and he would warrant that the plaintiff would get the wagon when the note became due. The wagon was not delivered, and it was held that the defendant was liable to pay the amount agreed ; that the verbal agree- ment was valid ; that the acceptance of the note without a written guaranty was sufficient, and no waiver of the verbal agreement ; and that the guaranty was to be construed as a guaranty of the payment of the note, and not that it was collectible. Gardell v. McNiel, 21 ]^. Y. 336; Fowler V. Clearwater, 35 Barb. 143. The acceptance by a creditor from his debtor of a bill or note made by a third person on account of the debt does not satisfy it unless the parties agreed that it should be received as payment. Noel v. Murray, 13 N. T. 167. Where the note or bill is received on a precedent debt, the presumption is that it was not taken as payment, and the burden STATUTE OF FRAUDS. 273 Sale of an interest in lands, etc. of establishing that it was agreed to be taken in payment is upon the debtor. lb. But where it is received contemporaneously with the con- tracting of the debt, the presumption is that it was taken in payment, and the burden of proving the contrary rests on the creditor. lb. And see Ton-y v. Hadley, 27 Barb. 192, 196 ; Gibson v. Tobey, 46 IST. Y. 637 ; S. C, 7 Am. Rep. 397. When the agreement is required to be in writing, it must always be legally sufBcient to show on its face that a valid contract exists. New- comb V. Clark, 1 Denio, 226. Where an agreement is made for the benefit of the plaintiff, he may sue upon it although the consideration moved from a third person, and the promise was made to him for the benefit of the plaintiff. Vol. I, 209. And such promises need not be in writing to make them valid. lb. § 4. Sale of an interest in lands, etc. Estates in lands are deemed to be of such importance that the law requires that the transfer shall be in writing and imder seal. And there are but few interests in lands which can be created or transferred without writing. Parties may, however, be so far estopped by their acts and declara- tions in regard to disputed boundary lines as to conclude them as effectually as if there had been a conveyance by deed. Where a boundary line is uncertain, indefinite and disputed, the owners of the adjoining lots may agree upon and estabhsh, by parol, a line, which neither can afterward dispute. Ambler v. Cox, 13 Hun, 295 ; Beits v. Brown, 3 Mo. App. 20 ; Miner v. Mayor of New York, 5 J. & S. 171; Wood v. Lafayette, 46 N. Y. 484; S. C. again, 68 id. 181; Voslmrgh v. Teator, 32 id. 561. And it is equally competent for them to authorize another person to determine such line for them as their joint agent or arbitrator, and the determina- tion of the line by their agent and their assent to such settlement will bind them the same as if it had been determined by themselves. lb. ; Stout V. Woodward, 5 Hun, 340 ; S. C. affirmed, 71 N. Y. 590. But where the boundary line is not indefinite or uncertain, a parol agreement to establish a new line would be void by the statute of ffeuds. Voshurgh V. Teator, 32 N. Y. 561 ; Smith v. MoNama/ra, 4 Lans. 169 ; Baynor V. Timerson, 51 Barb. 517 ; S. C. affirmed, 54 JST. Y. 639. In an action which involved the determination of the true line be- tween adjoining owners, evidence was given by the plaintiff tending to show that, about thirty years previously, the line between the re- spective grantors of the present parties was uncertain and in dispute ; that such grantors orally agreed upon the location of the line, and to 35 274 STATUTE OF FRAUDS. Sale of an interest in lauds, etc- erect a di\(isioii fence on such liue ; that they afterward did erect such fence, and severally entered into possession and occupied up to such line and acquiesced in such location for a reasonable length of time, and until the parties to this action bought and went into possession ; and it was held that these facts, if proved, rendered the line so estab- lished the boundary line between the parties, even as against the true line, though the true line could, at the time of the trial of the action, be determined with certainty. WilUams v. Montgomery, 16 Hun, 50. An oral contract between the owners of adjoining lands which limits the use which one of the owners should make of his lot, or the manner in which he should build upon or occupy it, is within the statute and void. Rice v. Roberts, 2i Wis. 461 ; S. C, 1 Am. Eep. 195. The provisions of the statute are very explicit, and are quite plain when carefully read. " No estate or interest in lands, other than leases for a term not ex- ceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, as- signed, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his law- ful agent thereunto authorized by writing." 3 R. S. 220, § 6, 5th ed. " The preceding section shall not be construed to affect, in any man- ner, the power of a testator in the disposition of his real estate by a last will and testament ; nor to prevent any trust from arising, or being extinguished by implication or operation of law ; nor to prevent, after a fine shall have been levied, the execution of a deed or other instru- ment in writing, declaring the uses of such fine." 3 K. S. 220, § 7, 5th ed. "Every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands shall be void, unless the contract or some note or memorandum thereof, expressing the consideration be in writing, and be subscribed by the party by whom the lease or sale is to be made." 3 E. S. 220, § 8, 5th ed. " Every instrument required to be subscribed by any party under the last preceding section may be subscribed by the agent of such party lawfully authorized." 3 R. S. 221, § 9, 5th ed. The title to lands may be transferred from one person to another by operation of law, as where the lands of a deceased person descend to his heir at law. So trusts may arise by operation or implication of law. And lands may be devised by last will and testament, which need not be under seal. But the general rule is, that there cannot be a transfer STATUTE OF FRAUDS. 275 Sale of an interest in landu, etc. of the title to real estate by way of sale, unless it be bj a deed or other couveyance in writing, and under seal. There is, however, a distinction between an actual conveyance of the land and an executory agreement to convey it. A mere executory agreement to convey must be in writing, but it need not be under seal. So there is also a distinction between the authority of an agent to convey lands, and his authority to make an executory agreement for such sale. The authority of an agent to sell and convey lands must be in writing. Ante, 274, § 6. But an authority to make an executory agreement of sale, or for making any other execu- tory agreement by an agent, in relation to lands, need not be in writing. Ante, 274, § 9 ; Lawrence v. Taylor, 5 Hill, 113. The agreement itself for the sale or transfer of lands, or of an in- terest therein, must be in writing, although the agent of the contract- ing parties need not be authorized in writing to act as such agent in making the contract. Newton v. Bronson, 13 N. T. 587 ; Worrall v. Munn, 5 id. 229 ; Coleman v. Oarrigues, 1 8 Barb. 60 ; Pringle v. Spaulding, 53 id. 17 ; Moody v. Smith, 70 N. T. 598 ; Briggs v. Par- tridge, 64 id, 357, 364. An authority to sell, given to one who is a real estate broker, authorizes him to sign the contract and bind his prin- cipal. Pringle v. Spaulding, 53 Barb. 17; Haydock v. Stow, 40 N. Y. 363. The authority of an agent to sell lands may be established by parol and it will be inferred where the principal adopts the act of the agent. Pringle v. Spaulding, 53 Barb. 17. A contract which is made by an agent without any authority may be subsequently ratified by the principal, and it will then become binding upon him. If the authority of the agent would have been valid without writing, the ratification vdll be valid without writing. Worrall v. Munn, 5 N. Y. 229, 240-246. And if the authority of the agent ought to be in writing and under seal, then the ratification must be under seal. Newton v. Bronson, 13 N. Y. 587. As has been stated in a preceding chapter, an executory contract under seal, executed by an agent in his own name for an un- disclosed principal, cannot be enforced against the latter on proof of parol authority of the agent to enter into the contract, and of the agency, at least in the absence of proof of ratification by the principal. Briggs y. Partridge, 64 N. Y. 357; S. C, 21 Am. Eep. 617. But this does not result from the operation of the statute of frauds, as that statute does not apply to the contract of the vendee, but only to the contract of the party by whom the sale is to be made, or his agent lawfully au- thorized. The vendee's contract need not be in writing. lb.; McCrea y.Ptirmori, 16 "Wend. 469. See ante 274. An unsealed power of attorney will authorize the attorney to sell 276 STATUTE OF FEAUDS. Sale of an interest in lands, etc. lands, but not to make a conveyance. Watson v. ShernuMi, 84 111. 263. Where the parties intend to transfer the title to lands by the instru- ment made, or where the agreement is an executory one for a future conveyance of lands, there is generally no question made whether the contract relates to an interest in lands. But there are many cases in which parties cannot agree upon the question whether the particular agreement which they have made relates to an interest in lands. The difficulty arises from the fact that the parties disagree upon the point whether the subject-matter of the agreement is an interest in real estate. The interest of a person who purchases a pew in a church, although it is a limited and qualified estate, is an interest in real estate, and the contract must be in writing to be valid. In one case pews were sold at auction according to a plan of a church, which had not then been built, and the plans showed the location and the number of the pews, and there was a written or printed paper exhibited, showing the conditions of the sale. The defendant bid off one of the pews at a specified price, which was written upon the plan together«with the name of the bidder, by a person who acted as clerk of the auctioneer. The bidder refused to accept a deed of the pew, and to pay the price which he had bid at the sale, and it was held that the contract of sale was not binding upon him, because such a memorandum, to be valid, must contain every thing necessary to show the contract between the parties, so that there need not be any parol proof to explain the inten- tion of the parties or the terms of the agreement ; and it was held that the conditions of the sale did not constitute a part of the memorandum made, that the memorandum did not show that a pew was sold, nor the names of the parties, nor the terms or time of payment ; and that the agreement was therefore void. First Baptist Church v. Bigdow, 16 Wend. 28. And see Wright v. Weeks, 25 N. T. 153. In another case the defendant agreed to purchase a pew in a church, and he gave his promissory note for the amount agreed upon as the purchase-price. The bargain was verbal on the part of the defendant. The entire agreement on the part of the trustees who sold the pew was printed, and the names of the trustees were printed at the end of the agreement, and not subscribed in writing. This agreement certified that the defendant had purchased a certain pew, giving the number of it, and that the defendant would be entitled to a deed on payment of the promissory note given therefor. It was held that the sale of a pew in a church is a sale of an interest in real estate ; that the memorandum of such sale must show the consideration of such sale ; that the agree- ment must be subscribed by the vendors at the end of the agreement ; and STATUTE OF FRAUDS. 277 Sale of an interest in lands, etc. that a printed signature like the one employed was not a valid signature by the trustees ; that such signatures must be in writing or they will be void ; and that, therefore, there was no consideration for the promissory note given by the defendant, and that no action could be maintained upon it. Yielie v. Osgood, 8 Barb. 130. An agreement for a lease of a pew in a church for a term longer than for one year must also he in writing or it will not be binding. The trustees of a religious society, incorporated under the general act relative to the incorporation of re- ligious societies, have no power to execute an absolute deed of a pew in a church, in fee, without reserving any rent. Vielie v. Osgood, 8 Barb. 130. The interest in a pew is separate from the fee, and a pew may be leased and held distinct from the fee. Woodworth v. Payne, U N. Y. 196. Where a purchaser under a foreclosure sale undertakes to purchase for the benefit of the mortgagor, and thus acquires the title at a price greatly below its value, he will be deemed the trustee of the party for whom he has undertaken the purchase, and, on a tender to him of the purchase-money and interest, he will be compelled to convey the prop- erty to the party equitably entitled. Ryan v. Dox, 34 T^. Y. 307. It is no objection that the agreement by which he undertook to pur- chase for the benefit of the owner of the equity of redemption was not in writing. The law makes him a trustee ex mal^iGio. lb. And see Bowery Nat. Bank v. Duncan, 12 Hun, 405 ; Church v. Kidd, 3 id. 254; S. 0., 5 T. & 0. 454; Morrill v. Cooper, 65 Barb. 512; Trap- hagen v. Burt, 67 N. Y. 30. But see Wheeler v. Reynolds, 66 id. 227. A. made a verbal agreement with B. for the purchase of certain lands owned by the latter, and the purchase-price which he was to pay was $8,000. C. desired to purchase the same lands, and he made a verbal agreement with A. for their purchase, at the price of $8,250, free from all liens or incumbrances. 0. paid the purchase-money as follows : $8,000 to B. and $250 to A. By agreement of the parties, B. deeded the lands directly to C, instead of deeding them to A., and then A. deeding to C. At the time of this agreement between C. and A., and at the time of the execution of the deed from B. to 0., there was an incumbrance of $152.24 on the lands, which C. was compelled to pay. And C. then brought an action against A. to recover the amount paid ; but it was held that the agreement was void because not in writing, and that no action would lie. Baldwin v. Palmer, 10 N. Y. 232. A party to a contract, void by the statute of frauds, who has voluntarily performed a part of it, cannot therefore be compelled to 278 STATUTE OF FEAUDS. tSale of an interest in lands, etc. perform the residue, and this is so although he has performed all that part of the contract whi^h is withia the statute, and the residue, upon which the action was brought, was void only from its connection with the part already performed. lb. And see Ehle v. Judsoii, 24 Wend. 97. After a sale of A.'s land to B., upon an execution, and before the sheriff had executed a deed to the purchaser, it was verbally agreed by C. with A. and B. that 0. should take the land of B., the purchaser at the sheriff's sale, and that C. should pay $600 to A., of which sum C. paid $200, as agreed, and the sheriff executed a deed of the land to B., who conveyed it to C, and the latter afterward sold a part of the land for $600. In an action by A. against C. to recover the $400 unpaid, it was held that the agreement was void by the statute, and that no ac- tion could be maintained. VanAlsUne v. Wimple, 5 Cow. 162. But, besides this objection, there is another which is insurmountable, for intermediate the sale on the execution and the delivery of the deed to the purchaser, though the naked fee remains in the debtor, yet this is not an interest of any value, and therefore it is no consideration for a promise. lb. Where land has been sold by loan officers for the amount due on the mortgage, the property of the owner is altogether divested ; and he cannot, afterward, compel the purchaser to reconvey the land to him, on repaying the purchase-money; and where there has been a previous agreement between the owner and the purchaser, the latter cannot be deemed to have purchased as a trustee for the owner ; and if there were a parol agreement to that effect, it would still be void by the statute of frauds ; and, therefore, where the owner of lands sold by loan officers paid the purchaser a sum of money to release his interest, which was done, he cannot maintain an action for money had and received, to re- cover it back as received unconsciously, whether there were a previous parol agreement or not, in relation to the subject. Sherrill v. Crosby, 14 Johns. 358. A verbal agreement between A. and B., whereby A. is to cut the wood and brush upon the land of B., and to heap the brush, for the wood, A. being allowed until the ensuing winter to draw the wood away by sleighing, is within the statute of frauds, and void as an agreement, although it may operate as a license, which is revocable at any time. Bennett v. Soutt, 18 Barb. 347. Though a parol contract to grant an easement in land is void, yet in certain cases the agreement will be upheld as a license. Oayuga Railway Co. v. Niles, 13 Hun, 170. Where, under a parol contract for the sale of land, the vendee, with the consent of the vendor, in pursuance of the terms of the contract, enters into possession and puts in crops, the invalidity of the contract STATUTE OF PEAUDS. 27» Sale of an interest in lands, etc. to sell and convey does not affect the vendee's title to the crops ; and if the vendor refuses to perform and ejects the vendee, the title of the latter to the crops is not thereby divested. In such case the crops, as between the parties, are not a part of the realty, but chattels. Hajris v. Frinh, 49 N. Y. 24; S. C, 10 Am. Eep. 318. The statute of frauds cannot be invoked by the party who refuses to perform, as against one not in default, for the purpose of invalidating that part of the contract which has been executed, and the latter cannot be compelled to relin- quish any benefit he has acquired from its partial performance. lb. And see Dame v. Dame, 38 N. H. 429 ; Lancaster v. Eve, 5 C. B. (N. S.) 727 ; Yates v. MulUn, 23 Ind. 562 ; Wood v. BeweU, 8 Ad. & El. (N. S.) 913. An agreement for the sale of growing trees, with the right to enter on the land at a future time and remove them is a contract for the sale of an in- terest in the lands, and to be valid must be in writing. YoreT)eGk v. Roe, 50 Barb. 302 ; Goodyear v. Vosburgh, 57 id. 243 ; S. 0., 39 How. 377 ; EUlmore v. Howlett, 48 N. Y. 569 ; Warren v. Leland, 2 Barb. 613 ; Breen v. Armstrong, 1 Denio, 550. The distinction, on this subject, is between growing trees, fruit or grass, and other natural products of the earth, on one hand, and growing crops of grain, and other annual pro- ductions raised by cultivation of the earth and the industry of man, on the other. The former are parcel of the land, and a contract in writing is required to make a valid transfer ; the latter are personal chattels, and not within the statute. lb. In an action by a landlord against a tenant for waste in cutting down trees, evidence of a parol consent that the tenant might cut the trees down and have the wood on condition that the tenant would clear and seed down the land where the trees were cut, is not admissible, such consent being a mere license, and requiring a writing to give it validity. McGregors. Brown, 10 N. Y. 114. Growing trees, fruit and grass, being parcel of the land, are within the statute of frauds ; and, until severed from the land, either actually or in contemplation of law, they cannot be conveyed, or contracted to be conveyed, by parol, nor taken in execution as chattels. BamJc of Lansvngbwrgh v. Crary, 1 Barb. 542 ; Wam-en v. Leland, 2 id. 613 ; SiMernail v. Gole, 12 id. 685 ; Pierrepont v. Barnard, 5 id. 364 ; S. C, 6 N. Y. 279. An agreement between two persons that one of them shall labor for the other, and that such labor shall be paid for in land, is void as to the land, even though the services are fully per- formed King V. Brown, 2 Hill, 4S5 ; Lish v. Sherman, 25 Barb. 433 ; Burlingame v. Burlingame, 7 Cow. 92 ; Gampbell v. Campbell, 65 Barb. 639. See Moody v. Smith, 70 N. Y. 598. 280 STATUTE OF FKAUDS. Sale of an interest in lands, etc. The plaintiff aided the defendant in negotiating the purchase of land, under a parol agreement that he should be compensated for his services by a permanent lease of the land, at an annual rent of eight per cent upon the purchase-price ; this agreement was held to be void under the statute. Erben v. Lorilla/rd, 19 N. Y. 299. In such cases the value of the land cannot be shown for the purpose of determining the amount which the person is entitled to recover for his services, because the measure of damages is limited to the value of the services and not the value of the land. lb. The cases of King v. Brown, 2 Hill, 485, and Burlingame v. Burlmgame, 7 Cow. 92, are overruled so far as they hold that the value of the land is the measure of damages. lb. Where there is a verbal agreement to sell land, and the purchaser pays a part or all of the purchase-money, he cannot recover it back from the vendor, if he is willing to convey the lands as he agreed. The agreement is void in the sense that the purchaser could not be compelled to pay the purchase-price ; but if he voluntarily pays the money, the contract though invalid is not illegal, and therefore the purchaser cannot maintain an action to recover back the money paid. Abhott V. Draper, 4 Denio, 51; Battle v. Bochester City Banle, 5 Barb. 414 ; S. C, 3 N. Y. 88 ; Collier ^.OoaUs, 17 Barb. 471; QodthY. White, 35 id. 76. But if the vendor in such a case refuses to convey the lands as he agreed, or if he rescinds the agreement in pursuance of a right reserved in a written contract of sale, then the purchaser may recover back the money which he has advanced upon the contract. Utter V. Stewart, 30 Barb. 20 ; Lawrence v. Taylor, 5 Hill, 107 ; Wood V. Shultis, 4 Hun, 309 ; S. C, 6 Sup. Ct. (T. & C.) 557 ; Harris v. Frinh, 49 N. Y. 24 ; S. C, 10 Am. Eep. 318. And where, subsequent to the execution of a contract for the sale of lands, the vendor agrees by parol that the purchase-price may be paid by the vendee in work and labor, and where, after the performance of the work and labor, the vendor refuses or is unable to perform, an action may be maintained against him to recover the value of the work and labor. In such case the statute of frauds has no application. Moody V. Smith,70 N. Y. 598 ; Busford v. Pearson, 9 Allen, 387. So where the seller is guilty of false representations as to the nature of the property, and of the incumbrances upon it, and the purchaser has paid a part of the purchase-money upon the faith of these repre- sentations, he may recover it back, notwithstanding the seller is willing to convey his interest in the premises. Fraud as to a material fact, in such cases, is sufficient to entitle the purchaser to recover his money, STATUTE OF FRAUDS. 281 Sale of an interest in lands, etc. although there could not be such a recovery hi the absence of such fraud. Hellman v. Strauss, 2 Hilt. 9. Where a party, by a fraudu- lent representation that he was the owner of land, induced another to bestow labor upon it, in the expectation of enjoying the property as joint owner, the latter, on discovering the fraud, may abandon the contract under which the labor was performed, and recover the value of the work done, although the agreement is a verbal one. Ricka/rd v. Stan- ton, 16 Wend. 25. An agreement to exchange lands is as much within the statute as an agreement to sell them, and it is governed by the same rules of law. Rice v. Peet, 15 Johns. 503. A part performance of a parol agreement for the sale of lands does not render the agree- ment binding and valid, so as to entitle the other party to compel a completion of the performance of the contract. Baldwin v. Palmer, 10 N. Y. 232. And see Thomas v. Dickson, 12 id. 364 ; Malins v. Brown, 4 id. 403. Though it has been seen that the money paid can- not be recovered back if the vendor is willing and able to perform. Ante, 280. A surrender of an interest in lands must be in writing, except in the cases specified by the statute. The manner in which a tenant may surrender his lease, or his interest in an unexpired term, has been already explained. Yol. I, 359. Dower, before assignment, Lothrop v. Foster, 51 Me. 367 ; Finch v. Finch, 10 Ohio St. 501; a mining claim, Copper, etc., Co. v. Spen- cer, 25 Cal. 18 ; coal and the rights to dig coal, Zar v. Chouteau, 23 111. 39, are interests in lands within the statute. A pre-emption right is not a mere chattel interest, but requires a writing to prove the trans- fer, and descends to the heir. Lester v. White, 44 id. 464. And a permanent right to flow land by the erection and maintenance of a mill- dam cannot be created by parol. Clute v. Carr, 20 Wis. 531. And see Rindge v. Baker, 57 N. Y. 209; S. C, 15 Am. Eep. 475. So an agreement to procure a transfer of an unexpired term of a lease is a contract for the sale of an interest in lands, and must, in order to be binding, be in writing. Guest v. Worcester, etc.. Railway Co., L. R., 5 C. P. 9. A verbal contract for the severance of a house from the realty is within the prohibition of the statute, Hogsett v. Ellis, 17 Mich. 351; and so, of fixtures. Vaugham v. Ham,Gock, 3 0. B. 766. Wild grass growing on wild, unoccupied, uncultivated land is a part of the realty, and cannot be transferred by parol agreement, and where such gi-ass has been destroyed by the cattle of a third person, the owner of the land only, and not the person to whom such grass was so at- 36 282 STATUTE OF FEAUDS. Sale of an interest in lands, etc. tempted to be transferred, can maintain an action for its destruction. Powers V. Glarhson, 17 Kans. 218. So one in possession of a farm under an agreement with the owner to work it on shares, for a single crop, cannot maintain an action of trespass against another for break- ing and entering the close. Decker v. Decker, 17 Hun, 13. K sheriff's sale of land made under an execution is within the statute of frauds, and, without a proper entry or memorandum in writing, the purchaser will not be bound. Evoms v. Ashley, 8 Mo. 177 ; Christie V. Simpson, 1 Eich. (S. 0.) 407 ; Robinson, v. Garth, 6 Ala. 204. But see Wichol v. Ridley, 5 Terg. (Tenn.) 63 ; Warfield v. Dorsey, 39 Md. 299 ; S. C, 17 Am. Eep. 562. So, a verbal agreement that sub- sequent advances shall constitute a lien on land already conveyed as a security for former loans is within the statute and void. O'Neill v. Cajpelle, 62 Mo. 202. So a parol agreement whereby a man who had conveyed land to his wife, reserving to himself by written contract the right of possession and to re-purchase within five years, bargains to give up his right under such contract, is void under the statute. Grover v. Buck, 34 Mich. 519. So an oral agreement to convey land and to take a monument when finished at a certain price, and the balance in money is within the statute, and a tender of the finished monument with the money will not give a right of action for the value of the monument, or for the labor of completing it. Doioling v. McKermy, 124 Mass. 478. And a promise that, in consideration that the plaintiff would erect certain buildings upon the land he should have it, has been held to be void as within the statute of frauds. Smith v. Smith, 4 Dutch. (N. J.) 208. But see contra. Burton v. Duffield, 2 Bates' (Del.) Ch. 130. A tenant in common, in possession, cannot sell by parol to his co-tenant in possession so as to pass title. Hill v. Meyers, 43 Penn. St. 170. "Where an interest in lands is contracted for, unless it is in the cases excepted by the statute, the agreement must be reduced to writing, and it must be subscribed by the person who agrees to transfer such interest. Ante, 274, §§ 6, 8. The term " subscribe " means that the person sub- scribing such agreement shall write his name underneath or at the end of the agreement. Davis v. Shields, 26 Wend. 341 ; James v. Patten, 6 N. T. 9, 16. The statute is express that the agreement shall be sub- scribed by the person by whom the interest is to be transferred. And where a pew was sold by the trustees of a church, but there was no written subscribed agreement on their part, it was held that an action could not be maintained by them on a promissory note which was STATUTE OF FRAUDS. 283 Sale of an interest in landa, etc. given by the purchaser. Ante, 276. Vielie v. Osgood^ 8 Barb. 130. And seeMrst Baptist Church v. Bigelow, 16 Wend. 28. Where printed conditions of sale are used in such cases, and the names of the trustees are primted at the end of such conditions, this will not be a compliance with the statute, which requires a written manual signature of the names underneath or at the end of the writ- ing. Vielie v. Osgood, 8 Barb. 130. If the contract is subscribed by the person by whom the interest is to be transferred, it will be suffi- cient to bind him, although the agreement of the purchaser is merely verbal. National Fire Ins. Go. v. Loomis, 11 Paige, 481 ; Edwards V. Farmers' F%re Ins. Co., 21 Wend. 467 ; S. C, 26 id. 541 ; McCrea v. Furmort, 16 id. 460. If the contract is subscribed by the purchaser but not by the vendor, the statute will not be complied with, because it in express terms de- clares that the agreement shall be void unless it is subscribed by the person by whom the sale is to be made. Ante, 274, § 8 ; Vielie v. Os- good, 8 Barb. 130 ; Ohamplin v. Parish, 11 Paige, 406. If the contract, in such case, is not binding upon the vendor, there would not be any mutuality of consideration, and it would not be bind- ing upon the purchaser for that reason. Townsend v. Huhhard, 4 Hill, 351 ; Mg Whorter v. McMahon, 10 Paige, 386 ; Ohamplin v. Parish, 11 id. 406. As the law stood before the Eevised Statutes, it was sufficient if the contract was signed by the party to be charged thereby. First Baptist Church v. Bigelow, 16 Wend. 30. But as the law now stands, the contract must be subscribed by the party by whom the sale is to be made. Ante, 274, § 8. This rule applies to contracts for the sale of real estate, or for the sale or transfer of some interest therein. Though in those cases which relate to the sale of personal chattels, the contract is sufficient if it is subscribed by the party to be charged therewith. 3 R. S. 221, § 2, 5th ed. The consideration of the agreement must be expressed in the writing, or the agreement will be void. Ante, 274, § 8. The names of the parties, a description of the property sold, the sum to be paid, the time and manner of payment, and all the other terms of the agreement, must be expressed in the writing, so that no parol evidence will be necessary to show what the contract is, and so that it may show on its face that it is a valid contract. Williams v. Lake, 2 Ell. & E. 349. An omission to state the terms and conditions, and the consideration, etc., will render the contract void. Vielie v. Osgood, 8 Barb. 130 ; First Baptist Church v. Bigelow, 16 Wend. 28. This memorandum need not be subscribed by the parties in person, 284 STATUTE OF FEAUDS. Agreements not within tlie statute. it will be equally valid, if subscribed by an agent duly authorized for that purpose. Ante, 274, § 9. An auctioneer who sells lands at public auction is an agent within the meaning of the statute, for the purpose of making a valid memorandum. The owner of several lots of land which he wished to have sold, wrote a letter to the auctioneer, stating the terms of sale. At the time of making the sales, the auctioneer read the terms of sale to the bidders from this letter, which was at that time pinned in his sale-book, and also made the other necessary entries in his sale-book, to make a proper and suflBcient memorandum if the letter was to be considered a part of the entry, and then subscribed his name to such memorandum ; it was held, that the letter was a part of the memorandum, and that the contract was valid. Tollman v. Frcmklin, 14 JSr. Y. 584 ; overruling S. C, 3 Duer, 395. Where the name of the principal is stated in the body of the memorandum, that is sufficient, although the auctioneer subscribes his own name merely, without any reference to hia principal. Pinchney V. Hagadorn, 1 Duer, 89; Tollman y, Frcmklin, 14 N. T. 584; Dyher v. Townsend, 24 id. 57. A sale of lands by an auctioneer at public auction is a mere agree- ment to convey the land by deed at a subsequent time ; and such agreements need not be under seal ; and, for that reason, the authority of the agent need not be in writing, nor under seal. Ante, 274, § 9. So, for the same reason, the contract is valid, if subscribed by the agent in his own name, if the contract shows that it is made for his principal. § 5. Agreements not within the statute. There are numerous cases which relate to land, and to things growing upon it, which are not within the statute. A sale of crops of any kind which are raised by annual cultivation, such as wheat, corn, rye, oats, barley, potatoes and the like, is not a sale of an interest in lands, although the crops are growing at the time of the sale ; and such agreement need not, there- fore, be reduced to writing, so far as it is affected by the statute relat- ing to a sale of an interest in lands. Austin v. Sawyer, 9 Cow. 39 ; Whipple V. Foot, 2 Johns. 418, 422 ; Stewart v. Doughty, 9 id. 112. And see ante, 279 ; Green v. Armstrong, 1 Denio, 550. A mortgagor of real estate released the equity of redemption to the mortgagee, who agreed in consideration thereof to sell the mortgaged premises, and that, after deducting the amount due to himself, he would pay the surplus of such sale to the mortgagor ; this agreement is not void by the statute ; and after a sale of such premises for more money than enough to pay the debt due to the mortgagee, an action will lie by the mortgagor to recover the surplus, ffess v. Fox, 10 STATUTE OF FKAUDS. 285 Agreements not within the statute. Wend. 436. Such an action lies immediately after the sale ; and it is no defense that the mortgagee sold the land on credit, and therefore has not received the funds to pay with. lb. The action in such a case is not founded upon a verbal sale of an interest in lands, nor upon a ver- bal promise to purchase lands, or an interest therein ; and it would lie without any such agreement if there had been a foreclosure and sale of the lands and a surplus remained in the hands of the mortgagee. It is analogous to those cases in which lands are conveyed in pursuance of a verbal agreement and in which the purchaser accepts the deed ; in such case he will be compelled to pay the purchase-money, although the agreement on his part was not in writing. By accepting the deed the whole contract is performed, except the payment of money, which may be compelled by an action at law. Thomas v. Dickinson^ 12 N. T. 364: ; Ambler v. Owen, 19 Barb. 145 ; ShepJiard v. Little, 14 Johns. 210; Bowen v. Bell, 20 id. 338. Where lands which are subject to the lien of a bond and mortgage are conveyed, and the purchaser agrees to pay such bond and mortgage as a part of the consideration money of his purchase, this agreement though merely verbal, is valid and binding, and the party holding such bond and mortgage may maintain an action against the purchaser upon the bond and recover the sum due thereon. Ely v. MoNight, 30 How. 97 ; Murray v. Smith, 1 Duer, 412. A verbal agreement to open a road to its original width, by removing the fences, is not within the statute and it is valid. Storms v. Snyder, 10 Johns. 109. Where a highway is laid out in pursuance of the statute the consent of the owner of the land that the road may be laid through his land is valid although such consent is merely verbal. Woyes v. Oha^in, 6 Wend. 461 ; Peoj>le v. Goodwin, 5 N. Y. 568 ; Baher v. Bramam,, 6 Hill, 47. Such consent, however, is revocable at any time before the road is laid out, and a sale and conveyance of the land in good faith before the laying out of the road revokes the verbal consent. People V. Goodwin, 5 N.T.568. If the road is laid out in pursuance of such verbal consent the owner of the land may maintain an action to recover the damages which are assessed for the injury to his land, or for the value of the land taken and used for such highway. Baher v. Bram^n, 6 Hill, 47; Noyes v. Chapvn, 6 Wend. 461, The consent that the land may be used as a highway relates to an interest in lands, but it is one of those cases in which the statute permits a verbal consent, and the case is therefore one of those excepted by the statute of frauds, viz., the transfer is by operation of law ; but the statute relating to highways is 286 STATUTE OF FKAUDS. Agreements not within the statute. a sufficient authority to render a verbal consent valid, and to exclude it from the operation of the statute of frauds. A parol agreement between the owners of adjoining lands that one of them will for an adequate consideration erect and keep up the division fences between them is not within the statute of frauds which renders void an agreement not to be performed within a year ; nor within the statute relating to the conveyance of lands or of an interest in them. Taiknadge v. Rensselaer, etc., H. H. Co., 13 Barb. 493 ; Adams v. Van Alstyne, 25 N. Y. 232 ; S. C. 35 Barb. 9. An oral agreement to marry and pay the then existing debts of the proposed husband in consideration that he convey to the proposed wife certain premises of which he is the owner, if fully performed by the wife is valid and binding in equity upon the husband ; and a conveyance made to her of the premises in pursuance thereof is upon a good and suificient consideration. Dygart v. Hemersohnider, 32 N. Y. 629. So a promissory note given by a man to a woman in consideration of her promise to marry him, which promise is afterward performed, is for a good consideration, and is valid under the statute of frauds. Wright v. Wright, 59 Barb. 505 ; S. C, Affir., 54 N. Y. 437. And an action may be maintained thereon by the wife against her husband. lb. But where a man agrees by parol to give a woman certain property in consideration of her marrying him, the subsequent marriage is not such a partial per- formance of the contract as will induce a court of equity to compel a spe- cific performance thereof. Brown v. Conger, % Hun, 625. The provision of the statute (Laws of 1849, chap. 37, § 3) that " all contracts made between persons in contemplation of marriage shall remain m full force after such marriage takes place," was not intended to repeal the provisions of the statute of frauds declaring that every agreement made upon con. sideration of marriage shall be void, unless it be in writing. lb. And see Finch v. Finch, 10 Ohio St. 501 ; Flenner v. Flermer, 29 Ind. 564 ; Catrni V. Caton, L. E. 1 Ch, App. 137. A husband and wife, having orally agreed before mamage that the survivor, after marriage, should not claim any of the estate left by the decedent, it was held, in an action by the widow against the husband's administrator to recover the statutory allowance to a widow out of a deceased husband's estate, that the agreement was not within the stat. ute of frauds so far as it relates to provisions in consideration of mar- riage, but otherwise as to the provisions of the statute relating to sales of real estate ; but that the agreement not being severable, could not be enforced against the widow. Rainbolt v. East, 56 Ind. 538 ; S. C, 26 Am. Eep. 40. See Dow v. Way, 64 Barb. 255. STATUTE OF FRAUDS. 287 Leases for one year. § 6. Leases for one year. An agreement for the leasing of real estate for a term longer than one year must be reduced to writing and be subscribed by the party by whom the lease is made, or it will be void. Ante, 274, § 8 ; PrindleY. Anderson, 19 "Wend. 391 ; Cleves v. WiUoughhy, 7 Hill, 83. The statute requires that the consideration of the lease shall be ex- pressed in the agreement. Ante, 274, § 8. The agreement of the land- lord to let the premises, and the promise of the tenant to occupy and pay the rent agreed, is a sufficient statement of the consideration. It was held, in one case, that a lease for a single year was void, where the term was to commence at a future day. CrosweU v. Crcme, 7 Barb. 191. That case, however, has been expressly overruled by the Court of Appeals ; and it is now conclusively settled that a mere ver- bal or oral lease for one year is valid, although the term is not to com- mence until a future day. Young v. Dake, 5 N. T. 463 ; Taggard v. Boosevelt, 8 How. 141. In Yovmjg v. Dake, the agreement was made on the 11th day of September, 1848, for the letting of the premises for the term of one year, from the 1st day of April, 1849, and this lease was held valid. It was also held that the statute which requires a written agreement in those cases which, by their terms, are not to be performed within one year, relates entirely to contracts for the sale of personal property, per- sonal services, etc., and not to leases of real estate. In Tagga/rd v. Boosevelt, above cited, the lease was oral, and was made in March, 1851, for one year from the 1st of May, 1851, and this was held valid. When a lease is void by reason of the provisions of this statute, that does not render the contract an illegal or unlawful one if the parties choose to perform it. If the lease is verbal, and the term is for a longer time than one year, it is void in the sense that neither party can compel tlie other to perform it. The landlord need not, in such a case, give the tenant possession of the premises if he chooses not to do so ; and no action will lie by the tenant for the refusal. So on the other hand the tenant may refuse to accept the possession of the premises, and no action will lie by the landlord against the tenant in consequence thereof. The parties may, however, go on and perform the agreement although they could not be com- pelled to do so. And, in such case, if the tenant goes into possession of the demised premises and occupies them, he will then be bound to perform the agreement, by paying the rent agreed, for such time as he may remain in possession, in the same manner as though the lease had 288 STATUTE OF FRAUDS. Fraudulent sale, assignments, judgments, etc. been reduced to writing. Schuyler v. Leggett, 2 Cow. 660. And during the time which the tenant occupies the premises under the terms of such parol agreement, he will be bound to perform the terms of it upon his own part. Merely reducing the agreement to writing will not be a compliance with the statute, unless it is subscribed by the party by whom the lease is made, or by his legally authorized agent. ChampUn v. Parish, 11 Paige, 406. § 7. Fraudulent sale, assignments, judgments, etc. In sales and transfers of property, the law may regard them as fraudulent in reference to the rights of creditors, for either of two causes : first, the transaction may be void on account of an actual and fraudulent intent in the disposition of the property ; or, second, because the instrument which conveys the property, or the manner of conveying it, may be in contravention of the settled policy of the law, or of some of its rules. The law does not attach any importance to the form of the convey- ance by which a fraudulent disposition of property is made. A bill of sale, chattel mortgage, assignment, or a judgment fraudulently con- fessed, or permitted to be recovered, will be treated as nullities, when- ever it is established that they are founded in fraud, and the rights of creditors are thus impaired or destroyed. The statute is as follows: "All deeds of gift, all conveyances and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the cred- itors, existing or subsequent, of such person." 3 K. S. 221, § 1, 5th ed. " Every conveyance or assignment, in writing, or otherwise, of any estate, or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their law- ful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded, shall be void." 3 R. S. 224, § 1, 5th ed. The statute which relates to chattel mortgages has been already quoted. Vol. 1, 308, 316. If a chattel mortgage is executed in compliance with the requirements of that statute, as to the delivery of the property, and as to filing the mortgage properly, etc., such mortgage will nevertheless be absolutely void, if it was made for the purpose, and with the intent, to hinder, delay or defraud the creditors of the mortgagor. The provisions of the statute referred to were intended to apply to such mortgages as were STATUTE OF FEAUDS. 289 Fraudulent sale, assignments, judgments, etc. made Id good faith, and for a lawful purpose, and with a view to the protection of subsequent purchasers or mortgagees in good faith, of the same property, from the same mortgagor. But where the mort- gage is intended as a fraud upon the rights of creditors, no form, how- ever solemn, and no ceremony, however formal, will prevent the law from declaring it fraudulent, if proper evidence of such fraud is given. In relation to chattel mortgages, as affected by the statute, one result of a neglect of its provisions will be to allow the creditors of the mortgagor to take the property upon execution, even when the mort- gage was given in good faith and for full value ; and so it may be held by subsequent hona fide purchasers or mortgagees, under similar cir- cumstances. The provisions of the statute quoted in this chapter relate exclusively to those cases in which the disposition of the prop- erty is made with an actual fraudulent intent for the purpose of hin- dering, delaying or defrauding the creditors of such vendor, etc. ; and they relate to every species of property, whether real estate, personal property, or things in action ; and so on the other hand, they relate to every form or species of conveyance by which the title to property can be transferred. In a work of this character, however, no notice need be taken of the law so far as it relates to real estate, since a justice's court has no jurisdiction whatever in relation to it. Every bill of sale which is made with an intent to hinder, delay or defraud creditors will be absolutely void, notwithstanding a change of the possession of the property. The same rule applies to judgments and executions which are fraudulently employed for the same purpose ; and so of fraudulent assignments. The law permits an insolvent debtor to make an assign- ment of his property for the payment of his creditors ; and it even permits him to prefer some creditors, by paying them to the exclusion of others ; but such assignment must be made in entire good faith, and for the sole purpose of paying just debts. Such assignments are merely tolerated ; they are not favored nor encouraged by the law, and they will not be sustained, when it can be established that they were piade for the purpose of hindering, delaying or defrauding creditors. But there are numerous cases in which an assignment may have been made without any actual fraudulent intent, and yet it will not be sus- tained, because some of the provisions of the assignment violate some principle of public policy, or contravene some established rule of law. A good illustration of the principle is seen in the case of chattel mortgages which may have been made in good faith and yet have been held invalid, because not filed, or because no transfer was made of the possession of the mortgaged property. Yol. I, 308. So there are many 37 290 STATUTE OF FRAUDS. Fraudulent sale, asBignmentg, judgments, etc. cases in which a debtor has made an assignment with an intention that his property should go as far as possible toward the payment of his just debts, and yet some of the provisions which were inserted in the assignment for that purpose have been held to be fatal to the validity of the instrument. An assignment may be void for something which appears on the face of the instrument, or for some reason extrinsic, and which relates to the intention with which it was made. A fraudu- lent intention, in fact, is always fatal to its validity, however fair it may appear upon its face. Although an assignment is fair and lawful upon its face, yet if the purpose of the assignor, as shown by extrinsic evidence, was to effect a compromise with creditors and pro- cure releases by having the proceeds of the assigned property divided among those who would release him, the assignment is void. Bermett V. Mlison, 23 Minn. 2i2 ; Francis v. Hers, 65 Ga. 249 ; Whitney v. KeWy, 67 Me. 3Y7. When an assignment is impeached as being fraudu- lent upon its face, the question is whether the provisions of the in- strument are such that, when carried out, according to their apparent and reasonable intent, they will be fraudulent in their operation. Fraud cannot be presumed where the instrument admits a contrary construction. Kellogg v. Slawson, 15 Barb. 56 ; S. C, 11 N". Y. 302 ; Brigham v. Tillinghast, 15 Barb. 618 ; Manny. Wiibeck, 17 id. 388; Jacobs V. Allen, 18 id. 549 ; Bank of SiVoer Creek v. Talcott, 22 id. 550. An assignment made by a debtor of his property, with the fraudulent intent to hinder, delay and defraud his creditors, is void, although his assignees are free from all imputation of participating in his fraudulent designs, and they are themselves hona fide cred- itors of the assignor, and are to take the entire avails of the assigned property to pay their preferred debts. Rathbun v. Plai/ner, 18 Barb. 272 ; Wilson v. Forsyth, 24 id. 106 ; Griffin v. Marquardt, 17 N. Y. 28 ; Young v. Heermans, 66 id. 374. But a mortgagee who takes a mortgage of personal property from his debtor to secure his debt in good faith, and without any notice of an improper design on the part of the mortgagor in executing the same will be protected, although the object and design of the mortgagor in executing the same was to delay, hinder or defraud his other creditors. Hall v. Arnold, 15 Barb. 599. An assignment executed by a man in embarrassed or insolvent circumstances of his property, in trust for the benefit of creditors, is valid, if it uncon- ditionally and absolutely devotes the whole of the assigned property to the payment of his debts, provided it is made without any intent to hinder, delay or defraud his creditors. And, if such assignment STATUTE OF FRAUDS. 291 ^ Fraudulent sale, asBignments, judgments, etc. was valid in its creation, no subsequent fraudulent or illegal acts of the parties can invalidate it. Browning v. Hart, 6 Barb. 91 ; Wilson V. Forsyth, 24 id. 106, 107 ; Hardmomn v. Bowen, .39 N. T. 196 ; S. 0., 5 Abb. (N. S.) 332 ; American Moohange BamJc v. Webb, 15 How- 193. Such subsequent acts are admissible upon the question of the intent with which the assignment was made, but they are not con- clusive, lb. Declarations made by the assignor after the assignment, and after he has parted with the assigned property are not admissible for the pur- pose of impeaching the assignment. Guyler v. McCa/rimey, 40 N. T. 221. But what the assignor did before he made the assignment, and in contemplation of making it is evidence upon the question of his inten- tion in making it. Peck v. Grouse, 46 Barb. 151. If a debtor, im- mediately before making an assignment for the benefit of creditors, buys merchandise which be does not intend to pay for, sells it on credit, and assigns the debt to the assignee, and at the time of making the assignment retains a large amount of money from the assignee for his own use, and allows his clerks to fraudulently retain money from their own use or for the benefit of the assignor, these facts unexplained are amply sufiicient to warrant a finding that the assignor was actuated by a fraudulent intent in making the assignment. Waverl/y National Bank V. Ealsey, 57 Barb. 249. Under the general assignment act of 1877, the failure to file an in- ventory as therein directed rendered the assignment void. Laws of 1877, chap. 466. Under the act as amended, the failure to file the in- ventory merely renders the assignee liable to removal on the application of a creditor. Laws of 1878, chap. 314. Where ah insolvent debtor makes an assignment of all his property, and it provides that a portion of his creditors shall be paid, and that then the surplus remaining shall be repaid to the assignor, without pro- viding for the payment of the other creditors, such assignment will be void on its face. Strong v. Skirvner, 4 Barb. 546 ; Leitch v. HoUister, 4 N. T. 211 ; Curtis v. Leavitt, 15 id. 12. The rule is the same where there is an assignment of a part of the assignor's property, for the payment of a portion of his creditors, and providing for a return of the surplus before all the creditors are paid. Strong v. Skinner, 4 Barb. 546. A debtor cannot exercise his right of giving preferences among creditors by assignment so as. to secure to himself the future control of the assigned property or its proceeds. Haydoak v. Goope, 53 N. T. 68. But an assignment which provides that, after all the creditors are paid in full, the surplus should be returned to the assignor, is valid. JUly 292 STATUTE OF FEAUDS. Fraudulent sale, assignments, judgments, etc. , V. Cook, 18 Barb. 612 ; Tan Rossum v. Walk&r, 11 id. 237 ; Win- tringham v. Lafoy, 7 Cow. 735 ; Morgan v. Coyne, 7 Neb. 429. Where an insolvent, retiring partner of a firm, which is also insolvent, makes an absolute and unconditional transfer of all his interest in the partnership property, to the other partner, who thereupon assumes the partnership liabilities, this will not render the transfer void as against the individual creditors of the former, from the mere fact that, as a part of the consideration of such transfer, the latter agreed to employ the services of the former and his wife and give them lodging upon the premises assigned, and pay to the wife a share of the future profits of the business, if any. Such an arrangement does not necessarily show an intent by the retiring partner to defraud his individual creditors ; nor does it, by securing him the beneficial use of a part of the property, create or reserve any fund for his benefit. Griffin v. Cranston, 10 Bosw. 1. A voluntary assignment to a trustee for the benefit of creditors con- taining a provision that the trustee shall not be accountable for any loss sustained by the trust property, unless it shall happen from gross negli- gence or willful misfeasance, is void. Litchfield v. White, 7 N. T. 438 ; S. C, 3 Sandf. 545. An assignment made by an insolvent is not void on its face, be- cause it provides that the assignee may employ suitable agents at a reasonable compensation, to be paid out of the effects assigned, and that he shall adopt such measures generally in relation to the settlement of the estate as will, in his judgment, promote the true interest thereof. Mann v. Wiibeoh, 17 Barb. 388. But a provision in the assignment of an insolvent debtor, that the assignee, a lawyer, shall be allowed a reasonable counsel fee, over and above the expenses and commissions for executing the trust, is illegal and renders the assignment void, Nichols V. McEwen, 17 N. Y. 22 ; S. C, 21 Barb. 65. An assignment for the benefit of creditors will not be rendered void by reason of a direction to the assignee to first pay all the just and reasonable expenses, costs and charges and commissions of executing and carrying into effect the assignment, " and all reasonable and proper charges for attorney and counsel fees respecting the same." Butt v. Peck, 1 Daly, 83. In the case cited, the court distinguished it from Nichols V. McEwen, because in that case the assignee was a lawyer, and was to receive a counsel fee in additipn to his other expenses and commissions, while in the present case there was no provision for paying the assignee any extra compensation ; and that the direction to pay reasonable counsel fees for necessary assistance was not illegal, since it STATUTE OF FRAUDS. 293 Fraudulent sale, asBigumeuts, j udgments, etc. merely expressed what the law accords in such a case, because the reason- able expenses of counsel are always allowed to the assignee. An assignee, who is an attorney, is precluded from applying the trust funds to the payment of himself, or of firms in which he may be a partner, for professional services rendered in the administration of the trust. Wmn v. Crosby, 52 How. 174. And a provision in the assignment authorizing the assignee to use or employ the proceeds of the assignee's estate, in defending suits that might be brought against the assignor by his creditors, to recover their several debts, would have the effect to hinder and delay creditors and would render the assign- ment void. Levy's Accounting, 1 Abb. N. C. 1Y7. A provision in an assignment for the benefit of creditors, authorizing either the assignor or the trustees to declare futui'e preferences, is fraudulent and void. Shddon V. Dodge, 4 Denio, 217 ; Strong v. Skinner, 4 Barb. 546 ; AverUl v. Loucks, 6 id. 470. The assignment must itself fix and determine the rights of creditors in the assigned property and not re- serve to the assignors the power of substantially doing so. Keroheis v. Sohloss, 49 How. 284. But where an assignment for the benefit of creditors provided for a preference to those creditors who were named " in the annexed sched- ule," which schedule was not annexed until two days after the de- livery of the assignment, it was held that the assignment was valid where it was found that there was entire good faith on the part of both assignor and assignee in relation to the matter. Hotop v. Neidig, 17 Abb. 332. A provision in such an assignment of all the debtor' s property, when a portion of it consists of unfinished machinery and materials in pro- cess of manufacture, the completion of which was necessary to an ad- vantageous gale, authorizing the assignees to complete the manufacture and work up the materials at the expense of the assigned fund, as in their judgment might be advisable, so as to realize the greatest amount of money therefrom, renders the assignment fraudulent and void on its face, though an actual fraudulent intent, except as thereby mani- fested, is disproved. Dunham v. Waterman, 17 N. Y. 9 ; S. C, 6 Abb. 357. And see Hitchcoolc v. Cadmius, 2 Barb. 381. Whenever an assignment contains provisions which are calculated, per se, to hinder, delay, or defraud creditors, although the fraud may be passed upon as a question of fact, it nevertheless becomes the duty of the court to set aside the finding, if in opposition to the plain infer- ences to be drawn from the face of the instrument. A party must, in all cases, be held to have intended that which is the necessary con- 294 STATUTE OF FRAUDS. Fraudulent sale, assignmentt), judgmenta, etc. sequence of his acts. DwnJmm v. Wat&rmcm, 17 N. Y. 9 ; Loeschigk, V. Bridge, 42 id. 421. An assignment which in express terms, or which by necessary im- plication, provides for a sale of the assigned property on credit, is fraudulent and void on its face as against creditors. Wioholson v. Leavitt, 6 N. T. 510 ; Burdich v. Post, id. 522 ; Porter v. Williams, 9 id. 142 ; S. C, 12 How. lOT ; Brigham v. Tillinghast, 13 N. T. 215. Creditors interested in a voluntary assignment are entitled to a prompt sale and distribution ; and if the assignment, in effect, purports to empower the assignee, in his discretion, to postpone selling, it is void as matter of law. McGleery v. Allen, 7 !Neb. 21. An assignment is not void which prohibits a sale on credit, but re- quires the property to be sold for cash. Carpenter v. Underwood, 19 !N". Y. 521. "When an assignment is not void on its face, there ought to be clear evidence of a fraudulent intent in making the assignment before it is declared void. Wilson v. Forsyth, 24 Barb. 105, 106, 107. When the assignor retains the possession of the assigned property, the assignment is presumptively fraudulent, and will be void unless the transaction is satisfactorily explained. Adams v. Davidson, 10 N. Y. 309 ; Pine v. Rihert, 21 Barb. 469 ; Connah v. Sedgwick, 1 id. 210; Terry v. Butler, 43 id. 395. An assignment is not necessarily fraudu- lent and void, because the assignor omitted to pay over all the money he possessed at the time of making the assignment, and because he carried off a large sum of that money after the assignment was exe- cuted. Wilson Y. Forsyth, 24 Barb. 105, 106,107; American Ex- change Bank v. Webb, 15 How. 193. A debtor having made an assign- ment, and being apprehensive that it might be held defective, subse- quently gave a confession of judgment to the assignees, who gave a declaration showing that the judgment was held in trust for the credit- ors, and that it was to be resorted to only in case the assignment should be held invalid ; it was held that the judgment was void. Mackie v. Ca/vrns, 5 Cow. 547 ; .Vlvernois v. Leavitt, 23 Barb. 64, bl. A valid assignment for the benefit of creditors fixes their rights, and those rights cannot afterward, without their consent, be varied by the assignor or the trustees. Bell v. Holford, 1 Duer, 58 ; Sheldon v. Smith, 28 Barb. 593. A general assignee for the benefit of creditors is not a bona fide assignee in the sense that will exclude the equities ex- isting between the assignor and a surety upon promissory notes made by the assignor ; and if the assignor could not have maintained an ac- tion against such surety on the notes, his general assignee does not STATUTE OF FRAUDS. 295 Fraudulent sale, assignments, judgments, etc. stand in any better position, and therefore he cannot maintain an action upon them. Heed v. Sands, 37 Barb. 185. Whether an assignment is void on its face on account of some provision contained in it is always a question of law for the court. Sheldon v. Dodge, 4 Denio, 218 ; Edgellr. Hart, 9 N. T. 213 ; Kellogg v. Slawson, 15 Barb. 56; S. C, 11 N. T. 302 ; Dunham v. Waterman^ 17 id. 9. But, whenever it is a question upon the evidence, whether the as- signment was made with an intent to hinder, delay or defraud creditors, it is a question of fact for the jury. 3 R. S. 225, § 4, 5th ed. ; Sey- imov/r V. Wilson, 14 N. Y. 567 ; Thompson v. Blanohard, 4 id. 303 ; Banford v. Artcher, 4 Hill, 271. A judgment which is confessed for the purpose of hindering, delay- ing or defrauding creditors is void. 3 R. S. 224, § 1, 5th ed. ; MacMe V. Cairns, 5 Cow. 547. Where property is sold on an execution, and it is bid off by the plaintiff in the execution, the sale will be presump- tively fraudulent as to creditors, if the property is left in the pos- session of the defendant in the execution. Fonda v. Gross, 15 Wend. 628; Oardvnier v. Tubbs, 21 id. 169; Farrington v. Caswell, 15 Johns. 430. But this presumption may be rebutted, and where the condition of the property is such as to furnish a sufficient excuse, as where it con- sists of unthreshed oats in a barn, and beans, some of which were in a mow in the barn, and some of them in afield ungathered, the property need not be immediately removed. Woodworth v. Woodworth, 21 Barb. 343 ; Wyman v. Ha^t, 12 How. 122 ; Brown v. Wilmerding, 5 Duer, 220. See last case stated, Yol. T, 310. The mere fact that a judgment confessed is confessed to secure as well a debt owing to a creditor other than the plaintiff, as one owing to the latter, does not render it fraudulent and void as against creditors. Baton v. Westervelt, 2 Duer, 362. The law does not presume any transaction fraudulent without some evidence of its existence ; and therefore a judgment will not be pre- sumed to be fraudulent ; and it will be held to be vahd until proof of fraud is given by the party attacking its validity. Dunham v. Water- man, Z Duer, 166, 180. In construing the provisions of a general assignment, the courts are governed by the rules applicable to ordinary conveyances ; and no such assignment will be adjudged to be fraudulent on its face where the lan- guage of the instrument admits of an interpretation in harmony with settled principles of law. Townsend v. Stearns, 32 N. T. 209. An assignment is not void on its face because it directs the assignee to dis- 296 STATUTE OF FEAUDS. Fraudulent sale, assignments, judgments, etc. pose of the assigned property, " at such time or times, and in such man- ner as to him may seem most for the benefit and advantage of the cred- itors." lb. ; Jessup v. Hulse, 21 N. Y. 168. So an assignment is valid although it directs the assignee to take possession of all the assigned property, and " within such convenient time as to him might seem meet, by public or private sale, for the best price that can be procured, convert all and singular the said premises, property and estate into money," etc.. Benedict v. Huntington, 32 N. Y. 219. A hona fide purchaser from a fraudulent vendee will obtain a valid title to the property as against the creditors of the vendor. 3 K. S. 225, § 5, 5th ed. ; ante, 59. Thus, a sale upon credit of the entire effects of an insolvent firm to a responsible vendee is not fraudulent per se, although made by the vendor with intent to hinder, delay and defraud creditors, and although the purchaser had notice of the insolvency of his vendor, if he had no previous notice of the fraudulent intent. Ruhl v. PhillAps, 48 N. Y. 125 ; S. C, 8 Am. Eep. 522. The mere fact that a person in failing circumstances makes a sale of his property to a purchaser having knowl- edge of his insolvency, does not show fraud ; but, on the other hand, if the sale is made for a fair and full value, and there are no other cir- cumstances tending to impeach it, the transaction may be evidence of good faith and an honest desire to appropriate his means to the dis- charge of his debts. Loeschigh v. Bridge, 42 IS.. Y. 421. The mere knowledge that there is a judgment against a debtor will not render a purchase from him void, if there was no intent to de- fraud creditors. Beals v. Ournsey, 8 Johns. 446 ; Waterbury v. Sturte- vant, 18 Wend. 353. But where the purchaser has notice of the judg- ment, and purchases the goods with intent to defraud such judgment creditor, the purchase will be void. Wiclcham v. Miller, 12 Johns. 320 ; Beals V. Gurnsey, 8 id. 446 ; Waterhury v. Sturtevant, 18 Wend. 353. To invalidate a sale, tangible facts must be proved from which a legal inference of fraudulent intent can be drawn. It is not enough to create a suspicion of wrong, nor should a jury be permitted to guess at the truth. Nor is it enough that the vendor was guilty of a fraudulent intent in making the sale and that the vendee had knowledge of such intent. It must be made to appear that the vendee participated in the fraudulent intent. Mere proof of inadequacy of price will not alone accomplish this. Jaeger v. KeUey, 52 N.Y. 214:; Dudley y . Banforth, 61 id. 626 ; Van Wyek v. Baler, 16 Hun, 168. A fraudulent sale is binding upon the vendor, although it may be voidable as to his creditors. Moseleyy. Moseley, 15 N.Y. 334; Water- STATUTE OF FEAUDS. 297 Fraudulent sale, assignmentB, judgments, etc. Jmry v. Westervelt, 9 id. 598 ; Jackson v. Oarnsey, 16 Johns. 189 ; Jackson v. Cadwell, 1 Cow. 623. But executors, administrators, receiv- ers, assignees, or other trustees of insolvents, may disaffirm such sales. 3 E. S. 226, §§ 1, 2, 3, 5th ed. ; Laws 1858, chap. 314, §§ 1, 2, 3. The general rules relating to assignments of choses in action have been discussed in a preceding chapter, and in the same connection, so much of the statute relating to general assignments for the benefit of credi- tors, as affects the title of the assignee, has been given. See Yol. I, 812. More than this would be out of place in a work relating to the law and practice in justices' courts, as the jurisdiction of proceedings under the statute is vested in the County Court ; and the only questions which are likely to arise on a trial before a justice of the peace are those relating to the title of the assignee of the insolvent, and his right, by reason of such title, to sue or defend in justices' courts. Questions involving the validity or invalidity of conveyances of land, with a view to hinder, delay or defraud creditors, cannot be determined in such courts, and are, therefore, not within the scope of this work. CHAPTER XX. HUSBAND AND WIFE. Section 1. How the relation is created. Actions to recover dam- ages for a breach of promise to marry are not within the jurisdiction of a justice's court and, therefore, require no discussion in this work. See Code Civil Proc, § 2862. But questions relating to the rights and lia- bilities of parties who have entered into a marriage contract are con- stantly arising upon the trial of causes before a justice ; and, since the passage of the enabling acts, which overturned many of the rules of the common law as they had been, settled for centuries, few questions are more perplexing than those involving the rights and liabilities of married women. Before these questions can arise, the existence of a marriage must be shown. Marriage in this State is a mere civil contract, which depends entirely upon the consent and agreement of the contracting parties for its validity. Though it is to be observed that there are cases in which the law prohibits marriages, even when the parties themselves consent and agree to a marriage. Marriage differs essentially from other civil contracts, in one particu- lar, which is, that the contract when once made and consummated, is con- clusive upon the parties, who cannot of themselves rescind the contract, even if they wish to do so. Clayton v. Wardell, i N". Y. 238, Peatt, J. Marriage, in its origin, is a contract of natural law ; and, in civil so- ciety, is a civil contract, requiring no form or ceremony unless imposed by the local law ; and hence, when the law directs the ceremony to be conducted in a prescribed manner, a failure to comply with such forms, does not affect the validity of the contract, unless such effect be expressly directed by statute. Ferrie v. Puhlio Administrator, 3 Bradf. 169, 170, 151 ; S. C, 26 Barb. 1Y7; 28 K Y. 90. 'Qj the law of this State, a man and woman who are competent to marry each other, without going before a minister or magistrate, with no previous notice given, with no form of ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife and be bound to themselves, to the HUSBAND AND WIFE. 299 How the relation is created. State and to society as such ; and if after that the marriage is denied, proof of actual cohabitation as husband and wife, acknowledgment and recognition of each other to friends and acquaintances and tlie public as such, and the general reputation thereof, will enable a court to presume that there was at the beginning an actual and iona fide marriage. Hynes v. McDermott, 82 N. Y. 41 ; BrinTcley v. Bi-inUey, 50 id. 184 ; S. C, 10 Am. Eep. 460. The principles of the common law respecting marriage are few and simple. It requires no ceremony, no solemnization by minister, priest or magistrate. A mar- riage is complete when there is a full, free and mutual consent by the parties capable of contracting, even when not followed by cohabitation. Caujolle V. Ferrie, 26 Barb. 177, 184 ; S. 0., 23 N. Y. 90, 106 ; Jack- son V. Wmne, 7 "Wend. 47 ; Fenton v. Heed, 4 Johns. 52 ; Hayes v. People, 25 N. Y. 390. See Dyer v. Brarmoch, 66 Mo. 391 ; S. 0., 27 Am. Rep. 359; Richard-^. Brehm, 73 Penn. St. 140; S. C, 13 Am. Eep. 733 ; Jones v. Reddioh, 79 N. C. 290 ; Meister v. Moore, 96 U. S. (6 Otto) 76. Proof of an actual marriage by persons who were present at the ceremony is not, in all cases, necessary. Such strict proof is required in those cases only in which there is a prosecution for bigamy, or in actions for criminal conversation. In other cases a marriage may be proved from cohabitation, reputation, acknowledgment of the par- ties, reception in the family, and other circumstances from which a marriage may be inferred. Caujolle v. Ferrie, 23 N. Y. 107 ; Wright v. Wright, 48 How. 1. See Chamberlain v. Chamberlain, 71 N. Y. 423. These circumstances, however, do not constitute marriage, they are merely evidence of it and they may be rebutted by other tes- timony. Clayton v. Wardell, 4 N. Y. 230. By the common law infants may marry — males at the age of four- teen, and females at the age of twelve years — and the consent of parents is not necessary to the validity of the marriage. Bennett v. Smith, 21 Barb. 439, 440. And see 3'e. S. 227, § 3, 5th ed. Consent is one of the essential requisites to a valid marriage con- tract ; and if the contracting parties, or either of them, has not legal capacity to consent, the contract will be void. For this reason, an idiot or a Jimatic while in a state of lunacy cannot contract so as to constitute a valid marriage; and the mere ceremony of marriage will be useless and the pretended marriage void. Jagues v. Public Administrator, 1 Bradf. 499, 510, 511; Wightman v. Wightman, 4 Johns. Oh. 343 ; Browning v. Reane, 2 Phill. 69 ; Portsmouth v. Portsmouth, 1 Hagg. 355. See Code of Civil Pro., §§ 1742, 1743. 300 HUSBAND AND WIFE. Rights of married women. A marriage which is procured by fraud, terror and abduction will be declared void, although the injured party may have given an apparent consent at the moment of the marriage celebration. FerlM V. Oojon, Hopk. Ch. 478, 493. At page 494 it is said that such a marriage may be treated as null by every court in which the question may incidentally come in question, as in prosecutions for bigamy, ac- tions of dower, etc., though in such cases the decision will be conclusive merely in the case in which the decision is made. To obtain a decision which is conclusive in all cases, a decree must be obtained which de- clares the marriage void in a suit instituted for that purpose. See Code, §§ 1743, 1754. Duress is generally a ground for declaring a marriage void ; but the mere fact that the party marrying was at the time nnder arrest upon a charge of being the putative fathei* of a bastard child by the female whom he marries, is not a ground for declaring the marriage invalid. JaoJeson v. Winne, 7 Wend. 47. See StaU v. Dmis, 79 N. 0. 603 ; Johns v. Johns, 44 Tex. 401 ; Williams v. State, 44 Ala. 24 ; Sickles V. Carson, 26 N. J. Eq. 440. § 2. Eights of married women. At common law the rights, duties and liabilities of married women were so well settled and deter- mined by a long series of judicial decisions that few questions could arise in respect to either which could not be answered by the applica- tion of a familiar principle of law or the citation of a case in point. In equity her rights were equally well settled and determined. But by a series of legislative enactments, based undoubtedly upon principles of natural justice, and designed to place the wife more nearly upon terms of equality with her husband in respect to rights of property, the rules of the common law have been substantially swept away, and the cases once authority have been rendered obsolete. At common law marriage is an absolute gift to the husband of the goods, chattels and personal property of which the wife is actually possessed, and of such as come to her during coverture. As to choses in action, marriage is only a qualified gift, conditioned that the husband reduces them to possession during the existence of the marriage relation, and when so recovered, the title vests absolutely in him. The title to all personal property possessed by the wife at the time of marriage, and to such as came to her afterward, and also to such choses in action as the husband recovered during coverture, become vested upon marriage in him, and upon his death the property went to his representatives and not to the wife. If the wife died first the title remained in him after as before her death. If the wife survived her husband siich choses in HUSBAi^D AND WIFE. 301 RigUts of married women. action as lie had not reduced to possession went to her, and upon her death to her representatives. If the wife died first the title to such choses in action was, upon her death, transferred to the husband through the right of administration. At common law a married woman could take title to real or personal property by conveyance from any person except her husband ; but where no trust was created he became abso- lutely vested with her personal property when reduced to possession, and of her chattels real with power to alien them at his pleasure during the life, and upon her death to own and enjoy them absolutely. So by the common law contracts made by married women were void and could not be enforced against them. This was necessarily so, as at law a mar- ried woman had no property under her ownership and control which could furnish the subject-matter of a contract. In short, the very being and legal existence of the woman was by the fact of marriage suspended or incorporated and consolidated with that of her husband. From this brief outline of the rights of a married woman under the common law, the object and efEect of the enabling acts will be more readily comprehended. Since the enactment of these statutes and the Code the husband and wife are, for all legal purposes, no longer one person. Matteson v. Wew York Central R. JR. Co., 62 Barb. 364:, 373. The old Teligious idea of a mystic union in marriage by which " they twain become one flesh," and the common-law notion that by marriage the being and legal existence of wife was suspended or incor- porated and consolidated with that of her husband, have to a great extent become old fashioned and obsolete. Corn Ex. Ins. Co. v. Babcock, 42 N. Y. 613, 645. Marriage no longer operates upon the property^ but only upon the person. MeeherY.Wright,l&'S^.Y.2w?iAaOT v. Pettee ; Kelley v. Upton, 5 Duer, 336. See illustrations of this rule, ante, 36, 54. It is also necessary to show that the defendant has been guilty of a breach of the agreement, by a refusal to accept and pay for them when tendered to him, in those cases COMMON COUNTS. 347 Goods purchased and refusal to deliver. in which a tender by the plaintiff is required, or to show that he lias not called for the goods and paid for them, when the contract required the purchaser to do so. The evidence should be clear and explicit to show a breach of the contract by the defendant, as well as to show a performance by the plaintiff. If the purchaser of goods agrees that the delivery of the goods is to take place at the premises of the vendor, and such purchaser agrees to call there and take and pay for them, at a stipulated price, on or be- fore a specified day, he will be bound to comply with such agreement or be in default ; and if he neglects or refuses to call and take the goods, or to pay for them, the vendor, after the expiration of such specified time, may request him to pay for the goods and take them, and if the purchaser refuses to do so, the vendor may rescind the con- tract of sale and dispose of the goods as though no contract of sale had been made ; or he may, on due notice to the purchaser, resell the goods and recover of him the sum lost on the resale, together with the expense of keeping the goods. McEaohron v. Handles, Si Barb. 301 ; ante, 64. When goods are purchased which at the time of such purchase are on board of a vessel at sea, the purchaser, on due notice of the arrival of the goods, is bound to receive them within a reasonable time after such notice, when tendered at the place designated by him for their delivery. Dibble v. Gorbett, 5 Bosw. 202. And if he refuses to accept a delivery within a reasonable time, he is liable to the vendor for the damages which necessarily result from the delay. lb. If the property sold is agreed to be delivered between certain desig- nated dates it is optional with the purchaser to designate on which of the days he will receive it, and his failure to do so fixes the last day as that on which he may be required to perform the contract. Sousely v. Burns, 10 Bush (Ky.), 87. In case the seller was not the actual owner of all the goods tendered in compliance with the contract of sale, but was in a position to deliver them and pass a perfect title, he will, as be- tween the parties, be regarded as the owner, and the buyer's refusal to receive them will render the buyer liable. Bell v. Offut, id. 632. § 2. Goods purchased and refusal to deliver. In this action the plaintiff must show a valid contract of sale, a performance on his part of the conditions of the agreement, and a breach thereof by the defend- ant. "Where, by the terms of the contract of sale, goods are to be delivered by the vendor at a specified place, and they are to be paid for by the purchaser, on delivery, the purchaser need not, in an action by him 348 COMMON COUNTS. Goods purcliased and refusal to deliver. against the vendor for a non-delivery of the goods, prove any demand of the goods sold ; it will be sufficient to prove that he was able, ready and willing, at the time and place fixed for the delivery of the goods, to accept and pay for them, according to the agreement. Vail v. Jiice, 5 N. Y. 155 ; Bronson v. Wimcm, 8 id. 182. ' In such cases the plaintiff need not prove any demand, tender or payment by him before suit brought. lb. ; Mount v. Lyon, 49 N. Y. 552. In one case the vendor contracted to sell and deliver a quantity of grain, consisting of rye, corn and oats, at stipulated prices, and upon condition that the purchaser should give security for the purchase-price ; and the vendor, in pursuance of the contract, delivered the rye, without any security ; and during the delivery of some of the rye he received a payment which exceeded the value of the grain then delivered ; he then refused to deliver the remainder of the grain, upon the ground that the failure to give security had discharged the contract, notwithstanding an offer on the part of the purchaser to pay for the grain in advance, or to fur- nish the security required by the contract ; and it was held that the vendor's conduct was a waiver of security, so far as it related to the grain delivered, and that the purchaser's offer to give security or to pay for the grain was sufficient to entitle him to recover damages against the vendor for his non-performance of the agreement. Cornwell v. Haight, 21 N. Y. 462. The refusal of the vendor to accept security, or to de- liver the grain, and the notice thereof to the purchaser, is such a refusal to perform the agreement as to excuse the purchaser from making a tender of the price, or another offer to give security. lb. And see Grary v. 8m,ith, 2 N. Y. 60. If, from the terms of the agreement, or if, from the nature of the contract, the purchaser is to call for the goods, and take them at the vendor's place of business, he must, in that case, demand them within the time, and according to the terms of the contract, before he can put the vendor in default. So, again, where by the terms of the contract the goods are to be paid for on delivery, or, if the contract is silent in that respect, the purchaser must also tender the purchase-price, before the vendor is bound to deliver the goods. "Where the time and place of delivery is not fixed by the contract, but is to be designated by the purchaser, proof of a demand, of a readiness to receive, and an ability to pay is essential to put the vendor in default. Isaacs v. Wew York Plaster Works, 8 Jones and Sp. 2Y7 ; Boody v. Rutlam,d, etc., R. JR. Co., 24 Yt. 660 ; Beard v. SIoom, 30 Ind. 279. In an action by the purchaser against the vendor for the non-delivery of goods sold the general rule is, that the purchaser is entitled to COMMOJS^ COUNTS. 349 Warranty on sale or exchange. recover the difference between the market-price, on the day, and' at the place where the goods were to have been dehvered, and the price, which, by the contract of sale, was to have been paid for them . Dana v. Fiedler, 12 N. Y. 40 ; MoKnight v. Dunlop, 5 id. 537 ; Billings v. Vanderbeolc, 23 Barb. 546. Where the purchaser has paid the purchase-price in advance, he may recover, in addition, interest on the same from the time when the goods ought to have been delivered ; and, according to the opinions of some able writers, this is the extent of the recovery. Sedgwick on Damages, 289 top, or 274 original paging ; 2 Kent's Com., 480 original paging, note a, or top paging 624, 625, note a, 8th ed. But while the general rule of damages is as above settled, it is changed when the vendor knows that the purchaser has an existing contract for a resale at an advanced price, and that the purchase is made to fulfill such con- tract. In such case the purchaser may recover the profits upon the resale, of which he has been deprived by the default of the vendor . Messmore v. New York Shot arid Lead Co., 40 N. Y. 422 ; Booth v. Spuyten Duyvil RolUng Mill Co., 60 id. 487. See Bamk of Mont- gomery V. Reese, 26 Penn. St. 143 ; McHose v. Fulmer, 73 id. 365. § 3. Warranty on sale or exchange. In actions for a breach of warranty upon a sale or exchange of personal property, there are a few rules relating to the pleadings and evidence, which require a brief notice. If a general denial is interposed, the plaintiff must prove on the trial that there was a contract of sale or exchange ; that the defendant warranted the property sold or exchanged ; that there has been a breach of such warranty ; and the consequent damages. An express warranty must be stated in the complaint, and according to the facts in the case. So, where the plaintiff relies upon an implied warranty, and he brings an action for a breach of it, he must, in his complaint, allege the exist- ence and the terms of warranty, as material and traversable facts, and as explicitly as in the case of an express warranty. Prentice v. Dihe, 6 Duer, 220. In actions for a breach of warranty, it is not necessary to prove that all the representations are false, or that all of them are actionable ; if it is proved that any part of them are false and actionable, that is sufficient to maintain the action. Sweet v. Bradley, 24 Barb. 549 ; anU, 85, 86. An action on the case in the nature of deceit will lie on a false war- ranty on a sale of goods, if the warranty is express ; and it is not nec- essary to allege or prove tliat there was fraud on the part of the seller. It is enough if the plaintiff alleges and proves the warranty, and that 350 COMMON COUNTS. Warranty on sale or exchange. it is false. Fowler v. Abrams;) 3 E. D. Smith, 1. And if fraud is alleged in tlie complaint, it is not necessary tliat it should be proved to entitle the plaintiff to maintain his action. lb. Therefore, where the plaintiff's complaint alleged that the defendant, "by falsely and fraud- ulently warranting a horse sold by him to the plaintiff," sold him to the plaintiff, and, on the trial, proved an express warranty, and that it was false, it was held that he was entitled to recover, although the jury found specially that there was no fraud. lb.; Quwhta/rd v. New- ton, 5 Eob. 72. But, when fraud is the basis of the complaint, there can be no recov- ery for a breach of warranty. For example, if the plaintiff alleges that the defendant, having offered to sell him a horse which was lame, warranted and falsely represented that the lameness was in the foot only, resulting from an injury while in pasture, and would soon disappear ; that the plaintiff purchased the horse relying upon such warranty and representations and believing them to be true ; that the horse was in fact lame from a diseased gambrel joint, which the defendant will know at the time of sale and of making such warranty and representa- tions ; and that by means of the premises the defendant falsely and fraudulently deceived the plaintiff in the sale of the horse to the damage, etc., the complaint is for the fraud, and there can be no recov- ery upon proof of the warranty and breach without proof of the fraud. Ross v. Mather, 51 N. Y. 108 ; S. C, 10 Am. Eep. 503. And see Moore v. NoUe, 53 Barb. 425 ; S. C, 36 How. 385 ; Barnes V. Quigley, 59 N. Y. 265 ; Marshall v. Gray, 57 Barb . 414 ; S. C, 39 How. 172. The distinguishing feature between a warranty and fraud is, in general, guilty knowledge of the falsity of the represen tations on the part of the party making it. lb. Where a horse is sold, and the vendor represents him as sound and kind, with permission to the purchaser to return him, if he does not like him, after trial, and the purchaser, after trial, knows of an unsoundness, but elects to retain the horse, he cannot recover on the original warranty, but must pay the full price agreed on. Van Allen v. Alien, 1 Hilt. 524. The correct measure of damages in an action for the breach of a warranty on the sale or exchange of a horse is the difference between the value of the horse at the time of the sale or exchange, if he had been as represented, and his value as he is with the defect complained of. Cary v. Orum.an, 4 Hill, 625 ; Shay'on v. Masher, 17 Barb. 518 ; Oomstock V. Rutchinson, 10 id. 211 ; Fales v. McKeon, 2 Hilt. 53. It is always competent, however, to show the price paid for the horse, as an element in estimating the damages. Cary v. Gruman, 4 Hill, 625. COMMON COUNTS. 351 Actions to recover for labor and services. But in Fales v. McKeon, 2 Hilt. 53, it was held that if the plaintiff did not give any evidence as to the value of the horse as he was, nor as to his value if he had been as represented, that the plaintiff could not maintain his action, and that a judgment in his favor would, for that cause, be reversed, even where the purchase-price was specified in the bill of sale. In an action by an assignee upon a cause of action arising on a breach of warranty, the measure of damages is the same as though the action had been brought by the assignor. Sweet v. Bradley, 24 Barb. 549. The warrantor must make his warranty good, and the amount paid by the assignee for the right of action is entirely immaterial. lb. The allegations in the pleadings ought to be true in the sense that they are not intentionally false, and they ought to be accurate, in the sense that they correspond substantially with the evidence given on the trial ; but a mere variance between the proofs and the allegations is not as material as formerly, for, under the present system, most variances are obviated by an amendment at the trial, or by disregarding them when unimportant to the real merits of the action. § 6. Actions to recover for labor and services. The law relative to special contracts for the performance of labor has been sufficiently considered. Yol. I, 222. But, in every case in which there is a right to recover for labor performed, or for services rendered, there must be some contract, express or implied, to authorize a recovery. And, in most of the instances hereafter mentioned, the contract for payment is such as is implied from the nature of the transaction, rather than from any express agreement to pay. In numerous instances, an employer merely requests the performance of some labor or the rendition of some service without any express promise to pay, and without any stipulation as to the compensation to be made. In such cases, if the request is complied with, the law will impose an obligation upon the employer by implying a promise upon his part to pay for the labor done, or the ser- vice rendered, and it will also imply a promise to pay for such labor or service, a proper compensation, or such as it proved to be reasonably worth. If a party merely speculates on the chance of being paid, taking upon himself the risk, there is said to be no contract. But if he does work on the order of another, under such circumstances as that it must be presumed that he looks to be paid as a matter of right by him, then a contract would be implied with that person. Rigg-ms v. Hophins, 3 Exch. 166. And see Boss v. Mitohell, 28 Tex. 150 ; Hertzog v. Hertzog, 29 Penn. St. 465 ; Tuoher v. Virginia, 4 Nev. 20 ; Godda/rdY. Foster, 17 352 COMMON COUNTS. Actions to recover for labor and services. Wall. 123.- In such cases the parties are supposed to have made those stipulations which as honest, just and fair men they ought to have made- lb. ; Ogden \. Saunders, 12 Wheat. 341. But it is not necessary-, in every case, to show that there was an ex- press request that the service should be rendered; for there are cases in which the law will imply both a request to render the service, and a promise to pay for it. Such cases are generally of that character in which the law imposes a legal duty, which is omitted by the party bound to render it. Instances of this nature are sometimes seen where an action is brought for the payment of claims for medical, or other necessary services, which have been rendered for a wife, or for an infant child. There are other cases in which the request is not an actual one, but is in the nature of an implied one. Where one person permits another to engage his service, and permits the rendition of valuable services without objection, while enjoying the advantages resulting from the service, the law will imply a promise by the recipient to pay what such services were reasonably worth. As between strangers the general rule is, where nothing is shown to the contrary, that whenever services are rendered and received, a con- tract of hiring or an obligation to pay will be implied. Hart v. Hess, 41 Mo. 441. And see Van Arman v. Byington, 38 111. 443 ; Jones v. Jincey, 9 Gratt. (Va.) 708 ; Green y. Roberts, 47 Barb. 521. The keeper of a county poor-house has no right to the labor and ser- vices of persons kept there as paupers ; and if he employs them to work for him, upon a promise to pay them therefor, he will be liable to an action if he refuses to pay for services thus rendered by such paupers. Bergin v. Wemple, 30 N. T. 319. And if a person becomes an involuntary depository of a chattel, as for instance, by finding, and the owner subsequently reclaims the chattel, the law implies a promise to pay the reasonable expense of its preservation. Tomey. Four Cribs of Lumber, Taney, 553 ; Sheldon v. Sherman, 42 Barb. 368 ; S. C. affirmed, 42 N. Y. 484 ; 1 Am. Eep. 569 ; Chase v. Corcoran, 106 Mass. 286. And see 2 Act. and Def., title Deposit. So, as a general rule, although the services rendered for the benefit of another were without his request or privity, yet his subsequent express promise will be bind- ing, and even his subsequent assent will be sufficient evidence upon which to predicate a previous request. Allen v. Bichmond College, 41 Mo. 302. Where one does work for another by compulsion, whom he is under no legal or moral obligation to serve, the law will imply a promise on COMMON COUNTS. 353 Actions to recover for labor and services. the part of the person benefited thereby, to make him a reasonable recompense. Peter v. Steel, 3 Yeates (Penn.), 250, 255. And so where one induces another to perform valuable services for him bj fraud. Higgins v. Breen, 9 Mo. 497 ; 3 Act. and Def. 583. Another principle relating to this form of action is, that the service must be of some value, and must not be useless, by reason of the neg- ligent, unskillful, or intentional and wrongful acts or omissions of the person doing the labor, etc. In such cases, if the damages resulting from such acts or omissions are equal in value, or are greater than are the services rendered, there can be no recovery by such laborer. It is not indispensable that the labor should be profitable to the em- ployer, in order to enable the laborer to recover compensation for his services. For there are many cases in which the employer engages laborers to render services in a kind of business which cannot be made profitable, however skillfully the labor may be done. And if the em- ployer chooses to engage in an unprofitable business, that is either his folly or his misfortune, and in either case he will be required to pay for the services which have been rendered at his request. When no express agreement is made as to the amount of compensa- tion, the law will imply a promise by the employer to pay what the services were reasonably worth, or the wages usually paid for like ser- vices in the same vicinity. In all business employments the law will require that every person shall possess and use that degree of skill which he expressly declares he has, or which he impliedly professes to have, by holding himself out publicly as qualified for that particular business or employment. If the person employed lacks such skill, or having it neglects to use it, so that his services are, in consequence, of no value to his employer, he cannot recover any compensation for the labor done or the service rendered. "When no express agreement has been made, it is sometimes a ques- tion when the wages or compensation is payable. And the general rule is, that services rendered in the management of a farm or of house- hold duties, which are performed under a general retainer, without any express agreement as to the time or measure of compensation, or the term of employment, and such services continue for a number of years, the law will imply an agreement that the wages are payable from year to year at the end of the year. Dcmis v. Gorton, 16 N. Y. 255. And this is the rule, even in those cases in which the employer sets up the statute of limitations as a defense to an action by the laborer for the recovery of his wages. lb. And see The King v. Macclesfield, 3 45 ' 354 COMMON COUNTS. Actions to recover for labor and services. Term E. 76 ; Baxeter v. Nurse, 1 Car. & Kir. (N. P.) 10 ; Holcroft v. Barber, id. 4. Again, it is not necessary that the services should be rendered by the plaintiff in person, for, if the services are rendered by the infant child of the plaintiff, or by his servant or agent at the request of the de- fendant, he will be as much liable to pay for such services as though they had been performed by the plaintiff in person. The cases in which an action may be maintained for labor performed, or for services rendered, are so numerous that a particular enumeration of all the cases would be a tedious labor without a corresponding ad- vantage. "When the general principles are well understood, it will be found that the individual cases are mere illustrations of these general principles. The action is maintainable by professional persons, by me- chanics, manufacturers, day laborers and every other class of persons who render valuable services for another at his request, either express or implied. It is to be remembered, however, that when services are rendered under a special contract which is unperformed, it is a general rule that an action will not lie for services rendered, but the complaint must be special, showing the contract and the breach, whatever that may be, on the part of the defendant. And in that case the law will give such damages as are appropriate to the nature of the action brought. There are some instances, however, in which a special agree- ment has been made, which has been subsequently modified or waived by the parties, in which case there may be a recovery for the services rendered after such modification or waiver, and that class of cases will be hereafter briefly noticed. If there has been a special agreement for the rendition of services, and the plaintiff has partially performed his part of the contract, and he is then prevented by the defendant from completing the contract, the complaint ought to be special. When the service rendered is a gratuitous one, and was so under- stood by both parties at the time of its rendition, no action can subse- quently be maintained to recover compensation for such service. Ga/r- penter v. Weller, 15 Hun, 134 ; Ross v. Ross, 6 id. 182, 185. A parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one ; nor is he entitled to the earnings of, or bound to maintain his nephews or nieces ; yet if they live with him as members of his family without any contract or understanding that he shall pay for their services, or receive pay for their maintenance, the law will not imply a promise to pay on either side. Robinson v. C%ishman, 2 Denio, 149 ; Andrews v. Foster, 17 COMMON COUNTS. 355 Actions to recover for labor and services. Tt. 556 ; Fitch v. Peckham, 16 id. 150 ; Owen v. Parsons, 5 Watts & Serg. 357, 513 ; Wier v. Wier, 3 B. Monr. 645 ; Williams v. Hutch- inson, 3 N. Y. 312 ; Dye v. Kerr, 15 Barb. 444 ; Sullivan v. SulUvam,, 6 Hun, 658 ; Wilcox v. Wilcox, 48 Barb. 32Y ; Van Kv/ren v. Saxton, 5 Sup. Ct. (T. & C.) 566 ; S. C, 3 Hun, 547 ; Shirley v. Vail, 38 How. 406. Where one intrudes his services upon another against his will, and without his assent, express or implied, no recovery can be had therefor. Fox v. Sloo, 10 La. Ann. 11. And see Jones v. Woods, 76 Penn. St. 408. And it is held that the necessity or value of the services cannot operate to change this rule. Anderson v. Hamilton Township, 25 id. 75 ; Levee Commissioners v. Harris, 20 La. Ann. 201. But an obligation to pay what a service is rea- sonably worth will be implied, where the service was rendered with- out a party's knowledge, if it was an act of necessity, for which he was bound to provide, or where it can be assumed that he necessarily would, had he known of the exigency, liave required it to have been done, understanding that he was to pay for it. Hewett v. Branson, 5 Daly, 1 ; Oreen v. Roberts, 47 Barb. 521 ; Vam, Arman v. Byvngton, 38 111. 443 ; Jones v. Jinoey, 9 Gratt. (Va.) 208. Services rendered for a person during his last illness, as a nurse and housekeeper, are not deemed to be gratuitous, but on the contrary, there is an implied contract that the party receiving such service is to pay a fair compensation therefor. Successioti of Pereuilhet, 23 La. Ann. 294; S. C, 8 Am. Eep. 595. And the fact, if it were shown, that the nurse or housekeeper lived with the man she was nursing and taking care of as his concubine is held not to impair or lessen her claim for wages, unless it be alleged and shown that concubinage was the motive and cause of their living together in the first instance, and that the services rendered were merely incidental to that mode of living. lb. ; Viens v. Brickie, 8 Mart. (La.) 11. But see Walraven v. Jones, 1 Houst. (Del.) 355 ; Swires v. Parsons, 5 Watts & Serg. 357. The latter case holds that a woman who lives with a man in a state of concubinage cannot recover compensation for services performed for him without proof of a contract of hiring. So it is held in New York, that one who rendered services in the supposed relation of lawful wife cannot, on discovering that the marriage was void, recover for them on an implied promise to pay for them. Gropsey v. Sweeney, 27 Barb. 310 ; S. C, 7 Abb. 129. But, if the man led the woman into a void marriage fraudulently upon the false pretense that he was a single man, 356 COMMON COUNTS. Actions to recover for labor and services. an action lies and it survives against his personal representatives. Withee V. Brooks, 65 Me. 14. Where the services rendered are illegal, such as the p."inting of an immoral or indecent publication, or the rendition of manaal services of an ordinary character on the Sabbath, no action will lie vo recover compensation for such services. Brunnett v. Clark, 1 Sheld. 500. Where a statute makes it unlawful to perform labor upon the Sab- bath day, and no exception is made in favor of works of necessity, an agreement to perform such labor is without validity and no damages can be recovered for its breach. Slade v. Arnold, 14 B. Monr. (Ky.) 232 ; Bernard v. Lupping, 32 Mo. 341. But if the statute merely prohibits unnecessary labor, a recovery may be had for work which was necessary to be done. Whitconih v. Qilman, 35 Vt. 297. The plaintiff must, however, show that this case falls within the exceptions of the statute, and the burden of proof is upon him to establish it. Sayre v. Wheeler, 32 Iowa, 559. See 3 Act. and Def. 589, '590. A contract for work and labor, to be void under the New York statute relative to the observance of Sunday, must be expressly and altogether for an act which the law forbids. It must be a contract for servile labor, to be performed on Sunday exclusively and expressly, and not on any other day. Merritt v. Earle, 31 Barb. 38 ; S. C. affirmed, 29 N. Y. 115; People v. Young Men's Society, 65 Barb. 357. And see Johns v. Bailey, 45 Iowa, 241. A contract to publish an adver- tisement in a newspaper issued on Sunday was held to be an agreement to do an act prohibited by the statute, and that the price stipulated for the service could not be recovered. Smith v. WUcox, 25 Barb. 341 ; S. 0. affirmed, 24 N. Y. 353. But this has been changed by statute, Laws of 1871, chap. 702. But a contract to make a balloon ascension upon Sunday, from a garden open to the public on payment of admis- sion fees, is unlawful, and an action cannot be maintained for the com- pensation agreed to be ^Jaid the aeronaut. Brunnett v. Clark, 1 Sheld. 500. It is the general rule at common law that if a person knowingly contributes his services to an illegal or immoral purpose he is debarred from recovering the value of his services. Martin v. Barton Iron Works, 35 G-a. 320 ; Dumont v. Duforce, 27 Ind. 263 ; SUinfield v. Levy, 16 Abb. (N. S.) 26 ; 1 Act. and Def. 725. But it seems that if the labor is not^^er se illegal, but becomes so by the purpose to which it is applied, a recovery may nevertheless be had. Thus, a washerwoman who was employed generally to wash clothes of a prostitute was held to be entitled to recover for her services in that respect ; the court COMMON COUNTS. 357 Actions to recover for labor and servicea. observing, that the plaintiff was employed generally to wash the defendant's linen, and the use which the defendant made of it cannot affect the contract. Zoyd v. Johnson, 1 Bos. & Ful. 340. And see Pearoe v. Brooks, L. R., 1 Exch. 217 ; Mahood v. Tealza, 26 La. Ann. 108 ; S. C, 21 Am. Eep. 546 ; HiMard v. Moore, 24 La. Ann. 591 ; S. C, 13 Am. Rep. 128. Again, where the person performing the service is required to have a license authorizing him to perform such services, as for example, a carman in a city, he must show that he had a license or he cannot recover. Ferdon v. Ctirwiingham, 20 How. 154 ; Chadwiek v. Collins, 26 Penn. St. 133 ; Collins v. Ca/rnegie, 1 Ad. & El. 695 ; The Pioneer, Deady (U. S.), 72. There can be no recovery for services rendered as a clerk in a liquor- store, or as a bar-tender in a hotel or saloon, in respect to the sale of liquor without a license. Badgely v. Beale, 3 Watts (Penn.), 263. So where the statute requires that real estate brokers shall obtain a license, they can recover no commissions, unless properly licensed. Castello v. Goldbech, 9 Phil. (Penn.) 158 ; Duhe of Brunswick v. Crawl, 4 Exch. 492. Attorneys. — The foregoing general principles which relate to the action for services rendered would probably be sufficient, but , it may be that there are those who would desire a few cases illustrative of those principles, and, therefore, a few of the more usual cases will be given for that purpose. The right of an attorney or counselor at law to recover a compensa- tion for his services by an action at law has long been established in this State ; and it was the rule befoi-e the enactment of the Code of Procedure. Adams v. Stevens, 26 Wend. 451. The plaintiff is entitled to recover, although the services were not rendered in an action in which the defendant was a party, for if the plaintiff rendered services for a third person at the request of the defendant, that will be sufficient to sustain an action. Wilson v. Burr, 25 Wend. 386. Since the enactment of the Code, the amount of the compensation to be paid to attorneys and counselors is entirely a matter of agreement between client and attorney or counsel, and the agreement may be either express or implied. Code of Civil Procedure, § 66. If the agreement is an express one, that will, of course, determine the amount which is to be paid. But, in the absence of any express agreement, it is sometimes a subject of inquiry as to the amount of compensation pay- able upon any implied promise. Before the Code, if there was no ex- press agreement, the compensation of an attorney was limited to the 358 COMMON COUNTS. Actions to recover for labor and services. amount of costs taxable between party and party. Scott v. ELmendorf, 12 Johns. 315 ; McFarland v. Cra/ry, 6 Wend. 297. The Code, however, has introduced a new and an entirely contra- dictory practice in that respect. In the absence of an express or special agreement, an attorney or counselor is entitled to recover such sum as will be a reasonable compensation for his services, without any refer- ence to the amount of costs which may be taxable between party and party. Yam, Every v. Adams, 10 Jones & Sp. 126 ; Betts v. Betts, 4 Abb. N. C. 317. See Whitehead v. Kennedy, 69 N. Y. 462 ; Foster V. Newbrough, 66 Barb. 645 ; Oarfield v. Eirh, 65 id. 464. In an action by an attorney for the recovery of his fees, in the ab- sence of any agreement as to the amount, it is not necessary to refer to the fee-bill at all, to ascertain what is a proper compensation to be paid by a client to his attorney ; and if it is referred to, although the items would be deemed erroneous by a taxing officer, still, if the whole amount does not exceed what the attorney is entitled to as a fair com- pensation from his client, there will be no error in allowing that amount. Sandford v. RucTcman, 24 How. 521. See Foster v. Newhrough, 66 Barb. 645. In the absence of an express agreement, the court will allow the attorney a better compensation than that fixed by the fee-bill, as be- tween party and party, if the circumstances of the case show that a larger amount ought to be paid. Cregier v. Gheesebrough, 25 How. 200. The statute fee-bill, although evidence bearing upon the ques- tion as to the value and amount of the services rendered, does not deter- mine the question as between attorney and client. Gallup v. Perue, 10 Hun, 525. Nor is the reasonable compensation recoverable by an attorney for his services in a cause determined, merely by the length of time engrossed, but by all the circumstances ; including the profes- sional skill and standing of the attorney, his experience, the nature and character of the question raised and the result attained. Eggleston v. Boardman, 37 Mich. 14. And in an action by an attorney on the quantum meruit for professional services, the defendant may show by the examination of other members of the same bar, what is the usage of that bar in cases similar to that which the plaintiff had tried, and what the services of counsel therein were really worth. Thompson v. Bcxyle, 85 Penn. St. 477. And see Gullom v. Moch, 31 La. Ann. 687 ; Aldrich V. Brown, 103 Mass. 527 ; MeHfeil v. Davidson, 37 Ind. 336 ; Southgate v. Atlantic, etc., M. li. Go., 61 Mo. 89. But the amount an attorney receives in a case for his services is no criterion of the value of the services of another attorney in the same case, in the absence of COMMON COUNTS. 359 Actions to recover for labor and services. any showing that the services were similar, the skill equal, and the time spent the same. Ottawa University v. Parkinson, 14 Kans. 159 ; Ottawa University v. Welsh, id. 164. When an attorney sues for the recovery of a compensation for his services, the items contained in a judgment record in which he was an attorney, and in which the amount of costs between party and party had been adjusted by the clerk, will not be sufficient evidence to entitle him to recover that amount. Oarr v. Mairet, 1 Hilt. 498 He must introduce evidence showing the value of his services, which will be the amount he is entitled to recover, irrespective of the sum taxed be- tween party and party. lb. When there is no agreement as to the sum to be paid to an attor- ney for his services, and he does not give any evidence on the trial as to the valne of his services, he will not be entitled to recover any thing, when the case shows that he was retained to attend to several appeals which he had brought in the County Court, but the case does not show that he rendered any services on such appeals, or the value of the ser- vices rendered. Stow v. Hamlin, 11 How. 452i And see Moore v. Westervelt, 3 Sandf . 762 ; Easton v. Smith, 1 E. D. Smith, 318. As the law now stands, an attorney may agree with a client to carry on a suit for him upon the terms that the client is to pay a certain specified sum to begin with, and that the attorney shall have that amount, to- gether with the taxable costs, and a certain percentage upon the amount recovered, as his compensation, where there is no agreement that the attorney is to carry on the litigation at his own expense. Benedict v. Stita/rt, 28 Barb. 420; Satterlee v. Frazer, 2 Sandf. 141. In the absence of any proof that the attorney was to carry the action on at his own expense, the presumption will be against the existence of any such agreement. lb. Where the plaintiff and his attorney agree upon a sum which is to be paid for the services of the latter, instead of the statutory costs fixed by the Code, and the parties subsequently compromise the suit, with an agreement on the part of the defendant to pay the costs of the plaintiff's attorney, and a judgment is entered in pursuance of such arrangement, without including costs, the defendant wiU be bound to pay the sum so agreed upon by the plaintiff, with the attorney. In such a case the defendant has notice of the facts, and he ought to ascertain the amount of those costs before he makes such a settlement. Hall V. Ayer, 19 How. 91 ; S. C, 9 Abb. 220. Before an attorney or counsel can recover in an action for his services, he must show that the client retained him. It may not be requisite to 360 COMMON COUNTS. Actions to recover for labor and services. show the original express retainer, but there must be some evidence of it, either by express request and employment, or by a subsequent re- cognition of the services rendered. Hotchhiss v. Le Roy, 9 Johns. 142. Where an action is commenc'ed iu a court of record, and an attorney assvimes to act for the plaintiff, and is recognized in that action by the defendant's attorney, as the attorney for the plaintiff in that action, this will not be sufficient evidence of a retainer to sustain an action by such attorney against the plaintiff in that action, for the recovery of attorneys' fees. lb. So, where an attorney sued for his services, m bringing an appeal from a justice's court to a County Court, and the only evidence of his retainer was the production of the original appeal papers from the clerk's office, and among those papers was the appeal undertaking, which purported to have been executed by the appellant, though no evidence was given as to the genuineness of the signatures, nor of any retainer to prosecute the appeal, this was held to be insuf- ficient to sustain the action. Burghart v. Gardner, 3 Barb. 64. Proof of the actual rendition of the services, that the justice made a return, and the presumption of official duty, will not, in the absence of other proof of a retainer, be sufficient to sustain a recovery in such an action, lb. There is, however, very little difficulty in ordinary cases, in prov- ing an actual retainer, or such a subsequent recognition of the acts done, as will legally authorize an inference of retainer. And since the Code permits parties to be witnesses, a retainer can nearly always be proved, if the defendant actually and expressly retained the plaintiff. The law requires that every attorney and counselor shall possess adequate skill, and that he will employ it in every case, according to the importance and intricacy of the cause. An attorney or counsel is not a guarantor that his client shall succeed in his cause unless he makes a special agreement to that effect. Vol. I, 600. If a cause mis- carries in consequence of the culpable neglect, or thej gross ignorance of an attorney, he cannot recover compensation for any services which he has rendered, but which were useless to his client by reason of his neglect or ignorance. Bowman v. Tollman, 40 How. 1 ; Hatch v. Fogerty, 1 Jones & Sp. 166 ; S. C, 10 Abb. (N. S.) 147 ; 40 How. 492 ; Gleason v. ClarJc, 9 Cow. 57. But merely proving that the plaintiff was nonsuited is not sufficient evidence of negligence or want of skill to defeat an attorney's claim for services. lb. Under the old practice, such a defense would have been admissible under the general issue, when the defense went to the whole claim, but notice was required, if a mere diminution of the claim was urged. lb. But now, under the Code, such a defense must be specially pleaded, whether it defends COMMON COUNTS. 361 Actions to recover for labor and services. against the claim partially or wholly. When a client refuses to pay his attorney upon the ground that he has been defeated and dam- aged by reason of the negligence and want of skill of the attorney, he must establish this fact affirmatively. Seymour v. Oagger, 13 Hun, 29. Where a judgment in favor of a plaintiff is set aside for irregularities in the practice of his attorney, such attorney cannot recover against his client either the costs of the action or the costs of opposing the motion to set aside such judgment. Hopping v. Quinn, 12 Wend. 517. Nor can he recover for money paid for such client, if the payment was made in satisfaction of the costs of discontinuance which resulted from his negligence or ignorance. lb. An attorney is liable for gross blunders and negligence in the con- duct of the business intrusted to him, for every person who enters a learned profession undertakes to bring to it the exercise of a reason- able degree of care and skill. ' The degree of skill which is required of attorneys it is rather difficult to define with exactness. Were they liable on every occasion for ignorance of the legal questions which arise in the course of their multifarious employment, their responsibility would far exceed that of any other class of professional men ; and to exempt them from any such liability on account of the difficulty and delicacy of their ordinary vocation would be directly to encourage rash- ness, ignorance and inattention in the administration of justice. The law steers a middle course, and lays it down, that to render an attorney amenable for the consequences of a mistake, he must have been grossly at fault or grossly negligent. Though it is difficult to define the exact limits which divide gross ignorance and negligence from due care and skill, yet the cases appear to have established as general prin- .ciples, that an attorney is liable for the consequences of ignorance or non-observance of the rules and practice of the courts in which he practices, for the want of care in the preparation of causes for trial, or in securing the attendance of witnesses, and for the mismanagement of so much of the conduct of the trial as is usually allotted to his depart- ment of the profession, while on the other hand he is not answerable for an error in judgment upon points of new occurrence, or those of nice and doubtful construction. In this country the rule generally recognized is, that an attorney ia liable for the want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. Gaverly v. McOwen, 123 Mass. 574; Oamhert v. Hart, 44 Cal. 542; HarUr v. Morris, 18 Ohio St. 492 ; Watson v. Muirhead, 57 Penn. St. 161 ; Walpole V. Carlyls, 32 Ind. 415. If lie acts with a proper degree of 4r. 362 COMMON COUNTS. Actions to recover for labor and services. attention, with reasonable care, and to the best of his skill and knowl- edge, he will not be held responsible. Stevens v. WalTeer, 55 111. 151. In an action against an attorney for negligence, in allowing a judg- ment to be taken by default in an action which he was retained to defend, after neghgence is shown the burden of pi'oof is upon such at- torney to show that there was no defense to that action. "And the party suing such attorney is not bound to show, in the first instance, that there Avas a good defense to it. Oodefroy x. Jay,^ 'Bmg. 4:\Z. It is a good defense to an action by an attorney for the recovery of fees, to show that he promised to conduct the cause gratuitously. Ashfard v. Price, 3 Stark. N. P. 185. So, where an attorney agrees not to charge any costs or fees except such as may be recovered against the opposite party, he cannot recover more than that sum in case of success ; and in case nothing is taxed against the opposite party as costs or fees, for the reason that the opposite party was the successful one in the action, the attorney is not entitled to recover any thing. Factors or brokers are entitled to a compensation for their services, and an action will lie in a proper case to recover the sum due. This subject has been somewhat discussed in relation to the law of agency. Yol. 1, 430. There are a few cases, however, which may be properly no- ticed in this place. Before a broker can maintain an action for commis- sions, he must have negotiated and made a contract which his employer accepts, or such a contract as his employment authorizes him to make, and it must be made with some person who is able and willing to per- form the agreement, or who may be legally compelled to do so. Barnes V. Roberts, 5 Bosw. 73, 84: ; Coleman v. Mead, 13 Bush (Ky.), 358. Commissions are a just and appropriate measure of compensation to public oflficers who receive and disburse the public money ; and so they are to trustees who execute private trusts and receive and pay out the trust funds. They are also a customary mode of compensation to merchants, agents and factors, who buy and sell property and merchandise for otliers, and pay out and receive the price therefor, and to that class of agents who deal in real property for other persons, and for obvious reasons neither pay oat nor receive into their own hands the purchase- money. Lyon V. Valentine, 33 Barb. 271. But, where the person claiming commissions is not an agent or a broker engaged in the busi- ness of buying and selling lands, and he does nothing more than to in- troduce one neighbor to another who wishes to sell a piece of land, this is not a case entitling a party to commissions, especially where the negotiations are conducted and the sale effected by the parties them- selves, lb. But, although a broker's commission could not be recovered COMMON COUNTS. 363 Actions to recover for labor and services. in such a case, the person acting as agent would be entitled to such reasonable compensation as his time and trouble were worth, if rendered at the previous request of the vendor of the land. A person who employs a broker is presumed to deal with him in reference to the customs of brokers ; and this is the rule whether the person so dealing and employing the broker knows the customs or not. Whitehmise Y. Moore, 13 Abb. 142; Horton v. Morgan, 19 N. Y. 170 ; S. C, 6 Duer, 56 ; Folloch v. StalUs, 12 Ad. & Ell. (N. S.) 765. An owner cannot be enticed into a liability for commissions against his will. A mere volunteer without authority is not entitled to com- missions, merely because he has inquired the price which an owner asks for his property, and has then sent a person to him who consents to take it. Pierce v. Thomas, 4 E. D. Smith, 354. And this is especially the rule where it is shown that the owner of the land had expressly re- fused to employ such broker, and had also refused to permit him to offer the property for sale. lb. A broker has no better claim to re- cover for voluntary ser%uce rendered without employment, and not received and acted upon by the owner as rendered in his behalf, than any other volunteer. lb. It is not sufficient for a broker to show a mere retainer to sell real estate ; he must go further, and show that he has effected a sale, or he cannot recover commissions ; and where a broker is employed to find a purchaser by a specified day, which he fails to do, and so notifies his employer, he cannot recover commissions because he afterward informs another broker that such property is for sale, although such broker afterward finds a purchaser. Holley v. Townsend, 2 Hilt. 34 ; Satt&rthwaite v. Vreeland, 3 Hun, 152 ; S. C, 5 Sup. Ct. (T. & C.) 363 ; 48 How. 508 ; Wardy. Lawrence, 79 111. 295. A broker for the sale of real estate is entitled to his commissions, when, in the language of the cases, he " is the prociiring cause of the sale ;■" that is, when he has found a purchaser and brought him to his em- ployer, and a contract is made between them for the sale of the prop- erty, or the purchaser is ready to purchase, and the seller refuses or is unable to consummate the sale. Knapp v. Wallace, 41 N. Y. 477 ; Martin v. Silliman, 53 id. 616 ; Lloyd v. Mathews, 51 id. 124 ; Fra- ser V. Wyckoff, 63 id. 445 ; Miller v. Trish, 67 Barb. 256 ; Barnard V. Monnot, 1 Abb. Ct. App. 108 ; 3 Keyes, 203. See Coleman v. Mead, 13 Bush (Ky.), 358. He is not, however, entitled to commis- sions until he has performed the undertaking assumed by him. "What- ever may be the terms and conditions upon which his right to com- pensation depends, they must be performed as a condition precedent to a right of action for a commission. Fraser v. Wychoff, 63 N. Y. 445 ; 364 COMMON COUNTS. Actions to recover for labor and services. Coleman v. Mead, 13 Bush (Ky.), 358. He is not entitled to his com- missions until he finds a purchaser ready and willing to complete a pur- chase on the terms prescribed by the seller and assented to by the broker. Moses V. Bierling, 31 JST. Y. 462 ; McG-avook v. Woodlief, 20 How. (U. S.) 221. If the principal prevents a performance by the broker, the right of the latter to recover would depend upon a different prin- ciple, and he may recover without proving a strict performance. Young v. Hunter, 6 N. Y. 203 ; Holmes v. Holmes, 9 id. 525. If the broker is employed to make a sale under an agreement for the ex- clusion of all other agencies, he is entitled to his commissions when he produces a party ready to make the purchase at a satisfactory price ; and the principal cannot relieve himself from liabihty by a capricious refusal to consummate the sale or by a voluntary act of his own, dis- abling him from performance. Gleniworth v. Luther, 21 Barb. 145 ; Koch V. Emmerling, 22 How. (U. S.) 69 ; Van Lien v. Byrnes, 1 Hilt. 134 ; Moses v. Bierling, 31 E". Y. 462. Unless it is otherwise provided by the terms of the agreement be- tween the seller and the broker, the former may employ several brokers for the sale of the same property and is of course only liable for the commissions of the one who effects the sale. And although he employs one or more brokers he may negotiate and sell the property himself without liabihty to any one for commissions. McGlave v. Paine, 49 N. Y. 561 ; S. C, 10 Am. Eep. 431 ; Sussdorf v. Schmidt, 55 N. Y. 319. "Where the owner of real estate employed a broker, then dis- missed him, and finally re-employed him, when he subsequently effected a sale of the property, it was held that he was entitled to his commis- sions, and that another broker who had conducted intermediate negotia- tions, without effecting a sale, could not recover. Ludlow v. Carman, 2 Hilt. 107. The defendant employed the plaintiff to assist him in find- ing a house, and in negotiating for the purchase of it, and the defend- ant subsequently acknowledged that the services rendered by the plain- tiff were useful, and he promised to pay for them, this was held to be sufficient to entitle the plaintiff to recover what his services were rea- sonably worth, although it was not distinctly proved that the purchase was accomplished through the plaintiff's agency. Goldsmith v. Oher- meir, 3 E. D. Smith, 121. In such a case the plaintiff is entitled to pay for his services, whether he procures the purchase or not, imless he has expressly agreed, or unless the evidence authorizes an inference that he should not have any compensation if he did not effect the purchase. lb. Doty V. Miller, 43 Barb. 529. COMMON COUNTS. 365 Actions to recover for labor and services. A broker acting at once for both vendor and purchaser assumes a double agency, disapproved of by law, and which, if exercised without the full knowledge and free consent of both parties, is not to be toler- ated. Lynch v. Fallon, 11 R. I. 311. But in cases of exchange of property, real estate brokers, employed as middlemen to bring jjurchas- ers together to enable them to make their own bargains, may charge commissions to both parties. They are not agents to buy or sell, and are not within the rule which prohibits their acting without consent as agent for both buyer and seller. Balheimer v. Reichardt, 55 How. 414 ; Siegel v. Gould, 7 Lans. 177. And see Alexander v. Northwestern University, 57 Ind. 466. Architects. — An architect is entitled to a reasonable compensation for such services as he may render at the request of his employer. And if he performs work and labor upon a biiilding on the joint em- ployment of two persons, a joint action may be maintained against them, although they may not be partners or tenants iu common of the building or land. Beach v. Raymond, 2 E. D. Smith, 496. Such joint employment of the architect need not be express, it may be proved by evidence which authorizes the inference of such an employ- ment, as, for instance, that both defendants have given direction as to the work, its character and mode of execution ; and when one of them denies his liability, his promises to pay certain bills for the construction of the building, and his indorsement of notes therefor ; his ownership of the land, and ultimately of the building thereon ; and his uniting in the examination of the architect's accounts and set- thng the balance due, are sufficient evidence to sustain a judgment in favor of the architect against both defendants. lb. The claim of the architect may be assigned, and that, too, by gift, without any consideration. Tb. ; Richardson v. Mead, 27 Barb. 178. Printers may also recover a compensation for services rendered in printing books, pamphlets, magazines, bills, advertisements, and any other matters usually printed, or which they may be desired to print. But there are a few exceptions to this general rule, for a printer cannot recover a compensation for printing a grossly immoral and obscene work, for it is against public policy, decency and morals to encourage or tolerate the publication of such works. Poplett v. Stochiale, 2 Carr. & Payne, 198. No action will lie for the price of libelous, obscene or immoral prints. Fores v. Johnes, 4 Esp. N. P. 97. Nor can the first publisher of a libelous or immoral work maintain an action against any person for publishing a pirated edition of it. Stockdale v. Onwhyn, 5 Barn. & Ores. 173 ; S. C, 2 Carr. & Payne, 163. 366 COMMON COUNTS. Actions to recover for labor and services. Clerks engaged in every kind of lawful business are entitled to re- cover the compensation agreed upon, and in the absence of an ex- press agreement, they may recover such a reasonable compensation as their services are worth. But no action will lie for services rendered by a clerk on Sunday, even though the labor is extra work, and is performed upon an express promise to pay for it. Watts v. Yan Ness^ 1 Hill, 76. Servants and day laborers constitute a very large proportion of those who have occasion to litigate their claims for compensation. The gen- eral right to recover for their services is so well understood that little need be said upon the subject. But it is important to remember that their rights under a general hiring, and those which exist under a spe- cial contract, may be essentially different, since the contract generally governs the right to compensation. See Vol. I, 222. The statute pro- hibits the exercise of ordinary labor on the Sabbath, and, therefore, no action can be maintained for labor performed on that day. 2 E. S. 936, § 66, 5th ed. The statute, however, excepts works of necessity and of charity, and also those persons who keep Saturday as the Sab- bath. Teachers may recover a just compensation for their services from those persons who employ them. But if the claim is made by a common school teacher, the plaintiff must show that he or she was duly hcensed as a teacher at the time the services were rendered. Laws of 1864, chap. 555, § 13, subs. 5, 6, 7 ; id., §§ 41, 43. And see Silver V. Cammings, 7 "Wend. 181 ; Finch v. Glevelcmd, 10 Barb. 290. Before the amendment of the act of 1864, in 1879, school district trustees could contract with a teacher in good faith, and without fraud or collusion, for a reasonable period beyond their terms of oflSce, and the contract woiild be valid and binding upon their successors in office. Wait V. Bay, 67 N. Y. 36 ; Gillis v. Space, 63 Barb. 177. But by the amendment of that act no person can be employed as a teacher of a district school who is within two degrees of relationship by blood or marriage with the trustee of the district, except with the approval of two-thirds of the voters of such district present and voting upon the question at an annual or special meeting of the district ; nor can any sole trustee of the district make any contract for the employment of a teacher for the district beyond the close of the school term commenc- ing next preceding the expiration of his term of office, except with the approval of a majority of the voters of such district present, and voting upon the question at an annual or special meeting of the district ; nor can the trustees of any school district having three or more trustees COMMON" COUNTS. 367 Actions to recover for labor and services. make any contract for the employment of ateacher or teachers for more than one year in advance. Laws of 1 879, chap. 264. "Any person employed in violation of the foregoing provisions shall have no claim for wages against the district, but may enforce the speciiic contract made against the trustee or trustees consenting to such emploj'ment as individuals." lb. An infant contracted to teach a district school for twelve weeks, and after teaching twenty-three days, the school-house was burned, and no other building was provided for her. She was not, however, discharged, and at the end of the contract term she returned the registry duly filled out with ciphers, etc., — and it was held that, after her majority, an action would lie for her wages for the full term. Cashen v. School District, 50 Yt. 30. The teacher of a select or private school may recover pay for such services as may have been rendered, and the amount of the recovery will be such as has been expressly agreed upon, or in absence of an express agreement, the amount will be such as the services are reasonably worth. Where such schools undertake to furnish board, lodging and instruction for the scholars attending, it will be a good defense to an action upon a bill for tuition, board and lodging, to show that the scholars were not furnislied with sufficient instructions, board and lodging. Clements v. May, 7 Carr. & Payne, 678. But the defend- ant, in an action to recover for tuition, etc., must confine himself to evidence as to the treatment of the scholars sent by him, and he will not be permitted to go into general evidence either as to the plaintiif 's mode of conducting the school, or as to his conduct with reference to other particular boys. lb. The jury, or the justice sitting in their place, may find, from the evidence, if that warrants the conclusion, that the plaintiff is not entitled to recover any thing, or they may reduce the amount of his recovery to such sum as may be reasonable and just. lb. Authors and editors are entitled to recover pay for their services ; but their claims are regulated and controlled by the same general rules which relate to other contracts of service. And, therefore, neither an author nor an editor can recover any compensation for writing libelous or immoral or obscene works or articles, nor for labor performed on Sunday. And it is not necessary that the plaintiff should be an author or editor to entitle him to recover for services rendered on request. And, if the proprietors of a newspaper publish a standing notice, which requests a voluntary correspondence containing important news, and promising to pay 368 COMMON COUNTS. Actions to recover for labor and services. liberally for any articles which may be furnished and used, they will be compelled to pay a person who furnishes such articles as are published by such proprietors in their paper. Bahcock v. Raymond, 2 Hilt. 61. The writer of such an article is competent to testify as to its value ; and if no contradictory evidence is given, the evidence so given will be conclusive as to value. lb. The publication of such an article is an admission that it is of the character required by the notice. lb. Physicians or surgeons may maintain actions for tne recovery of pay for their labor, services, attendance or medicines. The old law, requir- ing a license or diploma from one of the incorporated medical societies of this State (2 E. S. 60, § 16, 5th ed.), has been repealed. 2 R. S. 66, § 38 ; Laws 1844, chap. 2Y5. But other acts of similar purport have since been passed ; and every physician and surgeon is now required, not only to have a license to practice, but to register his name, residence, place of birth, and his authority for practicing, in the clerk's office of the county where he practices or intends to practice. Laws of 1872, chap. 746 ; Laws of 1880, chap. 513 ; Laws of 1881, chap. 186. Any person practicing as a physician or surgeon without a license or diploma, or without registering, or who shall practice under a diploma illegally obtained, is guilty of a misdemenor, and may be punished by fine or imprisonment, or both. Laws of 1874, chap. 436 ; Laws of 1880, chap. 513, § 3. The statutes regulating the practice of physic and surgery in this State, prior to 1806, did not in terms declare that no compensar tion should be recovered by an unlicensed practitioner, but they sub- jected him to a penalty for the unauthorized ■ and illegal act, and this was declared equivalent to a provision prohibiting a recovery for such compensation. Bailey v. Mogg, 4 Denio, 60. The present statutes should receive the same construction. It was held, under the old laws, that a failure to deposit a copy of his license in the clerk's office, as re- quired by statute, would not prohibit a recovery by a duly licensed physician for professional services. Finch v. Oridley, 25 Wend. 469. But, at the time this decision was rendered, the practice of physic or surgery withoi|t depositing a copy of the license in the clerk's office only subjected the practitioner to a penalty, and was not made by statute a criminal offense. Under the present statute, a physician or surgeon is prohibited from practicing without registering as provided in the act of 1880, and practicing without registration is made a criminal offense ; and it would seem from the effect given by the courts to other statutes containing similar provisions, that a physician or surgeon prac- ticing in violation of the statutes could not recover compensation for COMMON COUNTS. 369 Actions to recover for labor and services. his professional services. See Swords v. Owen, 43 How. 176 ; S. C, 2 Jones & Sp. 277 ; Orijjfith v. Wells, 3 Denio, 226 ; Best v. Bauder, 29 How. 489 ; Hallett v. Novion, 14 Johns. 290 ; Seneca County Banh v. Lamh, 26 Barb. 595. The defense, to be available, must be pleaded and the facts constitut- ing the defense must be proved upon the trial. See 6>' Toole v. Oar- vin, 1 Him, 92; S. C, 3 Sup. Ct. (T. & 0.) 118 ; Henneq^dnv. Butter- field, 11 Jones & Sp. 411. In an action by a physician to recover for professional services it is not necessary that the physician should pro- duce his diploma in order to make his ease. In civil cases a license is presumed until the contrary is shown . MoPfierson v. Cheadell, 24 Wend. 15 ; Thompson v. Sayre, 1 Denio, 175 ; Smith v. Joyce, 12 Barb. 21. The law implies a promise on the part of a physician or surgeon, that he possesses ordinary skill, and that he will discharge his professional du- ties with reasonable and ordinary care and skill. Bellinger v. Graigue, 31 Barb. 534. If he does not possess, such skill, or if he neglects to use it, so that the patient is not benefited, or is in fact injured, in con- sequence of his negligence, or his ignorance, he cannot recover any thing for his services, but will, on the contrary, be liable to an action for the damages sustained. lb. The presumption is, in the absence of proof of negligence or want of skill, that the physician is skillful, and that he has not been negligent. lb. This presumption may, however, be rebutted by evidence showing ignorance or neghgence on his part. lb. A physician or surgeon is entitled to recover for the services rendered by a student in his office, in attending upon the patients of such physician or surgeon. People v. Monroe Com. Pleas, 4 Wend. 200. The law in this State does not recognize any exclusive preference for any particular system of medicine, or for any class of medical practitioners. Corsi v. Maretzeh, 4 E. D. Smith, 1 ; White v. Carroll, 42 N. Y. 161 ; S. C, 1 Am. Eep. 503. Clergymen. — A call to a minister which is signed by three elders and a trustee of a Presbyterian congregation, is the act of the corporation, and not that of the officers signing the call who are not individually liable to the minister for the payment of the salary promised. Paddock V. Brown, 6 Hill, 530. But, a clergyman may maintain an action against an individual who has promised to pay a stipulated sum annually for his services in preaching. Mom^e v. Fox, 10 Johns. 244. Where a Methodist minister has, at the request of the proper authori- ties of the church, entered upon the discharge of his duties, under the understanding that he is to be paid for his services, and has performed the duties of his calling, and is appointed by his bishop for a second 47 ' 370 COMMON COUNTS. Actions to recover for labor and services. year with the knowledge of the trustees and congregation, and performs the duties of that year, he can recover against the corporation upon an impUed promise to pay him for his services. Landers v. Frank Street Church, 15 Hun, 340. Carriers. — So, common carriers may maintain an action to recover pay for their services. See Vol. I, 619. If a statute prescribes the amount of their compensation, they cannot recover more than the sum prescribed. If a carrier receives grain for transportation upon an agree- ment that freight is to be paid at the rate of a specified sum per bushel, he cannot recover for any more than the amount due upon the number of bushels actually delivered. Allen v. Bates, 1 Hilt. 221. But when an agreement is made to furnish a carrier with a specified quantity and quality of freight which is not done, the carrier will not be entitled to recover such damages as he has sustained 'in consequence of the failure to furnish the freight. Shannon v. Comstoclc, 21 Wend. 457. A con- tract by a carrier that he will transport and deliver goods at a specified place by a given day, or in default thereof will deduct a specified sum from the freight for every day that the goods are delayed beyond the agreed time, is a valid contract, and will be enforced against the carrier. Ha/rmony v. Bingham, 12 N. Y. 100. If a carrier, in violation of such an agreement, refuses to deliver the goods without the payment of the full freight, and the owner, for the purpose of obtaining possession of his property, pays the full sum under protest, he may recover back from the carrier the amount of such over-payment because it was not a volun- tary payment. lb. Where there is an express agreement as to the amount of freight to be paid, the agreement will control. But, if there is no such agreement, the cai'rier may recover such sum as is reasonable which may be ascertained by the usages of trade and the circumstances of the case. If the property is carried gratuitously or against the will of the owner, no action will lie for freight. Sohureman v. Withers, Anthon's IST. P. 166. The goods must not only be transported to the place specified, but they must be delivered before an action will lie by the carrier. Row- land V. Miln, 2 Hilt. 150. Where the transportation is by water, the proper place of dehvery is on the wharf, upon due notice to the con signee of the time and place of delivery. lb. If the consignee is absent, dead or cannot be found after due efforts, or if he refuses to receive them, the carrier, to discharge himself from responsibility, must place them in store with a responsible person, at the risk, cost and charge of the owner. lb. COMMON COUISfTS. 371 Actions to recover lor labor and services. But if a delivery is preveuted by tlie neglect or default of the owner, or by his willful acts, the carrier will be entitled to his compensation, lb. The claim of a carrier may, however, be diminished or entirely de- stroyed, if from his negKgence or want of skill the goods are deterio- rated in value to the amount which authorizes such reduction or dis- charge of his claim. When property is carried a part of the distance agreed upon, and it is then voluntarily accepted by the owner before the completion of the journey, the carrier is entitled to recover jf to rata for the distance which he carried such property. Rowlamd v. Miln, 2 Hilt. 150. An intermediate consignee may lawfully refuse to pay freight to a carrier who has lost or converted a part of the goods de- livered to him for transportation, where such carrier refuses to allow and deduct the value of the property so lost or converted. Davis v. Pattison, 24 J!^. Y. 317. No contract for the payment of freight for a part of the property delivered will be implied in such a case. lb. An inter- mediate consignee is authorized, by virtue of his character, to adjust and recover the damages which result from a loss of a part of the property. lb. Manufacturers