(IJnrnrU ICam ^rijnnl library Cornell University Library KFN5975.W14 1914 V.I The law In civil actions and proceedings 3 1924 022 881 571 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022881571 THE LAW IN CIVIL ACTIONS AND PROCEEDINGS IN THE VARIOUS COURTS OF THE STATE OF NEW YORK, INCLUDING THE PRINCIPLES OF LAW RELATING TO ACTIONS OR DEFENSES, AND THE RULES OF EVIDENCE, TOGETHER WITH CITATION OF AUTHORITIES. BEING "THE LAW AND PRACTICE IN CIVIL ACTIONS AND PROCEEDINGS IN JUSTICES' COURTS AND ON APPEAL TO THE COUNTY COURTS IN THE STATE OF NEW YORK, IN- CLUDING THE PRINCIPLES OF LAW RELATING TO ACTIONS OR DEFENSES : THE RULES OF PRACTICE, OF PLEADING, AND OF EVIDENCE : TOGETHER WITH PRACTICAL FORMS AND PRECEDENTS" By William Wait, Counsellor at Law. EIGHTH EDITION REVISED AND ENLARGED TO CONFORM WITH THE PRESENT STATUTES AND DECISIONS OF NEW YORK, BY CHARLES ALMON TIPLING, LL. B. COUNSELLOR AT LAW. VOLUME I. EOCHESTER, NEW YORK WILLIAMSON LAW BOOK COMPANY. 1914 COPYRIGHT 1914 BY WILLIAM WAIT AND ISAAC V. A. WAIT. PEEFAOE TO THE EIGHTH EDITION. NEAULY eleven years have elapsed since the publication of the Seventh Edition of WAIT'S LAW AND PRAC- TICE, within which period, many changes have heen made in the laws of this State. On February 11, 1909, every general statute which had been enacted by the Legislature, from Colonial days down to and in- cluding the session of 1908, was repealed, and in place thereof was enacted on that day the body of general statute laws, under the name of the Consolidated Laws, containing sixty-seven chap- ters, and in addition thereto the amendments of the Codes of Civil and Criminal Procedure. The Penal Code, as it existed prior to that date, was also re- pealed, and the "Penal Law," known as chapter 40 of the Consoli- dated Laws, being chapter 88 of the laws of 1909, was enacted in its stead, and as it now stands, contains the various provisions of the Session Laws annually enacted by the Legislature, and the former General Laws, which had not previously been contained in the Penal Code. This radical revision of the statute law of the State, together with the creation of the Penal Law and Criminal Code in place of the former Criminal and Penal Codes, the transfer of many sections of the Codes, Civil, Criminal and Penal, to the body of the statute law, and likewise many provisions from the body of the statute law to the various Codes, has made is necessary to entirely re-write or re-edit, a large part of the text. The greater part of Wait's Law and Practice treats of the vari- ous matters of substantive law that arise in the daily affairs of men, — ^matters that may require adjudication in any of the higher courts, as well as those of Justices of the Peace, or the Municipal Courts or local courts of cities, the selection of the tribunal de- pending for jurisdiction on the amount involved. A part of the plan of this work, is, so far as possible, to confine all matters strictly involving practice, to the third volume, so that important changes therein, made by the legislature or the courts may not require so frequent revision of more than the last volume. The editor of this edition has earnestly endeavored, so far as possible, to preserve the original plan of the author, adding citations of the latest decisions and statutes. It has been his aim, without altering the general scope and plan of former editions, to add new matter pertinent to the subject discussed, and to eliminate obsolete matter with respect to those subjects which have undergone changes through decisions of the courts or enactments of the legis- lature, and to bring down to date the law as it now stands. In doing this, the latest changes in the statutes, including such as were made by the legislature of 1913, and the decisions of the courts of this State have been stated, together with such pertinent citations of the authorities of other States, as has been deemed necessary. Much time and labor have been expended in the preparation of the Table of Cases, Table of Contents, Table of Statutes and Code Sections construed, and to the Index, by the use of which the practitioner may quickly find access to further consideration of any subject which may present itself, as bearing upon the point involved. An attempt has been made, in line with the author's general plan, to treat as fully as possible consistent with this work, sub- jects over which courts of Justices of the Peace have jurisdiction, and to present such forms for use by such justices, and by the pro- fession generally, as will, it is hoped, be found accurate, serviceable and workable. The vast accumulation of general and statute law treated of in this work has much enlarged the bulk of the several volumes of this edition, but it is the hope of the editor that such matter as has been added by way of citations of decisions of the courts, and statutes, will be found of added value to the gen- eral practitioner, and that if, perchance some inaccuracies appear, they will be so slight as not to impair the usefulness of a work which has been recog-nized for nearly half a century as a standard authority upon the substantive law of this State, and upon the prac- tice in Justices' Courts. The preparation of this edition, while an exacting task, has been a pleasant one, and the editor submits it to the indulgent criticism of a generous and forbearing profession, with the expectation that it may be found of use to its members in their practice. Eichmond Hill, ISTew York City, N". Y., December 16, 1913. CHAELES A. TIPLING. TABLE OF CONTENTS. PART I. THE PRINCIPLES OF LAW RELATING TO CONTRACTS IN GENERAL. CHAPTER I. The Law of Contracts. Page Section 1. General definitions 1 2. Parties to a contract 6 3. Joint or several liability of parties 7 4. Consideration 8 A consideration, as an essential to the validity of a contract 8 Kinds of consideration 11 Sufficiency of consideration 16 Prevention of litigation 19 Forbearance 22 Labor and services 23 Promise for a promise 27 Subscriptions and contributions 30 Rewards offered 33 Consideration void in part 36 Illegality of consideration 36 Impossible considerations 37 Failure of consideration 38 Stranger to consideration 38 Time of the consideration 39 Impeaching consideration 40 Gifts 41 5. Assent of the parties 42 Time of giving assent 45 6. Written sealed agreements 46 7. Construction of contracts 56 The general object and principles of construction 56 8. The law of place 64 V VI TABLE OF CONTEA'TS. CHAPTER II. Bonds. Page Section 1. Money bonds 66 2. Indemnity bonds 69 3. Surety bonds and undertakings under the Code 75 4. Bastardy bonds 77 CHAPTER III. Chattel Mortgages. General statutory provisions 78 Section 1. Who may make a mortgage 79 2. What is a chattel mortgage 80 3. W^hat may be mortgaged 87 4. Rights of the mortgagor 93 5. Rights of the mortgagee 101 6. Rights of creditors 110 7. Rights of purchasers in good faith 115 8. Form and requisites of a mortgage 118 9. Validity of chattel mortgages 127 10. Filing chattel mortgages 135 When a mortgage is invalid unless filed 135 When filed 137 Where filed 138 How filed 140 11. Refiling chattel mortgages 142 When to refile 145 Where to refile 146 How to refile 147 12. Certified copies as evidence , 148 13. Discharge of chattel mortgages 149 CHAPTER IV. Special Contracts to Labor. Section 1. Complete performance as a condition precedent 150 2. When partial performance gives a right of action 156 3. Contracts conditioned upon "satisfaction," etc 160 4. Deviations from the original contract 162 TABLE OF CONTENTS. vii CHAPTER V. Landloed and Tenant. Page Section 1. What constitutes a lease •. 167 What is not a lease 170 Lease by estoppel 173 Description or identity of premises 176 Duration of term 177 2. Holding over by the tenant 180 3. Occupation under a void lease 184 4. Notice to quit 187 5. Rights and obligations of the parties 189 Underletting and assignment 197 6. Surrender of the term 205 7. Forfeiture of the lease 211 8. Eviction 212 9. The obligation to repair 220 10. Covenants to pay taxes, to renevp, etc 226 11. Emblements 228 CHAPTER VI. The Law of Agency, ob Principal and Agent. Section 1. Authority of an agent 230 2. Duties of agents 249 Duty to act in person and not by substitute 254 3. Public agents 256 4. Factors, brokers and commission merchants 258 5. Agent cannot act for himself and for principal at same time 269 6. Person cannot be agent for two opposite parties 273 7. Duty of agent to account 275 8. Commissions of factors, brokers, etc 280 9. Lien of agents, factors, etc 287 10. Notice to the agent, when notice to his principal 289 11. Liability of principal for acts of agent 292 12. Authority of the agent, how exercised 301 13. Liability of the agent to the principal 306 14. Actions by agents on their contracts 309 15. Compensation of the agent 310 16. Liability of agent to third persons 311 17. Termination of agent's authority 318 CHAPTER VII. COBPOKATIONS. SEMrrioN 1. Classification and definitions 321 viii TABLE OF CONTENTS. Page 2. Subscriptions for stock 323 3. Transfers of stock 327 4. General powers of all corporations 330 5. Liability of corporations 340 6. Liability of stockholders 347 CHAPTER VIII. Partnership. Section 1. Who are partners 351 2. 'Liability of partners to third persons 358 3. Agent who is paid a share of gross profits not a partner . . 363 4. What is a tenancy in common instead of a partnership . . 364 5. Form of partnership agreement 365 6. To what business partnership extends 368 7. Division of profits and losses 369 8. Retiring partner 372 9. Survivorship 375 10. Limited partnership and special partners under statute . . 380 11. Joint-stock companies 382 12. Rights, duties and liability of partners 384 13. Dissolution of partnership 398 14. Actions by partners against each other 403 CHAPTER IX. Bailment. Section 1. General definitiono 408 2. Depositum 410 3. Mandatum 417 4. Commodatum or gratuitous loan 424 5. Pledges or pawns 429 6. Letting and hiring of personal chattels, etc 440 7. Locatio, or letting and hiring of work 446 8. Innkeepers 459 9. Common carriers 471 10. Receiptor's agreement 506 CHAPTER X. Lien. Section 1. Liens in general 508 2. Mechanics' liens 525 TABLE OF CONTENTS. IX Page 3. Liens on vessels 54O 4. Liens on monuments, gravestones and cemetery structures . . 543 5. Liens for labor on stone 543 6. Liens for the services of stallions 544 7. Enforcement of liens on personal property by sale 545 CHAPTER XI. CONTKACTS rOK THE CONDITIONAL SaLE OF GoODS AND CHATTELS. Section 1. In general 549 2. Conditional sale of railroad equipment and rolling stock. . . 550 3. Title to goods sold under a contract for conditional sale. . . . 550 4. Filing of contracts for conditional sale 553 5. Rights of vendor on default 554 6. Sale of the property and disposition of the proceeds 558 CHAPTER XII. Pkincipal and Subett. Section 1. Who is a surety 560 2. Liabilities of sureties 562 3. Sureties in indemnity bonds 565 4. Discharge of sureties 569 5. Rights of a surety against his principal 575 6. Rights and liabilities of co-sureties 577 7. Continuing guaranties 579 8. Rights of sureties against third persons 581 9. Guaranties of collection or of payment 585 CHAPTER XIII. Bills of Exchange and Pbomissory Notes. Section 1. General principles and definitions 589 2. Parties to a bill or note 593 3. Form and requisites of negotiable instrument 594 4. Incomplete negotiable instruments 618 5. Checks 619 6. Bills of exchange in a set 623 7. Bills and notes not negotiable 625 8. Consideration of bills and notes 633 9. Guaranty of bills and notes 644 10. Negotiation of bills and notes 647 11. Acceptance of bills 655 12. Presentment of bills of exchange for acceptance 659 13. Proceedings on non-acceptance 663 X TABLE OF CONTENTS. Page 14. Presentment of negotiable instruments for payment 663 15. Notice of dishonor of a bill or note 66fi 16. Protest of bills of exchange 675 17. Rights of the holder 676 18. Discharge of negotiable instruments 680 19. Payment by bill or note 681 20. Lost bills and notes 686 CHAPTER XIV. Gifts. Section 1. Nature, definition and classification of gifts 693 2. Parties to gifts 694 3. Property which is the subject of gift 695 4. Essentials of a valid gift 696 6. Revocation of gifts 706 CHAPTER XV. Assignments. Section 1. What may be assigned 705 2. Requisites of an assignment 713 3. What passes to the assignee under the assignment 715 4. Notice of the assignment 718 CHAPTER XVI. Sale. Section 1. What constitutes a sale 721 2. What is a bailment instead of a sale 723 3. Sales in gross 725 4. Requisites of a valid sale 726 5. Must be a subject matter of sale 729 6. Construction of contracts of sale • 731 7. When the title passes on a contract of sale 737 8. Sale or return 748 9. Sales by persons without title 750 10. Delivery of the property sold 752 11. Sale of articles to be manufactured 770 12. Sale or delivery procured by fraud 773 13. Rescinding contracts of sale 782 14. Warranty 794 15. Stoppage in transitu 824 16. Sales, how affected by the statute of frauds 830 17. Rights and remedies of parties to contracts of sale 844 TABLE OF CONTENTS. XI CHAPTER XVII. Interest on Money. Page Seotion 1. Nature and rate of interest 862 2. Demands upon which interest is recoverable 865 3. Interest upon interest 874 4. From what time interest commences to run 875 5. Computation of interest 882 CHAPTER XVIII. Usury. Section 1. What constitutes usury 884 2. Who may plead usury as a defense 906 3. How affected by the law of place 914 CHAPTER XIX. Insurance. Section 1. Contracts of fire insurance and actions thereon 919 Insurable interest 919 Insurance of mortgaged property 923 Action by assignee of the policy 924 Agreements for insurance 924 Construction of the policy 924 Statements in application 925 Conditions in the policy 927 Waiver of forfeiture 928 When company estopped from claiming a forfeiture 929 Conditions as to the inception of the contract 930 Notice of loss 932 Proofs of loss 934 Other insurance 936 What the policy covers 936 CHAPTER XX. Judgments. Section 1. Actions upon judgments 938 CHAPTER XXI. Fixtures. Section 1. Heir and executor 940 2. Landlord and tenant 942 Time of removal 944 What the tenant may remove 945 xii TABLE OF CONTENTS. Page 3. Vendor and purchaser of real estate 946 4. Mortgagor and mortgagee of real estate 950 5. When liable to an execution . . . .' 953 CHAPTER XXII. The Statute op Frauds. Section 1. Provisions of the Personal Property Law 955 Expressing a consideration 956 Mode of expressing consideration 957 In contracts of guaranty and suretyship 958 Parol evidence in aid of the writing 961 2. Contracts to be performed within one year 962 Contracts within the statute 963 Contracts of employment 964 Construction of the agreement 965 Miscellaneous examples of void agreements 966 Part performance 970 Pleading the statute 97.1 Contracts which may or may not be performed within a, year 973 3. Promise to answer for the debt, default or miscarriage of another 975 Original or collateral promise 976 Nature of the consideration 981 Stranger to the consideration 982 Promise must be valid as between promisor and promisee 9S2 Promise must be in writing 983 Question as to whom credit was given 986 New contract and abandonment of the old 987 Compliance with request of promisor 988 Transfer of notes, etc 989 4. Sale of an interest in land, etc 990 Conveyance and agreement to convey, distinguished .... 992 Authority of agent to sell, etc 992 Exchange of lands, etc 993 Interest in lands • 993 Agreements to purchase for the benefit of another 995 Contracts in respect to crops, trees, etc 996 Contracts to pay in land 997 Recovering back payments made on void contracts 998 Part performance of void agreement 999 Requisites of the note or memorandum 1000 5. Agreements not within the statute 1002 6. Fraudulent sales, assignments, judgments, etc 1003 Chattel mortgages void as against creditors, etc 1006 Bills of sale, etc., void as against creditors 1007 Assignments with preferences 1008 New promise in bankruptcy 1017 TABLE OF CASES CITED. A. Abbett V. Frederick, 438. Abbott V. Draper, 789, 792, 998. Abeel v. Eadoliff, 181. Abegg V. Bishop, 1009. Abell V. Bradner, 254, 270. Aberdeen v. Blackmar, 74, 566, 567, 584. Abrahamovitz v. New York City Railway Co., 425. Abrahams v. Clausen, 902. Abramson-Engesser Co. v. McCaf- ferty, 153. Academy of Music v. Hackett, 211. Acker v. Campbell, 776, 785. Ackley v. Finch, 101, 918. Ackley v. Westervelt, 181. A. C. Nellis Co. v. Nellis, 337. Adair v. Brimmer, 246. Adams & Co. v. Albert, 374. Adams v. Burr, 214. Adams v. City of Cohoes, 181, 189. Adams v. Cole, 297. Adams v. Davidson, 1014. Adams v. Fort Plain Bank, 877. Adams v. Hull, 11. Adams v. Jones, 615. Adams v. Koehler & Co., 198. Adams v. Mills, 289. Adams v. New Jersey Steamboat Company, 484. Adams v. Roscoe Lumber Company, 740. Adams v. Sage, 20. Adams v. Slingerland, 349. Adams v. Tator, 575. Adams v. VanAlstyne, 1003. Adams v. Wallace, 349. Adelberg v. United States Fidelity and Guaranty Co., 68. Adler v. Miles, 191. Adler v. Wells & Fisher Co., 557. Adolff V. Schmidt, 263. Adrianee v. Roome, 295. Aeschilmann v. Presbyterian Hospi- tal, 533. J5tna Fire Insurance Company v. Tyler, 935. JRtnsi Insurance Co. v. Aldrich, 104. Agawam Bank v. Streever, 580. Aguirre v. Allen, 834, 835. Ahem v. Goodspeed, 266, 809, 912. Ainis V. Ayers, 830. Ainslie v. Wilson, 643. Akin V. Blanchard, 344. Allaire v. Ouland, 73. Allard v. Booth, 452. Allard v. Greasert, 758, 840. Alaman v. Mayor etc., of Albany, 164. Albany City Insurance Co. v. Deven- dorf, 571, 573. Albany, etc. v. Vedder, 570. Albright v. Voorhies, 726. Alden v. New York Central R. E. Co. 496. Aldrich v. Pyatt, 841. Aldrich v. Reynolds, 888. Aldridge v. Husted, 272. AUeman v. Bowen, 669. Allen V. Brown, 714, 715. Allen V. Coit, 290. Allen V. Corby, 515. Allen V. Corn Exchange Bank, 649. Allen V. Cowan, 132, 135, 701. Allen V. Devlin, 210. Allen V. Fosgate, 646. Allen V. Franklin Fire Insurance Co., 921. Allen V. Jaquish, 207. Allen V. Merchants' Bank, 813. Allen V. O'Brien, 276. Allen V. Rightmere, 647. Allen V. Sackrider, 472, 474. Allen V. Sewall, 480, 483. Allen V. Suydam, 307, 661. Allen V. Smith, 515, 518, 712. Allen V. Scarff, 986. Allerton v. Allerton, 790, 794. Allerton v. Lang, 695, 698. Allis v. Read, 838. Allison V. Matthieu, 778. Alexander v. Cauldwell, 295. Alexander v. Germania Fire Insur- ance Co., 927. Alexander v. Greene, 473, 504. Alexander v. Kellner, 549. Alexander v. Thomas, 608. Alsberg v. Luzerne Hotel Co., 463. xm XIV TABLE OF CASES CITED. Alt V. Weidenberg, 535. Althorf V. Wolfe, 300. Altman v. McMillin, 59. Alvord V. Baker, 628. Ambler v. Bradley, 365. Ambler v. Owen, 1002. Amburger v. Marvin, 969. American Boiler Co. v. Fontham, 597. American Exchange Bank v. Corliss, 638. American Exchange Bank v. Webb, 3011, 1014. American Forcite Powder Manufac- turing Co. V. Brady, 807. American Press Association v. Brant- ingham, 330. American Typefounders Co. v. Con- nor, 726. Ames V. Belden, 62, 63. Ames V. Downing, 377, 399, 868. Ames V. Jones, 816. Ames V. New York Union Insurance Company, 930. Amidon v. Wheeler, 265. Amory v. Nason, 696. Amginck v. Rogers, 591, 597. Andrew v. Newcomb, 90, 731. Andrew v. Deitrich, 779. Andrews v. Chadbourne, 617. Andrews v. D. B. Co., 946. Andrews v. Durant, 112, 451, 737, 739, 771. Andrews v. Garstin, 367. Andrews v. Kneeland, 297, 728, 864. Andrews v. Nichols, 695. Andrews & Co. v. Hess, 616. Anderson v. Conner, 306. Anderson v. Coonley, 231. Anderson v. Drake, 662. Anderson v. Fry, 696. Anderson v. Nicholas, 515, 751, 781. Anderson v. Reed, 736. Angel V. Felton, 684. Annent v. Terry, 582. Anonymous, 775. Anthony v. Harrison, 10, 41. Anthony v. Moore & Munser Co., 879. Antisdel v. Williamson, 572, 574. Appleby v. Biddulph, 605. Appleton V. Citizens' Central Na- tional Bank, 334. Arras v. Richardson, 208. Arend v. Smith, 8, 9, 13. Archer v. Cole, 99. Archibald v. Thomas, 59, 896. Arent v. Squires, 438. Argensinger v. McNaughton, 313. Armour v. Michigan Central R. R Co., 751. Armour v. Transatlantic Fire Insur- ance Co., 926. Armstrong v. Danahy, 326. Armstrong v. Gilchrist, 248. Armstrong v. Lewis, 369. Armstrong v. McLean, 432. Armstrong v. Wheeler, 203. Arnold v. Arnold, 404. Arnold v. Camp, 374. Arnold v. Halenbeck, 473. Arnold v. Nichols, 38. Arnold v. Rock River, etc., R. R. €o., 610. Arnot V. Erie Ry. Co., 11. Arnot V. Pittston & Elmira Coal Co., 36. Arnson v. Abrahamson, 659. Aronson v. Wertheim, 62. Artcher v. Zeh, 831, 838, 973. Arthur v. Brooks, 713. Artman v. Hare, 313. Assets Realization Co. v. Howard, 350. Ash V. Putnam, 773, 774, 776, 785. Asher v. Deyoe, 775, 776. Ashner v. Abenheim, 313. Aspinwall v. Sacchi, 8. A. S. R. Co. V. Fancher, 776, 777. Astor V. L'Amoreaux, 203. Atwood V. Armstrong, 33. Atwood V. Emery, 58. Atchison-Ely v. Thomas, 35C. Atlantic State Bank v. Savery, 291, 386. Atkins V. Saxton, 375. Atkinson v. Collins, 159. Atkinson v. Manks, 607, 610, 627. Atwater v. Fowler, 404. Atwood V. Ernest, 415, 456. Atwood V. Griffin, 603. Auburn Savings Bank v. Brinker- hoff, 571. Austin V. Burns, 605. Austin V. Dye, 552. Austin v. Fuller, 906, 917. Austin V. Holland, 401. Austin V. Sawyer, 949, 1002. Austin V. Vandermark, 390. Auten V. Ellingwood, 352. Automatic Vending Co., v. Heins, 9. Auto-Spring Repairer Co. v. Mutual Auto-Accessories Co., 736. Averill v. Loucks, 1013. Averill v. Taylor, 168. Avon Springs Sanitarium Co. v. Kel- logg, 324. Avon Springs Sanitarium Co. v. Weed, 324. Aymar v. Beers, 660. Ayrault v. McQueen, 637. Ayres v. Doying, 616. B. Babeock v. Beman, 304, 317, 650. TABLE or OASES OITED. XV Babcock v. Kuntsch, 13, 574. Bacon v. Montauk Brewing Com- pany, 335. Baer v. Bonynge, 312. Baglehole v. Walters, 818. Bagley v. Freeman, 201, 202. Bagley v. Eowe, 1011. Bagley v. Smith, 398, 406. Bailey v. Adams, 513. Bailey v. Bidwell, 637. Bailey v. Burton, 113. Bailey v. Delaplaine, 208. Bailey v. Freeman, 988. Bailey v. Mayor etc., of New York, 237. Bailey v. Ogden, 832. Bailey v. The United States, 710. Bain \. Clark, 228. Baird v. Baird, 10, 41. Baird v. Daly, 457. Baird v. Mayor etc., of New York, 787. Baird v. Walker, 276, 277. Baker v. Bonesteel, 686. Baker v. Codding, 970. Baker v. Cuyler, 836. Baker v. Drake, 435. Baker v. Higgins, 54, 767. Baker v. Kilburn, 1000. Baker v. New York National Ex- change Bank, 267, 278. Baker v. Bobbins, 791. Baker v. Spencer, 20. Baker v. Woodruff, 723. Bakewell v. Ellsworth, 433. Balch V. Symes, 522. Baley v. Homestead Fire Insurance Co., 929. Baldey v. Parker, 840. Baldwin v. Burrows, 246, 353, 365. Baldwin v. Liverpool and Great Western Steamship Co., 482. Baldwin v. Palmer, 996, 999, 1000. Baldwin v. Williams, 831. Balfe V. West, 418. Ball V. Larkin, 718. Ball V. Liney, 415. Ball V. New Jersey Steamboat Com- pany, 478. Ball V. Shafter, 95, 100, 128. Ball V. Stover, 965. Ballard v. Burgett, 551, 552, 751. Balrae v. Wombaugh, 865, 914. Ballou V. Cunningham, 106. Baltzen v. Nicolay, 314, 315. Bamberger v. Kahn, 708. Bancroft v. Winspear, 566. Bander v. Bander, 876. Bangs v. Bailey, 871. Bangs v. Bangs, 67. Bangs V. Mcintosh, 871. Bangs V. Mosher, 571, 572, 573. Bangs V. Strong, 573. Bank v. Seligman, 1008, 1009. Bank v. Vanderhorst, 319. Bank of Albion v. Burns, 561, 572. Bank of Albion v. Smith, 658. Bank of British North America v. Delafield, 405. Bank of Genesee v. Patchin Bank, 334. Bank of Lansingburgh v. Crary, 88, 997. Bank of Monongahela Valley v. Wes- ton, 373, 374, 401. Bank of New York, etc.. Association Y. American Dock and Trust Com- pany, 272. Bank of New York v. Livingston, 588. Bank of New York v. Bank of Ohio, 335. Bank of Niagara v. Johnson, 344. Bank of North America v. Embury, 388. Bank of Orange v. Brown, 472. Bank of Orleans v. Torrey, 274. Bank of Port Jefferson v. Darling, 652. Bank of Rochester v. Gray, 338, 663. Bank of Rochester v. Jones, 80, 101, 102, 519. Bank of Rochester v. Monteath, 315, 372. Bank of Rutland v. Buck, 639. Bank of Silver Creek v. Talcott, 59, 1010. Bank of the State of Georgia v. Lewis, 916. Bank of Syracuse v. Hollister, 662. Bank of Troy v. Topping, 11. Bank of The United States v. Davis, 289, 300, 346, 673. Bank of Utica v. Manufacturers and Traders Bank, 328. Bank of Utica v. Smalley, 329. Bank of Utica v. Smith, 673. Bank of Utica v. Wagar, 896, 917. Banks v. Van Antwerp, 889. Banta v. Banta, 966. Barasch v. Kramer, 950. Barbeau v. Picotte, 405. Barber v. Kerr, 640. Barber v. Lyon, 755. Barber v. Rose, 196. Bard v. Poole, 915. Bardwell v. Roberts, 80. Barker v. Bradley, 11, 38, 985. Barker v. Bucklin, 39, 981, 985. Barker v. Mechanic's Insurance Com- pany, 306, 315, 332. Barkley v. McCue, 208. Barlow v. Broadhurst, 609. Barlow v. Mvers, 38, 646, 716, 982. Barnard v. Viele, 687. Barnes v. Brown, 273. XVI TABLE OF CASES CITED. Barnes v. Graham, 633. Barnard v. Campbell, 752, 776, 778. Barnes v. Harris, 939. Barnes v. Marshall, 480. Barnes v. Perrine, 31. Barnes v. Ryan, 9, 19. Barney v. Dewey, 822, 823. Barretto v. Snowden, 894. Barring v. Corrie, 258. Barron v. Yost, 366. Barrow Steamship Company v. Mexi- can Central Railway Co., 43, 962. Barrow v. Paxton, 83, 85. Barr v. New York, Lake Erie & Western E. R. Co., 273. Barry v. Neaham, 360. Barry v. Ransom, 578, 985. Bartholomew v. Finnemore, 79, 791,. Bartholomew v. Jackson, 26, 27. Bartlett v. Campbell, 584. Bartlett v. Hoppock, 807. Bartlett v. Walter, 921. Bartlett v. Wheeler, 970. Bartnik v. Erie Railroad Companv, 496. Barto V. Himrod, 340. Barton v. Port Jackson & P. R. R. Co., 335. Barton v. Speis, 646. Baskins v. Shannon, 101, 134. Bassett v. French, 157. Bassett v. Spofford, 750. Bass V. Pierce, 512. Basten v. Butter, 453. Bates V. Conkling, 746. Bates v. Fish Brothers' Wagon Com- pany, 801, 811. Bates V. Stanton, 478, 479. Bates V. Todd, 492. Bath Gas Light Company v. Claffy. 336. Batterman v. Pierce, 196. Batterman v. Morford, 46. Battershall v. Davis, 30. Battle V. Rochester City Bank, 782. 998. Batty V. Carswell, 235. Bauchle v. Smylie, 378. Baumann v. Jefferson, 707. Baumgartel v. P. W. Insurance Co., 936. Baxter v. Baughan, 415. Beach v. Barons, 712. Beach v. Fulton Bank, 343. Beach v. Raymond, 713. Beach v. Vandewater, 296. Beacham v. Eckford, 385. Beals V. Allen, 232, 235, 242, 295. Beala v. Benjamin, 896. Beals V. Buffalo Construction Com- pany, 326. Beals V. Guernsey, 873, 1016. Beals V. Terry, 518. Bean v. Ford, 466. Bean v. Mosher, 390. Bean v. Sturtevant, 483. Beardsley v. Baldwin, 608. Beardsley v. Duntley, 993. Beardsley v. Ontario Bank, 93. Beardsley v. Richardson, 419, 420. Beattie v. Marine Insurance Com- pany, 334. Beaver v. Beaver, 696, 697, 698, 700, 702. Beavers v. Lane, 778, 779. Beck V. McLane, 228. Becker v. Hallgarten, 829. Beck V. Sheldon, 772, 801. Beckwith v. Union Bank of New York, 717. Bedell V. Carll, 617, 694, 695, 697, 698, 703. Bedell v. Edgett, 59. Bedford v. Terhune, 200, 206. Beebe v. Robert, 264, 728, 817. Beekman v. Fulton & ilontgomery Counties Farmers Mutual Insur- ance Association, 923. Beekman v. Hale, 564. Beers v. Housatonic Railroad Com- pany, 474. Beers v. Phoenix Glass Company, 345. Beers v. Pinney, 583. Beers v. Reynolds, 381, 402, 879. Beers v. Shannon, 870. Belanger v. Dana, 404, 405. Belden v. Burke, 59, 60. Bell V. Day, 655, 894. Bell V. Holford, 1015. Bell V. Lent, 905. Bell V. Pfadenhauer, 39. Belknap v. Reinhardt, 256. Belloni v. Freeborn, 69, 563, 566. Bement v. Smith, 851. Bendeston v. French, 467, 468. Benedict v. Arnoux, 291. Benedict v. Covvden, 649. Benedict v. Field, 684, 849. Benedict v. Huntington, 1011. Benedict v. Lansing, 235. Benedict v. Pell, 283. Benedict v. Smith, 137. Benedict v. Williams, 118, 776, 778. Benjamin v. Saratoga County Mu- tual Fire Insurance Company, 936. Bennett v. Bates, 716, 717, 864. Bennett v. Buchan, 289, 809. Bennett v. Cook, 875. Bennett v. Earl, 117, 136. Bennett v. Ginsberg, 893. Bennett v. Hull, 842. Bennett v. Judson, 300. Bennett v. Lycoming Mutual Insur- ance Company, 932. Bennett v. Mellor, 465. TABLE OF CASES CITED. xvii Bennett v. Pratt, 961. Bennett v. Scott, 997. Benninghoff v. Agricultural Insur- ance Company, 926, 929. Benson v. Suarez, 226. Bentley v. Columbia Insurance Com- pany, 271. Benton v. Martin, 660. Berdan v. Sedgwick, 909. Berger v. Varrelman, 1009. Berg V. Kaiser, 179. Brekman & Miller v. Brower & Chesky, 835. Bernard v. Aaron, 298. Bernhard v. Brunner, 610. Bernheimer v. Adams, 944. Berrien v. Wright, 915. Berry v. A. C. Insurance Company, 920, 921. Berry v. Alderman, 637. Berry Harvester Company v. Wood Mowing & Reaping Co., 7. Berry v. Robinson, 606. Besch V. Frolich, 399. Beskin v. Fiegenspan, 144. Betts V. Hoyt, 506, 507. Bevan v. Waters, 509. Bevier v. Covell, 896. Bierman v. City Mills Company, 807, 812. Bierne v. Dord, 813, 815, 816, 817, 818. Bienstock v. Ammidown, 291, 299. Bigelow V. Benedict, 732. Bigelow V. Benton, 564. Bigelow V. Davis, 39. Bigelow V. Grannis, 16, 79. Bigelow V. Heaton, 482, 524. Bigalke & Eckert Company v. Knabe Manufacturing Company, 945. Bigler v. New York Central Insur- ance Company, 936, 937. Bilbrough v. Metropolis Insurance Company, 935. Bidlersee v. Aden, 75. Billings v. Jane, 651. Billings V. O'Brien, 710. Billings V. Russell, 1008, 1016. Billington v. Cahill, 964. Billington v. Wagoner, 575, 908, 913. Binney v. LeGal, 393. Bini V. Smith, 936. Bird V. Everard, 422. Birdsall v. Davenport, 716. Birdseye v. Frost, 809. Birkmeyr v. Darnell, 985. Bishop V. Bishop, 942, 952. Bishop V. Cook, 135, 140. Bishop V. Sniffen, 691. Bissell V. Balcom, 838. Bissell V. Harrington, 365. Bissell V. Hopkins, 873. Bissell V. New York Central Rail- road Company, 504. Bissell V. Pearce, 97, 148, 433, 513. Bixby V. Drexel, 316. Black V. Ca£fe, 606. Black V. Ellis, 337. Black River and Utica R. R. Co. V. Clarke, 325. Blaekstock v. New York & Erie E. R. Co. 495. Blade v. Noland, 689, 690. Blake v. Corbett, 84. Blake v. Nicholson, 509. Blake v. Vought, 964. Blakeman v. Mackay, 313, 800. Blakeman v. Murray, 803. Blanchard v. Isaacs, 480, 483. Blanckenhagen v. Blundell, 601. Blasdale v. Babcock, 73, 822, 823. Blass V. Agricultural Insurance Com- pany, 926. Blass V. Terry, 293. Bleaden v. Charles, 576. Bleaden v. Hancock, 510. Bleccker v. Smith, 212. Bleistift V. Dierner, 181. Bliss V. Bliss, 520. Bliss V. Cottle, 785, 786. Bliss V. Lawrence, 710. Bliss V. Sherrill, 895. Bliven v. Hudson River Railroad Company, 416, 431. Bliven v. Lyndecker, 247, 894, 895. Block V. Lowe, 283. Blodgett V. Wadham, 899. Bloomer v. Bloomer, 703. Bloomer v. Merrill, 224. Blood V. Goodrich, 24u. Bloodgood V. Bruen, 403. Bloomingdale v. Butchers' & Drovers' Bank, 603. Bloss V. Chittenden, 404. Blossom V. Champion, 476. Blossom V. Griffin, 58. Blossom V. Lycoming Fire Insurance Company, 934. Blossom V. Shotter, 736, 744. Blot V. Boiseau, 250. Blount V. Barrett, 457. Blount V. Burrow, 701. Blydenburgh v. Bingham, 574. Board of Education v. Fonda, 681. Board of Supervisors v. Clark, 877. Boardman v. Lake Shore & Michigan Southern R. R. Co., 330. Boardman v. Sill, 514. Boden v. Sohultz, 221. Bodle V. Chenango Mutual Insurance Company, 935. Bodine v. Williamson, 582. Body V. L. H. Quinn Company, 313. Bogart V. O'Reagan, 309, 783, 784 XVlll TABLE OF CASES CITED. Bolm V. Hatch, 174. Bolen V. Crosby, 707, 715. Bolton V. Dugdale, 605. Bond V. Pittard, 371. Bonn V. Steiger, 868. Bonnell v. Briggs, 252. Bonesteel v. Vanderbilt, 363. Bonney v. Seeley, 643. Bonito V. Mosquera, 266, 279. Booker v. Heffner, 969. Booker v. Eeilly, 482. Bookataver v. Jayne, 616. Boorman v. Jenkins, 794, 817. Boorman v. Johnston, 297. Booss V. Marion, 395, 1013. Booth Bros. v. Baird, 64, 336. Booth V. Bierce, 294. Booth V. Farmers' & Mechanics' Na- tional Bank, 719. Booth V. Litchfield, 471. Booth V. Spuyten Duyvil Rolling Mill Company, 37, 454. Booth V. Swezey, 895. Boreel v. Lawton, 189, 214, 215. Bossange v. Ross, 901. Bosanquet v. Wray, 407. Boston Carpet Company v. Journeav, 286. Bostwick V. Dry Goods Bank, 751. Botsford V. Bean, 903. Bouker Contracting Company v. Scribner, 351. Bourne v. Freeth, 353. Boutwell V. O'Keefe, 850. Bowdish V. Page, 96, 145. Bowe v. Ellis, 837. Bowe V. Wilkins, 569. Bowen v. Bell, 1002. Bowen v. Bradley, 865. Bowen v. New York Central & Hud- son River R. R. Co. 496. Bowery National Bank v. Mayor, 152. Bowery National Bank v. Wilson, 710. Bowman v. Hoffman, 433. Bowman v. Teall, 493, 495. Boyee v. Washburn, 844. Boyd V. Brotherson, 619. Boyd V. Cummings, 637, 638. Boyd V. Emmerson, 429. Boyer v. Peck, 875. Brabin v. Hyde, 838, 840. Braekeleer v. Schwabeland, 136, 137. Brace v. City of Gloversville, 537. Bracegirdle v. Heald, 964, 965. Braekett v. Barney, 15, 906. Brackett v. Griawold, 707. Braekett v. Harvey, 95, 96. Brackett Company v. Kornblum, 832. Brackett v. Pierson, 511. Bradbury v. Smith, 369. Bradford v. Kimberly, 287, 385. Bradner v. Strang, 396. Bradley v. Waterhouse, 489. Bradley v. Wheeler, 64, 744, 747. Brady v. Cassidy, 56. Brady v. Little Miami Railroad Com- pany, 298. Brady v. Sackrider, 986. Brady v. Todd, 297. Bragelman v. Dane, 84. Brainard v. County of Kings, 153. Brainard v. Jones, 870. Braman v. Hess, 898. Brandt v. Krank, 39. Brandt v. Verdon, 533. Brauer v. Oceanic Steam Navigation Company, 2. Bray v. Mayne, 444. Bray v. O'Rourke, 696. Breed v. Cook, 682, 848. Breen v. Rives, 285. Breeze v. Bangs, 208. Breeze v. Bayne, 103, 106. Brennan v. Glennon, 889. Brennan v. Haff, 34. Brewer v. Ford, 552. Brewer v. Salisbury, 756. Brewster v. Baker, 87. Brewster v. Carnes, 234, 719. Brewster v. Countryman, 822, 823. Brewster v. McCardell, 599. Brewster v. Silence, 11, 958, 960, 961, 986. Brewster v. Wakefield, 864. Bridenbecker v. Lowell, 238. Brierly v. Cripps, 404. Brigham v. Tillinghast, 1010, 1014. Briggs V. Briggs, 277, 372. Briggs V. Dorr, 714. Briggs V. Gelm, 92. Briggs V. Hilton, 801, 811, 812. Briggs V. Langford, 717. Briggs V. Oliver, 107. Briggs V. Partridge, 305, 316, 992, 993. Briggs V. Eowe, 284. Briggs V. Tillotson, 28. Briggs V. Vanderbilt, 38, 363. Briggs V. Weidmann Cooperage Com- pany, 398. Brill V. Tuttle, 597. Bringloe v. Morrice, 427. Brink v. Dolsen, 278. Brink v. Goodelle, 282. Brink v. Hanover Fire Insurance Company, 934. 936. Brinkerhoff v. Sartwell. 289. Brisbane v. Adams, 242. Brisban v. Boyd, 261. Bristol V. Rensselaer & Saratoga R. R. Company, 491. Bristow V. Taylor, 387. Britt V. Lawson, 666. TABLE OF CASES CITED. XIX Britton v. Ferrin, 267. Broad v. Hoffman, 281. Broadbent v. Ledward, 415. Broadhead v. Lycoming Insurance Company, 926. Broadhead v. Smith, 121. Broadwood v. Granara, 517. Brockway v. Allen, 304, 650. Brockway v. Burnap, 364. Brocklen v. Smeallie, 785. Brockman v. Buell, 120. Brood-well v. Getman, 967, 970, 971. Brooklyn Dock Company v. Bahren- berg, 180. Brookman v. Stetson, 362. Brooks V. Avery, 900, 907. Brooks V. Bell, 17. Brooks V. Galster, 944. Bronner v. Walter, 220. Bronson v. Wiman, 785, 843, 851. Bronson v. Woolsey, 256. Bronson v. Gleason, 631, 764. Bronx Gas & Electric Co. v. The City of New York, 869. Brouer v. Vanderburgh, 265. Brower v. Jones, 869. Brower v. Lewis, 248, 803, 818. Brower v. Mechanics' & Traders' Bank, 566. Brower v. Peabody, 515, 751, 781. Brown v. Bement, 83, 85. Brown v. Bigelow, 800. Brown v. Bradshaw, 986. Brown v. Butchers' & Drovers' Bank, 612. Brown v. Mason, 571, 572. Brown v. Mayor, 337. Brown v. Mechanics' & Traders' Bank, 70, 566. Brown v. Morgan, 451, 772. Brown v. Cattaraugus Mutual Insur- ance Company, 925, 936. Brown v. Cherry, 309. Brown v. Cook, 123, 415, 416. Brown v. Curran, 38, 982. Brown v. Curtiss, 588, 647. Brown v. Guthrie, 1010. Brown v. Kiefer, 119. Brown v. Knapp, 878. Brown v. New York Central etc., E. R. Co., 496, 962. Brown v. Piatt, 131. Brown v. Railroad Co., 43. Brown v. Spohr, 404. Brown v. Taber, 637. Brown v. Wilmerding, 117, 131, 1015. Browne v. Patterson, 58, 62. Brownell v. Hawkins, 80, 86, 433, 440. Brownell v. Winne, 898. Browning v. Dalesme, 193. Browning v. Hart, 1011. Browning v. Home Insurance Com- pany, 927. Bruce v. Burr, 990. Bruce v. Davenport, 249, 269. Bruce v. Fulton National Bank, 180. Bruce v. Pearson, 821. Bruce v. Weston, 604, 619. Bruce v. Lambeck, 910. Bruen v. Marquand, 392. Brugelman v. Dane, 101. Brumm v. Gilbert, 711. Brush V. Long Island Railroad Com- pany, 867. Brush V. Stephens Company, 14, 40. Brutt V. Picard, 619. Bryan v. Baldwin, 435, 437. Bryant v. Auchmutz, 431. Bryant v. Poughkeepsie ilutual In- surance Company, 925. Bryant v. Wardell, 445. Bryce v. Brooks, 288. Buchanan v. Exchange Fire Insur- ance Company, 927. Buchanan v. Pindlay, 513. Buchanan v. Smith, 443, 444. Buchanan v. Tilden, 280, 281. Buck V. Burk, 631, 764. Buckley v. Artcher, 774, 775. Buckley v. Buckley, 941, 942. Buckley v. Furniss, 829. Buckley v. Packard, 266, 268, 279. Buckingham v. Corning, 907. Buckingham v. Payne, 252. Buckman v. Brett, 403. Buddenburg v. Benner, 470. Budweiser Brewing Company v. Cap- parelli, 120, 664. Bueb V. Geraty, 139. Buell V. Cole, 404. Buell V. Rope, 1008. Buffalo & New York Central Rail- road Company v. Dudley, 326. Buffalo City Bank v. Howard, 373. Buffalo German Insurance Company V. Third National Bank, 328. Buffalo & Jamestown R. R. Company V. Clark, 324. Buffalo & Jamestown Railroad Com- pany V. Gifford, 324. Bulger V. Rosa, 395. Bulkley v. Dayton, 391. Bullard v. Kenyon, 111. Bullard v. Raynor, 908. Bull V. Rice, 899. Bull V. Sims, 598, 611. Bullock V. Bemis, 868. Bumstead v. Dividend Mutual In- surance Company, 935. Burch V. Spencer, 810. Burchell v. Green, 551. Burck V. Tavlor, 710. Burckle v. Eckhardt, 364. XX TABLE OF CASES CITED. Burden v. Burden, 339. Burdiek v. Green, 648, 681, 684. Burdick v. Post, 1014. Burdiek v. MoVanner, 105. Burgess v. Badger, 377. Burgess v. Clement, 470. Burke v. Continental Insurance Com- pany, 920, 922. Burkitt V. Harper, 528. Burlingame v. Burlingame, 997, 998. Burlingame v. Mandeville, 964. Burmeister v. Koster, 93. Burnell v. Stern, 422. Burnet v. Biseo, 10. Burnett v. New York Central Rail- road Company, 466, 501. Burnett v. Scribner, 206. Burnett v. Snyder, 357. Burnett v. Wright, 72. Burnheisel v. Firman, 864. Burns v. Bryant, 188, 189. Burns v. Rowland, 360. Burton v. Baker, 898. Burton v. Wendell, 641. Burr V. Beers, 39, 982. Burrall v. Acker, 507. Burrall v. DeGroot, 911. Burrall v. Jacot, 735, 853. Burrows y. Whitaker, 744. Burt V. Dewey, 819, 822. Burt V. Horner, 586, 587. Bush V. Gibbons, 376. Bush V. Gilmore, 613, 664. Bush V. Lathrop, 716. Bushnell v. Chatauqua County Na- tional Bank, 336. Buskirk v. Cleveland, 91, 839. Butcher v. London & Southwestern R. R. Co., 493. Butler V. Butler, 738, 771. Butler V. Carillo, 214. Butler V. Dinan, 969. Butler V. Evening Mail Association, 264, 312. Butler V. Flynn, 528. Butler V. Haight, 848. Butler V. Michigan Mutual Life In- surance Company, 290. Butler V. Miller, 124, 133. Butler V. New York & Erie R. R. Co. 708. Butler V. Rawson, 606. Butler V. Stocking, 387, 390. Butler V. Thompson, 726. Buttman v. Dennett, 422. Butternuts & Oxford Turnpike Com- pany V. North, 326. Butterworth v. O'Brien, 910. Butterworth v. Peck, 656. Button v. Kinnetz, 866. Button V. Rathbone, Sard & Co., 84. Ill, 116. Butt V. Hoge, 671. Buxton V. Baughan, 516. C. Cable V. Bonnell, 214. Cady V. Bradshaw, S&7. Cady V. McDowell, 461, 517. Cafre v. Lockwood, 807. Cagger v. Lansing, 999. Cairnes v. Bleecker, 247. Callahan v. Crow, 678. Callanan v. Van Vleck, 320. Caldwell v. Bartlett, 118, 759, 778, 779, 781. Caldwell v. Cassidy, 659, 664. Caldwell v. Leiber, 385. Caldwell v. New Jersey Steamboat Company, 496. Calkins v. Falk, 832, 961. Calkins v. Griswold, 726. Calkins v. Hellman, 273. Callender v. Dinsmore, 64. Calvo v. Davies, 572, 573, 574. Camden Railroad & T. Co. v. Belk- nap, 485, 504. Camden Railroad & T. Co. v. Burke, 497. Cameron v. Chappell, 901. C'amidge v. AUenby, 686. Camp v. Camp, 131. Campbell v. Birch, 107. Campbell v. Campbell, 998. Campbell v. Klein, 420. Campbell v. Muller, 314. Campbell v. Parker, 430, 435. Campbell Printing Press Company V. Yorkston, 283. Canajoharie National Bank v. Dief- endorf, 637, 678. Cauda v. Totten, 995. Candler v. Mayor, etc. of New York, 72. Canfleld v. Baltimore & Ohio Rail- road Company, 505. Canfield v. Canfleld, 14. Canfleld v. Stewart, 979. Caponigri v. Altieri, 892, 907. Card V. Groesbeck, 350. Cardell v. McNeil, 682, 848, 990. Carhart v. Ryder, 191. Carlaftes v. Goldmeyer Company, 3.35. Carleton v. Lombard, Ayres & Co. 800, 807, 811, 823. Carley v. Wilkins, 797, 799, 813, 821. Carll V. Goldberg, 450. Carnright v. Gray, 11, 608, 627, 634. Carpenter v. Atlas Improvement Company, 285. Carpenter v. Blote, 119. TABLE OF CASES CITED. XXI Carpenter v. Boston & Albany R. R. Co., 497. Carpenter v. Branch, 423. Carpenter v. Griffin, 723. Carpenter v. Simmons, 112. Carpenter v. Soule, 695. Carpenter v. Taylor, 460. Carpenter v. Town, 112, 120, 123. Carpenter v. Underwood, 1014. Carpenter v. Weller, 24. Carson v. Ingalls, 902. Carroll v. Cone, 346. Carroll v. Newton, 192. Carroll v. Petit, 286. Carroll v. Staten Island Railroad Company, 496. Carroll v. Sweet, 620, 621, 666, 667, 682. Carr v. Ellison, 227. Carr v. Roberts, 70. Carr v. Thompson, 276. Carter v. Burr, 220. Carter v. Byron, 215. Carter v. Hammett, 204. Carter v. Stark, 317. Carter v. Wallace, 553. Cartwright v. Rome, Watertown & Ogdensburg Railroad Company, 475. Cartwright v. Greene, 277, 985. Cartwright v. Wilmerding, 259, 260. Carville v. Crane, 986. Cary v. Gruman, 787. Cary v. Hotaling, 773, 775, 785, 786. Cary v. Kreizer, 222. Cary v. Thompson, 177. Cary v. White, 571, 572. Casale v. Guion, 234. Casco National Bank v. Clark, 291, 613, 614. Case V. Abeel, 376. Case V. Boughton, 101, 109, 125. Case V. Brush, 404. Case V. Hall, 821. Casoni v. Jerome, 582. Cassabeer v. Kalbfleisch, 906. Cassani v. Dunn, 568. Cassard v. Hinman, 266, 301, 732, 774. Casserly v. Witherbee, 101, 110. Cassidy v. Hall, 357. Cass V. Shewman, 588. Castle V. Beardsley, 956, 957. Castle V. Marks, 398. Castleman v. Mayer, 111. Caswell V. Distrioh, 172. Caswell V. Hazard, 368. Catlin V. Gunter, 615, 901, 917. Catlin V. Tobias, 760. Caton V. Rumney, 473. Caulkins v. Heelman, 834, 835. Cayuga County Bank v. Hunt, 661, 662. Cayuga County Bank v. Warden, 671. Cayuga Railroad Company v. Niles, 997. Central Bank v. Empire Stone Dress- ing Company, 334, 345. Central Bank v. Pindar, 787. Central City Savings Bank v. Walk- er, 356. Central Insurance Company v. Na- tional Protection Insurance Coni- panv, 931. Central National Bank v. Bell, 432. Central Presbyterian Church v. Thompson, 31. Central Trust Company v. Folsom, 234. Cesar v. Karutz, 191. Chadwick v. Lamb, 104. Chadwick v. Manning, 575. Chaffee v. Cattaraugus County Mii tual Insurance Company, 925. Chaffee v. Thomas, 16. Chamberlain v. Beller, 73, 567. Chamberlain v. Martin, 101, 106. Chamberlain v. Pratt, 445. Chamberlain v. Townsend, 911. Chamberlyn v. Delarive, 685. Chambers v. Lancaster, 713, 772, 837. Champion v. Bostwick, 396. Champlin v. Butler, 83. Champlin v. Parrish, 1001. Champlin v. Rowley, 53, 767. Champney v. Blanchard, 701. Chandler v. Belden, 481. Chandler v. Bunn, 140. Chapin v. Merrill, 985. Chapman v. Jenkins, 124. Chapman v. Kent, 288, 510, 734. Chapman v. Lathrop, 737. Chapman v. Lynch, 332. Chapman v. Murch, 799, 813. Chapman v. New York Central Rail- road Company, 298. Chapman v. Robertson, 914. Chapman v. Searle, 628. Chapman v. Shepard, 746. Chapman v. White, 656. Chappell V. Dann, 318. Chapuis V. Mathot, 908, 909. Charles v. Cook, 282. Charter v. Stevens, 99, 106, 123, 125. Chase v. Day, 986. Chase v. Lord, 350. Chase v. Hamilton Mutual Insurance Company, 924, 931. Chase v. Hinman, 565. Chase v. Peoples' Fire Insurance Company, 926. XXll TABLE OF CASES CITED. Chase National Bank v. Faurot, 615, 617. Chase v. Nichols, 810. Chase v. Westmore, 509. Chatham National Bank v. Pratt, 585. Chatterton v. Fox, 219. Chauvet v. Ives, 877. Cheesman v. Exall, 431. Cheever v. Pittsburgh, etc. Railroad Company, 678. Cheever v. Schall, 956, 973, 1000. Cheever v. Smith, 265. Chemical National Bank v. Kellogg, 650. Chemung Canal Bank v. Bradner, 391, 618. Chemung Canal Bank v. Pavne, 130. Chester v. Diokerson, 365, 369, 395, 396. Chicago & Great Eastern Railroad Company v. Dane, 2, 29. Chilcott V. Trimble, 14, 16. Childs V. Barnum, 960. Childs V. Clark, 199, 203. Chilton V. Butler, 282, 284. Chretien v. Doney, 179. Christopher v. Austin, 2] 5, 218. Cliristopher Street Railway Company V. Twenty-third Street Railway Company, 59. Chrysler v. Renois, 606. Cliurch V. Brown, 959, f 88. Church v. Howard, 588. Church V. Maloy, 902. Church V. Stevens, 687. Church of Ascension v. Burlchart, 343 Churchill v. Hunt, 69, 70, 565, 567. 910. Cinque v. Cassani, 76], 767. Citizens' Bank v. Nantucket Steam- boat Company, 474. Citizens' National Bank v. Weston. 637, 678. Citron v. Bayley, 194. City Bank v. Bangs, 34. City Bank v. Rome, Watertown & Ogdensburgh Railroad Company, 479. City Bank of Brooklyn v. Dearborn, 389. City Bank of Brooklyn v. McChes- ney, 374, 401. City of Brooklyn v. Brooklyn City Railroad Company, 162. City Bank of New Haven v. Perkins, 293. City Savings Bank v. Bidwell, 916. Claflin V. Boorum, 901 . Claflin V. Farmers' & Citizens' Bank. 272, 296. I Claflin V. Lenheim, 320. Claflin V. Meyer, 420, 431, 457. Claflin V. Ostrom, 588, 710. Clapp V. Cooper, 635. Clapp V. Mott, 112. Clapp V. Rogers, 401, 402. Clark V. Andrews, 1012. Clark V. Barlow, 866. Clark V. Burdett, 588. Clark V. Dales, 845, 851. Clark V. Dearborn, 389. Clark V. Dibble, 406. Clark V. Downing, 713. Clark V. Farmers' Woolen Company, 334. Clark V. Faxton, 473, 504. Clark V. Fell, 525. Clark V. Fey, 760. Clark V. Gilbert, 525. Clark V. Griffith, 103. Clark V. Holmes, 397. Clark V. Howard, 38. Clark V. Jones, 211. Clark V. Lake Avenue Permanent Savings & Loan Association, 881. Clark V. Loomis, 901. Clark V. Marsiglia, 158, 449, 456. Clark V. Martin, 503. Clark V. Masters, 481, 492. Clark V. Mayor, etc. of New York, 164. Clark V. Metropolitan Bank, 300. Clark V. Pinney, 871. Clark V. Rawson, 562. Clark V. Sickles, 569. Clark V. Sisson, 901, 905, 913. Clark V. Tucker, 835, 838. Clark V. Woodruff, 61. Clarke v. Crandall, 852. Clarke v. Cummings, 212. Clarke v. Rochester & Syracuse R. R. Co., 487. Clarkson v. Edes, 481. Clason V. Morris, 576. Clausen v. Puvogel, 377. rip'ispn V. Vannoh, 161. Clay V. Willan, 488. Clement v. Congress Hall, etc., 337. Clement v. New York Central, etc., R. R. Co., 479. Clemmons v. Rouse, 775. Clendaniel v. Tucherman, 493. Cleveland v. Loder, 897. Cleves V. Willoughby, 221. Clews V. Bank of New York Mutual Benefit Association, 622. Clift V. Barrow, 890. Close V. Clark, 533. Clute V. Fitch, 112, 132, 133. Clute V. Small, 619. Clute V. Wiggins, 470. Coats V. Donnell, 90. TABLE OF CASES CITED. XXlll •Cobb V. Hatfield, 787. Cobb V. Knapp, 313. Cobb V. Titus, 898. Cobb V. West, 155. Cochran v. Xewtbn, 242. Cochran v. Sherman, 717. Cochrane v. Schreyver, 461, 517. Cock V. Moore, 985. Cody V. Dempsey, 282. ■Coe V. Cassidy, 101, 106, 107. Coe V. Hobbv, 205, 206. Coe V. Tough, 832, 833. Coffee V. Brian, 404. Coffin V. President, etc., G. R. H. Co., 309. Coggs V. Bernard, 418, 420, 425. Cohen v. Berlin & Jones Envelope Company, 2. •Cohen v. Dupont, 215. Cohen v. Frost, 499. Cohen v. Mincoff, 231, 305. Cohen v. Piatt, 783. Cohen v. Weinstein, 748. Cohen v. Wittleman, 943. Cohn V. McCreery Realty Corpora- tion, 283. Coit V. Palmer, 200. Colburn v. Woodworth, 158. Cole V. Goodwin, 497, 500, 504. Cole V. Mann, 551, 555. •Cole V. Reynolds, 407. Cole V. Savage, 906. Coleman v. Beach, 58. Coleman v. Cook, 608. Coleman v. Eyre, 28. -Coleman v. First National Bank of Elmira, 263. Coleman v. Fitzgerald Brothers Brewing Company, 183. Coleman v. Garrigues, 235, 992. Coleman v. Lamb, 564. ■Coleman v. Livingston, 457. Coleman v. Wade, 573. ■Colgrove v. Tallman, 374, 561, 570. Collier v. Coates, 998. Collins V. Bennett, 444. •Collins V. Butler, 463. Collins V. Hasbrouck, 198. ■Collins V. Phoenix Insurance Com- pany, 924. Collins V. Ralli, 259, 751. •CoUyer v. Collyer, 25. Colton V. Paige, 887. Col ton V. Raymond, 383. Columbia Bank v. Equitable Assur- ance Society, 720. Colvin V. Holbrook, 318. ■Colwell V. Tompkins, 284. Combs V. Bateman, 832, 838, 848. Comer v. Cunningham, 553. Comfort V. Kiersted, 737, 771. •Commercial Bank v. Davy, 124, 144. Commercial Bank v. Norton, 244, 255, 635, 636. Commercial Bank v. Union Bank, 307. Commercial Bank v. Warren, 246,, 292, 392. Commercial Bank of Buffalo v. Kort- right, 327, 329. Commercial Bank of Kentucky v. Varnum, 668. Commercial National Bank of Penn- sylvania V. Heilbronner, 267, 268. Commonwealth Trust Company v. Young, 232. Comstock V. Buchanan, 269. Conant v. American Rubber Tire Company, 238, 292. Conde v. Lee, 944, 946. Conderman v. Smith, 89, 91, 731. Condit V. Baldwin, 894. Condlt V. Goodwin, 948. Cone V. Niagara Fire Insurance Company, 920. Congdon v. Sanford, 229. Conger v. Hudson River Railroad Company, 494. Conger v. Tradesman's Bank, 896, 917. C-onger v. Van Aernam, 25. Conkey v. Bond, 269, 273. Conkey v. Hart, 122. Conklin v. Barton, 360, 364. Conklin v. White, 191. Conkling v. King, 683. Conkling v. Shelley, 95, 121. Connah v. Sedgwick, 1014. Connecticut v. Jackson, 874, 882. Connor v. Reeves, 74, 566, 583. Conover v. Mutual Insurance Com- pany of Albany, 244. Conrow v. Little, 509, 510. Conroy v. Warren, 617. Considerant v. Brisbane, 263, 310. Constant v. University of Rochester, 291. Consumers' Ice Company v. Webster, Son & Co., 44. Continental Bank v. Tradesmen's Bank, 622. Converse v. Kellogg, 22. Converse v. Sharpe, 337. Converse v. Sickles, 775. Conway v. Bush, 740. Conwav v. Starkweather, 181. Cook y. Adams, 294, 296. Cook v. Bennett, 96. Cook V. Burnes, 903. Cook V. Champlain, etc., Company, 945. Cook V. Clark, 898. Cook V. Ferrall's Administrators, 631. XXIV TABLE OF CASES CITED. Cook V. Genesee Mutual Insurance Company, 7. Cook V. Husted, 697. Cook V. Litchfield, 671. Cook V. Moseley, 800, 802. Cook V. Satterlee, 605, 608. Cook V. Soule, 196. Cooke V. Colehan, 608. Cooke V. Meeker, 878. Cooke V. Millard, 770, 834, 841, 843, 844. Cooke V. Nathan, 586, 587, 588. Cookingham v. Lasher, 397. Cooley V. Betts, 278. Cooley V. Lobdell, 1000. Coombe v. Greene, 453. Coonley v. Wood, 599. Coope V. Eyre, 353. Cooper V. Barton, 444. Cooper V. Brooklyn Trust Company, 24. Cooper V. Burr, 698, 699. Cooper V. Dedriek, 11, 588, 645, 960. Cooper V. Hedden Construction Com- pany, 424. Cooper V. Payne, 558. Cooper V. Willomat, 413. Coplay Iron Companv v. Pope, 800. 801, 805. Coppin V. Craig, 509. Coppin V. Walker, 509. Cordier v. Thompson. 588. Corey v. White, 576.' Corlies V. Gumming, 262, 287, .'!08. Cormack v. N. Y. & N. H. E. R. Co. 480. Cornell v. Cornell, 698. Cornell v. Masten, 293. Cornforth v. Rivett, 525. Corning v. Colt, 766, 768, 821. Corning v. Greene, 384. Corning v. Southland, 248, 308. Cornwall v. Haight, 737, 851, 852. Corrigan v. Sheffield, 762. Cortelyou v. Lansing, 432. Cortland Wagon Company v. Lynch, 613. Costello V. Herbst, 553, 713. Coster V. Dilworth, 894. Coster V. New York & Erie Railroad Company, 7, 714. Costigan v. Mohawk etc.. Railroad Company, 157. Cotta V. Carr, 512. Cotter V. Bettner, 396. Couch V. Farmers' Fire Insurance Company, 928. Coudert v. Cohn, 186. Coulter V. Board of Education, 9. Coulter V. Richmond, 652. Counsel v. Vulture Mining Company, 632. Courtney v. New York City Insur- ance Company, 936. Courtwright v. Stewart, 842. Covell V. Hill, 259, 515, 743, 750, 751, 782. Covell V. Hitchcock, 829. Coventry v. Barton, 73. Cowdin V. Gottgetreu, 986. Cowee V. Cornell, 16, 38, 634. Cowen V. Paddock, 528. Cowen V. Rouss, 9, 21. Cowen V. Village of West Troy, 249, 337. Cowenhoven v. Pfluger, 894. Cowie V. Storm, 600. Cowperthwaite v. Sheffield, 656, 670. Cox V. Albany Brewing Company, 231, 244, 245. Cox V. Sammis, 189. Cox V. Stokes, 22, 787. Coykendall v. Constable, 570, 571. Coykendall v. Eaton, 464, 471. Coyne v. Feiner, 167, 169. Cozine v. Graham, 972. Cozzens v. American General Engi- neering Company, 7. Craft V. Brandow, 97. Crafts V. Mott, 562. Cragin v. New York Central Railroad Company, 487. Craig V. Craig, 695. Craig V. Parkis, 585, 646, 716. Cram v. Dresser, 170, 216. Cram v. Hendricks, 901.. Cram v. Union Bank, 726. Crandall v. Brown, 131. Crandall v. Clark, 56. 851. Crane v. Baudoine, 24. Crane v. Dygert, 881. Crane v. French, 393. Crane v. Ganung, 24. Crane v. Gruenwald, 234. Crane v. Hardman, 879. Crane v. Hubbell, 894. Crane v. Powell, 972. Crane v. Turner, 716, 717. Crans v. Harris, 837. Crans v. Hunter, 19, 247. Crapo V. Rockwell, 461. Crater v. Binninger, 405. Craven v. Bloomingdale, 342, 463. Crawford v. Collins, 366. Crawford v. Mail & Express Publish- ing Company, 161. Crawford v. Eeilly, 461. Crawshay v. Homfrey, 513. Crazie v. Hadley, 290. Creamer v. Mitchell, 580. Cregin v. Brooklyn Crosatown Rail- road Company, 706. Cressey v. Sabre, 90. Cresson v. Stout, 954. TABLE OE CASES CITED. XXV Crippen v. Hudson, 1]2, 350. Crippen v. Thompson, 73, 566. Crisfield v. Bogardus, 100, 128. Crisfield v. Murdoek, 578, 579. Crofoot V. Bennett, 744, 745. Cioninger v. Crocker, 702. Crommelin v. New York & Harlem Railroad Company, 509, 515. Cromwell v. Hewitt, 655. Cromwell v. Lovett, 682. Cromwell v. Stephens, 460, 461. Cronkite v. Wells, 477, 484. Crook V. Rindskopf, 394, 1011. Crooks V. Moore, 736, 783, 785. Crooks V. Propp, 580. Crookshank v. Burrell, 843. Cropsey v. Sweeney, 26. Crosley v. Nichols, 406. Cross V. Andrews, 470. Cross V. Jackson, 382, 383. Cross V. O'Donnell, 827, 834, 835. Crouch V. Great Western Railroad Company, 482. Crouch V. Guttmann, 53. Crouch V. London Railroad Company, 474. Crouch V. London & Northwestern Railroad Company, 476. Crouch V. Parker, 196. Crounse v. Johnson, 141. Crowe V. Liquid Carbonic Company, 556. Crowley v. Cohen, 921. Cruger v. Armstrong, 617. Crutchlev v. Clarence, 603. Crutchley v. Mann, 603. Culley V. Herdenbergh, 18. Culver V. Sisson, 108. Cuming v. Roderick, 652. Cummings v. Agricultural Insurance Company, 934. Cummings v. Morris, 712. Cumpston v. Haigh, 510. Cumpston v. McNair, 369, 585, 586, 649. Cuneo V. Freeman, 512. Cunningham v. Hedge, 557. Cunningham v. Jones, 53, 153. Cunningham v. Spier, 814. Currie v. Anderson, 837. Currier v. Carniek, 962. Curry v. Powers, 696, 698. Curtis V. Delaware, etc.. Railroad Company, 865. Curtis V. Leavitt, 36, 333, 909, 914, 915, 1012. Curtis V. Murphy, 470. Curtis V. Smallman, 586, 588. Curtiss V. Barrus, 703, 704. Curtiss V. Miller, 209. Cushman v. Addison, 377. Cushman v. Bailey, 360. Cushman v. Haynes, 609. Cuthbert v. Haley, 913. Cutter V. Mayor, etc., of New York, 869. Cuyler v. McCartney, 1011. Cuyler v. Sanford, 896. Cuyler v. Stevens, 671. D. Dahlstrom v. Gemunder, 312. Dalrymple v. Hillenbrand, 654. Dalton V. Daniels, 518, 813. Daly V. Stetson, 711. Daly V. Wise, 194. Damb v. Hoffman, 203, 204. Dana v. Fiedler, 712, 867, 872, 881. Dane v. Mallory, 105, 123, 149. Danforth v. Dart, 782. Danforth v. Schoharie Turnpike Company, 336. Daniels v. Pond, 192. Dansey v. Richardson, 462. Danzer v. Nathan, 511. Darby v. Darby, 379. Darby v. Pettee, 269. Darlington v. Hamilton Bank of New York City, 16. Darlington v. McCunn, 987. Darrow v. Calkins, 379. Darrow v. Family Fund Society, 929. Darrow v. Wendelstadt, 101. Dater v. Troy Turnpike & Railroad Company, 343. Davenport v. Buckland, 235. Davenport v. Gilbert, 671. Davenport v. McChesney, 110. Davenport v. Wheeler, 760. Davidson v. Fankuchen, 511. Davidson v. Hutchins, 392. Davidson v. Westchester Gas Light Company, 24. Davies v. Wilkinson, 605. Davis v. Allen, 373, 375, 402. Davis V. Blanchard, 842. Davis V. Bechstein, 716, 752. Davis V. Bliss, 950. Davis V. Bly, 652. Davis V. Bowsher, 521. Davis V. Garr, 601, 915, 916. Davis V. McCready, 641. Davis V. Meeker, 814. Davis V. Reynolds, 309. Davis V. Shields, 43, 833, 1000. Davis V. Van Buren, 564. Davison v. Donadi, 219. Davison v. Robertson, 624. Dawkes v. DeLorane, 610. Day V. New York Central Railroad Company, 971. Day f. Pool, 787, 800, 801, 809, 811. Day V. Swackhammer, 203. Davton v. Trull, 684. Deal V. Maxwell, 842. XXVI TABLE OF CASES CITED. Dean v. Clarke, 62. Dean v. Keate, 444. Dean v. Eoesler, 302. Dean v. Whiton, 7. Dearing v. McKinnon Dash & Hard- ware Company, 1017. Dechart v. Municipal Electric Light Company, 61. Decker v. Boice, 717. Decker v. Judson, 67. DeCordova v. Powter, 364. Deegan v. Kilpatrick, 527. Deeley v. Dwight, 89, 90, 731, 738, 771. DeFonclear v. Shottenkirk, 747. DeForest v. Byrne, 192. DeForest v. Frary, 608. DeForest v. Fulton Fire Insurance Company, 261, 921. DeFreeze v. Trumper, 819. DeGroff v. American Linen Thread Company, 344. DeGrove v. Metropolitan Insurance Company, 934. DeHierapolis v. Webber, 313. Dehoust V. Lewis, 621. DeKlyn v. Gould, 528, 533. Delafleld v. State of Illinois, 232, 243. DeLancey v. Ganong, 212. Delaney v. Valentine, 1009, 1010. DeLavalette v. Wendt, 867. Delaware Bank v. Jarvis, 820, 821. Delaware County v. Diebold Safe & Lock Company, 710. Delaware Valley Tel. Co. v. Tiffany, 350. Deming v. Colt, 394. DeMott V. Laraway, 473, 490. Deniek v. Hubbard, 570. Denike v. DeGraaf, 47. Denniston v. Bacon, 637. Dennistoun v. Hubbell, 202. Denny v. Manhattan Company, 318. DeNoyelles v. Delaware Insurance Company of Philadelphia, 928. Deobald v. Oppermann, 582. DeRidder v. McKnight, 735, 754, 755. DeRidder v. Schermerhorn, 646. DesArts v. Leggett, 690, 847. Desmond v. Rice, 690. Despard v. Walbridge, 83, 176. Devendorf v. Beardsley, 300. Devereaux v. Barclay, 479. DeVinne v. Eianhard, 510. Devlin v. Devlin, 368. Devlin v. Greenwich Savings Bank, 702. Devlin v. Mayor, 711. Devlin v. Mayor etc., of New York, 869. Devlin v. O'Neill, 555. Devlin v. VVoodgate, 987. Devoe v. Brandt, 775, 776, 778. DeWitt V. DeWitt, 872. DeWitt V. Walton, 303, 306, 613. DeWolf V. Ford, 463. DeWolf V. Johnson, 908. DeWolf V. Murray, 662. Dexter v. Bevins, 739, 744. Dexter v. Norton, 37. Dexter v. Syracuse, Binghamton & New York Railroad Company, 499. Deyo 1-. Bleakley, 178. Deyo V. Thompson, 635. Dey V. Dox, 48, 847. Dey V. Greenbaum, 200. Dey V. Poughkeepsie Mutual Insur- ance Company, 936. Dezell V. Odell, 506. DeZeng v. Fyfe, 638, 639. Dibble v. Corbett, 762. Dickinson v. City of Poughkeepsie, 249. Dickinson v. Edwards, 865, 915. Dickinson v. Oliver, 83. Dickinson v. Valpy, 353, 361, 390. Diefendorf v. Gage, 805, 821. Dieffenbach v. Roche, 939. D'lvernois v. Leavitt, 1014, 1015. Dike v. Erie Railway Company, 865. Dillingham v. Bolt, 144. Dillingham v. Ladue, 143. Dinehart v. Wilson, 172, 365. Dinning v. Fay, 708. Disborough v. Neilson, 735, 768. Diskin v. Herter, 42. Divine v. McCormick, 810. Diwer v. McLaughlin, 119. Dix V. Shaver, 326. Dix v. VanWyck, 902, 909, 910. Dixon V. Frazer, 986. Dixon V. Hammond, 478. Doane v. Eddy, 131. Dob v. Halsey, 360. Dobbins v. Bradley, 564. Dodge V. McKechnie, 1009. Dodge V. Potter, 126, 127, 141. Doe V. Brown, 900, 917. Doe ex. dem. v. Bateman, 198. Doe V. Gooch, 900, 917. Doe V. Lansing, 459. Doherty v. Matsell, 173. Doig V. Haverly, 116. Dolittle v. Eddy, 172. Doll V. Noble, 152, 162. Dollard v. Roberts, 221. Dollfus v. Frosch, 237, 651. Donlon v. Donlon, 695. Donlon v. English, 366. Donohue v. Kendall, 221. Donovan v. Frazier. 533. Donovan v. Middlebrook, 705. TABLE OF CASES CITED. XXVll Donovan v. Wilson, 843. Donnelly v. City of Brooklyn, 878. Donner v. Ogilvie, 221. Doolittle V. Dinniny, 76. Doolittle V. Naylor, 961. Doorman v. Jenkins, 412, 413, 420, 438. Dorlon v. Christie, 571, 572. Dorlon v. Forrest, 281. Dorrance v. Dean, 259. Dorris v. Sweeney, 31, 325. Dorr V. Barney, 168. Dorr V. New Jersey Steam Navi- gation Company, 504, 505. Dorsheimer v. Nichols, 716. Dorthy v. Servis, 100, 128. Doty V. Miller, 281. Doty V. Willson, 701. Doubleday v. Kress, 234. Doughty V. Manhattan Brass Com- pany, 833. Doughty V. O'Donnell, 449. Douglas V. Cheesebrough Building Company, 223. Douglass V. Howland, 10, 11, 584, 588, 960. Douglass V. New York Central, etc., R. R. Co., 238. Douglass V. Rathbone, 588. Douglass V. Wilkeson, 602, 648. Dounce v. Dow, 800, 801, 802, 807. Dovale v. Aekerman, 9. Downer v. Thompson, 744, 766, 768, 821. Downs V. Ross, 842. Dows v. Greene, 240. Dows V. Kidder, 751. Dows V. Morewood, 514, 745. Dows V. Perrin, 515, 751, 781. Doxheimer v. Gautier. 703. Dox V. Dey, 847. Doyle V. St. James' Church, 872, 873. Drake v. Seaman, 832, 833, 957. Drake v. Smith, 707. Draper v. Jones, 742, 849. Draper v. Romeyn, 574. Draper v. Snow, 958, 961. Draper v. Trescott, 575, 905. Dresser v. Ainsworth, 819. Dresser v. Dresser, 964, 975. Driseoll v. West Bradley & C. M. Co., 327, 328, 751. Drummond v. Burrell, 969, 970. Dry Dock Bank v. American Life insurance Company, 887. Dry Dock Bank v. American Life insurance & Trust Company, 897, 899, 900. Dubois v. Delaware etc., Company, 164, 312, 816. Dubois V. Kelly, 943, 944. DuBois V. Lamson, 361. Duolos V. Cunningham, 274. Duckworth v. Rogers, 281. Dudley v. Danforth, 108, 1016. Dudley v. Hawley, 115. Duff V. Budd, 482. Duflf V. Hart, 218. Duflfee V. Mason, 800, 803. Duffield V. Scott, 74, 583. Duffy V. O'Donovan, 972. DuflFy v. Wunsch, 23, 984. Dunbar v. Williams, 27. Duncan v. Blundell, 454. Duncan v. Brennan, 432. Duncan v. C. M. Ins. Co., 309. Duncan v. Surrey Canal Company, 343. Dunfee v. Dunfee, 69. Dung V. Parker, 314, 315, 318, 1000. Dunham v. Dey, 917. Dunham v. Gould, 917. Dunham v. Griswold, 19. Dunham v. Mann, 52, 754, 850. Dunham v. Silverstein, 138. Dunham v. Waterman, 1014, 1016. Dunlap V. Hunting, 416, 514. Dunlop V. Richards, 272. Dunn V. Commercial Bank of Buffalo, 329. Dunn V. Wright, 258. Dunning v. Leavitt, 982. Dunning v. Roberts, 292, 293, 294. Dunning v. Stearns, 92, 120, 121. Dunning v. Stevens, 102. Duntz V. Granger Brewing Com- pany, 951. Dupignac v. Bernstrom, 341. Duplex Safety Boiler Company v. Garden, 162. Durando v. Wyman, 200, 201. Durbrow v. McDonald, 743, 775. Durgin v. Ireland, 712. Durkee v. Marshall, 631. Durkee v. Powell, 953. Durkin v. Cranston, 625. Duryea v. Bonnell, 755. Duryee v. Lester, 275. Dusenberrv v. Ellis, 315. Dustan v. McAndrew, 783, 785, 827. Dutcher v. Swartwood, 95. Dutchess Co. v. Harding, 773. Dutchess Cotton Manufacturing Com- pany, V. Davis, 607. Duval V. Willman, 11. Duvoll V. Wilson, 14. Dwight V. Germania Life Insurance Company, 56. Dwyer v. M!ayor etc., of New York, 153. Dye V. Kerr, 26. Dyett V. Hyman, 568. xxvm TABLE OF CASES CITED. Dyett V. Pendleton, 213, 214, 215. Dykcrs v. Townsend, 831, 961, 1001, E. Kagle V. Whart, 491. Kagle Bank v. Eigney, 896. Eagleson v. Shotwell, 900. Earl V. Peck, 16, 17, 38, 633. Earle v. Crane, 39. Earle v. Robinson, 558. Early v. Mahon, 903. Early ^. Reed, 387. Easterly v. Barber, 8, 561. East River Bank v. Butterworth, 635, 636. Eastern Brewing Company v. Feist, 1.36. Eastman v. Shaw, 901, 910. Eastwood V. Kenyon, 14. Eaton V. Alger, 893. Eccelston v. Ogden, 572. Eckhardt v. Ellis, 679. I'Melman v. Rams, 603. Edgell V. Hart, 94, 121, 132. Edgerly v. Bush, 104. Edgerton v. Page, 213, 215. Edgerton v. Thomas, 231. Edmiston v. Brucker, 110. Edmonds v. Abeel, 317. Edmonston v. Hartshorne, 308. Edmunds v. Graves, 637. Edson V. Weston, 411, 415, 416. Edwards v. Candy, 213. Edwards v. Dick, 654. Edwards v. Dooley, 238, 272, 292. Edwards v. Farmers' Fire Insurance Company, 1001. Edwards v. Great Western Railroad Company, 474. Egan V. Kieferdorf, 281. Egan V. Mutual Insurance Company of Albany, 925. Ehle V. Judson, 14, 15, 16, 996. Ehrichs v. DeMill, 597, 611. Eichner v. Bowery Bank, 342. Eichold V. Tiffany, 581. Einstein v. Tutelman, 195. Eisenlord v. Dillenback, 664, 669. Elder v. Rouse, 108. Eldred v. Fames, 868. Elford v. Teed, 661, 662. Elliott V. Brady, 47. Elliott V. Dudley, 388, 392. Ellis V. Craig, 883. Ellis V. McCormiok, 196. Ellis V. Willard, 492. Ellison V. Creed, 772. Elliston V. Berryman, 73. Elmira Iron & Steel Rolling Mill Company v. Harris, 351, 372, 374, 864. Elmore v. Sands, 496. Ellner v. Priestly, 232. Elsee v. Gatward, 418. Ellsworth V. Franklin County Agri- cultural Society, 341. Elting V. Vanderhn, 22. Elwell V. Chamberlain, 266, 301, 897, 913. Elwell V. Skiddy, 579. Elwood V. Deifendorf, 571, 574, 575, 576, 579, 682. Ellwood V. Monk, 982. Ely V. Carnley, 120, 144, 145, 146, 148. Ely V. Cook, 1012. Ely V. Cooke, 522. Ely V. Fahy, 196, 220. Ely V. Ormsby, 838. Emerson v. Parson, 402. Empire State Type Founding Com- pany V. Grant, 740. Emery v. Baltz, 574. Emery v. Dunbar, 481. England v. Davidson, 34. Engle V. Owen, 192. English V. Hanford, 558. Ennis v. Harmony Fire Insurance Company, 923. Enoch v. Wehrkamp, 289. Ensign v. Wands, 362. Eppens, Smith & Wiemann Company V. Littlejohn, 761. Episcopal Church etc., v. Varian, 347. Epstein v. Hugel, 356. Equitable Co-operative Foundry Company v. Hersee, 786. Equitable Trust Company v. New- man, 602. Erben v. Lorrillard, 998. Erie County Savings Bank v. Coit, 560, 561. Ernst V. Crosby, 186. Ernst V. Strauss, 213. Erwin v. Downs, 654. Eschemann v. Atkinson, 214. Esdaile v. Oxenham, 523. Esdaile v. Wuytack, 406. Essex V. Essex, 379. Esterly v. Cole, 870, 871. E. S. T. F. Company v. Grant, 551, 553, 556. Estevez v. Purdy, 894. Eten V. Luyster, 210. Etheridge v. Ladd, 668. Etheridge v. Osborn, 219. Ettinghoff V. Horowitz, 284. Evans v. Conklin, 169, 646. Evans v. Evans, 376. Evans v. Root, 250. Evans v. Warner. 356, 369. Evans v. Wells, 302. TABLE OF CASES CITED. XXIX Evansville National Bank v. Kauf- mann, 560, 580, 588, 647, 711. Everett v. Parks, 758. Everitt v. New York Engraving & Printing Company, i)C4. Everit v. Strong, 395, 649. Everson v. Carpenter, 16. Everson v. Gehrman, 393. Evertson v. Sawyer, 181, 182. Excelsior Grain Binder Company v. Stayner, 325. Excelsior Steam Power Company v. Halstead, 184. Excelsior Terra Cotta Company v. Harde, 866, 872. Exchange Bank v. Monteath, 244. 246, 295. Ex parte Decker, 68. Ex parte Holbrook, 242. Ex parte Kerwin, 68. Ex parte Owen, 369. Fahy v. North, 55, 287. Fairbank Canning Company v. Metz- ger, 799, 801, 810. Fairbanks v. Bloomfield, 94, 119. Fairbanks v. Sargent, 716, 720. Fairchild v. City and County Con- tract Company, 964, 1003. Fairchild v. McMahon, 301. Fairchild v. Ogdensburgh, etc., Rail- road Company, 664. Fairfax v. New York Central, etc., R. R. Co., 457, 498. Faith V. Richmond, 389. Fake v. Eddy, 869, 876. Fake v. Smith, 820. Fales v. McKeon, 823. Falk V. American West Indes Trad- ing Company, 711. Fallkill National Bank v. Sleight. 571, 572. Falvey v. Woolner, 2. Fancher v. Goodman, 789, 794. Fancourt v. Thorne, 610. Fanger v. Caspary, 969. Fanning v. Belle Terre Estates, 532. Fanning v. Consequa, 865. Farian v. Wiegel, 702. Farley v. Cleveland, 981, 983. Farmer \. Medico-Legal Journal As- sociation, 42. Farmer v. New York Gold Exchange Bank, 248. Farmers' Bank v. Cowan, 106. Farmers' Bank of Amsterdam v. Blair, 19. Farmers' & Citizens National Bank V. Noxon, 637. Farmers' etc., Bank v. Butchers' etc.. Bank, 237, 294, 296. Farmers' etc., Bank v. Evans, 69. Farmers' etc.. Bank v. Haight, 338. Farmers' & Mechanics' Bank of Genesee v. Joslyn, 903. Farmers' Loan etc.. Company v. Hendrickson, 113, 136, 137, 144, 953. Farmers' Loan etc., Company v. Walworth, 248. Farmers' Loan & Trust Company v. Long Branch Improvement Com- pany, 89. Farmers' Loan & Trust Company v. Wilson, 318, 319, 320. Farmers' & Mechanics' National Bank v. Atkinson, 751. Farmers' & Merchants' National Bank v. Lang, 85. Farmers' &, Mechanics' National Bank v. Logan, 269. Farmers' & Mechanics' National Bank v. Long, 574. Farnswortu v. Packwood, 466, 470. Farquhar v. Morris, 876. Farrar v. Chauffetete, 954. Farrell v. Hildreth, 115. Farrington v. Caswell, 1015. Farrington v. Frankfort Bank, 617, 637. Fash v. Kavanagh, 224. Fassett v. Smith, 118, 776, 780. Fatta v. Edgerton, 238, 308. Faulkner v. Hart, 492. Favor v. Philbrick, 490. Fay V. Halloran, 204. Feeter v. Heath, 866. Feeter v. Weber, 9, 19. Feinstein v. Gottfried, 195. Feiss V. Wray, 827. Feldman v. Beier, 681. Feldman v. McGraw, 904. Fell V. Knight, 464. Fellows V. Commissioners etc., of Oneida, 894. Fellows V. Hyring, 148. Fellows V. Prentiss, 564, 571, 572. 573, 580. Fenichel v. Zicherman, 872. Fenly v. Stewart, 831, 833. Fenn v. Bittleson, 413, 445. Fenner v. Buffalo & State Line Rail- road Company. 493. Fenton v. Emblers, 964. Ferguson v. Baker, 405. Ferguson v. Hamilton, 912, 913. Ferguson v. Lee, 105, 113. Ferguson v. Netter, 812. Ferguson v. Union Furnace Com- pany, 81. Fernan v. Doubleday, 905. XXX TABLE OF CASES CITED. Ferren v. O'Hara, 844. Ferris v. Bond, 606. Ferris v. Hard, 863, 864. Ferris v. Paris, 276. Ferry v. Stephens, 695. Fidelity & Casualty Company v. Wells, 587. Field V. Ingraham, 138. Field V. Mayor, 711. Field V. Mayor, etc., of New York, 719. Field V. Mayor of New York, 7. Field v. Moore, 745. Field V. Munson, 58. Field V. Sibley, 664. Fielden v. Lahena, 389. Fieldings v. Mills, 513. Fifth Avenue Bank of New York v. Forty Second Street & Grand Street Railroad Company, 300. Fifth Avenue Coach Company v. The City of New York, 336. Fifth National Bank v. Woolsey, 381. Figueira v. Lerner, 238, 292. Filkins v. Whyland, 824. Fink v. Cox, 695. Finkelstein v. Fabyik, 168. Firemens' Insurance Company v. Ely, 891. Firestone Tire & Rubber Company V. Agnew, 349. First Baptist Church v. Bigelow, 994. First Baptist Church v. Brooklyn Fire Insurance Company, 345, 975. First National Bank v. Fourth Na- tional Bank, 252. First National Bank v. Gallaudet, 357. First National Bank v. Green, 637. First National Bank v. Ocean Na- tional Bank, 411, 412. First National Bank v. Staples, 364. First National Bank v. Steutzer, 613, 614. First National Bank v. Wallis, 593, 613, 614. First National Bank v. Wood. 678. First National Bank of Ballston Spa. V. Insurance Company of North America, 926. First National Bank of Batavia v. Ege, 268. First National Bank of Chittenango V. Morgan, 388. First National Bank of Jersey City V. Leach, 622. First National Bank of Richfield Springs v. Kellar, 17. First National Bank of Toledo v. Shaw, 260, 266. First National Bank of Warwick v. Mitchell, 5. Fisher v. Clisbee, 473. Fisher v. Saffer, 949. Fischer v. Fredendall, 787. Fishkill Savings Institution v. Na- tional Bank, 300. Fishkill Savings Institution v. Na- tional Bank of Fishkill, 342. Fish's Eddy Chemical Company v. Stevens, 839. Fish V. Newton, 490, 491. Fister v. La Rue, 243, 245, 345. Fiss, Doerr & Carroll Horse Com- pany V. Schwartzchild, 799. Fitch V. Armour, 193. Fitch V. Beach, 842. Fitch V. Hall, 363. Fitch V. Humphrey, 148. Fitch V. Snedaker, 34, 42. Fitzhugh V. Wiman, 476. Flagg V. Fisk, 154. Flaherty v. Greenman, 498. Flanders v. Crolius, 986. Fleeman v. McKean, 748. Fleetham v. Reddick, 89, 90. Flewellin v. Rave, 439. Flight V. Chapman, 887. Flint V. Corbitt, 844. Flour City National Bank v. Miller, 897. Fobes V. Shattuek, 191. Foden v. Sharp, 659, 663. Foden v. Slater, 865. Foley V. Foley, 868. Foley V. Manufacturers' Fire Insur- ance Company, 919, 922. FoUiard v. Wallace, 162. Fonda v. Gross, 117, 1015. Foot V. Marsh, 747. Foote V. Storrs, 457. Ford V. Cobb, 949, 951. Ford V. Sherman, 304. Ford V. Stuart, 714. Ford V. Williams, 94, 95, 108, 132, 135. Forgotson v. McKeon, 897. Forgotston v. Cragin, 819. Forman v. Forman, 874. Forschirm v. Mechanics' etc., Bank, 869. Fort Edward etc. Plank Road Com- pany V. Payne, 326. Forth V. Simpson, 512. Fortunato v. Patten, 710, 720. Forward v. Continental Insurance Company, 931. Forward v. Pittard, 486. Foster v. Mott, 112. Foster v. Oldham, 200. Foster v. Pettibone, 446, 724, 725, 772. TABLE OF CASES CITED. XXXI Foster v. Persch, 264. Foster v. Preston, 255. Foster v. Schneider, 532. Fowler v. Clearwater, 990. Fowler v. Dorian, 469. Fowler v. Hoschke, 282, 283. Fowler v. New York Indemnity In- surance Company, 919, 920, 924. Fox V. Abbott, 222. Fox V. Burns, 100, 141. Fox V. Coggeshall, 58. Fox V. Davidson, 872. Fox V. Drake, 256. Fox T. McGregor, 512, 517. Fox V. Parker, 571. Fox V. Powers, 153. Fox V. Wabash Railway Company, 503. Foy V. Troy & Boston Kailroad Com- pany, 708. Franchi v. Tirelli, 22. Francois v. Ocks, 454. Frank v. Batten, 551, 555. Frank v. New York, Lake Erie & Western Railroad Company, 200. Frank v. Wessels, 691. Frankenstein v. Cummisky, 72. Frankfurter v. Home Insurance Company, 936. Franklin v. Brown, 194, 220, 221. Franklin v. Hoadley, 356. Franklin v. Hosier, 509. Franklin National Bank v. New- combe, 435, 436. Franklin v. Neate, 433, 439. Franklin v. Robinson, 385. Fraschherieris v. Henriques, 830. Frazer v. Wyckofif, 285. Frear v. Hardenbergh, 26. Frear v. Sweat, 717. Freedman v. Berslin, 467. Freeland v. Southworth, 949. Freeman v. Auld, 715, 982. Freeman v. Folstein, 282. Freeman v. Fulton Fire Insurance Company, 919. Freeman v. Newton, 708. Freeport Bank v. Hagenmeyer, 901. French v. Bauer, 531. French v. Hofmire, 901. French v. Kennedy. 876, 882. French v. Shotwell, 909. French v. Stevenson, 717. Fried v. New York Central etc., Railroad Company, 708. Friedman v. Bruner, 894. Frink v. Green, 11. Frisbie v. Lamed, 683. Froment v. Oltarsh, 869. Fromont v. Coupland, 404. Frost V. Akron Iron Company, 184. Frost V. Benedict, 169. Frost V. Mott, 94, 98. Frost V. Saratoga Mutual Insurance Company, 929. Frost V. Warren, 95. Frye v. Lockwood, 316, 317. Froude v. Bishop, 575. Frygatt v. Sullivan Co., 949. Fuhrmann v. Von Pustan, 382. Fuller V. Acker, 101, 102, 120, 123, 125. Fuller Company v. Manhattan Con- struction Company, 214. Fuller V. Kemp, 684. Fuller V. Negus, 572. Fulton V. Matthews, 569, 574. Fulton V. Varney, 602. Fulton Bank v. JBenedict, 346. Fulton Bank v. New York and Sha- ron Canal Company, 346. Furman v. Galanopulo, 178. Furman v. Haskin, 664. Furman v. Union Pacific Railroad Company, 478. G. Gage v. Callahan, 235. Gage V. Parker, 725. Gahn v. Niemcewiez, 571, 573. Gail V. Gail, 59. Gainer v. Hannah, 226. Gallagher v. Nichols, 644, 715. Gallagher v. Vought, 25. Gallagher v. White, 645. Gale V. Miller, 390. Galle V. Tode, 1015. Galef V. Standard Fish Company, 161. Galen v. Brown, 97. Gallery v. Prindle, 610. Gamble v. Cuneo, 563, 564. Gamble v. Queens County Water Company, 273. Gallo V. Brooklyn Savings Bank, 620. Gallup V. Perue, 867. Galvin v. Prentice, 971. Gammon v. Schmoll, 658. Gannon v. McGuire, 693, 697. Ganniss v. Gardiner, 875. Gansevoort v. Kennedy, 398. Ganson v. Tifft, 198. Ganz V. Lancaster, 904, 909. Garbutt v. Smith, 792. Gardenier v. Tubbs, 1015. Gardiner v. Suydam, 288. Gardner v. Clark, 54. Gardner v. Finlay, 950. Gardner v. McEwen, 93, 94, 120, 132. Gardner v. Keteltas, 190, 191. Gardner v. Lane, 726. XXXll TABLE OF CASES CITED. Garfield National Bank v. Colwell, 617, 635. Garrigue v. Loesclier, 18, 717. Garr v. Martin, 575. Garte v. Souvenir Poat Card Com- pany, 446. Garvey v. Dung, 299. Gaskell v. Beard, 533. Gates V. Beecher, 666. Gates V. Brower, 231. Gates V. Davenport, 159, 160, 163. Gates V. Dudgeon, 962, 992. Gates V. McKee, 580, 959. Gause v. Boldt, 349. Gause v. Commonwealth Trust Com- pany, 333, 334. Gay V. Seibold, 366. Geary v. Physic, 612. Geer v. Archer, 14, 15, 16, 22. Geismer v. Lake Shore & Michigan Southern Railroad Company, 494, 495. Gelb V. Waller, 801. General Electric Company v. Nation- al Construction Company, 867. General Electric Company v. Wight- man, 31. Genet v. Rowland, 435, 436. Genges v. Genges, 522. Genin v. Tompkins, 763. George v. Clagett, 520. George v. Surrey, 612. George v. Tallman, 726. Geortner v. Trustees of Canajoharie, 649, 1016. Gerding v. Haskins, 285. Gerken v. Smith, 203. Gerloff V. Carleton, 312. German-American Bank v. Atwater, 618, 621, 669. German American Bank v. Milliman, 665. German American Savings Bank v. Brodsky, 22. Gerould v. Wilson, 582. Gerwig v. Sitterly, 903. Getty V. Binsse, 563, 564. Giblin v. National Steamship Com- pany, 48/. Giblyn v. Hanf, 462. Gibbon v. Paynton, 488. Gibbs V. Coykendall, 458. Gibbs V. Hanchett, 533. Gibbs V. Long Island Bank, 328. Gibson v. Culver, 490, 492. Gibson v. Lupton, 353. Gibson v. Minet, 602. Gibson v. Eenne, 13, 574. Gibson v. Tobey, 741, 990. Gihon V. Stanton. 311. Gilbert v. Allen, 815. Gilbert v. Danforth, 632. Gilbert v. Manchester Iron Company, 329, 427. Gilbert v. Marsh, 570. Gilbert v. iNew York Central etc., R. R. Co., 739. Gilbert v. Warren, 890, 897. Gilbert v. Williams, 400. Gilbert v. \Mman, 70, 565, 560. Gildersleeve v. Landon, 136. Gile V. Libby, 471. Giles V. Comstock, 214. Giles V. O'Toole, 190. Gilkinson v. Third Avenue Railroad Company, 695, 698, 699. Gilhooly v. New York & Savannah Steam Navigation Company, 501. Gilhoolev v. Washington, 217. Gillan v. O'Leary, 4. Gill V. Brown, 256. Gillet V. Van Rensselaer, 868. Gillett V. Averill, 888, 899. Gillett V. Balcom, 299, 952. Gillett V. Bank of America, 56, 435. Gillett V. Hill, 628. Gillett V. Mawman, 452. Gillis V. Space, 157. Gillispie v. Brooklyn Heights Rail- road Company, 463, 497. Gillispie v. Mayor etc., of New York, 883. Gillispie v. Torrance, 220. Gilmartin v. Van Horn, 38. Gilmore v. Ontario Iron Company, 167. Ginther v. Richmond, 1011. Giordano v. Nizzari, 801. Gilpin V. Endenbey, 371. Gilsey v. Wild, 16. Gitler v. Russian Company, 10. Given v. Driggs, 74, 583. Glacius V. Black, 53. Glasco V. New York Central etc., R. R. Co., 498. Glaser v. New Y'ork Physicians' Mu- tual Aid Association, 877. Glass V. Hauser, 416. Gleason v. Morrison, 445. Gleadell v. Thomson, 482. Glen V. Whitaker, 758. Glenn v. Garth, 325. Glenn v. Rossler, 52. Globe Mills v. Quinn, 945. Glover v. Tuck, 406. Gluckman v. Kleinman, 511, 515. Godard v. Gould, 88, 948. Goddard v. Hodges. 404. God in v. Bank of Commonwealth, 599. Goelth V. White. 789. 792. Goffe V. Jones, 21. Gort V. National Prot. Ins. Co. 930, 936. TABLE OF CASES CITED. XXXlll Goldberg v. Lavinski, 974. Goldberger v. Mittler, 183. Golden v. Manning, 490. Goldrich v. Ryan, 814. Goldsmid v. Lewis County Bank, 638. ' Goode V. Harrison, 354. Goodman v. Niblack, 710. Goodrich v. Gillies, 533. Goodrich v. Jones, 948. Goodrich v. Thompson, 250. Goold V. Chapin, 487, 493. Goodsell V. Myers, 16, 79. Goodwin v. Bayerle, 116, 136. Goodwin v. Holbrook, 631, 633, 763. Goodwin v. Kelly, 132. Goodwin v. Klrker, 159, 449, 456. Goodwin v. Simonson, 570. Goodwin v. Sommer, 233. Goodwin v. Wertheimer, 776. Goodyear v. Vosburgh, 997. Goodyear v. Watson, 576. Gordon v. Buchanan, 473. Gorman v. Williams, 513. Gossler v. Schepler, 827. Goss V. Watlington, 585. Grottsberger v. Radway, 959. Gould V. Cayuga County National Bank, 787, 790. Gould V. Gould, 270, 369. Gould V. Moring, 958, 961. Goulding v. Davidson, 14, 15. Gough V. Staats, 621, 667. Gowlet V. Asseler, 97. Graflng v. Irving Savings Institute, 697. Graham v. Chrystal, 866. Graham v. Firemens' Insurance Com- pany, 926. Graham v. Healy, 998. ■Graham v. Negus, 572. Grand v. Livingston, 65. Grandin v. Le Roy, 639. Grangiae v. Arden, 697. Grant v. Elliott, 635, 63G. Grant v. Hotchkiss, 588. Grant v. Skinner, 87. Grant v. Smith, 564. Grapel v. Hodges, 319. Graser v. Stellwagen, 395. Gratz V. Bayard, 399. Graves v. Berdan, 195. Graves v. Brinkerhoff, 726. Graves v. Friend, 683. Graves v. Porter, 203. Graves v. Spier, 707. Gray v. Barton, 41, 693, 695. Gray v. Central Railroad Company of New Jersey, 866. Gray v. Davis, 836. Gray v. Fowler, 902. •Gray v. Gray, 620. Gray v. Green, 403, 716. Gray v. Kaufman Dairy etc.. Com- pany, 207. Gray v. Lessington, 791, 792. Green v. Armstrong, 21, 997, 1002. Green v. Brown, 887. Green v. Deakin, 388. Green v. Goings, 659, 663. Green v. Green, 79. Green v. Hart, 714. Green v. Kemp, 908. Green v. Miller, 301. Green v. Reese, 694. Green v. Schroeder, 60. Greenblatt v. Zimmerman, 170. Greene v. Northern Steamship Com- pany, 964. Greene v. Warwick, 716, 717. Greenly v. Hopkins, 881. Greenslade v. Dower, 390. Greenwich Insurance Company v. Oregon Improvement Company, 682. Greenwood v. Brink, 359. Greenwood v. Spring, 273. Great Western Turnpil<:e Company v. Shafer, 965. Gregg V. Pierce, 35. Gregory v. Hitchcock Publishing Company, 615. Gregory v. Stryker, 447, 451, 772. Gregory v. Thomas, 116, 124, 136, 144. Grennell v. Cook, 464. Gridley v. Dole, 404. Griffey v. New York Central Insur- ance Company, 932. Griffin v. Baust, 167. Griffin v. Brooklyn Ball Club, 152. Griffin v. Cranston, 1012. Griffin v. Marquardt, 100. Griffin v. Prudential Insurance Com- pany, 714. Griffith V. Reed, 606. Griffith V. Robertson, 585. Griffiths V. Hardenbergh, 58, 569, 870. Grimes v. Hillenbrand, 40. ■ Grinnell v. Buchanan, 255. Grinnell v. Cook, 465, 512, 516, 517. Grinnell v. Kiralfy, 162. Grinnell v. Schmidt, 309. Grippen v. Weed, 533. Griswold v. Haven, 294. Griswold v. Sheldon, 132. Griswold v. Waddington, 399. Groat V. Gile. 744, 747. Groat V. Reese, 134, 135. Grosvenor v. New York Central etc., R. R. Co., 484. Grosvenor v. Phillips, 288. Gross v. Allejo, 764. XXXIV TABLE OF CASES CITED. Grouse v. Wolf, 786. Grover v. Wakeman, 1012. Grow V. Garlock, 574. Gruenberg v. Treanor, 1018. Grymes v. Hone, 693, 702, 703. Guckenheimer v. Angevine, 790. Guggenheimer v. Gieszler, 864. Guernsey v. Rexford, 875. Guidetti v. Tuoti, 286. Guilford v. Mulkin, 681. Guillaume v. Hamburg American Packet Company, 479. Gulwillig V. Zuberbier, 758. Gurney v. Atlantic & Great Western Railroad Company, 812. Gurski V. Doscher, 156. Guy V. Oakley, 262. Guyon v. Lewis, 316. H. Haas V. Eoat, 359. Hachnel v. Trostler, 161. Hacket v. Tilley, 568. Hackett v. Campbell, 710. Hackett v. Stanley, 357, 359. Hackley v. Patrick, 401. Hackney v. Vrooman, 695, 698. Hagadorn v. Lang, 1001. Haggerty v. Allaire Works, 22. Hague V. Porter, 758. Hahnenfeld v. Wolff, 233. Haight V. Holcomb, 522. Haight V. Hoyt, 707. Haight V. Sahler, 304, 316. Haines v. Thompson, 964. Hale V. Andrus, 583. Hale V. Boardman, 39. Hale V. Sweet, 131, 138. Hallahan v. Webber, 787. Hallenbeck v. Cochran, 835, 837. Hallett V. Metropolitan Messenger Company, 348. Hallett V. Wylie, 168, 195. Halliday v. Hart, 574. Halliday v. McDougall, 407. Hall V. Arnold, 108, 135, 1011. Hall V. Ayer, 522. Hall V. Brown, 21. Hall V. Buffalo, 711. Hall V. Daggett, 890. Hall V. Earnest, 901. Hall V. Erwin, 775. Hall V. Haggart, 900. Hall V. Lauderdale, 256, 312, 315, 318 Hall V. Naylor, 775. Hall V. Sheehan, 527. Hall V. Stevens, 682, 740, 741. Hall V. Stryker, 112. Hall V. Tuttle, 81, 83, 118, 132. Hall V. Wilson, 599, 617, 639, 640, 901. Hallock V. Belcher, 71. Halsey v. Christie, 112. Halstead v. Mayor etc., of New York, 335. Halstead v. Schmclzel, 404. Halsted v. Swartz, 102. Halvordson v. Grossman, 764. Hallwood Cash Register Company v. Finnegan, 9. Hamar v. Sidway, 12, 17. Hammet v. Linnemann, 740, 741. Hamil v. Gillespie, 96. Hamilton v. Coogan, 535. Hamilton v. Ganyard, 769. Hamilton v. Hamilton, 13. Hamilton v. Van Rensselaer, 864, 869. Hamilton National Bank v. Upton, 40. Hammond v. Hopping, 15, 902, 903, 917. Hammond v. Shepard, 32. Hancke v. Hooper, 455. Hancock v. Gomez, 276. Hancock v. Rand, 460, 461. Hand v. Baynes, 490. Hand v. Church, 872. Hanes v. Sackett, 714. Hanford v. Archer, 117, 132, 134. Hanford v. Artcher, 1015. Hanford v. Higgins, 988. Hangen v. Hachmeister, 79, 94. Hangen v. Hochmeister, 94. Hanford v. Palmer, 444. Hankinson v. Vantine, 528. Hanna v. Mills, 849, 851. Hanner v. Cornelius, 453. Hansee v. Phinney, 903. Happel V. Rosenthal, 42. Hapgood V. Lusch, 31. Happy V. Mosher, 572. Harbeck v. Craft, 638. Harbeek v. Pupin, 393, 394. Harder v. Continental Printing etc.. Company, 271, 297. Harder v. Plass, 116. Harding v. Jenkins, 634. Hardman v. Willcock, 478. Hardmann v. Bowen, 1011. Hardt v. Deutsch, 96. Harger v. McCullough, 893. Harger v. Wilson, 901. Harger v. Worrall, 635, 636. Hargous v. Ablon, 821 . Hargous v. Stone, 769, 816, 818. Harker v. Anderson, 664. Harker v. Dement, 440. Harman t. Reeve, 841. Harper v. New York City Insurance Company, 924. TABLE OF CASES CITED. xxsrv Harmony v. Bingham, 37, 494. Harper v. Albany Mutual Insurance Company, 61, 925. Harper v. Fairley, 588. Harrington v. Higham, 393. Harrington v. Snyder, 442, 444. Harris v. Berger, 618. Harris v. Clark, 608, 660, 696, 939. Harris v. Fink, 998. Harris v. Frink, 172, 997. Harris v. Greenberger, 190. Harris v. Knickerbocker, 972. Harris v. Packwood, 476. Harris v. Pratt, 828. Harris v. Story, 5, 171. Harris v. Warner, 578. Harris v. Wells, 349. Harrison v. Burlingame, 137. Harrison v. Hannell, 905. Harrison v. Ross, 258. Harrison v. Utley, 75. narrower v. Heath, 172, 209. Harry v. Cherry, 920. Harsha v. Reid, 999. Hart V. Hart, 161. Hart V. Hudson, 571, 587. Hart V. Maloney, 25. Hart V. Mills, 750. Hart V. Rensselaer & Saratoga R. R. Co., 359. Hart V. Taylor, 737. 771. Hart V. Thompson, 43. Hartford Fire Insurance Company v. Dickenson, 683. Hartley v. Harrison, 909. Hartmann v. Sclmugg, 309. Hartop V. Hoare, 515, 520. Hartwell v. Young, 969. Harvard Brewing Company v. Sper- ber, 70. Harvey v. Archbold, 892. Harvey v. Towers, 637. Hasbrouck v. Childs, 370, 385, 407. Hasbrouck v. New York Central etc., R. R. Co., 431, 498. Hasbrouck v. Weaver, 231. Haskins v. Kelly, 137, 433. Haslam v. Adams Express Company, 491. Hastings v. Belknap, 112. Hastings v. Pepper, 490. Hatch V. Hamlin, 575. Hatch V. Mann, 35. Platfield V. Reynolds, 234. Hathaway v. Brayman, 96, 104, 141. Haulenbeck Advertising Agencv v. November, 386. Haussoullier v. Hartsinck, 610. Havemeyer v. Cunningham, 734. Havens v. Huntington, 651. Haviland v. Chase, 381. Hawes v. Lawrence, 761. Hawk V. Thorn, 707. Hawkes v. Smith, 488. Hawkins v. Appleby, 396. Hawkins v. Campbell, 357. Hawkins v. Cardy, 648. Hawkins v. Hoffman, 479. Hawkins v. Mosher, 70, 566. Hawkins v. Pemberton, 799, 802, 806. Hawley v. Keeler, 301, 840. Hawthorn v. Hammond, 462. Hawthorne v. Hodges, 775, 790. Plaxtun V. Bishop, 659, 664. Hay V. Cohoes Co., 341. Hay V. Cumberland, 176, 191, 218. Hayden v. Demets, 747, 753, 754, 783. Haydock v. Coope, 1012. Haydock v. Lynch, 610. Haydock v. Stow, 992. Hayman v. Jones, 136. Haynes v. Aldrich, 181, 183, 205. Haynes v. Brooks, 377. Hays V. Hathorn, 713. Hays V. Stone, 682. Hay-ward v. Barron, 356, 364. Haywood v. Miller, 172. Hazard v. Manning, 509. Hazard v. Wright, 332. Hazelton v. Webster, 10. Hearne v. Keene, 240. Hearsey v. Pruyn, 317. Heath Dry Gas Company v. Ilurd, 799. Heaverin v. Donnell, 658. Hebbard v. Mayo, 185. Hedges v. Hudson River Railroad Company, 501. Hedges v. Sealy, 651. Hedley v. Bainbridge, 390. Heermans v. Ellsworth, 718, 719. Heermance v. Taylor, 834, 835. Hegeman v. McArthur, 208. Hegeman v. Moon, 603, 608. Hegeman v. Western Railroad Corpo- ration, 496. Hegerich v. Keddie, 707. Heilbronn v. Herzog, 785. Heilburn v. Aaronson, 213. Heimstreet v. Howland, 362. Heine v. Anderson, 755. Heineman v. Grand Trunk Railroad Company, 504. Heinemann v. Heard, 253, 307, 457. Hellman v. Strauss, 999. Hempstead v. New York Central Railroad Company, 485. Henderson v. Wasserniann, 758. Hendrickson v. Beers, 708. Henken v. Schwieker, 274, 293. Hennequin v. Naylor, 774. Hennequin v. Sands, 742. XXXVl TABLE OF CASES CITED. Henning v. New York & New Haven Railroad Company, 241. Henricus v. Englert, 303. Henry v. Allen, 291, 299. Henry v. Marvin, 203. Henry & Company v. Talcott, 815. Henry, Wm. H. & Co. v. Fry, 886. Hentz V. Miller, 259. Hepke v. Schmalholz, 760. Herkimer v. Rice, 921. Herrick v. Borst, 570, 571. Herrick v. Guarantor's Finance Com- pany, 644. Herrick v. Whitney, 654. Herring v. Hoppock, 73, 551. Herman v. Adriatic Fire Insurance Company, 927. Herrman v. Heydemann, 974. Herrman v. Merchants' Insurance Company, 927. Heroy v. Van Pelt, 402. Hersey v. Benedict, 775, 786. Herter v. Merser, 974. lierter v. Mullen, 182. Herzig v. Herzig, 426. Herzog v. Marx, 946. Hesketh v. Blanchard, 364. Hess v. Fox, 1002. Hess v. Rau, 319. Hess V. Sloane, 334. Hetfield v. Lawton, 228. Heubach v. Rother, 262. Heuertematte v. Morris, 620. Hewett V. Bronson, 27. Hewison v. Guthrie, 513. Heye v. Tilford, 356. Heyhoe v. Burgess, 360. Heyl V. Inman Steamship Company. 486. Heyman v. Stryker, 472. Hibbard v. New York & Erie Rail- road Company, 342. Hibernia National Bank v. Lacombe. 620. Hickling v. Hardey, 685. Hickok V. Bunting, 604. Hicks V. Hinde, 650. Hicks V. Whitmore, 310, 849. Hicks V. Williams, 137, 140. Hiddink v. Woolverton, 503. Higgins V. Moore, 233, 258. Higgins V. Murray, 452. Higgins V. O'Donnell, 636. Higgins V. Ridgeway, 616, 635. Hill V. Barth, 357. Hill V. Blake, 760. Hill V. Beebe, 116, 123, 124, 144, 681. Hill V. Hanford, 26. Hill V. Hibernia Insurance Company, 58. Hill V. Hoole, 716, 717. Hill V. Miller, 61, 305. Hill V. Packard, 566. Hill V. Wilson, 698. Hills V. Bannister, 38. Hills V. Hills, 701. Hills V. Place, 664. Hills V. Stanton, 613. Hilliard v. Austin, 507, 988. Hilton V. Vanderbilt, 268. Hinckley v. Kreitz, 76. Hinckley v. New York Central etc., R. R. Co., 249. Hinds V. Kellogg, 842. Hinman v. Judson, 99, 125. Hinsdale v. Bank of Orange, 692. Hinsdale v. White, 219. Hinton v. Locke, 518, 813. Hirsch Lumber Company v. Hubbell, 741. Hirschberg v. Dinsmore, 505. Hiscox V. Greenwood, 516. Hitchcock V. Cadmus, 1014. Hitchcock V. Covill, 785, 786. Hoag V. Edwards, 337. Hoag- V. Hoag, 175. Ploar V. Clute, 163. Hoard v. Garner, 296. Hoare v. Dawes, 353. Hoare v. Parker, 431. Hobbs v. McLean, 59, 710. Hoch V. Goodhart, 787. Hochster v. DeLai'our, 158. Hodge V. Sexton, 752. Hodges V. City of Buffalo, 249, 336, 337. Hodges V. Hunt, 16. Hodges V. Shuler, 604, 670, 671. Hodges V. Tennessee M. & F. Ins. Co., 83. Hodgman v. Smith, 370. Hoe V. Sanborn, 787, 807. Hoffman v. ^tna Insurance Com- pany, 60. Hoffman v. Carow, 750, 780. r-Toffman v. Roessle. 465. Hoffman v. Van Allen, 188. Hngan v. Short, 520. Hogeboom v. Hall, 120. Hogue V. Simonson, 232. Holhrook v. Wight, 262, 287, 514. Holcroft V. Hoggins, 363. Holden v. Crafts, 276. Holden v. Dakin, 813, 814. Holden v. New York & Erie Bank, 290. Holden v. Trust Company, 864. Holder v. Soulby, 462. Holdsworth v. Hunter, 624. Holman v. Dord, 728, 804. Holmes v. DeCamp, 684. Holmes v. Higgins, 404. Holmes v. North German Lloyd Steamship Company, 484, 505. TABLE OF CASES CITED. XXXVll Holmes v. Rankin, 880. Holmes v. Roper, 608. Holmes v. Tremper, 945. Holmes v. United Insurance Com- pany, 371. Holmes v. Weed, 8, 74, 575, 583. Holmes v. Wetmore, 900. Holmes v. Williams, 911, 913. Holmes v. Wood, 576. Holsapple v. Rome, Watertown & Ogdensburg R. R. Co., 504. Holsman v. Abrams, 183. Holland v. Cole, 197. Holliday v. Atkinson, 696. Holliday v. Roxbury Distilling Com- pany, 281. Hollingworth v. Napier, 755, 828. Hollingsworth v. Moulton, 309. Hollis V. Claridge, 523. Hollister v. Nowlen, 497, 504. Hollister v. Simmons, 355. Home Insurance Company v. Dun- ham, 888, 890. Home Insurance Company v. Green, 671. Home Insurance Company v. Watson, 10, 41. Home Life Insurance Company v. Sherman, 213, 214. Hone V. Mutual Safety Insurance Company, 518. Hood V. Manhattan Fire Insurance Company, 937. Hooper v. Baillie, 394. Hooper v. Hudson River Fire In- surance Company, 922. Hooper v. Story, 811. Hope V. Lawrence, 432. Hopkins v. Davis, 554. Hopkins v. Mollineaux, 231, 608. Hopkins v. Rogers, 20. Hopkins v. Tanquera}', 808. Hopkins v. Ward, 15. Hopper v. Sage, 330. Horn V. Horn, 522. Horncastle v. Farrah, 513. Horner v. Sidway, 972. Horner v. Wood, 714. Horovcitz v. Wollowitz, 910. Horton v. Garrison, 243, 301, 650. Hosack V. College of Physicians, etc., 332. Hosea v. McCrory, 483. Hosford V. Nichols, 865, 914. Hostatter v. Wilson, 604, 626. Hotehkiss v. Artizans' Bank, 241. Hotchkiss V. Gage, 804, 805, 814. Hotop V. Neidig, 1013. Houchin v. Vacher, 388. Hough V. Brown, 46. Houghtaling v. Marvin, 319. Houghtaling v. Randen, 28. Houghton V. Dodge, 651. Houghton V. Matthews, 519. liousatonic National Bank v. Foster, 20. House V. Burr, 180, 203, 204, 210. House V. Grant, 698. House V. House, 941. Houston V. Shindler, 248. Hovey v. American Mutual Insur- ance Company, 932. Hovey v. Smith, 942. Howard v. Daly, 157. Howard v. Doolittle, 223. Howard v. France, 405. Howard v. Hoey, 787, 818. Howard v. Sheppard, 479. Howard v. Van Gieson, 652. Howe Machine Company v. Farring- ton, 570. Howell V. Brodie, 353. Howell V. Jackson, 462. Howie V. Kasnowitz, 47. Howland v. Lounds, 34. Howland v. Willett, 97, 102, 120, 123. Howland v. Woodruff, 259. Hoxie V. Kennedy, 690. Hoyt V. Thompson, 336, 339. Hubbard v. Gurney, 561, 571, 573. Hudson \. Baxendale, 483. Hudson v. Swan, 514. Huested v. Mathes, 528. Huffman v. Hulbert, 573. Hughes V. Wheeler, 681, 684. Hulett V. Swift, 464, 466. Hull V. Carnley, 94, 96, 97, 113. Hull V. Pearson, 32. Hume V. Bollard, 396. Humerton v. Cherry, 556. Humerton v. Hay, 76. Humphrey v. Persons, 75. Hungerford v. Wagoner, 188. Hungerford's Bank v. Dodge, 906, 910. Hvmt V. Bloomer, 13, 574. Hunt V. Comstock, 169. Hunt V. Hudson River Fire Insur- ance Company, 924. Hunt V. Hunt, 970. Hunt V. Peaoke, 30. Hunt V. Purdy, 570. Hunt V. Rousmanier, 319. Hunt V. Smith, 564. Hunter v. Batterson, 678. Hunter v. Hudson River I. and M. Co., 773. Hunter v. Hunter, 697, 701. Hunter v. Wetsell, 837, 838. Huntington v. Gilmore, 697. Huntington v. Potter, 403, 718. Hurd v. Green, 10, 16. Hurd v. Pendrigh, 18. XXXVlll TABLE OF CASES CITED. Hurd V. Hunt, 895. Hurd V. West, 724. Hurfif V. Hives, 746. Hurlbut V. Post, 219. Hutchings v. Miner, 982. Hutchinson v. Campbell, 380. Hutchinson v. Walter, 833. Hutt V. Zimmer, 61. Hyatt V. Clark, 289. Hyatt V. Wait, 871. Hyde ». Cookson, 447, 724, 772. Hyde v. Goodnow, 617, 914, 916. Hyde v. Stone, 873. Hvde V. Trent Navigation Company, 486. Hyde v. Trent & M. Nav. Co., 490. Hyde v. Tuffts, 707. Hyland v. Paul, 196. Hyland v. Sherman, 810. Hyman v. Caspary, 314. Hyman v. Central Vermont Railroad Company, 502. Hyman v. New York Mortgage Com- pany, 162. Hynds v. Schenectady County Mutual Insurance Company, 927. I. Ide V. Sadler, 492. Importers' & Traders National Bank V. Peters, 790. Industrial & General Trust Com- pany V. Tod, 31, 60. Ingalls V. Lee, 898. Ingalsbee v. Wood, 464. Ingate v. Christie, 472. Ingraham v. Baldwin, 173. Ingraham v. Gilbert, 14, 16, 39. Inman v. Western Fire Insurance Company, 932, 933. Insurance Company v. Wilkinson, 244. Interstate Steamboat Company v. First National Bank, 738, 771. Ireland v. Oswego etc., P. R. 344. Irish V. Nutting, 698, 703. Irons V. Smallpiece, 702. Irvin V. Conklin, 361. Irvin V. Westchester Fire Insurance Company, 922. Irvine v. Forbes, 352. Irvine v. Stone, 841. Irving V. Excelsior Fire Insurance Company, 923, 934. Isaack v. Clark, 430. Isaacs V. Terry and Tench Company, 784. Isaacs V. Third Avenue Railroad Company, 342. Isaacs V. Wanamaker, 801. Isaacson v. New York Central & Hudson River Railroad Co., 249, 498. Israelson v. Wollenberg, 171. Ives V. Miller, 404. Jacks V. Darrin, 690. .Jacks V. Nichols, 897, 905. Jackson Architectural Iron Works v. Hulbert, 472. Jackson v. Allen, 212. Jackson v. Blodgett, 715. Jackson v. Bradt, 188. Jackson v. Brown, 337. Jackson v. Brownson, 204, 212. Jackson v. Builders' Wood Working Company, 61. Jackson v. Caldwell, 127. Jackson v. Campbell, 875. Jackson v. Covert, 842. Jackson v. Decker, 585, 587. Jackson v. Delacroix, 170. Jackson ex deni. Van Schaick v. Davis, 175. Jaclison V. Fassitt, 912, 913. Jackson v. Garnsey, 127. Jackson v. Griswold, 582. Jackson v. Harrison, 226. Jackson v. Helmer, 798. Jackson v. Packard, 905. Jackson v. Raynor, 22. Jackson v. Rode, 42. Jackson v. Rowland, 175, 176. Jackson v. Second Avenue Railroad Company, 342. Jackson v. Tupper, 835, 837. Jackson v. Twenty-third Street Rail- road Company, 330. Jackson v. Walker, 172. Jackson v. Whedon, 173. Jacob V. Emmett, 869. Jacob V. Kellogg, 943. Jacobson v. Bradley, 906. Jacobs V. Allen, 1010. Jacobs V. Day, 816. Jacobs V. Kolff, 155. Jacobs V. Latour, 523. Jaeger v. Kelley, 1016. Jaflfe V. Bowery Bank, 713. Jaffe V. Harteau, 221. Jagger Iron Company v. Walker, 681. James v. Chalmers, 61 7, 618. James v. Coe, 207. James v. Hagar, 150. James v. Patten, 832, 1000. James v. Pope, 401. James v. Rubino, 207. James v. Whitbread, 355. Jaques v. Todd, 242. Jaroslauski v. Sanderson, 435. TABLE OF CASES CITED. XXXIX Jarvis v. Sewall, 70, 566. Jefferson Iron Company v. Thomp- son, 807. Jeffrey v. Bigelow, 231, 300, 810. Jeffrey v. Walker, 971. Jeffrey v. Walton, 612. Jeliingliaus v. New York Insurance Company, 345. Jemison v. Citizens' Savings Bank, •295, 313. Jencks v. Smith, 88. JenuoY V. Herle, 610. Jennings A'. Alexander, 199. Jennings v. Camp, 55, 154. Jennings v. Chenango County Mutual Insurance Company, 928. Jennings v. Chute, 404. Jennings v. Grand Trunk Railroad Company, 503. Jennings v. Merrill, 259. Jennings v. Van Schaick, 220. Jermain v. Lake Shore & Michigan Southern Railway Company, 330. Jermyn v. Hunter, 953. Jerome v. Whitney, 601, 626. Jersey City Insurance Company v. Archer, 1018. Jervis v. Hoyt, 247, 261. Jessup V. Hulse, 1014. Jessup V. Steurer, 263. Jewell V. Wright, 865, 915. Johanning v. Wilson, 361. Jones V. East Society etc., 575. Jones V. Gay, 894. Jones V. Gould, 306. Jones V. Graham, 111, 116, 130, 136. Jones V. Hake, 901. Jones V. Haussmann, 201. Jones V. Home Furnishing Company, 602. Jones V. Hotel Latham, 468. Jones V. Judd, 37, 55. Jones V. Methodist Church of Roches- ter, 562. Jones V. Morrill, 516. Jones V. Pearle, 525. Jones V. Phoenix Bank, 33. Jones V. Reilly, 174. Jones V. Reynolds, 837. Jones V. Eyde, 686. Jones V. Savage, 685. Jones V. Terre Haute & Richmond Railroad Company, 330. Jones V. Turner, 62. Johnson v. Alexander, 357, 362. Johnson v. DePeyster, 53. Johnson v. Dixon, 225. Johnson v. Doll, 208. Johnson v. Gibson, 14. Johnson v. Gilbert, 566, 682, 848. Johnson v. Hartshorne, 377. Johnson v. Haws, 362. Johnson v. Hill, 516. Johnson v. Hunt, 453, 772. Johnson v. Jones, 238, 245. Johnson v. Lee, 618. Johnson v. Midland Railroad Com- pany, 474, 476. Johnson v. Miln, 961. Johnson v. New York Central Rail- road Company, 249. Johnson v. Oppenheim, 189. Johnson v. Spicer, 39. Johnson v. Titus, 16, 641. Johnson v. Weed, 683. Johnston v. Brannan, 869. Johnstown Cemetery Association v. Parker, 340. Jokinisky v. Miller, 171. Jordan v. National Shoe & Leather Bank, 521. Jordan v. Volkenning, 582. Jourgensen v. Traitel, 169. Joseph v. Struller, 232. Journeay v. Brackley, 202. Joveshof V. Rockev, 40. Joy V. Diefendorf," 637, 678, 901. Joyce V. Adams, 740. Jube V. Brooklyn Fire Insurance Company, 928, 935. .Judah V. Harris, 606. Judd V. Smith, 664. .Judson V. Etheridge, 512. Jugla V. Trouttett, 59. Julian V. Berardini, 185. Julian V. Shobroke, 628. Juillard v. Trokie, 43, 44. Jury V. Barker, 611. Justice V. Lang, 833. K. Kaake v. Griswold, 282. Kafka v. Levensohn, 509. Kain v. Fisher, 941. Kain v. Hoxie, 200. Kaiser v. Hoey, 505. Kalley v. Baker, 282. Kalina v. Robert Gair Company, 24. Kane v. Smith, 871, 879. Kaplan v. Shapiro, 362. Kaplan v. Titus, 409. Karsch v. Pettier & Stymus Manu- facturing Company, 341. Karst V. Gane, 111, 138, 145. Kasparzyk v. Metropolitan Life In- surance Company, 925. Kasson v. Smith, 637. Kay V. Whittaker, 908. Kayser v. Sichel, 785, 849. Kayton v. Barnett, 263. Keates v. Cadogan, 221. Kedian v. Hoyt, 309. Keeler v. Vanderveer, 744, 841 . xl TABLE 01 OASES CITED. Keeney v. Grand Trunk Eailroad Company, 475. Keeney v. Home Insurance Company, 936. Kein v. Tupper, 767. Kelley v. Hurlburt, 373. Kelley v. Mayor of Brooklyn, 333, 597, 612. Kelley v. Upton, 52, 732, 737, 739, 850. Kellogg Bridge Company v. Hamil- ton, 807. Kellogg V. Hickok, 874, 890. Kellogg V. Olmstead, 13, 574. Kellogg V. Slawson, 1010. Kelly V. Excise Commissioners, 460. Kelly V. Ferguson, 606. Kelly V. Lane, 112. Kelly V. Manhattan Eailroad Com- pany, 495. Kelly V. Simons, 752. Kelly v. Smith, 711. Kelly V. T. L. Smith Company, 972. Kelly V. Theiss, 670. Kelsey v. Durkee, 176, 946. Kemp V. Carnley, 394. Kennedy v. Strong, 266. Kenney v. New York Central etc. R. R. Co., 505. Kennerly v. Nash, 881. Kent V. Aetna Insurance Company, 921. Kent V. Friedman, 812. Kent V. Kent, 964. Kent V. Quicksilver Mining Company, 337. Kent V. Schuckard, 469. Kent V. Walton, 901, 913. Kerby v. Ruegamer, 593. Kerford v. Mondel, 515. Kernoehan v. Murray, 63. Kersted v. Orange & Alexandria Railroad Company, 316. Kervin v. Utter, 873. Kerrains v. People, 172. Kerr v. Merchant's Exchange, 195. Kessler v. New York Central etc. R. R. Co., 503. Ketchem v. Clark, 373. Ketchum v. Barber, 898. Ketchell v. Burns, 646. Keteltas v. Fleet, 785. Key V. Flint, 513. Keyser v. Harbeck, 118, 778, 779. Kibbe v. Grossman, 175. Kiernan v. Rochelau, 787. Kiersted v. Orange & Alexandria R. R. Co., 305. Kilmer v. New York Central etc., R. R. Co. 505. Killmore v. Hewlett, 844, 997. Kilpatrick v. Villaume. 3fifi. Kimball v. Farmers' & Mechanics' Bank, 101. Kimball v. Huntington, 603, 604. Kimberly v. Patchin, 744, 745, 755. Kinch V. Haynes, 811. Kind V. Barry, 301. Kind V. Curtis, 242. King V. Baldwin, 570. King V. Barnes, 355. King V. Brown, 997, 998. King V. Despard, 987. King V. Fitch, 775, 791. King V. Leighton, 400. King V. Lenox, 483. King V. Norman, 577. King V. MacKellar, 246. King V. Richards, 479. King V. Sarria, 390. King V. Talbot, 878. King V. Tioga County Patrons' Fire Relief Association, 926. King V. VanVleck, 84. King T. Walbridge, 110. King v. Wilcomb, 942. Kingbury v. Kirwan, 732. Kingdom v. Cox, 450. Kingsbury v. Westfall, 195. Kingsford v. Merry, 118, 431. Kingsley v. Balcom, 985. Kingston Cotton Mills v. Kuhne, 260. Kinloch v. Craig, 519. Kinnan v. Sullivan County Club, 328. Kinne v. Ford, 762. Kinney v. Kiernan, 790. Kinsey v. Arrington, 170. Kinsey v. Leggett, 259. Kinyon v. Kinyon, 711. Kip V. Brigham, 73, 583. Kipp V. Giles, 760. Kipp V. Wiles, 853. Kirby v. Hewitt, 375, 392, 407. Kirby v. Sisson, 686. Kirk V. Crystal, 950. Kirk V. Young, 7. Kirkland v. Dinsmore, 504. Kirkman y. Kirkman, 379. Kitchel V. Schenck, 898. Kitchen v. Lowery, 111. Kittel V. Callahan, 390. Klar V. Kostnik, 911. Klauder v. C. V. G. Import. Co., 59. Kline v. Green, 524. Klinker v. Guggenheimer, 214. Klumpp V. Gardner, 394. Knapp V. Alvord, 287, 319. Knapp V. Curtis, 457. Knapp V. Maltby, 68, 248. Knapp V. Wallace, 282. Kneeland v. Rogers, 568. Knickerbocker Life Insurance Com- pany c. Nelson. 908. 983. TABLE OF CASES CITED. xli Knieriem v. Xew York Central etc., R. R. Co., 484. Knox V. Goodwin, 888. Knox V. Nutt, 986. Knox V. Schoenthal, 289. Koch V. Brooklyn Heights Railroad C!ompany, 497. Koehler & Co. v. Brady, 212. Kohen v. Kieley, 281. Kohler v. Matlage, 69, 566. Kohlmetz v. Calkins, 326. Kohn V. Consolidated Butter & Company, 652, 653. Kolasky v. Michels, 227. Konitzky v. Meyer, 40, 575. Kopper V. Willis, 461. Kramer v. Kramer, 640. Kratzenstein v. Western Assurance Company, 60. Kreuder v. Woolcott, 485. Kribbs v. Alford, 90. Krohn v. Sweeney, 461. Krombach v. Teilebaum, 52. Kromer v. Heim, 21, 29- Kron V. Shyer, 373. Krulder v. Ellison, 758. Krumm v. Beach, 301. Kuney v. Amazon Insurance Com- . pany, 244. Kuntz V. Mahrenholz, 171. Kushes V. Ginsberg, 221. L'Amoreaux v. Gould, 2, 28, 29. Lamourieux v. Hewitt, 644. Labaree Company v. Grossman, 2. Lacy V. Getman, 37, 55. Ladd V. Insurance Company, 927. Ladd V. Moore, 789, 790. LaFarge Fire Insurance Company v. Bell, 347. LaFarge v. Halsey, 219. LaFarge v. Herter, 573, 575, 905. 913. LaFarge v. Kneeland, 250. LaFarge v. Mansfield, 190. LaFarge v. Riekert, 633. LaFetra v. Glover, 431. Lafflin v. Buffalo & Southwestern R. R. Co., 495. Laflin v. Griffith, 950. Lafond v. Deems, 383. LaGreci v. Hanover Realty etc., Company, 26. Laidlaw v. Sage, 24. Laird v. McGeorge, 220. Lake v. Artizans' Bank. 673. Lakeman v. Grinnell, 485. Lake Ontario Railroad Company v. Curtiss, 325, 326. Lamb v. Camden & Amboy R. R. Co., 457, 505. Lambert v. Buckmaster, 522. Lambert v. Huber, 173. Lamphier v. Phipos, 455. Lane v. Bailey, 432. Lane v. Cotton, 474. Lane v. King, 229, 952. Lane v. Losee, 888, 899. Lane v. Nuflfer, 622. Lane v. Young, 175. Lang V. Lutz, 348. Langdon v. Buel, 83, 87, 101, 102, 107, 714, 715, 902. Langley v. Warner, 316. Lansburgh v. Walsh, 364. Lansing v. Gains, 401. Lansing v. Lansing, 875. Lantry v. Parks, 55, 154. Larned v. Hudson, 188. Lasher v. Northwestern National In- surance Company, 926. Lathrop v. Morris, 638, 639. Latimer v. Wheeler, 143. Lauer v. Brown, 165. Laughran v. Ross, 945. Laughran v. Smith, 167, 169, 181, 185, 186. Laverty v. Snerthen, 419. Law V. Merrills, 917. Lawler v. Keaquick, 306. Lawrence v. Congregational Church, 537, 717, 718. Lawrence v. Dawson, 531. Lawrence v. Fox, 38, 39, 981. Lawrence v. French, 219. Lawrence v. Gallagher, 834. Lawrence v. Harrington, 1018. Lawrence v. Katcher, 212. Lawrence v. Kemp, 945, 954. Lawrence v. Maxwell, 439. Lawrence v. Miller, 755. Lawrence v. Simons, 782. Lawrence v. Taylor, 248, 292, 302. 316, 992, 998. Lawrence v. Trustees of Lake & Watts Orphan House, 874. Lawson v. Buckley, 570. Lawson v. Dickinson, 523. Lawton v. Newland, 438. League Cycle Company v. Abrahams, 812. Leary v. Albany Brewing Company, 245. Leask v. Hoagland, 620. Leavitt v. DeLaney, 898. Leavitt v. Palmer, 36. Leavitt v. Putnam, 651. Ledoux V. Bank of America, 138. Lee V. Clerk, 74, 583. Lee V. Huntoon, 143. Lee V. Marsh, 504. Leeds v'. Dunn, 564. Leeds v. Mechanics' Insurance Com- pany, 932. xlii TABLE OF CASES CITED. Lefevre v. Silo, 352. Leggett V. Humphreys, 562. Leggett V. Hyde, 357, 359. Lehr v. Jones, 696. Leightan v. Knapp, 334. Leitch V. Hollister, 1012. Lekas v. Schwartz, 784. Leland v. Douglass, 254. Lembeck & Betz Eagle Brewing Co. V. Sexton, 96. Lennon v. Grauer, 654. Lent V. Hodgman, 609. Leonard v. Mason, 602, 611. Leonard v. Vredenberg, 983. I^Page V. McCrea, 683. Lepard v. Vernon, 319. Lesser v. Steindler, 238. Lethbridge v. Phillips, 411. Levaitt v. Putnam, 669. Leven v. Smith, 740, 748, 849. Leverick v. Meigs, 200, 277, 306. Leverson v. Lane, 389. Levey v. Allien, 904. Levin v. Habicht, 194. Levis V. Pope Motor Car Company, 233. Levison v. Stix, 964. Levitt V. Sliman; 832. Levitt V. Zindler, 205. Levy V. American Wax & Paper Manufacturing Co., 806. I.evy V. Brush, 995. Levy V. Carr, 779. Levy v. Long Island Railroad Com- pany, 203. Lewis V. Angermiller, 206. Lewis V. Greider, 783, 784, 785. Lewis V. Merritt, 702. Lewis V. 0. N. & P. Co., 945. 946. Lewis V. Palmer, 136, 576, 779. Lewis V. Payn, 170. Lewis V. Whitehall Lumber Com- pany, 868. Lewis Co. V. Metropolitan Realty Company, 194. Lewisohn v. Kent & Stanley Com- pany, 602. Leyh v. Newburgh Electric Rail- way Company, 495. Lichtenstein v. Case, 285. Liddle v. Market Fire Insurance Company, 929. Lieb V. Dobriner, 11. Lieber v. Goodrich, 606. Life & Fire Insurance Company v. Mechanics' Fire Insurance Co., 335. Lightbody v. North American In- surance Company, 320, 924. Lightbody v. Ontario Bank, 686. Lightfoot V. Keane, 523. Lilley v. Barnsley, 456. Lillie V. Hoyt, 276. Lincoln v. Battelle, 256. Lincoln .. Crandell, 302. Linehan v. Hafner, 353. Liotard v. Graves, 871. Lippincott v. Ashfield, 984. Lippmann v. Brown, 260. Lisk V. Sherman, 971, 997. Littauer v. Goldman, 655, 820. Litchfield v. White, 1013. Little V. Banks, 59, 982. Little v. Fargo, 495. Little V. Phoenix Bank, 606, 620, 667. Little V. Slackford, 609. Little V. Wilson, 969, 970, 971. Littlefield v. New York Railway Company, 442. Littler v. Holland, 450. Livingston v. Bain, 822. Livingston v. Hastie, 561. Livingston v. Miller, 866, 880. Livingston v. Moore, 564. Livingston v. Spero, 713. Livingston v. Stoessel, 231, 514. Livingston v. Tremper, 10, 960. Livingston v. VanRensselaer, 579. Livor v. Orser, 98, 120. L. & L. Fire Insurance Company v. Rome, Watertown & Ogdensburgh Railroad Company, 484. Lloyd v. Mathews, 284. Lobdell V. Hopkins, 631. Locklin v. Moore, 664. Lookwood V. Barnes, 967, 970, 971. Lockwood V. United States Steel Corporation, 324. Lodge v. Martin, 175. Loeb V. Hellman, 307. Loeschigk v. Hatfield, 377. Loeschman v. Mackin, 413. Loewenatein v. Mcintosh, 247. Loftus v. Benjamin, 403. Loftus v. Clark, 714. Loftus V. Union Ferry Company, 495. Lohman v. New York & Erie Rail- road Company, 327. London v. Northwestern Railway Co., 920. London & Lancashire Fire Insurance Co. V. Rome, Watertown & O. R. R. Co., 477. Long V. Baillie, 691. Long V. Stafford, 208. Long Island Brewery Company v. Fitzpatrick, 514. Lord V. Cronin, 888. Lord V. Kenney, 793. Lorillard v. Clyde, 37. Lough V. Outerbridge, 475. Lounsberry v. Snyder, 168. Loveland v. Shepard, 586. Lovett \\ Adams, 67. TABLE OF CASES CITED. xliii Lovett V. German Reformed Church, 344. Low V. Archer, 568. Low V. Woodbury, 286. Lower v. Winters, 970. Lowerre Milling Company v. Lyons Beet Sugar Refining Co., 835. Lowery v. Steward, 611, 656. Lowman v. Inman, 350. Lowman v. Yates, 574. Lowville & B. R. R. Co. v. Elliott, 324. Lubbuck V. Inglis, 456. Lubricating Oil Company v. Stand- ard Oil Company, 342. Lucas V. Dorrien, 520, 521. Lucia V. Oniel, 470. Luckey v. Frantz, 218. Ludden v. Hazen, 555. Luddington v. Pulver, 585. Ludlow V. Simond, 563. Ludlum V. Couch, 24. Ludwig V. Bungart, 1000. Ludwig V. Gillespie, 263, 313. Ludwig V. Glaessel, 707. Luff V. Pope, 660. Lupin V. Marie, 742. Luqueer v. Prosser, 604. Lurch V. Brown, 461. Lush V. Druse, 177, 866, 880. Lusk V. Smith, 401. Lyell Avenue Lumber Company v. Lighthouse, 350. Lygo V. Newbald, 474, 480. Lyle V. Murray, 276. Lynar v. Mossop, 465. Lynch v. Johnson, 718. Lynch v. Metropolitan Elevated Railroad Company, 342. Lynch v. Tibbits, 104. Lynn v. Smith, 25. Lvon V. Clark, 870. Lyon V. Fitch, 388. Lyon V. Mitchell, 284. Lyons v. Wells, 440. Lyons v. Thomas, 443. Lyrecker v. Village of Nyack, 164. Lyth V. Hingston, 375. M. Maanss v. Henderson, 520. Maass v. Falk, 1010. Mabee v. Crozier, 913. Maber v. Massias, 628. Mabbett v. White, 396. Macaulay v. Palmer, 390. Macedon & Bristol Turnpike Com- pany V. Snediker, 326. MacFarlane v. MacFarlane, 352. Mac Gregor v. Rhodes, 654. MacKnight Flintie Stone Company V. Mayor, 152. MacGuire v. Hughes, 24. Machell v. Kinnear, 615. Mack v. Anderson, 571. Mack V. Mack, 694. Mack V. Patchin, 189. Mack V. Phelan, 116, 136. Mack V. Snell, 448. Mackay v. Royal Bank of New York, 892. Mackey v. Mackey, 522. Mackie v. Cairns, 1015. Mackie v. Egan, 758. Maclay v. Robinson, 702. Macomber v. Dunham, 864, 917. Mactier v. Frith, 46. Maddock v. Steel, 367. Maghee v. Camden & Amboy Rail- roal Company, 249. Magnise v. Adams Express Company, 489. Magovern v. Robertson, 359. Maguire v. Woodside, 158. Mahaney v. Walsh, 716. Mahar v. Compton, 43. Maher v. Hibernia Insurance Com- pany, 927. Mahon v. Dime Savings Bank, 700. Mahoney v. Farley, 228. Mahoney v. Kent, 313. Main v. Eagle, 286. Main v. Feathers, 228. Main v. King, 794. Main v. Schwarzwaelder, 950, 952. Mainwaring v. Newman, 407. Malcom v. Loveridge, 118, 431, 778. Malins v. Brown, 1000. Maloney v. Hudson River Rairoad Company, 47. Maloney v. Nelson, 70, 566. Mallett V. Keller, 386. Mallory v. Gillett, 23, 983. Mallory v. Willis, 446, 448, 723, 724, 725. Maltby v. Harwood, 26. Man v. Shiffner, 520. Manchester etc. v. Sweeting, 570. Manchester v. VanBrunt, 574. Mandell v. Levy, 15, 1018. Manderville v. Reed, 527. Mandeville v. Avery, 95, 145. Mandeville v. Newton, 820. Mangin v. Dinsmore, 466, 504. Manhattan Brass Manufacturing Company v. Sears, 357, 359. Manhattan Company v. Osgood, 891. Manhattan Life Insurance Company V. Forty-second Street & Grand Street Ferry Railroad Company, 271. \Ianhattan Shoe Cmpany v. C. B. & Q. R. R. Co., 483. Afanheim v. Seitz, 183. Manice v. Millen, 226. xliv TABLE OF CASES CITED. Manly v. Clemens, 184. Mann v. Eckford, 588. Mann v. Eekford's Executors, 588. Mann v. National Linseed Oil Com- pany, 755, 784. Mann v. Witbeck, 1010, 1013. Manning v. Beck, 1009. Manning v. Keenan, 248. Manning v. Lyon, 666. Manning v. Monaghan, 97, 100. Manny v. Harris, 883. Mansfield v. New York Central & Hudson River R. R. Co., 866. Jlanufacturers' Commercial Compa- ny V. Rochester Railway Co., 738. Manufacturers' & Traders Bank v. Hazard, 672. iJanufaeturers' & Traders Bank v. Love, 613. Marcus v. Collins Building & Con- struction Company, 169. Marcus v. St. Louis Mutual Life Insurance Company, 714. Marfield v. Goodhue, 250, 268. Marie v. Garrison, 28, 29, 273. JIarine Bank, etc., v. Clements, 295. Marine Bank v. Fiske, 752. Marine National Bank v. National City Bank, 622. Marion v. Farnan, 25. IMarkham v. Jandon, 430, 433. Markle v. Hatfield, 686. Marks v. Dellagio, 214. Mars V. Delaware & Hudson Canal Company, 342. Marselis v. Seaman, 231. Marsh v. Benedict, 576. Marsh v. Dodge, 60. Marsh v. Howe, 888. Marsh v. Lawrence, 83. :\[arsh V. Martindale, 896. Marsh v. Richards, 725. Marsh v. Titus, 446. Marsh v. Wickham, 722. Marshall v. Davies, 562. Marshall v. Eisen Vineyard Com- pany, 42. Marshall v. iloseley, 204. Marshall v. New York Central Railroad Company, 475. Marsden v. Cornell, 117, 136. Marston v. Sweet, 972. Marston v. Vultee, 94. Martens- Turner Company v. Mack- intosh, 572. Martin-Barrus Company v. Jackson, 787, 793. Martin v. Bliss, 286. Martin v. Chauntrey, 605. Martin v. Farnsworth, 232. Martin v. Fegan, 282. Martin v. Funk, 696. Martin v. Hall, 104. Martin v. Home Bank, 620. Martin v. Lewinski, 96. Martin v. Moore, 233. Martin v. Orgain, 201. Martin v. Wermann, 282. Martine > . Robinson, 394. -Marvin v. Feeter, 889. Marvin v. McCullum, 615, 901. Marvine v. Hymers, 890, 891, 895, 896. Marx V. Jones, 393. Maryon v. Carter, 450. Mar'zetti v. Williams, 429. Mason v. Decker, 783, 833. Mason v. Lord, 908, 909. Mason v. Partridge, 359. Mason v. Raplee, 707. Mason v. Smith, 801. Mason Stable Company v. Lewis, 263. Massachusetts National Bank v. Shinn, 944. Masson v. Bovet, 787, 788. Mather v. Perry, 989. iJathes V. McCarthy, 801. Mathews v. Aikin, 576. Matteawan Company v. Bentley, 785, 787, 791, 792. Matter of Baker, 11. Matter of Baldwin, 362. Matter of Barefield, 700. Matter of Barnes, 878. Matter of Benson, 878. Matter of Bolin, 697. Matter of Bromhead, 508. Matter of Crawford, 330. Matter of Cress-McCormick Com- pany, 201. Matter of Dailey, 26. ilatter of Dauchy, 1013. Matter of Delaney, 25. Matter of Dusenberry, 25. Matter of Ernst, 279. Matter of Eureka Mower Company, 62, 947. Matter of Frazin & Oppenheim, 201. Matter of Froment, 541. Matter of Funk, 23. Matter of Hagenmeyer, 878. Matter of Haines, 542. Matter of Hoagland, 353, 356, 361. Matter of Hussey, 878. Matter of Kernochan, 330. Matter of King, 696. Matter of Lampson, 2. Matter of Marine, 604. ilatter of McGowan, 877. Matter of Medewe's Trust, 432. Matter of Oakes, 877. Matter of O'Berry, 879. ilatter of Osborne, 323. TABLE OF CASES CITED. xlv Matter of Raby, 279. Matter of Rubel, 201. Matter of Rutherford, 877. Matter of Ryder, 25. Matter of Seaman, 35. Matter of Sheldon, 1008. Matter of Stafford, 414. Matter of Stanfield, 878. Matter of Sterne & Levy, 201. Matter of Strickland, 25. Matter of Swarthout, 25. Matter of Teller, 379. Matter of Teyn, 25. Matter of The City of New York (Hawkstone Street), 947, 952. Matter of The City of New York (North River Water Front), 944. Matter of Travis, 878. Matter of Trustees, etc., 862. Matter of Willmer's Estate, 323. Matter of Worthington, 710. Matthews v. American Central In- surance Company, 932. Matthews v. Matthews, 972, 973. Mattice v. Allen, 838. Mattison v. Baucus, 97, 120, 123. Mattison v. New York Central & Hudson River Railroad Company, 501. Maule v. Crawford, 626. Maund v. Monmouthshire Canal Company, 343. Mauri v. Heffernan, 576. Maxwell v. Gerard, 468. Maxwell v. Inman, 148. May v. Charlouis, 31. May V. Gillia, 194. May V. Seyler, 637. Mayer v. Dean, 248. Mayer v. McCreery, 43. Mayer v. Mode, 599. Mayer v. MoUer, 221. Mayfield v. Wadsley, 841. Mayo v. Knowlton, 269, 309. Mayor v. Tenth National Bank, 291. Mayor etc., of Albany v. Cunliff, 343. Mayor of Auburn, v. Draper, 278. Mayor of New York v. Mabie, 189. Mazuzan v. Mead, 898. McAlpine v. Powell, 220. McArthur v. Wilder, 723. McBride v. Hagan, 393. McCabe v. Goodfellow, 383. McCabe v. Green, 964. McCabe v. Evers, 184. McCaffrey v. Woodin, 84, 90. McCall V. Wright, 29. McCarragher v. Gaskell, 396. McClanathan v. Freidel, 62. McClave v. Paine, 284. McClellan v. Remsen, 396. McCluskey v. Cromwell, 59. McConkey v. Petterson, 15, 903. McConnell v. Sherwood, 1008. McCormick v. Venable, 136. MeCoun v. New York Central & Hudson River R. R. Co., 5. McCoy V. Artcher, 819. McCracken v. Cholwell, 804. MeCrea v. Hopper, 144. McCrea v. Purmort, 11, 993, 1001. McCready v. Rumsey, 327. McCready v. VanAntwerp, 8. McCready v. Wright, 754. McCreery v. Day, 869. McCullogh V. Moss, 249. McDermott v. Board of Police, etc., 340. McDonald v. Edgerton, 464, 465, 471. McDonald v. Hancock Mutual Life Insurance Company, 42. McDonald v. Hewitt, 744. McDonald v. Lord, 269, 270. McDonald v. Mayor, 337. McDonald v. Williams, 851, 853. McDougall v. Travis, 317. McDougall V. Walling, 708. McEachron v. Randies, 783. McEntee v. New Jersey Steamboat Company, 415, 479. McEwen v. Montgomery County Mu- tual Insurance Company, 932. McEwen v. Montgomery County In- surance Company, 289, 346. McFadden v. Allen, 950, 951. McFarlan v. Watson, 199. ilcFarland v. Wheeler, 524. McGaw V. Adams, 476. McGibbon v. Schlessinger, 784. 785. McGiflfen v. Baird, 819, .821. McGirr v. Campbell, 969. McGiven v. Fleming, 832. McGlashan v. Tallmadge, 221, 222. McGluckey v. Bitter, 969, 971. JIcGoldriok v. Willetts, 751. McGrath v. Horgan, 153. JIcGregor v. Brown, 21, 997. McGregor v. Comstock, 522. MoGrell v. Buffalo Office Building Company, 495. McGuire v. O'Hallaran, 407. Mcllvaine v. Hilton, 516. McKeage v. Hanover Fire Insurance Company, 707, 713, 948. McKechnie v. Ward, 569. MoKee v. Judd, 707, 716. McKenna v. Stayman Manufactur- ing Company, 258. McKenzie v. Decker, 59. McKensie v. Farrell, 211, 960. McKenzie v. Hatton, 214. McKeon v. Wendelken, 203. McKinney v. Holt, 190. McKinney v. White, 533. xlvi TABLE OF CASES CITED. MeKnight v. Dunlop, 835, 871. McKnight v. Lewis, 671. MeKnight v. Wheeler, 654, 655, 914. McLaren v. Watson, 588. McLaren v. Watson's Executors, 645. McLaughlin v. Bieber, 375. McLaughlin v. Washington County Mutual Insurance Company, 935. McLeod V. Xew York, Chicago, etc., Railroad Company, 497. McLees v. Hale, 964, 974. McLeod V. Snee, 612. McMahon v. Hodge, 534. McMahon v. New York & Erie Rail- road Company, 866, 867, 879, 880. McManus v. Annett, 161. McManus v. Crickett, 342. ilcilanua v. Harrigan, 72. McManus v. Western Assurance Company, 923, 936. McMaster v. President etc., of In- surance Company of North Ameri- ica, 934. McMaster v. State, 866. McMillan v. Lehman, 952. McMillan v. Vanderlip, 55, 154. McMonnies v. Mackay, 263. McMorris v. Simpson, 254. McMurray v. Noyes, 585, 587. McNair v. Gilbert, 686, 689. McNally v. P. Insurance Company, 931. McNaught V. McClaughry, 561. McNeil V. Tenth National Bank, 327, 751. McNeilly v. Continental Life Insur- Light Company, 320. McNulty V. Duffy, 219. McNulty V. Mt. Morris Electric Light Company, 170. McPadden v. New Yrok Central etc., Railroad Company, 496. McParlin v. Boynton, 811. McPherson v. Rathbone, 392. McPherson v. Walton, 533. McQuillan v. Carpenter, 281. McRea v. Central National Bank of Troy, 947, 952. McShane v. Padian, 581. McSpendon v. Mayor etc., of New York, 344. McVickar v. Roche, 283. McWilliams v. Mason, 564. McWhorter v. McMahan, 1001. Mead v. Case, 843. Mead v. DeGolyer, 53, 760, 767, 768. Mead v. Northwestern Insurance Company, 928. Meads v. Merchants' Bank, 296, 622. Meaker v. Fiero, 886. Mechanics' Bank v. Livingston, 387, 401. Jlechanics' Bank v. New York etc.. Railroad Company, 237, 295. Mechanics' Bank v. New York & New Haven Railroad Company, 329. Mechanics' Bank of Brooklyn v. Townsend, 911. Mechanics' etc.. Company v. Scott, 190, 191. Mechanics' & Farmers' Bank v. Smith, 339. Mechanics' & Farmers' Bank v. Wixson, 22. Mechanics' & Traders' Bank v. Ber- gen Heights etc.. Corporation, 950. Medbury v. New York & Erie Rail- road Company, 238. Megowan v. Peterson, 593, 633. Mee V. McNider, 758. Meech v. Patchin, 143. Meecn v. Smith, 315, 868. Meech v. Stoner, 708. Meehan v. Forrester, 289. Meeker v. Claghorn, 263, 264, 312. Meeks v. Bowerman, 191. ileister v. Woolverton, 503. Melcher v. Kreiser, 305. Mellen v. Hamilton Fire Insurance Company, 932, 936. Meltzer v. Straus, 282. Menaugh v. Whitwell. 375. Meneely v. Meneely, 368. Mentz v. Neuwitter, 832, 1000. Mercantile Deposit Company v. Huntington, 699. Mercantile Finance Company v. Welsh, 711. Mercantile Mutual Insurance Com- pany V. Calebs, 504. Merchants' Bank v. Birch, 665. Merchants' Bank v. Griswold, 865. Merchants' Bank v. Spicer, 612. Merchants' Bank of New Y'ork v. Woodruff, 518. Merchants' Exchange Bank v. Com- mercial Warehouse Company, 908, 909. Merchants' & Manufacturers' Bank V. Cumings, 70. Merchants' National Bank v. Barnes, 364. Merchants' National Bank v Clark, 613, 614. Merchants' & Traders' Bank v. Crow, 636. Meriden Brittania Company v. Zin- gsen, 60. Meriden National Bank v. Gallaudet, 366, 369, 372. Merwin v. Butler, 491. Merwin v. Hamilton, 311. TABLE OF CASES CITED. xlvii .Merriam v. Field, 800. Merrick v. Brainard, 708. Merrick v. Gordon, 363. Merrill v. Ithaca etc., Railroad Com- pany, 164. Merrills v. Law, 917. Merritt v. American Dock & Trust Company, 27. Merritt v. Benton, 896. Merritt v. Bissell, 247. Merritt v. Earle, 287, 479, 480, 485. Merritt v. Johnson, 451, 772. Merritt v. Lincoln, 569, 571. Merry v. Wilcox, 138. Messrole v. Hoyt, 195. Messrole v. Sinn, 195. Meyer v. Bartels, 15, 1018. Meyer v. Blair, 326. Meyer v. Harnden's Express Com- pany, 504. Meyer v. Hibscher, 652. 5Ieyer v. Peck, 492. Meyer v. Straus, 285. Meyers v. New York County National Bank, 521. Michel V. O'Brien, 212. Michael v. Ely, 232. Michaels v. Fishel, 179. Michaels v. New York Central Rail- road Company, 480. Michaelis v. Roffmann, 281. Mickles v. Colvin, 616. Middlebrook v. Corwin, 191, 192. Middleton v. Twombly, 277. Miesell v. Globe Mutual Life Insur- ance Company, 162. Milburn v. Belloni, 297. Milburn v. Codd, 404. Milnor v. New York & New Haven Railroad Company, 503. Milton V. Salisbury, 442. Millard v. Thorn, 374, 571. Miller v. Ball, 993, 1000. Miller v. Barber, 775. Miller v. Barth, 282. Miller v. Burroughs, 864. Miller v. Cook, 11, 960. Miller v. Eagle Life & Health Insur- ance Company, 935. Miller v. Gamble, 616. Miller v. Gaston, 588, 646. Miller v. Hannibal & 8t. Josephs Railroad Company, 62. Miller v. Holbrook, 574. Miller v. Hull, 906. Miller v. Illinois Central Railroad Company, 347. Miller v. Livingston, 280. Miller v. Lockwood, 119. Miller v. Lowe, 189. Miller v. McKenzie, 2, 633, Miller v. Mead, 528. Miller v. Plumb, 948. Miller v. Race, 639. Miller v. Steam Navigation Com- pany, 487. Miller v. Thomson, 598. Miller v. Zeimer, 902. Milliken v. Dehon, 435, 436. Milliman v. Neher, 87, 89, 92. Mills V. Hunt, 313, 840. Mills V. Miller, 148. Minard v. Mead, 303. Ming V. Corbin, 5. Minneapolis Trust Company v. Mather, 307, 308. Minturn v. Main, 310. Mirick v. Bashford, 228. Mitchell V. Bristol, 263, 265. Mitchell V. Culver, 598. Mitchell V. Ostrom, 401. Mitchell V. West, 134. Mitchell V. Worden, 774, 775, 782. Moakley v. Riggs, 585, 586. Moffat V. Long Island Railroad Com- pany, 501. Moffat V. Strong, 174, 189. Moffatt V. Smith, 222, 228. MoflStt V. Fulton, 267. Mohawk Bank v. Broederick, 621, 667. MoUer v. Tuska, 786. Monahan v. Story, 712. Monell v. Burns, 160. Money v. Fisher, 810. Monnot v. Ibert, 80, 119, 120, 124. Monroe Dairy Association v. Webb, 340. Monroe v. Hoff, 682. Monroe v. Reynolds & Upton, 556. Montgomery County Bank v. Albany City Bank, 307. Moody V. Smith, 272, 992, 999. Moore v. Brink, 354, 383. Moore v. Cockroft, 640. Moore v. Cross, 652. Moore v. Evans, 504, 505. Moore v. Fox, 964, 973. Moore v. Goedel, 193. Moore v. Hitchcock, 509. Moore v. Huntington, 352. Moore v. King, 808. Moore v. McKinstry, 708. Moore v. McLaughfin, 533. Moore v. Metropolitan National Bank, 751. Moore v. Moore, 274, 615. Moore v. Mourgue, 421. Moore v. Potter, 783, 784. Moorehead v. Seymour, 382. Moore v. Vosburgh, 969. Moore v. Westervelt, 414. Moors V. Kidder, 269. More V. Deyoe, 907. xlviii TABLE OF CASES CITED. More V. Howland, 897, 898. Morehouse v. Second National Bank of Oswego, 29. Morey v. Town of Newfane, 19. Morford v. Farmers' Bank, 334. Morgan v. Congdon, 509, 524. Morgan v. Crocker, 458. Morgan v. Mechanics' Banking Asso- ciation, 888, 905. Morgan v. Reid, 310. Morgan v. Smith, 574, 577. Morgan v. Woodworth, 673. Morgan v. Woolverton, 499, 503. Morris v. Floyd, 908, 909. Morris v. Lee, 604. Morris v. Murray, 312. Morris v. New York Central & Hud- son River R. R. Co. 495. Morris v. Rexford, 794. Morris v. Sliter, 50. Morris v. Talcott, 774. Morris v. Third Avenue Railroad- Company, 500. Morrisey v. Berman, 374. Morrison v. Currie, 313, 654. Morse v. Hovey, 582, 906. Morse v. Wilson, 890. Morss V. Gleason, 374. 561. Morss T. Salisbury, 61. Morss V. Stone, 724. Mortimer v. Brunner, 214, 217. Mortland v. Philadelphia & Reading Railroad Companv, 501. Morton v. Naylor, 607, 610, 628. Morton v. Thurber, 893. Moseley v. Fossett, 458. Moses V. Bierling, 285. Moses V. Mead, 8]0. Moses V. Soule, 335. Moses V. Walker, 136. Moses V. Waterbury Button Com- pany, 708. Moskowitz V. Diringen, 210. Moss V. Jerome, 361. Moss v. Livingston, 303, 613. Moss V. Oakley, 332. Moss V. Sweet, 749. Motley V. Flannagan, 579. Mott V. Consumers' Ice Company. 342. Mott V. Hicks, 332, 567, 614, 650. Mott V. Palmer, ,88, 945. Mott V. Richtmeyer, 60, 61. Mott V. United States Trust Com- pany, 336. Mottram v. Heyer, 828, 830. Mottram v. Mills, 311. Mowatt v. McLelan, 316. Mowers v. Feathers, 463, 464. Mowrey v. Walsh, 776, 778. Mowry v. Bishop, 874, 875, 890. Moulton I . Mtna. Fire Insurance Company, 929. Moyer v. Bloomingdale, 116. Mudgett v. Bay State Steamboat Company, 500. Muldon v. Whitloek, 681, 683. Mulford v. Hodges, 714. Mull V. Jones, 533. Muller v. Eno, 787, 794. Muller V. Idler, 43. Muller V. Pondir, 827. Mumford v. Brown, 220. Mumford v. Hawkins, 873. Mumford v. McPherson, 824. Hunger v. Shannon, 597. Munn V. Barnura, 329. Munn V. Commission Company, 231, 232, 295, 333. Munroe v. Judson, 246. Munson v. Riley, 712. iturdoek v. Chanango County Mu- tual Insurance Company, 121 , 925, 928. Murdock v. Gifford, 953. Murfey v. Brace, 775. Murphy v. Bell, 1014. ilurphy V. Commissioners of Emi- gration, 257. Murphy v. Hart, 563. Murphy v. Winchester, 728. Murray v. Bogert, 404. Murray v. Burtis, 117, 132. Murray v. Harway, 212. Murray v. Judah, 621. ilurray v. Judson, 908. Murray v. Marshall, 562. Murray v. Mumford, 370. Murray v. Shave, 200. Murray v. Smith, 800. Murray v. Vanderbilt, 275, 346. ISIusson V. Price, 685. ilutual Benefit Loan & Building Co. V. Lynch, 862. Mutual Life Insurance Co. v. Aid- rich, 13. iluzzy V. Whitney, 358. Myer v. Jacobs, 287. Myers v. Burns, 223. Myers v. Doran, 973. ilyers v. Mutual Life Insurance Company, 289. Myers v. Trescott, 43. Myers r. Wells, 572. Mverson v. Woolverton, 503. :\ry?ett V. Coe, 10. Mvnard v. Syracuse & Bingbamtoii etc., R. R. Co., 504. Mytton V. Cock, 423. TABLE OF CASES CITED. xlix N. Nagel V. Lutz, 652. Nagel V. McFeeters, 268. Nash V. Ely, 132. Nash V. Russell, 15. Nason v. Cockroft, 317. Nasoiy v. Tomlinson, 684. Nassoly v. Tomlinson, 29. Nathan v. Woolverton, 443, 489. National Bank v. Insurance Com- pany, 521. National Bank v. Norton, 345, 346, 373, 401, 650. National Bank v. VanDerwerker, 383 National Bank v. White, 635, 636. National Bank of Gloversville v. Place, 575. National Bank of Newburg v. Big- ler, 574. National Bank of Salem v. Thomas, 351, 372. National B. & D. Bank v. Hubbell, 776. National Cash Register Company v. Coleman, 551. National Cash Register Company v. South Bay etc. Association, 553. National Exchange Bank v. Stillman, 576. National Filtering Oil Company v. Citizens' Insurance Company, 920. National Fire Insurance Company v. Loomis, 1000. National Hudson River Bank v. Rey- nolds, 667. National Life Association v. Thomp- son, 308. National Life Insurance Company v. Minch, 291. National Merchants' Banking Asso- ciation V. Conkling, 563. National Park Bank v. German- American etc. Company, 335. National Park Bank v. Goddard, 777. National Shoe & Leather Bank v. Herz, 374. National Surety Company v. DiMa- risco, 560, 577. National Surety Company v. Empire State Surety Company, 73. National Union Bank of Watertown V. Landon, 231. National Wall Paper Company v. Sire, 528. Naugatuck Cutlery Company v. Bab- cock, 775, 776. Neale v. Turton, 407. Near v. Shaw, 966. Needles v. Howard, 470. Neele v. Berryhill, 141. Neff V. Thompson, 512. Neidig v. Eifler, 137. Neill V. Popular Life Insurance Company, 934. Nellis V. Bradley, 790, 791. Nellis, A. C. Company, v. Nellis, 337. Nelson v. Andrews, 313. Nelson v. Bostwick, 73, 588. Nelson v. Cowing, 297, 617, 728. Nelson v. Edwards, 436. Nelson v. Hudson River Railroad Company, 303, 484. Nelson v. Neil, 80, 139. Nester v. Craig, 232. Nestell V. Hewitt, 89. Neuendorflf v. World Mutual Life Insurance Company, 272. Neustadt v. Joel, 112. Nevins v. Bay State Steamboat Com- pany, 498, 504. Newark India Rubber Company v. Bishop, 662. Newbury v. Wall, 833, 834, 957. Newcomb v. Clark, 990. Newcomb v. Cramer, 632, 763, 850. Newcomb v. Hale, 570. Newell V. Doty, 901. Newell V. Griswold, 871. Newell V. Warner, 144, 145. Newhall v. Appleton, 64. Newhall v. Vargas, 827. New Hope etc. Company v. Phoenix Bank, 290, 347. Newkirk v. National Wall Paper Co., 341. Newman v. Wilson, 807. Newsam v. Finch, 12, 105, 120, 122. Newstadt v. Adams, 473. Newton v. Bronson, 992, 993. Newton v. Pope, 444. New York Bank Note Company v. McKeige, 314. New York Bowery Fire Insurance Company v. New York Fire Insur- ance Company, 921. New York Central Insurance Com- pany V. National Protection In- surance Company, 271, 273, 932, 933. New York Central Railroad Company V. Lockwood, 505. New York Central & Hudson River Railroad Company v. Standard Oil Company, 481. New York Exchange Company v. DeWolf, 326. New York Firemens' Insurance Com- pany V. Ely, 332, 896. New York Firemans' Insurance Com- pany V. Sturges, 896. New York & Harlem Railroad Com- pany V. Mayor etc. of New York, 336. TABLE OF CASES CITED. Sew York Ice Company v. Cousins, 1007. ISfew York Investment Company v. Cosgrove, 951. Kew York, Lake Erie & Western Railroad Company v. N. S. Co., 481. Xew York Life Insurance & Trust Company v. Beebe, 899. New York Motion Picture Company V. Universal Film Manufacturing Company, 332. Sew York & New Haven Railroad Company v. Schuyler, 329. Sew York & N. H. Sprinkler Com- pany V. Andrews, 58. New York & Oswego Midland Rail- road Company v. VanHorn, 325. New York Security & Trust Com- pany V. Lipman, 259. New York Security & Trust Com- pany V. Storm, 655. New York State Bank v. Fletcher, 683. New York & Virginia Bank v. Gib- son, 640, 660. Niagara County National Bank v. Lord, 100, 128, 131, 134. Nibloek v. Sprague, 41. Nicholas v. New York Central & Hudson River R. R. Co., 504. Nicholas v. Pinner, 774. Nichols V. Coleman, 867. Nichols V. Mase, 104. Nichols V. McEwen, 1013. Nichols V. Michael, 773, 774, 776, 790. Nichols V. Nussbaum, 912. Nichols V. Smith, 716. Nichols V. Townsend, 787. Nicholson v. Leavitt, 1014. Niekerson v. Ruger, 637, 638. Nicoll V. Burke, 263, 305. NicoU V. Sands, 58, 62. Niebuhr v. Schreyer, 890. Nitc'hie v. Townsend, 146. Niven v. Spickerman, 404. Nixon V. Hyscroft, 305. Nixon V. Palmer, 233, 235, 246. Nixon V. Stanley, 145. Nlxson V. Lyell, 685. Noble V. Smith, 697. Noe V. Gregory, 314. Noel V. Murray, 682, 990. Nolan V. Whitney, 53, 152. Non-Electric Fibre Manufacturing Company v. Peabody, 324. Nones v. Homer, 968, 970, 971. Norcross v. Wills, 9. Nordemeyer v. Loescher, 499. North V. Bloss, 351. North American Fire Insurance Com- pany V. Mowatt, 883. Northampton National Bank v. Kid- der, 637. Northern Insurance Company v. Wright, 585. North River Bank v. Aymar, 237, 294, 346. Norton v. Coons, 578. Norton v. Rensselaer & Saratoga In- surance Company, 935. Norton v. Woodruff, 447, 722. Norway Plains Company v. B. & M. R. R. Co., 474. Nourse v. Prime, 893. Novelty Manufacturing Company v. Connell, 681. Noyes v. Anderson, 219. Noyes v. Chapin, 1003. Noye, John T. Manufacturing Com- pany V. Raymond, 737. Nugent V. Jacobs, 1016. Nutting V. Kings County Elevated Railway Company, 295. 0. Oakley v. Aspinwall, 360. Oakley v. Boorman, 16. Oakley v. Crenshaw, 261. Oakley v. Morton, 37, 56. O'Brien v. Brietenbach, 853. O'Brien v. Capwell, 221. O'Brien v. Commercial Fire Insur- ance Company, 935. O'Brien v. Ferguson, 907. O'Brien v. Fleckenstein, 13. O'Brien v. P. Insurance Co., 927. O'Brien v. Smith, 190, 714. O'Brien v. Young, 864. Ocean National Bank v. Carll, 637. Ochsenbein v. Shapley, 342. O'Clair v. Hale, 511. Ocumpaugh v. Engel, 187. Odell V. Greenly, 898. Odell V. Wibendorfer, 965, 969. O'Donnell v. Smith, 602. Oddy V. James, 964. Ogden V. Arnot, 400. Ogden V. Astor, 371, 377. Ogden V. Sanderson, 208, 212, 216. Ogilvie V. Hull, 216. Ogle v. Dershem, 231. O'Gorman v. Harby, 218. O'Hara v. Robinson, 14. Ohio & Mississippi Railroad Com- pany V. Kasson, 908. Oishei v. Pennsylvania Railroad Company, 522. O'Laughlin v. Billy, 235. Olcott V. Tioga Railroad Company, 106, 110, 346. TABLE OF CASES CITED. Olds V. New York Central etc. R. R. Co., 487. Oliver v. Greene, 921. Oliver Lee & Go's Bank v. Walbridge, 896, 897. Oliver Refining Company v. Aspe- gren, 280. Olmstead v. Hotaling, 773, 774, 775, 785, 786. Olmstead v. Latimer, 13, 574. Olney v. Wiekes, 256. Olson V. Schlevlowitz, 177, 213. Olypliant v. Baker, 744, 747. Olyphant v. McNair, 233. Ombony v. Jones, 88, 227, 944, 945. Oneida Manufacturing Society v. Lawrence, 799. O'Neil V. Martin, 72. O'Neil V. Buffalo Fire Insurance Company, 935. O'Neil V. New York State Agricul- tural Society, 240. O'Neill V. Meighan, 666. O'Neill V. New York Central & H. R. R. R. Co., 484. O'Neill V. Patterson, 554. Ontario Bank v. Hennessey, 359, 360. Ontario Bank v. Oneida County Bank, 715. Ontario Bank v. Walker, 576. 0. P. R. R. Go. v. Forrest, 9. Oothout V. Ballard, 668. Oppenheim v. Simon Reigel Cigar Company, 334. Oppenheimer v. Moore, 98. Orchard v. Rackstraw, 512. Orcutt V. Riekenbrodt, 557. Organ v. Stewart, 840. O'Rourke v. Bates, 486. Orvis V. Curtiss, 886, 889. Orvis V. Warner, 341. Osborn v. Alexander, 143. Osborn v. American Ink Company, 812. Osborn v. Gantz, 740, 741. Osborn v. Kerr, 256. Ostrander v. Brown, 490. Otis v. Dodd, 528. Otis V. Sill, 92, 93, 131. Ouderkirk v. Central National Bank, 411, 413. Outhouse V. Baird, 229. Cutwater v. Dodge, 836, 842. Owens V. Holland Purchase Insur- ance Company, 926. P. Pabodie v. King, 13. Paciiic Iron Works v. Long Island Railroad Company, 758. Packard v. Getman, 484. Packard v. Hill, 57. Paddon v. Taylor, 752. Padros v. Swarzenbach, 350. Page V. Ellsworth, 206. Page V. Morrell, 598. Pain V. Packard, 570. Paine v. Jones, 60, 562, 564. Paine v. Noelke, 634. Paine v. Thatcher, 385, 407. Paige V. Ott, 156, 760, 767, 769. Palmer v. Deering, 221. Palmer v. Delaware & Hudson Canal Co., 495, 496. Palmer v. Hand, 741. Palmer v. Minor, 40. Palmer v. Myers, 394. Palmer v. North, 880. Palmer v. Stephens, 315, 318, 372, 612. Palmer v. Wetmore, 216. Palmeri v. Manhattan Railway Com- pany, 342, 463. Palmerton v. Huxford, 248. Pancoast v. American Heating & Power Company, 136. Pardee v. Drew, 489. Parish v. New York Produce Ex- change, 339. Parish v. Wheeler, 99, 125. Parker v. Barker, 361. Parker v. Baxter, 740, 741, 751. Parker v. Bradley, 67. Parker v. Bristol & E. R. R. Co., 474. Parker v. Ellis, 8. Parker v. Gordon, 658, 661, 662. Parker v. Great Western Railroad Company, 474. Parker v. Parmelee, 10. Parker v. Patricia, 431. Parker v. Ramsbottom, 897. Parker v. Schenck, 843. Parkhill v. Imlay, 280. Parks V. Brinkerhoff, 562. Parks V. Morris Ax & Tool Company, 787, 800, 801, 802. Parmelee v. Thompson, 13. Parmelee v. Dann, 715. Parmelee v. Thompson, 574. Parmenter v. American Box Com- pany, 276. Parry v. Roberts, 420. Parshall v. Eggert, 84. Parshall v. Lamoreaux, 906, 912. Parsons v. Hardy, 473, 494. Parsons v. Loucks, 842, 844. Parsons v. Monteath, 504. Parsons v. Teller, 14. Partridge v. Badger, 333, 335, 336. Partridge v. Commercial Fire Insur- ance Company, 926. Partridge v. Gildermeister, 853. Passenger v. Thorburn, 806. lii TABLE OF CASES CITED. Pasamore v. North, 599. Pastore v. American Express Com- pany, 504. Patchin v. Pierce, 99, 101, 123, 125, 126, 435, 716. Patterson v. Birdsall, 903. Patterson v. Choate, 880. Patterson >-. Powell, 972. Pattison v. Blanchard, 357, 358, 404. Pattison v. Fammerstein, 422. Pattison v. Hull, 715. Pattison v. Syracuse National Bank, 413. Paton V. Westervelt, 1016. Patriska v. Kronk, 413. Payne v. Burnham, 902. Peabody v. Speyers, 832. Peabody v. Washington County JIu- tual Insurance Company, 924. Peacock v. New York Life Insurance Company, 935. Peacock v. Peacock, 369. Pearsall v. Kingsland, 907. Pearae v. Pettis, 790. Pearson v. Pearson, 695. Pearson v. Skelton, 404. Pease v. Smith, 750. Peck V. Grouse, 1011. Peck V. Hiler, 216, 218. Peck V. Ingersoll, 204. Peck V. Knapp, 376. Peck V. Vandermark, 832. Peck V. Yorks, 713. Peckham v. Leary, 112, 228. Peckham v. Smith, 712. Peet V. McGraw, 516, 517. Pegram v. Carson, 259, 266. Peil V. Eeinhart, 221. Pels, Henry & Co., v. Oltarsh Iron Works, 558. Pelletreau v. U. S. Electric Light & Power Company, 842. Peltier v. Collins, 43, 727, 824. Pendergast v. Union Railway Com- pany, 505. Penfieid v. Thayer, 700. 702. Pentz V. Stanton, 264, 302, 306, 613. Penn v. Buffalo & Erie Railroad Company, 487. Penny v. Black, 352. Pentz V. Winterbottom, 651. People V. Annis, 172. People's Bank v. Bogart, 774. People's Bank v. St. Anthony's Ro- man Catholic Church, 341. People's Bank of New York v. Bo- gart, 655. People V. Backus, 563. People V. Bank of North America, 255, 293. People V. Berner, 570. People V. Bostwick, 67. People ex rel. Botsford v. Darling, 188. People ex rel. Cranford Company v. Willcox, 873. People V. Darling, 186. People V. Fromme, 615. People V. Gasherie, 881. People V. Gates, 615. People V. Gedney, 188. People V. Globe Mutual Insurance Company, 37. People V. Goodwin, 1003. People ex rel. Immermann v. Devlin, 391. People V. Jones, 460. People V. Judges, etc., 242. People V. Knapp, 332. People ex rel. Knickerbocker Press V. Barker, 323. People ex rel. Knickerbocker Trust Company v. Kelsey, 879. People V. Manhattan Company, 344. People V. May, 332. People ex rel. Murphy v. Gedney, 215. People ex rel. New York Central & H. R. R. R. Co. V. Priest, 332. People V. New York, Lake Erie & Western Railroad Company, 474, 475. People V. Remington & Sons, 85. People V. Rochester Railway etc. Company, 342. People V. Rogers, 34. People V. Russell, 569, 582. People V. Shall, 10. People V. Stearns, 10. People V. Stiner, 173, 174. People V. St. Nicholas Bank, 521. People ex rel. Tiffany & Co. v. Camp- bell, 333. People V. Tioga Common Pleas, 707. People V. Utica Insurance Company, 332. People V. Wiman, 356. Perley v. Schubert, 65. Perkins v. Batterson, 90. Perkins v. Goodman, 67. Perkins v. Stebbins, 240. Perkins v. Washington Insurance Company, 345, 924. Perniciaro v. Veniero, 214. Perreira v. Jopp, 624. Perry v. Tynen. 301. Persons v. Gardner, 877. Pettee v. Orser, 394. Peterson v. Mayor etc. of New York, 336, 337. Peterson v. The City of New York, 47, 230. Peters v. Whitney, 160. Petrie v. Barekley, 10. TABLE OF CASES CITED. liii Petty V. Fish, 799. Petty V. Overall, 438. Peyser v. Myers, 361, 875, 882. Pfanner v. Sturmer, 228. Pfeiffer v. Roe, 95. Phaleii V. United States Trust Com- pany, 10, 38. Phelps V. Vischer, 652. Phillip V. Gallant, 44, 53. Phillips V. Jones, 652. Phillips V. Mackeller, 894. Philpot V. Bryant, 665. Phoenix Insurance Company v. Church, 638. Phoenix Mills v. Miller, 951. Phoenix National Bank v. Cleveland Company, 102. Plioenix Warehousing Company v. Badger, 30, 327. Phyfe V. Dale, 213. Picker v. Fitzelle, 581. Piokford v. Grand Junction Railroad Company, 474, 480. Pickering v. Dowson, 818. Pickett V. Bartlett, 182. Pickslay v. Starr, 698. Pidcoek v. Bishop, 569. Pier v. George, 707, 715. Pierce v. Drake, 785, 849. Pierce v. Empire Insurance Company, 925, 926. Pierce v. Kinney, 528. Pierce v. Nichols, 872. Pierce v. Sehenck, 155, 447, 724, 772. Pierce v. Thomas, 283. Pierrepont v. Barnard, 997. Pierson v. Hooker, 391. Pierson v. Hughes, 181. Pierson v. Moreh, 36. Pigot v. Cubley, 436. Piggot v. Mason, 198. Piller V. Riser, 232. Pindyck v. Harwell, 832. Pine V. Rikert, 1014. Pinney v. Hall, 783. Pintard v. Tackington, 686, 689, 691. Piper V. Manny, 470. Pitkin V. Long Island Railroad Com- pany, 966. Pitney v. Glens Falls Insurance Com- pany, 838, 923. Pitt V. Yalden, 455. Pitts V. Congdon, 576. Place V. Mcllvain, 571, 572, 573. Place V. Union Express Company, 473, 506. Placide v. Burton, 151. Planche v. Colburn, 449. Plato V. Reynolds, 661. Piatt V. Grubb, 699. Piatt V. Hibbard, 457. Piatt V. Stout, 708. Plets V. Johnson, 602. Plimpton V. Curtiss, 973. Plumb V. Cattaraugus County Mu- tual Insurance Compasy, 930. Plumb V. Milk, 314. Plumeira v. Brioka, 557. Podalsky v. Ireland, 189. Poel V. Brunswick-Balke CoUender Company, 832. Poillon V. Secor, 360. Pollen V. LeRoy, 784. Pollock V. Ehle, 736, 872. Pollock V. National Bank, 329. Pollock V. Penn Iron Works Com- pany, 59. Pomeroy v. Ainsworth, 865, 887, 890, 914, 915, 916. Pope V. Terre Haute Car & Manu- facturing Company, 761. Porges V. U. S. Mortgage & Trust Co., 235, 303. Port V. Jackson, 70. Porter v. McClure, 352. Porter v. Parmley, 106, 123. Porter v. Williams, 1014. Porter v. Wormser, 972. Post V. Dart, 908. Post V. Kearney, 198, 227. Post V. Kimberly, 369, 371. Post V. Post, 188. Post V. President etc. of Bank of Utica, 907. Post V. Vetter, 222. Postman v. Rowan, 395. Potter V. Cromwell, 947. Pothonier v. Dawson, 434. Pott V. Eyton, 360, 364. Potts v. Hart, 94. Poueher v. Blanchard, 342. Powder Company v. Burkhardt, 446. Powell V. Morrell, 749. Powell V. Myers, 479, 498, 504. Powell V. Smith, 575, 576. Powell V. Trustees of Newburgh, 311. Powell V. Waters, 901. Powers V. Benedict, 786. Powers V. Knapp, 326. Powers V. Silberstein, 569, 574. Prall V. Hinchman, 637. Pratt V. Adams, 617, 897, 917. Pratt V. Baker, 946, 947, 952. Pratt V. D. H. M. Fire Insurance- Company, 272. Pratt V. Gulick, 54. Pratt V. Stiles, 99, 125. Precht V. Howard, 949. Prentice v. Fargo, 807. Prentiss v. Farnham, 33. Prentiss v. Slack, 116, 117, 131, 134, 135. Presbyterian Church of Albany v. Cooper, 32. liv TABLE OF CASES CITED. Presbyterian Church v. Mayor etc. of New York, 340. Presbrey, Frank Co. v. Miller, 252. Prescott V. Hull, 714. Preston v. Fitch, 376, 378. Preston v. Hawley, 185. Preston v. Southwiok, 137. Preston v. Strutton, 404. Pretzfelder v. Strobel, 407. Price V. Hartshorn, 481, 485. Price V. Holman, 875. Price V. Keyes, 253, 254. Price V. Lyons Bank, 896, 897. Price V. Powell, 492. Price V. Price, 707. Prime v. Koehler, 983, 984. Prindle v. Carruthers, 11, 712. Pringle v. Leverich, 362. Pringle v. Phillips, 782. Pringle v. Spaulding, 992, 993. Prior V. City of Buffalo, 863. Pryor v. City of Buffalo, 864, 883. Provost V. Calder, 200. Puckford V. Maxwell, 685. Pugsley V. Aiken, 180. Pullman v. Corning, 165. Pulver V. Harris, 713. Purchase v. Mattison, 638. Purdy V. Collyer, 1002. Purdy V. Phillips, 876. Purvis V. Coleman, 467. Purvis V. Landell, 455. Putnam v. Broadway & Seventh Ave- nue R. R. Co., 497. Putnam v. Lewis, 572, 684, 685. Puttock V. Warr, 251. Putnam v. Wise, 172, 365. Putzel V. Wilson, 274. Q. Quackenboss v. Clarke, 200, 201. Quackenbush v. Ehle, 975. ■Quackenbush v. Leonard, 874, 890. •Quick V. Wheeler, 783. ■Quigley v. Southwick, 459. •Quin V. Moore, 706. Quinlan v. Providence-Washington Insurance Company, 934. Quintard v. DeWolf, 987. Quinto V. Alexander, 991. R. Raba v. Rayland, 395. Rabone v. Williams, 520. Radt V. Rosenfeld, 392. Raffles V. Wichelhaus, 44. Eaitt V. Mitchell, 513. •Ralli V. Pearsall, 905. Ramaley v. Leland, 468. Ramsav v. Gardner, 311. Ramsdell v. Morgan, 893. Ramsay v. Lewis, 579. Ramstedt v. Brooker, 52. Randall v. Carman, 95. Randall v. Cook, 131. Randall v. Parker, 134. Randall v. Sweet, 79. Randall v. VanVechten, 304, 315, 317. Raney v. Weed, 236. Ranger v. Bacon, 203. Rankin v. Elliott, 30. Rapalee v. Stewart, 1011. Rapelye v. Mackie, 744. Raphael v. Pickford, 490. Rapid Safety Fire Extinguisher Com- pany V. Hay-Buddeu Manufactur- ing Company, 442. Rapp V. Gottlieb, 717. Rapp V. Latham, 396. Rappley v. Adee, 837. Rathbone v. Ayer, 30, 324, 348. Rathbone v. New York Central etc. R. R. Co., 194, 505. Rathbun v. Ingalls, 279. Rathbun v. Platner, 1011. Rathbone v. Warren, 572. Rathbon v. Budlong. 312. Ratcliff V. Davies, 430. Raubitscheck v. Blank, 962. Rauth V. Davenport, 196. Rawson v. Crow, 873. Raymond v. Bernard, 883. Raymond v. Merchant, 684. Raymond v. New York Building Loan Company, 328. Raymond v. White, 945, 954. Raynor v. Hoagland, 651. Reab v. McAllister, 870. Reab v. Moor, 154. Read v. City of Buffalo, 598, 664. Read v. Marine Bank, 687. Read v. Spaulding, 486. Readhead v. Midland Railway Com- pany, 495. Reading Braid Company v. Stewart, 374. Real Estate Trust Company v. Keech, 902. Realty Transfer Company v. Kim- ball, 233. Rector, etc. v. Higgins, 70, 566. Rector, etc. v. Teed, 12, 20, 22. Redhead v. Parkway Driving Club, 273. Redmond v. Liverpool, New York & Philadelphia S. Co., 492. Reed & Barton v. Ashe, 374, 561, 571, 572. Reed v. Drake, 67. Reed v. Lozier, 715. Reed v. Panama Railroad, 299. Reed v. Randall, 772, 800, 801. TABLE OF CASES CITED. Iv Reed v. Smith, 905. Reed v. Warner, 274. Reeder v. Sayre, 168, 185, 186, 228. Reehl v. Martens, 681, 682. Rees V. Gair, 283. Reformed etc. Church v. Brown, 31. Regan v. Fosdick, 184. Regus V. Morgan, 736. Reich V. Cochran, 887. Reid V. Hollinshead, 395. Reid V. Sprague, 716. Eeidenbaeh v. Tuch, 519. Reilly v. Steinhardt, 991. Eeimer v. Green Room Club, 21. Reisler v. Silbermintz, 40. Remsen v. Beekman, 570. Renaud v. Peck, 794. Rensselaer Glass Factory v. Reid, 868, 872. Repelow y. Walsh, 13. Republic of Mexico v. Ockershausen, 71. Requa v. Domestic Publishing Com- pany, 206. Reubens v. Joel, 112. Reusens v. Arkenburgh, 874. Rew V. Barber, 682, 848. Rex V. Ivens, 462. Rexford v. Widger, 907. Reynolds v. Bank of Mount Vernon. 328. Reynolds v. Doyle, 636. Reynolds v. Ellis, 95. Reynolds v. Empire Lumber Com- pany, 684. Reynolds v. Mayor, Lane & Com- pany, 807. Reynolds v. Meldrum, 214. Reynolds v. Shuler, 945. Reynolds v. Spencer, 758, 760. Reynolds v. VanBuren, 171. Reynolds v. Ward, 574. Rhinelander v. Seaman, 191. Rhodesia Manufacturing Company v, Tombacher, 807. Ricard v. Sanderson, 982. Rice V. Butler, 79, 792. Rice V. Churchill, 632, 763. Rice V. Dewey, 950. Rice V. Mather, 898. Rice V. Peet, 999. Rice V. Rice, 608, 627. Rice V. Welling, 902, 903. Rich V. Milk, 106. Rich V. Monroe, 262, 308. Rich V. Penfield, 365. Richards v. London Railway Com- pany, 493. Richards v. Warring, 655. Richards v. Westcott, 473, 488. Richardson v. Emmett, 330. Hichardson v. Hughitt, 357, 364. Richardson v. Mead, 713. Richardson & Morgan Company v. Gudewile, 634. Richmond v. Lee, 220. Richmond v. Smith, 469. Richmond v. Union Steamboat Com- pany, 481. Richmondville Union Seminary v. McDonald, 32. Riekard v. Stanton, 999. Ridden v. Thrall, 693, 701, 702. Rider v. Gallo, 908. Rider v. Union India Rubber Com- pany, 311. Ridgeway v. Grace, 12. Riggs V. C. M. Insurance Co., 920. Rightmyer v. Raymond, 724, 772. Riley V. Seymour, 75, 584. Riley v. Suydam, 231. Rinchey v. Stryker, 111. Rindge v. Judson, 580, 959. Ringle v. O'Matthieson, 563. Ringle v. Wallis Iron Works, 531, 533, 534. Rinschler v. Jeliffe, 810. Ripley v. JEtna. Insurance Company, 926. Ripley v. Colby, 369. Ripley v. Larmouth, 60. Risley v. Phoenix Bank, 713, 714. Ritt V. Washington & Marine Fire Insurance Company, 271. Ritter v. Phillips, 22, 864. Rives V. Michaels, 362, 407. Roach V. Coe, 248. Roach V. Curtis, 556, 557. Robarts v. Tucker, 428. Robb V. Washington & Jefferson Col- lege, 45. Robbins v. Butcher, 1014. Robbins v. Fuller, 403. Robbins v. Robbins, 995. Roberge v. Winne, 993. Roberts & Company v. Buckley, 1011. Roberts v. Chenango Mutual Insur- ance Company, 121. Roberts v. Cobb, 31. Roberts v. Johnson, 397. Roberts v. Morgan, 799, 803. Roberts v. Ogilby, 478. Roberts v. Stuyvesant Safe Deposit Company, 416. Roberts v. S. S. D. Co. 479. Roberts v. Turner, 473. Robertson v. Kennedy, 472. Robertson v. Ketchum, 243, 783. Robertson v. Livingston, 254, 261. Robertson v. Lockie, 399. Robertson v. Sully, 572. Robertson v. Vaughan, 842. Robinson v. Ames, 660. Robinson v. Cornish, 472. Robinson v. Dauchy, 778, 780. Ivi TABLE OF CASES CITED. Robinson v. Frost, 563. Robinson v. Jewett, 13. Robinson v. Kaplan, 145. Robinson v. New Vork Central & Hudson River R. R. Co., 499. Robinson v. Plimpton, 76. Robinson v. Preswick, 950. Robinson v. Rutter, 509. Robinson v. Springfield Iron Com- pany, 524. Robinson v. Stewart, 873. Robinson v. Stanley, 276. Robinson v. Walter, 516. Robinson v. Williams, 119. Rochester v. Taylor, 637. Rochester Distilling Company v. Dev- endorf, 786. Rochester Distilling Company v. Ra- sey, 89, 90. Rochester & K. F. Land Company v. Raymond, 328. Rochester White Lead Company v. City of Rochester, 343. Rockfeller v. Donnelly, 70, 566. Rockwell V. Charles, 917. Rockwell V. Dye, 622. Rockwell V. Hartford Fire Insurance Company, 924. Rodgers v. Phillips, 758, 837. Rodney Hunt Machine Company v. Stewart, 552. Roebling v. Duncan, 77'o. Roehr v. Liebmann, 646. Rogers v. Ackerman, 800, 803, 813. Rogers v. Coit, 372. Rogers v. Dwight, 141. Rogers v. Kneeland, 957. Rogers v. McCoach, 34. Rogers v. Ostrom, 216. Rogers v. Smith, 60. Rogers v. VanHoesen, 763. Rosret V. Merritt, 684, 848. Rohkold V. Sussman, 282. Rohrbaeh v. Germania Fire Insur- ance Company, 920. Rolin V. Steward, 429. Rolt V. Watson, 691. Roman Catholic Orphan Asylum v. Strain, 699. Roome v. Jennings, 786. Rooney v. Second Avenue Railroad Company, 522. Roosevelt v. Hopkins, 197. Roosevelt v. Nussbaum, 28. Root v. French, 773, 776, 778. Root V. Long Island Railroad Com- pany, 475. Root V. New York & New England Railroad Company, 487. Root V. Strang, 608. Rooth V. Wilson, 439, 440. Rorbach v. Crossett, 184. Rosa V. Butterfield, 908, 910. Rose V. Baker, 715. Rose V. Dickson, 900. Rose V. P. & B. Paper Works, 533. Roseman v. Mahoney, 634. Rosenbaum v. Gunter, 960. Rosenberg v. Liele, 419. Rosenthal v. Dessau, 830. Rosenthal v. Emerson Realty Com- pany, 282. Rosenthal v. Gunn, 281. Rosenthal v. Hasberg, 376. Rosenbloom v. Finch, 42. Rosenzweig v. McCaffrey, 7. Ross V. Bedell, 635, 636, 637. Ross V. Drinker, 364. Ross V. Hardin, 24, 27. Ross V. Hurd, 667. Ross V. Moses, 430. Ross V. Terry, 820. Ross V. West, 406. Rossiter v. Rossiter, 235, 305, 318. Roth v. Buffalo & State Line Rail- road Company, 501. Roth V. Palmer, 785, 787, 849. Rothmiller v. Stein, 810, 811. Rothoser v. Cosel, 420. Roiiillon V. Wilson, 221. Rounds V. Delaware, Lackawanna & Western Railroad Company, 342. Rourke v. Duffy, 17, 18. Roussel V. St. Nicholas Insurance Company, 921, 924. Rowan v. Buttman, 263. Rowan v. Lytle, 205. Rowe v. Stevens, 275. Rowe V. Wood, 385. Rowland v. Phalen, 304, 315. Rowley v. Ball, 686. Rowley v. Gibbs, 873. Royer Wheel Company v. Fielding, 394. Rubenstein v. Frost, 35, 235. Ruckman v. Pitcher, 868. Rudderow v. Huntington, 823. Ruff V. Webb, 609. Ruffin V. Ruggiero, 491. Rumsey v. Briggs, 390. Rush V. Stevens, 960. Russell V. Allerton. 31, 59. Russell V. Butterfield, 122. Russell V. Carrington, 746. Russell V. Cook, 19. Russell V. Frear, 67. Russell V. Herrick, 364. Russell V. Hilton, 877. Russell V. Livingston, 473. Russell V. McCall, 376. Russell V. Minor, 740, 748, 849. Russell V. Nelson, 903. Russell V. Nicoll, 733, 734, 759, 768 833. TABLE OF CASES CITED. Ivii Russell V. Whipple, 604. Russell V. Winne, 94. Rust V. Eckler, 787. Rust V. Morse, 116. Ryall V. Rolle, 430. Ryan v. Dox, 995. Ryan v. Jones, 208, 214. Ryan v. Voelki, 53. Ryan v. WoUowitz, 554. Ryder v. Gilbert, 369. S. Sachs V. American Surety Co., 564. Sackett v. Palmer, 608, 961. Sackett v. Spencer, 604. Sackett's Harbor Bank v. Lewis County Bank, 336, 337. Sadler v. Nixon, 404. Sagalowitz v. Pellman, 29. Sage V. Hazard, 28. Sage V. Sharman, 235. Sage V. Stafford, 531, 532. Sager v. Gonnermann, 31. Sale V. Daeragh, 834, 835. Salomon v. Korth British & Mercan- tile Ins. Co., 934. Salisbury v. Stainer, 817. Salmon v. Grosvenor, 664. Salt Springs Nat. Bank v. Burton, 662, 665. Salt Springs Nat. Bank v. Sloan, 585, 586. Salter v. Ham, 356. Saltus V. Everett, 514, 515, 751, 780. Sampson v. Ottinger, 282. Sampson v. Rose, 228. Sanders v. Sanders, 399. Sanders v. Gillespie, 983. Sanders v. Lake Shore & Michigan Southern Ey. Co., 864. Sanders v. Pottlitzer Bros. Fruit Co., 42, 43, 169. Sanders v. Spencer, 466. Sanderson v. Bell, 510. Sanderson v. Goodrich, 36. Sandilands v. Marsh, 396. Sands v. Church, 908. Sands v. Taylor, 783, 817. Sanford v. American District Tele- graph Co., 472. Sanford v. Brown Bros. Co., 59. Sanford v. Mickles, 401, 650. Sanford v. Sanford, 699. Sanger v. Eastwood, 116, 136, 144. Sanger v. French, 972. Sanger v. Waterbury, 744. Sarasohn v. Kamaiky, 12, 38. Saratoga County Bank v. King, 36. Saratoga Holding Co. v. Washburn, 105. Saratoga Trap Rock Co. v. Stand- ard Accident Ins. Go., 876. Sargeant v. Slack, 458. Satterlee v. Groat, 474, 480. Satterly v. Dewick, 25. Satterthwait v. Vreeland, 285. Sattler v. Hallock, 60, 6z, 447, 448. Saunders v. Plummer, 463. Savage v. Beecher, 864. Savage v. Corn Exchange Fire & Inland Nav. Ins. Co., 933, 936. Savage v. Howard Ins. Co., 934. Savage v. Putnam, 373, 374. Sawyer v. Chambers, 634. Sawyer v. McLouth, 14. Sayles v. Kerr, 203. Sayles v. Nat. Water Purifying Co., 554. Scarfe v. Morgan, 514, 515. Schaeffer v. Henkel, 263, 302, 305. Schafer v. Reilly, 716. Schano v. Storch, 285. Scheneck Chemical Co. v. Industrial Advertising & Distributing Co., 272. Schenectady Stove Co. v. Holbrook, 43, 727. Scherer v. Colwell, 282. Schermerhorn v. American Life Ins. Co., 906. Schermerhorn v. Farley, 233. Schermerhorn v. Loines, 683. Schermerhorn v. Talman, 899. Scheu V. Erie Ry. Co., 479. Scheuer v. Monash, 3. Schick V. Fleisehauer, 223. Schieffelin v. Carpenter, 206. Schiffer v. Dietz, 787. Schlesinger v. Gilhooly, 907. Schlesinger v. Kelly, 891. Schlesinger v. Lehmaier, 892, 907. Schlesinger & Sons v. N. Y. New Haven, etc. R. R. Co., 491. Schmalz v. Mead, 528. Schmerenbeck V. Fink, 965. Schmidt v. Blood, 457, 524. Schmidt v. Weeks, 105. Schmittler v. Simon, 597, 658. Schmitz V. Langhaar, 585, 586. Schneider v. Schneider, 696. Schoellkopf v. Coatsworth, 60. Scholefield v. Eichelberger, 399. Schoonmaker v. Elmendorf, 72. Schoonmaker v. Hoyt, 59. Schoonmaker v. Vervalen, 747. Schram v. Werner, 8. Schreyer v. Fenton, 740. Pchroeder v. Hudson River R. R. Co., 360, 492. Schroeder v. Ward, 445. Schroeppel v. Shaw, 569, 571, 576. Schroeppel v. Corning, 918. Schufeldt v. Schufeldt, 907. Schultze V. Goodstein, 52. Schultz V. Griffin, ?85. Iviii TABLE OF CASES CITED. Scliultz v. Skaneateles R. R. Co., 502. Schuyler v. Russ, 809, 824. Schuyler v. Smith, 45, 181. Schwab V. E. G. Potter Co., 334. Schwab V. Oatman, 267. Schwartz v. Hyman, 580. Schwartz v. Sweitzer, 894. Schwarzschild & Sulzberger Co. v. Mathews, 395. Scobell V. Block, 947. Scott V. Brown, 64. Scott V. Central Park, etc. R. R. Co., 497. Scott V. Delahunt, 509. Scott V. Frink, 12. Scott V. McGrath, 235, 297. Scott V. Meeker, 6S9, 690. Scott V. Miller, 65. Scott V. Parker, 438. Scott V. Pentz, 735. Scott V. Rogers, 250. Scott V. Simes, 698. Scott V. Tyler, 567. Scott V. Warner, 726. Scovil T. Scovil, 881. Scovill V. Griffith, 494. Scranton v. Baxter, 426. Scranton v. Booth, 171. Scranton v. Clark, 819. Seaboard National Bank v. Bank of America, 602. Seaman v. Hasbrouck, 39, 082. Seaman v. Low, 785. Seaman v. Luce, 506. Seaman v. Seaman, 19, 20. Scare v. Prentice, 455. Searles v. Manhattan Ry. Co., 24. Sears v. Brink, 957. Sears v. Conover, 708. Second Avenue R. R. v. Coleman, 278. Second National Bank v. Weston, 374, 678. Second National Bank of Morgan- town V. Weston, 40. Secor V. Tradesman's National Bank. 377. Seeley v. Engell, 617, 618. Seeman v. Levine, 725. Segelken v. Meyer, 308. Seibert v. Mowbray, 167. Seigel V. Eisner, 442. Seigman v. Keeler, 460. Seixas v. Woods, 813. Seldon v. Pringle, 691. Selesky v. Voltmer, 445. Scligman v. Friedlander, 359. Seneca County Bank v. Lamb, 339. Seneca County Bank v. Neass, 638. Seneca County Bank v. Schermer- horn, 897. Seventeenth Ward Bank v. Smith, 337. Sewall V. Allen, 483. Sewall V. Gibbs, 872. Sewell V. Fitch, 842. Sexsmith v. Siegel-Cooper Co., 232. Sexton V. Montgomery Co. Mutual Ins. Co., 932. Seymour v. Brown, 723. Seymour v. Cowing, 616. Seymour v. Fellows, 714. Seymour v. Marvin, 892, 893. Seymour v. Strong, 897. Seymour v. Warren, 958. Seymour v. Wilson, 1015. Seymour v. Wyckoff, 246, 251. Shafer Fruit <5S that they were rendered under the contract of em- ployment unless the contrary is shown; and this implication is THE LAW OF CONTRACTS. 27 much stronger if tlie services are of the same character as those embraced in the contract. Eoss v. Hardin, 79 E". Y. 84, 90. The doctrine that where a person stands by and accepts the serv- ice of another a promise to pay their reasonable value is implied, does not apply v?here a person assists in extinguishing a fire in a ■warehouse, heavily insured, and filled with the goods of persons other than the warehouseman. In such case there is no ground for the supposition that the services were being rendered for the ex- clusive benefit of the warehouseman and no liability arises from a failure to prevent their rendition. Merritt v. American Dock & Trust Co., 36 St. Eep. 428; 13 N". Y. Supp. 234. If a man humanely bestows his labor and even risks his life in voluntarily aiding to preserve his neighbor's house from destruc- tion by fire, the law considers the service rendered as gratuitous and it therefore forms no ground for action Bartholomew v. JacTc- son, 20 Johns. 28. And if a physician renders medical services for a slave without the knowledge or consent of the master, in a case not demanding instant and immediate assistance, no action will lie against the master for the value of the services. Dunbar V. Williams, 10 Johns. 249. The cases cited sufficiently illustrate the rule that an obligation will not be implied to remunerate a party for his services unless the circumstances are such as to show either that there must have been a mutual understanding to that effect, or if rendered with- out the party's knowledge, that the service was an act of necessity for which he was legally bound to provide, or where it may be assumed that if he had known of the exigency he would have re- quired such service to have been performed with the understand- ing that he was to pay for it. See Hewett v. Branson, 5 Daly, 1, 7. But, in the usual course of business transactions, there is al- most always an express or an implied request to perform the services rendered; or, they are performed under circumstances from which there is a legal liability to pay for them. And there is no class of actions more frequently brought than those relating to labor and services rendered. Promise for a promise. — A promise is a good consideration for a promise. And a great part of the executory contracts which are made, consists of nothing more than promise for a promise. For instance, two persons enter into a written contract, and each of them stipulates with the other that he will do some specified thing, by a particular time, and neither of them performs the con- 28 THE LAW OF CONTEAOTS. tract, or any part of it, at the time it is made. ITow, it is evident that the only consideration which exists, in such a case, is a prom- ise for a promise. And such a contract is as binding upon the parties as though one of them had paid money or delivered prop- erty to the other, in consideration of which the latter promised to do some specified thing. Briggs v. Tillotson, 8 Johns. 304 ; HougJi- taling v. Randen, 25 Barb. 21 ; Sage v. Hazard, 6 Barb. 179 ; Cole- man V. Eyre, 45 'S. Y. 38. An agreement by one party to sell to another shares of stock in a corporation to be thereafter incorpo- rated is a sufficient consideration for a promise by the latter to purchase the stock. Van Dorn v. Tapscott, 40 App. Div. 36. So a grant to one party of an exclusive right to sell a particular line of goods in a particular locality for a definite time is a sufficient consideration for an agreement by the other party to receive, sell and pay for the goods. Standard Fashion Co. v. Ostrom, 16 App. Div. 220. Where the general agent for the sale of a certain wine agrees with a liquor dealer to sell him at a specified price, and to give him the sole agency provided he continues to handle the wine in fair quantities, there is a legal and valid consideration for the agreement to continue the agency which will justify a recovery by the dealer for breach of the contract in that regard. Roosevelt v. Nushaum, 75 App. Div. 117 ; citing L'Amoreux v. Gould, 7 IST. Y. 349 ; Marie v. Garrison, 83 IST. Y. 14 ; Walceman v. WJieeler and Wilson Mfg. Co. 101 IST. Y. 205. So, mutual promises, by per- sons competent to contract, to submit to arbitration claims and de- mands which are the subject of arbitration, are a good consider- ation, each for the other. Wood v. Tunnicliff, 74 'N. Y. 38. It is sometimes said that both parties must be bound at the same time, or that neither will be bound; and, when the sole consider- ation in a contract consists in the mutual promises of the parties, it is true that both must be bound, or that neither is bound ; but the rule applies to those cases only in which the contract is executory on both sides, either wholly or in part; because if the contract is executed on one side, either wholly or partially, then there would clearly be an executed consideration on that side, and there would not be any promise for a promise. A new agreement concerning the same subject-matter is founded upon a good consideration, for the reason that each renounces to the other his rights and liabili- ties under a former contract, in consideration that the other will do the like, and the mutiial agreements furnish a consideration in law, and the fact that the new agreement is executory only, does THE LAW OF CONTEACTS. 29 not change its effect. Spier v. Hyde, 18 App. Div. 151 ; citing Na^soly v. Tomlinson, 148 IST. Y. 326 ; Morehouse v. Second Nat. Bank of Oswego, 98 K Y. 503; Kramer v. Eeim, Y5 N. Y. 574. Mutuality is essential to an executory contract. Wall v. Oillin Printing Co. 21 Misc. 649 ; 48 IST. Y. Supp. 67. By the contract of employment sued upon by the employee, defendants agreed to hire him for a specified time at fixed wages, he agreed not to take part in any strike; the contract specified that it was from "Sep- tember 3, 1901 to November 1, 1902." and both parties signed it. — Held that the defendants could not defeat a recovery on the ground of lack of mutuality or failure of consideration, the vTriting being made by defendants, and so to be construed strongly against them. Silberman v. Schwarcz, 45 Misc. 352 ; 90 IST. Y. Supp. 382 ; cit- ing Chicago and Great Eastern By. Co. v. Dane, 43 IST. Y. 240. A provision in a contract of employment that for a term specified the employee shall not enter other employment is not void for want of mutuality because it does not contain a provision specific- ally binding the employer to keep the employee for the time speci- fied, when it fairly imports a hiring, nor is it deprived of mutu- ality by the reservation of the employer of the right to terminate it on thirty days' notice. McCall v. Wright, 133 App. Div. 62 ; 117 ^N". Y. Supp. 775. But it is not essential to the existence of a consideration for a promise that mutuality of obligation should exist between the parties at the time of the making of the promise. Where one of the parties makes a proposition accompanied by a promise, a voluntary performance by the other in compliance with the terms of the proposition, and in consideration of the promise, constitutes a consideration which will uphold the promise and make it binding. Marie v. Garrison, 83 !N". Y. 14. Want of mutuality at the inception of a contract may be remedied by the subsequent conduct of the parties or by the execution of the agreement. Saga- toiuitz V. Pellman, 32 Misc. 508. There is a class of cases in which no promise is given for a prom- ise, and yet there may be a valid contract in pursuance of a re- quest and promise made by one party. If a master sends his servant to a merchant, with a request to the merchant to sell certain goods to such servant, and promises that he, the master, will pay for them, the merchant will not be bound to deliver the goods ; but if he does comply with the request, and deliver the goods, the master is liable to pay for them. L'Amoreux v. Gould, 1 N. Y. 349. In such a case, the merchant's 30 THE LAW OF CONTEACTS. compliance with the master's request is all that is necessary ; and, when the goods are delivered, there will be that mutuality of con- sideration which the law requires. And, besides that view, there is another which is equally plain.. If the master sends such a request and promise, it will be a con- tinuing request and promise until it is withdrawn, or until it is complied with; and, if the goods are delivered before the request and promise are withdrawn by the master, then the contract will be executed on the part of the merchant, and executory on the part of the master; and in such a case it is very clear that there is a valid consideration and liability to pay for the goods. This principle is one which is of daily application, and mer- chants, manufacturers and mechanics purchase a large proportion of their stocks of goods upon orders which are forwarded to those with whom they deal. And it is the same principle which governs transactions in all those eases in which a person keeps an open ac- count with a merchant, by sending for goods from time to time, and buying upon credit. There is one exception to the rule, as to mutuality of promises, even in those cases in which the contract is executory on both sides, and that is, when one of the parties is an infant. The infant is not bound, though the adult is. But the reason for this rule which makes the adult liable, is that the in- fant's promise is not void, but voidable at his election ; and, there- fore, if he elects to hold it valid, the adult cannot complain. Wil- lard V. Stone, 7 Cow. 22 ; Hunt v. Peaeke, 5 Cow. 475. Subscriptions and contributions.— Subscriptions for shares of stock, in an incorporated company, or joint-stock company, are valid and binding, because the shares which the party is entitled to receive, will constitute a sufficient consideration for his subscrip- tion. Baitershall v. Davis, 31 Barb. 323. A trustee in bankruptcy may maintain an action to recover unpaid subscriptions for stock. Eathhone v. Ayer, 84 App. Div. 186 ; citing Stoddard v. Lum, 159 ]Sr. Y. 272. And even though the time when the sub- scription became payable has long passed, no call or demand of the board of directors is required, nor is a demand by the trustee in bankruptcy required where defendants claim to have paid their subscriptions in full. Ibid, citing Phoenix Warehousing Co. v. Badger, 67 N". Y. 284; EanJcine v. Elliott, 16 1^. Y. 379. A writ- ten subscription for fifty shares of the stock of a corporation to be formed for a purpose stated, without stating the amount of the subscription or the par value of the shares, is not enforceable by a THE LAW OF CONTRACTS. 31 corporation subsequently organized for a somewhat different pur- pose, involving increased risks, where its identity with the cor- poration contemplated by the agreement is not shown. Woods Mo- tor Vehicle Co. v. Brady, 181 N. Y. 145; citing Dorris v. Swee- ney, 60 K T. 463. An agreement to subscribe money to build and equip a butter factory conditioned upon procuring subscriptions to represent 200 cows. Held, upon a consideration of its terms, to require sub- scribers financially responsible or owning cows to represent that number, and that before the contract had been completed, a sub- scriber had the right to withdraw. Soger v. Gonnermann, 50 Misc. 500; 100 ]Sr. T. Supp. 406; citing Russell v. Allerton, 108 IST. T. 288 ; Industrial and General Trust Co. v. Tod, 180 IST. Y. 215 ; Wilcox V. American Telephone & Tel. Co. 176 N. Y. 115 ; WeeTcs V. O'Brien, 141 IST. Y. 199. It seems that an action brought on a subscription to the stock of a corporation cannot be sustained un- less compliance is alleged with Sec. 41 of the Stock Corporation Law, requiring ten per cent, of a stock subscription to be paid in cash at the time it is made. May v. Charlouis, 128 App. Div. 127 ; citing Hapgood v. Lusch, 123 App. Div. 23. It was held, in an action for professional services against an insurance corporation, where its receiver counterclaimed for a subscription to its capital stock, for ten per cent, of which the plaintiff had given a check which was not paid, on demurrer to the counterclaim, and revers- ing judgment overruling it, that a mere agreement to subscribe to the stock of a corporation about to be formed is not enforceable as a subscription. Van Schaich v. MacTcin, 129 App. Div. 335 ; citing General Electric Co. v. Wightman, 3 App. Div. 118. How far a voluntary subscription for charitable purposes, as for alms, education, religion, or other public uses, is binding, is not yet fully settled. The extent to which the courts of this state have gone in holding them binding is, to hold that if the subscrip- tion shows a consideration upon its face; or, if it contains a re- quest that any act shall be done, and then it is shown that there has been a compliance with such request, this will render the subscription valid. Barnes v. Ferine, 12 N. Y. 18, 24; S. C, 15 Barb. 249 ; and 9 Barb. 202 ; Stewart v. Trustees of Hamilton College, 2 Denio, 403 ; S. C, 1 IST. Y. 581 ; Stoddard v. Cleveland, 4 How. Pr. E. 148 ; Reformed, &e.. Church v. Brown, 29 Barb. 335; S. C, 17 How. Pr. E. 287; Central Presbyterian Church v. Thompson, 8 App. Div. 565; Roherts v. Cohh, 103 N. Y. 600; 52 THE LAW OF CONTRACTS. Richmondville Union S&minary v. McDonald, 34 N. Y. 379 ; Wayne & Ontario Collegiate Institute v. Smith, 36 Barb. 576. Where the subscription paper does not show upon its face any Talid consideration for the promise therein contained, and does not show any request, express or implied, that the party to whorr. the promise is made shall do any act on the faith thereof, and where the party to whom the promise is made has neither prom- ised to do nor has done any act upon the faith of the subscription, the instrument is void for want of consideration and cannot be ■enforced against the subscriber. See Hull v. Pearson, 38 App. Div. 588 ; Presbyterian Church of Albany v. Cooper, 112 'N. Y. 517 ; Twenty-third Street Baptist Church v. Cornell, 111 JST. Y. 601. The recital in the instrument that it was made "in consid- eration of one dollar to each of us in hand paid and the agreement of each other in this contract contained" will not preclude the promisor from showing that nothing was in fact paid to him ; and the fact that the promise of each subscriber was made by rea- son of and in reliance upon similar promises by the others con- stitutes no consideration as between the promisors and the per- sons or corporation for whose benefit the promise is made. Pres- byterian Church of Albany v. Cooper, 112 N. Y. 517. While it may follow that the expenditure of large sums of money in re- liance upon and in furtherance of the object of a subscription may furnish a consideration where none existed before, to have this effect the expenditure must have been made with the knowl- edge and assent of the subscribers. In ease of the death of the promisor before such expenditures are made the promise dies also ■and no liability survives as against the personal representatives of the promisor. Twenty-third Street Baptist Church v. Cornell, 117 K Y. 601. In an action based upon a subscription for the support of a college it appeared that the defendant and an agent of the col- lege signed a paper reading, as follows: "I promise to pay the trustees of the New York Central College one hundred dollars, in five years, or to their authorized agent. They agree to apply it for college purposes;" and it was held that a mere promise to pay, even when coupled with a promise to receive the money, did not constitute a consideration sufficient to sustain an action on the promise to pay. Hammond v. Shepard, 29 How. 188. But where it appeared in such case that the defendant has signed a contemporaneous agreement to pay such sum on condition that the THE LAW OF CONTEACTS. 33 college holds its doors open upon all moral subjects, and that they would use their influence on the students to hear and inves- tigate the subject, if the immortality of the soul should be present- ed for discussion in the lyceum, and also that the college chapel should be open, on proper notice, for any suitable Christian per- son to preach on the subject, it was held that there was sufficient consideration to sustain an action, when it was also shown that the college complied with the condition, or where no question was made on that point in the action to recover the amount subscribed. Ih. A reading of this case suggests the possibility of a valid defense to this contract other than the want of consideration. The want of consideration for a subscription under seal may be shovra. the same as if no seal were attached. The liability of parties to subscriptions for the purpose of forming joint-stock or incorporated companies will be noticed hereafter. See Corporations, 'post. Rewards offered. — The request and the promise contained in a public advertisement which offers a reward is a sufficient con- sideration to sustain an action in favor of any one who complies with it by giving the information required, and by also comply- ing with any other conditions therein specified. A sheriff, who publicly offers a reward for the detection and apprehension of a specified criminal, is personally liable to the person who gives the information which leads to the arrest and conviction of such criminal. Prentiss v. Farnliwm, 22 Barb. 519. The proprietor of a hotel in a distant city who gave information, and led the officers to the arrest of an accused person at his house, Held entitled to the whole amount of the reward offered for his apprehension, as against the claims of persons who had gained and communicated knowledge of his whereabouts and subsequently lost it. Atwood V. Armstrong, 102 App. Div. 601. Where a reward is offered for the apprehension of a criminal, and the recovery of the moneys feloniously obtained by him, it is essential that there should be both an apprehension of the of- fender and a recovery of the moneys, and without the performance of both conditions the plaintiff will not be entitled to recover. Jones V. Phoenix Bank, 8 N. Y. 228. The rule is the same when the offer is to pay a portion of the reward, proportionate to the amount recovered. lb. A recovery of the money alone, or a conviction of the offender without a recovery of the money, will neither of them standing by itself sustain an action. Tb. ; Thatcher 3 34 THE LAW OF CONTRACTS. V. England, 3 Man., Grang. & Scott, 254. Where the advertise- ment which offers the reward merely requires information which will lead to the detection of the offender, it will he sufficient to prove that the plaintiff gave such information to the defendant as led him to have the suspected person arrested for the offense. Brennan v. Haff, 1 Hilt. 151. It is not necessary in such a case,, to show a conviction of the person arrested. Ih. But if the reward is offered to any person who will give such information as Avill lead to the apprehension and conviction of the criminal, both ap- prehension and conviction must concur, as a consequence of the information given, to entitle the informant to the reward. Fitch V. Snedaker, 38 IST. Y. 248. Where a county offers a reward for information that would "result in the apprehension and convic- tion" of a criminal, no one becomes entitled to share in the reward by furnishing any information after the arrest of the criminal. Sogers v. McCoach, 66 Misc. 85 ; 120 Is"". Y. Supp. 686 ; citing Fitch V. Snedaker, Ih.; People v. Rogers, 192 IST. Y. 331. The person claiming the reward must show a rendition of the requisite services after a knowledge and with a view of obtaining the re- ward offered. Howland v. Lounds, 51 IST. Y. 604. A public officer, not a constable or a sheriff, is entitled to recover a reward offered by a private person, provided he complies with the conditions contained in the offer. England v. Davidson, 11 Ad. & Ellis, 856; Thatcher v. England, 3 Man. Grang. & Scott, 254; City Bank v. Bangs, 2 Edw. Ch. 95, 97, 98. But public officers such as policemen, peace officers, and sheriffs are not en- titled to share in a reward on account of efforts made in pursu- ance of their duty, even if the county authorities intended that they should, because it is contrary to public policy. The same rule applies to such officers of other states who have assisted in the capture of a 'New York criminal. Rogers v. McCoach, lb. And where there are several adverse claimants for a reward offered by a county for information leading to the apprehension of a crim- inal, it is the proper practice to pay the money into court ; and the court may then apportion it equitably between the claimants. lb. But where a statute fixes the fees which are to be paid to any pub- lic officer other than a peace officer, policeman, sheriff or con- stable, for a specified service which he is bound to perform, no action will lie for the recovery of a greater sum than the statutory fees, on the ground that extra exertions were made in the dis- charge of such official duty, and this although an express promise THE LAW OF CONTEACTS. 35 was made before the services were rendered to pay such extra compensation. Hatch v. Mann, 15 Wend. 44. In the case of a reward which is offered for the discovery of an offender, the cases say an officer may perform acts which he is not legally bound to do as an officer in the discharge of his duty, and therefore he may recover a reward. If a sheriff, under the requisition of the gov- ernor, follows one, who, being at large on bail for felony, has left the State, arrests him without the State, and brings him into the State, the fact of his official character will not prevent his recover- ing on an offer of reward. Gregg v. Pierce, 53 Barb. 38Y. Kewards are also offered for various other acts and things than the detection, arrest or conviction of criminals. Where a trophy was donated to a village fire department having five separate fire companies, and a condition of the gift was that it was to be com- peted for each year by the different fire companies until it was won three times by the same company, and that then it was to be- come the permanent property of that company, and that the gov- erning council of the department make the rules governing the competition, — Held, that a company winning the trophy in three competitions, including one not directed by the governing council, did not acquire a permanent property in it, even though a man- damus would have been proper to order the council to hold a competition at that time. Matter of Seaman, 121 N. Y. Supp. 259. As a general proposition in all cases other than rewards of- fered for the apprehension or conviction of criminals, and even in those cases when peace officers, sheriffs or policemen are not concerned in claiming the reward, a compliance with the offer will entitle the person rendering the service to recover the amount offered. To authorize the recovery of a reward for lost property, the plaintiff should show that he found it after he had learned of the reward, and acted on the discovery with a view of obtaining the reward. Rvbenstein v. Frost, 116 IST. Y. Supp. 681. And one suing for a reward for the return of stolen property must show that he acted voluntarily, with knowledge of the reward and not under compulsion, for liability to pay the reward is not cre- ated by the mere reception of the property by the owner at the hands of the plaintiff. Sheldon v. George, 132 App. Div. 470. And the return of the property is not a voluntary one when the purchaser from the thief gives it up to avoid legal proceedings to 36 THE LAW OF CONTEACTS. disclose its whereabouts, which were threatened. Ih. ITor can one who purchases property knowing it to be stolen, thus coming into wrongful possession, claim a reward offered by the owner for its return on the theory of a contract to pay the reward. Ih. cit- ing Pierson v. March, 82 N. Y. 503. Consideration void in part. — .The maxim "Void in part void in toto," expresses no general principle of law. On the contrary, the general rule is that the good shall stand although mixed with the bad, provided a separation can be made. The exceptions are: First. When a statute expressly declares a whole deed or con- tract void, on account of some unlawful provision in it. Second. When there is some pervading vice which infests all parts of the agreement, as fraud for example, so that no separation can be made. Curtis v. Lemitt, 15 N. Y. 14, 97 ; Leavitt v. Palmer, 3 K Y. 19. Illegality of consideration.— A contract may be void, and yet the contract not be tainted with any element which is illegal or evil in itself; as where a contract is valid at common law, but it is made illegal by statute, or, where some requirement of a stat- ute is not complied with, as where a written contract is required, but a verbal one is made. There are contracts which are immoral and illegal in their very nature ; and if the consideration is of that nature, the contract will be void; and the same rule applies to contracts which are founded upon a consideration which a statute makes absolutely illegal; though it is to be remembered that a statute which requires some element which the common law did not, as writing, is different from the case of an act which is made illegal and subject to a pen- alty or to criminal punishment, because, in the latter case, the con- tract would be like a contract which is bad at common law for il- legality. If the consideration is entire, and there cannot be any separa- tion of it, the entire contract will be void, although a portion of the consideration may not be illegal. If there are two separate and distinct considerations for a contract, and one of the consid- erations is valid, but the other is illegal, they may be separated, and the contract be valid. Sanderson v. Goodrich, 46 Barb. 616 ; Amot V. Pittston & Elmira Coal Co. 68 'N. Y. 558 ; Saratoga County Bank v. King, 44 IST. Y. 87. Illegality of consideration will be fully discussed in another place. THE LAW OF CONTEACTS. 37 Impossible considerations.- A contract will not be valid if it is founded upon a consideration -which is absolutely impossible. But a contract will not be invalid merely because the performance of it will be difficult or improbable. The party who makes a contract which requires him to do certain specified acts, must take into the account the possibilities or the probabilities of the performance; and if the performance of the thing promised is not prevented by the act of the law or the act of God, there will not be any excuse for the non-performance, merely because the act could not pos- sibly be performed under the circumstances which have happened. Harmony v. Bingham, 12 JST. Y. 99; Booth v. Spuyten Duyvil Rolling Mill Co. 60 K Y. 487 ; Oakley v. Morton, 11 IsT. Y. 25 ; Tompkins v. Dudley, 25 IST. Y. 272 ; Wheeler v. Connecticut Mut. Life Ins. Co. 82 N. Y. 543. The non-performance of a contract is not excused by the act of God where it may be substantially car- ried into effect, although the act of God makes a literal and pre- cise performance of it impossible. Thus, where a carrier of passengers has agreed to transport a passenger from one place to another, the carriage of the passenger by a particular vessel is a minor part of the contract, the essential obligation being to carry the passenger to his destination. Ih. In ap- parent contradiction, but in harmony with the spirit of the case last cited, is the now well-settled rule that, where per- formance depends upon the continued existence of a particular person or thing, and such continued existence was assumed as the basis of the agreement, the death of the person or the destruction of the thing puts an end to the obligation. Lorilla/rd v. Clyde, 142 W. Y. 456. Executory contracts for personal services, for the sale of specific chattels, or for the use of a building, are held to fall within this principle. Dexter v. Norton, - 47 IST. Y. 62 ; Spaulding v. Rosa, 71 IST. Y. 40 ; People v. Globe Mutual Ins. Co. 91 K Y. 174; Taylor v. Coldwell, 113 Eng. C. L. 826. And see Lacy V. Getman, 119 IST. Y. 109. These cases are not exceptions to the rule that contracts voluntarily made are to be enforced, but the courts, in accordance with the manifest intention, construe the contract as subject to an implied condition that the person or thing shall be in existence when the time of the performance arrives. Lorillard v. Clyde, 142 'N. Y. 456. So, if, after a contract is made, the law interferes and makes subsequent performance im- possible, the party is held to be excused. Jones v. Jvdd, 4 N. Y. 412. 38 THE LAW OF COliTRACTS. Failure of consideration.— Where there is a total failure of con- sideration upon one side, the other party will be discharged fl-om performing the contract upon his part; and if the latter has ad- vanced any money upon such contract, he may recover it as money iiad and received by the other party. Briggs v. Vanderbilt, 19 Barb. 222. Tausig v. Drucker, 90 X. Y. Supp. 380. A recovery cannot be had upon a contract to pay the debts of a firm in consideration of a transfer of its business and assets, where there is a partial failure of consideration exceeding the amount of such claim, through failure to turn over a portion of the assets. Gilmartin v. Yan Horn, 107 '^. Y. Supp. 131. If there is but a partial failure of consideration, the contract will be valid ; but the party on whose side there is such failure will be liable to respond to the other party for the amount of the deficiency. If a promissory note is given for a consideration which partially fails, the payee cannot recover the full amount of the note, but there must be a deduction from it equal to the failure of consid- eration. Hills V. Bannister, 8 Cow. 31; Spalding v. Vandercroolc, 2 Wend. 431. As has been stated, mere inadequacy in value of the thing bought or paid for does not constitute what is termed in law want or failure of consideration. These terms apply only to either total worthlessness to all parties, or subsequent destruction, par- lial or complete. Cowee v. Cornell, 75 N. Y. 91, 98. See Ewrl v. Peclc, 64 N. Y. 596. Stranger to consideration. — Usually the consideration moves from the plaintiff to the defendant, unless it is in the case of assigned demands. But it is not necessary that the consideration should move from the plaintiff in order to give him a right of action. An action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff without any consideration moving from the plaintiff. Lawrence v. Fox, 20 K Y. 268; Barker v. Bradley, 42 I^. Y. 316; Brown v. Cur- ran, 24 Hun, 260 ; Arnold v. Nichols, 64 E". Y. 117 ; Barlow v. Myers, 64 N". Y. 41 ; Clark v. Howard, 150 N". Y. 232 ; William^,. V. Fisher, 8 Misc. 314; 59 St. Eep. 282, 28 K Y. Supp. 739; White v. Devendorf, 127 App. Div. 791. And an agreement by v/hich a third person covenants to perform certain promises in consideration of a marriage, is enforceable. Sarasohn v. Kamai- ky, 193 N. Y. 203 ; citing Phalen v. U. S. Trust Co. 186 IST. Y. THE LAW OF CONTEACTS. 39 178; Johnson v. Spicer, 107 iN". Y. 185. Accordingly, it was held that, where B., who was indebted to the plaintiff, sold prop- erty to the defendant, who agreed to pay the price of it to the plaintiff, on account of his demand against B., the plaintiff might maintain an action against the defendant on snch a promise. Barker v. Bucldin, 2 Denio, 45. So, where A. loaned money to the defendant upon his promise to pay it to the plaintiff, to whom A. was indebted for a like sum, it was held that an action lay. Lawrence v. Fox, 20 N. Y. 268. And see Earle v. Crane, 6 Duer, .56-4 ; Hale v. Boardman, 27 Barb. 82 ; Westfall v. Parsons, 16 Barb. 645 ; Seaman v. Hashroucle, 35 Barb. 151 ; Burr v Beers, 24 1^. Y. 178. But it was held that an assignment of a judgment does not afford a sufficient consideration for the promise of a third 3)erson, whose property it does not affect, to pay it; and a part payment does not preclude him from setting up the lack of con- sideration, when sued for the balance. Bell v. Pfadenhauer, 89 App. Div. 279; citing Brandt v. Krank, 164 N. Y. 515. In a ■«ase of mere agency for the transmission of money, the party foi whom the money was designed cannot maintain an action against the agent for money had and received to his use. To sustain an action, there must be an express promise by the agent. Bige- low V. Davis, 16 Barb. 561. But, a stranger to a contract between two persons, to the con- sideration thereof, and to the obligations imposed thereby, has no right to enforce it. Webb's Academy and Home &c. v. Hid- den, 118 App. Div. 711. Time of the consideration. — Considerations are executed or ex- -ecutory. When executed, they are called past, or executed con- siderations; and when they are of that nature they are not suf- rficient to sustain a promise unless such past consideration arose at the request of the party who promises ; or unless the person to whom such promise is made has been compelled to pay some money or to do some act in consequence of a liability incurred at the reqtiest of the promisor. If a person renders gratuitous services and a subsequent prom- ise is made to pay for them, this will be a past consideration. And , if one person voluntarily, and without any request, pays the debt of a third person, a subsequent promise will not create a legal liability. Ingraliam v. Gilbert, 20 Barb. 151 ; Thomson v. Thompson, 76 App. Div. 178 ; and a promise to pay ihe debt of a third person must be supported by a consideration. 40 THE LAW OF COITTEACTS. Brush & Stephens Co. v. Boss, 99 ]^. Y. Supp. Y96. But if one person becomes a surety for another, at his request, and as such surety he is compelled to pay the debt, he may maintain an ac- tion against the person for whom he became such surety, and he may recover the money which he has been compelled to pay in consequence of his becoming such surety. Konitzky v. Meyer, 49 K Y. 571. An agreement by a surety to pay the obligation of his principal and further sums to be contracted in the same matter, in con- sideration of the promisee continuing his work, — Held supported by a sufficient consideration. Taylor v. Guinan, 124 E". Y. Supp. 408; Beisler v. Silbermintz, 99 App. Div. 131. A past consideration may be valid, because there was an im- plied request, or a legal liability of the party to do some act which he omitted to do, and the plaintiff performed it for him, as if a parent should neglect to provide suitable food and cloth- ing for his children ; a stranger may furnish necessary articles to the child in such case, and recover pay for them, either upon the implied or legal liability, or upon a subsequent express promise to pay. A past or executed consideration, however, will not sus- tain a promise to do some act for which there is not an existing liability. Impeaching consideration. — A party may always show a want or a failure of consideration to invalidate a contract, with a single exception ; which is, the case of a negotiable promissory note, or bill of exchange, which has passed into the hands of a bona fide holder for value, before the note or bill became due; in such cases the want of consideration is no defense. Grimes v. Hillerir brand, 4 Hun, 354; Palmer v. Minar, 8 Hun, 342. The rights of a holder for value before maturity cannot be de- feated without proof of actual notice of the defect in title or bad faith on his part evidenced by circumstances. Hamilton National Banlc V. Upton, 100 App. Div. 105 ; Second National Bank of Morgantown v. Weston, 172 IST. Y. 254. Under the ISTegotiable Instruments Law, sections 50, 51, 54, absence or failure of con- sideration is a defense and the presumption that an indorsee is a bona fide holder for value is not rebutted by mere proof of ab- sence of consideration as between the maker and the payee. Jove- shof V. Eochey, 109 N. Y. Supp. 818. Laws 1909, ch. 43; Cons, Laws ch. 38. The rule is that the annexing of an oral condition to the deliv- THE LAW OF CONTEACTS. 41 ery of a promissory note is not a contradiction of the obligation. Smiih V. Dotterweich, 200 N. Y. 299 ; reversing 132 App. Div. 489, and where it is competent for the defendant to show under what conditions he delivered an original note, he may be permit- ted to show that renewal notes were affected by the same condi- tion, lb. And a promissory note may be delivered upon a con- dition the observance of which is essential to its validity as be- tween parties to the paper itself. Nihlock v. Sprague, 200 N. Y.^ 390 ; reversing 134 App. Div. 910. To the exceptions above stated should be added the statutory ex- ception before noticed in respect to agreements made without con- sideration for the purchase, sale, transfer or delivery of certifi- cates or evidences of debt issued by the United States, by a State,, or a municipal or other corporation, or of any share or interest in the stock of any bank corporation or joint-stock association in- corporated or organized under the laws of the United States or of any State. See Laws of 189Y, ch. 417, § 22. It would be idle to attempt to impeach the consideration of such an agreement, as the statute makes it valid without any consideration. But in every other case, a total want of consideration, or an entire failure of consideration, is a perfect defense to an action upon any eon- tract, whether verbal or written, or even if sealed. Sealed con- tracts could not formerly be impeached for want of consideration,, though they might for fraud. But the statute has now placed all contracts upon the same footing so far as impeaching the consider- ation is concerned. Code Civ. Pro., § 840 ; Baird v. Baird, 81 Hun, 800; Home Ins. Co. r. Watson, 59 IST. Y. 390; Anthony v. Harrison, 14 Hun, 74 N. Y. 613. Gifts. — A gift may be defined as a voluntary transfer by one- person to another, without any consideration or compensation therefor. To make it valid, the transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it. A gift must be consummated by such a delivery by the donor to the donee as will place the subject of the gift with- in the dominion and control of the latter, with intent to transfer the title to him. Gray v. Barton, 55 IST. Y. 68. When this has. been done, the title is transferred as effectually as by a sale or as- signment. The general subject of gifts will be considered in another chap- ter. 42 THE LAW OF CONTRACTS. § 5. Assent of the Parties. To the existence of every express contract it is essential that there be a mutiial assent of the parties, or, in other words, an offer upon the one part and an acceptance or consent to the offer upon the other. The motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract. Fitch v. Snedaher, 38 N. Y. 248. It is essential to the assent that the offer of the one party has been brought to the knov?ledge of the other. There can be no assent by a party to an offer of which he has not heard. Ih. But in case of written contracts it is pre- sumed that a party who executed it, whether able or unable to read, knew its contents. McDonald v. liancoch Mut. Life Ins. Co., 17 App. Div. 16. The fact that it was understood that the contract, all of the substantial terms of which were agreed upon, should be reduced to writing, which was not done, does not cause it to be unenforceable, in the absence of a positive agreement that it should not be bind- ing until so reduced to writing and formally executed. DisJcen v. Tlerter, 73 App. Div. 453; citing Sanders v. Pottlitzer Bros., Fruit Co., 144 IST. Y. 209. And it was held, where an assignment of a claim for rent, executed on a typewritten form, in which the assignee's name was in script, that proof was not required on the part of the plaintiff suing thereon, to show that his name was writ- ten in before the execution of the assignment. Rosenhloom v. Finch, 38 Misc. 818, 76 W. Y. Supp. 902; citing Tillou v. Clinton & Essex Mut. Ins. Co. 7 Barb. 564. A contract which is formed by a proposal signed by a party and an acceptance thereof signed by the other party, is binding on both ; and if the proposal omits any portion of a verbal agreement between the parties, the latter should have insisted on a correction thereof before signing such ac- ceptance. Happel V. Rosenthal, 103 'N. Y. Supp. 715. The parties must assent to the same thing in the same sense. Suydam v. Clark, 2 Sandf. 133 ; Farmer v. Medico-Legal Journal Association, 26 St. Eep. 940 ; 7 N. Y. Supp. 322. The acceptance •of an offer must be of the exact terms offered to make a valid con- tract. Marshal v. Eisen Vineyard Co. 7 Misc. 674 ; 58 St. Rep. 375 ; 28 N. Y. Supp. 62 ; Jackson v. Rode, 7 Misc. 680 ; 58 St. Eep. 362 ; 28 N". Y. Supp. 147. Where, in an action for breach of a contract of sale of 100,000 yards of sheeting to be furnished in instalments at stated intervals, it appeared that defendant re- THE LAW OF CONTEACTS. 43 turned the original memorandum of sale on the ground that it was erroneous, and that a second memorandum furnished enlarged the amount of the original agreement and changed the terms of pay- ment, and thereupon the defendant canceled the order given, it was held that no contract had heen consummated. Juillard v. Trohie, 139 App. Div. 530. If one party does not accede to a promise as made, the other party is not bound by it. Tuttle v. Love, 7 Johns. 470. To constitute a binding contract the minds of the parties must have met upon every material provision contained in it, whether of primary or of secondary importance. Sanders v. Pott- IHzer Bros. Fruit Co. 53 St. Rep. 645. An instrument for the sale and purchase of a business for $500 down, etc., "balance to be agreed upon later," does not of itself constitute a contract, as it fails to show a meeting of minds, and plaintiff is entitled to re- cover the $500 in the absence of a showing that in bad faith she neglected to reach an agreement as to the balance. Muller v. Idler, 126 App. Div. 366 ; citing Mayer v. McCreery, 119 IST. Y. 434; as to what amounts to an acceptance of a proposition, set Brown v. Railroad Co,. 44 E". Y. 79. Where the bought and sold notes delivered by a broker to the respective parties on a sale of produce differ in a material point, no contract is effected between the parties. Suydam v. Clark, 2 Sandf. 133 ; Peltier v. Collins, 3 Wend. 459 ; Davis v. Shields, 26 Wend. 341. A proposition which is made by one party, but which is not ac- cepted by the other as proposed, is no contract. If a proposition is made and not accepted, but a modiiied acceptance is proposed, there will not be any contract unless the modified proposition is accepted by the party who made the first proposal. Schenectady Stove Co. V. HolbrooJc, 101 IST. Y. 45 ; Maliar v. Compton, 18 App. Div. 536 ; Barrow Steamship Co. v. Mexican Cent. Railway Co. 134 K Y. 15 ; Sidney Glass Works v. Barnes & Co. 86 Hun, 374; Myers v. Trescott, 59 Hun, 395 ; Hart v. Thompson, 10 App. Div. 183. Where one party proposes by mail a contract with another residing at a distance, and the latter accepts it and deposits his acceptance by letter in the post-office, addressed to and to be trans- mitted to the former, the contract is complete. The contract must be carried out, and becomes mutually obligatory upon both parties and a revocation of the proposal or a notice of its withdrawal takes effect only if received by the offeree before the mailing of the ac- ceptance. SteinrOray Drug Co. v. H. Michelsen Co. 116 IST. Y. Supp. 789. A modified or qualified acceptance will be treated as 44 THE LAW OF CONTRACTS. a rejection of the offer. The validity of an agreement depends upon the fact that the parties to it give their free and full assent to all the terms of it ; and, therefore, if there is any misunderstanding as to any material portion of it, there vcill not be any contract. This is to be understood, however, in relation to the fact that the parties know ivhat facts or stipulations they are agreeing to, not that they fully comprehend the effect or legal liabilities of their engagement. Juillard v. Trohie, ante. There can be no legal assent, unless there is legal capacity to make a contract. The assent must go not only to all the terms of the proposed con- tract but also to the contracting parties. If a person is led to be- lieve by the agent for the other party that he is contracting with an established firm, when in fact the agent represents a corporation engaged in the same business under the same name, there is no meeting of minds and no contract. One who enters into an execu- tory contract for the future sale and delivery of property has an absolute right to know with whom he is contracting. Consumers' Ice Co. V. Webster, Son & Co. 32 App. Div. 592. A contract for the purchase of goods which were to arrive by a vessel called the "Peerless," will not bind the purchaser to take the goods if they are brought by an other vessel called by the same name and of which he had no knowledge, especially when the latter vessel does not arrive until after a two months' later period than the former one by that name. Baffles v. WichelhauSj 2 Hurlst. & Colt, 906. The general rule that a party is not bound by the terms of a con- tract to which he does not assent is well settled. But if a party to a contract at the time he executes it, so conducts himself as to lead a reasonable man to believe that he understands and assents to its terms, and the other party, so believing, executes and performs it on his part, the former, whatever may have been his real intentions on executing the contract, will be precluded from asserting that he did not understand and assent. Phillip v. Gallant, 62 IST. Y. 256. Where a testator sometime prior to his death, made an oral agree- ment with the officials of a college that if it would establish a cer- tain professorship, he would execute a deed in trust of certain securities whereby the college would receive them after his death, and he executed what purported to be a deed of trust wherein he constituted himself trustee of the securities to pay the income to himself and several other persons during his life, and provided that after his death the college was to succeed him as trustee, and was THE LAW OF CONTEACTS. 45 to hold the securities for the purpose of paying certain annuities out of the income, and with the balance of the income to maintain the professorship, and the college during his lifetime established the professorship and incurred financial obligations which it could not repudiate, — Held, that irrespective of whether there was a valid declaration of trust, or gift inter vivos, there was a contract between the parties, which had been executed by the college fully on its part, and therefore it was entitled to the possession of the securities after the death of the testator. Robh v. Washington £ Jefferson College, 103 App. Div. 327; citing Trustees of Amherst College v. Bitch, 151 IST. Y. 282; Tabernacle Church v. Fifth Avenue Church, 60 App. Div. 327; Winne v. Winne, 166 IST. Y. 263. Nor is the general rule that it takes two parties to make an agreement and that their minds must meet, of universal application. The law sometimes steps in and makes agreements for parties which they did not mutually intend. If a wrong-doer converts property intending never to pay for it, an action will lie against him as upon a sale upon an implied promise to pay. So if a person receives the money of another intending never to pay it to the owner, an action for money had and received will lie against him upon an implied promise to pay. So if a tenant holds over after the expiration of his term the landlord may treat him as a tenant for another year upon the terms of the prior lease, not- withstanding the intention of the tenant to remain as a mere tres- passer. Schuyler v. Smith, 51 N. Y. 309. To any and all of these contracts implied by law upon the waiver of a tort, no assent of the wrongdoer is necessary further than that which the law conclusive- ly implies from his acts. Time of giving assent. — The parties may complete a contract by their mutual assent at the time of making the propositions. So they may make a contract in which the assent of one of the parties is not at once given. A party may propose certain terms by way of proposal for a contract, and he may offer to give the opposite party a definite term within which to accept or reject such pro- posal. The party to whom such proposal is made, may accept it at any time within the time limited for that purpose, unless the proposal is withdrawn before acceptance. And, if the proposal is not withdrawn, but is accepted by the party to whom it was made, within such limited time, the party 46 THE LAW OF CONTRACTS. proposing will be bound by the terms of the contract, from the time of such acceptance. The party may make it a condition that the proposed contract shall not be obligatory upon him until he receives a notice of its acceptance, or unless he receives such notice by a specified time ; but if he does not, the contract is binding on him from the time the acceptance is deposited for transmission to him by mail, although he never receives it. Accordingly, where merchants residing at Sackett's Harbor forwarded by mail to brewers at Poughkeepsie a proposed contract, signed by the former, to purchase and deliver to the latter barley, with a counterpart to be signed and returned to them, if they accepted the proposal, and the latter, on the receipt of the proposed contract, accepted it and signed the counterpart and deposited it in the post office at Poughkeepsie, in a letter of acceptance directed and to be transmitted by mail to the former at Sackett's Harbors, it was held that the deposit of the acceptance and counterpart in the post ofiice consummated the contract, and that it was obligatory on the parties making the proposal, although they never received the acceptance. Vassar v. Camp, 11 N. Y. 441 ; S. C. 14 Barb. 341 ; Mactier v. Frith, 6 Wend. 104. Where an offer is made by one party, closing with the words, "Let me know what you will do by return mail or by telegraph as it is getting late," an acceptance later than by return mail is not binding on the party making the offer. Batterman v. Morford, 76 ISr. Y. 622. A letter referring to a previous verbal proposition, stating its terms according to the understanding of the writer, accepting them, and requiring the party addressed to acknowledge his ac- ceptance in writing, does not constitute a contract, but is a propo- sition for a contract. Hough v. Brown, 19 N. Y. 111. An offer by letter is a continuing proposition until it is re- ceived, and for a reasonable time to answer it. But the proposal may be withdrawn at any time before acceptance, and such with- drawal or acceptance may be made by a written communication, though the acceptance will be complete when such letter of accept- ance is properly directed and mailed. § 6. Written Sealed Agreements. The jurisdiction conferred by the code upon justices' courts in- cludes actions upon every kind of contract, within the limitations. THE LAW OF COXTEACTS. 47 of its jurisdiction, -without regard to its form, or whether it is sealed or unsealed. But the law makes certain distinctions be- tween sealed and unsealed agreements which may materially in- fluence the mode of introducing proof and the procedure upon the trial. One of the most important distinctions between sealed agree- ments and those of other kinds, is that a sealed agreement need not show any consideration upon the face of it, because the seal implies or imports a sufficient consideration. In an action upon any contract, except one imder seal, it is important that the plaintiff should allege and prove that there was a legal and suffi- cient consideration for the defendant's promise, unless the case is one of negotiable paper, or an undertaking on appeal, or some similar instrument. In an action upon a sealed instrument, the production and proof of the execution and delivery of it is suffi- cient for the plaintiff in the first instance. But the seal is only presumptive evidence of a sufficient consideration and the defend- ant is at liberty to allege and prove that there was no considera- tion, which, if established, will be a perfect defense to the action. This is the rule in actions based upon executory contracts. Code of Civ. Pro., § 840 ; Wilson v. Baptist Education Society of Neiu York, 10 Barb. 308. Though in many respects the effect of a seal upon an instrument has by recent statutes and decisions been very much impaired, nevetheless a sealed instrument still retains in law certain charac- teristics peculiar to itself. It binds the parties, and only the par- ties. It is not permitted to show by parol that the apparent par- ties to it acted as mere agents for other parties. Peterson v. The City of New York, 194 1^. Y. 437 ; citing Denihe v. DeGraaf, 87 Hun, 61 ; Elliott v. Brady, 192 JST. Y. 221. But the consideration of a sealed instrument may generally be the subject of inquiry. Moloney v. Hudson River R. R. Co. 133 App. Div. 499. The burden of showing a want of consideration in an instrument under seal, is upon the party seeking to avoid performance on that ground. Howie v. Kasnowitz, 83 App. Div. 295. The stipulations or promises contained in a sealed instrument are called covenants. In some contracts there are covenants on the part of both parties ; one of them covenanting to do certain speci- fied things, while the other party covenants to do some other thing. In such cases each party is bound to perform the covenants which he has made according to their intention and spirit. In other 48 THE LAW OF CONTEACTS. cases, the covenants are all made by one party, as where one bor- rows money, and gives a bond which contains a covenant for its repayment. There are some rules in relation to covenants which ought to be well understood, and which must be observed whenever an action is brought for the breach of a covenant. Of course, it is well understood that no action will lie unless there has been such a breach. But it is not always easy to detetmine whether such a breach has been committed; and this cannot be determined with- out some knowledge of the rules of construction which relate to covenants. Whenever either of the parties is bound to do some act before the other is under any obligation to perform his cove- nants, the performance of such act, which must be first done, is called a condition precedent; and the reason is, because the doing of that act is a condition which precedes a right to call upon the other party to do anything. When the covenants are such that neither of the parties is bound to do anything as a condition precedent to a performance by the other, the covenants are said to be independent j which is, that each party is bound to perform his covenants whether the other does so or not. Whenever the acts or covenants of both parties are to be per- formed at the same time, and neither of them can maintain an action against the other without alleging and proving that he has performed the covenants on his part, the covenants are said to be mutual or dependent. In the case of mutual and dependent covenants, there is always a condition precedent to be alleged and proved by the party who brings the action. But in the case of independent covenants, and those cases in which the covenants are all independent, there never need be any condition precedent alleged or proved by the plaintiff. There may in the same contract be covenants, some of which are independent, and others that are mutual or dependent. Dey v. Dox, 9 Wend. 129, 133. And so there may be contracts in which there is a condition precedent, to be alleged and proved by one par- ty in an action brought by him, while no such allegation or proof is necessary if an action is brought by the other party; as, for in- stance, if A. covenants to build a house for B. by a specified time, and B. is bound to pay the contract price within ten days after the house is completed, and notice is given to him of such completion, and an action is brought by B. against A., for not building the house at the time specified, it is not necessary for B. to allege that THE LAW OF CONTEACTS. 49 he has done anything, or in other words, that he has performed any condition precedent. But, on the other hand, if A. should bring an action to recover the price for building the house, it will be necessary for him to allege and prove that he completed the house at the time specified, and that he gave the notice of ten days, etc. ; or, in other language, that he has performed the conditions precedent on his part. Another illustration will show clearly a case of independent covenants, as for example: If A. covenants to make some article for B., by the first day of the succeeding month, and B. covenants to pay A. a specified sum by the fifteenth day of the same month, and, if there is nothing else in the contract which makes either the act of making the article, or the act of payment, a condition precedent, then either party may bring an action against the other, after the time for the performance of the covenant on his part has elapsed, without alleging any perform- ance on the part of the party who brings the action. We have already seen that when covenants are mutual and de- pendent and they are to be performed at the same time, if either party sues he must allege and prove a performance, or tender of performance, of the conditions precedent upon his part. Some con- fusion has arisen from the failure to discriminate between the cases of independent covenants, and those of conditions precedent, and they have been frequently confounded together as being really the same thing. If there is a specified time at which each party is to perform his covenants, and the parties are not to perform their covenants at the same time, then the covenants of each party are independent, in the sense that either may sue without alleging a performance of his own covenants. But if one party is to perform an act by a specified day, and the other is not to pay for it until after the per- formance of the act, in such case the covenant of one party is inde- pendent, and that of the other dependent; because the promise to do the act is an independent promise, and, if not performed at the time, an action will lie against him, without any allegation of per- formance or tender by the other party. But the promise to pay is mutual and dependent, and if an action is brought for the re- covery of the payment, the plaintiff must allege and prove the per- formance of the act to be done on his part. It is thus seen that, although some of the covenants in the same contract are independent and others dependent, that does not, of itself, determine whether the performance of a condition 4 50 THE LAW OF COJSTTRACTS. precedent must be alleged. And there is but a single class of cases= in which the covenants are independent, in the sense that either party may sue the other without alleging the performance of anj) condition precedent, and those cases are when there is a time speci- iied in the contract at which each party must perform his contract without reference to any performance on the part of the other par- ty; and when each of the parties is to perform his covenants at a time diiferent from that of the other. In every other case the covenants of one party must be mutual and dependent, in the sense that he must allege and prove the performance of the conditions precedent on his part, if he brings an action; although it may be true that the covenants may be independent, in the sense that the other party may sue without alleging or proving the performance of any conditions precedent on his part. The reason of this is, that when a specified time is fixed for the performance of the covenants by one party, and no time is fixed for the performance of the other, and the mutual covenants are the consideration of each other, it is evident that one party is to do the act which he covenants to do before he is entitled to payment, and he must allege performance if he sues the other party ; but if the act is not done at the time specified, that will be a breach of the covenant, and an action will lie for such breach without any performance by the other party ; and this is so, because the party chose to covenant for the performance of his acts at a specified time, without mak- ing it a condition that the other party should do any act as a con- dition precedent to a performance upon his own part. A few of the numerous cases upon this subject will be cited by vray of illustration. A. and B. entered into a written agreement for the sale of lands by A. to B. ; and B. covenanted to pay the purchase-price for the land in five years from the date of the contract, together with annual interest and the taxes assessed upon it ; and A. covenanted that^ "after B. should have paid the above sums of principal and interest, at the time and in the manner specified, and should have performed the agreement above mentioned" that he would convey the land to B. by a good and suSicient warranty deed. A. brought an action to recover the purchase-money, but the complaint did not allege that he had delivered or tendered a deed to B. ; and the court held that no such allegation was necessary. Morris v. Sliter, 1 Denio, 59. In this case the covenant on the part of B. was inde- pendent, and he was bound to perform it at the time and in the THE LAW OF CONTRACTS. 51 manner agreed "without reference to any act which A. was to do ; j'.nd whenever the time passed for the performance of his cove- nants to pay, B. was liable to A. for' the purchase-price. But if im action had been brought by B. for a specific performance of the agreement by A. it would have been necessary for B. to allege that he had paid the money then, at the time, with interest and taxes, or that he had tendered it because the covenants of A. were de- pendent and he was not bound to give the deed until after the money was paid, etc. This case, therefore, is a good illustration of the rule that cove- nants may be independent on one side and dependent on the other side, even in the same contract. And it also shows that, although some of the covenants may thus be dependent, and others inde- pendent, in the same contract, yet, if there is a condition precedent to be performed by either of them, such performance must be al- leged ; while the party who is not bound to perform such condition need not allege a performance, etc. By articles of agreement, A. covenanted to sell a lot of land to B. at a certain price per acre, and to have the same surveyed by an individual named, and on a certain day to exhibit to B. a certificate of a clear, unencumbered title to the premises and to execute a conveyance at that time ; and B. was, at the same time, to give his bond for the purchase-money, payable at a future time, and a mortgage covering the premises purchased, and other lands owned by B., of which he was to ex- hibit a like certificate of title. In an action by B. against A., for non-performance of covenant, it was held that the covenants were dependent, and that B. must allege a performance of the condi- tions precedent on his part. Williams v. Healey, 3 Denio, 363. In this case the covenants were to be performed at the same time, and were, therefore, mutual and dependent, and neither par- ty could maintain an action without alleging performance, or ten- der, on his own part. The court said, at page 367: "If the vendor sues for the consideration money, he must aver a tender of such deed, as by the terms of the contract he was to give. If the action is by the vendee against the vendor, for not conveying, the plaintiff must aver a tender of the consideration money before suit brought." The same rules apply to a sale of personal prop- erty, or choses in action, or for the performance of labor or serv- ices. In determining the question of the dependence or independ- ence of covenants in contracts for the sale of real estate, the inten- 62 THE LAW OF COl^TRACTS. tion of the parties, when properly ascertained, is to control. In contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary inten- tion appears. Glenn v. Bossier^ 156 N. Y. 161. In an executory contract for the sale of an article to be paid for on delivery at any time within a certain period, the obligations of the one party to pay, and the other to deliver, are mutual and dependent; and in an action by the seller for the price, it is not enough simply to show the default of the purchaser; he must show that he was ready and offered to deliver the goods. Which- ever party seeks to enforce the contract against the other, must show performance or a tender of performance on his part. Dun- ham V. Mann, 8 N". Y. 508; 8. C. 4 E. D. Smith, 500; Kelley v. Upton, 5 Duer, 336. To sustain a recovery upon a special contract for work, per- formed, a complete or substantial performance must be shown, and a judgment which shows from its amount that it was not in- tended to be based upon substantial performance will be reversed. Krombach v. Teilebaum, 90 E". Y. Supp. 367. And a contractor has no right to substitute his own judgment for the stipulation of the contract, or to recover on the basis of a complete performance, when he wilfully and intentionally used inferior and less expen- sive materials in the place of those agreed upon. Schultze v. Ooodstein, 180 N. Y. 248. If a contract is substantially per- formed, that is a performance, and the question of whether or not there was a substantial performance, is one for the jury. Rcumstedt v. Broolcer 113 App. Div. 45 ; but see Wilmerding v. Feldman, 98 IST. Y. Supp. 688. A party to a contract cannot get the benefit of a past performance, and then refuse to perform the other obligations imposed upon him. Speare's Sons Co. v. Casein Co. 122 App. Div. 22. It is a question of intention, whether the several parts of a con- tract, made at one and the same time, are to be taken distributively and are independent ; or whether entire performance, by one par- ty, of all the stipulations on his part, is a condition precedent to the right of recovery against the other party in respect to a portion of the contract which he has fully performed. In arriving at such intention, it is to be assumed that goods are not to be delivered without payment, when there is no provision for a credit. The plaintiff, in one agreement, contracted to deliver forthwith a quan- tity of dressed pork to the defendant, for a certain price, and also THE LAW OF CONTEACTS. 53 to sell him, upon their arrival, at a different price, a number of live hogs, then on their way and expected in a few days ; no stipu- lation being made as to the time of payment for either. The pork was delivered, but the plaintiff violated his contract by not deliver- ing the live hogs, and it was held that this did not preclude him from recovering the price of the dressed pork, subject to recoup- ment for the defendant's damages from the breach of contract as to the live hogs. Tipton v. Feitner, 20 N. Y. 423. In this case it will be noticed that the court held that each parcel was to be paid for on delivery; and, therefore, when one parcel was de- livered, the seller was entitled to his money for that part of the sale, whether the balance was delivered or not. The case differs, therefore, from another class of cases, in which the seller agrees to deliver the whole of a specified quantity before he is entitled to any pay ; for, in such cases, he must deliver the entire quantity before he can recover any portion of the purchase-price, notwith- standing he may have delivered nearly the whole quantity. Full performance is a condition precedent in such cases; and no re- covery can be had until the delivery of the entire quantity. Champlin v. Rowley, 13 Wend. 258; 8. C. 18 Wend. 187; Mead V. Degolyer, 16 Wend. 632. Where, in a contract for the erection of a building upon the land of another, performance is to precede payment and is the condition thereof, and the builder has substantially failed to per- form on his part, he can recover nothing for his labor and ma- terials, notwithstanding the ovrner has chosen to occupy and enjoy the erection. Mere occupation of a building in such a case, is not a waiver of strict performance, but the question of waiver is one of intention, depending on all the circumstances, of which occu- pancy may be one. Smith v. Brady, 17 !N". Y. 173 ; Cunningham V. Jones, 20 IST. Y. 486 ; Bpence v. Ham, 27 App. Div. 379 ; Yan- derzee v. Herman, 35 St. Eep. 778 ; 13 IST. Y. Supp. 164. But where the builder has, in good faith, intended to and has sub- stantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract-price, less the damages on account of such de- fects. Phillip V. Gallant, 62 IST. Y. 256; Johnson v. De Peyster, 50 ]Sr. Y. 666 ; Olacius v. Blaclc, 50 N. Y. 145 ; Nolan v. Whitney), 88 IST. Y. 648; Byan v. Voelki, 26 Misc. 840; 56 N. Y. Supp. 1065; Crouch v. Qutmann, 134 IS. Y. 45; Woodward v. Fuller^ 80 K Y. 312 ; Spence v. Ham, 27 App. Div. 379. 54 THE LAW OF CONTRACTS. An agreement provided as follows: "I will deliver John Hig- gins 25,000 pale brick, on the dock at East Troy for $3 per M, and 50,000 hard brick at the same place, at $4 per M, cash. E. W. Baker, Coxsackie." J^ot long after this agreement, the plaintiff delivered to the defendant at Troy, under the written contract, a cargo of brick, consisting of 10,500 hard, and 10,500 pale brick, and demanded payment for that quantity, which the defendant refused until the whole was delivered. It was held that the con- tract was entire, and that the whole 75,000 bricks must be de- livered before an action could be maintained. Baker v. Iliggins, 21 N". Y. 397. It was also held that parol evidence was not admis- sible to show that the parties intended that payment should be made for each parcel of the brick, as they should be delivered. Ih. But where a party sold 1,000 bushels of barley, at a stipulated price, and to be delivered at a specified place, and it was to be paid for as it was delivered, it was held that the seller was entitled to payment for each load as it was delivered, and that a refusal by the buyer to take and pay for each load, as it was tendered, was a breach of his agreement. And it was also held that, although the seller had repeatedly delivered loads without payment, that fact was no waiver of the right to demand payment for each load. Gardner v. Clarlc, 21 IST. T. 399 ; Pratt v. GuLich, 13 Barb. 297. The same rule applies to contracts for labor and service. And if a party agrees to work a year for a given price he must perform the whole year's work before he can recover any part of his pay, because the contract is entire and performance is a condition precedent to a right of recovery. Turner v. Kouwenhoven, 100 ]!^. Y. 115, 119. But if a man agrees to work a year for another, at a specified price per month, and by the terms of his contract he is to be paid each month's wages at the end of each month, he may sue for and recover the amount which is due at the end of each month, before the end of the year ; because the principle is pre- cisely that involved in the case of the barley, last cited. Gardner V. Clarlc, 21 IST. Y. 399, and like the case of Tipton v. Feitner, 20 N. Y. 423. But, in such a case, if the laborer should quit the service of his employer before the end of the year, the latter would be entitled to recoup out of his wages such damages as were the result of such a breach of the contract. Tipton v. Feitner, 20 JST. Y. 423, 429. THE LAW OF C0:NTEACTS. 55 There is a class of cases in which it has been held that, either irom the express terms of the contract, or from its legal constrnc- tion, a full performance was necessary before any recovery could be had for any part of the wages. McMillan v. Vanderlip, 12 Johns. 165 ; Lantry v. Parks, 8 Cow. 63 ; Jennings v. Camp, 13 Johns. 94, and numerous other cases. The distinction to be observed is, whether the contract by its terms or by legal construction, requires a full performance of all its parts before any recovery can be had, or whether the contract by its terms, or by legal construction permits a recovery for a part of the labor before a full performance. If a full performance is necessary then no recovery can be had before that is done. If, on the contrary, a part is to be paid before a full performance then there may be a recovery for each part as it becomes due and payable. There is one important qualification of the rule that there must be a full performance of the contract when that is the agreement, and that is, that in all contracts to perform labor or to render personal services the law will excuse a non-performance in case of sickness or other disability, or where death prevents such perform- ance. Wolfe, executor, &c. v. Howes, 20 ^N". Y. 197; 8. G. 24 Barb. 174; Fahy v. North, 19 Barb. 341; Lacy v. Getman, 119 jSr. Y. 109 ; Spalding v. Rosa, 71 1^. Y. 40. In case of siclmess or disability from causes other than death, this rule is limited to cases of skilled labor which one person cannot perform as well as another; and if one person agrees to perform a piece of work which he can do in person, or which he may employ another person to do, the rule will have no application. But in case of the death of either of the contracting parties, the obligation of the one party to render service, and of the other party to receive and pay there- for, terminate with the death of the party, whether the services contracted for fall within the class of skilled or unskilled labor. Lacy V. Getman, 119 N. Y. 109. So where by the terms of a contract for work and labor the full price is not to be paid until the work is completed, and a complete performance becomes im- possible by act of the law, the contractor may recover for the work actually done at the full price agreed on. Jones v. Judd, 4 N. Y. 411. There are many cases in which a party has not performed his contract because the other party has consented to a change in its terms, or has requested such a modification ; and in all such cases, 56 THE LAW OF CONTRACTS. if the agreement to modify is a valid one, it will be a suflScient ex- cuse for the non-performance of the contract. But, in such cases, the excuse must be set up in the complaint, or evidence cannot be received to prove it. Oakley v. Morton, 11 N". Y. 26 ; Crandall v. Clarh, 7 Barb. 169. Though, -when sickness is the excuse for the non-performance of personal services, it need not be set up in the complaint, but may be proved in reply to a defense interposing the special con- tract. Wolfe V. Howes, 20 JST. Y. 197. § 7. Construction of Contracts. The general object and principles of construction. — It is essen- tial to the attainment of justice that every contract should be cor- rectly construed and firmly enforced. The construction of a con- tract, where its terms are conceded, is always a question of law: and it is therefore of the first importance that the rules of con- struction should be just, uniform and intelligible. When these rules are clearly defined, and conclusively or firmly settled, parties are able to determine what liabilities they will as- sume by entering into a particular contract, and they may there- fore act safely in relation to settled rules, while all would be un- certainty if the question of construction were one of fact instead of law. If the contract is in writing, the construction is deter- mined from the face of the instrument. As a rule the interpre- tation of written instruments is with the court as a question of law. See Brady v. Cassidy, 104 N. Y. 147 ; DwigJit v. Germania Life Ins. Co. 103 K Y. 341 ; Smith v. Dotterweich, 132 App. Div. 489. But where the interpretation depends upon the sense in which the words are used, or the sense in which the promisor had reason to believe the promisee understood them, a fact to be determined from the relation of the parties and the surrounding circumstances, it would seem that it becomes a mixed question of law and fact. It is not then a matter of interpretation merely, but the ascertainment of the minds and intents of the parties. White V. Soyt, 73 IST. Y. 505. And when a promise can be under- stood in more senses than one, it is to be interpreted in the sense the promisor had reason to believe the promisee understood it. Stanton v. Erie B. B. Co. 131 App. Div. 879 ; citing Gillett v. Bank of America, 160 K Y. 549 ; White v. Hoyt, 73 IST. Y. 505. So if the agreement is by parol, and the parties disagree as to its THE LAW OF COi^ TRACTS. 5T terms, it ■will be a question of fact wliat the agreement really was,. though when that is ascertained the construction of the agreement will still be a matter of law. When technical terms, or words used in some peculiar sense, are employed in making contracts, it is- sometimes the case, that evidence is admissible on both sides, for the purpose of ascertaining the true meaning of those words or terms. And the determination of their actual sense and meaning^ is a matter of fact; but when the true meaning is established, the construction of the entire contract, including those words or terms,, is a matter of law. On of the principal objects of the law is, to enforce the perform- ance of contracts, or to give damages for the non-performance of them. And one of the first duties of the court in each case is, to- ascertain what the parties themselves intended ; and when that it!- done, the law gives effect to the intention by compelling a perform- ance of the contract, or by giving damages as a substitute. It is to- be understood, however, that the agreement is a legal one, for the law will not give effect to an illegal contract, nor give damages for the breach of it. So, too, the construction must be in accordance with the terms of the agreement, and not merely in accordance with what either or both of the parties may have really intended, if the case is such that the actual intention differs from that ex- pressed in the agreement. If an agreement is made in clear and explicit terms, it must be construed and enforced according to those terms, and not according to the intention of the party when that differs from the agreement actually made. One of the first principles of construction in relation to written instruments is, that no violence shall be done to the rules of lan- guage, or to the principles of the law. And the same rule obtains in relation to oral contracts, when their terms are clearly ascer- tained and settled. If a contract provides for the sale of "horses,"^ no court would construe the contract in such a manner as to de- clare that it meant a sale of "oxen." Where it is obvious, however, that the terms used are such as to. include other words which denote the same thing, then such a con- struction may be adopted as will carry into effect the intention of the parties. As illustrations of this, the term "men" will be held to mean "mankind," and to include "women;" and the word "horse" may also be construed to mean "mares." State v. Dunna- vant, 3 Brev. 9. And see Packard v. Eill, 7 Cow. 434: ; 8. C. ^ Wend. 375. 58 THE LAW OF COXTEACTS. An agreement by a manufacturer, to make and finish certain specified goods, "as soon as possible," means within a reasonable time, due regard being had to the manufacturer's means, his en- gagements, and the nature of the articles. Atwood v. Emery, 1 C. B. ISr. 110. In giving construction to a contract, its subject-matter ought to be fully and attentively considered. There are many words which have one meaning in ordinary narration or composition, and quite another when they are used as technical words in relation to some special subject; and it is obvious that, if the contract relates to such special subject, then the words must be supposed to have been used in this specific and technical sense. So for the purpose of determining the true construction of a contract, it is proper to take into account the situation of the par- ties, and of the property which is the subject-matter of the con- tract, as well as the object and intention of the parties in making the agrement, for the intention is always carried into effect, so far as is consistent with the principles of law, and the rules of lan- guage. Browne v. Paterson, 36 App. Div. 167; Smith v. Kerr, 108 'S. Y. 31, 3Y ; Blossom v. Griffin, 13 N. y. 569 ; Griffiths v. Hardenhergh, 41 IST. Y. 464 ; Field v. Munson, 47 'S. Y. 221 ; Whites Bank v. Myles, 73 N". Y. 335 ; N. Y. & N. H. Sprinkler Co. V. Andrews, 38 App. Div. 56; 55 K Y. Supp. 1020; Coleman V. Beach, 97 N. Y. 545, 553, 554. The practical construction put upon a contract by the parties to it is sometimes almost conclu- sive as to its meaning, and there is no surer way to find out what the parties mean, than to see what they have done. Nicoll v. Sands, 131 IST. Y. 24; Fox v. Coggeshall, 95 App. Div. 410. In the construction of contracts, it is the duty of the court to put it- self as near as may be in the situation of the parties, and from p. consideration of the surrounding circumstances and the oc- casion and apparent object of the parties, determine the meaning and intent of the language employed in framing their agreement. Smith V. Kerr, 108 X. Y. 31 ; Soloman Tobacco Company v. Cohen, 95 App. Div. 297. Where the language of a contract is ■direct and explicit, and its meaning is clear and unambiguous, there is no room for construction, and nothing for construction to do. Hill V. Hibemia Ins. Co. 10 Hun, 26 ; Walker v. Tucker, 70 111. 527. ISTo court will defeat the express stipulations of the par- lies by mere construction. And where a contract does not ex- press the true intention of the parties, some other remedy must THE LAW OF CO^^TEACTS. 59 "be sought than that of construction. Schoonmaker v. Hoyt, 148 l!i. Y. 425, 431 ; McCluskey v. Cromwell, H N. Y. 593, 601. If the words employed convey a definite meaning, and there is no ■contradiction or ambiguity in the different parts of the same in- strument, then the apparent meaning of the instrument must be regarded as the one intended. Ih. In the construction of con- tracts, the primary test as to their meaning and effect is the inten- tion of the parties as expressed therein. Gail v. Gail, 127 App. Div. 892. And where a natural meaning can be gathered from a •contract, the court will not add words to it to help out a doubtful construction. Klauder v. C. V. G. Import Co. 113 E". Y. Supp. 716 ; Citing Schoonmaker v. Hoyt, 148 N. Y. 425 ; Christopher St. Ry. Co. V. Twenty-Third St. By. Co. 149 N. Y. 51; Bedell v. Edgett, 120 App. Div. 451. There are many instances in which mistake or fraud in making a contract will relieve a party from performing it, but the rules ot construction have nothing to do with such a case. A construction which would make the contract legal, is preferred to one which would render it illegal ; and so, a construction which would render the contract operative, is preferred to one that would render it null and void. Archibald v. Thomas, 3 Cow. 284, 290 ; Belden v. Burke, 72 Hun, 51, 83 ; HoUs v. McLean, 117 U. S. 567 ; Bank of Silver Creek v. Talcott, 22 Barb. 550 ; Union Trust Co. v. Owen, 77 App. Div. 60. Where an instrument under seal con- tains a recital of the fact of the truth on which the validity of the instrument depends, the recital, on the contract created by the in- strument becoming executed, is conclusive, in the absence of a reformation of the instrument on the ground of mistake. Altman V. McMillin, 115 App. Div. 234. So if there is doubt or uncer- tainty as to the meaning of the language employed, the court for the purpose of construction will seek the intent of the parties, and will not give to it such interpretation as would make the contract unreasonable and place one of the parties entirely at the mercy of the other. Little v. Banks, 77 Hun, 511, 517 ; Russell v. Allerton, 108 K Y. 288 ; Jugla v. Trouttet, 120 N. Y. 21, 28 ; WHght v. Reusens, 133 N. Y. 298, 305 ; Pollock v. Penn. Iron Works Co. 13 Misc. 194; 68 St. Eep. 215; 34 K Y. Supp. 129; McEenzie V. Decker, 94 'N. Y. 650. And in interpreting a contract of sale, the courts will not adopt a construction which will place the buyer at the mercy of the seller, unless compelled to do so by the lan- guage used in the contract. Sanford v. Brown Bros. Co. 134 App. 60 THE LAW OF CONTEAOTS. Div. 652 ; citing Schoellkopf v. Cocutsworth, 166 N. T. 84, The- law always endeavors to give a just and rational construction to all contracts, and in relation to the words or language used, the legal- presumption is in favor of the comprehensive over the restricted, the general over the particular, and the common or ordinary over the unusual sense or meaning. But this rule is subject to another familiar rule, that if it be left in doubt in view of the general tenor of the instrument, and the relation of the contracting parties, whether given words were used in an enlarged or restricted sense, other things being equal, that construction should be adopted, which is most beneficial to the promisee. Hoffman v. ^tna Ins. Go. 32 K Y. 405, 413 ; Belden v. Burhe, 72 Hun, 51, 83. The rule is that where an agreement is prepared by one party to it, and the language used is wholly that of such party, it should be construed most favorably to the other party who had no part in preparing it but was compelled to accept it as it was, or not ac- cept at all. Industrial & General Trust Co. v. Tod, 180 N. T. 215 ; United Water Works Co. v. Omaha Water Co. 164 K Y. 41; Kratzenstein v. Western Assurance Co. 116 E". Y. 54. 'No Tiile of construction is more frequently called into operation, than that one which requires that the whole contract is to be considered in determining the meaning of any or of all its parts. Ripley v. Larmouth, 56 Barb. 21; Sattler v. Hallock, 160 JST. Y. 291, 298. The reason is obvious. The same parties make the entire con- tract, and they may naturally be supposed to have had the same purpose and object in view in all parts of it, and if this purpose is more clear and certain in some parts of it than in others, those which are obscure may be illustrated and established by the light of the others. A contract may be contained in several different instruments,. Vi'hich, if made at the same time, between the same parties, and in relation to the same subject, will be held to be but one contract, and the court will read them in such order of time and priority as will carry into effect the intention of the parties, as that may be gathered from all the instruments taken together. Mott v. Richt- myer, 5Y K Y. 49, 65 ; Marsh v. Dodge, 66 K Y. 533 ; Rogers v. Smith, 47 N. Y. 324; Treadwell v. Archer, 76 IST. Y. 196; Paine V. Jones, 76 IST. Y. 274, 278 ; Meriden Britannia Co. v. Zingsen, 48 ~N. Y. 247. This is especially the rule where the two instru- ments refer to each other {Green v. Schroeder, 13 Misc. 324), or where the contract is supposed to have been executed in dupli- THE LAW OF CONTRACTS. 61 AGENT. CHAPTER VI. THE LAW OF AGEI^CY, OR PRn^CIPAL AND AGENT. § 1. Authority of an Agent. Agency is founded upon contract, either express or implied. So extensive and so varied are the wants of business in a civilized and commercial society, that individuals are not able to transact all their affairs in person, and therefore they are compelled to employ others to assist them. The employer is the principal, and the employed the agent. It is a general rule, that whatever a man has power to do lawfully, in his own right or as owner, he may do by another as his agent, such as making contracts, selling lands or goods, or exchanging them, and the like. In construing the power conferred upon an agent there will be implied the power to follow the usual and customary conduct of the business. Peter- son V. The City of New York, 194 N. Y., 437. An agent hav- ing authority to rent premises for a year, has also the right to renew the lease for a year. Steuerwald v. Jackson, 123 App. Div., 569. Whatever the agent does, within the scope of his authority, is the act of the principal, who is entitled to its advantages, and who is also subject to its disadvantages or liabilities. And it is for this reason that principals may employ agents in the perform- ance of their business, when such agents have no legal capacity to make valid contracts upon their own account. Infants are not themselves personally bound by their contracts, unless it is for necessaries, etc. ; and yet they may act as agents for others, and make contracts which are as binding upon the principal as though the agent were of full age. It is the duty of the principal to protect his own rights, when he selects an agent to transact his business ; and if he neglects to do so, he will be compelled to bear the loss which may result from his own indifference or negligence. Married women may act as agents for third persons, and so they may act as agents for their husbands, and if a husband permitss her to act in any particular business, he adopts and is bound by PKINOIPAL Am) AGENT. 231 her acts and admissions in reference to such business. Biley v. Suydam, 4 Barb. 222; Hopkins v. MollinieuXj 4 Wend. 465; Gates V. Brower, 9 N. Y. 205; Edgerton v. Thomas, 9 E". Y. 40. And this is the rule, even when the acts of the wife subject the husband to an action for a penalty. Marselis v. Seaman, 21 Barb. 319; Hasbrouck v. Weaver, 10 Johns. 247. A husband sued for necessaries furnished his wife, may show in defense that she was amply supplied with articles of the same character as those purchased, or that she had been furnished with ready money with which to pay cash therefor, and the question of her agency is one of fact, and is not a conclusion of law to be drawn alone from the marital relations. Wanamaker v. Weaver, 176 N. Y. 75 ; reversing 73 App. Div. 60. But a husband is not liable for necessaries furnished to his wife, who without just cause abandons him, and refuses his offer to support her at his home. Ogle v. Dershem, 91 App. Div., 551. Where a husband is bound to deliver up certain property, upon a ■demand made upon him, the wife is not such an agent, from the mere relation of vdfe, as will constitute a refusal by the wife to de- deliver such property a refusal by the husband. Livingston v. Stoessel, 3 Bosw. 19. A general agent is one who is authorized to transact all the business of his principal, or all his business of some particular kind, or at some particular place. The principal will be bound by the acts of a general agent, if the latter acted within the usual iind ordinary scope of the business in which he was employed, notwithstanding he may have violated the private instructions which the principal may have given him, provided the person dealing with such agent was ignorant of such violation and that the agent exceeded his aiithority. Munn v. Commission Co., 15 Johns. 44; Jeffrey v. Bigeloiu, 13 Wend. 518; National Union Bank of Watertown v. Landon, 66 Barb. 189 ; 45 N. Y. 410. The limitation of the authority of an agent to a particular business does not make the agency special ; it may be as general in regard to that as though its range were unlimited. Anderson v. Coonley, 21 Wend. 279 ; Cox v. Albany Brewing Co., 56 Hun, 489. A special agent is one who is authorized to do one or more specific acts, in pursuance of particular instructions or within restrictions necessarily implied from the act to be done. Where the agency is special, the principal is not bound if the agent exceeds his authority. CoTien v. Mincoff, 96 N. 232 PEINCIPAL AND AGEI^T. Y. Supp. 441. And it is the duty of every person who deals with a special agent, to ascertain the extent of the agent's authority before dealing with him. If this is neglected, such person will deal at his peril, and the principal will not be bound by any acts which exceeds the particular authority given. Martin v. Farnsworth, 49 N. Y. 655; Munn v. Commission Co., 15 Johns. 44; Beats v. Allen, 18 Johns. 363 ; Delafield v. State of Illinois, 26 Wend. 192; Michael v. Eley, 61 Hun, 180; Nester V. Craig, 69 Hun, 543 ; Joseph v. Struller, 25 Misc. 173. The rule is that a person dealing with an agent is bound at his peril to inquire and ascertain the extent of the agent's power and authority. Sexsmith v. Siegel-Cooper Co., 88 'N. Y. Supp., 925. And one who kaows that he is dealing with an agent is bound by the limitations of the agent's authority. Common- wealth Trust Co. V. Young, 122 App. Div., 502. A mere special employment to effect a sale does not confer upon the agent the authority to agree with the purchaser upon any possible, or even reasonable, terms which the agent may see fit to prescribe and the purchaser to accept. Michael v. Eley, 61 Hun, 180 ; Nester V. Craig, 69 Hun, 543. If goods are given to an agent to sell, and it is usual in the market to give a warranty on such sales, the law will presume that he has authority to warrant. But if the agent, with express authority to sell, has no actual authority to warrant, no authority can be implied where the property is of a description not usually sold with a warranty. Smith v. Tracy, 36 W. Y. 79. A mere selling agent for manufacturers cannot without authori- ty from them bind them by a warranty that the goods sold are "all wool." Ellner v. Priestly, 39 Misc., 535. An agent to pur- chase, pay for and ship produce, was held not authorized to make a resale with warranty of produce purchased, so as to bind his principal. Hogue v. Simonson, 94 App. Div., 139. A salesman authorized to sell goods at the store of his employer by showing the articles to prospective purchasers has no implied authority to give a warranty which is binding upon his employers, unless it is shown that it is usual in the market on the sale of that class of goods to give a warranty. Filler v. Fiser, 123 N. Y. Supp., 105. But, the authority of an agent to make warranties in con- nection with such sales may be inferred from the fact with other evidence, that circulars issued by the principal contain statements which are equivalent to the warranties. Levis v. Fope Motor Car PKINCIPAL Ai^D AGENT. 233 Co., 202 N. Y., 402. And there are no cases going to the extent of holding that an agent to sell a particular article has the right to warrant, not only the article which he then sells, but all of a similar kind which his principal may sell to the same purchaser. y^ait V. Borne, 123 JST. Y. 592. An authority given by a father to his son to accept, iu his name, a bill of exchange for $2,000, to be used for a particular purpose, will not warrant him in accepting a bill for a part of the amount, given for another purpose. Nixon v. Palmer, 8 1^. Y. 398. An agent who is commissioned by his principal to purchase a certain specific amount of property, is a special agent, and he has no more authority to purchase a smaller than he has to purchase a larger quantity of what he is commissioned to purchase; and where A. authorized B. to purchase five hundred shares of the capital stock of a mining company, and B., as such agent, pur- chased only one hundred shares, it was held that A. was not boTind to refund to B. the money which he had advanced for the purchase of such one hundred shares. Olyphant v. McNair, 41 Barb. 446. Authority to sell is not inferred from mere posses- sion, and even an innocent purchaser of goods will not acquire title where the owner did not know of such possession and the act of making the sale amounted to larceny. Goodwin v. Sommer, 97 ISr. Y. Supp., 960. An agent to solicit orders, or to sell goods not in his possession, has no implied authority to receive payment unless by inference from a prior course of dealing. Hahnenfeld v. Wolff, 15 Misc. 133; Eiggins v. Moore, 34 N. Y. 417. A person employed to sell a mortgage and apply the proceeds has no authority to fore- close the mortgage. Martin v. Moore, 3 App. Div. 416. An implied authority to receive payment does not include authority to compromise the claim. Sier v. Bache, 7 Misc. 165. And authority to receive payment of an obligation does not authorize the agent to receive it before it is due. Schermerhom v. Farley, 58 Hun, 66 ; Smith v. Kidd, 68 N. Y. 130. A real estate agent having authority to collect rents, has no authority to receive rent before it is due, and such payment does not discharge the tenant of liability. Bealty Transfer Co. v. Kimhall, 121 N. Y. Supp., 279 ; citing Smith v. Kidd, 68 N. Y., 130. An agent authorized to deposit money in a bank has no implied authority to draw on the account. Walker v. State Trust Co., 40 App. Div. 55. The general authority of a cashier of private bankers ceases upon 234 PEINCIPAL AA^D AGENT. their failure, and he has not, therefore, presumptive authority to deliver a note. Casale v. Guion, 116 IST. Y. Supp., 294. Where a mortgagee permits an attorney, who negotiates a loan, to retain in his possession the bond and mortgage after the prin- cipal is due, and the mortgagor, with knowledge of that fact, and relying upon the apparent authority thus afforded, makes a pay- ment to him, the owner will not be permitted to deny that the attorney possessed the authority which the presence of the securi- ties indicated that he had; and in case of the attorney's omission to pay over the money to his principal, any loss consequent upon his insolvency or otherwise, must fall upon the mortgagee rather than upon the mortgagor. Hatfield v. Reynolds, 34 Barb. 612 ; Crane v. Gruenwald, 120 1^. Y. 274. And see Central Trust Co. V. Folsom, 38 App. Div. 295. This rule comprises two elements: First, possession of the securities by the attorney with the consent of the mortgagee; and, second, knowledge of such possession on the part of the mortgagor. The mere possession of the securities by the attorney is not sufficient. Crane v. Gruenivald, 120 N. Y. 274. And see Douhleday v. Kress, 50 IST. Y. 410, 413. It has also been held that the fact that the original investment was made by the attorney or agent is an important element of the rule. Cen- tral Trust Co. V. Folsom, 38 App. Div. 295. The fact that the loan was made through the attorney is, of itself, insufficient proof of his authority to collect the principal where he has not been entrusted with the security. Smith v. Eidd, 68 JST. Y. 130. And the fact that the security was for a time left with the attorney to receive payments as they became due is not sufficient evidence of authority on the part of the attorney to receive payments after the owner has resumed or taken possession of the security. Wil- liams V. Walker, 2 Sandf. Ch. 325. It is incumbent upon a debtor who makes payment to an attorney to show that the securities were in the attorney's possession on each occasion when payments were made, and it is not incumbent upon the creditor to show notice to the debtor of the withdrawal of the papers from the possession of the attorney. Smith v. Kidd, 68 N. Y. 130 ; Crane v. Gruen- wald, 120 JSr. Y. 274; Brewster v. Carnes, 103 IST. Y. 556. Au- thority to receive the interest is not authority to receive the prin- cipal. Ih.; Central Trust Co. v. Folsom, 38 App. Div. 295. But the possession of the bond and mortgage by the mortgagee's attorney, together with an executed but unacknowledged satis- faction piece, will, in the absence of a satisfactory explanation, PEINCIPAL AND AGENT. 235 be conclusive as to his authority to collect the principal of the mortgage. O'LwugUin v. Billy, 99 App. Div., 99. Where an acceptance is made by one professing to act as the agent of the drawee under a special authority, the party receiving the bill is chargeable with notice of the extent of his power. Nixon V. Palmer, 8 N. Y. 398. And see Sage v. Sharman, Hill & Denio, 147; Rosdter v. Bossiter, 8 Wend. 494; Davenport v. Buchland, Hill & Denio, Y5; Batty y. Carswell, 2 Johns. 48; Coleman v. Garrigues, 18 Barb. 60 ; Beals v. Allen, 18 Johns. 363. Acting as clerk to a merchant does not authorize the clerk to sign the name of the principal to notes in his absence. Terry v. Fargo, 10 Johns. 114. An agent of a manufacturing corporation is not necessarily authorized to make a note on behalf of the corporation. To render such a note valid, as against the company, the powers of the agent must be shown. Benedict v. Lansing, 5 Denio, 283. And see Thurman v. Wells, 18 Barb. 500. The power to make and endorse negotiable instruments may be implied as a neces- sary incident of powers expressly conferred, as where the entire business or an entire transaction is entrusted to an agent and it be- comes necessary to make or endorse negotiable paper in order to effectually carry out the agency. Forges v. U. S. Mortgage & Trust Co., 135 App. Div., 484. Where the ovmer of a horse employed a person to sell him, or to exchange him for another horse suitable for staging, and the agent exchanged the horse for a span of ponies not suitable for staging, at the same time war- ranting the horse exchanged by him, it was held, in an action against the principal, upon the warranty, that he was not liable. Scott V. McOrath, 7 Barb. 53. A chauffeur in charge of an auto- mobile was held to have no implied or apparent authority to order permanent repairs, or any repairs other than such as were neces- sary to enable him to proceed upon his journey. Gage v. Calla- han, 109 ~S. Y. Supp., 844. And a superintendent of a truck- ing business has no implied authority to offer a reward for the recovery of stolen property. Buhenstein v. Frost, 116 IST. Y. Supp., 681 ; citing Thurman v. Wells, Fargo & Co., 18 Barb. 500. An agent may be appointed by a written sealed instrument, an unsealed written instrument, or by a verbal authority without writing. This authority may be conferred before any act is done by the agent, or it may be established by a ratification of acts after they have been done by one who assumed to be an agent, but who 236 PKINCIPAL AND AGENT. had no authority as agent at the time the act was done. If a conveyance or other act to be performed by an agent is required to be by deed, the agent's authority must be by deed; but if the- instrument or act would be effectual without a seal, the addition of a seal will not render an authority under seal necessary, and, if executed under parol authority or subsequently ratified or- adopted by parol, the instrument or act will be valid and bind- ing on the principal. Wood v. Wise^ 137 IST. Y. Supp., 1017. There are numerous cases in which one person may be bound by the acts of another, as his agent, by holding him out as such to the world, although no authority was really conferred upon such person. And so there may, sometimes, be an implied au- thority to do some acts not expressly authorized, from the very nature of the business in which an agent is employed. In most of the cases in which agents are employed, there is neither a sealed, nor even a written authority given to the agent. It arises from a verbal employment, or from the circumstances of the particular case. A few of the cases will now be noticed, which will show the application of these general rules. An authority to an agent to execute a deed or instrument under seal, must be con- ferred by an instrument under seal. But where an agent author- ized by parol to contract for his principal, executes an agreement in the name of his principal, under seal, such agreement is bind- ing upon the principal as a simple contract. Worrall v. Munuj. 5 K Y. 229. The relation of principal and agent is a voluntary relation, springing from a contract, to which the consent of the parties is essential. Barney v. Weed, 3 Sandf. 577. A public officer, not appointed or selected by the party whose process he executes, is not, by the receipt of such process, made the agent of the party. li. The party is not responsible, on the footing of principal and agent, for the acts of the officer, unless it is in those cases where special directions are given and followed. lb. A sheriff or mar- shal, to whom an execution against property is delivered to be served, does not thereby become the agent of the plaintiff in the full legal sense of the term. lb. A plaintiff is not liable to the publisher of a newspaper, for an advertisement of the sale of land, made by the sheriff or marshal, under the plaintiff's execution; where neither he nor his attorney employed the publisher, nor gave any special directions upon the subject. lb. There is no such privity of contract or of law, between the plaintiif in the PKINOIPAL AND AGENT. 237 lexecution and the publisher of the newspaper, as to render the former personally responsible for the publisher's bill for adver- itising. Ih. If a charter be granted to construct a private work, on condi- tion that the agents for executing the work shall be appointed by the State, an acceptance of the charter by the grantees will render the agents their own. Bailey v. Mayor of N. Y., 3 Hill, 531. A merchant, about to leave the city- of New York for Europe, executed a power of attorney to his clerk, empowering him "generally to conduct in his place and stead, his commercial business, and to sign his name whenever requisite or expedient in the transaction and conduct of such business as to the attorney should seem meet in his good discretion," and it was held, that the principal was liable upon bills of exchange drawn in his name by the attorney upon parties who had no funds of the principal in their hands. Dollfus v. Frosch, 1 Denio, 367. But a letter of attorney authorizing one to issue notes in the name of the prin- cipal, vsdll be construed as extending only to notes issued in the business of the principal or for his benefit. North River Bank v. Aymar, 3 HiU, 262. If the intent be that the attorney may issue notes for his own benefit, or for the benefit of a third per- son, the authority must expressly so declare. Ih. A naked power to do acts for a principal, and in his name, negatives all authority on the part of the attorney to act for the benefit of any one besides the principal; and persons dealing with the attorney, as such, are bound to notice this limitation. Stainer v. Tysen, 3 Hill, 279. If an agent or attorney transcends the limits of his author- ity, and the person with whom he deals has notice of this, suffi- cient to put him upon inquiry, he cannot charge the principal. lb.; North River Bank v. Aymar, 3 Hill, 262, 263. And see Mechanics' Bank v. N. Y., &c., R. R., 13 N. T. 599, 632, 633 ; Farmers', &c.. Bank v. Butchers', <&c.. Bank, 14 N. T. 631, 632 ; 16 N. Y. 137, 138, 142, 143. One person may, sometimes, be bound by the acts of another as his assumed agent, even where no authority was conferred upon such pretended agent. If one man by acts or words holds out to the world that another person is his agent, those persons who deal with such supposed agent on the faith of such representation or acts, may hold the professed principal liable for the acts of the assumed agent, provided they are within the authority professed. In such cases, the question is not, what authority the agent actu- 238 PEINOIPAL AND AGENT. ally had ; but what authority the person who dealt with such pro- fessed agent had a right to suppose he had from the representa- tion or acts of such professed principal. Johnson v. Jones, 4 Barb. 369. A principal is bound by such acts of an agent as a party dealing with the agent is justified in believing the principal has given him authority to do. Fatta v. Edgerton, 137 N. Y. Supp., 226. If a person authorizes another to assume the ap- parent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority; and the agent may bind his principal within the limits of the authority with which he has been apparently clothed. BridendecJcer v. Lowell, 32 Barb. 9 ; Douglas v. N. Y. Central, etc., R. B. Co., 105 App. Div., 65 ; Lesser v. Steindler, 110 App. Div. 262. But while a person may be charged as principal in consequence of his own acts or language, he will not be liable by reason of any false statements made by an agent as to the extent of his authority. The principal will be liable for the acts of his agent within the scope of his authority legally or actually con- ferred, or within the scope of the authority which his acts or words have induced another to believe the agent was clothed ; but if such third person deals with an agent in a matter beyond his authority, and on the faith of the agent's representations, such party must abide by such remedy as he can obtain against the agent, for the principal will not be bound, unless he subsequently ratifies the transaction. The principal is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent. Edwards v. Dooley, 120 N. Y. 540, 551 ; Conant v. American Bubher Tire Co., 48 App. Div. 327 ; Figueira v. Lerner, 52 App. Div. 216. Where an agent is in- trusted with authority, within a prescribed sphere of action, and is permitted, from day to day, without any interference on the part of the principal, to exercise the authority, third parties will not be affected by an understanding between the principal and the agent, that every act of the agent shall receive the express ap- proval of the principal. Medhury v. N. Y. & Erie R. B. 26 Barb. 564. Where the by-laws of a railroad company intrusted the general freight agent with the power of negotiating contracts for the transportation of freight, with the approval of the presi- dent, it was held, that this restriction should be construed as meaning, subject to the approval of the president, if he, on any PEIJSTCIPAL AJSTD AGENT. 239 occasion, should deem it proper to interpose, before the attempted execution or performance of the contract. But that if he did not think fit to interpose, and neglected to apprise the public that every special contract for the transportation of freight must be ratified by him, the company would be liable for the fulfillment of the contract. lb. Where the ofiicers of a railroad corporation were intrusted with the power of making purchases, and they, without express au- thority from the company, were in the habit of agreeing upon a price by a submission to arbitrators, and the awards in such cases were paid by the company's financial officers, under a general resolution to pay the amount they directed ; it was held, that the officers had power to submit the question of price to arbitrators, and that their award was binding upon the company. Wood v. Auhurn, &c. R. R. 8 N. Y. 160. In such a case, if the instru- ment of submission be one which, without seal, would bind the company, it is not invalid because executed by a subordinate agent under seal. li. So where a person, for a series of years, forged the name of his friend as the indorser of his notes and bills, with the knowledge of his friend, who, although judgments were ob- tained and executions issued against him in suits on such forged indorsements, never disavowed such acts until the person com- mitting the forgeries had absconded and fied from justice; it was held, in a case in which the indorser had been sued and had suffered a default, and attempted no defense until after the es- cape of the maker of the notes, that proof of these facts was admissible in evidence, and that from it the jury might imply an authority from the indorser to the maker thus to use his name. Weed V. Carpenter, 4 Wend. 219. A State agricultural society, previous to one of its annual fairs, issued and circulated a hand- bill, containing, among other things, these words: "Articles for exhibition should be carefully labeled with the owner's name and residence, and may be directed to Mr. J. P. P., Rochester, who will take charge of them, and will deliver them at the show grounds, if they are sent in time, and notice given." J. P. P. was the local secretary of the society, in Rochester, and as such aided in the preparations for the fair; and it was held, that the true construction of the handbill was, that J. P. P. had been appointed by the society to take charge of and deliver such articles as were labelled and directed as specified, if sent in time, by any of the usual public modes of transportation, and notice was 340 PEINOIPAL AND AGENT. given to him; and that no charge would be made to the owners or exhibitors for that service ; and also, that the society was liable to a person employed by J. P. F. to transport such articles from the railroad depot to the place of exhibition. O'Neil v. N. Y. State Ag. Soc. 19 Barb. 162. Where a clerk in a mercantile house has been accustomed to sign the name of the firm to ship- ping bills, with their knowledge, this will be sufficient evidence of authority to bind the firm, if such a bill is so signed by the agent. Dows v. Greene, 16 Barb. 72. An agent of a railroad company stated that the title of his office was superintendent, and that, as such, he had a general supervisory control over the whole line of the road, everything connected with the miming of the road being under his supervision and control, and that he paid money to drivers, conductors, and other persons employed Ijy him as superintendent, but had no direction over the treasury ; and it was held, that from this description of his powers it was not to be inferred that he was authorized by his office to arrange -and liquidate claims made against the company for the negligence of its servants in running its trains, or as agent to contract with third persons to repair or remedy the consequences of such neg- ligence; and that therefore the superintendent had no authority to bind the corporation to pay a physician or surgeon for his attendance upon a person who had been run over by a car and severely injured. Stephenson v. N. Y. & Harlem R. R. 2 Duer, 341. The existence of an agency cannot be established by proof that one person is reputed to be the agent of another. Perhins v. Stehhins, 29 Barb. 523. An agency to do some particular acts in relation to the discharge of the duties of an agent, will some- times be inferred from the nature of the employment of the agent. Where the authority of an agent was general in respect to a particular business, as for instance, the management of a theater, which was carried on by the defendant, and it appeared that, according to the habit and course of business, the agency of the plaintiff embraced the receipt and disbursement of the "moneys of the theater, and the raising of money to carry it on, when required; it was held, that the defendant was liable for money paid by the request of such agent, for the rent of the theater in which her business was carried on, and for which she was liable as lessee. Heame v. Keene, 5 Bosw. 579. There is no federal or state law which prevents an agent from taking security in his own name for the benefit of his principal. Slade v. Squier, 133 PEIIfOIPAL AND AGENT. 241 App. Div. 666. The defendant owned a steamboat, and his regu- lar business was the transportation of goods and merchandise thereon ; the plaintiff delivered to one A., who was the captain of such steamboat, and while he was in charge thereof, a trunk con- taining clothing, to be transported from Albany to New York, and it was held that the defendant was liable for the value of the goods stolen or unlawfully taken out of such trunk, while on the passage to New York, notwithstanding it was shown that the captain was not the general agent of the defendant for receiving freights, etc., and that there was an agent in Albany whose busi- ness it was to make such contracts in behalf of the defendant, where it did not appear that the plaintiff had any knowledge of that fact, or that the captain had no authority to receive freight. Witbeck v. Schuyler, 44 Barb. 469 ; 8. C, 31 How. 97. The plaintiffs, who were bankers in the country, and kept an account with the defendant, a bank in the city of New York, sent by express a sealed package of bank notes, directed to the cashier of the defendant; the package reached the city and was delivered by the express company to one S., who then was, and for some time had been, an assistant receiving teller of the bank, or had acted as such, and he gave a receipt therefor. The package was delivered to S. while he was at the receiving teller's desk, during a temporary absence of the receiving teller therefrom, and S. never delivered the package or its contents to the cashier, or to the bank, which never received the money; and it was held that the defendant must bear the loss, because, by permitting S. to remain behind the counter and act as assistant receiving teller, "this was sufficient to authorize the agent of the express company to pay the money to him as though he had been the receiving teller. Hotchkiss v. Artisans' Bank, 42 Barb. 517. But a corporation is not liable for the false representations vsrhich may be made by a transfer- clerk who has possession of the transfer books of the company, and who permits a third party to enter therein transfers of reputed stock, because this does not constitute such an apparent authority to make representations as to render the company responsible for the agent's misrepresenta- tions as to the ownership of stock. Henning v. New York & Nev Haven R. B. Co. 9 Bosw. 283. Nor does mere permission given W the agent to enter upon such books a transfer of reputed stock, ■where no new certificate is given, amount to a representation by 16 242 PEINCIPAL AND AGENT. him that the person making the transfer was the owner of any- genuine stock. lb. A general agent of an association engaged in running canal boats is not authorized to employ counsel on the credit of the asso- ciation, to commence and prosecute an action in favor of a servant of the association, for a personal injury done to such servant while engaged in the business of his principals. And where an assault and battery is committed upon such servant while in such em- ployment, the general agent has no authority to employ counsel to prosecute the assailants, and to charge the principal with such counsel fees. Cochran v. Newton, 5 Denio, 482. And see Beals V. Allen, 18 Johns. 363. Where the course of business between a merchant in the country and a merchant in town is such, that the country merchant transmits to his correspondent in town, his produce, and such other articles as he has to sell, and the merchant in town, in return, supplies him with such articles of merchandise as he deals in, and fills up his orders by procuring from other merchants on credit such articles as he does not deal in, and charges them to the merchant in the country, the latter is not liable to the seller for any articles thus procured, although he directs the purchase of an article which he knows the merchant in town does not deal in, and the seller is informed for whom the purchase is made, if the country merchant has funds in the hands of the merchant in the city, and has never authorized him to pledge his credit on the purchase of any articles thus ordered, nor recognized such act. The agency in such case is special, and without any authority to pledge the credit of the principal. Jaques v. Todd, 3 Wend. 83. An agent appointed to "take care" of personal property, and to give his principal notice of the existence of liens upon it, has no authority to make an agree- ment with a third person to purchase the property on account of his principal, at a sale to which it is exposed, to satisfy rent under a distress warrant. Brisbane v. Adams, 3 IST. Y. 129. A general power to defend a cause will not authorize the attorney to execute an appeal bond in the name of his client. Ex parte HoTbrooTc, 5 Cow. 35 ; People v. Judges, &c., 5 Cow. 34. Where an attorney in fact was employed to adjust or defend claims against an unincorporated association, he had no authority to pledge the credit of the individual members to pay an attorney to defend such claims. Kind v. Curtis, 121 IST. T. Supp. 323. An agent who has a discretionary power to sell goods and collect PEINCIPAL AND AGENT. 243 the price, has an implied authority to make any deduction from the original price that could have been made by the principal. Taylor v. Nusshaum, 2 Duer, 302. Money borrowed for a public purpose and on the credit of the county, by the agent of a board of supervisors, under its resolution, passed without any legal authority, but not in violation of public policy or of positive statute, may be recovered by the board, of such agent or his sure- ties. But where the agent exceeded the power thus conferred, and, by false representations to the lenders, obtained the loan of a larger amount than was authorized, and embezzled such excess, the sure- ties are not liable therefor to the county, although the board of supervisors afterwards voluntarily pay to the lenders the sums borrowed from them without authority. The lenders were bound to ascertain, at their peril, when the authority of the agent was exhausted; and the supervisors could not, by repaying to them money which bad never come to the use of the county, and for which it was not liable, extend the contract of the sureties to answer for the sums which he should borrow under their authority. Supervisors of Bens. Co. v. Bates, 17 N. Y. 242. The agents of a State, authorized to borrow money upon a sale of its stocks, cannot sell on credit, unless a special authority to that effect has been conferred on them. An unauthorized contract entered into by State agents, acting under limited powers, conferred by statute, cannot be ratilied by any acts of the governor or other officers, but only by the State itself. Though the mere silence of a principal for a very short period may, in some instances, amount to a pre- sumptive ratification of the acts of an agent, the rule does not apply where the principal is a State. Delafield v. State of Illinois, 2 Hill, 160; 8. C, 26 Wend. 192. The trustees of a common school district are a qvxisi corporation, and they have power, as the agents of the district, to employ teachers, and to give promis- sory notes in payment of such teachers' wages, which notes may be enforced against their successors in office in their official ca- pacity. Horton v. Garrison, 23 Barb. 176; and see Fister v. La Bue, 15 Barb. 323. A transfer of property by an agent, who exceeds his authority in a material point, passes no title to the thing delivered, and it may therefore be reclaimed by the principal. Bohertson v. Ketchum, 11 Barb. 652. And this is especially the case Avhere the person dealing with the agent knows that he is exceeding his authority, and both he and the agent attempt to 244 PKIJSTCIPAL AND AGENT. conceal the facts from the principal. li. And see Exchange Bank v. Monteath, 24 Barb. 371. It is not necessary, in order to authorize the inference of a general agency, that the person should have done an act the same in specie with the one in question. If he has usually done things of the same general character and effect, with the assent of his principal, that is enough. Commercial Bank, &c. v. Norton, 1 Hill, 501. It is a well-settled and elementary rule of law that a special agent with limited powers cannot bind the principal where he acts outside of the scope of his authority; but that rule is sub- ject to this qualification, that where an agent is intrusted to do a particular kind of business, he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business ; and his acts, as between his principal and stran- gers, in that particular line, will bind the principal, although he violates some private instructions given by his principal not known to the public. Cox v. Albany Brewing Co., 56 Hun, 489. The powers of an agent are -prima facie co-extensive with the busi- ness intrusted to his care, and are not narrowed by limitations not communicated to the person with whom he deals. An insur- ance company, establishing a local agency, must be held respon- sible to the parties with whom they transact business for the acts and declarations of the agent within the scope of his employment, as if they proceeded from the principal. Insurance Co. v. Wilkin- son, 13 Wall. 222. And where a foreign insurance company ap- points a general agent for a State, it will be presumed that he has powers delegated to him commensurate to the transaction of the business carried on by him, including the power to appoint sub- agents. Kuney v. Amazon Ins. Co. 36 Hun, 66. Incorporated companies, whose business is necessarily conducted altogether by agents, should be required, at their peril, to see to it that the officers and agents whom they employ not only know what their powers and duties are, but that they do not transcend those powers. Conover v. Mut. Ins. Co. of Albany, 1 !N. Y. 290. A person seek- ing employment from a corporation has the right to assume that a person at the office, who assumes to employ laborers, has au- thority to act in that capacity; and a jury may presume the authority in such a case from an act openly done in the iisual course of business at the office of the company, without evidence of actual knowledge on the part of the company or its directors, PEINCIPAL AND AGENT. 245 or of express ratification. Cox v. Albany Brewing Co., 56 Hun, 489. But the rule is that an assumed agent who has in fact no au- thority cannot bind a corporation by his acts claimed to be in its behalf, Avhere the only ground on which the party seeking to charge it relied, was his representation that he had authority. Leary v. Albany Brewing Co., YY App. Div. 6, and cases cited. Where a teacher was employed to teach a district school, by one of the trustees, after consulting with the others separately, and she taught pursuant to her engagement, with the knowledge of the trustees, and without objection on their part, it was held, that in an action for her wages, they could not allege that she was not legally employed. Fister v. La Rue, 15 Barb. 323. The district having availed itself of her services, will not be allowed to say that the original agreement was not made by a person legally authorized to contract. Ih. But when the contract is still executory, and nothing has been done under it, and the action is to recover damages merely for the non-performance, it is foi- the plaintiff to show a legal contract, binding upon the corpora- tion, lb. When a person is employed for a corporation, by one assuming to act in its behalf, and she renders services according to the agreement, with the knowledge of its officers, and without objection on their part, or any notice that the contract is not recog- nized, such corporation will be held to have sanctioned the con- tract, and will be compelled to pay for her services according to the agreement. lb. The law raises the same presumptions against corporations, in such cases, that it does against natural persons. lb. Instructions from a principal to his agent, which operate as private restrictions upon a general agency, do not affect persons dealing with the agent, in ignorance of them. Johnson v. Jones, 4 Barb. 369. And see Tradesmen's BanTc v. Astor, 11 Wend. 87. Where a principal, on being informed of a purchase made by his agent, in his name, does not deny the agent's authority to make the purchase, but merely complains of the manner in which the authority has been exercised, he will be held to have admitted the right of the agent to bind him. lb. If a principal intends to disaffirm a purchase made by another, as his agent, he must give notice of his dissent to the vendor, at once, and return the goods ; otherwise, he will be presumed to have as- sented to the purchase and to have ratified it. lb. The law will infer authority in an agent, as well from the general character of 246 PEIifCIPAL AND AGEN"T. the acts which he has been permitted to perform, as from a special written power. Exchange Bank v. Monteath, 17 Barb. 171. An agency may be presumed from repeated acts of the agent, if they are adopted and confirmed by the principal previously to the making of the contract in which the question is raised; and so such agency may be confirmed and established by a subsequent ratification of his acts. When one person assumes to act as the agent of another, but without naming the principal, the latter may adopt and ratify what has been done, and receive the bene- fit of the agreement, although such assumed agent had no previous authority. So on the other hand, if the alleged principal ratifies the transaction, and accepts and receives the advantages which may be derived from the contract, he will be bound by the con- tract and estopped from denying its validity. A subsequent rati- fication is equivalent to a prior authority. But the ratification of an unauthorized act of an agent, in order to bind the principal, must be with a full knowledge of all the material facts in the case. Seymour v. Wyclcojf, 10 E". T. 213 ; Baldwin v. Burrows, 47 N. T. 199 ; Adair v. Brimmer, 74 ~S. Y. 554; Whitney v. Martine, 88 K Y. 635, 540; King v. MacKellar, 109 IST. Y. 215; Smith v. Bradhurst, 18 Misc. 546 ; Munroe v. Judson, 82 Hun, 215 ; Trus- tees V. Boivman, 136 IST. Y. 521; Whitloch v. Washburn, 62 Hun, 369. So, a subsequent ratification by a principal of the unauthorized act of a person professing to act as his agent, in order to be valid must be made with a full knowledge of the facts affecting his rights. Nixon v. Palmer, 8 N. Y. 398. While authority of an assumed agent to make a purchase will be implied where the alleged principal has repeatedly recognized and approved of simi- lar acts, still a single act done under express authority is insufii- cient to justify the inference that the assumed agent has the ap- parent authority to subject the alleged principal to liability upon subsequent purchases made without actual authority. Smith Pre- mier Typewriter Co. v. National Hartel Light Co. 72 Misc. 405, 130 IST. Y. Supp. 136. The ratification by a principal of a pre- viously unauthorized act of his agent, or of one assuming to be such, operates per se as an adoption of the act of the agent, and not merely as presumptive evidence, that the act was originally done by the authority of the principal. Commercial Bank y. Warren, 15 IST. Y. 577. But a ratification of the unauthorized act of an agent, or of a stranger who claims to act as such, if it PEINCIPAL AND AGENT. 247 exists, must be found in the intention of the principal, either express or implied. If that intention cannot be shown, no rati- fication can be held to be established. Merritt v. Bissell, 155 iST. Y. 396. It is the duty of a principal to disavow the unauthor- ized act of his agent within a reasonable time after it comes to his knowledge, or otherwise, in some cases, he makes the act his own. Gairnss v. Bleecher, 12 Johns. 300; Viannay v. Barclay, 3 Cow. 281 ; Jervis v. Hoyt, 2 Hun, 637. But where one who assumed to act as the agent for another has no authority to do so, and is a mere volunteer, a failure to disavow his acts will not amount to a ratification, unless imder such circumstances as in- dicate an intention to do so. Merritt v. Bissell, 155 N. Y. 396. The acceptance of the benefits flowing from an unauthorized act of an agent may amount to a conclusive ratification of the unauthorized act. Where an agent, without authority from his principal, submits to arbitration, in his own name, controversies then existing between the principal and another person, and after an award has been made in favor of the agent, the principal takes an assignment of it, and then assigns it to a stranger, this is an adoption and ratification by the principal of the unauthorized act of the agent in making the submission. Lowenstein v. Mcin- tosh, 37 Barb. 251. So, where an agent authorized to loan the money of his principal, but not to take usury, loans the funds of his principal at a rate of interest in excess of that allowed by law, and both the sum loaned and the usury exacted are secured by one and the same mortgage, the acceptance of the mortgage by the principal, without explanation, and with knowledge that it is for a larger amount than the sum loaned, together with the receipt of the benefits of the usurious security for a number of years, is a ratification of the usurious contract and equivalent to a prior authority to make it. Bliven v. Lyridecher, 130 N. Y. 102. So, where a compromise has been effected and a release ob- tained from creditors, the debtor cannot have the benefits thereof, where such compromise and release were effected by his agent's negotiations with the creditors, without adopting all the represen- tations made by the agent in negotiating the compromise. Crcms V. Hunter, 28 N. Y. 380. So, an agent authorized to sell prop- erty must be presumed to possess authority to make such repre- sentations in regard to quality and condition as usually accom- pany such transactions, and if the agent has been guilty of making false representations in effecting the sale, the principal, by 248 PKINCIPAL AND AGENT. receiving the fruits of the bargain, adopts and is bound by the false representations of his agent, although ignorant thereof and intending no fraud. Mayer v. Dean, 115 N. Y. 556. A ratification of a part of an unauthorized transaction of an agent, or of one who assumes to be such, is a confirmation of the whole. Farmers' Loan, etc. Co. v. Walworth, 1 N. Y. 433; Fowler v. iV". Y. Gold Exchange Bank, 67 N. Y. 138 ; Coming v. Southland, 3 Hill, 552. But a ratification of one act of an un- authorized agent, which was beneficial to the principal for whom he professed to act, does not amount to a ratification of the sub- sequent act of the assumed agent, of which the principal was ignorant, and which was not a part of the act ratified or beneficial to the principal. The ratification of the unauthorized act of an agent does not extend to an instrument given by him which is not essential to the act ratified. Manning v. Keenan, 73 N. Y. 45. An authority by subsequent adoption relates back to the time of the original transaction, and is the same in law for all purposes as if given before. Lawrence v. Taylor, 5 Hill, 107 ; Houston v. Shindler, 11 Barb. 36. A principal should not be held to have ratified a contract made by an agent, unless it appears that he knew the terms thereof, and that acts from which a ratification is to be inferred, related to the performance of such contract. Roach V. Coe, 1 E. D. Smith, 175. If a broker has no authority to sell by sample, still the owners cannot affirm the sale made by him, and get an increased price on account of the warranty and keep it, and say they did not authorize him to make a warranty. Brower v. Lewis, 19 Barb. 574. And see SJiiras v. Morris, 8 Cow.. 60. Where the plaintiff having an account against the defendant, which was disputed by the latter to the knowledge of the plaintiff, entrusted a receipt in full to an agent, who delivered the receipt to the defendant, on being paid a part of the amount claimed, which money the plaintiff received from the agent, and then sued the defendant to recover the balance, it was held that the plaintiff, by receiving the money, ratified the act of his agent in delivering the receipt. Palmerton v. Hiucford, 4 Denio, 166 ; Armstrong V, Gilchrist, 2 Johns. Cas. 424. An alteration of a sealed instrument, given to secure the pay- ment of a sum 01 money, does not avoid it, although the person making the alteration acts only under a parol authority. Knapp V. Malthy, 13 Wend. 587. A corporation cannot be bound by its agents for acts not within the powers conferred upon it by its PRINCIPAL AND AGENT. 24& chartei. Contracts based upon such acts are void, and a subse- quent ratification by the directors will not render them valid. McCullough v. Moss, 5 Denio, 567; Hodges v. City of Buffalo, 2 Denio, 110 ; Smith v. City of Newhurgh, 17 N. Y. 130 ; Cowen V. Village of West Troy, 43 Barb. 48 ; Dickinson v. City of Pough- keepsie, 75 N. Y. 65, 74. There are some cases in which the authority of an agent must be in writing, by reason of the pro- visions of the statute of frauds. An authority to an agent to execute a deed or instrument under seal, must be conferred by an instrument under seal. Worrall v. Munn, 5 IST. Y. 229. A subse- quent parol ratification of an instrument under seal, which was executed by an agent without a sealed authority, is not binding upon the principal. Blood v. Goodrich, 9 Wend. 68; Blood v. Goodrich, 12 Wend. 525. § 2. Duties of Agents. The first duty of an agent whose authority is limited by in- structions is to obey implicitly such instructions, for he cannot in any manner depart from them without rendering himself per- sonally responsible to the principal for any loss or injury which he may sustain in consequence of such deviation. Bruce v. Daven- port, 36 Barb. 349 ; Johnson v. N. Y. Central B. B. Co. 33 N. Y. 610. A carrier in forwarding goods beyond the terminus of his own route, is bound by the instruction of the owner of the goods ; and, if the latter directs that, on the arrival of the goods at the end of the carrier's route, he shall forward them by a specified line, route, company or person, it is the duty of the carrier to obey such directions, if that is practicable ; and, if there is a refusal by the line, company or person expected to carry them forward, it is the duty of the carrier to communicate that fact to the owner of the goods and await his instructions, or to deposit the goods, for safe-keeping, in a suitable warehouse ; but if, instead of doing this, the carrier forwards such goods by a different route, line or person, he assumes all the risks which may arise from such devia- tion from his instructions, and assumes the liability of an in- surer, and is liable for the loss of the goods. Johnson v. Nei'j York Central & H. B. B. Co. 33 N. Y. 610. See Isaacson v. N. Y. C. & H. B. B. B. Co. 94 N. Y. 278 ; Hinckley v. N. Y. C. & H. B. B. B. Co. 56 N. Y. 429 ; Maghee v. Camden & Amboy 350 PKINCIPAL AND AGENT. B. B. Co. 45 N. Y. 514; Wilts v. Morrelh 66 Barb. 611; Good- rich y. Thompson, 44 IST, Y. 423. Where a principal consigns property to his factor, with in- structions to sell it upon its arrival, the latter is bound to follow the instructions and sell for the price it will command, and if he does not he will become liable for the damages which his prin- cipal may sustain in case of a fall in the market. It is no excuse that the market was dull, if the property might have been dis- posed of at reduced rates. Evans v. Boot, 7 IST. Y. 186. Where a quantity of wheat was consigned to a factor at Buffalo to sell, at a specified price, on a particular day, with instructions if it was not so sold on that day to ship it to New "S'ork ; and the factor, instead of obeying these instructions, gave to a third per- son the refusal of the wheat until the morning after the day speci- fied, and then perfected the sale, this was held to be a breach of duty amounting to a conversion of the wheat, and that the factor was liable to his principal therefor. Scott v. Bogers, 31 N. Y. 676. But where goods are sent to a factor for sale without instruc- tions as to the time or place of sale, he is at liberty to sell at such time and on such terms as, in the exercise of a sound discretion, he shall deem proper for the interest of his principal. Marfield V. Goodhue, 3 N. Y. 62. But the factor is bound to obey the sub- sequent instructions of his principal as to the sale, although after the receipt of the goods he has made advances thereon, unless the principal, after reasonable notice, fails to repay such advances. lb. J Blot V. Boiceau, 3 N. Y. 78; La Farge v. Kneeland, 7 Cow. 466. And the rule is the same where specific instructions are given at the time of consigning the goods. li. Letters of instruc- tion from a merchant to his consignee and factor, not expressly mentioning a price below which goods consigned for sale shall uot be sold, but merely communicating a belief that the excellent quality of the goods will command a certain price, and expressing it as the sum confidently expected to be realized on a sale, will not be construed as fixing a minimum price at which the goods shall be sold; and a sale for a less sum by the factor, in good faith, and without negligence, will not be deemed a breach of instructions, nor render the factor liable in damages. Vianna v. Barclay, 3 Cow. 281 ; La Farge v. Kneeland, 7 Cow. 456. Where pork, packed in barrels, is consigned to a commission merchant for sale, it does not, by being stowed in a warehouse, with a lai^ PEINCIPAL AND AGENT. 251 quantity of pork of the same quality and brand, lose its identity as the property of the consignor, and the commission merchant will not be entitled to dispose of it as his own, and to apply the ownership of his principal to other pork of the same quality. Seymour v. Wychoff, 10 E". Y. 213. And where the consignor gave special instructions to the commission merchant in regard to the care of the property, "in case there should appear to be any danger of its depreciating in quality, or if it should have need of being re-brined," so that the consignor "should not hold injured or spoiled pork when he should select a market," and directed that the consignee, "to that end, must do with the same in like man- ner as if it were his own.;" it was held that the consignee had no authority to sell the pork and substitute other pork of the same quality as the property of the consignor. J&. An agent who is not instructed, and who is intrusted with general powers in the execution of his duties, must exercise a sound discretion in all his acts. And if he does this, in good faith, he will not be liable to his principal, although he may have done the best thing pos- sible, and although the principal may not be a loser in consequence. A general authority to do one act, or to perform several acts, al- ways carries with it an implied authority to do whatever may be necessary to carry the authority into effect. An authority to sell goods and collect the price, is an authority that permits the agent to make deductions from the original price. And where cattle were sold by an agent having general authority to sell them, and it was found that the cattle were bruised at the time of the sale, though there was no warranty in that respect, yet it was held that the agent might make a deduction from the price for that reason, and that such agreement was binding upon the principal. Taylor v. Nussbaum, 2 Duer, 302. An authority to settle an account, im- plies the right to allow payments already made. An agent em- ployed by the government to collect debts, may, in the exercise of this discretion, give the debtor a reasonable indulgence as to the time of payment. United States v. Hudson, 3 McLean, 156. When a clerk is employed by his master to travel through the country to obtain orders for goods, he is not authorized, by his employment, without a special authority for that purpose, to col- lect or receive payment for the goods so ordered, and if the pur- chaser pays the price to such clerk, he does it at his own risk, as it will not bind the vendor unless the money actually comes to his hands. Puttock v. Wa/rr, 3 Hurlst. & Norm. 9Y9. Authority to 252 PEINCIPAL AND AGENT. deliver a written order for advertising does not authorize the agent to change the terms of such order. Frank Preshrey Co. v. Miller, 119 ]Sr. Y. Supp. 192. And where goods are sold to an agent, who bought them in his own name without disclosing the name of his principal, the pur- chaser, a payment of the price by such purchaser to his agent for the purpose of paying it over to the vendor will not bind the lat- ter, unless the money was actually paid over to him, or unless he employed or authorized such agent to receive payment in his be- half. Bonnell v. Briggs, 45 Barb. 470. An agent must be diligent in the discharge of his duties. He is not bound to exercise the utmost possible care, but he must ex- ercise all the care that a reasonable man would do under similar circumstances in attending to his own affairs. And when a cred- itor receives from his debtor the note of a third person for collec- tion, and the proceeds are to be applied upon the debtor's debt, he is to be deemed to have assumed the obligation of an attorney or agent for the collection of the demand, and, as such, he is re- sponsible for ordinary neglect. Buckingham v. Payne, 36 Barb. 81. ISTegligence, in such a case, is a question of fact, and the cred- itor will not be held liable for the amount of the note, unless it is found that the loss of the sum due upon it was owing to his neg- ligence, or consequent upon it. Ih. Collection agents are liable to their principals for the loss oc- casioned by the acts of attorneys employed by them in compromis- ing claims and receiving less than the face value thereof without authority. But to enforce this liability the principal must show that the claim was collectible. Talcott v. Cowdry, 17 Misc. 333 ; Weyerhauser v. Dun, 100 N. Y. 150. It is the duty of an agent who receives negotiable paper for collection, in case such paper is not paid, so to act as to secure and preserve the liability thereon of all the parties prior to his principal; and if he fails in this duty, and thereby causes loss to his principal, he becomes liable for such loss. First Nat. Banh V. Fourth Nat. Bank, 11 IST. Y. 320. But this is not the utmost limit of the agent's duty and liability. He may so act as to charge all the parties to the paper, and yet become liable for a loss occa- sioned by his negligence. For instance, if an agent receives a sight draft for collection from the payee, and on the day of its- receipt obtains reliable information that the drawee must fail the next day, and that the draft will not be paid imless immediately PKINOIPAL AND AGENT. 253 presented, it is his duty to present the draft at once. If he fails to do this and loss ensues, he incurs liability to his principal, not- withstanding that the drawer would be charged if the draft was not presented until the next day. lb. An agent is bound to possess and exert the skill and knowledge necessary for a proper performance of the duties which he under- takes. This rule applies to all mechanical or professional em- ployments. If a principal employs one whom he knows to be in- competent to conduct his business properly, it is his own folly and he must bear the loss. Wakeman v. Hadeton, 3 Barb. Ch. 148. This branch of the law will be more fully noticed under title "Bailments." An agent to invest money undertakes to exercise such reason- able skill and diligence in investing it as are ordinarily exercised by persons of common capacity in such transactions. Heinemann V. Heard, 50 IST. Y. 2Y ; Van Cott v. Hull, 11 App. Div. 89. So an agent employed to make sales contracts to exercise reasonable diligence, care and judgment in the management of the business intrusted to him; and if he fails in such exercise, and in conse- quence makes an unwise sale for an inadequate consideration, he cannot escape responsibility for the loss sustained by the prin- cipal, because he believed at the time that the sale was wise and for the full value of the property. Price v. Keyes, 62 IST. Y. 378. If no instructions are given to an agent, or if mere partial in- structions are given, or if those given are vague and indistinct, the duty of the agent will be to follow such instructions as are clear and distinct, and beyond that he may follow his best discre- tion, unless there is a general usage in relation to that kind of busi- ness ; and if there is, he must follow the general usage. But no usage, however extensive or however proper in itself, will excuse an agent if he disregards the plain and direct instructions of his principal. When positive instructions are given, an agent has no excuse for disobeying them unless they are illegal or impossible. Where a quantity of butter was put into the hands of an agent, who was proceeding to the city of New York, to sell, with direc- tions to do the best he could with it, to do as well with it as if it was his own, and the agent, after endeavoring in vain to dispose of it in New York at a fair price, finding the market dull, sent the butter of his employer, together with his own, to a market at the south, it was held that the judge was not authorized to in- struct the jury that the agent was bound to sell in New York and 254 PEINCIPAL AND AGENT. not elsewhere ; and that the question of excess of authority should have been submitted to the jury upon the evidence as to the usual course of business in relation to such matters. McMorris v. Simp- son, 21 Wend. 610. When a person receives goods, as an agent or factor, to sell for another, without any special instructions to sell for cash and not on credit, he may sell on credit for the period usual in the mar- ket; and in case he sells on credit in the usual manner, and xises due diligence to ascertain the solvency of the purchaser, he will not be responsible, should the vendee afterwards prove insolvent, Van Alen v. Vanderpool, 6 Johns. 69 ; Robertson v. Livingston, 5 Cow. 4Y3 ; Leland v. Douglass, 1 Wend. 490. It is the duty of an agent to act in matters touching the agency with sole regard to the interests of his principal. In accepting the employment he undertakes to manage the interests confided to him, and discharge the trust imposed in him, to the best of his ability for the benefit of his principal. The compensation to which he is entitled is the consideration for the engagement into which he enters. If he is an agent for the sale of the property of his principal he cannot sacrifice the property for the sake of his commissions; but if he makes a sale within his authority which he believes to be for the best interest of his principal, the fact that in making it the impelling motive was self-interest will not give the principal a right of action against him for fraud in case the sale proves disadvantageous. But on the other hand the mere be- lief of the agent that a sale was for the best interest of his princi- pal would not in all cases protect him in making an unwise sale if in making it he failed to exercise the reasonable diligence, care and judgment which he contracted to possess and employ in the conduct of the business of his principal. Price v. Keyes, 62 N. Y. 378. If the agent acts in hostility to his principal's interest and for his own advantage, he will be liable to his principal for the money lost through his malfeasance. Wheeler v. Bell, 88 Hun, 100. It is a settled rule in equity that when a person undertakes to act as agent for another, he cannot be permitted to deal in the matters embraced in the agency upon his own account or for his own benefit ; and if he is employed to purchase an estate, and takes the conveyance in his ovsm name, equity will treat him as holding it in trust for his principal. Ahell v. Bradner, 11 St. Rep. 246. Duty to act in person and not by substitute. — The general prin- ciple is, that an agent cannot delegate his authority to another. PEINCIPAL AND AGENT. 255 An agent holds nothing but a delegated power, and lie has no more authority to substitute another in his place than he had to create the original agency. The employment and the trust are personal to the agent, and they may rest on some ground of personal confidence in the in- tegrity or the ability of the agent, to whose hands the principal may be willing to confide his business, while he might not have any such confidence in the person to whom the agent might intrust it, if he had the legal authority to do so. This rule is not carried so far, however, as to prevent an agent from employing such as- sistance as he may need in executing the duties of his trust. It is the integrity and the intelligence of the agent employed by the principal which the law requires to be exercised by the agent him- self. An agent cannot delegate any portion of his power requir- ing the exercise of discretion or judgment; but it is otherwise, however, as to powers or duties which are merely mechanical in their nature. See Grinnell v. Buchanan, 1 Daly, 539. See also People V. Bank of North America, 75 IsT. Y. 547. Hence, if an agent is empowered to bind his principal by an accommodation ac- ceptance, he may direct another to write it, having first determined the propriety of the act himself; and it will bind the principal, though naming the delegate, and not the agent, as the one exercis- ing the power. Commercial Banlc, &c. v. Norton, 1 Hill, 501. A principal may employ an agent and give him authority to substi- tute another in his place, and if the authority is exercised by the substitution of such subagent, he will then be an agent for the prin- cipal, who will be liable for his acts as much as though personally employed by the principal himself. Wright v. N. Y. Cent. B. R. 28 Barb. 80. This rule is applicable to individuals, and especially so to corporations which employ a large number of assistants in their ordinary business. Ih. If the principal authorizes a substi- tution or the employment of an underagent, and gives instructions as to the manner in which the business is to be transacted, and the agent directs the subagent to vary from the instructions of the principal, and any loss occurs in consequence, the agent will be liable to the principal for the damages resulting therefrom. Fos- ter V. Preston, 8 Cow. 198. Where a person is employed to render services for a principal by an agent who is authorized to make such contracts, the person so employed may call upon the principal for payment of the serv- ices rendered ; and he may do so, although he knows that the agent 256 PEINCIPAL AND AGENT. has charged the demand to the principal and received the amount, unless he has agreed to discharge the principal and rely upon the responsibility of the agent. Lincoln v. Battelle, 6 Wend. 475. A substitute of an agent who had no authority to appoint him can- not look to the original principal for payment; he must look to the agent, as his principal, to recover compensation. § 3. Public Agents. A distinction exists between public agents and those of a private character, in respect to their personal liability. Nichols v. Moody, 22 Barb. 611. A public agent, acting in the line of his duty, is not personally liable upon contracts made by him on behalf of the government ; unless it appears that the credit was given to, or the labor per- formed for, the agent himself, and on his agreement and promise to pay ; or the fact of his being a public agent was unknown, and not disclosed at the time of making the contract. Ih; Wallcer V. Swartwout, 12 Johns. 444 ; Bronson v. Woolsey, 17 Johns. 46 ; Olney v. Wickes, 18 Johns. "121; Belknap v. Reinhart, 2 Wend. 375 ; Oshom v. Kerr, 12 Wend. 179 ; Fox v. Drake, 8 Cow. 191. A public officer may render himself personally liable if he ex- pressly assumes a personal liability. Gill v. Brown, 12 Johns. 385. And when it does not appear that an agent, in making a contract, acted expressly or ostensibly as a public agent, it will be deemed a private contract. Swift v. Hopkins, 13 Johns. 313. A coroner who employs a physician to attend at inquests held upon the bodies of dead persons, will be liable to pay for the services rendered, in the absence of any agreement that the phy- sician is to look to some other person or source for his payment. Van Hoevenburgh v. Hashrouck, 45 Barb. 197. In construing written agreements made by an agent, the agent is, in general, personally bound if the instrument can have no legal operation against the principal; but in construing oral agreements made by an agent, effect is given to the real intention of the parties, and if the act is within the authority, the presumption is that the agent intends to bind the principal and not himself. It requires much stronger evidence to rebut this presumption where the con- tracting party is a public agent, than where the contract and agency is of a private nature. Hall v. Lauderdale, 46 N. T. 70. Where it is not shown that the commissioners of emigration in PEINOIPAL AND AGENT. 257 the city of New York are in. any way interested in the transpor- tation or care of immigrants or of their baggage, or that it ever came into their possession, or that they had any agents engaged in that business, they will not be responsible for the loss of bag- gage delivered by an emigrant on board of a ship in New Tork harbor, to the crew of a tug boat, to be transported to Castle Gar- den. Murphy v. Gonvmissioners of Emigration^ 28 N. Y. 134. The mere fact that such commissioners have granted licenses to the owners or captains of steamboats, etc., permitting them to re- ceive and land passengers and their baggage, or have licensed other persons to solicit emigrant passengers and their baggage for board- ing-houses and transportation lines, does not make any of those licensed persons the agents of the commissioners, nor render them liable for their acts. lb. The act for the protection of hona fide purchasers and holders of coupon bonds and of municipal corporations against misfeas- ance, malfeasance or negligence of public officers, provides as fol- lows : "Any bona fide purchaser and holder of any bonds or other obligations for the payment of money payable to bearer, and trans- ferable by delivery, and any such purchaser and holder of any in- terest-bearing coupon or obligation originally attached to such bonds, which said bonds or coupon shall have been issued or put in circulation by means of the misfeasance, malfeasance, or neg- ligence of any public offcer, of any of the civil or municipal di- visions of this State, whose right of recovery or cause of action upon any such bond or coupon has been, or shall be determined by the judgment of a court of competent jurisdiction in any suit or action, or who has been or shall be a privy to such suit or action, may within three years after the determination of said right of recovery and cause of action, begin an action against such officer, and recover all damages which said purchaser, holder, or privy shall have suffered because of the misfeasance, malfeasance or negligence of such public officer." Laws of 1895, ch. Y92, § 1. "Any municipal corporation within this State, or any civil di- vision of this State, which has been or shall be compelled to pay any negotiable bond, or any coupon originally attached to such bond, by the judgment of a court of competent jurisdiction, be- cause of the misfeasance, maKeasance or negligence of any pub- lic officer or agent of such municipal corporation or civil division, may within three years from the time when such payment shall have been compelled as aforesaid, begin an action against any such 17 258 PKINCIPAL AND AGENT. officer in any court of competent jurisdiction and recover the amount so paid with interest from the time of such payment." Id.^ § 2. § i. Factors, Brokers and Commission Merchants. The term agent is of very extensive signification, and includes nearly every class of persons who are employed by a principal to do some act for him. Every servant is an agent, although the con- verse is not true. McKenna v. Stayman Mfg. Co. 112 N. Y. Supp. 1099. The term includes factors and brokers who are agents of a special class. A factor is distinguished from a broker by being intrusted with the possession and disposal of property, and with the apparent ownership of it. A broker is merely em- ployed in negotiating in relation to the sale of it, or making con- tracts in relation to it. He is not trusted with the possession of the property, and does not act in his own name. Generally speak- ing, the duty of a broker is ended when he has found a purchaser and has brought the parties together. See Barring v. Corrie, 2 B. & Aid. 138; Higgins v. Moore, 34 E". Y. 417; Harrison v. Ross, 12 Jones & Sp. 230; Dunn v. Wright, 51 Barb. 244. The compensation to both is usually a commission ; and when the agent guarantees the payment of the price fpr which he has sold the goods of his principal, then the commission is larger, as it includes a compensation for this risk. In such a case, he is said to act un- der a del credere commission. This phrase is not common among business men, whether merchants or otherwise. The business of a factor is usually done by a class of men called commission mer- chants. Whether they charge a larger commission for guaran- teeing the sales made depends upon the agreement between the par- ties. The business which is done by this class of agents is so exten- sive and so important that statutory enactments have been deemed necessary. Laws 1830, ch. 179. This statute has now been in- corporated into the Personal Property Law. Personal Property Law, section 43, being Chapter 45 of the laws of 1909, known as Chapter 41 of the Consolidated Laws. The section of the act relative to principals and factors or agents, which declares that one intrusted with the possession of the goods of another, for the purposes of sale, shall be deemed the true owner, so far as to give validity to a disposition thereof for money advanced, does not pro- tect a party who has made advances on goods to a factor, with ai PEINCIPAL AND AGENT. 259 knowledge that he was not the owner of the goods. Stevens v. Wil- son, 3 Denio, 4Y2 ; S. C. Q Hill, 512. The ohject of the statute was to protect innocent persons who deal in reliance npon appar- ent ownership, resting upon possession either of the merchandise itself, or documentary evidence of ownership. Cartwright v. Wil- merding, 24 N. Y. 521 ; Pegram v. Carson, 10 Bosw. 505 ; How- land V. Woodrujf, 16 Abb. N. S. 411 ; 60 K T. 13 ; New YorJc Security & Trust Co. v. Lipman, 157 IST. Y. 551. The act has no application where a factor or agent has obtained goods taken by common-law larceny from the true owner, as in such case he can- not be said to be intrusted with their possession for the purpose of sale. Soltau v. Gerdau, 119 IST. Y. 380. See Collins v. Balli, 20 Hun, 246; 85 N. Y. 637; Hentz v. Miller, 94 N. Y. 64. It has no application to a case where the property has been wrong- fully taken from the possession of the owner and then fraudu- lently appropriated or where the protection of the act would se- cure to a wrongdoer the fruits of fraud. Kinsey v. Leggett, 71 N. Y. 387 ; Dorrance v. Bean, 106 K Y. 203. A contract of sale by a factor or agent, intrusted with goods for the purpose of sale, is valid and will protect a purchaser against the principal, although no money is advanced, or negotiable instru- ment or other obligation given at the time of the contract; it is enough if an obligation be subsequently entered into on the faith of the contract, at any time while it remained unrescinded; and subsequent indorsements of promissory notes, in anticipation of which the property was transferred, gives effect to the contract. Jennings v. Merrill, 20 Wend. 9. To protect a consignor under this statute, the shipment must be in the name of some person other than the owner, and with his consent. Covell v. Hill, 6 N. Y. 374; S. C, 4 Denio, 323. A general clerk of a merchant, who transacts outdoor business, negotiates purchases and charter- parties in the name of his principal, and ratified by him, etc., and who prepares and presents bills of lading to the principal for his signature, is in no sense a factor, and has no authority to pledge bills of lading, or to receive advances on the faith thereof. Zachrisson v. Ahman, 2 Sandf. 68. The act protects the right of a person who makes advances upon the faith of the documen- tary evidence of title which is furnished by a warehouse-keeper's receipt of imported goods, which was procured by a factor by reason of his being intrusted with an invoice of goods, although such invoice showed that the goods belonged to the shipper. If 260 PEINCIPAL AND AGENT. the factor, in sucli case, makes a warehouse entry at the custom house, takes a warehouseman's receipt and transfers it with authority to make the withdrawal entry at the custom house, this enables the pledgee of such property to reduce it to possession as effectually as a custom house permit, and will be equivalent there- to as security under the act A pledgee, in such case, who acts upon the faith of documents which, according to the course of business, are sufficient to transfer the property in goods ware- housed and subjected to duties, and which contain nothing to in- dicate any title out of the pledgor, is not bound to inspect the warehousing entry which is retained at the custom house, and which, in the course of business, would not be in the possession of the owner of goods which he had himself imported. It is not necessary that the principal should have intrusted his factor with the identical evidence of title, upon the faith of which such factor procures a loan; if he is intrusted with the primary document, this is equivalent to intrusting him with all the others which, in the ordinary usage of trade, grow out of it. Cartwright v. Wil- merding, 24 IST. Y. 521. The provision of the act, that a factor or agent intrusted with the possession of a bill of lading shall, in certain cases, be con- sidered the owner, so far as relates to contracts made by him with third persons acting on the faith thereof, applies only where the relation of principal and factor, or agent, exists between the real owner and the one having the bill in possession, where the latter obtains the bill by or with the consent of the owner, and where the bill is in the name of the factor ; and it must also appear that the money was advanced by such third person upon the faith thereof. First Nat. Bank of Toledo v. Shaw, 61 N. T. 283. See Kingston Cotton Mills v. Kuhne, No. 1, 129 App. Div. 250, and cases cited. A factor under a general power will not be responsible for losses if he appears to have acted to the best of his abilities, without breach of orders, gross negligence or fraud. Leverick v. Meigs, 1 Cow. 645. A factor has authority to act in an emergency and sell perishable property, and where a factor received a car- load of oranges, with instructions to sell at a certain price, and if he could not get such price, to hold them in cold storage, and where the property arrived in a decaying and unsound condition, he was held authorized to reassert and sell at the earliest possible moment. Lippmann v. Broivn, 88 N. T. Supp. 141 ; see Jervis PKINCIPAL AND AGEKT. 261 V. Hoyt, 2 Hun, 638. But goods consigned to a factor for sale are to be sold in the market to whicli they are shipped and where the factor transacts his business, and the factor has no implied authority to reship the goods to another market, and where the factor reships the goods to another market, he will be liable to the principal for the difference between the market price of the goods at the place where they should have been sold, and the price received therefor. Weidner v. Olivit, 108 App. Div. 122. A commission merchant has such an interest in the goods con- signed to him for sale, that he may insure them to their full value, in his own name. But it is not his duty to insure the goods for the benefit of his principal, without some express or implied di- rections from the latter to that effect. And if the goods, being stored in the usual place, are destroyed by fire, the commission merchant will not be responsible to his principal for the loss. Brisban v. Boyd, 4 Paige, 17 ; De Forest v. Fulton Fire Insurwnce Company, 1 Hall, 84; Wertheimer v. Talcott, 118 App. Div. 840. When orders are given to a factor to purchase at an extended credit and to forward goods of a particular description, and from the character of the market for which they are intended, it is im- portant that they should be delivered forthwith; and the pur- chase is made and the goods forwarded to a correspondent of the factor, with instructions not to deliver them to the principal until paid for in cash, or approved paper given, payable in ninety days, when the factor had purchased at a credit of six months; and the goods, after arrival and before delivery, are consumed by fire while in the possession of the correspondent of the factor, the loss falls upon the factor, and not upon the principal. Williams V. Littlefield, 12 Wend. 362. The factor, having sold on credit, received part payment, and authorized his principal to draw upon him for the whole balance, which he did, it was held that the factor had assumed the outstanding debt, and that he could not recover the amount of the principal, upon the failure of the debtor to whom the goods were sold. Oakley v. Crenshaw, 4 Cow. 250. But where, at the request of the principal, the factor gave him his note for the amount that would be due to him if the debt were paid, payable after it would be due, it was held to be a mere liquidation of the account, and not an assumption of the debt. Robertson v. Livingston, 5 Cow. 473. So,, where a factor sold on credit, and took the purchaser's note, and subsequently exchanged 262 PEINCIPAL AND AGENT. it for the note of another, indorsed by the purchaser and falling due before the first note, it was held that this was a mere improve- ment of the security, and did not make the factor liable for a loss. Corlies v. Cumming, 6 Cow. 181. The mere taking of a purchaser's note for the whole amount of two sales to him of the goods of two several principals, does not make him liable to them, in case the purchaser becomes insolvent. Ih.; Rich v. Monroe, 14 Barb. 602. A principal wrote to his factor that he had made a consignment to him, and should anticipate the avails by drawing certain bills of exchange on him; and the factor answered agree- ing to receive the consignment and accept the bills ; but he after- wards refused one of the bills; it was held that he had become liable to accept and pay them, and was liable to the drawer for the costs and damages he had been compelled to pay by reason of the protest. Urquhart v. Mclver, 4 Johns. 103. Where a commission merchant, who is under instructions not to sell under a certain price, sells the goods of his principal, under an agree- ment, made without the consent of the principal, that the price should be set off against a debt due from the principal, he acts beyond the scope of his authority, and is liable to the principal for the value of the goods. Ouy v. Oakly, 13 Johns, 332. A factor or a commission merchant del credere, who is in advance or under acceptance on the credit of the goods consigned to him, may maintain replevin for them against the carrier or warehouse- man to whom they have been delivered by the ovsmer for the factor. This was so held when the advances were to the full value of the goods. Holbrooh v. Wight, 24 Wend. 169. A remittance by a factor to his consignor is at his own risk, unless made under a prior direction or authority. When he has been directed or au- thorized to remit, he is answerable only for good faith and due diligence. Heubach v. Bother, 2 Duer, 227. The guaranty of a del credere commission is limited to the pay- ment of the price of goods sold upon credit, and does not extend to the remittance of funds received. Ih. But when, by the agreement of the parties, the factor is entitled to charge a guar- anty commission upon exchange remitted, he cannot discharge himself from his liability by omitting to charge the commission. Ih. When a factor charges himself, by anticipation, with the price of goods sold upon credit, the remittance thus made by him is of his own funds, in discharge of a personal debt, and is, there- fore, made at his own risk. Ih. PEINCIPAL AND AGENT. 263 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 third persons, and is valid, therefore, though hj parol. Sherwood v. Stone, 14 E". Y. 267 ; Wolf v. Koppel, 2 Denio, 368; 8. C, 5 Hill, 458. Every contract made with an agent in relation to the business of the agency, is a contract with the principal, entered into through the instrumentality of the ^gent, provided the agent acts in the name of the principal. The party so dealing with the agent is bound to his principal ; and the principal and not the agent, is bound to the party. Where goods are bought by an agent who does not disclose the name of his prin- cipal, at the time of the purchase, the principal, when discovered, is liable to the vendor on the contract made by the agent. McMon- nies V. Machay, 39 Barb. 561; Jessup v. Steurer, 75 N. Y. 613; Mason Stable Co. v. Lewis, 14 Misc. 656; 70 St. Kep. 889; Kay- ton V. Bamett, 116 N. Y. 625 ; Coleman v. First Nat. Bank of Elmira, 53 IST. Y. 388 ; Meeler v. Claghorn, 44 N. Y. 349 ; Adolff V. Schmitt, 13 Misc. 623; 69 St. Rep, 154. So an undisclosed principal may recover upon a contract, not under seal, which was made for his benefit by his agent, in the agent's own name, whether Ihe latter described himself as agent or not. Ludiuig v. Oillespie, 105 N. Y. 653 ; Considerant v. Brisbane, 22 N. Y. 389 ; Schaefer V. Henkel, 75 K Y. 378; Nicoll v. Burhe, 78 N. Y. 580; Wichle V. Saffold, 27 Misc. 562. The action may be maintained by either the principal or agent in his own name. lb. But the rights of the other party are not to be prejudiced, when he dealt with the agent Tipon the supposition that he was the real principal. Taintor v. Prendergast, 3 Hill, 72 ; Mitchell v. Bristol, 10 Wend. 492. But merely crediting the amount of a purchase upon an old debt of the agent will not enable the purchaser to set it off against the principal. Henry v. Marvin, 3 E. D. Smith, 71. Where goods are sold to an agent, but they subsequently come to the use of his principal, the seller, upon discovering the prin- AGENT. his guaranty. He is entitled to retain possession of the goods and their proceeds to protect his lien, and to collect and sue the debts in his own name, rights of which the principal cannot deprive him except by reimbursing the advances, or in case of a del credere factor, by relieving him from his guaranty. Such factors are, nevertheless, agents and cannot deal with the property or proceeds as their own. They cannot pledge the goods for their own debts, and could not, at common law, transfer any right as against the principal by an unauthorized pledge, even to the extent of their liens. lb,; Buchley v. Packard, 20 Johns. 421. A factor, although under advances to his principal, is, nevertheless, bound to obey the principal's instructions, and cannot dispose of the goods in violation thereof, even to repay advances, until at least he has called upon the principal for reimbursement. Commercial Nat. Bank of Perm. v. Heilhronner, 108 N. Y. 439 ; Ma/rfield v. Good- hue, 3 K Y. 62 ; Hilton v. Vanderbilt, 82 N. Y. 591. A consignee of goods for the purpose of sale, who has accepted drafts upon the faith of the consignment, has a right to sell the property and use the proceeds to pay the drafts. If the proceeds are insufficient to pay the drafts he must look to the drawer for the deficiency, and has no lien upon subsequent shipments to the prejudice of those who have advanced money on them and taken transfers of bills of lading to secure such advances. First Nat. Bank of Batavia v. Ege, 15 St. Eep. 88. Where a principal consigns goods to his agent to sell under an agreement that he shall be permitted to draw drafts upon the agent which he is to accept for the accommodation of the prin- cipal, the legal inference is that the drafts are drawn on the credit of the goods and that the goods are to held as an in- demnity against the drafts. In the absence of any express agree- ment a factor has a lien upon the goods in his hands as security for all advances made or acceptances given to his principal in the business of his agency, or connected with the goods consigned to him. The law infers the lien from the relation between the parties. Nagle v. McFeeters, 97 N. Y. 196. The factor may transfer the possession of the goods to a third person as security, with notice of the lien, and as his agent, to keep possession for him in order to preserve that lien. Urquhart v. Mclver, 4 Johns. 103. Where a commercial correspondent, however set in motion, by a principal for whom he acts, advances his own money or credit PKINCIPAL AND AGENT. 269 ^or the purchase of property and takes the bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the purchase price, he becomes the owner of the prop- erty instead of its pledgee, and his relation to the original mover in the transaction is that of an owner under a contract to sell and deliver when the purchase price is paid. Farmers & Mechanics' Nat. Bank v. Logan, 74 N. T. 568; Moors v. Kidder, 106 IST. Y. 32. § 5. ^ent Cannot Act for Himself and for Frinoipal at Same Time. Whenever an agent is employed, the principal is entitled to the intelligence, the skill, care and diligence of the agent without any conflicting interest on his part to prejudice the rights of such principal. McDonald v. Lord, 26 How. 404. Good faith and fair dealing require this, and it is the policy of the law to enforce the rule. Ih.j Bruce v. Davenport, 36 Barb. 349. For this reason no person can act as principal for himself, and as an agent for a third person. lb. And where the defendant was intrusted with a commission to purchase in the market, for the plaintiff, as his agent, so many shares of stock of a specified company; it was held, that this required him to use his best judgment in making the purchase, and to obtain the stock on the most advantageous terms upon which it could be procured from an outside party ; and that, therefore, he was not at liberty to sell his own stock to his employer. GonJcey v. Bond, 34 Barb. 2Y6. In such a case, with- out passing upon the question of actual fraud, or even looking into it, the transaction will be avoided on the ground that the agent is in a situation of trust which will not allow him to deal with his own property when his principal has reason to believe he is dealing vsdth another's. The sale cannot be upheld in the light of the simple and plain duty, that every agent, however limited and circumscribed may be his employment, and irrespec- tive of all questions of benefit or advantage to himself, owes to his principal. Id. 288; Darhy v. Pettee, 2 Duer, 109; Oonhey T. Bond, 36 K T. 427; Taussig v. Hart, 58 N. T. 425 ; Mayo v. Enowlton, 31 St. Eep. 558. A partner may sell the firm property to a third party and give a good title, but he cannot sell to himself. ComstocTc v. Buchanan, 57 Barb. 127. 270 PEINOIPAL AND AGENT. One cannot act for himself as vendor, and as agent for another as purchaser, in transferring securities. And when he does so, and is guilty of a fraudulent concealment of the advantages which he has received from his transactions, a release obtained by him in ignorance of the real facts vsdll be void. Gould v. Gould, 36 Barb. 270. Where an agent has duties to perform towards his principal in the nature of a trust, he falls within the suspected relation, and the law indulges a presumption of fraud against a release procured by him from his principal, although no fraud is visible to the eye of the court. lb. And an agent who is employed as a clerk and salesman in a store, cannot be himself a purchaser of the goods which he sells as clerk. McDonald v. Lord, 26 How. 404. And a principal will be justified in discharging a clerk who sells goods to a firm of which such clerk is a member, although no unfairness or fraud is shovTn in making such sales; and although the clerk has been hired for a year and his time has not expired at the time of his dismissal. Ih. If an agent, employed to purchase an estate, takes a convey- ance in his own name he will be deemed, in equity, as holding for his principal. He will not be permitted to deal in the matter of his agency upon his own account or for his own benefit. Abell V. Bradner, 11 St. Rep. 246. If the agent, while assuming to act for his principal, acts in hostility to the latter's interest and for his own advantage, the principal may sue the agent for the fraud and recover the damages sustained through his malfeasance. Wheeler v. Bell, 88 Hun, 100. Defendant, a real estate agent, had been employed by plaintiff, a woman of limited intelligence, advanced in years, physically weak, of inferior mental capacity, and without business ability or experience, to collect rents of houses on a tract of land, and find a purchaser which he assumed to do, but in fact took title in himself, paying $1,600, for property worth nearly or quite double that amount, and giving his mortgage for part of that. Held, that he should be compelled to re-convey, Clark V. Bird, 66 App. Div. 284; appeal dismissed 171 N. Y. 700. And the fact that plaintiff accepted payment of the mortgage after learning that defendant himself was the purchaser, held, not t» preclude her, she having previously demanded a reconveyance and still insisting upon her right to it. Ih. It is an old doctrine, from which there has never been any departure, that an agent cannot bind his principal, even in mat- PEINCIPAL AND AGENT. 371 ters touching his agency, where he is known to he acting for him- self, or to have an adverse interest. Stone v. Hayes, 3 Denio, 575 ; Manhattan Life Ins. Go. v. Forty-second Street & Grand Street Ferry R. R. Co., 139 E". Y. 146. One personally liable for a debt, cannot, acting as the agent of another, bind such other to assume its payment. Bunnell v. Empire Laundry, etc. Co. 5 ISr. Y. Supp. 591. Where an agent is furnished with money to buy goods and instead of paying it over for the goods, buys them on credit in his own name, his principal cannot be held as an un- disclosed principal. Harder v. Continental Printing, etc. Co. 117 N. Y. Supp. 1001. An agent of an insurance company, however broadly his au- thority may be expressed, has no power to act for himself. He cannot make a contract in which he acts directly for himself and also as agent for the company. Bentley v. Columbia Ins. Co. 19 Barb. 595 ; 17 K Y. 421. Where an agent of an insurance company is authorized to effect insurances upon vessels and their cargoes, and to prcoure policies from the company and deliver them to the insured, and he receives and accepts an application, and negotiates an insur- ance, as agent, upon property of which he is one of the owners, and he communicates the transaction to his principal, the com- pany, without disclosing his interest in the property, and on re- ceiving a policy from the company, he delivers it to the insured, such policy is void, and in case of a loss, no action can be main- tained thereon for the recovery of the amount insured. Ritt v. Washington & Marine Fire Ins. Co. 41 Barb. 353. An insur- ance procured in this manner is not avoided on account of the materiality of the relation of the agent to the risk, but because it is against public policy to allow such agreements to stand ; and even though it could be shown that the relation was not material to the risk, the insurance would still be void. lb. And where the agent of one insurance company reinsured another, in a company of which he was director and secretary, acting for both, it was held that the contract was voidable in equity and the defense available in an action at law upon the- policy. N. Y. Cent. Ins. Co. v. National, etc. Co. 14 N. Y. 85. A person cannot be agent for both purchaser and seller and earn a compensation from each, imless by a distinct arrangement be- tween all who are concerned. The duties imposed by an employment to sell for the best price^ 27.2 PEINCIPAL AND AGENT. are inconsistent with those created by an undertaking to buy npan the best terms; and if one, who is employed as an agent or broker to make a purchase, accepts from the owner without the employer's knowledge, an agency and a commission for selling, he cannot afterwards claim compensation from the buyer. Dun- lop V. Richards, 2 E. D. Smith, 181 ; Vanderpoel v. Keams, id. lYO; Watkins v. Cousall, 1 E. D. Smith, 65. Although the president of a bank has general authority to certify checks drawn upon it, this authority does not extend to checks drawn by himself; and as the check would show upon its face the attempt of the officer to use his official character for his private benefit, every one to whom it might come would be put upon inquiry; and if the certificate was false, no one could re- cover against the bank as a bona fide holder. Claflin v. Farmers & Citizens' Bank, 25 JST. T. 293. It is an acknowledged principle of the law of agency, that a general power or authority given to an agent to do an act in behalf of the principal does not extend to a case where it appears that the agent himself is the person interested on the other side. If such power is intended to be given it must be expressed in language so plain that no other interpretation can rationally be given it, for it is against the general law of reason that an agent should be intrusted with power to act for his principal and for himself at the same time. Bank of N. Y. etc. Assn. v. American Dock & Trust Co. 143 N. T. 559 ; Claflin v. Farmers & Citizens' Bank, 25 IST. T. 293 ; Pratt v. D. H. M. F. Ins. Co. 130 N. Y. 306, 216 ; Neuendorf v. World Mut. Life Ins. Co. 69 K Y. 389 ; Aldridge v. Rusted, 24 Misc. ITT. There is no fiduciary relationship between a manufacturer and his exclusive selling agent where it appears that the goods were billed to the agent as purchaser and so charged to him. Scheneck Chemical Co. v. Industrial Advertising and Distributing Co. 121 ]Sr. Y. Supp. 838 ; also see Edwards v. Dooley, 120 IST. Y. 540. But a principal may give an agent express power to act in the business of the principal so that the agent may reap a benefit, and in such case the principal is bound by the acts of the agent and the rules before stated do not apply. Moody v. Smith, 70 N. Y. 598. The principle of law which condemns the transactions of a party in his own behalf when, in respect to the matter concerned, he is the agent of others, applies to the directors of corporations PRINCIPAL AND AGENT. 273 and all persons who stand in a fiduciary relation to other parties, and are clothed with power to act for them. Such directors can- not, as agents or trustees, enter into or authorize contracts on behalf of those for whom they are appointed to act, and then personally participate in the benefits. This rule extends to all transactions where the directors' personal interests may be brought into conflict with their acts in a fiduciary capacity, and works independently of the question whether there was fraud or good intention. Barr v. N. Y. L. E. & W. B. B. Co. 125 N. Y. 263 ; Barnes v. Brown, 80 N. Y. 527. Hence, all arrangements by directors of a railroad company to secure an undue advantage to themselves at its expense by the formation of a new company as an auxiliary to the original one, with the understanding that they or some of them shall take stock in it, and then, that valuable contracts shall be given to it, in the profits of which, they, as stockholders in the new company, are to share, are so many unlawful devices to enrich themselves at the expense of the stock- holders and creditors of the original company, and will be con- demned whenever properly brought before the courts for considera- tion. Warden v. Union Pacific B. B. Co. 103 U. S. 651. So a member of an incorporated social club, who acts in its behalf as a member of a purchasing committee, assumes relations of a con- fidential and fiduciary character and cannot, in purchasing prop- erty for the club, reserve a benefit to himself or to a firm of which he is a member. Bedhead v. Parkway Driving Club, 148 N. Y. 471. But there is no principle of law prohibiting a director of a corporation from selling his own property to the corporation so long as in so doing he acts in the single capacity of a vendor and not also as trustee or representative of the corporation. Gamble v. Queens County Water Co. 123 E". Y. 91. § 6. Person Cannot be Agent for Two Opposite Parties. A person cannot act as the agent of both parties in the making of a contract where he is invested with a discretion by each, and where each is entitled to the benefit of his skill and judgment. Utica Ins. Co. v. Toledo Ins. Co. 17 Barb. 132; Marie v. Gar- rison, 13 Abb. N. C. 210, 229 ; New York Cent. Ins. Co. v. Nat. Protection Ins. Co. 14 N. Y. 85 ; Calkins v. Hellman, 14 Hun, 330 ; Greenwood r. Spring, 54 Barb. 375 ; Conkey v. Bond, 34 Barb. 276; 36 IST. Y. 427. It is irregular for the same person 18 2Y4 PKINCIPAL AND AGENT. to appear as attorney for both parties on the return of a sum- mons issued by a justice of the peace. Sherwood v. Saratoga, etc. R. R. 15 Barb. 650. An agent who is employed to collect a mortgage belonging to his principal cannot purchase the property at the mortgage sale, either himself or through the agency of a third person for his benefit, as such purchase will be held to be for the benefit of the principal, at his election. Instructions from the principal to the agent not to bid for him beyond a fixed amount will not authorize the agent to bid for himself beyond that amount. The agent cannot rightfully assume any position in reference to the sale in which his interest will be adverse to that of his employer. Moore v. Moore, 5 N. Y. 256. There is no distinction in this respect between private and judicial sales, where the agent controls the judicial sale, and the ofiicer acts under his instructions. lb. An agent who is employed to pur- chase an estate, or to transact any particular business for another, cannot purchase the estate for himself or act for his own benefit in relation to the subject-matter of such agency, to the injury of the person by whom he is employed. Reed v. Warner, 5 Paige, 650 ; Bamh of Orleans v. Torrey, 7 Hill, 260 ; S. 0. 9 Paige, 649 ; HenJcen v. Schwidcer, 1Y4 IST. Y. 298 ; Duclos v. Cunning- ham, 102 N. Y. 678. If an agent is employed to purchase goods or property for his principal at a fixed price, or at the market price, or upon the best terms he is able, and the agent purchases so as to make a profit, or on terms more advantageous than those named by the principal, the principal will be entitled to such profit or advantage. lb. There are cases where the nature of the employment of the agent is such as to require him to act for both parties to a certain extent in the transaction of the business of the agency. If the acts of the agent in such cases are in no way hostile to the interest of his principal the latter has no just cause for complaint, although such acts may be in the interest of the other party to the trans- action. Where an agent is employed to obtain a loan of money, the lenders may legally rely upon him to obtain for them a valid security for their money ; and the agent may, so far, act in their behalf without prejudicing his rights as against his principal and without violation of the rule that an agent cannot, vnthout the knowledge of his employer, act also for the interest and benefit of another. Putzel v. Wilson, 49 Hun, 220. It is implied in every contract of agency that the agent shall PEINCIPAL AND AGENT. 2Y5 use his best efforts to promote tlie interests of his principal, and it is ordinarily inconsistent with the proper discharge by a broker of his duty to one employer, that he shall at the same time and in the same matter be acting for another. The interests of the seller and purchaser of property in the negotiations for its sale are adverse. It is the interest of the seller to get the highest price, and of the purchaser to buy at the lowest. So, when a broker to sell is at the same time the broker to buy, the fact of the double agency, if unknown to the principals, is a breach of his implied contract with each, and operates, or is likely to operate, as a fraud upon both. The law, therefore, to prevent fraud, and upon the most obvious reasons of justice and policy will not, in such case, enforce a contract for the compensation of the broker, irre- spective of the consideration whether the sale made was or was not advantageous to the party from whom the compensation is claimed. Duryee v. Lester, 75 !N". Y. 442. But if the broker was employed by both parties, with notice that he is acting in the matter for the other, and with such notice each agrees to pay him his commissions, he can recover them of both. Bowe v. Stevens, 53 K Y. 621. § 7. Duty of ^ent to Accotmt. Every agent ought to keep a full and accurate account of his doings for his principal, and he ought, from time to time, to communicate to his principal, the condition of the accounts ; and when he is called upon to render an account, he ought to do so promptly and without suppression, concealment, or overcharge. But a mere rendering of the state of accounts is not enough, when the agent has money in his hands which belongs to the principal, and which is then payable. He ought also promptly to pay over to his principal all such moneys; and a neglect or refusal to do so in a proper case, will subject the agent to an action in favor of the principal. Where money has been paid voluntarily to an agent, for his principal, by a person who could not have been compelled by law to make such payment, the money becomes the property of the principal, in the hands of the agent, for which he ought to account. Murray v. Yanderlilt, 39 Barb. 141. He has no right to refuse payment of it to his principal, on the ground that the principal had not a legal claim or title to the money paid. Ih. An agent has no right to dispute the title of 276 PRINCIPAL AND AGENT. his principal to moneys which were received by such agent for the use of his principal ; nor can he resist an action for the amount so received, on the ground that the money was paid on an illegal contract between the original parties. Ih. The agent, having received money for the use of his principal, is bound to pay it over to t'.e principal, and has no right to return it to the person from whom he received it, or to dispute the title of his principal by setting up an adverse title in a stranger. Hancock v. Gomez, 58 Barb. 490; 50 K Y. 668. Where a plaintiff gave defendant money to be expended for a specific legal purpose, the defendant will be required to account. Allen v. O'Brien, 118 App. Div. 213. Where the agency is of a general character involving no duty on the part of the agent to pay over specific sums of money, as re- ceived, a cause of action for a balance in his hands is one upon contract and not in tort. Eobinson v. Stanley, 61 Misc. 608, citing Parmenter v. American Box Company, 44 App. Div. 4Y. Where one acts as a mere collecting agent in the collection of moneys due to the principal from third persons, it is the duty of the agent to pay over the money within a reasonable time, and if he neglects or refuses to do so, an action will lie against him without any demand of the money. Lillie v. Hoyt, 5 Hill, 395 ; Lyle v. Murray, 4 Sandf. 590. An agent who has collected money on account of his principal, must give immediate notice of the fact. Ih. No demand is necessary before commencing an action against a purchasing agent, acting under a yearly employment, for breach of contract in failing to properly perform his duty of accounting justly and honestly to his principal. Carr v. Thompson, 87 N. Y. 160. The case of a foreign factor or commission merchant who has sold goods on account of his principal is different in respect to demand before suit. See Carr v. Thompson, 87 N. Y. 160, 165. He is not bound to remit the proceeds until he has received the instructions of his principal as to the time and mode of re- mittance, for the reason that he is not bound to take upon him- self, the hazard of a remittance, which, should he act without authority, the law would cast upon him. Lyle v. Murray, 4 Sandf. 590; Ferris v. Paris, 10 Johns. 285; Halden v. Crafts, 4 E. D. Smith, 490; Baird v. Walker, 12 Barb. 298. This is the general rule. But when from the usual course of business or special con- tract and instructions, a different practice has been pursued, it is the duty of the consignee to remit without waiting for demand. PEINCIPAL AND AGENT. 277 Middleton v. TwomUy, 125 N. Y. 620. Where goods axe left with a mercantile firm, to sell on commission, and a demand is subsequently made by the owner upon a member of the firm, for the goods or a settlement, which is not complied with, this is a sufficient demand to authorize a suit. Baird v. Walker, 12 Barb. 298. In respect to the sale of agricultural products on commission the Consolidated Laws provide as follows : "Any person doing busi- ness in this State as a commission merchant, or who receives from any person of this State agricultural products or farm produce raised in this State to sell on commission, shall immediately on receipt of the goods, send to the consignor a statement in writing, showing what property has been received. When any such person or commission merchant shall have sold twenty-five per centum of such property received by him, he shall, when requested, imme- diately render a true statement to the consignor, showing what portion of such consignment has been sold and the price received therefor." Section 39Y General Business Law; Chapter 20 Con- solidated Laws; Chapter 25 Laws 1909, formerly section 39 Do- mestic Commerce Law, Laws 1896, chapter 376. Its violation is made a misdemeanor by section 433 of the Penal Law. Where goods are consigned to joint factors, the consignees are in the nature of co-obligors, and each is liable for the whole. And although upon a dissolution of the partnership, one retires and the other sells the goods and receives the avails, yet an action lies against both for not fulfilling their duty in selling and accounting,, and they may both be held liable for not accounting. Briggs v. Briggs, 20 Barb. 477; S. C. 15 E". Y. 471. A factor or commission merchant is not liable to pay over money until it is due upon the sales made by him for his principaL Leverick v. Meigs, 1 Cow. 646. This rule does not require ai factor or commission merchant to pay over the money until it is actually received, when the factor acts diligently and in good faith in collecting it. But where the factor is acting under a del credere commission, he must pay over the amount of the sales when the price is due, although it may not be paid, since the factor or commission merchant in such a case is liable to pay the amount whether the purchaser is responsible to pay or not. Wolff v. Kop- pel, 2 Denio, 368; Sherwood v. Stone, 14 N. Y. 267; Cartwrighi V. Greene, 47 Barb. 9. An action will not lie against a factor or agent to whom goods 278 PEINCIPAL AND AGENT. are sent to be sold at auction, without a demand of the proceeds, or instructions to remit, before suit brought. Cooley v. Betts, 24 Wend. 203. Where property is delivered to freighters and factors to be transported to market, and there sold for the benefit of the owner, an action will not lie against them, unless a sale of the prop- erty and the receipt of the proceeds by the defendants is proved, or may be presumed from the lapse of time and other circum- stances. Brinh v. Dolsen, 8 Barb. 337. The rule is, that there must be a demand of the proceeds ; or instructions to remit, which may be given at the time the property is delivered to the factor, or afterwards; or, that it is according to the course of the busi- ness to remit without demand or instructions, which must bo proved at the trial. Cooley v. Betts, 24 Wend. 203 ; Brink v. Dol- sen, 8 Barb. 337. It should be remembered that the proceeds of sales made by a commission agent, whether in the form of money, notes or other securities, are specifically the property of his principal subject to the lien of the agent for advances and other charges, and that the agent holds the proceeds upon an implied trust to account for them and pay them over to the principal, unless the relations of the parties have been modified by express agreement, or by agree- ment implied from the course of business or dealing between them. Baker v. N. Y. Nat. Exchange Bank, 100 IST. Y. 31. The duty of a treasurer is to keep the moneys of his principal distinct from his own, unless otherwise agreed, and to pay any balance due on demand. Second Avenue R. E. v. Colemam,, 24 Barb. 300. Where the plaintiff was a corporation, and issued its bonds, which were placed in the hands of the defendant for sale, and he sold them and received the money for them, the plain- tiff may maintain an action against the defendant to recover the amount of money received by him, although the issuing of the bonds was unauthorized. Mayor of Auburn v. Draper, 23 Barb. 425. When an agent, having a sum of money in his hands be- longing to his principal, is authorized to remit it by purchasing a bill of exchange, he should purchase the bill with such money, and not by using his own credit. Stone v. Hays, 3 Denio, 575 ; ;S^. C. 7 Hill, 128. If a loss occurs in such a case, in consequence of neglecting or refusing to obey instructions, it will fall upon the agent. lb. Where Mead, a merchant abroad, consigned goods to Toland for sale for his account, and Toland sent them to Murray for sale ; it was held, that Murray was bound to account to Toland PKINOIPAL AND AGENT. 279 for the proceeds, as his principal, and that Murray could not re- tain them to satisfy a demand of his own against Mead, and that Toland could maintain an action in his own name. Toland v. Murray, 18 Johns. 24. But where the plaintiff, who was a mer- ■chant in New York, consigned goods to the master of a vessel "bound to Havana, for sale, and the master on his arrival there, de- livered the goods to the defendants, who were commission mer- ■chants, for sale ; it was held that the master having no authority to pledge the goods for his own account, the defendant by receiv- ing the goods, with knowledge that they belonged to the plaintiff, became substituted as factors or agents, in place of the master, :and were accountable to the plaintiff for the proceeds; and that they could not retain them for any advances made by them to the master, or for a balance of an account arising from the transac- i;ions between them and the master. BucMey v. Packard, 20 Johns. 422 ; Bonito v. Mosquera, 2 Bosw. 401. Money collected by an attorney for his client, must be de- manded, or a direction to remit given and neglected, before a suit can be brought therefor. Walradt v. Maynard, 3 Barb. 584 ; Rathbun v. Ingals, 7 Wend. 320 ; Stafford v. Richardson, 15 Wend. 302 ; Taylor v. Bates, 5 Cow. 3Y6. But where the attor- ney denies his liability to pay, and sets up a claim against his •client, exceeding the amount collected, this amounts to a waiver of a legal demand. Walradt v. Maynard, 3 Barb. 584. But such ■claim does not dispense with a demand unless the declaration is made to the plaintiff, or to his agent, nor unless it is shown to have come to the knowledge of the plaintiff before the suit is ^Drought. Rathbun v. Ingals, 7 Wend. 320. When an attorney is shown to be in possession of his client's money, and he is called upon to account, he is bound to show in •detail what he has done with the money, and to justify its re- tention and expenditure. He cannot merely state that he has re- tained it for counsel fees and for moneys which he has paid out on account of his client. Matter of Raby, 29 App. Div. 225 ; Mat- ■ter of Ernst, 54 App. Div. 363. Where an order is given for the purchase and transmission of a cargo of merchandise, a substantial compliance with the order on the part of the factor will charge the principal. The omission of the factor to acknowledge the receipt of the order, and to signify his acceptance of the commission will not discharge the principal, where the order is complied vsdth, and advice thereof 280 PEINCIPAL AND AGENT. given within a reasonable time ; and what will be deemed a reason- able time depends upon the course of the particular trade, and the peculiar circumstances of the case; it is not a question of law, but of fact, to be submitted to and passed upon by a jury, or the justice. Parhhill v. Imlay, 15 Wend. 431. § 8. Commissions of Factors, Brokers, Etc. The amount of commissions which a factor or broker is to re- ceive is either regulated by an express agreement between the parties, by the usage of trade, or in some cases by statute. The idea of the word "commission" involves the meaning that a sum of money is paid to an agent for affecting a sale to a third person. Oliver Refining Go. v. Aspegren, 137 N. Y. Supp. 1057. Section 1 of article 1 of title 19 of chapter 20 of part 1 of the Revised Statutes, as amended by chapter 467 of the Laws of 1895 and now known as Sections 380, 381 and 382 of the General Business Law, chapter 20 of the Consolidated Laws, provides : "No person shall directly or indirectly, take or receive more than fifty cents for a brokerage, soliciting, driving or procuring the loan or forbearance of one hundred dollars, and in that proportion for a greater or less sum, except loans on real estate security ; nor more than thirty-eight cents for making or renewing any bond, bill, note or other security given for such loan or forbearance, or for any counter bond, bill, note or other security concerning the same." If more than that sum is taken, the excess may be recovered back at any time within one year. Id. This statute ap- plies to those cases only in which a loan of money is involved. In other cases the parties may agree upon such a commission as they choose, or they may leave it to the usage of trade. Where commissions are allowed to a captain on his sales and in- vestments, this will not entitle him to them on goods which he carries to deliver according to a contract antecedently made by his employer, and for which he does not receive payment. Miller v. Livingston^ 1 Gaines, 349. There is no provision in the statute cited rendering an agree- ment or contract to pay a greater sum than that prescribed wholly void. One who renders service as a broker under an agreement to pay a higher compensation is entitled to receive pay for his services, but he cannot recover more than the statutory compen- sation. Buchanan v. Tilden, 18 App. Div. 123. The broker can- PEIISrCIPAL AND AGENT. 281 not charge more than one-half of one per cent, for negotiating or procuring a loan, whatever may he the length of time for which the loan is made. Broad v. Hoffman, 6 Barb. 177 ; Corp v. Brown, 2 Sandf. 293. The application of the statute is not limited to brokers engaged in the occupation of solicting and procuring loans. The statute is not limited to persons, but applies to the character of the service rendered; and no person, whatever his calling or occupation, can recover for services rendered in pro- curing a loan any greater sum than that allowed by statute. Buchanan v. Tilden, 18 App. Div. 123. In order to enable a broker to recover the "usual commission" proof of the ordinary rate is necessary. Kohen v. Kieley, 129 App. Div. 353. Where a broker has found a lender able and willing to loan the required amount on a piece of property, if the title is good, a failure to complete the loan by reason of a defect in the title, will not deprive him of his commissions. Egan v. Kieferdorf, 16 Misc. 385; McQuillen v. Carpenter, 72 App. Div. 595; Michaelis v. Rojfmann, 37 Misc. 830 ; Dorlon v. Forrest, 101 App. Div. 32. But a broker employed to make a building loan on real estate is not entitled to commissions on mere proof that he has secured a person able and willing to make the loan, who was accepted by his principal. The contract of brokerage in the matter of a loan differs from one with respect to a sale of real estate, in that it is not regarded as fully performed until the prospective lender actually makes the loan or refuses because of the fault or mis- carriage of the principal. Duckworth v. Rogers, 109 App. Div. 168. So held also in HolUday v. Roxhury Distilling Co. 130 App. Div. 716. And a broker does not show his right to commissions for procuring a loan by proof that he procured an agreement from a third person to make a loan, which was not made in fact for un- explained reasons. Rosenthal v. Gunn, 119 N. Y. Supp. 165. So a broker or agent employed to sell property for a specified com- mission, who has found a purchaser willing to purchase at the price fixed by the principal, cannot be deprived of his com- missions by reason of a failure to complete the sale by reason of a defect of title. Doty v. Miller, 43 Barb. 529. The rule is the same where the employment is to purchase or exchange real estate, and the broker has performed his part of the contract by bringing together parties ready to contract for the sale or exchange and 282 PKINCIPAL AND AGENT. the negotiations have fallen through by reason of defect of title. Enapp V. Wallace, 41 IST. Y. 477; Kalley v. Baker, 132 N. Y. 1. In an action for commissions it is not necessary for the broker to show that he actually brought the proposed purchaser into the physical presence of the defendant where the latter's positive re- fusal to go on with the sale on any terms rendered that unneces- sary. Freeman v. Folstein, 49 Misc. 644, 97 K Y. Supp. 1032. A broker employed to procure a purchaser is entitled to his com- missions if the contract is signed, and fixing the time of payment or the closing of the title does not make the closing of the title a condition precedent to his recovery. Meltzer v. Straus, 61 Misc. 250, 113 N. Y. Supp. 583 and cases cited. See also Sotshy r. Ginshurg, 129 App. Div. 441; Eohkold v. Sussman, 113 IST. Y. Supp. 586; Thain v. PUlbrick, 74 N. Y. Supp. 856; Miller v. Barth, 36 Misc. 810 ; Cody v. Dempsey, 86 App. Div. 335 ; Charles V. Cook, 88 App. Div. 81; Scherer v. Colwell, 87 N. Y. Supp. 490; Sampson v. Ottinger, 93 App. Div. 226; Martin v. Fegan, •95 App. Div. 154; Suydam v. Healy, 93 App. Div. 396 ; Martin v. Wermann, 107 App. Div. 482 ; Rosenthal v. Emerson, Realty Co. 126 N. Y. Supp. 85. But real estate brokers employed to effect an exchange of property cannot recover commissions for procuring a contract with a party whom they knew had no title to the property agreed to be given in exchange. Wiley v. Kraslow Construction Co. 141 App. Div. 706. A real estate broker for the exchange of properties who procures an enforceable contract however, is en- titled to his commissions although the contract was never per- formed and one of the parties was never in a position to perform. Slocum V. Ostrander, 141 App. Div. 380. See also Brink v. Goodelle, 138 N. Y. Supp. 1035. To entitle a plaintiff to commissions on a sale, it is necessary, first, that he should establish his authority to act as the agent or broker of the defendant, either by previous employment, or by the acceptance of his agency and the adoption of his acts; and secondly, he must show that his agency was the procuring cause of the sale. Chilton v. Butler, 1 E. D. Smith, 150 ; Smith v. McGovern, 65 N. Y. 574; Wylie v. Marine Nat. Bank, 61 IST. Y. 415 Sussdorff v. Schmidt, 55 IST. Y. 319 ; Ware v. Dos Passos, 162 K Y. 281; Fowler v. Hoschke, 53 App. Div. 327. But a real estate broker who, throughout a transaction acts really as the agent of the intending purchaser, rather than as that of the vendor, cannot recover commissions from the vendor. Kaake v. Griswold, PEINCIPAL AND AGENT. 283 104 App. Div. 13Y. And the question of the broker's authority is a. question for the jury. Cohn v. McCreery Bedty Corp., 102 App. Div. 611. In the absence of a written contract employment of a broker is sufficiently established by evidence that the owner asked as to rates of commissions, and asked the broker to keep a person interested in her house, and told the same person that she had to give the broker commissions. Bees v. Gair^ 144 App. Div. 294. If a broker, without previous request, brings a customer to a vendor, and the latter without further acceptance of the broker's services, takes the customer, the broker is not entitled to compensa- tion. An owner is not obliged to refuse a possible customer be- cause services which he has not requested have been obtruded upon him, nor can he be held liable for commissions by reason of an alleged acceptance and ratification of the broker's acts, where no claim was made by the latter, and the fact that he was acting as a broker was not made known to the owner before the sale. Fowler v. Hoschhe, 53 App. Div. 327; Campbell Printing Press Co. V. Yorhston^ 11 Misc. 340, 344. A mere volunteer is not en- titled to commissions, though he introduced the purchaser. Mc Vichar v. Roche, 74 App. Div. 397; Benedict v. Pell, 70 App. Div. 40; Pierce v. Thomas, 4 E. D. Smith, 354; Sihhaldr. Bethle- hem Iron Co. 83 N. T. 378. The contract of employment may be established either by proof of an express and original agreement that the services should be rendered, or, in the absence of such express agreement, by facts showing a conscious appropriation of the labors of the broker. Sihbald v. Bethlehem Iron Co. 83 N. Y. 378. A broker employed by a purchaser to procure real estate is not deprived of his commissions by the fact that the latter took title in the name of his wife. Bloch v. Lowe, 51 Misc. 8. One who had employed a broker to sell real property without disclosing the fact that he was acting merely as an agent. Held, personally liable for commissions. Taiiienhlcdt v. Galewski, 108 ~N. T. Supp. 588. If there was in fact an employment of the broker, and he was the producing cause of the sale, his right to compensation will not be affected by the circumstance that the owner was ignorant of it at the time he entered into the contract with the purchaser. Sussdorjf v. Schmidt, 55 N. Y. 320. The phrase, "procuring cause of sale," so frequently used in the reported cases has no definite meaning, apart from the special and peculiar circumstances surrounding each particular case in 284 PKINCIPAL AND AGENT. which it is used. But whatever may be the terms employed by ther authorities, the fundamental doctrine is that the duty assumed by a broker, employed to sell, is to bring the minds of the buyer and seller to an agreement for a sale, and while it is not essential that he should be present and an active participator in the agree- ment or sale when it is actually concluded, still he must produce a purchaser ready and willing to enter into a contract on the em- ployer's terms. Where the proposed purchasers of a house agreed verbally to buy it on certain terms, which were to be embodied in a written contract, but when the time arrived for the signing of the contract, insisted upon more onerous terms, and the owner refused to execute the contract, the broker has not produced a purchaser ready and willing to make a contract upon the terms- prescribed, and cannot recover commissions. Weiss v. Rubinson, 112 App. Div. 276. He is not entitled to commissions for un- successful efforts to effect a sale unless the failure is caused by the fault of the principal. Sihbald v. Bethelehem Iron Co. 83 N. Y. 378. An owner may employ several brokers for the sale of the- same property, and will be liable for commissions to the one only who effects the sale. And, although he employs one or more brok- ers he may negotiate and sell the property himself, and if he does, so without any agency of the broker, the latter will not be entitled to commissions. To earn his commissions the broker must be an efficient agent in or the procuring cause of the contract. McClave V. Paine, 49 IST. Y. 561; Sussdorff v. Schmidt, 55 N. Y. 320;. Colwell V. TomphinSj 6 App. Div. 93 ; Lloyd v. Mathews, 51 IST. Y^ 124; Lyon v. Mitchell, 36 E". Y. 235; Briggs v. Rowe, 4 Keyes, 424. Brokers were held not entitled to a commission for procur- ing a customer for their principal's real estate, where he sold the- premises to another before they produced their customer. Etting- hoff V. Horowitz, 115 App. Div. 671. But if a purchaser is found by his efforts and through his- instrumentality his right to commissions will not be defeated by reason of the fact that the owner has negotiated the sale himself. Chilton V. Butler, 1 E. D. Smith, 150 ; Lloyd v. Mathews, 51 IST. Y. 124 ; Sussdorff v. Schmidt, 55 N. Y. 319. Where, however, the broker opens the negotiations, but fails to bring the customer to the terms specified, and abandons the negotiations, he is not en- titled to commissions, although the employer subsequently sells the property to the same person at the price fixed. Wylie v.. Marine Nat. Bank, 61 N. Y. 415. So, where the broker has had PEINCIPAL AND AGENT. 285 a reasonable time to procure a purchaser and effect a sale, and has failed to do so, the principal may in good faith terminate the agency and afterward consummate the sale by other agencies to the person whom the broker introduced without becoming liable to the broker for commissions. Sibbald v. Bethlehem Iron Co. 83 N. Y. 378. Schano v. Storch, 107 IST. Y. Supp. 26. This is the rule where no time is fixed during which the agency is to continue. lb. But if the broker, by the terms of his employment, has an exclusive right to sell the property for a specified time, and pro- duces within that time a purchaser, able and willing to purchase at the price fixed, he is entitled to the commission agreed upon, although the owner had previously sold the property, and the broker had been informed of the fact before he secured a pur- chaser. Schultz V. Oriffin, 5 Misc. 499. See Vandeveer v. 8uy- dam, 83 Hun, 116. If the broker fails to find a purchaser who will pay the price fixed by the owner, the latter may in good faith sell for a less price without being liable to the broker for commissions. Satter- thwait V. Vreelandj 3 Hun, 152. And where the authority of the broker was to sell the property for $105,000 or more, it was held that he was not entitled to recover commissions for a sale for that amount when he could have procured a purchaser at $110,000. Lichtenstein v. Case, 99 App. Div. 570. The broker is not en- titled to commissions until he has found a purchaser ready and willing to complete a purchase on the terms prescribed by the seller and assented to by the broker. Fraser v. Wyckoff, 63 N. Y. 445 ; Moses v. Bierling, 31 N. Y. 462. A broker employed to sell real estate must show performance of the entire contract to entitle him to commissions. Carpenter v. Atlas Improvement Co. 123 App. Div. 706. If, however, the authority of the broker was lim- ited to a sale to a particular person, and a sale to him is not effected, his commissions are not earned by subsequently procuring another person ready and willing to buy. Breen v. Rives, 16 App. Div. 632 ; Meyer v. Straus, 42 App. Div. 613. The principal is entitled to know the name of the proposed purchaser, and so long as there is any uncertainty in this particular the broker is not entitled to commissions. Gerding v. Haskin, 141 IST. Y. 514. A broker who concealed from his principal the identity of the real owner of the property in question, and who misrepresented the responsibility of the person with whom he was dealing, and 286 PEINCIPAL AND AGENT. whose bond and mortgage the principal was to take, was held not entitled to commissions. Low v. Woodbury, 107 App. Div. 298. Bad faith on the part of the broker in working against the in- terests of his principal, as by trying to obtain a reduction of the price fixed, although already accepted by the proposed purchaser, will defeat his claim for commissions. Martin v. Bliss, 57 Hun, 157. Where brokers who procured the sale of land secretly ob- tained an interest in the transactions hostile to their principal, he was entitled to recover back the commissions paid them. Guir detti V. Tuoii, 102 N. Y. Supp. 499. Where a factor, agent or broker misconducts himself in the business of his agency, so that his services have not, by reason of his misconduct, negligence or fraud, been of any benefit to his principal, or they have not proved as beneficial as they otherwise would but for his misconduct, he forfeits his right to compensation. Boston Carpet Go. v. Joumeay, 1 Daly, 190. But, where it appeared that a commission merchant, in rendering an account of his sales, had returned certain sales as having been made at a lower rate than appeared on his books, it was held that, although the principal might recover the differ- ence between the sales actually made and those returned, yet, no fraud being proved, he could not recover the commissions already paid and allowed to the merchant for services actually performed in and about the business. lb. So bad faith on the part of the principal by which the broker was prevented from complete per- formance of his undertaking may excuse such performance and entitle the broker to commissions as for complete performance. Garroll v. Pettit, 67 Hun, 418. Where there is an express agreement as to the amount of com- missions to be paid, in cases other than for the loan of money, that will control the usage in that respect, and the amount agreed upon will be the amount recoverable. Main v. Eagle, 1 E. D. Smith, 619. To entitle a plaintiff to recover a broker's commission, on the ground that brokers are accustomed to charge and receive com- missions for such services as he has rendered, he must show that he is a broker. lb. Where a broker effects a loan, without any agreement as to the amount to be paid for his services, the fact that he afterwards presents to the borrower, and the latter prom- ises to pay, a bill for commissions charged at a greater rate than the statute allows, will not forfeit his right to legal compensa- tion. Vanderpoel v. Eea/ms, 2 E. D. Smith, 170. The general rule is, that a factor or a broker, etc., is not entitled to his com- PEIFOIPAL AND AGENT. 28T pensation or commissions until the whole service is performed. In case of sickness, however, he may recover what his services are worth for what he had done, since that will excuse a complete performance. Wolfe v. Howes, 24 Barb. 174; S. C. 20 N. Y. 197; Fahy v. North, 19 Barb. 341. If, in consequence of the unskillfulness or negligence of the broker or factor, the principal receives no benefit, or if he is injured in consequence thereof, the factor or broker cannot recover any commission. So when the employment is illegal, no compensation can be recov- ered. Watts V. Van Ness, 1 Hill, 76 ; Smith v. Wilcox, 19 Barb. 581 ; Smith v. Wilcox, 25 Barb. 341. And see Merritt v. Earle, 31 Barb. 38. Besides commissions, agents are entitled to be reinbursed for all advances which they may make in the regular course of a legal employment. Such are the incidental charges for duties, ware- house room, and all payments for the necessary care and preser- vation of the property committed to their care. ■ § 9. Lien of Agents, Factors, Etc. Agents, factors and bailees frequently have a lien upon the property which is in their possession. This lien is the right which exists of retaining the possession of such property, until some demand of theirs is satisfied. A lien may arise in either of three ways: 1. By an express agreement; 2 By a general course of dealing in the trade in which the lien is set up ; and, 3. From the particular circumstances of the dealing between the parties. The law in relation to liens generally, will be discussed elsewhere; and, therefore, but few eases will be noticed here, and those such as relate to the lien of factors or agents. It is well settled that a factor has a lien upon each portion of goods in his possession for his general balance, as well as for charges arising upon those particular goods, including responsibilities incurred in the execu- tion of his agency. Knapp v. Alvord, 10 Paige, 205 ; Bradford v. Kimberly, 3 Johns. Ch. 431; EoTbrooh v. Wight, 24 Wend. 169; Corlies v. Cumming, 6 Cow. 181; Myer v. Jacohs, 1 Daly, 32. This right exists universally by the custom of trade. It is a part of the law merchant, and as such is judicially taken notice of by the courts, no proof ever being required, as a matter of fact, that such general lien exists. This lien for a general balance can be claimed in those cases only in which the goods came into his hands 288 PEIlSrCIPAL KNB AGENT. as factor. The lien does not extend to a collateral debt, not grow- ing out of the relationship of principal and factor, such as a debt due for rent, etc. This general lien in favor of the factor, is not confined to a general agency, but it applies as well to a limited number of distinct transactions as to a continuous dealing. Whenever the relation of principal and factor exists, the right of lien attaches to secure all advances made or liabilities incurred iii the course of his business by the factor, and the lien may be enforced as well by a purchasing factor as by a selling factor. Bryce v. Broohs, 26 Wend. 367. A lien for advances does not attach until the property is separated from other similar property, so as to be capable of identification. When a warehouseman receiving flour for shipment, gives receipts, from time to time, for the quantity in store not previously receipted, to be delivered to the owner's factor, upon which the factor accepts the owner's drafts, no title to the flour receipted passes unless it was actually separated from the mass by a delivery or by some mark or designation by which it could be specifically known. Gardiner v. Swydam, 7 N. T. 357. The only effect of the receipt in such a case is to give the factor a right to demand from the receiptor the delivery of the flour. Ih. Factors who receive from their principals a bill of lading of property shipped to them to sell, with a letter requesting them to insure, and informing them of a draft on account of proceeds, acquire no lien upon it until they have accepted the consignment upon the terms of the letter. Winter v. Coit, 7 N. Y. 288. They acquire no lien for their general balance before the property is actually received by them, unless in pursuance of an express agree- ment, or one implied from their dealings with their principal. The existance of such an agreement is a question of fact. Ih. Where the party who consigns goods is indebted to the consignee before the goods are consigned, and the consignor agrees that in consideration that the consignee will make further advances, such consignee shall have a lien upon the goods consigned for the entire debt, both the old one, and for the new advances; and goods are consequently consigned to the consignee under this ar- rangement, he may retain the goods until the whole amount is paid. Chapman v. Kent, 3 Duer, 224. And see Grosvenor v. Phillips, 2 Hill, 147. An agent to receive consignments of goods for his principal and sell them, and who is indebted to his prin- cipal for money received for goods sold, has no lien upon goods PEINCIPAL AND AGENT. 289 snbsequently consigned for expenses paid on account thereof, unless such expenses exceed the amount of such indebtedness. Enoch V. WehrJcamp, 3 Bosw. 398. The lien of an agent and factor on the goods of his principal for specific expenses does not «xist when the general balance of account is against him. Ih. A factor's lien on merchandise consigned to him is expressly recognized by statute. "A person, in whose name any merchan- dise shall be shipped, is deemed the true owner thereof so far as to entitle the consignee of such merchandise to a lien thereon, 1. For any money advanced or negotiable security given by such consignee, to or for the use of the person in whose name 8uch shipment is made ; and 2. For any money or negotiable security received by the per- son in whose name such shipment is made, to or for the use of such consignee. Such lien does not exist where the consignee has notice, by the bill of lading or otherwise, when or before money is advanced or security is given by him, or when or before such money or secu- rity is received by the person in whose name the shipment is made, that such person is not the actual and iona fide owner thereof." Xaws 1909, section 182, chapter 38. Cons. Laws, chap. 33, sec. 182. § 10. Notice to the Agent, when Notice to his Principal. It is the duty of every agent to notify his principal of every fact which comes to his knowledge, and which may materially affect the rights or interests of such principal. The law presumes that an agent will perform this duty, and, therefore, the rule is conclusively settled that the principal knows whatever the agent knows. Notice given to an agent relating to the business which lie is authorized to transact, and while actually engaged in trans- acting it, will, in general, serve as notice to the principal. Mc- Ewen V. Montgomery Co. Ins. Co. 2 Hill, 101; Bank of U. 8. V. Davis, 2 Hill, 452 ; Bennett v. Buchan, Y6 N. Y. 386 ; Hyatt V. Cla/rh, 118 N. T. 563; Adams v. Mills, 60 N. Y. 533, 539; Myers v. Mutual Life Ins. Co. 99 N. Y. 1, 11; Brinherhoff v. JSartwell, 85 Hun, 557; Meehan v. Forrester, 52 N. Y. 277; Knox V. Schoenthal, 36 St. Rep. 595. So knowledge of a par- ticular fact, acquired by an agent in the course of his business, is the knowledge of his principal. Sutton v. Dillaye, 3 Barb. 529. 19 290 PEINCIPAL AND AGENT. It is a fundamental principle of the law of agency that for in- formation given an agent to be attributable to his principal the information must be imparted to the agent in the course of his agency. Butler v. Michigan Mutual Life Ins. Co. 184 N. Y. 337. So, all the members of a company are chargeable with knowledge of the entries made on their books by their agent in the course of his business, and with the true meaning of the entries as under- stood by the agent. Allen v. Coit, 6 Hill, 318. And in an action against the company, if there is anything obscure in the entries, the plaintiff may prove by the agent what was meant. Ih. So the directors or managers of a banking corporation are chargeable with notice of such matters relating to the ordinary business of the institution as are known to the cashier. New Hope, etc. Go. V. Phoenix Banh, 3 N. Y. 156. And see Holden v. New York & Erie Banh, 72 N. Y. 290. The rule that notice to the agent is notice to the principal is sometimes stated so as to limit it to notice arising from, or at a time connected with the subject-matter of the ag'ency. Such notice, it is said, must have come to the agent while he was con- cerned for the principal and in the course of the very transaction or so near before it that the agent must be presumed to recollect it. See Story on Agency, § 140. This limitation applies more particularly to the case of an agent whose employment is short- lived, so that the principal shall not be affected by knowledge that came to the agent before the employment began, nor after it was terminated. But where the agency is continuous, and concerned with a business made up of a long series of transactions of a like nature, of the same general character, knowledge acquired as agent in that business in any one or more of the transactions, making up from time to time the whole business of the principal, is notice to the agent and to the principal, which will affect the latter in any other of those transactions in which that agent is engaged in which that knowledge is material. Holden v. New York & Erie Banh, 72 IST. Y. 286. Thus, notice to an agent of a bank or other corporation intrusted with the management of its business, or of a particular branch of its business, is notice to the corporation in transactions conducted by such agent, acting for the corporation, within the scope of his authority, whether the knowledge of such agent was acquired in the course of the par- ticular dealing, or on some prior occasion. Ib.j Cragie v. Had- ley, 99 N. Y. 131. But information not communicated to the PRINCIPAL AOT3 AGENT. 291 agent of the bank as its officer, and not acquired by bim while engaged in its business, does not belong to the bank, is not pre- sumed to have been communicated to it, and is not chargeable to it. Atlantic State Bank v. Savery, 82 IST. Y. 291; Casco Nat. Banh v. ClarTc, 139 N. T. 307. The rule that notice to the agent is notice to the principal is only applicable to cases where the agent is acting in the course of his employment. Weisser v. Denison, 10 E". Y. 68 ; Welsh v. German-American Banh, 73 N. Y. m. The farthest that has been gone in the way of holding a principal chargeable with knowledge of facts communicated to his agent, where the notice was not received, or the knowledge obtained, in the very transaction in question, has been to hold the principal chargeable upon clear proof that the knowledge which the agent once had, and which he had obtained in another transaction, at another time and for another principal, was present to his mind at the very time of the transaction in question. Constant v. University of Rochester, 111 !N". Y. 604. The general rule that notice to the agent, while acting within the scope of his authority and in regard to a matter over which his authority extends, is notice to the principal, rests upon the duty of disclosure by the former to the latter of all the material facts coming to his knowledge with reference to the subject of his agency and upon the presumption that he has discharged that duty. This presumption does not always arise, and there are several exceptions well recognized by the authorities. Thus, when the agent has no legal right to disclose a fact to his principal, or he is engaged in a scheme to defraud his principal, the presumption does not prevail, because he cannot in reason be presumed to have disclosed that which it was his duty to keep secret, or that which would expose and defeat his fraudulent purpose. Henry v. Allen, 151 K Y. 1 ; Benedict v. Arnoux, 154 IST. Y. 715 ; Nat. Life Ins, Co. V. Minch, 53 JST. Y. 144; Mayor v. Tenth Nat. Banh, 111 IST. Y. 446. When an agent abandons the object of his agency and acts for himself by committing a fraud for his own exclusive benefit, he ceases to act within the scope of his employment and to that extent ceases to act as agent. Henry v. Allen, 151 IST. Y. 1 ; Shipman v. Bank of New York, 126 N. Y. 318; 331; Welsh v. German-American Bank, 73 IST. Y. 424 ; Bienstock v. Ammidown, 155 ]Sr. Y. 47, 60. The rule of constructive notice to a principal has no operation. 292 PRINCIPAL Al^D AGENT, in a case where the agent himself has not received actual notice. Wheatland v. Pryor, 133 N. Y. 97. In partnerships each memebr acts for himself, and as an agent for his copartners, or the firm, in all matters relating to the ordi- nary business of the firm. And when one partner, without au- thority, and for his own exclusive benefit, indorsed a promissory note, made by himself, in the firm name, and the indorsee took the note with full knowledge of the facts, it was held that his co- partner was bound by a subsequent promise to pay the note, with- out any independent consideration. Commercial Bank v. Warren, 15 ]Sr. Y. 577. And see Lawrence v. Taylor, 5 Hill, 107. The rights, powers and duties of partners will be elsewhere discussed. § 11. Liability of Principal for Acts of Agent. One who has employed an agent is responsible for his acts, so long as he acts within the limits of the authority with which he has been apparently clothed, with respect to the subject-matter. Dunning v. Roberts, 35 Barb. 463 ; Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 85 ; WitbecJc v. Schuyler, 44 Barb. 469 ; 31 How. 97. But while the principal is bound by his agent's acts when he justifies a party dealing with his agent in believing that he has given to the agent authority to do those acts, he is re- sponsible only for that appearance of authority which is caused by himself and not for that appearance of conformity to the au- thority which is caused only by the agent. That is, he is bound equally by the authority he actually gives, and by that which, by his acts, he appears to give. Por the appearance of authority he is responsible only so far as he has caused that appearance. For the appearance of the act the agent alone is responsible. The fundamental proposition is that one man can be bound only by the authorized acts of another. He cannot be charged because another holds a commission from him and falsely asserts that his acts are within it. Figueira v. Lemer, 52 App. Div. 216 ; Conant v. American Rubber Tire Co. 48 App. Div. 327; Ed- wards V. Dooley, 120 N. Y. 540, 551. A principal is only bound by the act of his agent in excess or abuse of his actual authority, where a third person, believing and having a right to believe that the act was within the authority, has acted or refrained from acting in reliance thereon, and would sustain damage if the act of the agent was not considered that of PEINCIPAL AND AGENT. 293 the principal. Walsh v. Hartford Fire Ins. Co. 73 N. Y. 5. Henken v. Bchwicker, 67 App. Div. 196. Apparent authority operates only hy way of estoppel, and can take the place of real authority only when some person has acted upon the appearances. People V. Banh of North America, 75 N. T. 547. See Blass v. Terry, 156 N. Y. 122. The rule binding the principal for acts done by the agent within the scope of his apparent authority is established to prevent fraud, and proceeds also upon the ground that where one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third person to do the injury. Walsh v. Hartford Fire Ins. Co. 73 ISr. Y. 5. As a general rule, he who employs an agent shall lose by his fraudulent, negligent or illegal act, rather than an innocent person. The appropriation by an agent to his own use, of money borrowed by him for his principal, does not exonerate such prin- cipal from liability to the lender, if the agent had authority to borrow it. City Bank of New Haven v. Perkins, 4 Bosw. 420. So, if a creditor employs an agent to deliver a release upon certain specified conditions, and the agent disregards these conditions, and makes an absolute delivery, the creditor is bound by it, if the debt- or is thereby induced to do an act to his prejudice. Cornell v. Hasten, 35 Barb. 157. Where the defendant employs an agent to send a message by telegraph, and the agent writes and telegraphs the message in- correctly, the defendant will be held liable to the person to whom the message is sent, for such injuries as he may sustain in con- sequence 'of the inaccuracy of the dispatch. Dunning v. Roberts, 35 Barb. 463. An agent who acts under a general power of attorney which gives him power to draw or indorse checks for his principal, and in his name, has no authority to overdraw his principal's account at a bank. And as between the bank and the principal, an au- thority to an agent to sign checks is best interpreted by confining its use to the legitimate purpose for which the law presumes checks to be drawn, which is, to draw the money of the principal out of the bank. Union Ba/nk v. Mott, 39 Barb. 180, 182. And if overdrafts are made upon such an account by an agent, through a fraudulent collusion between him and a clerk of the bank, with- out the knowledge or sanction of the principal, who receives no part of the proceeds, the loss must fall upon the bank; because the loss was occaBioned by the fraud of its own clerk and servant. 294 PKINCIPAL AND AGEN'T. in the performance of his duties in the bank. Ih. The defend- ants sent their agent, B., to the plaintiff, with a written order for a load of rye, though nothing was said in the order as to the price, and B. had no authority to make a contract. The plain- tiff informed B. that his price for the rye was seventy-five cents a bushel and that he would let the defendants have it at that price, and he directed B. to inform the defendants what his price was; this B. omitted to do, but took away a load of rye, and on returning for another, falsely stated to the plaintiff that he had told the defendants the price, and that they did not object to it, whereupon he obtained another load. The market price for rye at that time was only fifty cents a bushel; and it was held that the plaintiff was entitled to recover the sum named to B. as his price for the grain. Booth v. Bierce, 40 Barb. 114. It was also held that, there being an apparent bargain and sale at the vendor's price, which was entered into on his part in good faith, and which he had a right to rely upon as a valid agreement on the part of the purchasers, if either party must suffer from the misunderstanding, it should be the one who employed the agent, by whom the fraud which occasioned the injury was practiced. Ih. And see Griswold v. Haven, 25 N. Y. 595. It is a universal rule, based upon principles of policy, propriety and justice, that if a principal puts his agent in a condition to impose on innocent third persons, by apparently pursuing his authority, the principal will be bound by his acts, and he must lose in preference to such third person. Dunning v. Roherts, 35 Barb. 463 ; Cooh v. Adams, 1 Bosw. 497 ; North River Bank v. Aymar, 3 Hill, 263 ; Farmers' &c. Bank v. Butchers' &c. Bank, 14 IST. Y. 623 ; 16 IST. Y. 125. This rule, however, applies in those cases only in which the agent does those acts which are usually within the scope of the duties of an agent in such matters. And when the agent has no legal authority to do the acts, the person dealing with the agent will be bound to take notice of the extent of his authority. The president of an insurance company, when not authorized by its charter or by-laws to do so, has no authority, as president, to indorse and negotiate notes belonging to it. An indorser of a note payable to the order of an incorporated com- pany, who takes it under an indorsement purporting to have been made by its president, or other agent, takes it at the peril of being able to show, when his title is questioned, that the person assuming to indorse it in the name of the company had authority to do the PEINOIPAL AND AGENT. 295 act. Marine Bank dec. v. Clements, 3 Bosw. 600; 31 N. Y. 33; Exchange Bank v. Monteath, 24 Barb. 371; Mechanics' Bank V. N. Y. & C. R. R. 13 N. Y. 599. A person dealing with the officers or agents of a corporation is bound to known their powers and the extent of their authority. Alexander v. Cauldwell, 85 N. Y. 480 ; Nutting v. Kings County El. R. Co. 91 Hun, 251 ; Jemison v. Citizens' Savings Bank, 122 JST. Y. 135; Wilson v. Kings County El. R. Co. 114 JST. Y. 487; Adriance v. Roome, 52 Barb. 399. "There are in the books many loose expressions concerning the distinction between a general and a special agency. The dis- tinction itself is highly unsatisfactory, and will be found quite insufficient to solve a great variety of cases. It is not profitable to dwell upon that distinction. Underlying the whole subject there is this fundamental proposition, that a principal is bound •only by the authorized acts of his agent. This authority may be proved by the instrument which creates it; and beyond the terms of the instrument, or of the verbal commission, it may be shovm that the principal has held the agent out to the world in other instances as having authority which will embrace the particular act in question. I know of no other mode in which a controverted power can be established. But in whichever way this is done, it cannot be limited by secret instructions of the principal on the ■one hand, nor can it be enlarged by the unauthorized representa- tion of the agent on the other." Comstock, J., in Mechanics' Bank v. N. Y. &c. R. R. 13 K Y. 632. And see Munn v. Com- mission Co. 15 Johns. 44; Beals v. Allen, 18 id. 363. If the act upon which a common carrier is sought to be charged is the act of an agent, his authority must be made out, and it is a question of fact for the jury or the justice. Thurman v. Wells, 18 Barb. 500. Where an express company advertises that a faithful special messenger will be sent in charge of each express to its destination, this does not imply any authority in the messenger to engage for or receive freight at intermediate ports for his prin- cipal. Ih. Where a party is sought to be made liable for the acts of his agent, the authority of the agent to bind his principal juust be proved, either expressly, or impliedly from his conduct as sanctioned by his principal. Ih. A party is not responsible for the acts of another as his agent, except upon an actual delega- tion of power, or one implied from the charactertistic designation of the agent, or the sanctioning of his conduct, implying the 296 PKINCIPAL ANT) AGENT. nature of his authority. li. A principal is liable, however, for the acts or the neglect of an agent who is employed to do an act which the principal has agreed to do himself. A party who cove- nants "to take proper means" for the collection of a bond and mortgage, is responsible for the laches of every agent employed by him in proceedings for the collection, even though such agent be a lawyer in good standing, and although the delay arose from an error in judgment which would be excusable between the at- torney and his client. Hoard v. Oarner, 10 N. Y. 261. A hona fide holder, for value, of a check, negotiable upon its- face, and certified to be good by the paying teller of the bank upon which it is drawn, whose authority to certify is limited to cases where the bank has funds of the drawer in hand sufficient to cover the check, can enforce the payment of the check, al- though the drawer has not such funds, and the check was certi- fied by the teller, without funds, in violation of his duty, for the mere accommodation of the drawer, and upon his promise that it should never be presented for payment. Farmers' &c. Bank v. Butchers' &c. BanJc, 16 E". Y. 125, 138. In such a case the bank gives authority to its agent to certify checks, and the private instructions which were given to the agent, cannot affect a bona- fide holder of negotiable paper which the plaintiff received for value. The bank or the holder must suffer a loss, and the bank must lose the amount since it put it into the power of its agent to perpetrate a fraud upon an innocent person. But the bank is not liable to any person who is not a holder of the check in good faith, and for value. Meads v. Merchants' Bank, 25 ISr. Y. 143. And if a check is drawn by a bank president who is authorized to certify checks, and it is then certified by him as good, this will not bind the bank, for the paper shows on its face sufficient to put any person upon inquiry ; and if the certificate is false, no one can recover against the bank as a hona fide holder. Clafi,in v. Farmers & Citizens' Bank, 25 IST. Y. 293, reversing 36 Barb. 540. If an agent or attorney transcends the limits of his authority and the person with whom he deals has notice of this, sufficient to put him on inquiry, he cannot charge the principal. Stainer v. Tysen, 3 Hill, 379 ; Beach v. Vandewater, 1 Sandf. 265 ; Cook v. Adams, 1 Bosw. 49Y. Where an agent is furnished with money to buy goods and instead of paying it over for the goods, buys them on credit in his own name, his principal cannot be held as an PEINCIPAL AND AGENT. 29T undisclosed principal. Harder v. Continental Printing, etc. Co. 64 Misc. 89 ; 117 JST. Y. Supp. 1001. Where a general agent or clerk is employed to make sales of goods and require payment therefor, and he obtains payment of false bills by means of fraud or deceit, the principal will be liable to the party defrauded, for the amount thus obtained, be- cause the agent is acting -within the scope of his employment, and this is especially the case where there is some evidence that the agent has paid the money over to the principal, and a jury find that it was paid over to him. Adams v. Cole, 1 Daly, 147. An agent authorized to sell an article, is presumed to possess the power of warranting its quality and condition, unless the con- trary appears ; and this, whether the agency be general or special. Nelson v. Cowing, 6 Hill, 336 ; Milhurn v. Belloni, 34 Barb. 607; Scott v. McGrath, 7 Barb. 53; Andrews v. Kneeland, 6 Cow. 354; Boorman v. Johnston, 12 Wend. 566. But it was held in a recent English case, that the servant of a private owner who is intrusted to sell and deliver a horse on one particu- lar occasion, is not by law authorized to bind his master by a warranty; and that the purchaser who takes such a warranty, takes it at the risk of being able to prove that the servant had in fact his master's authority to make the warranty. Brady v. Todd, 9 J. Scott, ]Sr. S. 592, 605. The court said "We are aware that the question of warranty frequently arises upon sales of horses; but we are also aware that sales may be made with- out any warranty, or even an inquiry about warranty. If we laid down for the first time that the servant of a private owner intrusted to sell and deliver a horse on one particular occasion, is therefore by law authorized to bind his master by a warranty, we should establish a precedent of dangerous consequence; for, the liability created by a warranty extending to unknown as well as to known defects, is greater than is expected by persons unex- perienced in law; and, as everything said by the seller in the bargaining may be evidence of warranty to the effect of what he said, an unguarded conversation with an illiterate man sent to deliver a horse, may be found to have created a liability which would be a surprise equally to the servant and the master. We therefore hold that the buyer taking a warranty from such an agent as was employed in this case, takes it at the risk of being able to prove that he had the principal's authority; and, if there was no authority in fact, the law from the circumstances does not 298 PEINCIPAL A:N^D AGESTT. in our opinion create it." Where a principal is carrying on any kind of public business, and be employs agents to perform the labor, the principal will be liable to any person who suffers a loss from a want of skill, or from the negligence of the agent in the discharge of that business. Brady v. Little Miami R. E. Co. 34 Barb. 249. One E., a common day laborer, was in the regular and con- tinuous employment of the defendants, at work upon the track of their railroad, at a fixed rate of wages per day, with an under- standing that the defendants were to have the right, after the ex- piration of E.'s regular hours of labor, to require his services in case of any accident, or of the occurrence of anything endanger- ing the running of the road; in which case he was to be allowed for extra time, and was to be paid accordingly; and it was fur- ther understood that if, at any time after R. had performed his ■day's labor he saw anything amiss, he should, without being specially required to do so, give all necessary attention to it; it was held that the negligence of E., in letting down a set of bars and not replacing them, in a fence opposite to the plaintiff's land, whereby the horses of the latter strayed upon the track of the road and were killed, was sufficient to render the company liable for the injury sustained. Chapman v. New York Central Railroad Co. 31 Barb. 399; /S'. C. affirmed, 33 K Y. 369. The negligence or want of skill on the part of the agent for which the principal is responsible must relate to a matter within the scope of the business in which the agent was employed, and it must be in relation to acts done or omitted in the discharge or performance of it. Before a person can be charged as principal for the negligence of another as agent, it must appear that the latter really was an agent; and where A. and B. were joint owners of a ship, and A. worked it and defrayed all the expenses and took the uncontrolled management thereof, and paid himself by taking two-thirds of the gross earnings while B. took the remaining one-third as his portion, it was held that the result or effect of this arrangement was that A. was the hirer of B.'s share, and that he was not the servant or agent of B. so as to render the latter liable in an action of tort for damages caused by the negligence of A. in using de- fective tackle on board of the vessel. Bernard v. Aaro7ij 1.1 J. Scott, K S. 889. As has already been noticed, where an agent abandons the ob- PEINCIPAL AND AGENT. 299 ject of his agency, and acts for himself by committing a fraud for his own exclusive benefit, he ceases to act within the scope of his employment and to that extent ceases to act as an agent. Henry V. Allen, 151 IST. Y. 1 ; Shipman v. Bmh of N. Y., 126 N. Y. 318; 'Welsli v. German-Am. Bank, 73 N. Y. 424; Bienstock v. Ammidown, 155 N. Y. 47. A master painter is not liable for injuries resulting from the "willful acts of his workmen in wrongfully bespattering the walls of the room where they were at work ; the action, in such a case, must be brought against those who did such willful injuries. ■Garvey v. Dung, 30 How. 315. A principal, who neither authorizes nor ratifies a willful tres- pass committed by his agent, is not liable therefor. Vanderbilt V. Richmond Turnpike Co., 2 N. Y. 479. The rule that where an agent, while strictly pursuing his authority, commits a wrong, he thereby binds his principal, does not apply to a case where the agent, departing from the line of his duty, is bargaining on his own account, and securing a benefit for his own private advan- tage exclusively. Fellows v. Commissioners of Oneida, 36 Barb. 655. A master is civilly responsible for the fraud or negligence •of his servant, who is acting in the course of his employment ; but not for an act of willful fraud or negligence done by him out of the scope of his authority, or inconsistent with the course of his ■employment. Coleman v. Riches, 7 J. Scott, 104. A corporation is not liable for a willful trespass of a person employed by it, although the act be authorized and sanctioned by the president -and general agent thereof. Vanderbilt v. Richmond Turnpike Co., 2 JST. Y. 479. The plaintiff's boat was run into and damaged by the willful act of the captain of the defendant's boat The trespass was also sanctioned by the president of the defendant's corporation, who was the general agent and manager of its busi- ness, and it was held that the corporation was not liable for the collision. lb. A passenger carrier is, by law, under an obligation to provide for the safe conveyance of the passengers, as far as human care and foresight can secure that result. Reed v. Panama R. R., 6 Duer, 193. And it is no defense to an action against a railroad corporation for its failure to transport a passenger with proper dispatch, that the detention was the willful act of a con- ductor in charge of the train. It is immaterial whether a breach of contract results from the negligence or the willfulness of the defendant's agent, if his act is within the scope of his employ- 300 PKINCIPAL AND AGENT. ment and authority. Ih.; Weed v. Panama B. B., 17 N. Y. 362.. One who directs his servant to remove snow and ice from the roof of his house, is responsible for an injury received by a passenger in the street from such snow and ice, whether the negligence was that of the servant or of a stranger whom he employed, or who volunteered to assist him. Althorf v. Wolfe, 22 N. Y. 355. So the vendor of land is responsible for material misrepresentations in respect to its location and qualities made by his agent without express authority, and in the absence of any actual knowledge by either the agent or the principal whether the representations were true or false. Bennett v. Judson, 21 N. Y. 238. A prin- cipal is responsible for the fraud of his agent, if committed while transacting the business of the former; and this, whether he be a sole agent or one of several possessing a joint authority. Bank of U. 8. V. Davis, 2 Hill, 452. Where a person is appointed the agent of an insurance company, and empowered to solicit and re- ceive risks of insurance, to receive applications for insurance, and to take premiums and premium notes therefor, this consti- tutes him a general agent of the company, for the transaction of that particular kind of business; and the company is bound by his fraudulent representations, made in procuring insurances and premium notes. Devendorf v. Beardsley, 22 Barb. 657. Where an agent is authorized to sell a flock of sheep, and he sells a por- tion of the flock with knowledge that the sheep are diseased, and he does not communicate the fact to the purchaser, his principal, althought he has no actual notice of the fraud, is liable civilly to respond in damages to the purchaser. Jeffrey v. Bigelow, 13 Wend. 518. And generally, a principal is liable to a third person in a civil action for the fraud or other misfeasance of his agent, perpetrated by the agent in the course of his employment, al- though the principal did not authorize, justify or know of the misconduct. Fiftli Avenue Bank of N. Y. v. Forty-second 8t. & Grand Street Ferry B. B. Co., 137 N. Y. 231 ; Udell v. Ather- ton, 7 Hurlst. & Norm. 172 ; Tranhla v. McLean, 18 Misc. 221 \ Fishkill Savings Inst'n v. National Bank, 80 N. Y. 162. But a general authority, which may be lawfully executed, is never con- strued to embrace unlawful acts so as to render the principal an- swerable in a criminal prosecution or action. Clark v. Metropoli- tan Bank, 3 Duer, 241. And, therefore, if the teller of a bank receives bank bills in violation of a statute, the bank is not liable for the penalty provided by statute, unless it is proved that the PEINCIPAL AND AGENT. 301 :act was authorized or adopted by its board of directors. lb. A principal cannot take any benefit from a fraudulent act of his agent, since the fraud will render the contract made by liim void. Cassard v. Hinman, 6 Bosw. 8 ; Elwell v. Chamberlain^ 4 Bosw. 320. A false statement deliberately made by the agent of the vendor of property to a proposed purchaser as to the price paid for it to the former ovnier, which was intended to and did influence the purchaser, will sustain a finding of fraud ; and if the vendor accepts the fruits of the fraud, all the methods employed by the agent are imputable to him, and he may not, though innocent, re- ■ceive and recover upon a security given upon the sale, and, at the same time, disclaim responsibility for the fraud by means of Tvhich the purchaser was induced to deliver it. Krumm v. Beach, '96 N. Y. 398 ; Fairchild v. McMahon, 139 K Y. 398. See also Hlwell V. Chamberlain, 31 N. Y. 611, 619. § 12. Authority of the Agent, how Exercised. Where an authority is conferred upon several, in a private transaction, the authority must be executed by all the persons to whom it is delegated. Sinclair v. Jackson, 8 Cow. 544; Green V. Miller, 6 Johns. 39 ; Perry v. Tynen, 22 Barb. 137 ; Hawley T. Keeler, 62 Barb. 231 ; 53 N. Y. 114. Where a defendant with others gave a power of attorney to three persons named, as his attorneys in fact, and plaintiff has recovered a judgment against him upon a contract made by only one of them, the presumption is that such authority was a joint one, and a contract entered into by one of her attorneys in fact will not bind the principal in the ab- sence of evidence to rebut the presumption. Kind v. Barry, 121 N. Y. Supp. 324 ; citing Hawley v. Keeler, ante. But in the case of a delegation of a public authority to three or more persons, the authority may be exercised by a majority of the whole number. Perry v. Tynen, 22 Barb. 137 ; Horton v. Garrison, 23 Barb. 176. If the act to be performed requires the exercise of discretion or judgment, and is in its nature a judicial act, all the persons must meet and confer together, and be present when the act is per- formed, or at least a majority must meet, confer and be present, after all have been notified to attend. lb. If there are only two to whom a public authority is delegated, it necessarily follows that nothing can be done without the consent of both. lb. The proper mode of executing an authority by an agent is to 302 PEINCIPAL AND AGENT. do it in the name of the principal or person giving the authority, and not in the name of the agent. Where A. B. is principal, and C. D. is agent, the agent should execute the paper by signing it A. B., by C. D., his agent. A sealed instrument, when executed by one acting as an attor- ney, must be executed in tiie name of the principal, and purport to be sealed with his seal. And where a covenant for the sale and purchase of land was subscribed only with the names B. H.,. and O., and commenced thus "Articles, etc., made, etc., be- tween T., etc., by B., their attorney, of the first part, and H. and O., of the second part, witnesseth," and the concluding clause was thus : "In witness whereof, the said B., as attorney of the parties of the first part, and the parties of the second part, have hereunto set their hands and seals," etc., it was held that the cove- nant did not purport to have been executed by T., etc., and that they could not maintain an action upon it. Toivnsend v. Huhhard, 4 Hill, 351 ; Spencer v. Field, 10 Wend. 87 ; Townsend v. Com- ing, 23 Wend. 435 ; Evans v. Wells, 22 Wend. 324 ; Deom v. Roes- ler, 1 Hilt. 420. See Schaefer v. Henhel, 75 N. Y. 378. This rule is inflexible as to all cases in which the contract is required by law to be under seal; or in those cases in which the parties intend to make an agreement under seal. Where parties enter into a contract under a seal in their individual characters, not describing themselves as trustees, agents, or as a committee, they are personally responsible, although they, in fact, contract as a committee in anticipation of the incorporation of a literary institution; and parol proof is not admissible in such case to show that it was not intended that they should be personally liable. Lincoln v. Crandell, 21 Wend. 101. If the contract would be valid, though not under seal, and an agent executes the contract under seal, it will still be valid as a contract not under seal. Lawrence v. Taylor, 5 Hill, 107; Worrall v. Munn, 5 N. Y. 229. When the agreement is not under seal^ the rule is not so strictly enforced as to the manner of executing the writing. Evans v. Wells, 22 Wend. 324. In all such cases, however, the name of the principal must appear as a party to the contract, and it must also appear that it was intended to be the contract of the principal and not that of the agent. Pentz v. Stanton, 10 Wend. 271. If it is thus made evident that the contract was intended to be made by the principal, the mere form of the execution of the PEINOIPAL AND AGENT. 30S instrument is not material. An authority by a husband to his wife to give notes, will not subject the husband to the payment of a note given by the wife in her own name, without referring to the husband in either the body of the note, or in the signature. A note to be binding in such a case, must purport on its face, to^ have been given by the wife, as the agent of the husband, or on his behalf. Minard v. Mead, 7 Wend. 68. The power to make and endorse negotiable instruments may be implied as a neces- sary incident of powers expressly conferred, as where an entire business or an entire transaction is entrusted to an agent and it be- comes necessary to make or endorse negotiable paper in order to effectually carry out the agency. Forges v. U. S. Mortgage & Trust Co., 135 App. Div. 484; citing Nelson v. Hudson E. R. B. Co., 48 IST. Y. 498. Where one H. had authority, as agent, to bind the defendant under the name of "The Churchman," it was held, that the defendant was not liable upon a note given by such agent and signed "D. H., Agent for The Churchman," but containing no further expression of an intention to bind the defendant; and that such a note did not purport to be the note of "The Churchman," but of H. ; and that the words "Agent for The Churchman," were mere words of description. De Witt v. Walton, 9 ]Sr. Y. 571. A bill was drawn on and accepted by "J. R. L., President of the Eosendale Manufacturing Co." That com- pany was a corporation and J. K. L. was the president. The bill was drawn by one of the agents of the company in favor of another agent, and by the latter indorsed to the plaintiff, who received it on account of a debt due him from the company for wages; but there was no proof that J. E. L. was authorized to bind the company by the acceptance; it was held, that an ac- tion on the acceptance was properly brought against J. E. L. individually, instead of against the corporation. Moss v. Living- ston, 4 ]Sr. Y. 208. An officer of a corporation, to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and negotiates it on behalf of the corporation, is not personally responsible as indorsed. The effect of such indorsement is merely to transfer the paper. Accordingly, where a note was payable to the order of "E. Beman, Treasurer," and he being the treasurer of a cor- poration with authority to receive and transfer the note, indorsed it, "E. Beman, Treasurer," and delivered it to the plaintiffs, who received it on account of a debt due them from the corporation. 304 PRINCIPAL AND AGENT. with notice of the capacity in which Beman acted; it was held, that he was not individually liable as an indorser of the note. Babcoch v. Beman, 11 JST. Y. 200; 8. C, 1 E. D. Smith, 593. Where, by a written agreement, the parties to it "bind them- selves" to perform it, and the instrument does not by its terms, nor by implication, bind any other person, they are personally liable to do or cause to be done, and to pay what they stipulate shall be done and paid, although they are in truth acting on the behalf or for the benefit of others. If in such an agreement they designate themselves as a committee of management, such desig- Jiation will be regarded as a mere description of the persons. Rowland v. Phalen, 1 Bosw. 43 ; Brochaway v. Allen, 17 Wend. 40; Taft v. Brewster, 9 Johns. 334; Randell v. Van Vechien, 19 Johns. 60. But they may show that they were in fact agents for a responsible principal, that they were acting within the scope of their authority, and that plaintiff, or the person whom he represents, knew these facts at the time of making the contract, which will constitute a defense. Ih. Where the defendants, hav- ing been duly appointed by a corporation its building committee and authorized to contract for materials for erecting a building in which to conduct its business, entered into a written contract with the plaintiff, under their respective hands and seals, de- scribing themselves as "building committee," and signing it as such, for the purchase of a quantity of brick, it was held, that the corporation was liable on the contract; and that the defendants having shown that they were fully authorized by the corporation, in fact, a priori, to make the contract, and that after it was made, the corporation ratified it, by making several payments thereon, and otherwise, it was also held, that the defendants were not per- sonally liable upon the contract. HaigM v. Sahler, 30 Barb. 218. The contract was binding upon the corporation, without a seal, and the addition of the seal did not discharge the corporation from its liability as upon an unsealed contract, nor did it render the defendants any more liable than they would have been had no seal been affixed. lb.; Sherman v. N. Y. Cent. R. R., 22 Barb. 239 ; Ford v. Sherman, 13 IST. Y. 578. A written agreement for the sale and purchase of property, purporting, in the body of it, to be between the vendor of the one part, and the purchasers, by their agent, on the other part, signed by the vendor, and by the agent in his own name merely, a seal being annexed to each name, is not executed in the name of the purchasers, and is, therefore. PEINCIPAL AND AGENT. 305 void. It is not binding upon the agent, inasmuch as he does not profess or intend to contract for himself, but for the purchasers, nor upon the latter, because it is not executed in their names. Sherman v. N. Y. Cent. B. R., 22 Barb. 239. Though a deed be executed by an attorney for several princi- pals, it is not necessary to affix a separate seal for each, provided it appears that the seal affixed was intended to be adopted as the seal of all. Townsend v. Huhhard, 4 Hill, 351. An authority must be strictly pursued ; and any act which sub- stantially varies from it, is void. Nixon v. Hyserott, 5 Johns. 58 ; Rossiter v. Rossiter, 8 Wend. 494. Where the agency is special, the principal is not bound if the agent exceeds his authori- ty. Cohen v. Mincof, 96 IST. T. Supp. 411. But the court, in giving a construction, will apply the principle that all instruments must be construed according to the spirit as well as the letter. Taylor v. Harlow, 11 Barb. 232. The principle is well settled that if an agent possesses due au- thority to make a written contract not under seal, and he makes it in his own name, whether he describes himself as agent or not, or whether the principal be known or unknown, his principal may be made liable and will be entitled to sue thereon in all cases, and the instrument may be resorted to for the purpose of ascertaining the terms of the agreement. Nicoll v. Burlce, 78 N. T. 580; Woodhome v. Duncan, 106 K Y. 527 ; Hill v. Miller, 76 K Y. 32. It is equally well settled that an action upon a sealed instru- ment must be brought by and in the name of the person who is a party to the instrument, and that a third person or a stranger to the instrument cannot maintain an action upon it. Where it ■distinctly appears from the instrument executed that the seal affixed is the seal of the person subscribing, who designates him- self an agent, and not the seal of the principal, the agent only ■can maintain an action on the same. Schaefer v. Henhel, 75 IsT. Y. 378; Melcher v. Kreiser, 28 App. Div. 362; Henricus v. Englert, 137 N. Y. 488. And where an instrument is under seal, no person can sue or be sued to enforce the covenants therein con- tained except those who are named as parties to the instrument and who signed and sealed the same. Henricus v. Englert, 137 N. Y. 488; Kiersted v. Orange & Alexandria B. R. Co., 69 N. Y. 343 ; Briggs v. Partridge, 64 IST. Y. 357 ; Tuthill v. Wilson, 90 N. Y. 423. But where an authorized agent executes a contract amder seal, in which he represents himself as agent, and discloses 20 306 PKINOIPAL AKD AGENT. his principal, and by the terms of which he assumes to contract for the principal only, in the absence of any personal promise or covenant on his part, the contract cannot be held to be his con- tract, and he cannot be made individually liable thereon, although it is signed only in his individual name. Whitford v. Laidler, 94 ]Sr. Y. 145. Although a lease under seal executed by the agent in his own name would be void as against the principal, it is within his power to accept and ratify it, and such ratification will be inferred from a recognition of the lessee as tenant and an ac- ceptance of rent from him. Anderson v. Conner, 87 N. Y. Supp. 449. To the general doctrine that an undisclosed principal may be charged upon a simple contract entered into by an agent in his own name, there is a well-recognized exception in the case of notes and bills of exchange. Persons dealing with negotiable instru- ments are presumed to take them on the credit of the parties whose names appear upon them; and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent. Barker v. Mechanic Ins. Co., 3 Wend. 94; Pentz v. Stanton, 10 Wend. 271 ; De Witt v. Walton, 9 IST. Y. 571. § 13. Liability of the Agent to the Principal. As has been seen, the relation of principal and agent is formed by contract, which may be in writing or by parol, or may be im- plied or inferred from circumstances. When the agency is implied or inferred, the duty or obligation that the agent takes upon him- self is that which the law always declares in the absence of express stipulation by the parties. It is, that the agent is understood to engage for reasonable skill and ordinary diligence, and is liable only for injuries to his principal arising from a want of that skill and from ordinary negligence. Leverich v. Meigs, 1 Cow. 645 ; Lawler v. Keaquick, 1 Johns. Cas. 174. A person contract- ing, within the scope of his authority, as the agent of a known principal, does not become personally liable unless it is the inten- tion of the parties that he shall. Jones v. Gould, No. 2, 123 App. Div. 236. So, too, where the relation is formed by express con- tract, either written or by parol, the duty or obligation of the agent may be no greater, for the written or parol agreement may ba so general in its terms that the law will then declare the liability of the agent, or the contract may square with the general rule PKINCIPAL AND AGENT. 307 of law and fix upon the agent no further obligation. On the other hand, the duty or liability of the agent may be narrowed by the contract to a smaller compass than that which the bare employment would itself create, or it may be enlarged beyond that. Loeh V. Hellman, 83 N. Y. 601. Therefore, in determining the extent of an agent's liability to his principal, the first question to settle is whether the parties have fixed a measure of liability by express contract; and, if they have, the contract will govern; if they have not, the liability of the agent will be such as the law declares is incident to the relation and employment. Where an agent is instructed to buy in property at about its mortgage value and to proceed for the deficiency, instead of which it buys in the property for the entire amount of the claim, which is in excess of its value, it is liable to the principal for the damages caused by such departure from its instructions which will ordinarily be the difference between the value of the land and the amount bid at the sale. Minneapolis Trust Co. v. Mather, 181 IST. Y. 205. An agent to invest the moneys of his principal undertakes to exercise such reasonable skill and diligence in investing the same as are ordinarily exercised by persons of common capacity in such transactions; and if the agent fails to exercise such reasonable skill and diligence, and without proper inquiry, but in good faith invests his principal's money in a mortgage upon lands already subject to a prior mortgage, he is liable to his principal for the loss sustained. Van Cott v. Hull, 11 App. Div. 89. Whether the agent has exercised the skill and diligence which the law de- mands of him is usually a question of fact; but its omission is equally a breach of his obligation and injurious to his principal, whether it be the result of incapacity, inattention, or of an intent to defraud. Fraud on the part of the agent is not necessary to subject him to an action for neglecting to perform a duty which he has undertaken. Heinemann v. Heard, 50 'N. Y. 27. "Where the holder of a bill of exchange transmits it to his agent for presentment to the drawee, such agent has no right to receive any thing short of an explicit and unequivocal acceptance, without giving notice to the holder, as in case of non-acceptance; and he will be liable for any loss which the holder may sustain in conse- quence of his neglect to do so. Walher v. Banh of State of N. Y., 9 ]Sr. Y. 582; Montgomery County Bank v. Albany City Bank, 1 K Y. 459; Commercial Bank v. Union Bank, 11 N. Y. 204^ Allen V. Suydam, 20 Wend. 321. But when an agent has ren- 308 PKmciPAL AND AGENT. dered himself liable in such case, the principal may ratify his acts so as to discharge him from liability. Towle v. Stevenson, 1 Johns. Cas. 110; Coming v. Southland, 3 Hill, 552. One, to avoid ratification of his agent's act in receiving a payment for him, if unauthorized, should repudiate it within a reasonable time after notice; and ratification for any length of time is final. Fatta v. Edgerton, 137 IST. Y. Supp. 226. A factor who has made sales of the separate property of several principals, and has taken a single note for all the sales, is not liable to pay the separate owners for each share, and the factor does not make the debts his own by such act. Corlies v. Cummings, 6 Cow. 181 ; Rich v. Monroe, 14 Barb. 602. An agent employed to obtain orders for the construction of machinery by his principal, had been engaged in a negotiation for such an order, which had been broken off, and he had no reason to suppose that it would be renewed. He received the order after terminating his agency, in a letter written before that event; and it was held, that it was his duty to communicate the letter to his former principal ; and his failure to do so was not excused by his supposing himself, in good faith, to have ascertained that the principal was unable to comply with the order. Edmonston v. Hartsho7-ne, 19 N. Y. 9. And in an action by such agent for the balance of his salary, the principal may recoiip as damages any sum which he may have lost, in consequence of the neglect of the agent to inform him of such order. Ih. An agent or a person acting in a fiduciary capacity is not sub- ject to an action of tort for mere acts of omission, such as not paying over money, but only for acts of misfeasance. Segelken v. Meyer, 94 IST. Y. 473. And the fact that an agent has given his check for moneys collected for his principal, which is not paid on presentation at the bank on which it is drawn, does not of itself, and in the absense of any demand for the moneys represented by the check, establish a case of conversion against the agent. Na- tional Life Association v. Thompson, 38 App. Div. 445. The act of a transfer company acting as agent and pledgee for the holder of certain notes and a mortgage given to secure them, in commencing the foreclosure of a mortgage under instruc- tions of the owner's attorney, selling the property and buying it in its own name, although at a price not authorized by the principal, will not amount to a conversion of the securities. Minneapolis Trust Co. v. Mather, ante. A collecting agent is liable to his principal for the act of an PEINCIPAL AND AGENT. 309 attorney employed by him in compromising a collectible claim and accepting less than its face value. Talcott v. Cowdry, 17 Misc. 333. And see Weyerhauser v. Dun, 100 IST. Y. 150. The estate of a deceased attorney in fact is liable for moneys given to the attorney for investemnt, v?hich were never invested by him, as represented, and on which he paid fictitious instalments of interest. Hartmann v. Schnugg, 113 App. Div. 254. An agent is liable for the price of goods instructed to him for sale, for a failure to return them on the revocation of his agency and a demand of the goods. Strouse v. Love, 42 St. Kep. 185. And if an agent, instead of purchasing stock for his principal from a third person, turns over stock of his own, the principal may repudiate the transaction, tender a return of the stock and demand a return of the consideration paid, although no loss was incurred and the agent was not guilty of bad faith. Mayo v. KnowUon, 31 St. Eep. 558. If the agent acts in hostility to the interests of his principal, and for his ovra. advantage, the princi- pal may recover from the agent the amount lost through his mis- feasance. Wheeler v. Bell, 88 Hun, 100. In case the agent is allowed a rebate on bills paid by him out of his ovm money for materials purchased for his principal, the rebate belongs to the principal and not to the agent. Kedian v. Hoyt, 33 Hun, 145 ; Daily Reg., Oct. 4, 1884. § 14. Actions by Agents on Their Contracts. So far as the mere right of action is concerned, it is settled by the Code of Civil Procedure that an agent who has made a contract in his own name for the benefit of his principal may sue upon the contract in his own name without joining his prin- cipal with him. Code of Civ. Pro., § 449; Duncan v. C. M. Ins. Co., 129 E". Y. 237; Hollingsworth v. MovJton, 53 Hun, 91; Coffin V. President, etc. 0. B. E. Co. 136 IST. T. 655; Brown v. Cherry, 56 Barb. 635. An agent of a mowing machine com- pany who contracts and sells mowing machines in his own name may sue on the contract. Davis v. Reynolds, 48 How. 210; 5 Hun 651. A factor or other mercantile agent, who contracts in his own name, on behalf of his principal, may maintain an action upon the contract in his own name. Orinnell v. Schmidt, 2 Sandf. 706- 8. C. 3 Code Rep. 19. And the same rule applies to auctioneers. Boggart v. O'Beagan, 1 E. D. Smith, 590 ; Min- 310 PKINCIPAL AND AGENT. turn V. Main, 1 N. Y. 220. So where an agent executes a lease which does not disclose the name of the principal, the agent may recover the rent in an action in his own name. Morgan v. Reid, 7 Abb. 215. The agent of a foreign corporation may maintain an action in his own name iipon a subscription note, payable to the plaintiff, " as executive agent of the company," for stock of the corporation to be issued to the signer. Considerant v. Brisbane, 22 N. Y. 389. The authorities which have been noticed relate to those cases in which the agent is not beneficially interested in the contracts, although he is permitted to enforce them in his own name. In those cases in which the agent is beneficially interested, he may, of course, be made a party to an action to enforce the contract, since he would then be a person who must be joined as a party. Code of Civil Pro., § 449. But, although an agent who is not in- terested in the contract may sue in his own name, for the benefit of his principal, that rule does not in the least interfere with the right of the principal to sue in his own name as the person bene- fiicially interested. And this was the rule before the Code as well as since. HicTcs v. Whitmore, 12 Wend. 548. And it is the rule in those cases in which a written memorandum is required by the statute of frauds, as much as in other cases. lb. The right to enforce a sealed instrument executed by an agent in his own name has been considered elsewhere. § 15. Compensation of the Agent. An agent is entitled to recover from his principal such com- pensation as may have been agreed upon. And in the absence of an express agreement, he may recover the usual or fair and just compensation which the law gives in such cases. But he is sometimes entitled to recover for advances which he may have made in the course of his employment, or for money which he has been compelled to pay for the benefit of his principal. As we have seen, the agent is bound to perform his duties fully and faithfully or respond in damages for his neglect; so, on the other hand, the principal is bound to indemnify the agent for payments or advances made in the usual course of his employment for the benefit of such principal. Where the trustees of an incorporated village were sued for an act done by them by virtue of their office, in the faithful discharge of their duty as trustees and agents of PKINCIPAL AND AGENT. 311 the corporation, and the necessarily incurred costs and charges in their defense, it was held that they were entitled to recover the amount paid of the corporation. Powell v. Trustees of New- hurgJb, 19 Johns. 284. An agent who is employed to get a bill discounted, and who indorses it for the benefit of the principal, is entitled to be reimbursed for any damages or costs to which he may be subjected in consequence of such indorsement. Ramsay V. Gardner, 11 Johns. 439. Though an agent cannot of himself bind his principal to pay him any definite sum for the use of his property, yet if he applies his own property to the use of his principal in good faith, with the knowledge and tacit assent of the latter, he may recover the fair value of such use. Rider v. Union India Rubber Co. 5 Bosw. 85. An agent may generally resort to his principal at once for a reimbursement of such advances, etc., but this rule is not with- out exceptions. Where a commission merchant makes advances upon the faith of goods consigned to him for sale, by the payment of a sight draft drawn upon him by the consignor, the proceeds of the consigned property, when it has come to his hands, are the primary fund to which the acceptor must look for reimburse- ment; and it is incumbent upon him to show that fund insuffi- cient before be can recover against the consignor personally. Gihon V. Stanton, 9 N. Y. 476 ; Mottram v. Mills, 2 Sandf. 189. A broker who is employed to purchase stocks, and is authorized by usage or by an express agreement to make the purchases in his own name, without disclosing the name of his principal, has no right to maintain an action against his principal for not fur- nishing him with money to pay for the stocks, without showing that he had demanded payment of the price and had transferred or offered to such principal the stocks he had purchased. Merwin V. Hamilton, 6 Duer, 244. A sale of stocks by the agent be- fore demanding payment would deprive him of any right of action against the principal. lb. § 16. Liability of Agent to Third Persons. It may be laid down as a general rule that where a person is known to act as a mere agent of a known principal, and there is no express agreement by the agent for a personal liability, and there are no circumstances from which it may properly be inferred that the credit is given to him, the agent is not person- 312 PEIJSrCIPAL AISTD AGENT. ally liable, though he is the person who makes the contract. Meeker v. Claghorn, 44 N. Y. 349; Butter v. Evening Mail Ass'n, 61 IST. Y. 634 ; Hall v. Lauderdale, 46 E". Y. 70 ; Morris V. Murray:, 20 Misc. 1 ; Boer v. Bonynge, 72 Hun, 33. While, ordinarily, an agent acting for a known and disclosed principal and guilty of no fraud or misrepresentation is not liable for a breach of a warranty upon a sale of an article owned by the prin- cipal, he may, if he sees fit, for a good consideration, make a per- sonal contract of warranty which will be binding and enforceable against him. Dahlstrom v. Gemunder, 198 N. Y. 449. If, how- ever, the buyer recovers full damages and satisfaction in an action against the principal, he cannot have a further recovery upon the personal warranty of the agent. Ih. It is immaterial that the contract is in writing and under seal, and is signed by the agent in his own name only, if it appears on the face of the instrument that the agent contracted with reference to the business of a dis- closed principal, and had authority to make the contract on behalf of his principal. Whitford v. Laidler, 94 IST. Y. 145. And it is immaterial whether the agent acted for an individual or the govern- ment. Rathion v. Budlong, 15 Johns. 1. An agent, known and treated as such, cannot be compelled to pay back moneys received by him under a mutual mistake of fact and paid over to his princi- pal. Ward V. Work, 65 App. Div. 84. The principal question in these cases generally is as to whom the credit was actually given, and that is a question of fact for a jury or the justice upon all the evidence. Where a contract is made by an agent in the name of the principal, and he has author- ity to do the act, he is. not personally responsible. Dubois v. Delaiuare, &c. 4 Wend. 285. If the purchaser of goods is an undisclosed agent, his principal not being knovsra to be such, and credit is given to the agent, the seller can hold responsible either the principal or agent, at his election. Wasserman v. Bacon, 80 App. Div. 505. But when the agency is disclosed, the agent will not be held personally responsible, unless there is clear and explicit evidence of an intention to substitute or superadd his personal liability for or to that of his principal. Gerloff v. Garleton, 121 N. Y. Supp. 338. If an agent would avoid a personal liability when making a con- tract as the agent of another person, he must disclose the name of his principal at the time of making the contract Mills v. PEINCIPAL AND AGENT. 313 Hunt, 17 Wend. 333 ; Morrison v. Gurrie, 4 Duer, 79 ; Cohl v. Knapp, 71 N. Y. 348; Lvdwig v. Gillespie, 105 N. T. 653; Jemison v. Citizens' Savings Bank, 44 Hun, 412 ; Argensinger V. MacnaugUon, 114 IST. Y. 535 ; Artman v. ifare, 27 Misc. 777 ; Z)e Hierapolis v. Webber, 27 Misc. 789 ; Whiting v. Sanders, 23 Misc. 332; Ashner v. Abenheim, 19 Misc. 282; SocZy v. L. fl". ^winn Go. 18 Misc. 169; Whitman v. Johnson, 10 Misc. 725. It is not sufficient that the other party to the contract supposed that he was dealing with an agent and had the means of ascer- taining the principal. He must have actual knowledge. Cobb V. Knapp, 71 N". Y. 348; Nelson v. Andrews, 19 Misc. 623; Mahoney v. Kent, 7 Misc. 726. A person who deals with an agent has a right to insist that there is some known person who is liable to perform the contract; and if the agent neglects or refuses to disclose the name of his prin- cipal, he ought to he himself bound for the engagement which he makes. An agent who sells a bill of exchange without indorsing it, if he fails to disclose at the time the name of his principal, is personally liable for the moneys received by him, if the bill proves to be a forgery. To render him liable, it is not necessary to prove that an inquiry was made as to the name of his principal, which he refused to answer. Morrison v. Gurrie, 4 Duer, 79. The court stated the rule thus: "Where a person sells property, stating that he acts for another, but does not disclose the name of his principal, he makes himself responsible to the purchaser in any way in which the actual principal would be liable; but he may exonerate himself from such liability by showing a payment over to his principal, or special circumstances attending the tran- saction, proving that it would be inequitable, as between the parties, to hold him responsible." Id. 85. A defendant cannot avail himself of the defense that he acted as agent in making the representation or warranty sued upon, unless he disclosed the fact of his agency at the time of the transaction out of which the suit arises. Blaheman v. Machay, 1 Hilt. 266. An auctioneer who acts as the agent of another person in the sale of property, is personally responsible as vendor, unless at the time of the sale he disclosed the name of his principal; his general employment as auctioneer, is not of itself notice that he acts as agent. Mills V. Hunt, 20 Wend. 431. Where a person has made a contract with an agent, and he brings an action against the agent on the ground that such agent had no authority from the principal to 314 PEINCIPAL AND AGENT. make the alleged contract, the burden of proof is on tiie plain- tiff to show that the agent had, in fact, no authority; and he cannot recover without proving that the agent acted without authority. Plwnb v. Milk, 19 Barb. 74 ; Noe v. Gregory, 7 Daly, 283. Where an agent makes a contract beyond his authority, by which the principal is not bound because it was unauthorized, the agent is liable in damages in some form of action to the person deal- ing with him upon the faith that he possessed the authority which he assumed. Taylor v. Nostrand, 134 JST. Y. 108. The ground and form of his liability has been the subject of discussion, and there are conflicting decisions upon the point; but the later and better considered opinion seems to be that his liability, when the contract is made in the name of his principal, rests upon an im- plied warranty of his authority to make it, and the remedy is by an action for its breach. White v. Madison, 26 IST. Y. 117 ; Dung V. Parker, 52 N. Y. 494 ; Baltzen v. Nicolay, 53 N. Y. 467 ; Simmons v. More, 100 IST. Y. 140. The liability of the agent in such case rests upon the breach of warranty and not upon the theory that the contract is to be deemed his own ; and the damages recoverable against him are not necessarily measured by the con- tract but embrace all injury resulting from the want of power, which may include the costs of an unsuccessful action against the alleged principal. Ih. See Taylor v. Nostrand, 134 N. Y. 108 ; N. Y. Bank Note Co. v. McKeige, 31 App. Div. 188. If the act of the agent was fraudulent, and he knowingly as- sumed to act without any authority he may be held liable to the party with whom he deals, either in an action for a breach of warranty as to his authority or in an action of deceit. Campbell v. Muller, 19 Misc. 189; Noe v. Gregory, 7 Daly, 283; White V. Madison, 26 K Y. 117. The rule is that one who undertakes to act for another, withoul authority, is liable to the person with whom he deals, on the ground of an implied warrant of his authority, and his lia- bility is not necessarily measured by the contract, but embraces all injury resulting from his want of power. Hyman v. Caspary, 117 ]Sr. Y. Supp. 966. Baltzen v. Nicolay, 53 ¥. Y. 467. There is a class of early cases holding that where a person under pretense of authority from another, enters into a contract, when in fact he had no authority to contract for such assumed principal, the pretended agent will be personally liable on the con- PEINCIPAL AND AGEl^T. 315 tract. Dusenhury v. Ellis, 3 Johns. Cas. YO ; White v. SUnner, 13 Johns. 307; Randall v. Van Vechten, 19 Johns. 60; Meech v. Smith, 7 Wend. 315; Palmer v. Stephens, 1 Denio, 471. See IFaZfcer v. Bank of State of New York, 13 Barb. 636 ; 9 N. T. 582. But these cases, if not expressly overruled, are of doubtful authority in the light of the cases before cited upon the point above referred to. An agent warrants his authority to contract for his principal, but not that his principal has the capacity to contract. Hall v. Lauderdale, 46 IST. T. 70. And in order that an agent shall be held liable for the damages arising from his contracting in the name of another as principal veithout authority the contract must be one which the law would enforce against the principal if it had been authorized by him. Baltzen v. Nicolay, 53 IS]". Y. 467 ; Dung V. Parker, 52 IST. T. 494. Thus, if the contract was void because within the statute of frauds, the assumed agent incurs no liability. Ih. And if the agent had authority to contract but the principal was not bound because the contract was ultra vires, the agent is not liable. Hall v. Lauderdale, 46 E". Y. 70. An agent may render himself personally liable, although he describes himself as an agent, if he expressly agrees to take a personable responsibility. When, by a written agreement, the parties to it "bind themselves" to perform it, and do not, by its terms nor by implication, bind any other person, they are personally liable to do or cause to be done, and to pay what they stipulate shall be done and paid, although they are in truth act- ing on the behalf or for the benefit of others. If in such an agreement they designate themselves as a committee of manage- ment, such designation will be regarded as a mere description of the person. Rowland v. Phalen, 1 Bosw. 43 ; Taft v. Brewster, 9 Johns. 334. If an agent enters into a submission to an arbitration in his own name, he will be personally bound to perform the award. So of a submission by a person on behalf of himself and others, but without their authority, as where such other persons are infants. Smith V. Van Nostrand, 5 Hill, 419. Where an agent acts in his own name, he binds himself and not his principal. Bank of Roch- ester V. Monteath, 1 Denio, 402. A note by which J. T., as presi- dent of an insurance company, promises to pay a sum certain, is not the note of the company but of the maker alone. Barker v. Mechanics' Insurance Co. 3 Wend. 94. Where one enters into 316 PKmCIPAL AND AGENT. a covenant, thougli he describes himself as agent of another, and covenants as such agent, but signs and seals in his ovra name, he is liable personally. Stone v. Woodj 7 Cow. 453 ; Guyon v. Lewis, 7 Wend. 26 ; Spencer v. Field, 10 Wend. 88 ; Kersted v. Orange & Alexandria R. B. Go. 69 IST. T. 343; Briggs v. Partridge, 64 IST. Y. 357. There is a vrell-defined distinction between the liabilities of principal and agent, respectively, upon con- tracts under seal and upon those not under seal. Stanton V. Camp, 4 Barb. 274. In order to make the covenants in a sealed agreement, executed by an agent, the covenants of his principal, the agreement must be executed in his name, and his seal must be affixed to it, and it must purport to be his deed, and not the deed of the agent. In simple contracts, the intent of the parties has a controlling influence in determining the liability of the parties upon them. Ih. In respect to the liability of the principal, on written contracts not under seal, if the name of the principal and a relation of agency be stated in the writing, and the agent is really authorized, the principal alone is bound, unless the language expresses a clear intention to bind the agent personally. Ih. The rule as to verbal contracts is similar to that which prevails as to written contracts not under seal. Ih. Where an agent has authority to enter into a written contract not imder seal, and he executes a written sealed agreement, the addition of the seal will do no harm, as the contract will be enforced as a written unsealed agreement. Dubois v. Delaware &c. Go. 4 Wend. 285 ; Law- rence V. Taylor, 5 Hill, 107 ; Haight v. Sahler, 30 Barb. 218 ; Sherman v. N. Y. Gent. B. B. 22 Barb. 239. If money be mispaid to an agent expressly for the use of his principal, and the agent has paid it over, he is not liable to re- fund. Mowatt V. McLelan, 1 Wend. 173 ; Frye v. Lochwood, 4 Cow. 454; Bixhy v. Drexel, 56 How. 478. But where an agent received the amount due to his principal on an execution and the judgment was subsequently reversed and restitution ordered, and the money had not been paid over to the principal, it was held that an action could be maintained against the agent to recover the amount. Langley v. Warner, 1 Sandf. 209. To protect the agent from liability, the money must be actually paid over, merely crediting the amount upon an old debt will not be sufficient. Ih. Where money is illegally or by compulsion obtained by an agent, the payment over of the money PEINCIPAL AND AGENT. 317 to his principal will not protect him from liability. Frye v. Lock- wood, 4 Cow. 454; Edmonds v. Aheel, 20 Hun, 441. So, if an agent receives money which his principal has no right to receive, the payment will not protect such agent, if he has notice not to pay it over, before such payment is made. Hearsey v. Pruyn, 7 Johns. 179. See Carter v. 8torh, 44 St. Kep. 467. An agent of a railroad company, who is not in possession or control of property received for transportation except as the agent or servant of the company, and who makes no claim to the prop- erty, cannot be made liable in an action of replevin for a refusal to deliver the property to the consignee until certain charges thereon had been paid. McDougall v. Travis, 24 Hun, 590. An officer of a corporation to whose order, as such, a note exe- cuted to it is payable, and who indorses the note, adding to his name his official character, and negotiates it on behalf of the cor- poration, is not personally liable as indorser. Bahcoch v. Beman, 11 N. Y. 200 ■,8.C.l E. D. Smith, 593 ; Randall v. Van Vech- ten, 19 Johns. 60. Where an agent to whom goods have been sold and delivered, has rendered himself personally liable by not disclosing in time the name of his principal, he is not discharged from such liability, merely by the fact that the seller subsequently agreed with the principal to submit to arbitration, a controversy between them relative to the quality and price of the goods. Nason v. Cooler oft, 3 Duer, 366. At page 369 the court said: "When an agent pur- chases goods without disclosing the name of his principal, it has certainly never been supposed that he is discharged from the lia- bility which he thus incurs, by the subsequent discovery of the name of his principal. The only effect of the discovery is, that principal and agent are both liable; and the seller may, at his election, proceed against either or both; and as it is clear that the mere commencement of suit against the principal would not discharge the agent, we cannot see why that effect should be given to a submission to an arbitration which had no result." It has been held that where one executes an instrument in the name of another, assuming to be his agent, but having in fact no authority for that purpose, he is himself bound as a principal. To exempt the party assuming to be agent, from the operation of this rule, it must appear that he was such at the time when he signed the instrument. A subsequent ratification by the party named as principal would not affect the question. Palmer v. 318 PKIlSrCIPAL AJSTD AGENT. Stephens, 1 Denio, 471 ; Rossiter v. Rossiter, 8 Wend. 494. But the doctrine that an agent is bound as principal by an unauthor- ized contract in the name of another has been questioned in the latter cases, and the authority of the cases cited is at least doubt- ful. See White v. Madison, 26 'S. Y. 117, 123 ; Dung v. Parker, 52 E". T. 494, 499. The later decisions are to the effect that the liability of the agent is founded upon a breach of an implied war- ranty of authority or fraud. Where a party bids off property in his own name, at a sale made by a sheriff on an execution, the purchaser cannot defend in au action for the price, by showing that he was acting as agent for another person, and not on his own account. Chappell v. Dann, 21 Barb. 17. It cannot be shown by parol, that the alleged agent, in signing his own name to the contract, in fact signed as agent, and thus convert a contract, which, on its face, is his own, into a contract of his alleged principal, and make it enforceable as such. Williams v. Christie, 4 Duer, 29. Where an agent neglects to perform a duty which he owes to his principal, and third persons are thereby injured, their remedy is against the principal and not against the agent. Denny v. Man- hattan Co. 2 Denio, 115; S. C. 5 Denio 639. And see Golvin V. Holhrook, 2 N. Y. 126; Hall v. Lauderdale, 46 K Y. 70. § 17. Termination of Agent's Authority. The authority of an agent may terminate in various ways. It may terminate with the death of the agent; by the limitation of the power to a particular period of time ; by the execution of the business which the agent was constituted to perform ; by a change in the state or condition of the principal ; by his express revocation of the power; and by his death. 2 Kent's Com. 643. It is a well-settled rule of the common law that the authority of an agent is terminated by the death of his principal, and that no notice is necessary to relieve the estate of the principal of re- sponsibility, even on contracts into which the agent had entered with third persons who were ignorant of his death. Weber v. Bridgman, 113 IST. Y. 600 ; Farmers' Loan & Trust Co. v. Wilson, 139 ISr. Y. 284. The receipt by an agent of payments made upon securities in his possession, or the payment of rent to the agent, after the death of the principal, will not bind the estate of the PEINCIPAL AND AGENT. 319 principal, although the payments were made to the agent in ig- norance of the principal's death. Ih. There is an exception to the rule that death of the principal puts an end to the agency in the case of an agency coupled with an interest. Hess v. Rau, 95 N. T. 359 ; Hunt v. Rousmanier, 8 Wheat. 174; Ora,pel v. Hodges, 112 N. Y. 419. There is an- other exception to the riUe in the case of a partnership as princi- pal, and the death of one only of the members of the firm. Bank V. Vanderlwrst, 32 N. Y. 553. The interest which will authorize the execution of a power after the death of the principal must be an interest in the thing itself, which is the subject of the power and not in the proceeds or avails of such thing. HougMcding v. Marvin, Y Barb. 412 ; Hunt V. Rousmanier, 8 Wheat. 204 ; Fanners' Loan & TruM Go. V. ^Yilson, 64 Hun, 194; 139 N. Y. 284. See Terwilliger v. Ontario, C. & 8. R. R. Co. 149 N. Y. 86, 92. The fact that an agent is entitled to commissions on rents collected by him does not give him such an interest as will continue his power after the death of his principal. To have that effect the interest must be in the rents, as such. Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284. So, where there is merely a power given to a creditor to receive a debt in liquidation of a claim unaccompanied by any assignment of the claim, or by any security to which the power might have been ancillary, it is revoked by the death of the prin- cipal. Houghtaling v. Marvin, 7 Barb. 412 ; Lepard v. Vernon, 2 Ves. & B. 51. But a power of attorney to sell a stock of goods and apply the proceeds upon liabilities incurred, and to be in- curred by the donee of the power, accompanied by the possession of the goods, is not revoked by the death of the principal, because coupled with an interest. Knapp v. Alvord, 10 Paige, 205. A principal who has conferred upon his agent a naked power, that is, an authority in the execution of which the agent has no other interest than that which springs from his employment as agent and his right to earn his compensation, may, while the au- thority is still executory, revoke it at his pleasure. Terwilliger V. Ontario, C. & 8. R. R. Co. 149 K Y. 86. There is a qualifi- cation of the rule where the agent has entered into the execution of the authority before revocation, and has so bound himself that a retraction of the authority would subject him to liability. In such cases the principal cannot revoke the authority as to the part of the transaction remaining unexecuted, at least not without in- demnifying the agent. Ih. 320 PEINCIPAL AND AGEITT. There would seem to be an incongruity in the law of agency with respect to the effect of a revocation of the agent's powers by the act of the principal himself and a revocation produced by his death. In the former case, the revocation does not affect third parties dealing with the agent in good faith without notice ; while in the latter, the revocation operates upon all parties, without no- tice, unless the power is coupled with an interest. Claflin v. Len- heim, 66 IST. Y. 301 ; Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284. A person who has dealt with an agent in a matter within his authority, has a right to assume, if not otherwise in- formed, that the authority continues, and when the dealing con- tinues after the authority is revoked, the principal is neverthe- less bound, unless notice of the revocation is brought home to the ■other party. McNeilly v. Continental Life Ins. Co. 66 1^. Y. 23, 28; Stevens v. Schroeder, 40 App. Div. 590. An agent of a partnership is not authorized to continue the performance of his duties as an agent, after he has been notified that there has been a change made in the firm by the admission of new members, without a renewed authority from the new firm. Callanan v. Van Yleck, 36 Barb. 324. But where the remittances which were sent to the new firm by the agent, were received and receipted by the new members, and the notes and bills purchasd by him were used by the firm in their business, it was held that this was sufficient to induce the agent to believe that the author- ity previously given by the old firm was continued by the new firm, and it is sufficient to render the new firm liable for the amount of such advances as were thus made by the agent . Ih. A delivery of a policy of insurance by an agent is good, and binding upon the principals where the premiums had been pre- viously paid, although the assured had been informed by the principals, that they intended to revoke the appointment of the agent, if such delivery takes place before revocation or knowl- edge on the part of the agent of the intent to revoke. Lighthody V. North American Ins. Co. 23 Wend. 18. The lunacy of a principal may operate to revoke the authority of an agent, but it cannot have any such effect until the lunacy is judicially estab- lished by an inquisition or otherwise. Wallis v. Manhattan Co. 2 Hall, 495. When the agent has fully performed the duties for v^hich he was appointed, his authority will be determined by the limitation of the appointment itself. These general views are all that can be presented in the limited space permitted in this work. COEPORATIONS. 321 CHAPTER VII. COEPOEATIOITS. § 1. Classification and Definitions. Actions miglit formerly have been brought in justices' courts, by corporations; though they could not be brought against them. But, as the law now stands, actions may be brought in these courts, either by or against corporations. The importance of the subject requires that some notice should be taken of some of the more general principles which relate to ■corporations, and especially of those rules which are most fre- quently applied in practice. Pull information must be obtained from works expressly written upon the subject. Corporations are very numerous, and they are of various kinds. But it is those which relate to commercial matters, that will most frequently furnish questions to be litigated in a justice's court. Corpora- tions are frequently called "companies," instead of corporations. It would be difficult to enumerate all the kinds of business -svhich is transacted by corporations at the present day. Though much of the most important business which requires an extensive ■capital is done by corporations, or joint-stock associations. Some ■of the more frequent instances of modern corporations are those which relate to banking, life, marine and fire insurance, steam- boats, steamships, railroads, plankroads, turnpikes, bridges, canals, literary societies, trading companies, gas light and tele- graph associations, and others of a similar character. Corpora- tions combine capital, skill and enterprise, and they have done, and still are doing, much to develop the vast resources of the State and nation. Their convenience, utility and importance have rendered them indispensable aids in the transaction of business. And the Constitution and laws of this State have provided gen- eral laws for their creation and government. The general classification of corporations is to be found in the statute known as the General Corporation Law. See Laws of 1909, chapter 28 ; Consolidated Laws, chapter 23. 21 322 COEPOEATIOXS. A corporation is either a municipal corporation, a stock cor- poration, or non-stock corporation. A stock corporation is eithei a moneyed corporation, a transportation or other railroad corpo- ration, or a business corporation having a capital stock divided into shares, and which is authorized by law to distribute to the holders thereof dividends or shares of the surplus profits of the corporation. There is no "mixed" corporation now knowii to our laws. A non-stock corporation is either a religious corporation, or a membership corporation, and includes every corporation other than a stock corporation. A transportation corporation is either a railroad corporation or a transportation corporation other than a railroad corporation. A membership corporation includes be- nevolent orders and fire and soldiers' monument corporations. A municipal corporation includes a county, town, school dis- trict, village and city, and any other territorial division of the State established by law with powers of local government. A stock corporation is one having capital stock divided into shares. A moneyed corporation is a corporation formed under or sub- ject to the banking or the insurance law. A domestic corporation is a corporation incorporated by or under the laws of the State or colony of New York. Every cor- poration which is not a domestic corporation is a foreign cor- poration, except as provided by the Code of Civil Procedure for the purpose of construing such code. The term, "directors," when used in relation to corporations in- cludes trustees or other persons, by whatever name known, duly appointed or designated to manage the affairs of the corporation. See also. Penal Law, section 667. The term, "certificate of incorporation," includes articles of as- sociation or any other written instruments required by law to be filed to effect incorporation, including a certified copy of an original certificate of incorporation filed for such purpose pur- suant to law. The term, "member of a corporation," includes every person hav- ing a right to vote at a meeting of the corporation for the elec- tion of directors, other than a person having a right to vote only upon a proxy. The term, "ofiice of a corporation," means its principal office within the State, or principal place of business within the State if it has no principal office therein. The office of a stock cor- COEPORATIONS. 323 poration must be in the county, town or city in which its business is principally carried on. People ex rel. Krdclcerbocker Press v. Barker, 147 IT. Y. 715. The term, "business of a corporation," when used with reference to a non-stock corporation, includes the operations for the con- duct of which it is incorporated. A corporation is an artificial entity existing in contemplation of law only in the state of its creation, and is recognized elsewhere only by comity. In Re Will- mer's Estate, 138 N. T. Supp. 649. The term "corporate law" or "laws" when used in any law forming a part of the Consolidated Laws, means the general stat- utes of this state, relating to incorporations included in such con- solidation. These statutory definitions are important to the interpretation of the general laws under which corporations are created and regulated in this State. These laws are to be found principally in the Consolidated Laws, the General Corporation Law, and other general and special statutes affecting or relating to corporations, and can only be referred to incidentally in the limited discussion of the subject of corporations permissible in a work of this charac- ter. § 2. Subscriptions for Stock. There are several classes of agreements, having for their object and subject-matter the acquisition of shares of stock of a cor- poration formed or to be formed, which should be carefully dis- tinguished, as an agreement under one class may be a valid and binding contract, while the agreement under another may be wholly inoperative as a contract. "Stock" in a corporation is a right which a shareholder has by reason of his ownership of stock, and is a right to participate according to the amount of his stock in the surplus profits of the corporation on a division, and ulti- mately, on its dissolution, in the assets remaining after payment of debts, and this right is personal property. In Be Oshorne, 138 IST. Y. Supp. 18. Corporate stock may be regarded as having its. situs either at the domicile of the holder, as a chose in action, or at the domicile of the corporation, because the shares represent a part of the corporate property; hence, though the corporation main- tain an office in a foreign state which is not the domicile of the 324 COEPOEATIOI^S. holder, the stock has no situs in that state. Lochwood v. United States Steel Corporation, 138 IST. Y. Supp. 725. There may be an agreement to form a corporation and sub- scribe to its stock. Such an agreement is not valid and binding when made, as there is then in existence no party representing the company who is capable of contracting. But, though a sub- scription for stock of a corporation yet to be formed is not binding upon the subscriber while the corporation is not in existence, for the reason that there is no one with whom to contract, the organi- zation of the corporation and acceptance of the subscription, he recognizing himself as a stockholder, completes the contract and makes it binding upon him. Avon Springs Sanitarium Co. v. Kellogg, 125 App. Div. 51. But when the agreement is uncondi- tional and absolute to form the corporation and take the stock, and the contract contemplates no further act upon the part of the per- son making such agreement, and it remains open and unrevoked, such agreement becomes valid and binding as a subscription to the capital stock of the corporation whenever the company is organized and acts upon it by an acceptance of what is regarded as an open and continuing proposal. Buffalo & Jamestoivn B. B. Co. v. ClarJc 22 Hun, 359; S. C. sub-nom. Buffalo & Jamestown B. B. Co. V. Gifford, 87 JST. Y. 294; Yonlcers Gazette Co. v. Taylor, 30 App. Div. 334; Non-Electric Fibre Mfg. Co. v. Peabody, 21 App. Div. 247. Wood's Motor Vehicle Co. v. Brady, 39 Misc. 79 ; 78 K Y. Supp. 203 ; Lowville & B. B. B. Co. v. Elliott, 115 App. Div. 884. Where defendants subscribed for stock in a corporation to be thereafter organized, it was not essential that the corporation should be organized by the parties to the agreement or their rep- resentatives. Avon Springs Scmltarium Co. v. ^Yeed, 119 App. Div. 500. A certificate of incorporation, which is signed by the directors and the only stockholders, and which states the amount of capital with which the corporation will begin business, and which specifies the number of shares each agrees to take, constitutes a legal liability on the part of each to pay the corporation for the number of shares specified. Bathbone v. Ayer, 121 App. Div. 355. In another class are mutual agreements to subscribe for stock in a corporation thereafter to be formed. This agreement clearly contemplates that there is to be something more done by way of formally subscribing for the stock. Of itself it is a mere agree- ment to subscribe at some future time and is not an actual sub- scription. The agreement is between the parties signing it, and COEPOEATIONS. 325 the corporation is in no sense a party to it. There is no agree- ment on the part of the signers to become stockholders, and if any action can be maintained upon it, it must be brought by one of the subscribers or his assignee. The corporation has no stand- ing to enforce it. Lahe Ontario Shore R. R. Go. v. Cwrtiss, 80 X. Y. 219 ; Yonkers Gazette Go. v. Taijlor, 30 App. Div. 334. See Dorris v. Siueeney, 64 Barb. 636 ; 60 K Y. 463. Another class of contracts may relate to subscriptions for the capital stock of a company actually incorporated. The stock cor- poration law provides as follows: "If the whole capital stock shall not have been subscribed at the time of filing the certifi- cate of incorporation, the directors named in the certificate may open books of subscription to fill up the capital stock in such places, and after giving such notices as they may deem expedient, and may continue to receive subscriptions until the whole capital stock is subscribed. At the time of subscribing, every subscriber, whose subscription is payable in money, shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such pay- ment." Stock Corporation Law, Laws 1909, chapter 61, section 53; Consolidated Laws, chapter 59. A subscription for stock of an incorporated company on which no payment is made is not an enforceable contract. South Buffalo Natural Gas Go. v. Bain, 9 Misc. 425 ; iV. r. (6 Oswego M. R. R. Co. v. Van Horn, 5-7 N. Y. 473 ; Blach River & Utica R. R. Go. v. Glarhe, 25 N. Y. 208 ; Excelsior Grain Binder Go. v. Stayner, 25 Hun, 91. But, al- though an insurance company be governed as to its organization by the Insurance Law instead of the Stock Corporation Law, and is not required to file any subscription to its capital stock with the incorporation papers, subscriptions after the books are opened are governed by the provisions of the Stock Corporation Law, and are void unless ten per cent be paid in cash. Van Schaich v. MacTcin, 129 App. Div. 335. Where the subscription is made before the organization of the corporation the payment of ten per centum upon the amount subscribed is not required. Yonkers Gazette Co. V. Taylor, 30 Hun, 334. The relation of stockholder to a corporation depends entirely upon contract, and to establish it, it must appear that the minds of the parties met; that the person sought to be charged with the relation agreed to become a stockholder, and that the coi^ poration accepted him as such. Qlcnn v. Garth, 133 IST. Y. 31 ; 326 CORPOEATIONS. Powers V. Knapp, 71 Hun, 371, 374. The receipt by a stockholder of a certificate of stock issued to him from which it expressly appears that the stock is subject to future calls, and his becoming a stockholder of record upon the books of the company, coupled with the fact that in reply to subsequent demands for calls he sends his check in payment, expressly stating that the money sent was to pay calls upon the stock in question, is sufficient to justify a finding of an implied promise on his part to pay all future calls, and to sustain an action therefor. Sigua Iron Co. v. Brown, 171 ]Sr. Y. 488. If the agreement upon which suit is brought is an alleged sub- scription for the capital stock of an unincorporated company and is made upon an express condition therein contained which has not been performed, no action can be maintained upon the agree- ment. Lake Ontario Shore R. B. Co. v. Gurtiss, 80 I^. Y. 219; New York Exchange Co. v. De Wolf, 31 ~S. Y. 273. If the act under which the company was incorporated prescribes the manner of subscribing for stock, and only authorizes absolute subscrip- tions, a subscription upon condition cannot be enforced. Fort Edward, &c. Plank Boad Co. v. Payne, 15 IST. Y. 583. If the agreement, by reason of the condition therein contained, is against public policy, it is wholly void and cannot be enforced. lb.; Butternuts & Oxford Turnpike Co. v. North, 1 Hill, 518 ; Ma- £edon & Bristol Plankroad Co. v. Snediker, 18 Barb. 317 ; Dix V. Shaver, 14 Hun, 392. But a secret collateral contract between a corporation and a subcriber to its stock, or between such sub- scriber and the promoter of a proposed corporation, which pro- vides that he shall not be bound by his subscription, or which substantially varies its ostensible terms, is void and leaves the subscription unaffected. White Mts. R. B. Co. v. Eastman, 34 N. H. 124 ; Armstrong v. Danahy, 75 Hun, 405 ; Yonhers Gazette Co. V. Jones, 30 App. Div. 316. And see Meyer v. Blair, 109 AL Y. 600, 605. A person may be liable on his subscription for stock in a cor- poration although no certificate of stock has been issued to him. Certificates are evidence of title to stock, but are not at all es- sential to its ownership. It is the subscription and not the cer- tificate that constitutes the party a stockholder of a corporation. Buffalo & N. Y. G. B. B. Co. v. Dudley, 14 K Y. 336 ; Kohl- metz V. Calkins, 16 App. Div. 518; Seals v. Buffalo Construc- tion Go. 49 App, Div. 589. COEPORATIONS. 327 A subscription to articles of incorporation, witli a statement of the number of shares opposite the name, is a sufficient and binding subscription for the stock, and takes effect upon the filing of the certificate. Winston v. Kilpcdrick, 5 Daly, 524; 63 N. Y. 604 ; Phoenix Warehouse Co. v. Badger, 6 Hun, 293 ; 67 N. T. 294. There are many early cases relating to the liability of sub- scribers upon their subscriptions to the capital stock of corpora- tions to be or actually incorporated. Very many of these cases are based upon the construction of statutes since repealed, and their citation here would answer no good purpose. § 3. Transfers of Stock. An action will lie against a corporation for refusing, in a proper case, to permit a transfer of stock to be made upon its books. Commercial Bank &c. v. Kortright, 22 Wend. 348 ; Willicwnson v. Continental Filter Co. 34 App. Div. 630. Where the stock of a company was usually transferred on two distinct books, to the stock transferred on one of which brokers attached a greater value than to that of the other, and a creditor agreed to exchange his debt for stock, on the officers stating that such stock could be transferred on the former, and after com- pleting such exchange, the officers refused to allow a transfer of it to be entered on such book, it was held that the creditor could not for that cause rescind the exchange, but that his remedy was in an action for damages. Lohman v. New Yorh & Erie B. B. Co. 2 Sandf. 39. It has been held that an assignee of shares of stock, which were transferred to him for value by the original subscriber therefor, cannot maintain an action for a refusal to transfer the shares on the books of the company, if such subscriber has not paid for -the shares. McCready v. Bwmsey, 6 Duer, 574. In this case ■the articles of association provided for the existence and enforce- ment of a lien for the sum due on the original subscription of the stock, and the general act under which the corporation was formed provided that transfers of shares should take subject to the liabilities of prior shareholders. See Driscoll v. West Brad- ley & C. M. Co. 59 ]Sr. y. 96, 107 ; McNeil v. Tenth Nat. Bank, 46 IST. T. 325, 335. But a corporation has no power to make a hj-law regulating the transfer of its stock except such as is given 328 COKPOKATIONS. by law, and a corporation never had in this State, the right, by means of a by-law, to limit or take away the power of a stock- holder to transfer his stock ; and where the articles of association contain no provision authorizing such restriction, the directors of the corporation are without authority, either with or without a by-law, to establish it. Driscoll v. West Bradley & G. M. Co. 59 ISr. Y. 96; Bank of Utica v. Manufacturers & Traders' Bank,. 20 ISr. Y. 501 ; Reynolds v. Bank of ML Vernon, 6 App. Div. 63 ; Kinnan v. Sullivan County Cluh, 26 App. Div. 213. The stock corporation law of this State provides for the manner in which stock shall be issued, and that the stock "shall be trans- ferable in the manner prescribed in this chapter and in the by- laws. ISTo share shall be transferable until all previous calls thereon shall have been fully paid in." Laws of 1909, chapter 61, section 50; Consolidated Laws, chapter 59. "If a stockholder shall be indebted to the corporation, the directors may refuse to consent to a transfer of his stock until such indebtedness is paid, provided a copy of this section is written or printed upon the cer- tificate of stock." Id. § 51. Therefore, if the directors of a cor- poration desire to make its stock non-transferable without their consent, so long as the stockholder shall be indebted to the corpo- ration, they may do so by causing to be written or printed upon the certificate a copy of the section last cited. If this is not done, the right to make the stock non-transferable does not exist. Rochester & E. F. Land Go. v. Raymond, 4 App. Div. 600 ; 158 IST. Y. 576 ; Reynolds v. N. Y. Building-Loan B. Co. 158 N. Y. 694. ISTever- theless, it has been held that where the certificate of stock of a national bank contained a provision that "no transfer of the stock of this association shall be made without the consent of the board of directors by any stockholder who shall be liable to the association, either as principal debtor or otherwise, which liability shall be a lien upon the said stock and all profits thereof and dividends," such provision was effective to create a lien in favor of the bank as against a party to whom an instrument of assign- ment of the stock had been duly executed to secure an indebtedness created at the time and in consideration thereof to the assignee; and that such assignee was not entitled to have the stock so as- signed to him transferred upon the books of the company until he had paid the amount of the indebtedness of his assignor to the bank. Buffalo German Ins. Go v. Third Nat. Bank, 29 App. Div. 137. See Gihls v. Long Island Bank, 83 Hun, 92. COEPOEATIONS. 32& When, by the terms of the charter of a hank, and of the certifi- cate of stock issued by the bank, its stock can only be transferred on the books of the bank by the stockholder or his attorney, the bank is under no obligation to permit a transfer to be made to a person claiming to be the assignee of a certificate, on the presen- tation of such certificate with an assignment and a power of at- torney executed by the original holder in blank ^ no person being named or specified as the assignee or attorney. The naked pos- session of the certificate and blank assignment and power of at- torney is no evidence of title. Dunn v. Commercial Bank of Buffalo^ 11 Barb. 580. But where the holder of the stock has executed such a blank assignment, the assignee may fill up the blank with his own name, which will render the assignment valid and operative. Ih.; Commercial Banh of Buffalo v. KortrigM, 22 Wend. 348. A transfer by a stockholder of his stock in an incorporated or joint-stock company passes his interest to the pur- chaser, although the transfer is not made in conformity to the rules and by-laws of the company. Gilbert v. Manchester Iron Co. 11 Wend. 627; Bank of Utica v. Smalley, 2 Cow. 770. A bank which has permitted a transfer of stock owned by a stock- holder upon a forged power of attorney, and has canceled the original certificates, may be compelled to issue new certificates, and if it has no shares which it can so issue, to pay the value thereof. Pollock v. National Bank, 7 IST. Y. 274. A person sell- ing stock to be delivered at a future day, may recover the price upon a tender to the purchaser of the certificates of stock, with a power of attorney to transfer the same, and demand and refusal of payment without an actual transfer of the stock to the name of the purchaser, where the purchaser at the time of the tender makes no objection for want of a transfer, but rejects the stock altogether, and refuses payment on any terms. Munn v. Bamum, 24 Barb. 283. A certificate of shares of stock does not partake of the character of negotiable instruments, and a bona fide assignee, with a power to transfer the stock, takes the certificate subject to the equities which existed against his assignor. Mechanics' Bank v. New York and N. H. B. B. Co. 13 N. Y. 600 ; New York and N. H. R. R. Co. V. Schuyler, 17 N. Y. 592. Stock in a corporation is not a negotiable instrument, although invested with some of the char- acteristics of negotiability, and a purchaser of shares must show as against the claim of the true owner that he took without notice. 330 CORPORATIONS. and for a valuable consideration actually paid. American Press Ass'n V. Braniingham, 75 App. Div. 435. The equitable doctrine of lis pendens does not apply to shares of corporate stock Ih. When a shareholder transfers his stock, he transfers his entire interest; and dividends subsequently declared, without reference to the source from which or the time during which the funds di- vided were acquired by the corporation, necessarily belong to the holder of the stock at the time of the declaration. Jerniain v. Lake Shore £ Mich. So. By. Co. 91 JST. Y. 483 ; Jones v. Terre Haute & Bichinond B. B. Co. 57 IST. Y. 196; Boardman v. Lake Shore & Mich. C. By. Co. 84 IST. Y. 157 ; Matter of Kernochan, 104 N. Y. 618; Hopper v. Sage, 112 IST. Y. 530. The rule is not changed by the fact that the dividend declared is made pay- able at a future time. Hopper v. Sage, 112 JST. Y. 530. And where the stock is transferred after a dividend has been declared, the transfer of the stock does not transfer the dividend. lb.; Jermain v. Lake Shore & Mich. So. By. Co. 91 N. Y. 483, 492. Prima facie, a transfer of stock of a corporation upon its books, whereby the legal title is transferred to another, followed by the dominion of that other person over the stock, would vest the title of the stock in the transferee. The possession of the certificate is not essential to the vesting of a valid title to the stock in the person to whom it was transferred. But the transfer by the owner of stock in a corporation upon the corporation books, stand- ing alone, is not sufficient to make a valid gift of the stock to the transferee. In addition, there must be the other requisites of a ^ift. Bichardson v. Emmett, 61 App. Div. 205 ; Jackson v. Twenty-third Street By. Co. 88 N. Y. 520 ; Matter of Crawford, 113 E". Y. 567. § 4. General Powers of all Corporations. "No corporation shall possess or exercise any corporate powers not expressly given by law or not necessary to the exercise of the powers so given. The certificate of incorporation of any corpor- ation may contain any provision for the regulation of the business and the conduct of the affiairs of the corporation, and any limita- tion upon its powers, or upon the powers of its directors and stock- holders, which does not exempt them from the performance of any obligation or the performance of any duty imposed by law." COEPORATIONS. 331 General Corporation Law, chapter 28, section 10 ; Consolidated Laws, chapter 23, Laws of 1909. "Every corporation as such has power, though not specified in the law under which it is incorporated 1. To have succession for the period specified in its certificate of incorporation or by law, and perpetually when no period is specified. 2. To have a common ^eal, and alter the same at pleasure. 3. To acquire by grant, gift, purchase, devise or bequest, to hold and dispose of such property as the purpose of the corpo- ration shall require, subject to such limitations as may be pre- scribed by law. 4. To appoint such officers and agents as its business shall re- quire, and to fix their compensation, and, 5. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and the transfer of its stock, if it has any, and the calling of meetings of its members. Such by-laws may also fix the amount of stock which must be represented at meetings of the stockhold- ers in order to constitute a quorum, unless otherwise provided by law. By-laws adopted at a meeting of the members of the cor- poration shall control the action of its directors. No by-laws adopted by the board of directors regulating the election of di- rectors or officers shall be valid unless published for at least once a week in a newspaper in the county where the election is to be held, at least thirty days before such election. Subdivisions four and five of this section shall not apply to municipal corporations." Id. § 11. In addition to the powers conferred by the general corporation law, certain other general powers are conferred by statute upon stock corporations. Id. chapter 59, section 6 ; banks. Banking Law; Laws 1909, chapter 10, section 66; Consolidated Laws, chap- ter 2 ; trust companies, lb. section 186 ; building and loan corpo- rations, Ih. section 211 ; railroad corporations, Eailroad Law, chap- ter 39, sections 4 to 18 ; ferry corporations, Consolidated Laws, chapter 63, Laws 1909, chapter 219, section 4; stage coach cor- porations, Ih. section 22 ; tramway corporations, waterworks corpo- rations, and the like. These sections of the statute are so explicit that there will not generally be any doubt as to the powers of corporations in respect to those matters which are expressly provided for. The reported 332 COKPORATIONS. cases in this State are generally mere illustrations of these pro- visions. A corporation has no other powers than such as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the power expressly granted. People V. Utica, Ins. Co. 15 Johns. 358 ; New York Firemen's Ins. Co. V. Ely, 2 Cow. 678. A corporation is not illegal, unless it is shown that the end it has in view is illegal, or the means- whereby it proposes to attain that end is illegal ; but the fact that a corporation may be used for illegal purposes or could be so used, is not necessarily any proof of its illegality. New York Motion Picture Go. v. Universal Film Manufacturing Co. 137 IST. Y. Supp. 278. A corporation may invoke the protection of the Con- stitution to the same extent as an individual. People ex rel. New- York Central and Hudson B. B. B. Co. v. Priest, 99 JST. E. Eep. 547. Where no authority is given in the charter, or in the act of incorporation, nor by any general statute, no corporation can issue bills, discount notes receive deposits, or loan money. The general corporation law expressly prohibits the exercise of banking powers by any corporation not formed under or subject to the banking laws. Laws of 1909, ch. 28 § 22 ; Chapman v. Lynch, 156 IST. Y. 551. A statute restraining any person from doing certain acts, applies equally to corporations, or bodies politic, although not mentioned. People v. Utica Ins. Co. 15 Johns. 358 ; People v. May, 27 Barb. 238 ; Matt v. Hicks, 1 Cow. 513 ; State of Indiana V. Woram, 6 Hill, 33. The prohibition in a statute forbidding a corporation to do an act extends to the board of directors, and to each director separately and individually. People v. Knapp, 99 N. E. 841. By the General Construction Law, the term person is made to include a corporation and a joint-stock association. Laws of 1909, ch. 27, § 37. The right to purchase property, and to do other acts relating to the corporate business, necessarily implies a right to create debts in the transaction of the affairs of the com- pany. And all debts created for such purposes are valid, and may be enforced against the corporation, or the stockholders, in the maimer provided by law. Hosack v. College of Physicians, &c. 5 Wend. 547 ; Hazard v. Wright, 201 JST. Y. 399. A negotiable promissory note given by a corporation for such debts is valid. Barker v. Mechanics' Ins. Co. 3 Wend. 94; Mott v. Hicks, 1 Cow. 513; Moss v. Oakley, 2 Hill, 265; 8. C. 5 Denio, 567; State of Indiana v. Woram, 6 Hill, 33. A corporation may, without special authority, make a note or draft, or accept a draft for a COEPORATIONS. 333 ■debt contracted in its legitimate business, and it may make notes or drafts, or give its acceptances to pay an indebtedness of the company to contractors for labor performed. Partridge v. Badger, 25 Barb. 146. A corporation authorized by the act of incorpora- tion to employ their stock solely in advancing money upon goods, and the sale of goods on commission, may lawfully accept bills drawn on account of future consignments, or deposits of goods. Munn V. Commission Co. 15 Johns. 44. A municipal corpora- tion may issue negotiable paper for a debt contracted in the course of its proper business, and no provision in its charter or elsewhere, merely directing a certain form in affirmative words, should be construed as taking away this power. The same rule applies to all corporations, whether public or private. Kelley v. Mayor of Brooklyn, 4 Hill, 263. The unexpressed and incidental powers possessed by a corpora- tion are not limited to such as are absolutely or indispensably necessary to enable it to exercise the powers specifically granted. Whatever incidental powers are reasonably necessary to enable it to perform its corporate functions are implied from the powers affirmatively granted. Curtis v. Leavitt, 15 !N". Y. 64. But powers merely convenient or useful are not implied if they are not essential, having in view the nature and object of the incorpo- ration. People ex rel. Tiffany & Co. v. Campbell, 144 iN". T. 166, 172. Cause v. Commonwealth Tr. Co. 196 N. Y. 134. Thus, a manufacturing corporation may find it convenient and useful and in furtherance of its business interests, to supply from other sources goods which it could not itself profitably manufacture, to complete its stock and sell in connection with its own manu- factured products, but such purchase and sale of goods manu- factured by other parties cannot be said to be essential to its busi- ness as a manufacturing corporation. Within the rule, that except as restrained by law, trading cor- porations have the implied power to make all such contracts as will further the objects of their creation, and their dealings in this regard may be likened to those of an individual seeking to accomplish the same ends, making an advance, either of money or •of credit, to a firm of hotelkeepers from whom the defendant cor- poration, dealing in carpets, was to receive a large payment for goods sold to them, was within the implied powers of the •corporation, and not ultra vires, and an agreement to save harm- less an accomodation indorser of the hotelkeepers' note, the pro- 334 COEPORATIO.\^S. ceeds of which were paid to the corporation, or expended under its advice, is binding upon it, the indorsement being made in reliance upon the agreement. Hess v. Shane, 66 App. Div. 522. There is no statute which authorizes one corporation to organize another, and such power is not conveyed by implication. Schwab v. E. G. Potter Co. 194 N. Y. 409. The trustees or agents of a corporation may enter into contracts under the corporate seal, for the payment of money, in further- ance of the business of the corporation. A corporation has no authority to incur debts except such as is conferred by the act un- der which it is incorporated. Leighton v. Knapp, 115 JST. Y. Supp. 1040. It is not necessary that the trustees or agents of a corporation should subscribe their individual names to the contracts, but their doing so will not vitiate the corporate act. Clark v. Farmers' Woollen, &c. Co. 15 Wend. 256. The secretary of a corporation^ who is also a director, having charge and control of its business has power to make such agreement as vdll bind the corporation, although not expressly authorized to make it by the board of di- rectors. Hess V. Sloans, ante. A note under seal given by the trustees or agents of a corporation for a corporate debt, is valid, but not negotiable. But a manufacturing corporation has not the power to become an accomodation indorser of a note, and this jDower is not conferred by the provisions of the negotiable instru- ments law. Oppenheim v. Simon Beigel Cigar Co. 90 N. Y. Supp. 355. Where a statute prescribes a mode in which a corpo- ration must perform acts, that mode must be adopted, or the acts will not be valid. Beatty v. Marine Ins. Co. 2 Johns. 109. The authority of a corporation to perform a particular act is always dependent to a very considerable extent upon the facts and circum- stances existing at the time when it is proposed to perform the act. Cause v. Commonwealth Tr. Co. 196 E". Y. 134; Appleton V. Citizens' Central National Bank, 190 JST. Y. 417. Corporations cannot make valid indorsements of accommodation notes for other persons or corporations, in which they have no interest. Central Bank v. Empire Stone Dressing Co. 26 Barb. 23 ; Bank of Gene- see V. Patchin Bank, 13 IST. Y. 309 ; Morford v. Farmers' Bank, 26 Barb. 568. But the rule that a corporation can neither make nor endorse accommodation paper, although paid to do so, is not applicable when one corporation assumes the obligation of anotner COEPORATIOlv^S. 335 in order to protect its own interests. Bacon v. Montauk Brewing Co. 130 App. Div. 737. The act of a corporation in indorsing a promissory note purely for the accommodation of the maker is ultra vires even though the corporation received collateral security against its liability on such indorsement. Carlaftes v. Ooldmeyer Co. 129 H^. Y. Supp. 396; National Parh Bank v. German America, etc. Co. 116 !N". Y. 281. But a corporation vs^hich ovtus paper may indorse it and procure it to be discounted for its own use. And it may purchase its own stock, hold it unextinguished, and re-issue the same. Moses v. Soule, 118 N. Y. Supp. 410. And when it represents that a note belongs to itself, when in fact such note belongs to a third person, the corporation will be liable if the note is discounted in good faith by the bank or person advancing the money. Ih.; Bank of New York V. Bank of Ohio, 29 IST. Y. 619. A president of an incor- porated company cannot borrow money in the name of the com- pany and pledge its responsibility, unless authorized by the charter of the company, or by a resokition or by-law of the directors. Life and Fire Ins. Co. v. Meclianics' Fire Ins. Co. 7 Wend. 31. A corporation has incidental authority, when not specifically re- stricted, to borrow money for any of its lawful purposes. Par- tridge V. Badger, 25 Barb. 146. Banking associations possess no authority to carry on the business of banking, except in the man- ner specified in the statute, and they have no power to purchase State stocks to sell at a profit, or as a means of raising money, ex- cept when received as a security for a loan, or taken in payment of a loan or debt. Talmage v. Pell, 7 IST. Y. 328. An agreement by a plankroad company, to purchase its own stock, is against public policy, and the directors have no power to make such a purchase and then mortgage the road for it, and if they do so, that will not make the stockholders personally liable. Barton v. Port Jackson dc. P. R. Co. 17 Barb. 397. The corporation of the city of New York cannot issue nego- tiable paper which is valid, unless it is made for some legitimate business purposes. And therefore a bond or warrant, drawn by the corporation of the city of New York, upon the treasurer of the city, not in the course of its proper legitimate business, is void in the hands of a bona fide holder, without actual notice of its consideration. The charter of the city being a public act, he is bound to take notice of the extent of the powers of the corpora- tion. Halstead v. Mayor, &c. of New York, 5 Barb. 218 ; 8. C 336 CORPOEATIONS. 3 iN". T. 430. "No corporation can create a legal debt against itself, unless the act creating it is one which is authorized by its charter, or by some general statute. Hodges v. City of Buffalo, 2 Denio, 110. A bank raay sell property which it has received in payment of a debt due to it, without violating the statute for- bidding banks from trading or dealing in goods, etc. Sachetts Harbor BanJc v. Lewis Co. Bank, 11 Barb. 213. When it is a simple question of capacity to contract, arising either on a question of regularity or organization or of powers conferred by the charter of incorporation, a party who has had the benefit of the contract, cannot be permitted, in an action founded upon it, to question its validity. Steam Navigation Co. v. Weed, 17 Barb. 378 ; Mott v. United States Trust Co. 19 Barb. 568. See Whitney Arms Co. v. Barlow, 63 IST. Y. 62 ; Bushnell v. Chautau- qua Co. Nat. Bank, 10 Hun, 378 ; Bath Gas Light Co. v. Claffy, 151 ISr. Y. 24. Whenever any debt or liability is incurred by a corporation, it is binding upon it as much as any similar obligation is upon an individual. And it is liable, not merely upon an express prom- ise, but is bound equally by an implied agreement when that legally exists. Danforth v. Schoharie Tump. Co. 12 Johns. 227 ; New York and Harlem R. B. v. Mayor, &c. of N. Y. 1 Hilt, 563. A contract made by an agent or officer of the corporation, without any authority for that purpose, may be ratified by it so as to be as valid and binding as though made pursuant to a pre- vious authority. Peterson v. Mayor, &c. of New York, 17 N. Y. 449; Hoyt v. Thompson, 19 E". Y. 208; Partridge v. Badger, 25 Barb. 147. It is now well settled that a corporation cannot avail itself of the defense of ultra vires, when the contract has been, in good faith, fully performed by the other party, and the corpo- ration has had the benefit of the performance and of the contract. Vought V. Eastern Building and Loan Association, 172 N". Y. 508 ; and a corporation having performed a contract made by them jointly, the defendants who have received the benefits there- of, are estopped from raising the question that the contract was ultra vires. Booth Bros. v. Baird, 83 App. Div. 495 ; see also Usher v. New York Central, etc. B. B. Co. 76 App. Div. 422 ; Public policy requires that corporations be confined to their char- tered powers, and in ultra vires matters they will not receive the aid of a court of equity. Fifth Avenus Coach Co. v. The City of New York, 111 N. Y. Supp. 759 ; 126 App. Div. 567. ISTo act of COEPORATIONS. 337 the corporation can ratify an act of its officer or agent so as to make it legal and valid, if the act done is one which is not within the power or authority of the corporation. Hodges v. City of Buffalo, 2 Denio, 110 ; Peterson v. Mayor, &c. of New Yorh, 17 IST. Y. 454 ; Smith v. City of Newhurgh, 77 IST. Y. 130 ; Cowen v. Tillage of West Troy, 43 Barb. 48 ; Brown v. Mayor, 63 N. Y. 239, 244; McDonald v. Mayor, 68 IST. Y. 23, 27 ; A. C. Nellis Co. V. Nellis, 62 Hun, 63 ; Seventeenth Ward Bank v. Smith, 51 App. Div. 259, 261. The doctrine of equitable estoppel, which prevents a principal from repudiating an act of his agent done in his business, but beyond the scope of the authority conferred, where the principal has not disaffirmed the act within a reasonable time after it came to his knowledge, applies to members of corporate or associated bodies as well as to persons acting in a natural capacity. Kent V. Quicksilver Mining Co. 78 If. Y. 159 ; Sheldon Hat Blocking Co. V. Eickemeyer Hat Blocking Machine Co. 90 IST. Y. 607. And a stockholder is estopped from questioning the corporate acts of a de facto corporation on the ground that the time limited in its charter has expired. Hoag v. Edwards, 124 N. Y. Supp. 1035. The power to purchase property for corporate purposes implies the power to sell or mortgage it for corporate purposes. Jackson \. Brown, 5 Wend. 490 ; Sacketts Harbor Bank v. Lewis County Bank, 11 Barb. 213. The execution of a chattel mortgage by a corporation to enable it to continue business, and not with intent to create a preference, was held not a violation of the Stock Corpo- ration Law, though the corporation was at the time insolvent. Bwan V. Stiles, 94 App. Div. 117 ; Converse v. Sharpe, 161 IST. Y. 671 ; see also Black v. Ellis, 197 IST. Y. 402. A purchase money mortgage is not within the provision of section 6 of the Stock Cor- poration Law requiring the consent of holders of not less than two- thirds of the capital stock. Clement v. Congress Hall, etc. 132 N. Y. Supp. 16. By the ancient and technical rules of the com- mon law, corporations could do but few acts, or make but few contracts without the corporate seal. This rule, however, has been greatly modified. The great number of corporations now in existence, the extent of business of a commercial character, and the convenience of society, all require the utmost freedom of ac- tion. So, too, by the common law, a seal must be impressed upon wax wafer, or some other tenacious substance, or it was not valid. 22 338 CORPORATIONS. Farmers' dec. Bank v. Baight, 3 Hill, 493 ; Bank of "Rochester v. Qray, 2 Hill, 227. But it is now provided by statute that a seal of a court, public officer or corporation, may be impressed directly upon the instrument or writing to be sealed, or upon wafer, wax or other adhesive substance affixed thereto, or upon paper or other similar substance affixed thereto by mucilage or other adhesive sub- stance. An instrument or writing duly executed, in the corporate name of a corporation, which shall not have adopted a corporate seal, by the proper officers of the corporation under their private seals, shall be deemed to have been executed under the corporate seal. Where a corporation, at the time of executing a mortgage, had not adopted any corporate seal, by resolution, and had no seal, but the trustees adopted the seal affixed opposite the name of the president, as the seal of the corporation, for the time being, this was held to be sufficient. South Baptist Society v. Clapp, 18 Barb. 36. The directors of a corporation have the chief management of its affairs when any important corporate business is to be de- termined. It is provided by statute that "the affairs of every corporation shall be managed by its board of directors at least one of whom shall be a resident of this State. Unless otherwise pro- vided by law a majority of the board of directors of a corporation at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business, and the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. Subject to the by-laws, if any, adopted by the members of a corporation, the directors may make necessary by-laws of the corporation." The ordinary routine business of a corporation is, and of neces- sity must be, transacted by the officers and agents of the corpora- tion. The statute, by declaring that the affairs of every corpora- tion shall be managed by its board of directors, and requiring that a majority at a meeting duly assembled shall be necessary to con- stitute a quorum for the transaction of business, does not require that every particular act shall be determined by a majority of the board; but that the rule of action shall be that which such majority shall prescribe. And although the charter of a corpora- tion declares that its powers "shall be exercised by a board of di- rectors," consisting of a specified number, yet the board may dele- gate its authority to agents, or to a quorum composed of less than a majority of the number. A by-law, therefore, declaring that COEPORATIONS. 339 the ordinary business of the corporation may be transacted by a quorum of five directors, the whole number being twenty-three, is a valid regulation. Hoyt v. Thompson, 19 N. Y. 207, 215, 216 ; S. C. 3 Bosw. 26Y. See Burden v. Burden, 8 App. Div. 160. One of the general powers conferred upon every corporation, though not specified in the law under which it is incorporated, is the power to appoint such officers and agents as its business shall require and to fix their compensation. Under this general power the directors of a corporation may appoint an executive committee of its members, and invest it with power to transact the business of the company during the interval between the meetings of the board,, and such committee may delegate to one of its number the power to do purely ministerial acts, such as indorsing checks payable to the corporation and receiving the money thereon. Sheridan. Electric Light Co. v. Chatham Nat. Banh, 127 N. Y. 517. The authority to make by-laws must be construed to relate to the power of the corporation in making by-laws which shall gov- ern its own agents and officers in the management of the cor- lX)rate affairs ; and not to affect the public at large, or the rights: and interests of third persons. Seneca County Banh v. Lamh,. 26 Barb. 596 ; Mechanics' and Farmers' Bank v. Smith, 19 Johns.. 115. And no by-laws can overrule the statutes or the common law of the land, as to persons who are not members of the corporation, or who have not made some agreement which waives their right, to the benefit of the general law which exists in the State. lb.. The power of an exchange which has established an insurance fund for the benefit of the families of deceased members to amend its. by-laws in respect thereto is one which must be exercised within reasonable bounds and cannot, be used to destroy the contract rights of its members. Parish v. New YorTc Produce Exchange,. 169 N. Y. 34. The Consolidated Laws, relating to cemetery corporations, pro- vides that the directors of a cemetery association may make reas- onable rules and regulations for the use, care, management and protection of the property of the corporation, and of all lots, plats, and parts thereof, in its cemetery, and that the directors "may prescribe penalties to be paid by a person violating any such rule or regulation, not exceeding twenty-five dollars for each violation, which shall be recoverable by the corporation in a civil action." Under this authority the association has the power to make rules and regulations that are binding upon those who voluntarily be- 340 COEPORATIONS. come members of it, but such rules and regulations will not, as to third persons, have the force of statutes. A violation of these rules and regulations by a third person will not render him liable to an action by the association to recover the penalty for such violation prescribed by it under the authority of the statute. Johnstown Cemetery Association v. Parker, 45 App. Div. 55. And it has been questioned whether a private stock corporation organized under the laws of this State has power, without express legislative authority to impose fines upon its stockholders for a violation of its by-laws, which may be enforced in an action for debt. Monroe Dairy Association v. Wehhj 40 App. Div. 49. It is held that the passage of a rule and regulation, and the imposition of a penalty for its violation, is an act of legislative power, and that the power to make laws cannot be delegated by that department to any other body or authority. Barto v. Himrod, 8 IST. Y. 483; Jolmstown Cemetery Association v. Parker, 45 App. Div. 55. There is an apparent exception made to this in the case of municipal corpo- rations, or corporations vested with any of the political powers of the State, and exercising governmental functions as one of the agencies of the State. Tanner v. Trustees of the Village of Al- bion, 5 Hill, 121. And a by-law of such a corporation or board of officers, enacted under express authority of an act of the legis- lature, and being in conformity to the power conferred, has the same force as though it were enacted by the legislature. McDer- mott V. Board of Police, &c. 5 Abb. 422 ; Presbyterian Church v. Mayor, &c. of N. Y. 5 Cow. 538. § 5. Liability of Corporations. The law makes no distinction between natural persons and cor- porations so far as liabilities are concerned. Each is legally bound to fulfill all proper duties and obligations ; and each is liable for a neglect of such duties or for a breach of its obligations. There are some instances in which the law takes into account the inten- tion with which an act is done, or omitted. Corporations cannot have any intent, since they have nothing but a legal, not a natural existence. The liability of corporations upon contracts duly made with them is very clear. A corporation may be held liable upon a note made by a third person to the order of its president personally and indorsed by him and by the corporation and discounted by COEPOKATIONS. 341 plaintijffs in good faith, upon the representation that the pro- ceeds were to be used for the purpose of protecting paper of the corporation. Orvis v. Warner & Co. 15 App. Div. 463. A contract made by a majority stockholder assuming to act for the corporation and ratified by it is binding upon it, and the ratification may be by corporate act as well as by vote. Dupig- nac V. Bemstrom, 76 N. Y. Supp. 381, and cases cited. But it seems that as to religious and other corporations not engaged in business, a business act which charges them with liability must be shown to have been authorized before any liability will at- tach. People's Bank v. St. Anthony's Roman Catholic Church, 109 ]Sr. Y. 512 ; Karsch v. Pottier <& Stymus Mfg. Co. 82 App. Div. 230. But it is not merely upon contracts that they may be made liable. They act by means of officers and of agents ; and whenever any officer or agent commits any wrongful act while in the discharge of his duties as such officer or agent, the corporation is liable to respond in damages for the injury done. Arrest on the complaint of the president and manager of a corpo- ration, and prosecution by the attorney therefor, for embezzleming its funds, has been held sufficient to charge the corporation with responsibility and make it the proper party defendant in an action for malicious prosecution. NewMrTc v. National Wall Paper Co. 68 App. Div. 639. A corporation, whether a membership or stock corporation, is liable for its own acts, and one of its duties is to exercise reasonable care to employ competent and skillful agents, employee sand contractors to perform its various services. Ellsworth V. FranJclin County Agricultural 8oc. 99 App. Div. 119. And where a corporation dug a canal upon its own lands, by means of agents, and in the construction of the work, it became necessary to blast rocks with gunpowder, which was done by such agents, and the fragments of rock were thrown against the building of the plaintiff on lands adjoining, it was held, that the corporation was liable for the injuries thus done. Hay v. Cohoes Co. 2 JST. Y. 159; Tremain v. Cohoes Co. 2 N. Y. 163. And it is no defense that the work was done in the most careful manner possible. lb. But if the agent had committed a willful trespass, the corpora- tion would not have been liable. Yanderhilt v. Richmond Tump. Co. 2 N. Y. 479. And where the plaintiff's steamboat was run into and damaged by the willful act of the captain of the de- fendant's boat, which act was sanctioned by the president of the 342 COKPORATIONS. defendant's corporation, who was also its general agent, it was held, that the corporation was not liable. Ih.; S. C. 1 Hill, 480. There are intimations in several cases of authority that for the willful acts of the servant the master is not responsible. McManus V. Crichett, 1 East, 106 ; lUhhard v. New York & Erie B. B. Co. 15 K Y. 455 ; Wright v. Wilcox, 19 Wend. 343. But these inti- mations are subject to the material qualiiication that the acts designated "willful" are not done in the course of the service, and were not such as the servant intended and believed to be for the interest of the master. In such case the master would not be excused from liability by reason of the quality of the act. Mott V. Consumers' Ice Co. 73 IST. Y. 543 ; .Jackson v. Second Ave. B. Co. 47 N. Y. 274; Lynch v. Metropolitan El. B. Co. 90 IST. Y. 77; Boucher v. Blanchard, 86 N. Y. 256; Ochsenbein v. Shapley, 85 K Y. 214; Craven v. Blooming dale, 54 App. Div. 266; Fal- meri v. Manhattan B. Co. 133 IST. Y. 261. But if the servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass or causes damage to another, the master is not responsible. Mott v. Consumers' Ice Co. 73 IST. Y. 543 ; Maa-s v. Del. & 11. Canal Co. 54 Hun, 625 ; Bounds v. Del., Lack. & W. B. B. Co. 64 N. Y. 129 ; Isaacs v. Third Ave. B. B. Co. 47 N. Y. 122. A corporation is liable for the consequences of its wrongful acts and omissions, and for the acts of its agents while engaged in the business of their agency, to the same extent and under the same circumstances as natural persons. Fishkill Savings Institution v. Nat. Bank of Fishkill, 80 N. Y. 162. A corporation may be indicted either for non-feasance or mis- feasance, the obvious and general limitations upon this liability being in the former case that it shall be capable of doing the act for non-performance of which it is charged, and that in the second case the act for the performance of which it is charged shall not be one of which performance is clearly and totally beyond its authorized powers. People v. Bochester Bailway, etc., Co. 195 IST. Y. 102. But a corporation cannot commit the offense of man- slaughter in the second degree, under the provisions of the Penal Law. Ih. It is said that a corporation is not liable in an action of slander, as a corporation is liable only through acts of its officers or agents, and there can be no agency to slander. Eichner v. Bowery Bank, 24 App. Div. 63. But this doctrine may be subject to qualification and limitation. See Lubricating Oil Co. v. Stand- ard Oil Co. 42 Hun, 153. COEPORATIONS. 34?> An action of trover for the conversion of goods by an agent of a corporation is maintainable. Beach v. Fulton Bank, 7 Cow. 485 ; Yarhorough v. Bank of England, 16 East, 6 ; Duncan v. Sur- rey Canal Co. 3 Stark. IST. P. 50. Trespass will lie against a corporation aggregate for an act done by their agent within the scope of his authority, and in such action it is not necessary to show the appointment or authority of the agent under the seal of the corporation. Maund v. Mon- mouthshire Canal Co. 1 Car. & Marsh. N. P. 606 ; 8. C. 4: Man. & Grang. 452 ; Smith v. Birmingham, &c., Oas Light Co. 1 Ad. & Ellis, 526 ; Dater v. Troy Tump, and R. B. 2 Hill, 629. And a jury may infer the agency from an adoption of the act by the corporation, as from their having received the proceeds of an unlawful seizure. lb. An action will lie against a corporation for the negligence of their agent in the discharge of his duties, And so an action will lie for negligence, in permitting the walls of a building to remain standing after a fire, when in conse- ■quence of such neglect, the walls fell upon a person passing along a street by the ruins. Church of the Ascension v. Buckhart, -3 Hill, 193. Ejectment will lie against a corporation aggregate. Dater v. Troy Tump, and R. R. 2 Hill, 629. In order to charge a corporation in an action on the case for negligence in the performance of a public work, the law must have imposed a duty or conferred an authority to do such work. Thus vsrhere the officers and agents of a city corporation assumed to build a bridge, under the authority of a statute not constitutionally passed for want of a two-thirds vote, and the bridge fell in con- sequence of the negligent construction thereof ; it was held that the corporation was not liable at the suit of a person who was injured by the accident. Mayor, &c., of Albany v. Cunliff, 2 N. T. 165. But where a city corporation has power to construct public works, and it does the work so negligently that a person is injured in consequence, an action lies. Rochester White Lead Co. v. City of Rochester, 3 IST. Y. 463. Where the duty is judicial in such cases no action lies ; but where it is merely ministerial, and it is negli- gently performed by an officer or agent of the corporation, an action lies in favor of the person injured. lb. A plankroad company is bound, while engaged in constructing its road upon the site of a highway, to exercise reasonable care and diligence to render the ordinary public travel on the former highway, convenient and safe; and if, by the negligence of the 344 COEPOEATIONS. company, the road is rendered unsafe, and a traveler, exercising ordinary care, sustains damage, the company is responsible. Ire- Icmd V. Oswego, &c.j, P R. 13 N. T. 526. If a corporation is guilty of acts or omissions which would work a forfeiture of its charter, this is no defense to an action by the corporation ; and un- til the charter expires by its own limitation, or until the charter is annulled by the judgment of a proper court, it must be con- sidered in full force in all private actions between the corporation and individuals. She v. Bloom, 5 Johns. Oh. 366 ; S. C. 19 Johns. 456; People v. Manhattan Co. 9 Wend. 351; Banh of Niagara v. Johnson, 8 Wend. 645. Corporations that have permitted particular individuals to take possession of their property, their seal, and their records ; to act as their trustees ; and have in fact held them out to the world as their trustees, and as authorized to act for them, are, as much as an individual would be, estopped from questioning the acts of their agents within the scope of their apparent authority. Lovett V. German Reformed Church, 12 Barb. 67 ; Ebaugh v. German Reformed Church, 3 E. D. Smith, 60. Although a party dealing with a corporation is presumed to know the extent of its corporate powers ; or in other words, that he is bound to know the law ; yet, he has a right to presume, in the absence of proof to the contrary, that the corporation does its duty, and that it acts within and ac- cording to its charter. Akin v. Blanchard, 32 Barb. 527. A power conferred upon a manufacturing corporation, by its charter, to manufacture a particular species of goods, necessarily implies the power of disposing of them when manufactured; and if so, of receiving in payment money or property readily converti- ble into money, or provisions, or stores for the payment of their employees. De Groff v. Am,erican Linen Thread Co. 21 JST. Y. 124. And see Smith v. Law, id. 296. The power to ai&x condi- tions in respect to price is incident to the power of the corporation to sell property, and the contract is therefore valid. Ih. A cor- poration can, in ordinary cases, be made liable on an implied as well as on an express promise. But this principle does not apply to the case of a corporation which is deprived by statute of all capacity to contract, except in certain designated or prescribed forms. McSpendon v. Mayor, &c., of New York, 7 Bosw. 601, 609, 610 ; S: C. 20 How. 395. And when the legislative power from which a corporation derives its power to act prescribed a particular mode in which the act shall be performed, the corpora- COEPOEATIONS. 345 tion oannot lawfully perform the act in any other manner. Ih. If not done in that manner, the act is a mere nullity and utterly void. Ih. Where a person is employed for a corporation, by one assum- ing to act in its behalf, and he renders services according to the agreement, with the knowledge of its officers and without any ob- jection on their part, and without any notice that the contract is not recognized, such corporation will be held to have sanctioned the contract and will be compelled to pay for the services accord- ing to the agreement. Pister v. La Bue, 15 Barb. 323. So if the directors of a company, either through inattention or otherwise, suffer its subordinate officers to pursue a particular line of conduct for a considerable period, without objection, they are as much bound to those who deal with the officers in ignorance of their want of authority, as if the requisite power had been directly conferred. Beers v. Phoenix Glass Co. 14 Barb. 358. One may become the agent of a corporation in the same manner as he may of an individual, without any deed or writing. Perkins v. Wash- ington Ins. Co. 4 Cow. 645 ; Angell & Ames on Corp. 186, 187, § 3, 3d ed. The acts of an officer of a corporation, unless official, or within the compass of an agency delegated to him, are not bind- ing on the corporation. National Bank v. Norton, 1 Hill, 572 ; Jellinghaus v. N. Y. Ins. Co. 6 Duer, 1. When the charter provides that contracts shall be made in writ- ing, a verbal contract will not be valid, nor will it bind the corpo- ration. Spitser v. St. Mark's Ins. Co. 6 Duer, 6. But unless some statute, or some rule of law, or the charter, requires the agreement to be in writing, it may be verbal. First Baptist Church V. Brooklyn Fire Ins. Co. 19 E". Y. 305 ; 28 IST. T. 153. The declarations, or the acts of a director in a corporation, will not bind, nor in any manner affect the corporation, unless they are within the scope of his ordinary powers, or of some special agency relative to the subject-matter. Soper v. Buffalo and Bochester R. B. 19 Barb. 310. The secretary of a corporation has no power to indorse accom- modation paper, under his general authority to indorse notes and bills "in the prosecution of its business." Central Bank v. Em- pire Stone Dresisng Co. 26 Barb. 23. But if a corporation bor- rows money, and the note is in form that of an officer, and indorsed by the corporation; or, if a loan is made to an officer, but the note is that of the corporation, and the act is within the scope of the officer's authority, and the lender supposes that the money 346 CORPOEATIOIfS. is to be used for corporate purposes, the corporation is liable. Fb. A corporation has power to give a valid note or draft in payment of a debt, or on the purchase of property for the legitimate use of the corporation. Olcott v. Tioga B. R. Co. 40 Barb. 179. And it may also make a valid indorsement upon the notes of other persons which it has received in the course of its business, for the purpose of turning out or transferring such notes in payment of the debt of the corporation. lb. So where money is deposited in a bank by a corporation, the officers of the corporation may transfer or assign the money or the demand arising from such deposit, if there is a resolution of the board of directors authorizing the transfer, and the trans- fer is made for the purpose of paying a debt owing by such cor- poration. Carroll v. Cone, 40 Barb. 220. And such assignment will be valid although it may have been signed by one of the officers in anticipation of the resolution authorizing it, where it is not executed by the other officer, or delivered until after the passage of the resolution. Ih. And where the resolution author- izes a transfer by the "proper officers," it will be held, in the absence of proof to the contrary, and in favor of third persons dealing with the company, that the president and secretary are proper officers for that purpose. Ih. But where a president and secretary of a corporation execute an assignment of corporate property, and attach the corporate seal thereto, without any spe- cific authority from the company for that purpose, this will not be a proper execution of the instrument, and the want of author- ity cannot be cured by any proof that may be made before the officer taking the acknowledgment. Murray v. Yanderhilt, 39 Barb. 141. Notice given to an agent relating to business which he is au- thorized to transact, and while actually engaged in transacting it, will, in general, inure as notice to the corporation. McEwen v. Montgomery Co. Ins. Co. 5 Hill, 101. Notice given by a director to the board at a regnilar meeting of the board is notice to the corporation. ISTotice given to a director, is not, ordinarily, notice to the corporation ; but where a director acts in a particular busi- ness as the special agent of the corporation, notice to him in that business is notice to it. Fulton Bank v. Benedict, 1 Hall, 480 ; Fulton Bank v. N. Y. and Sharon Canal Co. 4 Paige, 127; National Bank v. Norton, 1 Hill, 572 ; North River Bank v. Aymar, 3 Hill, 262; Bank of U. 8. v. Davis, 2 Hill, 451; New COKPOEATIONS. 347 Hope and Delaware Bridge v. Phoenix BanTc, 3 N. Y. 166 ; Fer- non V. Manhattan Bank, 22 Wend. 183; S. C. 17 Wend. 524; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; Miller v. Illinois Central R. R. 24 Barb. 312. The personal liabilities of an agent of a corporation are sub- stantially the same as those of an agent of an individual. But when a corporation, having authority to sue, commences an action in pursuance of a resolution of the board of trustees, and its presi- •dent, for the purpose of obtaining an injunction therein, executes the undertaking required by the Code, in his official character, not professing to act as the agent of the corporation, the instrument will be regarded as the act of the corporation itself, and not the act of the president as its agent, and the officer will not be bound thereby. Episcopal Church, &c. v. Yarian, 28 Barb. 645, § 6. Liability of Stockholders. "Every holder of capital stock not fully paid, in any stock corporation, shall be personally liable to its creditors, to an amount equal to the amount unpaid on the stock held by him for debts of the corporation contracted while such stock was held by him. As to existing corporations the liability imposed by this section shall be in lieu of the liability imposed upon stockholders of any exist- ing corporation under any general or special law (excepting laws relating to moneyed corporations, and corporations and associa- tions for banking purposes), on account of any indebtedness here- after contracted or any stock hereafter issued ; but nothing in this section contained shall create or increase any liability of stock- holders of any existing corporation under any general or special law. The stockholders of every stock corporation shall, jointly and severally, be personally liable for all debts due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation. Before such laborer, servant or employee shall charge such stockholder for such services, he shall give him notice in writing, within thirty days after the termination of such services, that he intends to hold him liable, and shall commence an action therefor within thirty days after the return of an execution unsatisfied against the corpora- tion upon a judgment recovered against it for services. ISTo per- son holding stock in any corporation as collateral security, or as executor, administrator, guardian or trustee, unless he shall have 348 COEPOEATIONS. voluntarily invested trust funds in such stock, shall be personally subject to liability as a stockholder ; but the person pledging such stock shall be considered the holder thereof, and shall be liable as a stockholder; and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in the like manner and to the same extent as the testator or intestate, or the ward, or person interested in such trust fund would have been, if he had been living and competent to act, and hold the same stock in his own name, unless it appears that such executor, administrator, guardian or trustee voluntarily invested the trust funds in such stocks in which case he shall be personally liable as a stockholder. Stock Corporation Law, sections 56, 57, 58 j Consolidated Laws, chapter 59, Laws 1909, chapter 61. A trustee in bankruptcy of a corporation may maintain an action to recover unpaid subscriptions for its stock. Rathbone v. Ayer, 84 App. Div. 186 ; Stoddard v. Lum, 159 K Y. 272. ISTo action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation, and an execution thereon has been re- turned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable, with costs against the stockholder. ]N"o stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due ; and no action shall be brought against a stockholder after he shall have ceased to be a stockholder, for any debt of the corporation, unless brought within two years from the time he shall have ceased to be stockholder. Id. § 59. The liability of stockholders under the stock corporation law, so long as the capital stock is not fully paid, is not confined to commercial debts, but extends to a claim for legal services. Hallett v. Metropolitan Messenger Co. 69 App. Div. 258. The amendment of the stock corporation law by Laws 1901, chapter 354, makes it now nec- essary for a creditor to sue in behalf of himself and all other creditors in enforcing the liabilities of stockholders, though the right of an individual creditor to sue at law for his own exclusive benefit, provided by the statute before the amendment, is pre- served to creditors whose claims matured before it took effect. Lang v. Lwtz, 83 App. Div. 534. It seems, that under the pro- visions of the business corporations law, making the stockholder CORPOEATIONS. 349 directly responsible for debts, a stockholder may be sued before an action against the corporation is carried on to judgment, the creditor's right to execution being suspended until that process has been returned unsatisfied against the corporation. Adams v. Wal- lace, 82 App. Div. 117 ; citing Walton v. Coe, 110 IST. Y. 109. An action brought against stockholders of a full liability business •corporation, under the provisions of the business corporations law, is governed by the provisions of the stock corporation law, that no action shall be brought against the stockholder unless an action shall have been brought against the corporation within two years after the debt became due. Adams v. Slingerland, 87 App. Div. 312. The provisions of the Banking Law, imposing personal lia- bility upon the stockholders of trust companies, are subject to the limitations prescribed in the Stock Corporation Law, and an action cannot be maintained unless the plaintiff has recovered a judgment against the company and had an execution returned unsatisfied, or justifies the omission by facts which bring him within the excep- tions which the courts have interpolated into the statute. Gause v. Boldt, 49 Misc. 340 ; 99 N. Y. Supp. 442. A cause of action upon an unpaid subscription to stock, when based merely upon the im- plied promise of the stockholder to make payment, does not accrue to the corporation; but when there has been an express prom- ise that promise may be enforced by action as in the case of any other liability. Harris v. Wells, 108 IST. Y. Supp. 1078 ; but, it seems that an action brought on a subscription to the stock of a corporation cannot be sustained unless compliance is alleged with the provisions of the Stock Corporation Law requiring ten per cent of a stock subscription to be paid in cash at the time it is made. Ih. The recovery of a judgment against a corporation and the return of an execution unsatisfied thereon as a prerequisite to an action against a stockholder under the provisions of the Stock ■Corporation Law, are not required in a case where within two years after the debt was contracted and became due to the plain- tiff, the corporation was adjudged a bankrupt and effected a composition with its creditors pursuant to the provisions of the Bankruptcy Law. Firestone Tire and Rubber Co. v. Agnew, 194 'N. Y. 165. An action will not lie against a stockholder for an a,ssessment to cover estimated future expenses levied under a by-law authorizing an assessment only when there are not suffici- ent funds in the treasurer's hands to pay the indebtedness of 350 COEPORATIONS. the corporation, even though a part of the year for which the levy- was made had expired. Delaware Valley Tel. Co. v. Tiffany, 131 App. Div. 343. An employee who obtained a judgment in a city court against a corporation for services, by default, the execu- tion thereon having been returned unsatisfied, is not obliged to file a transcript of the judgment with the county clerk and ex- haust his remedy against the corporation by execution in a court of record before suing the stockholders under the provis- ions of the Stock Corporation Law. Padros v. Swarzenhach, 134 App. Div. 811 ; distinguishing Crippen v. Hudson, 13 IST. Y. 161. see also Card v. Groesbeck, 140 App. Div. 30. One who signs a preliminary subscription paper for the organization of a corpo- ration which it was expected would take over real estate owned hy him is liable at the suit of a creditor for the amount of his stock subscription, although he did not sign the certificate of incorporation, and such certificate was broader in its scope than the subscription paper, and he signed the subscription on the oral condition that it should not be binding until the corpora- tion had $40,000 to pay off the purchase money mortgage on. the land. Lyell Avenue Lumber Co. v. Lighthouse, 137 App. Div. 422. One who has held himself out as a stockholder, acted as such, and taken part in the affairs of a corporation, cannot question its legal existence for failure of the incorporators to sign the certificate of incorporation at the end, or his liability as stockholder on the ground that his subscription was con- ditional, lb. An action to charge a stockholder for the amount unpaid on capital stock subscribed for under the provisions of the Stock Corporation Law may be brought by a judgment creditor of the corporation, although it has been dissolved and a receiver- appointed, lb. It is a general rule, that a statute which im- poses upon the stockholders of a corporation a personal liability for the corporate debts must be construed strictly; it is in derogation of the common law, and cannot be extended beyond: its literal terms. Assets Realization Co. v. Howard, 70 Misc. 651 ; Chase v. Lord, 71 IST. Y. 446 ; Lowry v. Inman, 46 K Y. 119.. PAETNEESHIP. 351 CHAPTEK VIII. PAETNEESHIP, § 1. Who are Partners. A partnership, as between the members thereof, Is the associa- tion, not incorporated, of two or more persons who have agreed to combine their labor, property, and skill, or some of them, for the purpose of engaging in any lawful trade or business, and shar- ing the profits and losses, as such, between them. This is the definition of a partnership as given by the general statute known as the Partnership Law. See Laws of 1909, chapter 44; Con- solidated Laws, chapter 39. Partnerships are general or limited. A limited partnership con- sists of one or more persons, called general partners, and also one or more persons called special partners. The statute prescribes the manner in which a limited partnership may be formed. A partnership formed in any other manner is a general partnership. The term partner is applicable to every relation of partner- ship ; but there is frequently some peculiarity in the agreement of the partners, in consequence of which the general term "part- ner" is qualified. An ostensible partner is one whose name appears to the world as that of a partner. A nominal partner is an ostensible partner who has no interest in the firm but, by allowing his name to be held out to the world as a partner, is liable to a third person in the same manner as an actual partner. A dormant partner is one who participates in profit and loss, but who takes no part in the business and conceals his name from the world. Both secrecy and inactivity are implied in the word. See North v. Bloss, 30 E". Y. 374; Elmira Iron & Steel Rolling Mill Co. V. Harris, 124 N. Y. 280 ; National Bank of Salem v. Thomas, 4Y IST. Y. 15, 19 ; Bouker Contracting Co. v. Scribner, 52 App. Div. 505, 507. A dormant partner when discovered is liable in the same manner and to the same extent as an actual ostensible partner. A partnership may require a joint ownership of property, or it 352 PAETN"ERSHIP. may not, which will be determined by the agreement of the par- ties or the nature of the particular partnership. It is possible for partners to stipulate simply as to the profits of a business, where one of them is to furnish all the materials with which it is to be carried on, while both may bestow their labor; and in such ■case, as between themselves, the only specific interest of all the parties is in the profits, and the partnership is only in the use or ■employment of the articles as instruments of profit. Penny v. Black, 9 Bosw. 310. Where a business was carried on by plaintiff's intestate, defendant and a third party, none of them providing any capital, but each to receive a percentage of the profits, held that the parties were partners. Lefevre v. Silo, 112 App. Div. 464. A partnership in profits may exist, without including title to the stock out of which such profits arise, if such be the agTee- ment of the partners. Moore v. Huntington, 7 Hun, 425. By agreement of the parties the good will of a business and the business and property may be owned in common and not as partners. Auten v. Ellingiuood, 51 How. 359. And there may be a partnership in which all of the property forming the capital stock of the firm belongs to one or more of the partners and no portion of it is owned by the others. So there may be, as is usually the case, a joint and equal ownership of the capital. A partnership is a tenancy in common of the partnership prop- erty, with some other rights which are not incident to a mere tenancy in common. These other rights arise from the contract of partnership, and not from the mere relation of tenants in com- mon. A mere joint purchaser or joint ownership of property may ■create the relation of tenants in common, but it does not by any means create a partnership, nor its rights or liabilities. Porter v. McClurc, 15 Wend. 187; Irvine v. Forbes, 11 Barb. 587. The mere fact that a father has bequeathed to his sons certain real estate, the business carried on by him upon the property, and all the implements, mechanism and fixtures used in and connected with the business, does not constitute them partners, but merely joint owners. MacFarlane v. MacFarlane, 82 Hun, 238. But if the sons thereafter continue the business, each contributing thereto his share of the property bequeathed to him, and divide the profits thereof equally between them, this will constitute a co- partnership in fact and in law, as completely as if written articles of copartnership had been signed. Ih. In every partnership there is a community of interest, but PAETNERSHIP. 353 it is not every community of interest that creates a partnership. Coope Y. Eyre, 1 H. Bla. 37; Hoare v. Dawes, 1 Doug. 373. Common ownership of property does not of itself create a partner- ship. Towers v. Errington, 138 N. Y. Supp. 119. There is an essential difference between an agreement to form a future partnership, and an agreement which constitutes an existing partnership as soon as the agreement is made. If a per- son agrees to become a partner at a future time with others, pro- vided other persons agree to do the same, and advance stipulated portions of capital, or provided any other previous conditions are to be performed, there is no contract of partnership until all those conditions are performed. Dickinson v. Valpy, 10 Bam. & Cress. 142 ; Bourne v. Freeth, 9 Barn. & Cress. 640 ; Howell v. Brodie, 6 Bing. IT. C. 44. If the proposed partnership contemplated the execution of written articles of copartnership, no partnership inter esse is to be inferred merely from preliminary negotiations. Lunham v. Hafner, 5 App. Div. 480; Matter of Hoagland, 51 App. Div. 347. Though goods be bought by several, imder an agreement to hold in aliquot shares, but with the intention of subsequently forming a partnership in respect to them, yet until the partnership agreement is actually made, the purchasers are not copartners, but only tenants in common. Baldwin v. Burrows, 47 K Y. 199. It is sometimes the case that several persons make a joint pur- chase of property which it is understood shall be subsequently divided among the purchasers, either in specified proportions, or in such manner as the parties may mutually agree. Such pur- chases, whether made by the parties themselves or by their au- thorized agent, do not constitute the purchasers partners. Hoare v. Dawes, 1 Doug. 371 ; Coope v. Eyre, 1 H. Bla. 37 ; Gibson v. Lupton, 9 Bing. 297. But if the purchasers in such a case should subsequently agree to join in a sale of the property and divide the profits and losses arising therefrom, it would be a partnership from the time of the agreement. Any person who has legal capacity to make contracts gener- ally, may enter into a contract for forming a partnership. There are some persons who are disqualified by law from making valid and binding contracts. Infants and lunatics are examples. An infant may enter into a contract of partnership, though infancy wiU be a good defense, so far as he is concerned, if he pleads it. 23 354 PAETNEESHIP. The adult partners, in such a case, will be liable to parties dealing with the firm, notwithstanding such infant escapes liability. If an infant is a partner, and he acts as such, and holds himself out to the world as a partner until within a short time of his coming of age, he will be held liable for the partnership debts which are contracted after he becomes twenty-one, unless he give& notice of his disaffirmance of the partnership when he arrives at full age. Goode v. Harrison, 5 Barn. & Aid. 147. This is the rule, even though such infant does not act as a partner, nor hold himself out as such, after attaining his majority. lb. The con- tract of an infant partner is not void, but merely voidable at his election. He may, therefore, escape liability for losses, if the business is unsuccessful, and still he may claim to retain the ad- vantage of profits, if the partnership business is advantageous. And, since be may avoid the contract or ratify it, as he may elect, it is proper that he should do so when he arrives at twenty-one, and in case he neglects or refuses to do so, and to notify those who are entitled to information upon the subject, it is proper and right to hold him accountable as electing to be considered a part- ner, and to be liable for the firm debts. The law does not limit the number of persons who may form a partnership. The number is usually determined by the inter- ests and the convenience of those who engage in the enterprise. When a very large capital is required, or when a large number of persons would be advantageous, the usual practice of the pres- ent day is, to organize a joint-stock association or corporation. This subject has been explained. The general rule is, that all the persons are liable as partners, although they may transact busi- ness as a joint-stock association. This is because such associations are mere partnerships upon an extensive scale. See Moore v. Brink, 4 Hun, 402. And where parties have mutually agreed to contribute equally to the capital required to carry out a con- templated enterprise and to share equally in the profits and ad- vantage expected to accrue therefrom, and the parties have en- tered upon the execution of the agreement, it may not be material to inquire, in the determination of the rights and liabilities of the parties, whether the agreement constituted a partnership in a technical legal sense, or whether it was a joint enterprise to be conducted by the parties for their mutual benefit, as in either case the contract will be enforced and the rights and liabilities of the parties determined upon the principles applied by courts of PARTNEESHIP. 355 equity to partnership transactions. King v. Barnes, 109 IST. Y. 267; Hollister v. Simmons, 18 App. Div. Y3; Wilcox v. Pratt, 52 Hun, 340; 125 N. T. 688. See Thornton v. 5ar6er, 48 App. Div. 298. In the case last cited, it was held that an agreement by which one party was to furnish land to be laid out as a peach orchard, and to pay one-half of the expenses, and the other party was to furnish his skill and labor and pay one-half of the expenses, and the fruit to be divided between them, share and share alike, created a partnership. Partnership is a voluntary contract, and it is usually formed because the parties mutually desire either some personal quality, or some pecuniary responsibility, which some or all of the part- ners do not possess in an equal degree, or to an extent which would be sufficient to make a separate business as desirable as a partnership. No one, therefore, can become a member of a part- nership without the consent of all the other members. And since there cannot be a partnership formed without such consent, so, on the other hand, no new member can be introduced without the consent of all the existing partners. And, so strictly is this rule enforced, that it is conclusively settled that one partner cannot transfer his interest in the partnership property and business to a stranger so as to make that stranger a partner with the other members of the firm, unless by their unanimous consent. This rule does not prevent one partner from selling out his interest in the partnership property. And he may sell his interest to a stranger, who will then become a tenant in common with the other partners, but not a partner in the firm, nor will he have any of the rights of a partner, except the right which he may have as a tenant in common in the partnership property. If the other part- ners should employ the entire property, including his share, in the partnership business, such partners would be liable to accotint to such stranger for a share of the profits made. Though, on the other hand, they alone would be liable for all losses resulting from the business, unless such stranger authorized them to thus use his share of the property. An assignment to a trustee for the benefit of creditors does not render the creditors partners. James v. Whitbread, 2 J. Scott, I^. S. 506 ; 11 0. B. And where five trustees were appointed in such a case, and the trustees were authorized by the deed of as- signment to carry on the business, and divide the profits for the payment of the claims of the creditors, it was held that such cred- 356 PAETNERSHIP. itors were not partners, nor liable for the debts incurred by trus- tees in carrying on such business. Wheatcroft v. Hickman, 9 J. Scott, K S. 47. In reference to the assent of the parties, the law applicable to contracts of partnership is the same that it is in relation to other contracts. Partnership is not merely a voluntary contract, but it is one in which it is essential that the parties to it should intend to become partners. The true test of a partnership is the intention of the parties. Reye v. Tilford, 2 App. Div. 346; Wilcox v. Williams, 19 App. Div. 438 ; Evans v. Warner, 20 App. Div. 230 ; Salter v. , Earn, 31 N. Y. 321; Matter of Hoagland, 51 App. Div. 347; Wilcox V. Williams, 92 Hun, 250; People x. Wiman, 85 Hun, 320. On the issue as to the existence of a partnership, one of the partners is competent to prove that a partnership existed. Franklin v. Hoadley, 115 App. Div. 538 ; 135 St. Kep. 374. But a partnership cannot be proved by the mere declarations of a person that he is a partner, or that others are partners, except in so far as the declarations may bind the declarant as declarations against interest. lb. And it is a general rule that there will not be any partner- ship, as between the parties, unless the parties so agree. Central City Savings Bank v. Walker, 66 IST. Y. 424, 428 ; Hayward v. Barron, 46 St. Eep. 665 ; Heye v. Tilford, 2 App. Div. 346. T. and S. entered into an agreement for the sale to T. of an opera. T. said that he did not wish to appear in the transaction, and that one G. would represent T. in closing the matter up with S. The formal contract under Seal, for the transfer of the opera and its equip- ment was made between S. and G., no mention being made of T., and the money was paid to G. In an action by one of the actors in the opera, to charge T. as a partner of G. in the ownership of the opera, held, that the evidence was insufficient to show any partnership existed between T. and G. for the production of the opera. Atchison-Ely v. Thomas, 104 App. Div. 368. Evi- dence that plaintiff, who assisted at an operation on the defendant, and Goodman, who performed it, occupied the same house, is in- sufEcient to establish partnership between them, as regards the defense that they were partners, and therefore, Goodman having been paid, plaintiff could not recover for his services. Epstein V. Hugel, 138 N. Y. Supp. 1072. The law will give effect to the contract of the parties according to its legal effect, and the inten- PARTE"EESmP. 357 tion of the parties. When parties agree to join together their money, goods, labor or skill for the purpose of engaging in trade, commerce or business, and to divide the profits and losses, the gen- eral rule is, that this will constitute them partners as between them- selves. To constitute a partnership, there must be a joint under- taking to share in the profit and loss. Pattison v. Blanchard, 5 iN". Y. 186. This is the rule as between the parties to the con- tract. But to constitute one a partner as to third persons, it is not necessary that he should agree to share in the losses of the business. Sharing in the profits is sufficient. The reason is, that sharing in the profits deprives creditors of part of the means of payment, Manhattam, Brass & MoMufacturing Co. v. Sears, 45 W. Y. 79Y; Leggett v. Hyde, 59 N. Y. 272 ; Hawldns v. Campbell, 48 App. Div. 43 ; First Nat. Bank v. Oallaudet, 122 IST. Y. 655 ; Johnson V. Alexander, 46 App. Div. 6 ; Hachett v. Stanley, 115 N. Y. 625 ; Hill V. Barth, 37 App. Div. 359. There is an exception to this rule where the party is only interested in the profits of a business as a means of compensation for services rendered or money ad- vanced. In that ease he is not a partner. Merchants' Nat. Bank V. Barnes, 32 App. Div. 92; Cassidy v. Hall, 97 JST. Y. 159; Richardson v. Hughitt, 76 IST. Y. 55 ; Smith v. Bodine, 74 N. Y. 30 ; Hull V. Barth, 37 App. Div. 359. The participation in the profits of a trade which makes a person a partner as to third persons, is a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before division as principal trader. Leggett v. Hyde, 58 ]Sr, Y. 272; Merchants' Nat. Bank v. Barnes, 32 App. Div. 92; Burnett v. Snyder, 81 IsT. Y. 550. A contract be- tween one of two or more persons and a third person, with the knowledge and assent of the other partners, by which the third person is to share in the profits and losses, in the firm business, of the partner with whom he contracts, does not constitute such a participation in the profits as will make such third person a part- ner or liable for the partnership debts. Burnett v, Snyder, 81 K Y. 550. Where several persons were engaged in running a line of stages, and by the agreement between them, one was to run at his own ex- pense a certain portion of the route, and the others, in like man- ner, the residue ; each was authorized to receive fare from passen- gers over the whole route or any part of it; the p^arties to settle monthly, and the fare so received to be divided between them in 358 PAETKERSHIP. proportion to the distance which they respectively transported pas- sengers ; the party found to have received more than his share, to pay over to the other the balance on each monthly settlement, this did not constitute a partnership between the parties. Paiti- son V. Blancliard, 5 N. Y. 186. In this case the court said (page 191), "To constitute persons partners as between themselves, there must be an interest in the profits, as profits; each party must by the agreement participate in some way in the losses as well as the profits ; an agreement to divide the gross earnings as in this case, does not constitute the parties to it partners." So in an- other case, A. and B. having entered into a contract with a turnpike corporation, to make and complete a certain road, after- wards made an agreement with C. "to let him have a share of the profits, if any, in making the second ten miles of the road, in proportion to the help he afforded in completing the same ; the one-half of it to be taken from A.'s part, and the other from B.'s part." It was held that this agreement did not create a partner- ship between A. and B. and C, but was only a mode of paying C. for his help and labor ; and that the undertaking by A. and B. was joint, and they were jointly liable to C. on the agreement. And where a sum was gratuitously subscribed and paid by the inhabitants, to assist A. and B. in completing the road, it was held that C. was entitled, under the agreement, to his proportion of such sum ; and also to be allowed, as an advance by him, for the board and lodging of the workmen employed by A. and B. on the road. Muzzy v. Whitney, 10 Johns. 226. § 2. Liabilities of Partners to Third Persons. The character of the contract will generally render it easy to determine whether the parties are partners as between themselves. If they are partners, then each of the partners is authorized to exer- cise all the rights and privileges of a partner; and all the other partners are subject to the liabilities which may result from the legal act of any other partner ; while, on the other hand, they may claim any corresponding advantage which may arise from such acts. But the question is important in another point of view, arid that is in relation to the liabilities which may be created in favor of third persons. If several persons are actually partners in any business, all the members of the firm are liable for the lawful acts or contracts of any of the partners, within the scope of the part- PARTNEESHIP. 359 nership business. But there are also many cases in which persons are not regarded by the law as partners as between themselves, and yet they are held to be partners, or are held to be liable as though they were partners so far as third persons are concerned. A person may not be a member of a firm, and yet he may render himself liable to the same extent that an actual partner is. The provision of the Partnership Law, that "Every general partner is liable to third persons for all the obligations of the partnership, jointly and severally with his general partners," did not change the rule that general partners are liable jointly at law, and severally in equity. Seligman v. Friedlander, 199 IST. Y. 373, and cases cited. If a person advances money to carry on any enterprise under an agreement that he is to receive back the same amount and one- half the net profits, this will render the parties to the agreement copartners as to third persons, even though they expressly agreed not to become such. Haas v. Root, 16 Hun, 526 ; 26 Hun, 632 ; Manhattan Brass & Mfg. Go. v. Sears, 45 IST. Y. 797; Ontario Bank v. Hennessey, 48 N. Y. 545; Leggett v. Hyde, 58 IST. Y. 272 ; Greenwood v. Brink, 1 Hun, 227 ; Mason v. Partridge, 4 Hun, 621; 66 IST. Y. 633; Magovern v. Robertson, 116 N. Y. 61; Hackett v. Stanley, 115 !N". Y. 625. The reason assigned for the rule is that the sharing of the profits of the business deprives creditors of part of the means of payment. The rule, stated briefly, is, that persons having a proprietary interest in a business and its profits are liable, as partners, to creditors. Magovern v. Robertson, 116 I^T. Y. 61. But such liability does not follow from sharing in the profits where the person sought to be charged as a partner is only interested in the profits of the business as a means of compensation for services rendered or money loaned, or where his interest is not in the profits of the firm, before division, but in the share of an individual member of the firm after division. Where three separate railroad companies owning distinct por- tions of a continuous railroad between two termini, run their cars over the whole road, employing the same agents to sell passage tickets, and receive luggage to be carried over the entire road, an action may be maintained against one of them, for the loss of luggage received at one terminus to be carried over the whole road. Hart v. Rensselaer and Saratoga R. R., 8 N. Y. 37. So, where a railroad corporation undertakes to forward goods over several lines of railroad, and then deliver them at a distant point in another State, it will be liable for a breach of the con- 360 PAKTl^ERSHIP. tract by a neglect or a refusal so to deliver them. Schroeder v. Hudson River R. R. 5 Duer, 55. C. loaned B. one thousand dol- lars for a year, leased him a building, to be occupied as a store, for the same period, and stipulated that his son should attend the store as B.'s clerk, without specific compensation; in considera- tion whereof, B. agreed to invest three thousand dollars in the store, conduct it during the year, and at the expiration thereof repay the one thousand dollars, and surrender the premises, if required, accounting for the business done, and rendering to C. one equal third of all the profits, etc. This was held to constitute a partnership, and to render C. liable to third persons for the debts of the firm. Cushmom v. Bailey, 1 Hill, 526. By the law merchant, recognized by the commercial world, a participation in the uncertain profits of trade, as a return for capital advanced, constitutes such participator a partner in the concern in which the capital is invested, and makes him liable to third persons, though he is to receive back his whole capital and profits, without deduction for losses or liabilities of the concern. Oakley v. Aspinwall, 2 Sandf. 7; Waugh v. Carver, 2 H. Bla. 235; 1 Smith's Lead. Cas. 491, and notes; Dob v. Halsey, 16 Johns. 34. One who takes a share of the profits, as such, of a trading concern, thereby becomes a partner as to third persons, on the ground that those profits form a portion of the fund upon which creditors have a right to rely for payment. Pott v. Eyton, 3 Man., Grang. & Scott, 32 ; Heyhoe v. Burge, 9 Man., Grang. & Scott, 431 ; Barry v. Nesham, 3 Man., Grang. & Scott, 641. A person may render himself liable as a partner by permitting his name to be used as a member of the firm, even though he has no interest whatever in the business. If he allows his name to be used as giving credit to the firm, he is liable to pay such debts as are contracted on the faith of his liability as a partner. Burn» V. Rowland, 40 Barb. 368 ; Conklin v. Barton, 43 Barb. 435. And there are authorities holding that one who, for a valuable con- sideration, authorizes the use of his name in a copartnership, as if he was a member thereof, is liable as a partner to a subsequent creditor of the firm, although the creditor was ignorant of the arrangement, or that the name represented such nominal part- ner, and did not give credit on the faith of his apparent connec- tion with the firm. Poillon v. Secor, 61 N. Y. 456. See also Williams v. Gillies, 13 Hun, 422 ; Ontario Bank v. Hennessey ,^ 48 IST. Y. 545. And one may also be liable though his name is PAE.TNEESHIP. 361 not used in the business of the firm, if he holds himself out as a member of the firm, or permits otliers to do so with his knowl- edge and consent. Parker v. Barker^ 1 Brod. & Bing. 9 ; Du Bois V. La-mson, 18 Week. Dig. 490; Swift v. MacNamara, 25 Misc. 789 ; 54 N. Y. Supp. 569 ; Moss v. Jerome, 10 Bosw. 220. But, in the absence of an agreement to assume such liability, an incom- ing partner is not liable for the prior debts of the firm. Matter of Hoagland, 79 App. Div. 56; Peyser v. Myers, 135 JST. Y. 599. And a retiring partner may be held upon a note given by the con- tinuing partner after dissolution to one who had previous dealings with the firm and did not know of his retirement. Johanning v. Wilson, 86 N. Y. 7. The principle of the rule is, that one person shall not hold him- self out as liable for such debts as may be contracted on the faith of his credit, and when the debt has been created then change positions by denying his original liability, to the prejudice of the creditor. It would follow, from this principle, that a nominal partner would not be liable if the creditor did not give the credit on the responsibility of the nominal partner, and did not know of him at the time the debt was created. Dickinson v. Valpy, 10 Barn & Cress. 128, 140 ; Shott v. Strealfield, 1 Mood. & Rob. 8. And see note to Waiigh v. Carver, 1 Smith's Lead. Cas. 507, 508. But to enable creditors of a partnership to recover a debt against an individual as a partner, on the ground that he held himself out as a partner, they must prove affirmatively that he did so rep- resent and hold himself out to them, or, at least, that they were informed of such representations, before the credit was given to the firm. Irvin v. Conklin, 36 Barb. 64. A person who is not a partner, in fact, in a firm, will not make himself liable to creditors of the firm by representing or holding himself out as a partner, unless it appears that the creditors gave credit to the firm after such representation or holding out came to their knowledge. The ground upon which one holding himself out as a partner is held liable, as such, to creditors, is that of estoppel. And it is of the very essence of the estoppel, in such a case, that the creditor trusted the firm with knowledge of the fact that the individual either held himself out, or suffered himself to be held out as a partner. While one who permits himself to be held out to the public as a partner in a banking concern for the purpose of securing a credit is liable as a partner, yet he is not so liable for a deposit made by the managing partner of funds of an estate of which 362 PAKTNERSHIP. lie is executor, where lie knows perfectly the relations which exist between the parties. Matter of Baldwin^ 170 IST. Y. 15G. If there is no evidence that the creditors knew, at the time the goods were sold to the firm, that an individual had held himself out, or suffered himself to be held out as a partner, the latter will not be estopped from denying his liability as such. Pringle V. Leverich, 48 Super. Ct. 90; Brookman v. Stetson, 13 Misc. 132 ; 68 St. Eep. T7 ; Bives v. Michaels, 16 Misc. 57. Third persons dealing with a partnership are warranted in as- suming that each member of the firm is to be charged with the ordinary liability of a partner. Johnson v. Alexander, 46 App. Div. 6. A person dealing with a member of a partnership acting therefor without the knowledge of the former, may hold either the indi- vidual member or the firm on the contract made. Shanley v. Merchant, 140 App. Div. 797, and cases cited. But if such third persons have notice of any private ar- langement between the partners by which the liability of one part- ner is qualified, restricted, or defeated, they are bound by such arrangement and cannot enforce any right in contravention of it. Johnson v. Haws, 47 App. Div. 597; Ensign v. Wands, 1 Johns. Cas. 171. And the members of a partnership are not liable in an action for deceit for a representation made by one of their number to third persons to induce them to unite with him in the purchase of the firm property and business, where he is acting principally for himself and for his own interest. Taylor v. Thompson, 176 IST. Y. 168. Under Debtor and Creditor Law, sections 230, and 231, Consolidated Laws 1909, chapter 17, pro- viding that a joint debtor may make a separate composition with his creditor, which composition shall only discharge the debtor making it, etc, a payment by one partner of his part of the liability of the firm on a note made by the partners, does not discharge the partners. Kaplan v. Shapiro, 103 IST. Y. Supp. 922. Where one leased a ferry to another for a year, the latter to take charge of the business, pay all the expenses, and pay over to the lessor one-half of the gross receipts for ferriage, this was held not to make the lessor a partner as to third persons. Heimstreet v. Rowland, 5 Denio, 68. A firm, which was engaged in the busi- ness of carriers upon the canals, agreed with a firm of carriers on the great lakes for a division in fixed proportions of the total freight which should be received for the carriage of goods which. PARTNERSHIP. 363 having been carried over either of the routes, should be carried over the other during the season of navigation. .This was held not to constitute them partners as to third persons, nor as between themselves. Merrick v. Gordon^ 20 IST. T. 93. When three dis- tinct sets of passenger carriers, one on the Atlantic ocean, one on the Isthmus of Nicaragua, and one on the Pacific ocean, com- bined their means of transportation, and so arranged them that the several routes formed a continuous and connected line from New York to San Francisco, included by the agent in a single advertisement, but there was no joint interest in the passage money, and no agreement as to its division, or the proportion which each set of the owners was to receive, each making its own charge for passage, and issuing separate tickets to passengers, and there was no agreement to share any profit or loss; but, on the contrary, each set of owners had its own profits, and paid its own losses, and had no interest in the profits or losses of the others, it was held that this was not a partnership as to third persons. Briggs v. Vanderbilt, 19 Barb. 222 ; Bonesteel v. Yanderhilt, 21 Barb. 26. Where hay, belonging to two individuals, was con- signed to a third, to be sold by him, upon an agreement that, in- stead of the usual commissions of an agent or factor, the consignee should retain one-half of the proceeds of the sale, after reim- bursing the consignors the amount of the costs of the property, it was held that the consignee was not liable as a partner for the payment of the hay to the persons of whom it was purchased by the consignors. Fitch v. Hall, 25 Barb. 13. The mere fact that A.'s name appears as a partner will not render him liable for a contract entered into specifically with B., the real partner, after A. ceased to be interested in the firm. Holcroft v. Hoggins, 2 Man., Grang, & Scott, 488. § 3. Agent Who is Paid a Share of Gross Profits, not a Partner, A very common agreement in relation to the payment of an agent, is, to provide that he shall have a share of the profits made ; and from this agreement has arisen the questions whether such an agent is entitled to the rights of a partner as between him- self and his employers; or whether he is liable with them as a partner to third persons for the partnership liabilities. The gen- C'ral rule is, that a person who merely receives out of the profits .the wages of labor, or a commission as a hired servant or agent, 364 PAETNERSHIP. such as a factor, foreman, clerk or manager, and who has no in- terest or property in the capital stock of the business, is not a partner in the concern, although his wages may be calculated according to a fluctuating standard, and may rise and fall with the accruing profits. A person employed by a firm and receiv- ing a given share of the profits as a compensation for his services, but having no community of interest in the capital stock of the concern, is not liable as a partner to third persons. Burckle v. Echliart, 1 Denio, 337; 8. C. 3 K Y. 132; Merchants' Nat. Bank v. Barnes, 32 App. Div. 92 ; Conklin v. Barton, 43 Barb. 435 ; Smith v. Bodine, 74 IST. Y. 30 ; Winne v. Brundage, 40 ]Sr. Y. Supp. 225 ; Richardson v. Hughitt, 76 N. Y. 55 ; Lans- hurgh v. Walsh, 12 Misc. 124; liayward v. Barron, 46 St. Rep. 665 ; First National Bank v. Staples, 34 St. Rep. 503 ; De Cor- dova V. Powter, 8 St. Rep. 431. Russell v. Herrick, 127 App. Div. 503, and cases cited ; The fact that an attorney was to share in the profits of a venture in payment for his services, held, not to render him liable as a partner. Tuccillo v. Pittelli, 127 N. Y. Supp. 314. A mercantile house engaged in general busi- ness, and trading, among other things, in provisions, employed a person to attend to the purchasing and forwarding of produce, who was to act under the orders of the firm, and have, as a com- pensation for his services, one-fourth of the profits arising out of the purchase and sale of the produce. It was held that the- person so employed was not a partner in the business even as to third parties. Burckle v. Eckluirt, 1 Denio, 337 ; 3 N. Y. 132 ; Brockaway v. Bumap, 16 Barb. 309 ; Vanderburgh v. Hull, 20 Wend. 70; Pott v. Eyton, 3 Man., Grang. & Scott, 32. But though such an agreement may not render an agent liable to third persons as a partner, it does not follow that such agent is a partner as between himself and his employer. And when an agent is employed by a firm, and his wages are to be graduated by the profits made, but he has no interest in the capital stock, and no interest in the profits as profits, he will not be a partner as between himself and his employers. Hesketh v. Blanchard, 4 East. 144; Ross v. Drinker, 2 Hall. 415. § 4. What is a Tenancy in Common Instead of a Partnership. There are numerous inst,aiices in which there may be a joint employment of capital and labor, and yet be no partnership be- PARTN-EESHIP. 365 ■tween the persons so engaged in business. If the owner of a farm lets his farm on shares, and is to receive a given proportion of the crops raised as a compensation for the land, v^hile the other person receives the balance of the crops for his labor, this will not create a partnership, but a mere tenancy in common. Put- nwm V. Wise, 1 Hill, 234; Tripp v. Riley, 15 Barb. 333; Dine- hart V .Wilson, 15 Barb. 595. The same rule applies when a grist mill, saw mill, tannery, or any other kind of manufactory is leased in the same manner, and the laborer merely receives a share of the gross receipts as a com- pensation for his services. Amhler v. Bradley, 6 Vt. Eep. 119 ; Rich V. Pen-field, 1 Wend. 380. Where the agreement is not that the person working the land shall deliver to the owner of the land one-half of the crops, but that he shall account and pay over to the landowner the value of one-half of all the grain raised upon the premises, the parties do not become either partners or tenants in common of the crops, but the party working the land becomes the exclusive owner of the crops. Tanner v. Hill, 48 N. Y. 662. Where several parties agree to purchase personal property in the name of one of them and to take aliquot shares of the purchase without agreeing to resell jointly, but with the intention of subsequently making some arrangement for that purpose, their relation, until such arrange- naent is made, is not that of copartners, but of tenants in com- mon. Baldwin v. Burrows, 47 N. Y. 199. § 5. Form of Partnership Agreement. The partnership agreement may be by parol, or it may be in writing, whether sealed or unsealed. A partnership in relation to the purchase, sale and ownership of lands may be created by parol. Chester v. Dickerson, 64 JST. Y. 1 ; Traphagen v. Burt, 67 N. Y. 30; Bissell v. Harrington, 18 Hun, 81. See Williams v. Oillies, 75 ]Sr. Y. 197. But a contract forming a partnership to be continued beyond one year is within the section of the statute of frauds which provides that every agreement which, by its terms, is not to be performed in one year from the making thereof, is void unless it is in writing, and a partnership so formed is a part- nership at will. WaJil v. Bamum, 116 IST. Y. 87. It is most advantageous to the parties, however, to reduce the agreement to writing, especially if it is intended that the partner- 366 PAETN^EESHIP. ship shall exist for any length of time, or if the amount invested is very large. By reducing the agreement to writing, there will be less danger of mistakes and disputes as to the terms of the contract. And if the term of the partnership is to be a long one, or the business is to relate to the purchase and sale of real estate, the statute of frauds will be complied with. When the agree- ment is verbal, it is always a question for a jury what the actual agreement is. But when the jury have determined what terms the parties agreed upon, or when the agreement is reduced to writing, it is a question of law whether the agreement constitutes a partnership. The partnership agreement may be valid, although no name has been agreed upon as the designation of the firm. See Meriden Nat. Bcmh v. Oallaudet, 120 IST. Y. 298. And it has been held that the parties to a copartnership may give it just such name as they please, and all contracts and obligations, or notes made with such firm, or given to it, may be prosecuted in the individual names of its members. Crawford v. Collins, 30 How. 398. But the right to adopt any name is subject to qualification. A person who transacts business, using the name, as partner, of one not interested with him as partner, or using the designation "and company," or "& Co.," when no actual partner or partners are represented thereby, is guilty of a misdemeanor. Penal Law,, section 924. But this section does not apply to any case where it is special- ly prescribed by statute that a partnership name may be con- tinued in use by a successor, survivor, or other person. Ih. The statutes authorize such continued use on certain conditions only. See Partnership Law, chapter 39 Consolidated Laws; and Caswell v. Hazard, 121 JST. Y. 484. See also Kilpatrich v, Villaume, 6 Misc. 33 ; 56 St. Eep. 615 ; 25 N. Y. Supp. 1008 • WoodY. Erie B. B. Co. 72 K Y. 196. The section of the Penal Law above cited was enacted for the purpose of protecting persons giving credit to the fictitious firm on the faith of the fictitious designation, and is not needed for the protection of those who have obtained credit from the firm. Gay V. Seibold, 97 ^. Y. 472. See also Donlon v. English, 89 Him, 67. In order to make trading under the fictitious designa- tion illegal, it must appear that credit was given to and reliance placed upon the false designation. Barron v. Yost, 35 St. Eep. 380. If the parties, for the purpose of avoiding the penalties of PARTE'EESHIP, 367 the statute forbidding the use of the names of partners who are not interested in the business, agree among themselves that they are partners, they will be held to be such without regard to their respective interests in the firm property or business. Maddoclc V. Steel, 68 Hun, 522. By chapter 216 of the Laws of 1900, taking effect September 1, 1900, the following section was added to the Penal Code, now known as the Penal Law. "1. No person or person shall hereafter carry on or conduct or transact business in this State under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals con- ducting or transacting such business, unless such person or per- sons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact, or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or trans- acted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post-office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting, or intending to conduct said business. 2. Persons now conducting such business under an assumed name, or under any such designation referred to in subdivision one, shall file such certificate as hereinbefore prescribed, within thirty days after this act shall take effect, and persons hereafter conduct- ing or transacting business as aforesaid shall, before commencing said business, file such certificate in the manner hereinbefore pre- scribed. 3. The several county clerks of this State shall keep an alpha- betical index of all person filing certificates, provided for herein,, and for the indexing and filing of such certificates, they shall re- ceive a fee of twenty-five cents. A copy of such certificate duly certified to by the county clerk in whose office the same shall be filed shall be presumptive evidence in all courts of law in this State of the facts therein contained. 4. This act shall in no way affect or apply to any corporation duly organized under the laws of this State, or to any corporation organized under the laws of any other State and lawfully doing business in this State, nor shall this act be deemed or construed to prevent the lawful use of a partnership, name or designation. 368 PAETNERSHIP. provided that such partnership name or designation shall include the true or real name of at least one of such persons transacting such business. 5. Any person or persons carrying ou, conducting or transact- ing business as aforesaid, who shall fail to comply with the pro- Tisions of this act, shall be guilty of a misdemeanor." There are cases in which the persons forming a copartnership may not lawfully adopt the name of one of the members of the firm as the firm name. But the right which every one has to use his own name in the prosecution of his business cannot be dis- puted, and the right can be limited or controlled only when such name has become the trade-mark or business sign of another, and is being used to deceive the public or defraud the person who made it valuable. Meneely v. Meneely, 62 N. Y. 427 ; Devlin v. Devlin, 69 IST. Y. 212; Caswell v. Hazard, 121 N". Y. 484. An action will lie for the breach of a valid agreement to enter into a partnership, unless some legal cause can be shown for the non-performance of the agreement. To an action for the breach of an agreement to enter into partnership with the plaintiff, the defendant pleaded that, before and at the time of making the agreement, the plaintiff carried on trade in partnership with one S., which partnership was then about to be wound up and dis- solved; that the defendant made the agreement on the faith and under the belief that the plaintiff had, up to that time, acted with honesty toward his said partner in the conduct of the said busi- ness, and in relation to the pecuniary affairs thereof, but that, after the making of the agreement, and before the breach, and before the commencement of the suit, the defendant discovered that the plaintiff had, before the time of the making of the agree- ment, acted with fraud and dishonesty toward his partner in the conduct of the said business, and in relation to the pecuniary affairs thereof, which said fraudulent and dishonest acts of the plaintiff were unknown to the defendant at the time of his enter- ing into the agreement sued on, and that he therefore repudiated and declined to carry the agreement into effect, and it was held that the facts pleaded did not constitute any defense to the action. Andrews v. Garstin, 10 J. Scott, JST. S. 444. § 6. To What Business Partnership Extends. The transactions of a partnership may extend to every kind of PAHTNEKSHIP. 369 lawful business. An agreement to form a partnership for engag- ing in any illegal business is void, and confers no rigbts on eitber party. Armstrong v. Lewis, 4 Moore & Scott, 1. All kinds of property may be held in partnership, and there may be a partnership for the purchase and sale of real estate, or for the purchase and cultivation of land for the common profit. Chester v. Dickerson, 54 IST. T. 1 ; Traphagen v. Burt, 67 N. Y. 30, 33. It is not necessary, in this place, to discuss the subject as to the rights of partners as to partnership in real estate, since justice's courts have no jurisdiction when the title to real estate is in ques- tion. The transactions in which there may be a partnership between those engaged in business, are so numerous that it would be diffi- cult to enumerate them in detail. A combination of capital, labor and skill, is most extensively employed in the mechanical arts, manufactures, commerce, and in professional business. Indeed, it is difficult to mention any kind of business which is transacted for the purpose of furnishing the requirements of commerce, or the wants of society, which is not accomplished more or less through the instrumentality of partnerships. A partnership may be general, and extend to all the business transacted by several persons ; or it may relate to a single trans- action. Cumpston v. McNair, 1 Wend. 457 ; Post v. Kirnberly, 9 Johns. 470, 496; Ripley -7. -Colby, 3 Foster (N. H.) 408. § 7. Division of Frofits and Losses. As to the proportionate share which each partner has in the business, that will depend entirely upon the agreement made by the parties. In the absence of any agreement, the law will pre- sume that the profits are to be equally divided, and the losses equally borne. So, in the absence of all proof to the contrary, parties will be presumed to be equally interested in the partner- ship funds. GouLd v. Oould, 6 Wend. 263 ; Ryder v. Gilbert, 16 Hun, 163 ; Evcms v. Warner, 20 App. Div. 230 ; Yam, Name v. Van, Name, 38 App. Div. 451 ; Ex parte Owen, 4 De G. & S. 351 ; Peacock v. Peacock, 16 Ves. 56 ; Meriden Nat. Bank v. Gallau- det, 120 N. Y. 298, 306 ; Bradbury v. Smith, 21 Me. 117. When all the partners advance equal portions of the capital, each will be entitled to an equal share of the profits, and liable for an equal 24 370 PAETNEESHIP. proportion of the losses, if there is no express agreement upon that subject But there may be a valid agreement for an unequal division of the profits, even when the partners advance equal sums of money for carrying on the business. Two persons, Hasbrouck and Childs, both of whom resided in the State of New York, entered into writ- ten articles of copartnership, by which they agreed to transact business as partners, at Keokuk, Iowa, as merchants in the whole- sale and retail dry goods trade. Each of them agreed to furnish and contribute the sum of two thousand dollars in cash as capital, which was done. Hasbrouck agreed to devote himself diligently in Keokuk to the partnership busiiiess, except when the purchasing of goods, or other necessary business of the firm required his ab- sence from that place. Childs agreed to attend to that part of the business which could be conducted in the city of New York, so far as he was able, without interfering in any way with his duties there, as clerk of any firm by whom he might be employed. It was stipulated that Hasbrouck should be entitled to receive and be paid "three fourths parts of the profits of said partnership," and the said Childs "one fourth part." The agreement did not, in terms, make any provision in respect to losses. No profits were made, but, on the contrary, the losses absorbed $3,120.20 of the money contributed as capital. It was held, on these facts, that in respect to the portion of the capital absorbed in the payment of losses, neither party had any claim against the other, and that the $879.80 remaining of the sum originally contributed as capi- tal, belonged to each of the partners equally, and that it should be equally divided between them. Hasbrouck v. Childs, 3 Bosw. 105. It was also held, that the construction of the agreement was, that Hasbrouck should have half of the profits for his extra services, if profits were made ; that the other half of the profits was to be equally divided in proportion to the capital of each; that Hasbrouck was to be compensated for his extra services if sufiicient profits were made, and if none were made, that he was not to be compensated therefor; and that if losses were incurred, that they shoiild be borne equally. Ib.j Hodgnum v. Smith, 13 Barb. 303. If the parties choose, they may provide that the profits shall be divided unequally, and the losses borne equally, although each has furnished an equal share of the capital. But no such result will occur unless there is an express agreement to that effect. So, if the capital is advanced in unequal proportions, the PARTNEESHIP. 3Y1 parties may agree that the profits shall he equally divided, and the losses equally home. And if the parties so stipulate, one per- son may he a partner without any liability to losses as between the partners themselves. Oilpin v. Endenbey, 5 Bam. & Aid. 954; Bond v. Pittard, 3 Mees. & Wels. 35Y. Such partner will be liable, however, to third persons for partnership debts and lia- bilities. In every partnership there must be a communion of profits between the partners. By this is meant that there must be a joint and miitual interest in the profit. The interest must be joint; for, although several persons may be jointly concerned in the purchase of goods, yet, if they are not jointly concerned in the profits arising from a sale of the goods after their purchase, they are not partners as between themselves. And it will not make any difference in such cases whether the purchases are made in their joint names, or in the name of one of them, or through the instrumentality of an agent. Post v. Kvmherly, 9 Johns. 4T0 ; Holmes v. United Ins. Co. 2 Johns. Cas. 329. A. and G. agreed as follows: G. was to go to Canton and reside there for five years; to buy or hire a factory for the business which A. was about to engage in ; to transact no other business except that, and commission business; to incur no liability as factor or for goods, unless authorized by A. in writing; G. to have one-fifth and A. four-fifths of the commissions ; G. to be at liberty to speculate in goods for their use at Canton to not over one hundred thousand dollars per annum, for the joint account and risk of A. and G., one-fifth to the latter, and four-fifths for A. ; A. was to advance five hundred thousand dollars for the business in money and shiptj, and to charge interest on advances, the profits to remain in the trade, except two thousand dollars a year to G. out of his share ; and in the end A. was to have four-fifths and G. one fifth of the net profits ; A. was to place to the account of this business all net commissions arising from consignments to him at l^ew York from Canton; and each was to render to the other yearly a regular account of the transactions ; this was held to constitute A. and G. partners in the business as between themselves. Ogden v. Astor, 4 Sandf. 311. A secret partner is one who is actually a partner by a participa- tion of profit, but is not avowed or known to be such; and a dor- mant partner is one who takes no share in the conduct or control of the business of the firm, and whose connection with the busi- ness is imlaiown. Both secrecy and inactivity are impled by the 372 PAETNERSHIP. word. National Bank of Salem v. Thomas, 47 N. Y. 15, 19; Elmira Iron & Steel Boiling Mill Go. v. Harris, 124 IST. T. 280. Both of these are liable to creditors, even if the creditors did not know them to be members of the firm, on the ground of their in- terest and participation in the profits, which constitute, with the property of the firm, the funds to which creditors may look for payment. Any person, therefore, who secretly connects himself with a firm, or partnership, furnishes capital, labor and skill, and secretly receives or reserves to himself a participation in the profits of the business, stands in the position of an imdisclosed principal, who has contracted in the name of an agent, and is liable in common with the acting and ostensible partners for the performance of the contracts and the satisfaction of the debts and liabilities of the copartnership. Where the members of a copartnership agree that the business of the concern shall be carried on by and in the name of one of the copartners such name for the purposes of the busi- ness of the firm, is its copartnership name, and by it the several members are bound. So where the copartners agree that the business shall be carried on by and in the name of one individual not himself interested, his name is the copartnership name, and is binding upon the firm when used in its business. Banlc of Bochester v. Monteath, 1 Denio, 402 ; Palmer v. Stephens, 1 Denio, 472 ; Bogers v. Coit, 6 Hill, 322 ; South Carolina Bank v. Case, 8 Barn. & Cress. 427. If a copartnership name has been agreed upon, it must be used to bind the firm, but if none has been agreed upon, a name that fairly represents the company may be adopted, and, by custom and use, become its valid name. Meriden Nat. Bank v. Oallaudet, 120 N. Y. 298 ; Parsons on Part. 125 § 8. Retiring Partner. A retiring partner who thereafter receives a share of the profits is still liable, though this is not the rule when such partner is to receive a mere annuity or a definite sum, which is a personal charge upon the former remaining partners. Where a firm has assumed a liability, the retirement of one of the partners will not discharge him from it, though the remaining partners assume such liability. See Briggs v. Briggs, 15 N. Y. 471. Although partners cannot, by any agreement among them- PARTNERSHIP. 373 selves, discharge any of the members of the firm from their lia- bility to the creditors of the firm, yet they may, as it regards each other, make a valid agreement, hy which some of the firm agree to pay the firm debts, and to release the others from the payment thereof, and such agreement will be enforced as between the part- ners themselves. Savage v. Pwtnwm, 32 I^. Y. 501; affirming S. C. 32 Barb. 420. Where a partner has been known publicly as a member of the firm, and he retires from business, it is proper to give public notice of the fact. If he neglects to do so, he will be liable for the debts of the firm which are contracted after his retirement, if the debt is contracted with persons who knew that he was formerly a mem- ber of the firm, and they have no knowledge that he is not still a member of it. And if his name is employed as a part of the firm name, and it is still employed as a part of the firm name with his consent after his retirement, he will be liable as a nominal partner, although he has no interest in the business. An outgoing partner is so interested in being freed from any liability through the continued use of the partnership name that he is entitled to insist that the continuing partner shall thereafter cease to list the business under the former name and style, and an injunction will issue to protect such right, unless defendant complies with the statute regulating the continued use of firm names. Kran v. Shyev, 107 N. Y. Supp. 539. If neither public notice has been given of the dissolution, nor special notice to persons dealing with the firm, an acceptance of a bill by one partner, in the partnership name, will bind the others. KetcJmm v. Clarke 6 Johns. 144. But, where one was a dormant partner, and his name was not known as a partner to the persons dealing with the firm, and he retired without giving notice of it, he was held not liable for debts contracted by the firm after his retirement. Kelley v. Hurlbiurt, 5 Cow. 534; Daa^is v. Allen, 3 N. Y. 168. A partnership continues, notwithstanding formal dissolution, as to third persons acting in good faith who have had neither actual nor constructive notice that the firm has been dissolved. The rule is that as to all persons who have had actual dealings with the firm, actual notice of the dissolution must be given. Vernon v. Manhattan Co. 17 Wend. 524 ; 22 Wend. 183 ; National Bank v. Norton, 1 Hill, 572 ; Buffalo City Bank v. Howard, 35 N. Y. 500 ; Bank of Monongahela Valley v. Weston, 159 N. Y. 374 PAETNEESHIP. 201. The rule in Bcmh of Monongahela Valley v. Weston, above cited, that notice of dissolution given by communication to com- mercial agencies is insufficient as against a bona fide holder of commercial paper made by the partner in the name of the firm, was followed in Second National Banh v. Weston, 172 IST. Y. 250. As to all who had no dealings with the firm, but knew of its existence though not of its dissolution, it is necessary that notice should be published by advertisement in a newspaper. City Bank of Brooldyn v. McChesney, 20 IST. Y. 240 ; Austin v. Holland, 69 N". Y 571 ; National Shoe & Leather Bank v. Herz, 89 IST. Y. 629 ; Elmira Iron & Steel Rolling Mill Co. v. Ha/rris, 124 K Y 380; Bank of Monongahela Valley v. Weston, 159 IST. Y. 201. Proof of the mailing of the notice raises a presumption of notice to the creditor which if rebutted becomes a question of fact for the jury. Reading Braid Co. v. Stewart, 20 Misc. 86. Where a retiring partner allows his unliquidated interest to be continued in the business of a new firm, the interest thus left be- comes liable for the partnership debts subsequently incurred, as well as the prior debts. Adams & Co. v. Albert, 155 IST. Y. 356. Where a partnership is dissolved and one partner takes the partnership property and agrees to pay the partnership debts, as between himself and his former partner, he thereby, as to those debts, becomes the principal debtor, while the retiring partner occupies the relation of a surety only. Reed & Barton v. Ashe, 18 App. Div. 501 ; Savage v. Putnam, 32 IST. Y. 501 ; Morss v. Glea- son, 64 ]Sr. Y. 204; Colgrove v. Tollman, 67 K Y. 95. A cred- itor who has notice of dissolution and assumption of debts by the continuing partner, must proceed primarily against the latter, and cannot proceed against the retiring partner until he has pursued and exhausted his first remedy. Morrisey v. Berman, 94 N. Y. Supp. 596. If a creditor of a partnership, after the dissolution thereof, takes the individual negotiable note of the partner remain- ing in charge of the business in payment of a firm debt, with the knowledge that the maker of the note has assumed and agreed to pay the partnership debts, he thereby cancels his debt against the firm and discharges the retiring partner. Arnold v. Camp^ 12 Johns. 409 ; Waydel v. Luer, 3 Denio, 410 ; Millerd v. Thorn, 56 K Y. 402 ; Reed & Barton v. Ashe, 18 App. Div. 501. And even if it does not appear that the note was taken in payment of the partnership debt, yet as its acceptance operates to suspend the right of action on the debt, and amounts to an extension of the PARTE'EESHIP. 375 time of payment, this will discharge the retiring partner as surety for the debt. Ih.; Lyth v. Hingston, 14 App. Div. 11; Shipman V. Kelly, 9 App. Div. 316. But the mere dissolution of a firm does not constitute those who continue the principal debtors and the one retiring a surety ; such a relation is created only by an agreement between the partners themselves by which, upon the assumption of the debts, the person so assuming becomes the principal debtor and the other partner the surety. McLaughlin v. Bieher, 41 App. Div. 561. When a partner retires from the firm, aad a new firm name is adopted by the remaining partners, and a debt is contracted in the name of the new firm, the retiring partner will not be liable for such debt on the ground that he omitted to give notice of his retirement. Kirhy v. Hewitt, 26 Barb. 607. And see Errata, 27 Barb. Where a person's name is not used as a member of the firm, but it is knovm to persons who deal with the firm that he is a partner, he will be liable to such persons for debts contracted to them by the firm after his retirement, if no notice is given to them by the retiring partner. Davis v. Allen, 3 IsT. Y. 168. As to other notice necessary in case of dissolution of the firm, the subject will be discussed hereafter. § 9. Survivorship. Partners are joint tenants in their stock in trade; but without the right of survivorship. On the death of one partner, his repre- sentatives become tenants in common with the survivor, and with respect to choses in action, survivorship so far exists at law, that the remedy to reduce them into possession vests exclusively in the survivor for the benefit of all the parties in interest. But no part- ner has an exclusive right to any part of the joint stock, until a balance of accounts is struck between him and his copartners, and the account of his interest accurately ascertained. The in- terest of each partner in the partnership property is his share in the surplus, after the partnership accounts are settled, and all just claims satisfied. Stoats v. Briston, 73 IST. Y. 264; Menagh V. Whitwell, 52 K Y. 146, 158 ; Atkins v. Saxton, 77 K Y. 195, 199 ; Wood v. American Fire Ins. Co. 149 N. Y. 382, 385. Where one partner dies, the partnership property goes to the survivors for the purpose of settling up the partnership business, and they have all the power necessary for that purpose, but noth- 376 PAKTNEESHIP. ing more. Murray v. Mumford, 6 Cow. 441 ; Case v. Abeel, 1 Paige, 393 ; Evans v. Evans, 9 Paige, 178. A surviving partner is entitled to the possession and control of the assets and can sell, mortgage or dispose of the same to pay debts and close up the business, and in order to do this has authority to borrow money. Rosenthal v. Hasherg, 84 N. Y. Supp. 290. Upon the death of one partner the survivor becomes the legal ovsmer of the assets and has the exclusive right to sell and dispose of them for the purpose of winding up the partnership affairs, and the survivor does not take such assets in the character of a trustee, but as a survivor holding the legal title. Williams v. Whedon, 109 N. Y. 333 ; Preston v. Fitch, 137 N. Y. 41, 56. In the absence of an agreement to a different effect, the surviving part- ner is the owner of the legal assets of the partnership, and is en- titled to a reasonable time to close up its affairs, and the repre- sentatives of the deceased partner cannot maintain an action to re- cover funds of the partnership from a depositary, and enjoin it from paying them to the surviving partner, though they may sue for an accounting by the surviving partner and may or may not in such suit show themselves entitled to such injunction. Wilson v. International Bank, 125 App. Div. 568. In equity the survivor is regarded to some extent as a trustee, and his duty is to pay the debts, and dispose of the assets of the partnership for the benefit of himself and the estate of the deceased partner. Russell v. Mc- Call 141 ]Sr. Y. 437 ; Williams v. Whedon, 109 E". Y. 333. The surviving partner holds the legal title, subject to such equitable rights as the representatives may have to the due application of the assets to the payment of partnership debts, and until these are discharged no one other than the creditors can have any right to the property. Biish v. Gibbons, 87 App. Div. 576 ; citing Wil- liams V. Whedon, 109 N. Y. 338. In the absence of assets suf- ficient to pay the firm debts in full, it is proper for the survivor to distribute them in accordance with the principles of equity and justice, and pay one creditor in preference to another, if equitable. lb. On the dissolution of a firm by the death of one of the part- ners, the surviving partners are charged with the active duty of liquidating the old firm's debts, and affairs with reasonable dili- gence, in order that the deceased partner's interest may be ascer- tained, conserved and paid over to his personal representatives. Pech V. Knapp, 137 'N. Y. Supp. 70. The time, manner and mode of paying the debts of the firm, is under the exclusive con- PAETNEESHIP. 377 trol of the survivor. If the firm v?as insolvent, the surviving partner may make a general assignment of its assets for the bene- fit of its creditors without the assent of the representatives of the deceased partner. Haynes v. Brooks^ 42 Hun, 528. So a surviving partner, if acting in good faith, may transfer the vrhole assets of the firm to a firm creditor in payment of his, debt, vsdth- out the assent of the representatives of the deceased partner. Loeschigh v. Hatfield, 5 Kobt. 26; 51 N. Y. 660; Cushman v. Addison, 52 K Y. 628. It is the duty of the survivor to furnish the representatives of the deceased partner with a full statement of the assets. If a sale is necessary and proper he must dispose of the property to the best advantage and cannot take it himself at a valuation without the assent of the representatives of the deceased. Ogden v. Astor, 4 Sandf. 311. The personal representatives of a deceased part- ner have an equitable right to have the assets of the partnership applied to the payment of the firm debts, and the distribution of any surplus within a reasonable time. Secor v. Tradesman's National Bank 92 App. Div. 294. In order to secure this right they may have an action against the surviving partner, calling him to account, but they have no right to enforce claims and main- tain actions to reduce possession of assets of the partnership; nor can they require an accounting in respect to a particular claim which they allege a surviving partner has refused to bring an action to recover and has without consideration released, with- out proof that the firm's assets exceed the liabilities, as unless- that is the case they have no beneficial interest in the fund. lb. For his services in collecting the assets and winding up the busi- ness of the firm, the law allows him no remuneration unless spe- cially provided for by the partnership agreement. Ames v. Down- ing, 1 Brad. 321 ; Johnson v. Hartshome, 52 E". Y. 173 ; Burgess V. Badger, 82 Hun, 488. And a surviving partner, also executor of the deceased partner continuing the business on account of the estate and himself, without authority, is not entitled to draw a sal- ary as manager of the business, although the articles of copartner- ship provided that he should have a salary. Clausen v. Puvogel, 114 App. Div. 455. In some cases and under some circumstances the estate of the deceased partner would be liable to contribute for disbursements made in the course of an attempt by the surviving partner to collect a partnership debt. The disbursement must be reasonable in amount, made in good faith, and for a purpose which 378 PARTNERSHIP. can be seen to have been fairly appropriate in carrying out the end sought, which is the recovery of the debt. Preston v. Fitch, 137 N. T. 41. The representatives of the decedent partner have cer- tain rights as against the survivor, and among them is the right to call him to account with reference to his conduct or administra- tion of the assets of the late firm ; the right to compel their appli- cation to the payment of the debts of the firm ; and to summon him to an accounting and to the payment to them of any balance that may be due the estate. lb. In an action by the widow and next of kin of a deceased partner to set aside a sale of the deceased part- ner's interest in the business to the surviving partners, it was held that the burden of proof was on the surviving partners to show that the transaction was, in all respects, fair, and such as a court of equity would sanction. BoMchle v. Smylie, 104 App. Div. 513. The relation which a surviving partner holds toward the representa- tives of a deceased partner is fiduciary, involving trust and con- fidence of the highest kind, and is one which absolutely prohibits the surviving partner acquiring any benefit, from the deceased partner's interest, at the expense of his representatives. Ih. After the death of one partner, no contract made by the sur- vivors will be binding upon the representatives of the deceased. But the surviving members of a firm may continue the business in the name of the former firm, and such survivors will be bound by any contract which may be made in the course of such busi- ness. Stoats V. Hewlett, 4 Denio, 559. If the survivors carry on business in the name of the old firm or othenvise, and employ the partnership funds in such business, they will be liable to the representatives of the deceased partner for all losses which occur ; and they will be subject to account for all profits made, at the election of such representatives. SMdmore v. Collier, 8 Hun, 50. The rights and liabilities of the survivor may, however, be changed or governed by the partnership agreement. The legal nature and incidents of lands purchased by a copart- nership with copartnership funds have been the subject of much discussion and much diversity of opinion. By the English rule lands so purchased, whether purchased for or used for partner- ship purposes or not, if intended by the partners to constitute a part of the partnership property, become ipso facto, in the view of a court of equity, converted into personalty for all purposes, including the adjustment of the partnership debts, the claims of the partners inter se, and the determination of the succession as paet:n"ership. 379 between the personal representatives of the deceased partner and the heir-at-law. Darby v. Darby, 3 Drewry, 495 ; Essex v. Essex, 20 Beav. 442. By the American rule, in the absence of any agree- ment, express or implied, partnership real estate retains its char- acter as realty with all the incidents of that species of property between the partners themselves and also between a surviving partner and the real and personal representatives of a deceased partner, except that each share is impressed with a trust implied by law in favor of the other partner, that so far as is necessary it shall be first applied to the adjustment of partnership obliga- tions and the payment of any balance found to be due from the one partner to the other on winding up the partnership affairs. To the extent necessary for these purposes, the character of the property is in equity deemed to be changed into personalty. On the death of either partner, where the title is vested in both, the share of the land standing in the name of the deceased partner ■descends as real estate to his heirs, subject to the equity of the surviving partner to have it appropriated to accomplish the trust to which it was primarily subjected. Dwrroiu v. Calkins, 6 App. Div. 28; 154 N. T. 503. This is the recognized rule in the ab- sence of any agreement between the partners on the subject. But the question whether partnership real estate shall be deemed ab- •solutely converted into personalty for all purposes, or only con- verted pro tanto for the purpose of partnership equities, may be controlled by the express or implied agreement of the partners themselves; and where by such agreement it appears that it was the intention of the partners that the land should be treated and administered as personalty for all purposes, effect will be given thereto. lb. Where the firm name belongs to the surviving partners, the good will is property in which the representatives of a deceased partner are entitled to participate. Kirkman v. Kirkman, 20 Misc. 211. The good-will of a commercial partnership is an asset separate and distinct from the stock of goods or capital, and consists of the advantage which inures to the firm beyond the \alue of its physical property because of the general public pat- ronage which it receives from habitual customers. In Be Teller, 136 N. Y. Supp. 457. The purchaser of the interest of a surviving partner takes the interest charged with the obligation of his vendor to wind up the business and is liable to the representatives of the deceased part- 380 PAETNEE-SHIP. ner for a failure to perform this duty. Hutchinson v. Campbell, 13 Misc. 152. § 10. limited Partnership and Special Partners Under Statute. A partnership may be limited, or it may be general. We have already seen that a partnership may extend to aU the business done by the partners, or to a portion of it, or to a single transac- tion. It is a general rule that each of the partners is liable for all of the debts and obligations of the firm. At the common law there is no limited responsibility of partners. But, by the stat- utes of this State, there may be partnerships created in which there are general partners who are liable generally for the entire debts, etc., of the partnership, while there may be special part- ners who are not liable beyond the amount of capital which they put into the business. Laws of 1909, chapter 44; Consolidated Laws, chapter 39. Some of the principal features of the statute are as follows : The business which may be transacted in this manner may be mercantile, mechanical, or manufacturing within this State, but the statute does not authorize the business of banking or of insur- ance. There must, of course, be at the least two persons to form any partnership, whether under the statute or at common law. The statute provides that there shall be one or more general partners, who shall be jointly and severally liable as general partners usually are; that there may be one or more special partners, who shall contribute in cash, a specific sum, as capital to the common stock, and such partners are not liable beyond the sum so paid in. The general partners transact the firm business, and the special part- ners are not authorized to sign for the partnership, nor to bind it by transacting business. If a special partner assumes to act in the business of the firm, except in the cases and in the manner specified by the statute, he renders himself liable as a general part- ner. A certificate must be made and acknowledged and filed in the county clerk's office. So there must be an affidavit of one of the general partners, shovsdng that the cash capital is actually paid in by the special partners. Until the statute has been complied with, the parties are all liable as general partners. The terms of the partnership must be duly published, and if they are not, the special partners will be liable as general partners. The business PAETNEESHIP. 381 of the firm must be conducted under a firm name, wMch. must consist of the name of the general partner, or if there be two or more general partners, of the name of one or more of such part- ners, with or without the addition of the words "and company," or "and Co." If the name of any special partner be used in such firm name, with his privity, he will be deemed a general part- ner and will be liable as such. The partnership must cause to be placed in a conspicuous place on the outside and in front of the building in which is its principal place of business, a sign on which is printed in legible English, the names in full of all the members of such partnership, designating which are general and which are special partners. If such sign is not so placed no action against the partnership will abate or be dismissed by reason of the failure of the plaintiff to correctly allege in his pleadings, or prove as alleged, the number and names of the members of the partnership, and his pleadings may be amended on the trial to conform to the proof in that respect, without costs. A misstatement in the certificate or affidavit as to the amount of capital contributed by each special partner will make the special partners liable as general partners. Actions and special proceed- ings in relation to the business of the partnership may be brought and conducted by and against the general partners in the same manner as if there were no special partners. 'No part of the sum which any special partner contributes to the capital stock can be withdrawn by him, or paid or transferred to him, in the shape of dividends, profits or otherwise, at any time during the Continu- ance of the partnership, if thereby the original capital would be reduced. Nor can there be any fraudulent transfer of the prop- erty of the partnership or partner. It may be stated, as a general rule, that any material omission in complying with the provisions of the statute, or any direct and material disregard of them will render a special partner liable as a general partner. See Beers v. Reynolds, 11 JST. Y. 97. Where a special partner does not pay in cash, the amount of capital agreed to be contributed by him, but makes the payment in goods, etc., this is not a compliance with the statute, and if an affidavit is made that all the payments were made in cash, that will not relieve such special partner from liability as a general partner for all the debts of the firm. Haviland v. Chase, 39 Barb. 283. A colorable contribution of his capital through the use of money temporarily obtained from a third person, was held not a sufficient 382 PAKTNERSHIP. compliance with the limited partnership law, and to subject the special partner to general liability. Moorehead v. Seymour, 77 N. Y. Supp. 1050, and cases cited. A special partner who has withdrawn his capital after dissolution is not a proper party to an action to enforce a firm obligation, as he is liable to a creditor only after the remedies against the firm property and the general cred- itors individually have been exhausted, as his liability under the Partnership Law arises only in case he withdraws his capital be- fore dissolution. Fuhrmann v. Von Pustau, 126 App. Div. 629. § 11. Joint-Stock Companies. There is one kind of partnership which is quite common in practice, and it sometimes involves important interests of the parties who are members of it. When a large capital is required, and the business requires a different mode of management from that of an ordinary partnership, the parties frequently organize a joint-stock company or association. This contract, like all other agreements, will be entirely valid as between the parties to it if its provisions are legal. If the contract provides that the shares of stock shall be assignable, as is generally the case, one result of the arrangement will be, that there may be a continual change in the members of the company. Each shareholder will be a mem- ber so long as he is the owner of stock and no longer. But, if debts are incurred while any person is a member, a transfer of his share of the stock will not discharge him from liability to pay such debt to the creditor of the company. As between the parties themselves, they may make a valid agreement as to the liability of any or all of the parties in consequence of a change in the members. But such arrangement will not be binding upon the creditors of the company, unless they explicitly agree or con- sent to be governed by the agreement, in which case they would be concluded by such consent. It is said that if creditors deal with such companies, with full notice of such stipulations in the company agreement, they will be bound by them, since their acts would then be equivalent to an agreement upon their part. The members of a joint-stock company are all liable for the entire debts of the concern, in the same manner and to the same extent as in any ordinary partnership. Wells v. Oates, 18 Barb. 554; Cross v. Jachson, 5 Hill, 478, 480; Townsend v. Goewey, PAKTISrEESHIP. 383 19 Wend. 424, 425; Witherhead v. Allen, 28 Bart. 661, 667; Moore v. Brink, 4 Hun, 402. No greater formalities are required in respect to subscription to articles of association for the purpose of forming a joint-stock association than are required for the formation of an ordinary partnership. National Bank v. Van Derwerker, 74 IST. Y. 234. And while a joint-stock association has some of the attributes of a corporation it has others which distinguish it, such as the common- law liability of its members upon the obligations legitimately cre- ated or assumed through the acts of its officers and agents. So when the affiairs of the association call for its dissolution, an ac- tion for that purpose may be brought by one or more of its mem- bers, and the right to bring such an action is not confined to the attorney-general as is the case where it is sought to dissolve a cor- poration. Snyder v. Lindsey, 92 Hun, 432. But where the association is organized for moral, benevolent, social or political objects, it will not be dissolved by the courts for slight causes. Such an association, where there is no power to compel the pay- ment of dues, and where the right of the member ceases on his failure to pay his dues, is not a partnership, Lafond v. Deems, 81 ]Sr. Y. 507. A judicial dissolution of a joint stock association can be decreed at the instance of a member only for fraud in its management, or for good cause shown. Colton v. Raymond, 85 N. Y. Supp. 210. The individual liability of the members of such an association on contracts made by it, its officers and com- mittees, depends upon the principles of the law of agency; and authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact busi- ness or promote the object for which the association was formed, except where the debt contracted is necessary for its preservation. No liability of individual members can be implied from the mere fact of association. In this respect there is a plain distinction be- tween associations formed for the purpose of pecuniary profit and those formed for other objects. McCahe v. Goodfellow, 133 N. Y. 89. Where the articles of association provide that an action for recovering the amount of shares due from each member, may be made in the name of particular persons as trustees, the latter may maintain an action in their own names for that purpose. Cross V. Jackson, 5 Hill, 478, 480. And the rule is the same notwith- standing such trustees are members of the association, and, there- fore, partners with the persons sued. Townsend v. Goewey, 19 384 PAETNERSHIP. Wend. 424. So a memlDer of a joint-stock company may maintain an action against it in the manner prescribed by statute to recover for goods lost in course of transportation, the same as if he was not connected with the company. In this respect also the associ- ation differs from a partnership. Westcott v. Fargo, 61 IST. Y. 542. The articles of association of a joint-stock association may pro- vide that the death of a stockholder thereof or the transfer of his shares of stock therein shall not work a dissolution of the associ- ation; may prescribe the number of its directors, not less than three, to have the sole management of its affairs ; and may contain any other provision for the management of its afSairs not incon- sistent with law. Joint Stock Association Law, chapter 34, Laws 1909 ; Consolidated Laws, chapter 29. The statute cited is knovwi as the Joint-Stock Association Law, and contains few provisions limiting the right of the members of the association to provide for the management and control of its affairs through its articles of association. All such joint-stock companies or associations appoint such officers as a president, secretary, treasurer and the like, for the transaction of business, and the Code provides, in sub- stance, that an action may be brought by or against the president or treasurer with the same effect as though all the members of the association had been made parties plaintiff or defendant. Code of Civil Pro. § 1919. The statute authorizing the president of the company to sue in his ovra. name, does not confer any right of action except in such cases as those in which the members of the company could have sued before the statute was enacted. The intent of the stat- ute was to obviate the inconvenience of joining all the sharehold- ers or associates as parties; to facilitate an existing right of ac- tion, and not to create a new one. Coming v. Greene, 23 Barb 33. And see Tibbetts v. Blood, 21 Barb. 650. § 12. Rights, Duties, and Liabilities of Partners. In all ordinary general partnerships, there are certain rights and duties which equally affect all the members of the firm. Mutual confidence is of the first importance in all such enter- prises, and without this it will be impossible for any firm to carry on business for any length of time, or with any great degree of success. Every act of fraud by one partner, towards another, ia PAETITEESHIP. 385 not only destructive of the general interests of the firm, but it is in the highest degree criminal in the judgment of a pure con- science, and in many cases in a court of law. But it is not gross frauds alone that are objectionable; there ought not to be any attempt, on the part of any partner, to secure to himself any un- due advantage, by any intrigues, for his personal benefit. It is the duty of each partner to devote himself to the interest of the concern, and to exercise due diligence and skill for the promotion of the common benefit of the partnership. And he ought not to engage in any other business which wiU require so much of his time or skill as to interfere with his partnership re- lations, nor ought he to engage in any other business whose in- terests will necessarily clash with those of the firm. From this results the well-settled rule, that whatever either of the partners may do about the common business, he will not be entitled to any compensation or reward except his proper share of the profits of the concern. Caldwell v. Leiher, 1 Paige, 483 ; Franklin v. Robin- son, 1 Johns. Ch. 15Y, 165 ; Bradford v. Kimberly, 3 Johns. Ch. 431 ; Paine v. Thatcher, 25 Wend. 450. And there is no difference in this respect, though the duties performed by the partners have been very unequal in amount and value. The reason is, that each partner, in taking care of the partnership business, is in fact tak- ing care of his own interest, and is performing his own duties and obligations, and his personal skill, ability and diligence in so doing constitute a part of the consideration upon which the other partners have entered into the partnership; and the law never undertakes to measure and to settle between the partners their various and unequal services bestowed on the joint business. Ih. But, partners may, by express agreement, provide that any part- ner shall be paid for any portion of his services which he renders more than another, and this agreement will be valid and binding. Ih.; Hasbrouch v. Childs, 3 Bosw. 105. It is also the duty of a partner to keep fair and precise accounts, and to have them always ready for the inspection of any other partner. Beacham v. Eckford, 2 Sandf. Oh. 116 ; Bowe v. Wood, 2 Jac. & Walk. 558. Ordinarily, each member of the firm has an equal authority in the management of the concern, though this may be changed by agreement, or, as in the case of limited partnership, the general partners must transact the business. Although one partner can- not introduce a new partner into the firm without the consent of 25 386 PAETNEESHIP. the others, yet any partner may enter into a sub-partnership with a third person, and divide the profits with him. The prosperity of a partnership depends much upon the man- ner in which its affairs are managed. And as each partner usually has an equal voice in its concerns, and as he sometimes acts in behalf of the whole firm, much depends upon the prudence of all the members of it. If one partner acts for the firm and makes an advantageous contract, or secures an important interest, each of the members of the firm is entitled to an equal share of the profit. So, on the other hand, if one partner makes a con- tract for the firm which results disastrously to its interests, each of the members must bear a portion of the loss. This results from the nature of a partnership contract. It is a contract founded upon dividing profits and sharing losses, and in which each of the firm may act on behalf of its entire number. In the absence of an agreement to the contrary partners share the losses equally, though one contributes no capital, but only his services to the firm. Mallett V. Keller, 91 App. Div. 502 ; 86 N. Y. Supp. 917. It is a general rule that no member of a partnership can do any act or make any contract, which will bind the firm, if the act done or the contract made is entirely outside of the partnership business, Haulenheck Advertising Agency v. November, 27 Misc. 836. So, on the other hand, the entire firm will be bound by the acts or th& contracts of any of the partners, if the act or the contract is within the scope of the partnership business, and it is done for the purpose, of carrying on its ordinary business transactions. And it is now declared by statute that every general partner is the agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner. Where the business of the partnership is the buying and selling of merchandise, each of the partners may pur- chase such goods as he deems advantageous, and so he may sell any or all of the goods in the usual course of the business. And for the purpose of carrying on the business, he may contract debts, give notes, accept bills, give receipts, and do all other acts neces- sary and proper to be done. Collyer on Part., 348, § 384 ; Atlantic State Bank v. Savery, 18 Hun, 36, 40. A promissory note, given by one of the firm in the course of business, is binding upon all the members of it. Parol authority to an agent or attorney to- execute promissory notes in the name of the partnership firm, is- sufficient to bind the firm. Bank of North America v. Embury,. PARTNEESHIP. 387 33 Barb. 323. And where an agent has teen appointed by two partners, either of them may revoke the authority so given. Where a partnership was dissolved, and the partners, who were two in number, appointed an agent to collect the debts of the iirm, for the purpose of paying debts, and a debtor had promised to pay the sum due from him, to the agent, it was held that one of the partners had a right to revoke the authority of the agent, and to collect the debt himself, which would be a bar to an action in the names of the members of the firm. Bristow v. Taylor, 2 Stark. 50. Either partner may act in behalf of the entire firm, in the ordinary business which it transacts, especially if such partner has frequently done similar acts with the knowledge and consent of the other members. Williamson v. Johnson, 1 Barn. & Cress. 146. The contracts which may be made by a firm must be numerous and varied in their character, since they may em- brace all dealings which relate to the general business; and since each partner is authorized by law to act for the whole firm in such business, it will be seen that the authority of each partner is very extensive indeed. It may also be stated that, as a general rule, neither of the partners can bind the firm by any contract which does not relate to the business of the firm, unless it is some business which such partner has been permitted to transact in the firm name, with the knowledge and consent of all the mem- bers. Where it appeared that two partners had repeatedly, with the knowledge and assent of the other, indorsed accommodation notes in the firm name, it was held that this was not sufficient evidence that either of them was authorized to sign the firm name to a note, as maker and surety. Early v. Beed, 6 Hill, 12. But where one of the partners is accustomed to signing the name of the firm, as accommodation sureties for a third person, with the knowledge and consent of the other partners, a note so given will bind the firm. BvMer v. Stocking, 8 N. Y. 408. And such knowledge may be shovra by circumstances. Ih. Where both partners in a firm have been accustomed to act under an agreement made by one of them, in the name of the firm, though without previous authority, for the assumption of liabilities not within the scope of the partnership, such as indorsing accommo- dation paper, neither partner can repudiate obligations thus as- sumed towards persons with whom such an agreement was made and such dealings were ha3. Mechanics' Bank v. Livingston, 33 Barb. 458. A partner in a mercantile or trading firm may draw. 388 PAETNERSHIP. accept or indorse bills of exchange and promissory notes in the trading name of the firm, so as to bind the partnership, because the drawing, acceptance and negotiating bills and notes are usual and necessary acts for the purpose of carrying on the trade and business of a mercantile firm. A promissory note, made by a partner in the firm name, is valid against the firm in the hands of a bona fide holder for value, although not made in the partnership business and although the other partners neither consented to nor had knowledge of the making of the note. The note is presumptive evidence that it is valid business paper, and was given for a debt due from the makers to the payee. First Nat. Bank of Chittenango v. Morgan, 73 ]Sr. Y. 593. But if the taker or holder of such bill or note knew at the time he received it that the transaction was not a partnership transaction, but the private affair and dealing of a single partner, the other members of the firm would not be bound by it or liable thereon. See Union Nat. Bank v. TJnderhill, 102 ]Sr. T. 336 ; Atlantic State Bank v. Bavery, 82 N. Y. 291, 299, 300; Lyon v. Fitch, 46 St. Eep. 541; EoucTiin v. Yacher, 24 Week. Dig. 196; Oreen v. Deakin, 2 Stark. 347; Elliott v. Dud- ley, 19 Barb. 326. So a bill or note drawn in the name of the firm, and used by one partner in paying his private debt, which previously existed, will not bind the firm. Oreen v. Deakin, 2 Stark. 347 ; Elliott v. Dudley, 19 Barb. 326. But if a note is given or a bill is accepted by one member of the firm in the firm name, to raise money, which is applied by such partner to his private use instead of that of the firm, the partners will all be bound, if the money was so advanced, or the note or bill is held by one who acted in good faith in advancing the money, or in taking such bill or note. Wells V. Evans, 20 Wend. 251; Vallett v. Parker, 6 Wend. 615. So where a promissory note is made by a partnership firm to one of its members for money advanced by him to the firm, and the note is indorsed by the payee to another, after maturity, the holder may maintain an action thereon against the makers. Sher- wood V. Barton, 36 Barb. 284. Where one member of a firm makes a note in the name of the firm, and puts it in circulation, and it is shown that it was made without the knowledge or consent of the other partners, and for a matter not relating to the partnership business, an indorsee cannot recover against the latter without proof that he took it PAETNEESHIP. 389 before maturity in good faith, and for value. Evidence that such note, with others, was "passed to the plaintiffs for goods sold," and that "these notes were left with the plaintiffs as collateral security," is not sufficient to establish that the plaintiffs parted with the goods on the credit and security of the note. Clark v. Dearborn, 6 Duer, 309. The same is true as to a note made by one member of a firm, in the firm's name, after its dissolution, and lent to the payees, without the authority or consent of the other partner. Ih. In a suit upon a promissory note made in the name of the firm, without authority, by a retired partner, evi- dence is admissible that the partners had paid a judgment re- covered by default upon another note made at about the same time and under the same circumstances. City Bank of Brooklyn V. Dearborn, 20 N. Y. 244. Where a partner who is accustomed to issuing notes in behalf of the firm, indorses a note in a name differing from that of the partnership, and one which the partnership has not previously used, if the name used substantially describes the firm, it will be bound. But if the name so far varies that the indorser must ' be taken to have issued the note on his own account, the firm will be discharged. Faith v. Richmond, 11 Ad. & Ell. 339. One who takes from a member of a trading firm, in satisfac- tion of his separate debt, a negotiable security, in the name of the partnership, is bound to show that it was accepted or indorsed with a concurrence of the other partners. Leverson v. Lane, 13 J. Scott, K S. 278. And one who receives a note indorsed in the name of a partner- ship, with a knowledge at the time of taking it that the indorse- ment was not given for a partnership debt, but was written by one member of the firm in a matter not relating to the business of the firm, but on the contrary that it was done for the accommoda- tion of another person, cannot recover thereon against the other members of the firm. Fielden v. Lahens, 9 Bosw. 436. G., a member of a copartnership firm, made a check in the firm name, payable to one H. or bearer, for the purpose of paying an account due to the latter from the firm; the check, however, was not delivered nor used for that purpose, but was retained by G., who paid the account of H. by a smaller account, which he (G.) held, individually, against H., and by paying to him the balance in cash ; and G. subsequently transferred the check to the plaintiff in payment of a debt due to him by G., and it was held. 390 PAETNERSHIP. that, as the check was drawn in good faith, for the payment of a partnership debt, and as it had passed into the plaintiff's hands for a valuable consideration, he was entitled to maintain an action against the firm thereon. Gale v. Miller, 4:4: Barb. 420. One partner, without the knowledge or authority of his copart- ners, indorsed the firm name upon a note made for his individual benefit, and then, when sued thereon, he, without the knowledge or authority of the other partners, upon whom process had not been served, employed an attorney to appear and defend, not only for himself but for them, and judgment was rendered against them all. It was held that the judgment must be set aside as to the other partners, and that they might come in and defend the action. Bean v. Mather, 1 Daly, 440. Where a partnership is particular and special, as distinguished from a general partnership, the power of one partner to bind the firm is limited to acts necessarily connected with the particular enterprise in which the partnership is engaged. Macaulay v. Palmer, 125 N. Y. Y42. See Williams v. Lawrence, 47 IST. Y. 462 ; King v. Sarria, 69 N. Y. 25. In partnerships not of a mercantile or trading character, the authority of one partner to give a note which will bind the firm, does not exist. Bumsey v. Briggs, 63 Hun, 11. In professional partnerships where it is not usual, nor necessary for the purpose of carrying on the business of the firm, that bills or notes should be made, accepted or negotiated, one partner has no implied authority to pledge the credit of the firm by such bills or notes. Hedley v. Bainhridge, 3 Ad. & Ell. IST. S. 316. And this is the rule, notwithstanding the note was given for a debt which was due from the firm. lb. ; Dickinson v. Valpy, 10 Barn. & Cress. 138 ; Greenslade v. Dower, 7 Barn. & Cress. 635, 639, HOLEOYD, J. One partner is not authorized to bind the partnership by a guaranty of the debt of a third person, without a special authority for that purpose, or one to be implied from the common course of the business, or the previous course of dealing between the parties, unless the guaranty be afterwards adopted and acted upon by the firm. Butler v. Stocking, 8 IST. Y. 408 ; Austin v. Vander- mark, 4 Hill, 259; Kittel v. Callahan, 46 St. Eep. 404; CoUyer on Part., § 421 ; 3 Kent. 47. A guaranty to be binding, must have reference to the regular course of the partnership business, and it must be confined to PAETNEKSHIP. 391 advances made or credit given to the partnership as constituted at the time of the guaranty. The form in which the guaranty is made will not make any difference as to its validity, whether it be a formal guaranty, or an accommodation note, acceptance, ■or indorsement. In no case will it be valid, unless it is made by the authority of all the members of the firm, either express or implied. Such authority may be given in express terms, be im- plied from previous dealings, or be ratified by a subsequent assent. Where an active member of a copartnership, with authority to make notes and draw drafts in the business of the firm, but not for the accommodation of other parties, makes a draft in the firm name for the accommodation of a third person, the firm will be liable thereon to a bona fide holder for value. This liability does not rest upon the actual authority which the partner has who signs the firm name, but upon the principle that where one of two inno- cent parties must suffer from the improper act of a third person, that one must suffer who has clothed such third person with such character and placed him in such position as enabled him to do the act. Chemung Canal Bank v. Bradnerj 44 N. Y. €80. A partner having charge of the financial business of a firm, may take up firm notes by giving in exchange the notes of a third person, indorsed by him in the firm name, and the firm will be liable on the contract of indorsement, although it was made with- out the knowledge of the other partners. Steuben County Bank V. Alberger, 101 N. Y. 202. Such a transaction is within the general authority of the financial partner of the firm to provide funds to meet its liabilities. lb. Each of the partners is authorized by law to give a receipt in the name of the firm for all moneys paid, or for any other thing which the firm has received through any of its members, or by any authorized agent of such firm. So any partner may give a valid release of any claim or demand which the firm has against any person, on his paying or satisfying such claim or demand. Pierson v. Hooker^ 3 Johns. 68; Bulkley v. Dayton, 14 Johns. 387. Every partner has implied authority to receive payment of firm debts in the absence of an agreement to the contrary, and when such agreement exists it does not affect the firm debtor un- less he has notice of it. People ex rel. Immermann v. Devlin, 118 JSr. Y. Supp. 4Y8 ; 63 Misc. 363 ; 2 Current Ct. Dec. 306. One partner may sign a composition deed, and release a part 392 PAETNEKSHIP. of a debt due to the partnership. Bruen v. Marquand, 17 Johns. 58. The admissions of one partner in relation to the partnership business are evidence against all the partners. A declaration by either of the partners that he is a member of a firm will be evidence as against himself; but his admissions are not legal evi- dence to prove that another person is a partner. In such cases, the admission of each person is evidence as against himself, to prove him a partner, but it is no evidence against the others. McPherson v. Bathhone, 7 Wend. 216; Kirby v. Hewitt, 26 Barb. 607 ; Davidson v. HutcTiins, 1 Hilt. 123. When either of the partners does an unauthorized act, the firm may ratify it so- as to be binding on all the partners. And where one partner, vnthout authority and for his own exclusive benefit, made a promissory note in his own name, and indorsed it with the firm name, and the indorsee took the note with full knowledge of the facts, it was held that the copartner of the maker might ratify such note by a subsequent promise to pay it without any new consideration, and that such promise was valid. Commercial Bank v. Warren, 15 IST. Y. 577. But where such a note is made and turned out by one partner to secure his individual debt previously existing, it must be shown that the other partner sub- sequently expressly assented to the arrangement. Proof that they knew of the transaction after it had taken place, is not of itself a sufficient assent. Elliott v. Dudley, 19 Barb. 326. They need not deny their liability until sued as indorsers. Ih. Whenever it is necessary to give notice to a firm in any proceeding or busi- ness, it will be sufficient to give notice to one of the partners,, which will be a legal notice to all the members of it. So knowl- edge by one partner of any fact which bears upon a question of good faith in a transaction, is knowledge by all. As a general rule it is settled tbat one partner cannot enter into agreements under seal which will bind the firm, by way of creating a charge or liability. But if such instrument is made with the assent of the other partners it will be valid, whether such assent be given at the time of executing it, or subsequently. Smith V. Kerr, 3 E". Y. 144 ; tbough it has been seen that either partner may release a claim due to the firm. One of several partners may assign a chose in action belonging to the firm, and the assignment will be valid and operative though under seal. Badt V. Bosenfeld, 20 Misc. 312. PAKTNEESHIP. 393 "A joint debtor may make a separate composition with his creditor, as prescribed in this section. Such a composition dis- charges the debtor making it, and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt untU the partnership has been dissolved by consent or otherwise. In that case the instrument must release or exonerate him from all liability incurred by reason of his connection with the partnership. An instrument specified in this section does not impair the cred- itor's right of action against any other joint debtor, or his right to take any proceeding against the latter, unless an intent to re- lease or exonerate him appears affirmatively upon the face there- of." Debtor and Creditor Law, sections 230, 231 ; Consolidated Laws, chapter 17, Laws 1909. See Marx v. Jones, 36 Hun, 290; Hwrbech v. Pupin, 23 E". T. 115. In all the ordinary business transactions of a firm the action of a majority is binding upon all the members of it. And each partner may bind his co- partner by any contract within the scope of the copartnership business, so long as the partnership relation continues, notwith- standing the objections of some of the firm. WilMns v. Pearce, 5 Denio, 641. But no number of partners less than the whole firm can sub- mit a partnership claim or demand to arbitration. Stead v. Salt, 3 Bing. 101 ; Harrington v. Sigham, 15 Barb. 524 ; Harrington V. Higham, 13 Barb. 660; McBride v. Hagan, 1 Wend. 326. The rule is the same whether the submission be under seal or by a simple agreement not under seal, or even by a verbal submission. Harrington v. Higham, 13 Barb. 660. The submission, however, will be binding upon the party who made it, and upon the opposite party. 76. One partner cannot confess a judgment which is binding upon any partner except him who so confessed it. Binney v. Le Gal, 19 Barb. 592 ; Everson v. Oehrman, 10 How. Pr. 301 ; Crane v. French, 1 Wend. 311. The Code provides as follows: "One or more joint debtors may confess a judgment for a joint debt, due or to become due. Where all the joint debtors do not unite in the confession, the judgment must be entered and enforced against those only who confessed it; and it is not a bar to an action against all the joint debtors upon the same demand." Code of • 394 PAETNERSHIP. Civil Pro., § 1278. See Harbeck v. Pupin, 123 K Y. 115; Tripp V. Saunders, 59 How. 379. One partner cannot make a valid assignment of the partnership property in trust for the payment of the debts of the firm, unless it is done under circumstances of such peculiar character as 1» "take the case out of the general rule. Welles v. March, 30 'N. Y. 344 ; Palmer v. Myers, 29 How. 8 ; 43 Barb. 609 ; Klwmpp v. Gardner, 114 IST. Y. 153. If all the partners are where they may be consulted, but are not; or if they are consulted, and one or some of them refuse their consent, such an assignment cannot be made by one or more of the partners. Deming v. Colt, 3 Sandf. 284. Where a partnership consists of four members, two of whom are absent from the State on business of the firm, the other two partners cannot, without the assent of the others make a valid general assignment of all the partnership property in trust for the payment of the creditors, giving preference to some over others. Pettee v. Orser, 6 Bosw. 123. An assignment, so executed, and not ratified, but dissented from by the absent partners, is void as against the creditors of the firm, and the assigned property may be levied upon and taken by a sheriff under an execution issued on a judgment against the firm. Ih. Such an assignment is valid, however, when it is proved that at the time of its execution the other partner was absent and had relinquished all control and management of the business of the firm. Kemp v. Camley, 3 Duer, 1 ; Palmer v. Myers, 43 Barb. 509. And it has long been settled that one member of a copart- nership can, with the oral or written consent of the other, make a general assignment for the benefit of creditors. Welles v. March, 30 ISr. Y. 344; Klumpp v. Gardner, 114 IST. Y. 153; Hooper v. Baillie, 118 N. Y. 413 ; Martine v. RoUnson, 78 Hun, 115. The consent may appear by the acts or declarations, before or after the assignment, of the partner or partners who did not sign. Klumpp V. Gardner, 114 IST. Y. 153. It is lawful for an insolvent member of a firm to devote his individual property to the' payment of firm debts, to the exclusion of his individual creditors. Royer Wheel Co. v. Fielding, 101 ]Sr. Y. 504; Crooh v. Rindshopf, 105 K Y. 476. But if he undertakes to do this by assignment be must respect the statute limiting preferences. Wheeler v. Childs, 22 App. Div. 613. And if the conditions are reversed, and the assignment is of firm PARTNEESHIP. 395 property, the assignment may be held to be void as to firm creditors if it devotes a part of the partnership property to the payment of individual debts without providing that the creditors of the copartnership shall be first paid. Booss v. Marion, 129 E". Y. 536 ; Wilson v. Marion, 147 K Y. 589 ; Wilson v. Robert- son, 21 N. Y. 587. A firm, although insolvent, may make preferences among its creditors, and one partner may transfer all the partnership effects directly to a creditor of the firm in payment of a firm debt, with- out the knowledge of his copartner, although the latter is at the place of business of the firm and might be consulted. Mabiett v. White, 12 ]Sr. Y. 443 ; Bulger v. Rosa, 119 N. Y. 459 ; Schwarz- .schild & Sulzberger Co. v. Mathews, 39 App. Div. 477; Yarn, Brunt V. Applegate, 44 IST. Y. 544. A single partner may transfer the partnership property directly to a creditor in payment of or as security for a debt, but is not authorized, without the consent of his copartners, to make a general assignment in trust for all the creditors of the concern. Postman v. Rowan, 65 Misc. 50; 119 N. Y. Supp. 248. A partner having the legal title to an undivided one-half of real estate, the whole of which is, in equity, firm property, may convey his undivided half to a creditor of his firm in payment of a. firm debt, notwithstanding that the conveyance is made with- out the knowledge or consent of his copartner, that the firm is insolvent, and its effect is to give preference to the grantee. Van Brunt V. Applegate, 4:4: N. Y. 544. But one partner cannot con- vey all the title to the real estate of the firm unless the whole title is vested in him. lb. He may, however, enter into an executory contract to convey which a court of equity will enforce. Chester v. Dickerson, 54 IST. Y. 1. It is no objection to an assignment of an account due to several partners that it was made by only one of them, and is under seal. Everit V. Strong, 7 Hill, 585 ; S. C. 5 Hill, 163. Any of the partners may pledge the partnership property for partnership debts or liabilities, when it is done in good faith. Reid v. Hol- linshead, 4 Bam. & Cress, 867 ; Rabo v. Ryland, Gow. K P. 132. In the absence of fraud, one member of a firm may, notwithstand- ing the protest of his partner, transfer all the property of the partnership, in consideration of the promise of the purchaser to pay its debts, although they are not yet due. Graser v. Stell- ■wagen, 25 K Y. 315; Mabbett v. White, 12 N. Y. 442; Mc- 396 PAETNERSHIP. Clelland v. Bemsen, 36 Barb. 623. So a pledge, by on© partner,, of partnership property for his private debt will bind the firm, if the pledgee had no notice that it was joint property that was pledged, and there is no fraud in the transaction. 76. Where a debt is contracted or a liability incurred in the ordinary course of business, all the members are equally liable for its payment or discharge. And each of the partners is liable for the whole debt or obligation, if any of the other partners are not able to pay their just proportion of the debts, etc. It is now provided by statute that every general partner is liable to third persons for all the obligations of the partnership, jointly and severally, with his co- partners. Usually, the act of one partner in creating debts, etc., is confined to such transactions as are within the scope of the firm dealings or business. But one partner may bind the firm in other cases, if they are such as are connected with their ordinary firm business, or when the acts receive the express sanction and con- firmation of the firm. Sandilands v. Marsh, 2 Bam. & Aid. 673. A member of a copartnership firm is liable in an action, either on contract or in tort, for the consequences of frauds practiced by his copartners in the transaction of the copartnership business, although he was entirely ignorant of such frauds, and derived no- benefit therefrom. Hawkins v. Appleby, 2 Sandf. 421 ; Bapp v.^ Latham, 2 Barn. & Aid. 795 ; Stone v. Marsh, 6 Bam. & Cress. 551; Hume v. Bollard, Eyan & M. 371; Willett v. Chambers,. Cowp. 814 ; Chester v. Dickerson, 54 E". T. 1 ; Bradner v. Strang,. 23 Hun, 445 ; 89 K T. 299. So one partner is liable to third persons for the negligent acts of his copartner in the prosecution of the copartnership business. McCarragher v. Gaskell, 42 Hun, 451; Stroher v. Biting, 97 IST. Y. 102. Although one partner may be liable as for money had and received for a sum collected in a fiduciary capacity and con- verted by the other partner, he is not subject, when innocent of personal participation in the tort to a body execution on a judg- ment recovered. Wrynn v. Pistor, 141 App. Div. 104; 125 IST. Y. Supp. 970, and cases cited. And each partner is liable in tort for the negligence of a servant employed and paid by one of them exclusively, by which a third person is injured, while such servant is engaged in the due course of his employment, in transacting th& business of such partnership. Cotter v. Bettner, 1 Bosw. 490; Champion v. Bostwick, 18 Wend. 175, 186; Wayland v. Elkins^ 1 Stark. N. P. 272 ; S. C. Holt. N. P. 227. PAETNERSHIP. 397 An action to recover damages sustained through the negligence ■of an employee of a firm, may be brought against any one or more, or all of its members. Roberts v. Johnson, 58 N. Y. 613. So all of the members of a firm are liable on a warranty which is made by one of the partners on the sale of partnership prop- erty ; or where one of them transfers a note which belongs to the firm, and he represents the notes to be good, when they are not. Sweet V. Bradley, 24 Barb. 549. Though an action may be main- tained against the partner alone who made the warranty. Clark V. Holmes, 3 Johns. 148. Where one partner makes a sale or disposition of the partner- ship property, in his own name, and without disclosing the name of his copartner or copartners having an interest therein, and at the same time makes a warranty of the soundness thereof, also in his own name, an action may be maintained against him for a breach of the contract of warranty, without joining his copart- ner in the action. Cookingham v. Lasher, 38 Barb. 656. A part- ner who thus makes a contract in his own name, and not in the name of himself and his copartner, cannot be allowed to turn the other party to the contract over to a litigation with a stranger, simply because the latter has an interest in the property sold. lb. Where a contract is made by one partner, or where one part- ner does any other act, for which it is sought to render the firm liable, there must be suf&cient evidence given to show that the persons claimed to be partners were such at the time the alleged -act was done. The admissions of each partner will be evidence against himself upon that question; but they will not be evi- dence to prove that the other persons are partners. See "Evi- K22 LIE^'. ployed, and upon all the deeds and papers and other articles of their clients which come to their hands in their professional capac- ity for the purposes of business, for the costs not only of the par- ticular cause or matter with which such deeds or papers are con- nected, but for the costs due to them generally from their clients. Stevenson v. Blakeloch, 1 Maule & Selw. 535 ; Lambert v. Buck- master, 2 Barn. & Cress. 616. And see Ely v. Cooke, 28 IST. Y. 365. See Consolidated Laws, chapter 30 ; Judiciary Law, sections 88, 474, 475, 477; Laws 1909, chapter 35. This statute gives to an attorney appearing for a party a lien on his client's cause of action and the proceeds thereof, which lien is not affected by any settlement between the parties. Horn v. Horn, 115 App. Div. 292. Such lien attaches to the fund in the hands of the defendant, on the parties settling the case, and cannot be defeated by defend- ant's paying all of it to the plaintiff. Oisliei v. Pennsylvania R. R. Co. Ill App. Div. 110, 117, 118, 119. In the absence of any express agreement between the client and the attorney as to the amount of compensation to be paid to the latter, the lien of the attorney will be limited to the amount of costs taxed in the judgment roll. Haight v. Holconib, 7 Abb. 210; S. C. at Special Term, 16 How. 160. But when there is an agreement between client and attorney by which the latter is to receive a larger sum than that specified by the Code as costs, or when it is agreed that the attorney shall receive a specified proportion of the amount of the recovery, the lien of the attorney will extend to the amount agreed upon, and be a valid and effec- tual lien and security to that extent. Rooney v. Second Avenue R. R. 18 ]Sr. Y. 368; Hall v. Ayer, 9 Abb. 220, S. C. 19 How. 91; McGregor v. Comstoch, 28 IST. Y. 237; Mackey v. Mackey, 43 Barb. 58. An attorney has no lien upon the will of a client for the costs incurred in the preparation of it, and he cannot therefore refuse to produce it after his client's death until his costs have been paid. And where deeds are delivered for a specific purpose, the right of lien is extinguished as soon as the particular purpose has been accomplished, and it may be superseded altogether by the attor- ney's taking from the client security for his costs. Genges v. Genges, 8 Ves. 294; BalcTi v. Symes, Turn. & E. 92. An attorney cannot set up a general lien for the balance due to him in respect of services not rendered by him as an attorney,, LIEN. 523 nor can he detain deeds and papers which do not come to him in his professional character. And he cannot set up any lien which is inconsistent with the nature of his employment, or the terms or conditions, or express or implied trust upon which he received the papers. Lawson v. Dickinson, 8 Mod. 307. His right of lien is also dependent upon the rights of his client, and he cannot acquire more extensive powers over the papers in his hands than the client himself possessed at the time he depos- ited them with him. Hollis v. Claridge, 4 Taunt. 807 ; Esdaile Y. Oxenham, 3 Barn. & Cress. 225 ; Lightfoot v. Keane, 1 Mees. & Wels. 745. If an attorney transacts business for a firm in partnership col- lectively, and also manages the private business of the members of the firm individually, he has no lien upon the private securities, deeds and writings of one partner for such business as he may have done for the firm. Turner v. Deane, 3 Exch. 836. The right to retain deeds, securities, papers, etc., or property or chattels, etc., for a general balance, may, with some exceptions which will be noticed, be reserved by an express contract between the parties. Every workman and artificer who is not a public innkeeper, common carrier, common ferryman, common farrier or smith, and who is not bound to exercise his calling in favor of all persons who may require his services, has a right to prescribe the terms upon which he will receive goods or chattels into his possession, to be dealt with in the ordinary course of his trade, and may by express notice reserve to himself a general lien, if he thinks it proper or right to do so. When the law imposes no obligation upon the workman to exercise his trade or calling in favor of all comers indiscrimi- nately on being tendered his customary charge, but gives him the option of either declining or accepting the employment tendered him, or of imposing such terms upon the employer as he may think fit, the workman may stipulate for the enlargement of his ordinary right of lien, and make such terms with his employer as he may think desirable. A warehouseman has a lien for the storage of goods in his ■warehouse ; and if a large quantity of merchandise, consisting of numerous separate articles are thus stored, and portions of it are taken from time to time by the owner, without the payment of storage, the warehouseman has a lien upon the articles remaining in his custody and keeping for the storage of the entire property. 524 LIEN. Schmidt v. Blood, 9 Wend. 268. And see Morgan v. Congdon, 4 ]Sr. Y. 552. So, -where goods are delivered to a laundryman in separate lots to be laundered, each lot under a separate contract, the laundryman acquires a lien only upon each particular lot so delivered for the vpork done upon that particular lot of goods, and if he returns that lot to his customer he destroys his lien on that lot, and cannot transfer it to any other lot received under another contract. But where all the deliveries are made to the laundry- man under a single contract, though at different times, the lien at- taches to all the property in the same manner as if it had all been delivered at one time; and if a part of it is voluntarily returned without payment for the work, the only consequence is that the laundryman has abandoned a part of his security for the total amount due him and retained his lien therefor only upon the prop- erty which remains in his possession. Wiles Laundering Co. v. Hahlo, 105 IST. Y. 234. So, a wharfinger who has allowed a por- tion of a shipment to be taken has a lien upon the remainder for the entire sum due for wharfage. Bohinson v. Springfield Iron Co. 39 Him, 634. If a party who has a right of lien upon property in his posses- sion, voluntarily parts with the possession of the property, the lien is gone. McFarland v. Wheeler, 26 Wend. 467 ; Sweet v. Pym, 1 East, 4. But a common carrier does not lose his lien when he has been induced to deliver the goods to the consignee upon a false and fraudulent promise by the latter that he would pay the freight as soon as the goods were delivered. Bigelow v. Heaton, 6 Hill, 43. If the price is not paid in such a case, the carrier may maintain replevin to recover possession of the prop- erty. Ih. But, if the possession of the property is fairly and voluntarily surrendered by the party having a lien upon it, the right of lien is gone, and it does not revive, although he may afterwards regain possession of the property. Sweet v. Pym, 1 East, 4. But, if the property is stolen, or taken away by a tres- passer, or is obtained by fraud, the lien is not extinguished. Wal- lace V. Woodgate, Eyan & Moody, 194, S. C. 1 Carr. & Payne, 575 ; Bigelow v. Heaton, 6 Hill, 43 ; Kline v. Oreen, 83 Hun, 190. The right of lien is a mere personal right, and it cannot be parted with by a sale and transfer of it to another person, with- out losing the right of lien, unless the property has been pledged to secure the repayment of money advanced, with an express or LIEN. 525 iin implied power of sale. Clarh v. Gilbert, 2 Bing. N. C. 343, 351. An innkeeper cannot sell the horse of his guest to pay for his keeping, and if he does so, and parts with the possession of the horse, he will lose his lien. Jones v. Pearle, 1 Strange, 556. A party may lose his right of lien although the property is never actually removed from his premises. And, if a person who has a lien upon goods, causes them to be taken upon an 5 Rob. 216; Sheldon v. Button, 5 Hun, 110. § 5. Revocation of Gifts. A valid gift inter vivos, once consummated, is irrevocable {Be- dell V. Carll, 33 N. Y. 581), although made by mistake through the donor's forgetfulness of a fact at the time of making it (Picks- lay V. Starr, 149 ]^. Y. 432), while a gift causa mortis may be revoked at any time by the donor and the possession and control of the subject of the gift resumed. Bedell v. Carll, 33 JST. Y. 581 ; Grymes v. Hone, 49 N. Y. 17. A gift made in apprehension of death from a present illness is revoked by the recovery of the donor from that illness. Grymes v. Hone, 49 IST. Y. 17 ; CuHiss v. Barrus, 38 Hun, 165. And it seems that a gift causa mortis will be revoked by the birth of a child where such event would operate to revoke a will of person- alty had one been made by the donor. Bloomer v. Bloomer, 2 Bradf, 339. In case of an attempted gift inter vivos, where possession is not immediately given to the donee, the owner may recall his act at any time before the property comes into the actual possession of the donee. It is not necessary that such revocation should be in words. Any act of the donor inconsistent with the right of the donee to control the property before he takes it into his possession would probably operate as a revocation. Whiting v. Barrett, 7 Lans. 106. Where the ovraer of a farm, while very sick and under appre- hension of death, executes a deed of the farm to a relative and delivers it to a third person with directions to deliver it to the donee upon the donor's death, the transaction amounts to a gift 704 GIFTS. of the farm causa mortis; and if the donor, by reasn of the an- noyance arising from the complaints and dissatisfaction of other relatives, directs such third person to deliver the deed to the donee, this will not change the nature of the transaction from a gift causa mortis to a gift inter vivos; and the recovery of the donor from the sickness operates per se as a revocation of the gift, and entitles the donor to maintain an action against the donee to com- pel a restoration of the donor's interest in the land. Curtiss v. Barrus, 38 Hun, 165. ASSIGNMENTS. 705 CHAPTEE XV. ASSIGNMENTS. § 1. What May be Assigned. The term "assignment" is ordinarily applied to ttie sale and transfer of a chose in action from one person to another by some ■written instrument with or -without a seal, and with more or less formality, according to the nature of the thing transferred and the purpose for which the transfer is made. The rules of law regulating assignments might properly be included in the follow- ing chapter treating of sales, but, for the sake of convenience, they have been made the subject of a separate chapter. It is not pro- posed, in this chapter, to discuss the law relating to assignments by an insolvent debtor for the benefit of his creditors, as the proper discussion of that subject would fill a volume of itself. The law respecting such assignments is almost wholly statutory, and refer- ence must be made to the law itself or to works specially devoted to that subject. See General Assignment Act, Laws of 1877, ch. 466 and amendments thereto; Headley on Assignments for the Benefit of Creditors. There are very few causes of action arising upon contract which may not be assigned so as to vest the assignee with all the rights and remedies of his assignor. In fact, every cause of action which is in the nature of a debt, or which authorizes the recovery of damages for the breach of a contract, is assignable, except a claim or demand for damages for a breach of promise to marry. The language of the statute is very broad and comprehensive and leaves little for judicial construction. To constitute a valid assignment there must be a perfected transaction between the parties intended to vest in the assignee a present right in the thing assigned. Dono- van V. Middlehrook, 95 App. Div. 365. The Personal Property Law, Laws 1909, chapter 45, Consolidated Laws, chapter 41, 45 706 ASSIGNMENTS. section 41, provides as follows: "Any claim or demand can bc- transf erred, except in one of the following cases: 1. Where it is to recover damages for a personal injury or for a hreach of promise to marry. 2. Where it is founded upon a grant which is made void by a statute of the State, or upon a claim to or interest in real prop- erty, a grant of which, by the transferrer, would be void by such statute. 3. Where a transfer thereof is expressly forbidden by a statute of the State or of the United States, or would contravene public policy." "A judgment for a sum of money, or directing the payment of a sum of money, recovered upon any cause of action, may be trans- ferred; but if it is vacated or reversed, the transfer thereof does not transfer the cause of action, unless the latter was transfer- able before the judgment was recovered." Personal Property Law, Laws 1909, chap. 45, sec. 41. These provisions of the statute are clear and explicit and render a citation of many of the old decisions relating to the assignabil- ity of causes of action unnecessary and unprofitable. It is to be noticed that the general rule is that all claims and demands are assignable unless they come within one of the excepted cases specified by the statute. The first of these is where the claim or demand is to recover damages for a personal injury. The term "personal injury" has been defined by statute and includes libel, slander, criminal conversation, seduction and malicious prosecu- tion ; also an assault, battery, false imprisonment, or other action- able injury to the person either to the plaintiff or another. Code Civil Procedure, § 3343, subd. 9. Before the enactment of the present statute it was held that the interest which one of the next of kin has in the damages which are recoverable by statute where a person is killed by the wrong- ful act, neglect or default of another, is assignable. Quin v. Moore, 15 N. Y. 432. And see Cregin v. Brooklyn Crosstown R. B. Co. 75 N. Y. 192. Whether the decision is in conflict with the section of the statute as thus defined must be determined by fu- ture decisions. But the assignability and survivability of things in action have frequently been held to be convertible terms, and applying this test it would appear that a cause of action for dam- ASSIGNMENTS. TOY ages for negligence, causing the death of another, is not assign- able. Whitford v. Pmama B. R. Co. 23 N. Y. 465. See Heger- ich V. Keddie, 99KY. 258, 263,266. Upon the same principle, a cause of action by a master for the seduction of his servant (People V. Tioga Common Pleas, 19 Wend. 73) ; or for a fraudu- lent representation by a third person upon which credit is given to an irresponsible person (Zabrishie v. Smith, 13 IST. Y. 322) ; or for a breach of promise to marry (Wade v. Kalhfleisch, 58 N. Y. 286) ; or for a penalty incurred by trustees under the former Geu'- eral Manufacturing Act (Stolces v. Stichney, 96 IST. Y. 323) ; or for fraud in inducing one to marry another (Price v. Price, 75 N. Y. 244), does not survive and is not assignable. See Hegerich V. Keddie, 99 K Y. 258, 263, 266. But it has been held that a cause of action in tort affecting the property rather than the person of the claimant, may be assigned; and that the right of action which a person has to recover damages sustained through being induced to enter into and contribute large sums of money to a copartnership by reason of false and fraudulent statements of an- other, is assignable. Hyde v. Tuff is, 13 Jones & Sp. 56. A debt against a corporation being assignable, it follows that whoever becomes the owner of the debt takes as the incident thereof the right to the penalty imposed by the General Manufacturing Act of 1848 upon a trustee for failure to make and file an annual report, or by the act of 1875 (ch. 611, § 21) for making and filing a false report. StoTces v. SticJcney, 96 N. Y. 323 ; Torlett V. Godwin, 62 Hun, 407 ; Brackett v. Griswold, 103 K Y. 425 ; Pier V. George, 86 IST. Y. 613 ; Bolen v. Crosby, 49 IST. Y. 187. It seems that a claim of minor children to recover damages under the Civil Damage Act may be assigned by the guardian of the infants to their mother, who may recover all the damages sus- tained. Ludwig v. Glaessel, 34 Hun, 312. A cause of action for false and fraudulent representations made by a vendor upon a sale of stock (Mason v. Baplee, 66 Barb. 180) ; or for the conversion of personal property {Drake v. Smith, 12 Hun, 532 ; Ward v. Benson, 31 How. 411 ; Hawh v. Thorn, 54 Barb. 164; McKeage v. Hanover Fire Ins. Co. 81 IST. Y. 38; Mc- Kee y. Judd, 12 N. Y. 622 ; Baumann v. Jefferson, 4 Misc. 147) ; a cause of action for fraud in the purchase and sale of real estate (Graves v. Spier, 58 Barb. 349, 49 N. Y. 657. And see Haighi v. Hoyt, 19 'N. Y. 464) ; a cause of action for damages arising out of a combination between the defendant and an insolvent pur- 708 ASSIGN'MEWTS. chaser of goods, whereby the defendant recommended the pur- chaser to the seller and induced a sale by false representations as to the credit of the purchaser, in consideration of receiving a share of the fruits of the fraud (Moore v. McKinstry, 37 Hun, 194) ; a right of action to recover the damages sustained through the careless and negligent act of another, resulting in the burning of the grass, fences and hay on a farm {Fried v. New York Cent. R. R. Co. 25 How. 285; 1 Sheld. 1) ; a claim for reimbursement for money obtained on a fraudulent settlement (Sheldon v. Wood, 2 Bosw. 267) ; a claim for money lost in gaming (Meech v. Btoner, 19 ]Sr. Y. 26; Hendrickson v. Beers, 6 Bosw. 639; McDougall v. Walling, 48 Barb. 364) ; a claim against an innkeeper for money stolen from a guest (Stanton v. Leland, 4 E. D. Smith, 88) ; or against carriers for goods they have lost (Freeman v. Newton, 3 E. D. Smith, 246) ; or against a common carrier for negligence in not transporting and delivering goods delivered to him for transporta- tion (Smith Y. New York & N. H. R. R. Co. 28 Barb. 605 ; 16 How. 277 ; Waldron v. Willard, 17 IST. Y. 466 ; Foy v. Troy & Bos- ton R. R. Co. 24 Barb. 382) ; or a claim for damages for injuring or destroying personal property (Butler v. New York & Erie R. R. Co. 22 Barb. 110) ; a cause of action for the recovery of damages upon an undertaking on arrest (Bamberger v. Eahn, 43 Hun, 411 ; Moses V. Waterhury Button Co. 5 Jones & Sp. 398) ; or a right of action by a common carrier against a wrongdoer for an injury done to goods in his possession (Merrick v. Brainard, 38 Barb. 574) ; or a claim of a public officer against an intruder who has wrongfully received the fees of his office (Piatt v. Stout, 14 Abb. 178) ; or a right of action against a sheriff for neglect to arrest a debtor upon an execution against the person (Dininny v. Fay, 38 Barb. 18), is assignable. A vendee of chattels may assign his right of action against the vendor for failure on the part of the latter to perform his part of the contract. Sears v. Conover, 34 Barb. 331. And, with few exceptions, every demand arising out of contract may be assigned. One of these exceptions is a demand for damages for a breach of promise of marriage, which, although theoretically founded on contract, has always been regarded as sounding in tort. Wade V. Kalbfleisch, 58 N. Y. 282. An other exception is made in favor of demands founded upon grants void by statute, or upon a claim to or interest in real property, a grant of which, by the transferor would be void by statute. Another exception relates to demands, ASSIGNMENTS. 709 the transfer of which is prohibited by the State or Federal stat- utes. Among such laws is the act to prohibit the assignment and subletting of public contracts. Laws of 1897, ch. 444. That act provides as follows : "Section 1. A clause shall be inserted in all specifications or contracts hereafter made or awarded by the State, or by any county, or any municipal corporation, or any public department or oificial thereof, prohibiting any contractor, to whom any con- tract shall be let, granted or awarded, as required by law, from assigning, transferring, conveying, subletting or otherwise dispos- ing of the same, or of his right, title or interest therein, or his power to execute such contract to any other person, company or corporation, without the previous consent in writing of the depart- ment or official awarding the same." "§ 2. If any contractor, to whom any contract is hereafter let, granted or awarded, as required by law, by the State, or any county, or any municipal corporation in the State, or by any public department or official thereof, shall, without the previous written consent specified in section one of this act, assign, trans- fer, convey, sublet, or otherwise dispose of the same, or his right, title or interest therein, or his power to execute such contract, to any other person, company or corporation, the State, county, mu- nicipal corporation, public department, or official, as the case may be, which let, made, granted, or awarded said contract, shall re- voke and annul such contract, and the State, county, municipal corporation, public department or officer, as the case may be, shall be relieved and discharged from any and all liability and obligations growing out of said contract to such contractor, and to any person, company, or corporation to whom he shall assign the same, and said contractor, and his assignee, transferee, or sub- lessee, shall forfeit and lose all moneys theretofore earned under said contract, except so much as may be required to pay his em- ployees ; provided that nothing herein contained shall be construed to hinder, prevent, or affect an assignment by such contractor for the benefit of his creditors, made pursuant to the statutes of this State." A somewhat similar Federal statute prohibits the transfer and assignment of claims against the United States and renders them absolutely null and void, unless freely made and executed in the presence of at least two attesting witnesses after the allowance of the claim, the ascertainment of the amount due, and the issuing 710 ASSIGNMENTS. of a warrant for the payment thereof. See U. S. Kev. Stat, § 3477. See also Goodman v. Niblach, 102 U. S. 556; Bailey V. U. 8. 109 U. S. 432; Spofford v. Kirh, 97 U. S. 484; Eobhs V. McLean, 117 U. S. 567 ; Burck v. Taylor, 152 U. S. 634. It will be noticed that there is an important distinction as to the application of the two statutes. The first forbids the assign- ment of the contract itself, and the latter forbids the assignment of the moneys which may become due under a contract. Under the first statute, an assignment of the contract would be wholly in- operative and void without the required consent; while under the second, the assignment of the claim contrary to the provisions of the section, is void at the election of the government, and may be disregarded and payment made to the original claimant, although after notice of the transfer, or the government may recognize the transfer and make payment to the transferee without liability to any subsequent claim by the original party. See Bailey v. U. 8. 109 U. S. 432; Burck v. Taylor, 152 U. S. 634; Fortunato v. Patten, 147 N. Y. 277; York v. Conde, 147 N. Y. 486; Hackett V. Campbell, 10 App. Div. 523. There is a wide difference be- tween assigning moneys due under a contract and an absolute as- signment of the contract itself, as the latter act disturbs the rela- tion of personal confidence which exists between one desiring work done that requires a high order of skill and intelligence and the contractor he may have selected as possessing these necessary quali- fications. Fortunato v. Patten, 147 N. Y. 277 ; Delaware County V. Diehold Safe & Lock Co. 133 U. S. 479. There is another exception to the right to assign a claim or demand, and that is where a transfer thereof would contravene public policy. An executor's commissions, until ascertained and liquidated at the times and in the manner authorized by law, are not subject to his disposal, his right to them is incohate, and upon grounds of public policy are unassignable. Matter of Worthing- ton, 141 ]Sr. Y. 9. It is well settled that a public officer cannot, during his official term, and before his salary or fees become due and payable, make a valid assignment of such salary or fees. lb.; Bliss V. Lawrence, 58 IST. Y. 442 ; Bowery Nat. Bank v. Wilson, 122 N. Y. 478 ; Billings v. O'Brien, 4 Daly, 556, 45 How. 392, 14 Abb. E". S. 288. An assignment of his salary by a fireman in the city of New York is invalid, and where the assignor promises to collect the salary and turn over the amount immediately to the as- signee, an action for conversion cannot be based upon his retention ASSIGNMENTS. Yll of the money. Mercantile Fincunce Co. v. Welsh, 91 N. T. Supp. 723. This is upon the ground that it would be against public pol- icy to permit a public officer to dispose of, in advance, the emolu- ments of the office, which furnish an incentive to care, diligence and zeal in the discharge of his official obligations. But the fact that unearned fees or salaries give no present right of action does not affect the question of assignability, as expectancies as well as existing rights of action may be assigned, and the rights of the as- signee will be protected and enforced at law. Devlin v. Mayor, 63 N. Y. 8 ; Field v. Mayor, 6 N. Y. 1Y9 ; Hall v. Buffalo, 2 Abb. Ct. App. 301, 1 Keyes, 193 ; Storer v. Eycleshimer, 46 Barb. 84, 3 Keyes, 620, 4 Abb. Ct. App. 306 ; Kinyon v. Kinyon, 72 Hun, 452. The assignment of a contract with a municipal corporation, with the assent of the proper authorities, is not against public pol- icy so long as the municipality retains the personal obligation of the original contractor and his sureties for its faithful perform- ance. Devlin v. Mayor, 63 N. Y. 8. A mere lien upon propery which is retained in the possession of the assignor is not assignable. Wing v. Griffin, 1 E. D. Smith, 162. A special guaranty is not assignable until a right of action has arisen upon it. Evansville Nat. Bank v. Kaufmann, 93 IST. Y. 273; Brumm v. Gilbert, 50 App. Div. 430. A right to re-enter for a breach of a condition subsequent is not assignable to or enforceable by one not vested with the reversionary estate. Kelly V. Smith, 45 St. Eep. 49. A mere license under a patent is not assignable. Tuttle v. La Dow, 54 Hun, 149. The assignment of a play before it is written is invalid, and passes no title or interest to the assignee. Daly v. Stetson, 54 Super. Ct. 202, 10 St. Eep. 453. A trademark which has been in use upon a brand of cigars cannot pass by assignment to one who does not succeed to the busi- ness or its good will, and such assignment will not authorize an action to enjoin infringement and for an accounting. Folk v. American West Indes Trading Co. 180 IST. Y. 445. The right to file a mechanics lien is not assignable, under Lien Law, section 2. Tisdale Lumier Co. v. Bead Bealty Co. 138 IST. Y. Supp. 829. A person cannot assign a debt against himself to another. And where one member of a firm assigned "all his interest in and to the property, goods, wares and merchandise and debts belonging to the firm," to a third person, who was not a member of the firm, it was held, that a debt owing by the assignor to the firm, of which he was a member, did not pass by such assignment. Van Scoter 712 ASSIGNMENTS. V. Lejferts, 11 Barb. 140. An action for the breach of a covenant running with the land, is properly brought by an assignee of the lessor, or the person who owns the land at the time the covenant is broken. Beach v. Barons, 13 Barb. 306. A contract which provides for the payment of a specified sum, annually, to two persons named, during the life of the one living longest gives a right of action to the survivor which is assign- able. Prindle v. Caruthers, 15 IST. Y. 425. The stockholders of a company have a legal right 'to claim to be refunded the amount of such subscriptions as they have paid in for a purpose which has failed, and it is a cause of action arising upon contract, which is assignable. Peckham v. Smith, 9 How. 436. A condi- tional agreement between the assignor and the assignee, that they would share the amount of the recovery equally, if the claim was collected, does not require that the assignor should be a co-plaintiff in an action to recover upon such assigned claim, if the assignment was in writing and was absolute on its face. Durgin v. Ireland, 14 IST. Y. 322. So where the indorser of a note purchased it upon an agree- ment that the consideration to be paid for it should not be pay- able until the note was collected, it was held that the title to the note passed, and that the action upon the note was properly brought by such indorsee or assignee. Cummings v. Morris, 25 N. Y. 625. A claim for unliquidated damages, which arose from a breach of an agreement to employ and pay the assignor for working as a mechanic, is assignable ; and the action must be brought in the name of the assignee. Monahan v. Story, 2 E. D. Smith, 393. Such a claim is a chose in action. Ih. So where a landlord is guilty of a breach of his covenant in a lease, by not allowing his tenant the privilege of using Croton water, as he had agreed, the cause of action is assignable. Munson v. Riley, 2 E. D. Smith, 130. Where a vendor is guilty of a breach of his contract to deliver merchandise, by the non-delivery thereof, the cause of action may be assigned after the breach, and the assignee may sue in his own name. Dana v. Fiedler, 1 E. D. Smith, 464; S. C. 12 IST. Y. 40. The balance due upon an unsettled account is assignable (Allen V. Smith, 16 'N. Y. 415), and a balance in a bank standing to the credit of a person trading under a fictitious name may be assigned imder that name and will give a right of action to the assignee ASSIGNMENTS. 713 against the bank refusing to pay over such balance. Jajfe v. Bowery Bank, 31 Misc. 778. A valid assignment of a part of an entire debt or obligation can be made, and may be enforced on the equity side of the court on making the assignor as well as the debtor a party. Bisley v. Phcenix Bank, 83 N. Y. 318 ; Cham- bers V. Lancaster, 160 K Y. 342. A judgment for any cause of action, vsrhether contract or tort, is assignable; but if reversed or vacated, will give the assignee no interest in the cause of action unless the latter was transfer- able before the judgment was recovered. Pulver v. Harris, 52 ]Sr. Y. 73. A verdict, though recovered for a personal tort, is assignable. Zoghaum v. Parker, 66 Barb. 341, 55 E". Y. 120. § 2. Bequisites of an Assignment. An assignment of a cause of action will be valid, and it will transfer a right of action in the name of the assignee, though made without any consideration. Bichardson v. Mead, 27 Barb. 178 ; Arthur v. Brooks, 14 Barb. 533 ; Clark v. Downing, 1 E. D. Smith, 406 ; Beach v. Baymond, 2 E. D. Smith, 497. An assignor may give a demand to his assignee, or sell it to him for an inadequate consideration, or without any considera- tion; and if there is a valid transfer as against the assignor, so that the assignee holds the legal title to the demand, the latter is the real party in interest under the statute and may maintain an action upon the demand in his own name. In an action upon an assigned demand, the defendant has no legal interest to inquire further than to ascertain that there was a valid transfer of the demand, passing the legal title to the assignee, so that a recovery by the latter would protect the defendant against any claim that can be made by the assignor. Sheridan v. Mayor, 68 E". Y. 30; McKeage v. Hanover Fire Ins. Co. 81 JST. Y. 38 ; Peck v. Yorks, 75 N. Y. 421 ; Hays v. Haihom, 74 N. Y. 486 ; Stone v. Frost, 61 N. Y. 614. And see Livingston v. Spero, 18 Misc. 243 ; Cos- tello V. Herhst, id. 176. An inquiry as to the consideration paid and whether the as- signment was only colorable as between the parties may become material when the rights of creditors are involved, or where the defendant claims the right to interpose some defense or counter- claim against the assignor. Sheridan v. Mayor, 68 IST. Y. 30. In an action by a married woman to recover upon a claim for 714 ASSIGNMENTS. work, labor and services assigned to her by her husband, the de- fendant cannot question the validity of the assignment where the rights of creditors are not in question. Seymour v. Fellows, 77 IST. Y. 178. So where a claim for rent has been assigned by an instrument under seal, the assignment being valid as against the lessor, the lessee has no legal interest to inquire into the circum- stances under which it was made. O'Brien v. Smith, 37 St. Rep. 41. An assignee holding the legal title to a chose in action by a written instrument valid on its face, is the real party in interest, although others may have a beneficial interest in the pro- ceeds, and even though he would be liable to them as their debtor, under his contract with them, for the amount realized. Allen v. Brown, 44 N. Y. 228. Nearly every chose in action may be assigned or transferred orally and by delivery without any writing. Hanes v. Sachett, 56 App. Div. 610, 613. This is the rule in respect to an assig-n- ment and transfer of a non-negotiable note for the payment of money upon a contingency {Loftvs v. Clark, 1 Hilt. 310; Pres- cott V. Hull, 17 Johns. 284) ; of contracts under seal {Horner V. Wood, 15 Barb. 371) ; of a mortgage of real estate {Green v. Hart, 1 Johns. 580) ; of a chattel mortgage {Langdon v. Buel, 9 Wend. 80) ; of a judgment {Briggs v. Dorr, 19 Johns. 95 ; Ford V. Stuart, 19 Johns. 342) ; or of an account or part of a debt. Risley v. Phoenix Bank, 83 N. Y. 318. But a person hav- ing an indivisible claim against four persons cannot assign the claim as against two so as to give his assignee a right to recover the entire demand in an action against the two. Mulford v. Hodges, 10 Hun, 79. So a joint cause of action vested in two or more cannot be split up into several at the option of those in whom it is vested ; so as to give separate assignees of the demand the right to maintain separate actions for each part. Coster v. iV^. Y. & Erie B. B. Co. 6 Duer, 46, 47. The delivery of a life insurance policy by the insured to his wife, who thereafter paid the premiums thereon, will authorize a court or jury to find both a gift and assignment of the policy, and that the wife became vested with the legal title thereto, al- though the policy contained a condition that the policy should not be assigned unless in writing. Failure to comply with one con- dition will not defeat the vesting of the legal title in the as- signee. Griffin v. Prudential Ins. Co. 43 App. Div. 499. See Marcus v. St. Louis Mut. Life Ins. Co. 68 N. Y. 625. ASSIGNMENTS. 715 § 3. What Passes to the Assignee under the Assignment. The Personal Property Law, chapter 41, section 41, subd. 3, of the Consolidated Laws, provides as follows: "Where a claim or demand can be transferred the transfer thereof passes an interest which the transferee may enforce by an action or special proceed- ing or interpose as a defense or counterclaim in his own name as the transferrer might have done; subject to any defense or coun- terclaim existing against the transferrer before notice of the trans- fer, or against the transferee. But this section does not apply ■where the rights or liabilities of a party to a claim or demand which is transferred are regulated by special provision of law ; nor does it vary the rights or liabilities of a party to a negotiable in- strument which is transferred." Where a debt is assigned, the assignment carries with it all the collateral securities held by the assignor for its collection, al- though they are not mentioned or referred to in the assignment; upon the ground that in such eases the securities are incidents to the debt, which is the principal. Parmelee v. Dann, 23 Barb. 461, 463; Rose v. BaJcer, 13 Barb. 230; Freeman v. Auld, 44 N. Y. 50, 57. An assignment of a judgment necessarily carries the debt as they are inseparable (Ih.j Bolen v. Crosby, 49 N. T. 183; Reed V. Lozier, 48 Hun, 50; Pier v. George, 20 Hun, 210), and if the •debt is secured by mortgage, the assignment of the judgment car- ries the mortgage interest. Pattison v. Hull, 9 Cow. 747. The assignment of a contract by a sub-contractor assigns an order drawn by the principal contractor upon the employer, and its .acceptance. Gallagher v. Nichols, 60 N. Y. 438. Where a mortgage is assigned and taken as a mere collateral security for the performance of a contract to convey real estate, an assignment of the contract will carry with it the mortgage, although it was not mentioned in the assignment of the contract. Wyman V. Smead, 31 How. 1. The assignment of a bond or debt secured by a mortgage passes the interest of the mortgagee to the assignee. Jackson v. Blodget, 5 Cow. 202 ; Langdon v. Buel, 9 Wend. 80 ; Freeman v. Auld, 44 JST. Y. 50, 57. The transfer of a note or ■draft, invalid by reason of a statutory prohibition, carries with it a claim for money had and received, arising out of the trans- .action for which the note or draft was given. Ontario Bank v. Oneida County Bank, 21 IST. Y. 490; Allen v. Brown, 44 N. Y. 716 ASSIGNMEISTTS. 228. And the assignment of a part of a debt entitles the assignee to a fro rata interest in the collaterals as incident, whether men- tioned in the assignment or not. Dorsheimer v. Nichols^ 1 Abb. Ct. App. 519, 2 Keyes, 260. The owner of stock taken by him as executor may, by an assignment in his individual name, trans- fer the stock to a third person and give a valid title thereto. Patchen v. Wilson, 4 Hill, 57; Nichols v. Smith, 7 Hun, 580; Mahaney v. Walsh, 16 App. Div. 601. And an assignment of stock will carry with it a right of action for its conversion. lb.; Birdsall v. Davenport, 43 Hun, 555. And, generally, the assign- ment of the property in an article transfers a right of action for its conversion while in the hands of the assignor. Weissenstein v. Ellas, 14 Hun, 533 ; McKee v. Jvdd, 12 IST. T. 622. So a promise made by one person, for a valuable consideration paid by another, to pay the debts of. the latter, is in legal effect a promise to pay creditors who are such at the time the promise is made ; and they acquire thereby an additional security for the payment of their debts which will pass as an incident on assignment of one of the debts secured. Barlow v. Myers, 64 E". Y. 41. The assignment of a bond and mortgage gives to the assignee the benefit of a guaranty of payment or collection by a previous assignor, together with the right to sue upon the guaranty, al- though the guaranty is not in terms transferred with the princi- pal obligations. Craig v. Parkis, 40 1^. Y. 181 ; Claflin v. Ostrom, 54 N. Y. 581 ; Stillman v. Northrup, 109 IST. Y. 473. But the assignee of a mortgage, who takes it by assignment absolute in form, takes it subject to all the defenses, legal and equitable, which the mortgagor had against its enforcement by the assignor at the time of the assignment. Hill v. Hoole, 116 JST. Y. 299 ; Fairbanks v. Sargent, 140 IST. Y. 108; again, 4 IST. Y. Supp. 162 ; 21 St. Eep. 875; Bvsh v. Lathrop, 22 W. Y. 535; Greene v. War- wick, 64 ]Sr. Y. 220 ; Bennett v. Bates, 94 K Y. 354, 363 ; Schafer V. Reilly, 50 K Y. 61; Davis v. Bechstein, 69 IST. Y. 440; Crane V. Turner, 67 K Y. 437; Reid v. Sprague, 72 K Y. 457; Gray V. Green, 77 IST. Y 615. The assignee takes the mortgage subject not only to all the equities existing between the parties to the in- strument, but to the equities which third parties could enforce against the assignor. Trustees of Union College v. Wheeler, 61 J^.Y. 88 ; Greene v. Warwick, 64 IST. Y. 220 ; Schafer v. Reilly, 50 ]Sr. Y. 61; Stevenson Brewing Co. v. Iba, 155 IST. Y. 224. Where two mortgagees, whether of chattels or land, enter into an. ASSIGNMENTS. 717 agreement as to the priority or equality of the liens of their re- spective mortgages, and one of them has first filed or recorded his mortgage and then assigned it to a stranger to the agreement, who takes the assignment in good faith and for value, the mortgage in the hands of such assignee will acquire no preference by reason of priority in time of filing or recording, as the assignor, being a party to the agreement, could not claim such preference, and his as- signee takes it subject to all equities existing against the mortgage in the hands of the assignor. Decker v. Boice, 83 N. Y. 215 ; Ste- venson Brewing Co. v. Iha, 155 IST. Y. 244. The true test as to the rights of the assignee of a mortgage is to inquire what the mort- gagee can do by way of enforcing the mortgage against the property mortgaged, and what he can do the assignee can do and no more. Crane v. Turner, 67 N. Y. 437; Greene v. Warwick, 64 IST. Y. 220 ; Rapf v. Oottleib, 142 N. Y. 164. The want of consideration is equally available as a defense against the assignee as against his assignor. Briggs v. Longford, 107 N. Y. 680; Hill v. Hoole, 116 ]Sr. Y. 299. So of the defense of payment (Bennett v. Bates, 94 N. Y. 354) or release of part of the mortgaged premises. Frear V. Sweat, 4 St. Eep. 877. The assignee of a judgment takes it subject to defenses existing against his assignor. French v. Ste- venson, 32 St. Eep. 766; Waring v. Loder, 53 N. Y. 581. The same rule applies to the assignment of all other choses in action except as the rule may be modified in some particular by statute or the law merchant. By the language of the statute the interest which the transferee acquires is "subject to any defense or coun- terclaim existing against the transferor, before notice of the trans- fer, or against the transferee." This section of the statute must be read in connection with sections 501 and 502 of the Code of Civil Procedure, which are applicable to a justice's court, when the nature of the counterclaim is such that a justice would have jur- isdiction of a cause of action founded thereon. Code Civil Pro- cedure, § 2945. See Beckwith v. Union Bank of N. Y. 9 E". Y. 311. An assignment of a claim which has been paid is a nullity. Cochran v. Shemum, 5 Duer, 13. And an assignment of a de- mand to a plaintiff who has already commenced an action thereon will not sustain the action. Oarrigue v. Loescher, 3 Bosw. 578. And see Lawrence v. Congregational Church, 164 IST. Y. 115, 119. Where a cause of action has been assigned by a writing, it may be reassigned without a writing ; and if the assignee surrenders the 718 ASSIGNMENTS. written assignment to the assignor with the understanding that the- assignment is to be from thenceforth void, and the assignor ac- cepts the return of the writing with the same understanding, this; will operate as a reassignment of the claim. Ball v. Larhin, 3 E. D. Smith, 555. In an action brought by the original owner after an assignment and reassignment of a claim, the original as- signment need not be proved as it is a matter in which the defend- ant has no interest except to protect himself against a recovery by a party not entitled to the demand and another suit by the true owner. Washoe Tool Mfg. Go. v. Hibernia Fire Ins. Co. 7 Hun, 74. And where an actionals brought by an assignee of a claim or demand, and on the trial produces a written assignment which vests in him the legal title to the claim and cause of action, he is not bound to offer proof of the existence of a debt as a part of his case, although the assignment is as security for a debt. The state of the account between the plaintiff and his assignor does not con- cern the defendant ; or, if it does, the burden is upon the defend- ant to establish such a state of facts as would render the assign- ment inoperative, or reinvest the assignor in equity with the bene- ficial ownership of the claim. Lawrence v. Congregational Church, 164 K Y. 115. § 4. Notice of the Assignment. It is the duty of the assignee of a non-negotiable chose in ac- tion to notify the debtor of the assignment if he would protect himself against a payment by the debtor to the original creditor. TIeermans v. Ellsworth, 64 W. Y. 159. The assignee of a chose in action who takes it as collateral se- curity for a debt, has a power coupled with an interest, and will be protected as an assignee against the release of his assignor, made after notice to the debtor of the assignment. Wheeler v. Wheeler, 9 Cow. 34. But it is a general and well-established rule that the assignee of a demand is not protected against the subse- quent dealings of the assignor with the debtor where the latter acts in good faith. Huntington v. Potter, 32 Barb. 300. See Lynch V. Johnson, 46 Barb. 56. A release by a mortgagee after assign- ment of the mortgage, to one acting in good faith and without notice of the assignment, is valid, and as effective to discharge the mortgage as if executed by the assignee. Trustees of Union Col- lege V. Wheeler, 61 N. Y. 8S. A mortgagor may continue to deal ASSIGNMENTS. 719 with the mortgagee in making payments until he has received notice of the assignment of the mortgage, or notice of facts suffi- cient to put him on inquiry as to the continuance of the mort- gagee's title. When he has received notice of such facts, then it becomes a question of good faith. If he has received notice of facts which would enable him, if he made the requisite inquiry, to ascertain the truth, then he is bound to make such inquiry, and if he omits to do so he is chargeable with bad faith and is not thereafter protected in making payments to the mortgagee. Heer- mans v. Ellsworth, 64 IST. Y. 159 ; Van Kewren v. Gorhins, 66 N. Y. 77 ; Stoddard v. Gailor, 90 N. Y. 575. The recording of an assignment of a mortgage is not in itself a notice of such as- signment to a mortgagor, his heirs or personal representatives, so as to invalidate a payment made by either of them to the mort- gagee. But the recording of the assignment is constructive notice to all persons of the rights of the assignee, save as excepted by the statute. The recording of the assignment furnishes protection against any subsequent assignment of the same mortgage or any unauthorized discharge, and is notice that the right of the mort- gagee are gone, and that he can neither assign or discharge the instrument. Viele v. Judson., 82 IST. Y. 32. Therefore, in an action to foreclose a mortgage brought by an assignee whose assignment was on record, a purchaser of the equity of redemption cannot successfully set up payments made by him to the mortgagee sub- sequent to the recording of the assignment. Brewster v. Games, 103 N. Y. 556. Payment by the debtor after notice of the assign- ment will not affect the rights of the assignee. Field v. Mayor,. e^c. o/i\^.r. 6 KY. 179. But an assignee of a demand is not without a remedy against his assignor, where the latter, after receiving a valuable consider- tion for the assignment, so deals with the debtor as to render the demand worthless in the hands of the assignee. Thus, if a per- son for a valuable consideration assign a judgment to another and afterwards satisfies it, he is liable to his assignee for the amount of the judgment in case the satisfaction piece was given upon payment, and for the damages sustained, if it was given without payment and the assignee is prejudiced thereby. Booth V. Farmers & Mechmiics' Nat. Bank, 50 'N. Y. 396. The doctrine has been laid down in the courts of other States, that to perfect an assignment of a chose in action as against bona fide creditors of the assignor, notice of the assignment must be 720 ASSIGNMENTS. given to the debtor within a reasonable time, and that unless given, creditors may attach and acquire a valid lien. But a different rule seems to prevail in this State. See Columbia Bank v. Equi- table Assurance Society, 61 App. Div. 594; Williams ^. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 IST. Y. 108 j Fortunato V. Patten, 147 N. Y. 277. SALE. 721 CHAPTEE XVI. Saxe. § 1. What Constitutes a Sale. The provisions of the statutes of this state relating to sales of personal property, are embraced in the Personal Property Law, Consolidated Laws, chapter, 41, Laws of 1909, chapter 45, and the amendments thereto passed in 1911, being chapter 571 of the Laws of 1911. Section 82 of the statute defines sales and eon- tracts to sell, as follows : 1. A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. 3. A contract to sell or a sale may be absolute or conditional. 4. There may be -a contract to sell or a sale between the part owner and another. An agreement to barter or exchange property is not in strictness a sale, but an exchange. The rules of law, however, are alike in all eases, 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 agrees to accept of property instead of money as an equivalent for the property transferred. 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. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and by his actual require- ments, at the time of delivery. Laws 1911, chapter 571, section 83. Subject to the provisions of this article and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in 46 722 SALE, writing and partly by word of moutli, or may be inferred by the conduct of the parties. Id. Section 84. It is not always easy to determine whether a 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 instead of a sale of it, and this distinction is sometimes of very great importance to the rights of the contract- ing 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 shall 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 bail- ment of property. The defendants having received a quantity of leather from the plaintiff, gave a receipt in these words : "Re- ceived the following leather, &c., 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. WickTia-m, 14 Johns. 167. Written acceptance of an offer to sell a carload of flour and an acknowledg- ment of such acceptance containing certain specific terms in favor of the buyer, was held to establish a complete contract of sale, for a breach of which the buyer was liable. Sheffield-King Milling Co. V. Gilliland, 125 N. Y. Supp. 284. The defendant, who owned a flouring and custom mill, con- tracted to "take" the wheat of the plaintiffs' which was to be of good merchantable 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 war- rant it to pass inspection; one-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 delivering the flour. Norton v. Woodruff, 2 N. T. 153, and note, Id. 58«. SALE. 723 So, where a contract was made between a miller and other per- sons, for the manufacture of wheat into flour, he engaging on his part for every four bushels and fifty-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 that 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. Smith v. Clarh, 21 Wend. 83 ; BaJcer v. Woodruff, 2 Barb. 520. The owner of a farm leased 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 provided that cows of equal age and quality should 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 sell them. Carpenter v. Griffin, 9 Paige, 310; Wilson v. Fin- ney, 13 Johns. 358. A receipt in these words : "Eec'd of J. W. 3 barrels of white- fish, to be paid for when sold, at six dollars per barrel," is evi- dence of a sale of the fish, at the price specified, and not a hail- ment. And after a lapse of three years and a half a sale of the fish will be presumed 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 Mallory v. Willis, 4 N. Y. 76, 90 ; Baher v. Wood- ruff, 2 Barb. 520, 524, *S'. C. 2 N. Y. 163, 157. § 2. What is a Bailment Instead of a Sale. There is 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 two dollars 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 operated 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 724 SALE. 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 per- son, 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.. The plaintiff 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 196 pounds of superfine flour, packed in barrels to be furnished by the plaintiffs, for every four bushels and flf teen 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 "of- fals 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. T. 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 return of a manufactured article of equal value, then it is one of sale, and the title of the raw material is changed. Foster v. Pettihone, 7 IST. Y. 433 ; Hyde v. Gookson, 21 Barb. 92 ; Smith V. James, 7 Cow. 328 ; Bightm^yer v. Raymond, 12 Wend. 51 ; Pierce v. Schench, 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 ac- count, etc., is to use the wagon and sleigh of the person who fur- nishes the goods in making the sales, the transaction is a bailment 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. 725 sale, the true test is, must the identical thing delivered, even in an altered form, be returned ? If so, the contract is one of bail- ment and not of sale, and the title to the property is not changed ; but when there is no obligation to restore the specific article, and the receiver is at liberty to restore another thing of equal value, he becomes a debtor to make the return, and the title to the prop- erty is changed. Such a transaction is a sale. Mallory v. Willis, 4 N. Y. 76, 85 ; Foster v. Pettihone, 7 K Y. 431 ; Marsh v. Rich- ards, 3 Hun, 550. § 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. However, under section 44 of the Personal Property Law, prohibiting the transfer of a stock of goods in bulk, without notice to creditors, such transfer is pre- sumptively fraudulent as against a transferee who knows that the person from whom he purchased acquired the whole stock in bulk. Seeman v. Levine, 121 E". Y. Supp. 645. Personal Property Law, chapter 41 ; Consolidated Laws, Laws 1909, chapter 45, section 44. Where a person who has sold cattle at a fixed price per pound, the weight to be afterwards ascertained, voluntarily 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 property to market, and the sum thus agreed on is paid to him ; he cannot afterwards in the absence of any fraud on the part of the purchaser, maintain an action against him, to recover the difference between the gross sum received, and the value of the cattle by weight, at the price originally stipulated ; and even though the pur- chaser 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 constitute a fraud for which an action will lie, so long as the purchaser neither says, nor does anything 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 in- terest in all the assets belonging to his partnership, suffices to pass 726 SALE. an item of assets, the existence of which was unknown to the par- ties. Cram v. Union Bank, 42 Barb. 426; 1 Abb. Ct. App. 461; 4 Keyes, 558. Thus, W. bought out all the interest of M. in the property of the firm of E. & M., and then formed a partner- ship with E., 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 parties were ignorant at the time, became the partnership property of the new firm W. & R. lb. See also Albright v. Voorhies, 36 Hun, 437; Americwn Type- founders Co. V. Connor, 6 Misc. 391. But where a contract of this nature is made upon an assumed state of facts in relation to which there is a mutual mistake, the contract is not binding. And 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 measured out in pursuance of the agreement, and the parties both assumed that a given num- ber 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 measured out, was founded upon a mutual mistake of the parties, in estimating that the tallies of the measuring agent represented half bushels, and not whole bushels, in consequence of which er- ror, 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; and it was held, that the purchaser was entitled to recover the money which he had overpaid in consequence of the mistake. WTieadon v. Olds, 20 Wend. 174. And see Scott v. Warner, 2 Lans. 49 ; George v. Tall- man, 5 Lans. 392 ; Calkins v. Griswold, 11 Hun, 208 ; Graves v. BrinJcerhoff, 4 Id. 305. § 4. Requisites of a Valid Sale. To constitute a valid sale several things are necessary. There must be proper parties; a thing which is the object of the con- tract ; a price agreed upon or a price to be regulated by the actual value, and the consent of the parties to the contract. See Gard- ner V. Lane, 12 Allen, 39 ; Butler v. Thompson, 92 TJ. S. 412. There cannot be a valid contract of sale unless it is made by per- SALE. 727 sons who have legal capacity to make a contract. The general rule is, that all persons of full age and of sound mind can make a valid contract. Personal Property Law, chapter 45, Laws 1909, section 83 ; Consolidated Laws, chapter 41. There are some in- stances in which contracts for the sale of necessaries may be en- forced against infants. Id. The general principles relating to the capacity to enter into contracts, the assent of the parties to the contract and the consideration necessary to support a contract, have been considered in the chapter treating of contracts generally. In order to make a valid contract of sale there must be a meet- ing of the minds of the parties on all the essential matters em- braced in the transaction. So long; as there remains anv of the material conditions of a contract to be settled and agreed upon, no binding agreement exists. There must be an offer by one party and an acceptance by the other. Until offer is made by one party, complete and definite in all material terms, it is not pos- sible for the other to make a valid contract by an acceptance of the incomplete proposition. Schnedady Stove Co. v. Holbrooh, 101 N. Y. 45. The offer must not only be complete in itself, but the acceptance must be as broad as the offer and without qualifi- cation. Until there is such an acceptance some of the material conditions of the contract remain to be settled and agreed upon and there is no contract of sale. Uhlman v. Day^ 38 Hun, 298. There is no contract of sale if there is a material difference be- tween 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. Clark, 2 Sandf. 133. And where the contract is a verbal one, and the parties disagree as to a material portion of the terms of such contract, 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 assent to the terms of the con- tract 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 determine the rights of the parties ; since, in that case, the price will be due immediately, in the absence of any agree- ment to give a credit; and the value will be determined by the 728 SALE. 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. Thus, 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 furnish the mantels. The defendant addressed a note to B., saying, "I want mantels for my house precisely like those ordered by Mr. Burton from Messrs. Murphy & Diamond, also tiling. Will you have the same ordered at once ?" This note was delivered by B. to the plaintiffs (Murphy & Diamond), who furnished the man- tels, 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. Beebe v. Bobert, 12 Wend. 413 ; Nelson v. Cowing, 6 Hill, 336; Andrews v. Kneeland, 6 Cow. 354; Holman V. Dord, 12 Barb. 336 ; MiTbwrn v. Belloni, 34 Barb. 607. The principles and authorities relating to purchases and sales by agents will be found stated or cited in the chapter devoted to the subject of agency. Contracts in reference to sales of personal property may relate to property then in existence, or to articles which are to be sub- sequently procured or manufactured. Some agreements transfer the title at once, and others provide for a future transfer of the title. "The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the mak- SALE. 72& ing of the contract to sell, in this article called "future goods.'^ 2. There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may not happen. 3. Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell goods." Per- sonal Property Law, section 86 ; Consolidated Laws, chapter 41 ; Laws 1909, chapter 45. "There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. 2. In case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in mass, and though the number, weight or measure of the goods in mass is undetermined. By such a sale the buyer be- comes the owner in common of such a share of the mass as the number, weight or measure bears to the number, weight or meas- ure of the mass. If the mass contains less than the number, weight or measure bought, , the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from simi- lar goods unless a contrary intent appears. Id. section 87. § 5. Must be a Subject-matter of Sale. When the parties are negotiating in relation to property which is supposed to be in existence, and with the intention of transfer- ring the title immediately, it is important 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 mak- ing the contract is destroyed by fire or otherwise, the contract will be entirely void, if the parties were ignorant of the death or destruction of the property at the time of making the contract. "Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void. 2. Where the parties purport to sell specified goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option 730 SALE. treat the sale (a) as avoided, or (b) as transferring the property in all of the existing goods or in so much thereof as may not have deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible, or to pay the agreed price for the goods in which the property passes if the sale was divisible." Id. sec- tion 88. 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. ISTothing less than a full performance of the contract on his part will be excused in such a case. 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 purchaser might elect to have that portion of the property delivered 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 perform 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 con- tract 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 SALE. 731 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 de- stroyed; and if the purchaser will accept a portion of the prop- erty, 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 sale, and that the vendor must have a present disposable interest in it, is so well settled as to have be- come elementary. Van Hoozer v. Cory, 34 Barb. 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 give during the coming year. Ib.j Andrew v. Newcomb, 32 N. Y. 417. See Conderman v. Smith, 41 Barb. 404; Deeley v. Dwight, 132 1^. Y. 59. Every species of personal property is a subject of sale ; and so are nearly all choses in action, whether arising upon contract or upon tort; though the transfer of a chose in action is more prop- erly called an assignment, than a sale. But as there are some things peculiar to the sale and transfer of choses in action, the subject has been treated in the chapter on the subject of assign- ments. § 6. Construction of Contracts of Sale. Contracts of sale, like other contracts, may be absolute or con- ditional, executory or executed, express or implied, oral or written, sealed or unsealed. Where the contract relates to the sale of property of more than fifty dollars 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. Per- sonal Property Law, section 85 ; Laws 1911, chapter 571. Con- solidated Laws, chapter 41. Other statutes may affect the validity of the contract, and the question whether or not the contract comes 732 SALE. 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 in- tention 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 expectation of becoming possessed of them at the time appointed for delivery, otherwise than by purchasing them after making the contract. Stanton v. Small, 3 Sandf. 230 ; Cassard v. Hinman, 1 Bosw. 207. But although such a contract may be valid on its face, yet if it was the intention and understanding of the parties when it was made that the goods should not be delivered, but that the differ- ence 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 speculation, but is a mere wager, and as such is void under the stat- ute. Cassard v. Hinman, 1 Bosw. 207 ; West v. Wright, 86 Hun, 436 ; Story v. Salomon, 71 IST. T. 420 ; Bigelow v. Benedict, 70 ISF. Y. 202 ; Kingbury v. Kirwan, 77 N. Y. 612. Whether such was the intention of the parties is a question of fact, which, in an action for a breach of the contract in which a defense under the statute is set up, must be determined by the jury or justice upon extrinsic evidence. Cassard v. Hinman, 1 Bosw. 207. The stat- ute in relation to stock jobbing has been repealed. Where the agreement is in writing, the intention of the parties, in a contract of sale, must be collected from the whole instru- ment ; and, in order to carry that intention into effect, the literal import of some 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. The true character of the contract, as to whether it is an executed or an executory one, depends upon the proper answer to the question, whether it was intended to vest in the purchaser a present and absolute title to the thing sold. lb. When the delivery of the SALE. Y33 tiling sold, and the payment of the price, are to be simultaneous acts, the title, until delivery or payment, remains in the seller. n. A contract made in the city of New York, for the sale of five hundred bales of cotton, to be delivered on its arrival at ISTew York from ISTevir 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 con- tract, 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 deliver 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 pigiron, of a 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. Pettie, 4 !N". Y. 122 ; Bussell V. Nicoll, 3 Wend. 112. In another reported case, the defendants had entered into an executory contract for the sale to the plaintiffs of an in- voice 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 damaged on the 734 SALE. voyage, and the residue the defendants refused to deliver, on the ground that the contract was at an end, because the vessel did not arrive vyithin 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, depending on the arrival at that time. Have- meyer v. Cunningham^ 35 Barb. 515. This case differs from Russell V. NicoU, 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 con- dition 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 classes 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, weigh- ing, etc., and the title passed without any actual delivery. Toll & McArdle, merchants in Ohio, by an agreement in writ- ing, sold to the plaintiff one hundred and seventy-four sacks of wool, containing about thirty thousand pounds, which they had previously shipped to the defendants, in New York, upon the following terms : The wool to be weighed in l^ew York by a city weigher; the plaintiff to pay all charges for transportation and insurance, and for storage and cartage in jSTew 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 plaintiff paid three thousand dollars on account, and agreed to pay the balance on the delivery of the wool to him in ISTew York. If any of the wool should have been sold by the defendants before the agree- ment was presented to them in ISTew York, the sale to the plain- tiff 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. Chapman v. Kent, 3 Duer, 224. The acceptance of an order for the delivery of a specified quan- tity of property, which is accepted by the person upon whom it is SALE. 735 drawn, does not operate to transfer the title to any particular property, nor does it operate as a sale of the article 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 six dollars a barrel, and A. delivered seven hundred 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 be- tween 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. Neilson, 3 Johns. Cas. 81 ; Top-ping v. Boot, 5 Cow. 404. When, upon the trial of a cause, it is doubtful upon the evi- dence whether a written contract for the sale of goods signed by the vendor and delivered to the purchaser, was delivered abso- lutely or conditionally, the question, as a question of fact, must be submitted to the jury or the justice in their place. Scott v. Pentz, 5 Sandf. 572. So, when the contract is a verbal one, it is a question of fact, upon all the evidence, whether the contract was executed or exec- utory. De Bidder v. McKnight, 13 Johns. 294. When a condi- tion outside of the contract is annexed to its delivery, the pur- chaser must be allowed a reasonable time for its performance, and if within that time he tenders a performance, the agreement be- comes absolute. Scott v. Pentz, 5 Sandf. 572. Where the agreement between the parties provides that pay- ment shall be made on delivery at a particular place, it may be fairly inferred that the contract is executory until such delivery. But a mere agreement on the part of the vendor to transport the goods sold, to a place named for delivery, does not render exec- utory a contract of sale otherwise completed on his part. Terry V. Wheeler, 25 N". Y. 520. Where anything remains to be done by the seller of merchandise to put the same in a deliverable shape unless it be to measure or weigh the same to fix the amount to Y36 SALE. be paid, the contract is executory and the title does not pass. Blossom V. Shatter, 59 Hun, 481, 128 I^. Y. 679. The word ''sold," in a contract of sale, does not necessarily import an exe- cuted contract. If by the terms of the contract some material act remains to be done by the seller before he can insist on mak- ing delivery or claim payment, such word is to be construed as meaning "contracted to sell," and the contract is executory. Anderson v. Reed, 106 IST. Y. 333. An order for a specified quantity of goods which is never accepted by the seller does not create a binding executory agreement, and after cancellation of such order a recovery may not he had against the buyer for failure to accept further deliveries. Auto Spring Repairer Co. v. Mutual Auto Accessories Co. 72 Misc. 402, 130 N. Y. Supp. 140. If goods are sold without any price being paid, there is an implied agreement to pay a reasonable or market price therefor. Regus v. Morgan, 29 St. Eep. 324. "The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties. 2. The price may be made payable in any personal property. 3. Where transferring or promising to transfer any interest in real estate constitutes the whole or any part of the con- sideration for transferring or promising to transfer the property in goods, this article shall not apply. 4. Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. Laws 1911, chapter 571, section 90; Personal Property Law, section 90; Consolidated Laws, chapter 41. "Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third party, and such third person without fault of the seller or the buyer cannot or does not fix the price or terms, the con- tract of sale is thereby avoided ; but if the goods or any part there- of have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. Id. section 91. 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. Pollock v. Ehle, 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. SALE. 737 Where the delivery of the thing sold, and the payment of the price, are to be simultaneous acts, the title, until delivery or pay- ment, remains in the seller. Kelley v. Upton, 5 Duer, 336.. Where, upon an agreement for the sale of property, no time of payment is specified, the legal inference is, that it is to be upon the delivery of the property {John T. Noye Mfg. Co. v. Raymond, 8 Misc. 353), and the vendor is not bound to part with his prop- erty without receiving the price. And if, in lieu of payment on delivery, security on the part of the purchaser is stipulated for, the vendor is not obliged to deliver the property until security is given. Cornwall v. Haight, 8 Barb. 328. § 7. When the Title Passes on a Contract of Sale. Contracts of sale, like any other contracts, mny be absolute, conditional, executory or executed, express or implied. When the contract is absolute and it is executed by a delivery of the prop- erty sold to the vendee, the title to such property is vested in such vendee. If the sale is conditional and the vendee is to perform some act before the title is to vest in him, such title will not pass to him until the condition is performed, unless the vendor in some manner waives the performance of the condition. The nature of the contract depends entirely upon the agreement of the par- ties. There are many instances in which not only the parties to the contract are interested in the character of the agreement, but third persons may also be affected by its nature. If the title to the property does not pass by the agreement, and there is no agreement that the vendee shall have possession of it, then the vendor is entitled to the possession of it; it is liable to seizure by his creditors; and he may transfer the title to it to a third person. On the other hand, if the title does pass, and the vendee is entitled to the possession, he may claim such possession, and enforce it by action ; the property may be seized by the creditors of the vendee ; and he may transfer the title to a third person. Where 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 nile is, that the title does not pass until a delivery of the property. Andrews v. Durant, 11 N. Y. 35 ; Comfort v. Kiersted, 26 Barb. 472 ; Hart v. Taylor, 82 IST. Y. 47 738 SALE. 373, 376 ; Butler v. Butler, 77 IST. Y. 472, 475 ; Deeley v. DwigU, 132 ]Sr. Y. 59, 64; Interstate Steamboat Co. v. First Nat. Bank, 87 Hun, 93 ; Manufacturers' Commercial Co. v. Rochester Bail- way Co. 117 N. Y. Supp. 989. "Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred." Laws 1911, chapter 571, section 99 ; Personal Property Law, section 99 ; Consolidated Laws, chapter 41. "Unless a different intention ap- pears, the following are the rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Pule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the prop- erty in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed. Pule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing is done. Pule 3. (1) : Where goods are delivered to the buyer "on sale or re- turn," or on other terms indicating an intention to make a pres- ent sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by retaining or tender- ing the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time. (2) When goods are de- livered to the buyer, on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer (a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Pule 4. (1). Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be SALE. 739 given either before or after the appropriation is made. (2.) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in cases provided for in the next rule, and in section one hundred and one. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words "collect on delivery" or their equivalents. Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been deliv- ered to the buyer or reached the place agreed upon. Laws 1911, chapter 571, section 100. Consolidated Laws, chapter 41. If it is the agreement and the intention of the parties, that the title shall pass immediately, and the property is in existence and owned by the vendor at the time of the sale, then the title will pass immediately, whether the property is delivered or not, if the contract is sufficient in legal form and effect. It is com- petent 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 ; GilbeH v. N. Y. 0. & H. B. B. B. Go. 4 Hun, 378 ; Andrews v. Durant, 11 N. T. 35, 42 ; Dexter v. Bevins, 42 Barb. 573. Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or with the sale or he may waive perform- ance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the non-performance of the condition as a breach of warranty. 2. Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted express- ly or by implication in the contract to sell as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods. Laws 1911, chapter 571, section 92 ; Consolidated Laws, chapter 41. Thus, where the sale is on condition that the 740 SALE. vendee shall give his promissory note for the purchase price, the title does not pass to the vendee until the condition has been ful- filled, although the property may have been actually delivered into his possession, unless the delivery was absolute and in completion of the contract or the vendor has waived the condition. Adams V. Roscoe Lumber Co. 2 App. Div. 47, 159 K Y. 176. So, where, on a sale of personal property it is agreed that payment therefor shall accompany or precede delivery, the title does not pass until the payment is made, unless the condition is waived. Empire State Type Founding Co. v. Grant, 114 N. Y. 40 ; Leven v. Smith, 1 Denio, 571 ; Russell v. Minor, 22 Wend. 659 ; Hammet v. Linneman, 48 N. Y. 399 ; Smith v. Lynes, 5 IST. Y. 41 ; Thompson v. Leslie, 39 St. Eep. 47; Schreyer v. Fenton, 15 App. Div. 158; Conway v. Bush, 4 Barb. 564. A contract for the purchase of a quantity of cotton at a speci- fied price per pound, deliverable thirty days from date, and pay- able on delivery, 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 towards 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 K Y. 291. The question as to whether or not the vendee of personal prop- erty has waived the condition upon the performance of which title is to vest in the purchaser is a question of fact and not of law. Where there has been a delivery of the property and a non-per- formance by the vendee of the condition upon which title was to pass, the question of waiver depends entirely upon the intention of the parties and all the circumstances attending the contract of sale and the delivery, including the course of business previously existing between the parties. Osbom v. Gantz, 60 1^. Y. 540; Parker v. Baxter, 86 N. Y. 586 ; Hall v. Stevens, 40 Hun, 578 ; Hammet v. Linneman, 48 N. Y. 399 ; Empire State Type Found- ing Co. V. Grant, 114 W. Y. 40; Smith v. Lynes, 5 E". Y. 41; Adams v. Roscoe Lumber Co. 159 IST. Y. 176. Every case must, therefore, depend upon the particular facts . and circumstances surrounding it. But there are certain presumptions that, in the absence of evidence tD the contrary, may have a controlling effect upon the determination of the question of waiver. An absolute delivery of the property to the vendee without a demand of the SALE. 741 purchase price is presumptive evidence of a waiver of the con- dition of present payment and of a lien upon the property, and of a willingness to give credit to the personal responsibility of the buyer. Osbom v. Gantz, 60 N. Y. 540, 542 ; Parker v. Bax- ter, 86 N. Y. 586 ; Wheeler & Wilson Mfg. Co. v. Keeler, 65 Hun, 508; Smith v. Lynes, 5 N. Y. 41. If the seller deliver goods without payment the title passes and trover cannot be main- tained for the goods unless they were obtained by the buyer's fraudulent contrivance. Hirsch Lumber Co. v. Hubiell, 143 App. Div. 317. The presumption may be rebutted by the acts and declarations of the parties or by the circumstances of the case. An express declaration of an intention to insist upon performance of the condition and a lien upon the goods is not necessary. The intent may be inferred from the acts of the parties and the cir- cumstances of the case and is a question of fact for the jury, or the justice, if the trial is by a justice, without a jury. lb.; Ham- met V. lAnneman, 48 N. Y. 399. 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 may resume possession of them, because he has a lien for the price, unless he waives it by giving a credit, and if, during the delivery and before it is completed, the purchaser sells or pledges the goods to a third person, for a valuable consideration, but without notice to the original vendor, the lien of the vendor will not be affected, and he may recover them from such subse- quent purchaser. Palmer v. Hand, 13 Johns. 434. Where, upon the sale and delivery of personal property the vendor receives from the purchaser the note or bill of a third person, such note or bill will be deemed to have been accepted by the vendor in payment and satisfaction until the contrary is ex- pressly proved, and the burden of proof in such case is on the vendee. Whitbeck v. Van Ness, 11 Johns. 408 ; Oibson v. Tobey, 46 1^. Y. 637. The rule rests in presumption only and is subject to modification by attending circumstances. Hall v. Stevens, 40 Hun, 578. In the following early cases the question of waiver of condition was considered. 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 742 SALE. vendee may sell the goods to one of his creditors in payment o£ his debt and his title will be superior 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 re- quiring the notes or annexing any condition to the delivery, such delivery is a waiver of the obligation, which otherwise the vendee must have complied with before he could have demanded the goods, and the vendee becomes absolute owner. Lupin v. Maries, 6 Wend. 77. 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. Ih. Where the memorandum of a contract of sale of merchandise, which was signed by a broker as the agent of the parties, con- tained a provision that the notes to be given by the purchasers should be made satisfactory 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 con- tract differs from ordinary contracts in which the sale is for cash or notes; because, in this case, a further act is necessary 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 satis- factory to the vendors. This provision will render a sale clearly and unequivocally conditional. Draper v. Jones, 11 Barb. 263. Upon 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 cart- man 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, for 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 in- quire 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 replevin against him for the taking; and it was held, SALE. 743 "that there was evidence enough to go to the jury, upon the ques- tion 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. Ih. 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 recognize and aclaiowledge the condition as still subsisting and binding upon them, this is suffi- cient to uphold the condition. J&. A sale of lumber on credit, and a conditional delivery of it to the purchaser for transportation by him, and a delivery to con- signees 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 IST. Y. 374. 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 dupli- cate measurer's return or certificate of the quantity, and a bill for the wheat at the contract price, and the seller thereupon re- quests payment from the buyer, who answers that he will 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, ad- vancing 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 fails after obtaining such advance, and thus becomes unable to pay to the seller any of the contract price. Durhrow v. McDonald, 5 Bosw. 130. Ordinarily, in the sale of personal property, where some act of -the vendor is required to complete delivery, such as counting, weighing, or measuring to ascertain the quantity, quality, or identity of the goods sold, no title passes until such weighing. 744 SALE. measuring, or counting takes place. Dexter v. Bevins, 42 Barb. 573 ; Downer v. Thompson, 2 Hill, 137 ; M'Donald v. Hewitt, 15 Johns. 349 ; Ward v. Shaw, 7 Wend. 404 ; Rapelye v. Machie, 6 Cow. 250. But this rule is subject to the qualification of the other rule above stated, that the parties may, by their agreement, pro- vide that the title shall pass M^ithout the formalities of counting, weighing, or measuring; and when this intention is clearly mani- fested the title will be held to pass without the performance of these acts. Burrows v. Whitaker, 71 N. Y. 291; Olyphant v. Baker, 5 Denio, 379 ; Dexter v. Bevins, 42 Barb. 573 ; Keeler v. Vanderveer, 5 Lans. 313. The rule has no application where the number of the particular articles sold is to be ascertained for the sole purpose of determining the total value thereof at certain specified rates or at a designated fixed price. If the goods sold are clearly identified, then, although it may be necessary to num- ber, measure, or weigh them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. Groat v. Gile, 51 IST. Y. 431 ; Blossom v. Shotter, 59 Hun, 481, 128 IST. Y. 679 ; Crofoot v. Bennett, 2 K Y. 258 ; Kimherly v. Patchin, 19 E". Y. 330 ; Bradley y. Wheeler, 44 K Y. '495 ; Sanger v. Waterhury, 116 K Y. 371. Thus, where the plaintiff sold to the defendant a quantity of barley in a store house at a certain price per bushel, and it was to be weighed, or taken at the weight stated on plaintiff's books, as the defendant might choose, and the plaintiff afterwards pre- sented a bill stating the aggregate amount of the purchase money, upon which the defendant made a partial payment and acquisced in the statement of the amount; it was held, that the quantity of barley being thus ascertained, nothing further remained to be done, and that the title to the barley had passed to the defendant. Olyphant v. Baker, 5 Denio, 379. Where on the sale of a parcel of barley in the vendor's storehouse at so much per bushel, the quantity to be subsequently ascertained, the vendor agreed that it might remain there until a future day named, when his right to the possession of the storehouse would pass to another person; and the vendee agreed with the party who was to succeed to the possession of the building, for the storage of the grain after the day mentioned, and after such change of possession, the building, with the grain, was destroyed by fire; it was held, that there had been a delivery, that the title had passed, and that the loss fell on the vendee. lb. Upon a sale of a specified quantity of grain, its separation SALE. 745 from a mass, indistinguishable in quantity or value, in which it is included, is not necessary to pass the title, when the intention to do so is otherwise clearly manifested; and where the owner of wheat, lying in mass in his warehouse, sold six thousand bushels thereof for a specified price, and executed to the vendee a receipt, acknowledging himself to hold the wheat subject to the pur- chaser's order, it was held that the title passed to the purchaser, and that he could maintain an action against any person who unlawfully converted it to his own use. Kimherly v. Patchin, 19 N. Y. 330. But where, in an action upon a contract which read, "Bo't of H. Moore, 1,000 flour barrels," and by which the vendor agreed to deliver them at any time, prior to a certain period, in good order, to the vendee, the one thousand barrels being a part of a larger number, and the price agreed upon having been paid, it was held, that the contract gave no present title or property to the vendee, until the particular barrels had been ascertained and identified and delivered to the purchaser. Such a contract is not a sale, but a special agreement to be executed in future. Field V. Moore, Hill & Denio, 418. This last case differs from the one which precedes it in this, that in that case it was evident that the parties intended that the title to the wheat should pass, and the receipt given by the vendor acknowledging that he held it in store for the vendee, was clear evidence of an intent to transfer the title. When lumber, on being sold, is piled by itself preparatory to shipping, and possession of the whole is delivered, a measurement is not necessary to vest the title in the purchaser. Tyler v. Strang, 21 Barb. 199. The owner of a brickyard, in consideration of a previous in- debtedness and of a new advance, sold, by writing, to the defend- ant, 43,000 brick, to be taken out of an unfinished kiln containing a larger quantity. He also delivered to the defendant formal possession of the yard, and agreed with him to bum the kiln, which he accordingly did, and then executed to the plaintiff a bill of sale of all the brick in the kiln, it was held that the de- fendant was entitled to take the 43,000 bricks, although they were not counted out, marked or separated from the residue, and that the plaintiff could not maintain trespass against him for such taking. Crofoot v. Bennett, 2 IST. Y. 258. See also Dows v. More- wood, 10 Barb. 183. Where hay in the stack was sold by a school district collector under a tax warrant, but it was not delivered, the quantity sold 746 SALE. being mixed witli the other hay of the owner, to be weighed off or otherwise separated from the general mass by the purchaser at a future time, it was held that the property in the hay did not pass to the purchaser. An officer who makes a judicial sale must separate the property he sells from the mass of property with which it is mixed or the title will not pass. Stevens v. Eno, 10 Barb. 95. So where a constable levied upon thirteen sheep generally, and on the day of sale the sheep of the defendant in the exceution, numbering twenty-one or twenty-two, being present, the constable offered for sale thirteen of the sheep without designating which, and on being asked by a bidder which sheep he sold, the constable replied, "the best, the fattest," it was held that the constable had no power to sell in such a manner as to authorize the purchaser to select thirteen sheep from the flock, and that the purchaser acquired no title to the sheep thus selected by him. Waring v. Loomis, 4 Barb. 484. Where A. bought the boards which were to be made out of a certain quantity of logs in the possession of B., to be paid for at a stipulated price per hundred feet when the boards should be sawed, and the boards were sawed, piled and notice given to the purchaser, it was held, considering the nature of the article sold, that the delivery was sufficient to render the sale valid, and to transfer the title to the purchaser. Bates v. ConMing, 10 Wend. 389. 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 de- livery 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 by the person upon whose account the com was stored, sufficiently manifested an intention to pass the title and render the transaction an executed contract, without actual separa- tion or delivery of the property. Russell v. Carrington, 42 N. Y. 118. This is clearly the rule in this State on a contract of sale of a certain quantity from a larger bulk uniform in kind and quality. But the rule is otherwise where the articles composing the mass are of different qualities and values, making not merely separation but selection necessary. Chapman v. Shepard, 39 Conn. 413; Eurjf v. Hires, 40 IST. J. L. 581. And in order to substitute an arrangement between the parties for a manual de- livery of a parcel of property mixed with an ascertained and SALE. 747 defined larger quantity, it must be so clearly defined tliat the pur- chaser can take it, or, if necessary, maintain replevin for it. Foot V. Marsh, 51 K Y. 288. The tendency of the modem decisions is to give effect to con- tracts of sale according to the intention of the parties to a greater extent than M'as allowed by the older eases, 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. 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 before delivery, transfers the right of property, although the price has not been paid and the thing sold has not been delivered to the purchaser. Olyphant v. Baker, 5 Denio, 379 ; Bradley v. Wheeler, 44 K Y. 495 ; Hayden v. Demets, 53 K Y. 426, 431 ; Schoon- malcer v. Vervalen, 9 Hun, 138; Groat v. Gile, 51 E". Y. 431. Except for the purposes 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 sale. Bradley v. Wheeler, 44 1^. Y. 495. "Independently of any stat- ute, any words importing a bargain, whereby the ovnier of a chat- tel signifies his willingness and consent to sell, and whereby an- other person shall signify his willingness and consent to buy it, in prcBsenti, for a specified price, would be 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 fifty dollars." Spencee, J. De Fonclear V. ShottenhirTc, 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 to ascertain the identity, quality or quantity 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. This qualification has been sufficiently noticed. It is sometimes the case that a contract of sale is made, by the terms of which, the possession of the property is delivered to the vendee, but there is an express agreement that the title thereto 748 SALE. shall not pass until the entire purchase price is paid. Such con- tracts are valid, and will be enforced between the vendor and vendee, or as against the creditors of the vendee, or purchasers, from him, with notice. In such cases, the vendee does not get any title until the purchase price is paid. Fleeman v. McKean^ 25 Barb. 474; Leven v. Smith, 1 Denio, 571; Russell v. Minoi\ 22 Wend. 659; Tuihill v. Wheeler, 6 Barb. 362. The subject of conditional sales and the recent statutes relating thereto have been considered in another chapter. In the case of sale by auction : 1. Where goods are put up for sale by auction in lots, each lot is the subject of a separate contract of sale. 2. A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such an- nouncement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the action has been announced to be without reserve. 3. A right to bid may be reserved expressly by or on behalf of the seller. 4. Where no- tice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to bid at such sale on his behalf, or for the auctioneer to employ or induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by him. Any sale contravening this rule may be treated as fraudulent by the buyer. Personal Property Law; Laws 1911, chapter 571, section 102; Consolidated Laws, chapter 41. § 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 will be- come 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 return the things received if they do not suit the per- son who receives them. When goods are sold under a contract of "sale or return," they pass to the purchaser, subject to an option in him to return them within a reasonable time, and if he fails to exercise that option within a reasonable time, the contract is discharged of the condition, the sale stands as an absolute sale, SALE. 749 and the price may be recovered in an action for goods sold and delivered. Moss v. Sweet, 16 Q. B. 493 ; Taylor v. Tillotson, 16 Wend. 494. Where a purchaser has worn a suit of clothes for thirty days it amounts to an acceptance which will prevent its return upon the ground that it does not fit. Powell v. Morrell, 121 IST. Y. Supp. 225. Where a buyer has the right to rescind a sale as to any part of the goods sold, and there is no time fixed by the contract within which he should exercise the option, it must be exercised by him within a reasonable time, and what is a rea- sonable time under the circumstances of each case is a question of fact, and where the goods are examined and accepted, the buyer cannot thereafter change his mind and reject them. Cohen v. Weinstein, 127 IST. Y. Supp. 1013. A purchaser who has retained books for a year and paid part of the purchase price is not in the position to refuse to pay the balance upon the ground that they were in a damaged condition at the time of their delivery. St. Dunstan Society v. Picard, 115 IST. Y. Supp. 1079. In such con- tracts the title passes to the purchaser, subject 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 article in as good condition as he received them, subject to any special modification which may have been made in the particular instance. Taylor v. Tillotson, 16 Wend. 494. 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 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 understanding 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 sal, 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 Ee- tum;" 1 Bell's Com., 268, 5th 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 750 SALE. 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. § 9. Sales by Persons Without Title. Under the provisions of the Personal Property Law, and subject to the provisions of Article 5 of that statute, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, un- less the owner of the goods is by his conduct precluded from deny- ing the seller's authority to sell. Nothing in this act, however, shall affect (a) the provisions of any factor's acts, recording acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof, (b) thme validity of any contract to sell or sale under any special common law or stat- utory power of sale or under the order of a court of competent jurisdiction. Laws 1911, chapter 571, section 104. If property is stolen from the owner, the thief cannot transfer any title, even to a hona fide purchaser. Hoffman v. Carow, 22 Wend. 285 ; Bassett v. Spojford, 45 IST. T. 387 ; Zink v. People, 77 K Y. 114, 121. See Pease v. Smith, 61 IST. Y. 477. The reason is this : the owner did not consent nor intend to part with the title as to his property, and a purchaser from a thief must beware of whom he purchases 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 warranty 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 vendor. But, that circumstance is not of itself sufficient to deprive the real owner of his property. A mere transfer of the possession of prop- erty is not sufficient to authorize a person to regard the possessor as the owner of the property, as against one who is its actual owner. Covill v. Hill, 4 Denio, 323. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of sale, the buyer acquires a good title to the goods, pro- SALE. 751 vided he buys them in good faith, for value, and without notice of the seller's defect of title. Laws 1911, chapter 571, section 105 ; Consolidated Laws, chapter 41. ISTo person can transfer title to another's property unless the owner has clothed him with authority, real or apparent, to do so. Ballard v. Burgett, 40 IST. Y. 314; McOoldrick v. Willets, 52 K Y. 612; Collins v. Balli, 20 Hun, 246 ; Farmers & Mechanics' Nat. Bank v. Atkinson, 74 JST. Y. 587. It is no answer to this to say that the transfer of the pos- session enables the possessor to obtain greater credit than he would otherwise have; because if a mere possession would enable the possessor to transfer a title to a hona fide purchaser, there would be no safety in bailments 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. 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 bona fide purchaser is, that public policy requires some such rule. A thief cannot transfer a title, nor can a bailee or mortgagor of property after forfeiture, unless it is the mere equity of redemption. And, it is a rule of most extensive appli- cation, that no person can transfer any greater title than he himself has to the property transferred. Anderson v. Nicholas, 5 Bosw. 121 ; Dows V. Perrin, 16 K Y. 325 ; Saltus v. Everett, 20 Wend. 267, 275 ; Covill v. Hill, 4 Denio, 323, 327 ; Brower v. Peabody, 13 E". Y. 121, 2 Kent's Com. 324, orig. pag. ; Ballard v. Burgett, 40 IST. Y. 314. There is an exception to the rule in case of bank bills and negotiable paper. An unauthorized sale of personal prop- erty, although for a valuable consideration and without notice, vests no higher title in the vendee than was possessed by the vendor. Weaver v. Burden, 49 N. Y. 286. But if the rightful owner has in- vested another with the usual evidence of title to property or an ap- parent 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 dis- position. II.; Driscoll v. West Bradley <& Cary Mfg. Co. 59 N. Y. 96 ; McNeil v. Tenth Nat. Bank, 46 N. Y. 325 ; Moore v. Metro- politam, Nat. Bank, 55 N. Y. 41 ; Armour v. Michigan Central R. R. Co. 65 ]Sr. Y. Ill; Bostwick v. Drygoods Bank, 67 Barb. 449 ; Dows v. Kidder, 84 JST. Y. 121 ; Parker v. Baxter, 86 IST. Y. 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 752 SALE. person without his assent. First. The owner must clothe the per- son assuming to dispose of the property with the apparent title to or authority to dispose of it. 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 appearance to which he trusted are not real. Barnard v. Campbellj 55 JST. Y. 456. It is only where the owner has by his own affirmative act conferred the apparent title and ownership upon another, upon the faith of which the property has been pur- chased for value, that he is precluded from asserting his real title. Davis v. Bechstein, 69 ~S. Y. 440. Property is sometimes purchased by a vendee who obtains it by practicing a gross fraud upon the vendor. In such cases a bona fide purchaser from such 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. IST. S. 370; 44 ]Sr. Y. 371 ; Hodge v. Sexton, 1 Hun, 576 ; Simpson v. Del Hoyo, 94 K Y. 189; Kelty v. Simons, 22 Week. Dig. 28. In such cases the vendor intends to part with the title, and if he is deceived he must bear the loss as against a ionw 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 perpetrate a fraud in which an innocent third person, or the orig- inal vendor, must be the 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 loss. But the owner of property tortiously taken from him is not estopped from reclaiming it by the fraudulent act of the tortious taker, to which he is not a party, or by a fraud and deception in which he has not participated, and in which he has not in any way facilitated or aided. Marine Bank v. FisJce, 71 IST. Y. 353. § 10. Delivery of the Property Sold. The question of how far the title to property sold is dependent upon delivery, has been considered in a preceding section. The cases in which a delivery of all or a portion of the goods sold is necessary to meet the requirements of the statute of frauds will be noticed in a subsequent section. There are still some ques- SALE. 753 tions to be considered in respect to the place and mode of delivery, and what will be a sufficient delivery under the contract of sale. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. Personal Property Law, Laws 1911, chapter 571, section 122. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions: that is to say, the seller must be ready and willing to give posses- sion of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for the possession of the goods. Id. section 123. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business, if he have one, and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made, were in some other place, then that sale is the place of delivery. 2. Where by a contract to sell or a sale, the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. 3. Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to de- liver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf ; but as against all others than the seller, the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall affect the operation of the issue or transfer of any document of title to goods. 4. Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. 5. Unless otherwise agreed, the ex- penses of and incidental to putting the goods into a deliverable state must be borne by the seller. Id. section 124. 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 sale. Where the goods sold are ponderous and bulky, manual delivery is unnecessary. It is enough that they are placed in the power of the vendee. Hoyden v. Demets, 53 N. Y. 426 ; 48 Y54 SALE. Stanton v. Small, 3 Sandf. 230. A tender of a warehouse receipt with an offer to pay storage and charges is sufficient. Hayden v, Demets, 53 N. Y. 426 ; Wilkes v. Ferris, 5 Johns. 835. See De Rider v. McKnight, 13 Johns. 294. The law requires such de- livery only as is consistent with 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 pur- chaser, 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 de- livery 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. 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 purchaser will say he will take iti, 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 sulficient tender, on the part of the vendor. Stanton v. Small, 3 Sandf. 230. Where the article sold is a quantity of iron, in a bonded warehouse, it is not neces- sary that it should be brought to the purchaser in order to tender a delivery ; it is sufficient that a tender be made of the permit by which it might be obtained. Dunham v. Mann, 8 N. Y. 508. The custom in the port of New York, upon the sale of grain is, that the purchaser selects a measure, and the measure so se- lected is appointed by the board of measurers to perform the duty ; and where the measurement is, in fact, made by a measure ap pointed 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 purchaser 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. McCready 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 becomes that of the purchaser. Such a bill of sale is not merely a transfer of a right of action, but of the goods them- SALE. 755 selves, and gives an immediate right to the purchaser as owner, to demand their restoration. Heine v. Anderson, 2 Duer, 318, Where the owner of wheat, lying in mass in his warehouse, sold six thousand bushels of the quantity for a specified price, and executed to the vendee a receipt, acknowledging himself to hold the wheat subject to the purchaser's order, this is a sufficient de- livery to pass the title without any other separation or delivery. Kimberly v. Patchin, 19 N. T. 330. A delivery of the receipt of the storekeeper for the goods, being the documentary evidence of the title, is tantamount to a delivery of the goods ; and so of a delivery of the key of a warehouse in which the goods sold are deposited, and either mode transfers the title to the property. Wilkes V. Ferris, 5 Johns. 335 ; Hollingworth v. Napier, 3 Caines, 182. A formal tender of delivery is excused where the vendor is ready and able to deliver and the vendee refuses to receive the goods. This amounts in law to an excuse of tender, even though there be no express waiver. Duryea v. Bonnell, 18 App. Div. 151; Lawrence v. Miller, 86 'N. Y. 131. And where under the terms of a contract, raw linseed oil, which cannot profitably be kept in barrels in storage on account of leakage, was to be tendered to the vendee "in good cooperage," but, as appeared from the correspondence between the parties was to be barreled only for delivered, it was held that the fact that the vendor had the oil in iron tanks ready to be barreled at the time of tender Avas a suffi- cient compliance with the written agreement. Mann v. Nat. Lin- seed Oil Co. 87 Hun, 558. B. having agreed to make a wagon for M., the latter gave to L. a written order upon B. for such wagon, which order B. ac- cepted and handed back to L. The wagon was afterwards de- livered to L. by B. upon the order; it was held that this was an equitable assignment of the wagon to L., and that B. could not recede from the undertaking, and maintain an action against L. for the price of the wagon. Barber v. Lyon, 22 Barb. 622. Where, on a sale of land, the vendor also agrees to purchase certain ponderous articles (a set of grist mill stones), on the prem- ises, and he then enters into possession of the land, the articles sold still remaining upon it, this is a sufficient delivery. De Bid- der V. McKnigU, 13 Johns. 294. On the 8th of December, 1848, the plaintiff bargained withW., a tanner, for the purchase of fifteen sides of harness leather. 756 SALE. which were then in W.'s shop in an unfinished state, at a certain price per pound when finished. The plaintiff paid W. thirty dollars as the probable value of the leather, and if it should ex- ceed that amount the plaintiff was as pay the excess. On the 18th of December, W. notified the plaintiff that the leather was fin- ished, and desired him to call and select the sides he had pur- chased. The next day the plaintiff went to W.'s shop and took away five sides. The plaintiff, and W.'s servant, by W.'s direc- tion, selected nine sides and put them by themselves in the middle of the shop, and some others which were hung 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 York receive an order for goods from persons 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 or- dered, and a portion of them, after being packed in boxes, is placed on board of a vessel, for transportation, the carman taking re ceipts from the master of the vessel 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 out ; or, in other words, to whom the goods shall be deliverable. And until he does so, the right of possession remains in himself. The statute provides, 1. Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwith- standing the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer. 2. Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the SALE. 757' property would have passed to tlie buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obliga- tions under the contract. 3. Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods as against the buyer. 4. Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure ac- ceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of ex- change, and if he wrongfully retains the bill of lading he acquires no added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the order of the buyer, or is endorsed in blank, or to the hwjer by the consignee named therein, one who purchases in good faith, for value, the bill of lading, or goods from the buyer will obtain the property in the goods, although the bill of exchange has not been honored, provided that such purchaser has received delivery of the bill of lading indorsed by the consignee named therein, or of the goods, without notice of the facts making the transfer wrongful. Per- sonal Property Law, Laws 1911, chapter 571, section 101. As to the delivery to a carrier on behalf of the buyer, the Personal Prop- erty Law provides : 1. Where, in pursuance of a contract to sell or a' sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in sction one hundred, rule five, or unless a contrary intention appears. 2. Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. 3. Unless other agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them 158 SALE. during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during transit. Laws 1911, chapter 571, section 127, Consolidated Laws, chapter 41. A delivery of goods to a carrier, pursuant to the direction of the purchaser, is a good delivery to him (Pacific Iron Works v. Long Island B. R. Co. 62 N. Y. 272 ; Wilcox Silver Plate Co. V. Green, 72 E". Y. 17 ; Krulder v. Ellison, 47 IST. Y. 36 ; Glen V. Whitaker, 51 Barb. 451), even though the particular carrier is not named. Hague v. Porter, 3 Hill, 141. But a delivery to a carrier, without the consent of the vendee, either express or im- plied, will not inure as a delivery to the latter. lb.; Everett v. Parks, 62 Barb. 9. Nor will a delivery to a general carrier, not designated or selected by the vendee, constitute an acceptance under the statute of frauds. Rodger s v. Phillips, 40 IST. Y. 519 ; Wilcox Silver Plate Co. v. Green, 72 JST. Y. 17, 20 ; Allard v. Greasert, 61 JST. Y. 1. A delivery to a carrier to be effective must be of the quality and description and in amount as called for by the contract. Reynolds v. Spencer, 92 Hun, 275 ; Mee v. Mc- Nider, 39 Hun, 345; Gidwillig v. Zuberiier, 41 Hun, 361. A delivery of goods to the vendee's teamster according to the custom of the parties is suiEcient to authorize the submission of the ques- tion of delivery to the jury. Henderson v. Wasserman, 35 St. Eep. 331. And the tender of the delivery order on the carrier company by whom goods are held at the place of delivery, is a sufficient delivery to support an action for goods sold and deliv- ered. Maclcie v. Egan, 6 Misc. 95. Where the owner of property authorizes a broker to sell it, and the property (logwood) 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 de- livery of it, that such entries be made by the vendor at the cus- tom 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 neg- lects to make such entries, or to furnish such documents, and by reason thereof the property is not placed within the actual and legal control of the purchaser, the vendor cannot recover from the purchaser the contract-price. Zachrisson v. Poppe, 3 Bosw. 171. Where a delivery is apparently absolute, and without any co- temporaneous declarations qualifying it, the onus of proving the SALE. 759 delivery conditional, vests upon the vendor. If no such proof is given, the delivery will be deemed absolute, and title to the goods will vest in the purchaser. Caldwell v. Bartlett, 3 Duer, 541 ; Smith v. Yynes, 5 N. Y. 42. The buyer is deemed to have accepted the goods when he inti- mates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ovsmership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Personal Prop- erty Law, Laws 1911, chap. 571, section 129. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a rea- sonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor. Id. Section 130. When the time for the delivery of property is fixed by the con- tract, in express terms, there can be little difficulty as to the time ■of performance. When no time is specified in the contract, the vendor may tender a delivery of the property, and demand pay- ment immediately ; and so in like manner the vendee may tender the price and demand an immediate delivery of the property. The time for delivering property 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 ISTew Orleans, at any time between two specific dates, it was held that the vend- ors were not chargeable for the non-delivery until its arrival 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 cot- ton 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 arrived, because the vendee is not bound to receive, nor is the vendor obliged to deliver any quantity less than the whole. Ih. 760 SALE. 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 November next." In an action to recover damages for the non- delivery of the oats, it was held that the measure of damages v^as the difference between the contract-price and the market value of the oats within a reasonable time after the first of ]Srovember. Kipf v. Yiles, 3 Sandf. 585. To warrant a recovery upon a spe- cial contract to pay for goods to be delivered within a certain time and at a certain place, they must all be tendered within that time and at that place. Hepke v. Schmalholz, 26 St. Kep. 98 ; Reynolds v. Spencer, 92 Hun, 275. A part delivery and acceptance, some before and some after the time, will not main- tain the action. Davenport 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 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 futiire day, and a portion of the lumber specified in such new contract, was delivered and used by the vendee, but it was not all deliv- ered, it was held that there could not be a recovery for the lum- ber delivered under either contract. lb; Catlin v. Tobias, 26 N. Y. 217. Where a contract calls for a specified quantity of merchandise to be shipped in certain specified months, unless shipments are made in the quantity and in the months specified, the contract is broken, and the vendee cannot be compelled to accept merchan- dise shipped at any other time unless there has been a modification of the contract or the condition as to time has been waived. In such cases, the date of the shipment is a material element in the identification of the property purchased. Clarh v. Fey, 121 'S. Y. 470; Hill v. Blake, 97 IST. Y. 216. The plaintiffs, by a written contract made on the third of April, sold to the defendants in New York, a quantity of English lin- seed oil, "to arrive per ship Marcia from London, sailed on or about the 15th 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 being made without fraud, that the de- SALE. 761 fendants were bound to accept and pay for the oil, although the vessel did not sail on the twenty-sixth 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. Ih. Where the contract is silent as to the time within which the delivery is to be made, it is the duty of the vendor to make de- livery of the thing sold within a reasonable time, and the burden is on the vendor to show compliance in this respect. Eppens, Smith & Wiemann Co. v. Littlejohn, 164 IST. Y. 187; Pope v. Terre Haute Car & Mfg. Co. 107 IST. Y. 61 ; Cinque v. Cassani, 43 App. Div. 383. What constitutes reasonable time usually de- pends upon the circumstances of the particular case, such, at least, as the parties may be supposed to have contemplated in a general way in making the contract. Stewart v. Marvel, 101 N. Y. 357; Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187. A contract to sell a certain number of bonds of a corporation deliverable "when, as and if issued," was held to require delivery at a time when a sufficient number of the bonds have been issued to permit the performance of the contract on the part of the seller in the exercise of due diligence, although the entire proposed issue of bonds had not then been made. Zimmer- m^ann v. Timmermann, 193 N. Y. 486. Personal Propery Law, Laws 1911, chapter 571, section 124, subdivision 2. Where the contract calls for "prompt shipment" of the goods purchased, this implies expedition and admits of less delay than would be pei'- mitted under a contract to ship within a reasonable time, and re- quires an effective shipment by a vessel prepared to sail, if not at once, at least within a reasonable time. Tobias v. Lissberger, 105 X Y. 404. A tender of bulky articles must be seasonably made so that the vendee may have an opportunity to examine the articles ten- dered and see that they are such as they purport to be, and such as he is entitled to demand, before the close of the day on which the delivery is to be made. Whether the tender should be made before sunset may depend upon circumstances, and does not seem to have been decided by the courts of this State. But when day- 762 SALE. light is required for the proper examination and assortment of the goods tendered, there can be but little doubt that time should be given the vendee for such examination before sunset and by daylight. Croniiiger v. Crocker, 62 N". Y. 151. A delivery may be too soon as well as too late. If the vendor makes the delivery before the time fixed by the contract, the goods will be at his risk. See Corrigan, v. Sheffield, 10 Hun, 227. In respect to the mode of delivery, much depends upon the character of the thing delivered. Delivering gold upon a con- tract for its sale 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 possibly obtain possession and control is not sufficient. Kinne v. Ford, 43 IST. Y. 587. Where chattels are to be delivered at a specified 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 de- struction. If of a kind that exposure to the atmosphere would destroy it, it must be placed where it will be protected from it and notice given to the vendee. If consisting of gold, bullion or diamonds, it must not be left exposed to the depredations 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 manner that the purchaser might see and obtain possession of it, but it should be placed in his "conscious" posses- sion. Ih. 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 receive 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 delivery of them. Dibble v. Corhett, 5 Bosw. 202. Where such purchaser refuses to accept a delivery within a reason- able 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 property does not pass until the goods are delivered, yet the contract being valid and obligatory, and the purchaser having accepted the goods under it, it is no SALE. 763 answer to the claim for damages for delaying an unreasonable time to receive them, that the title of the purchaser does not become vested until the goods are delivered and accepted. Ih. 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 no- tice, and offers to perform on his part, the other party will be bound to complete the contract. Oenin v. Tompkins, 12 Barb. 5C5. The place for the delivery of goods sold is usually fixed by the -contract, and when that is done, the koods must 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 particular place he wishes to have the goods delivered; and no action will lie for 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 specified places, and he delivers them at one of the places, but without giving 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 Hoesen, 12 Johns. 221. The place of payment of a note payable 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. Holbrook, 4 Wend. 3Y7. Under a contract for the delivery of specific articles at a par- ticular 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 promisee thereof, without delay. Until such delivery and notice, the promisee is not in a condition to object to the quality of the articles, nor can the title pass. Newcomb v. Cramer, 9 Barb. 402. 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. Bice v. Churchill, 2 Denio, 145. A special demand must be made there before suit brought. But a per- sonal demand of the maker elsewhere would be good unless met by an oifer to pay at the yard. In such case the holder would be bound to go to the yard to receive payment. lb. A demand at the mill yard is sufficient, though neither the maker nor any one authorized to make the payment be found there. 764 SALE. The maker of such an engagement is bound to be at the place of payment at all reasonable hours prepared to perfonn the agree- ment. Ih. 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. Ih. The defendant, who was a shopkeeper in ISTew York city, agreed to pay a debt of two thousand dollars 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 by de- livering goods at prices twenty-five per cent above the cost to him, though that might be must 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, without replenishing the stock, until a demand for a delivery in full of the contract; and that so long as he retained sufiicient 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 the place named in the contract, the plaintiff was bound to ac- cept 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 in- effectual; that a refusal to deliver goods to the value of twenty dollars, which had been packed up in boxes for removal, after no- tice to the plaintiff to call for his pay at the defendant's original location, did not constitute a breach of the contract; and that the contract permits a demand of merchandise in parcels. Buck v. Burk, 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 or deposited or kept, is the place of delivery, when the contract is silent as to place. Gross v. Allejo, 132 App. Div. 25 ; Halvordson v. Grossman, 107 N. Y. Supp. 627. See Laws 1911, chapter 571, section 124, subdivision 1. But this rule ceases to be applicable when the collateral circum- stances indicate a different place. Branson v. Gleason, 7 Barb. 472. Where the goods are a subject of general commerce, and are purchased in large quantities for reshipment, and the purchaser resides at the place of reshipment, and has, at such place, a store- SALE. 765 house and dock for that purpose, the place of business of the pur- chaser is ordinarily the place of delivery. Ih. Where a manu- facturer of salt at L., executed a writing as follows : "I have this day agreed with B. & C. of Oswego, to sell them one boat load of salt per week, omd deliver the same to them in good order, equal to 400 barrels each week, from this time to the first of JSTovember 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. Ih. As to the delivery of the wrong quantity of goods, the Personal Property Law provides : 1. Where the seller delivers to the buy- er a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the con- tract in full, he must pay for them at contract price. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value of the goods so received. 2. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract rate. 3. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in ac- cordance with the contract and reject the rest, or he may reject the whole. 4. The provisions of this section are subject to any us- age of trade, special agreement, or course of dealing between the parties. Personal Property Law, Laws 1911, chapter 571, sec- tion 125. 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 a particular quantity which can be determined by measuring, weighing, or counting, that is to be delivered, the terms of the contract must be com- plied 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 nor 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 de- 766 SALE. livery of more, nor can he demand less, than the agreed quantity- The plaintiff having received an order from the defendant to- forward two hundred and fifty barrels of cement, sent by a carrier, two himdred and sixty barrels, which the defendant refused to receive, saying, among other things, that there was more than he- had ordered sent ; whereupon, the carrier took the cement away, and stored it. Afterwards, 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 nmber of barrels. The plaintiff then brought an action for the value of the two hun- dred and fifty barrels of cement, declaring as for goods bargamed and sold, and for goods sold and delivered; but he was nonsuited at the trial, because the number of barrels ordered had been de- livered 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 in- tended as a mere compliance with the order, and was not sent for the purpose of charging the defendant with the excess, he was liable. Dower v. Thompson, 6 Hill, 208 ; reversing same case, 2 Hill, 137. The Supreme Court held that the vendor ought to be nonsuited, because he had not delivered the precise number of barrels agreed upon; while the court for the correction 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 number of barrels. But both courts agreed upon the principle that the vendor must deliver the precise number ordered, neither more nor less. Where manufacturers in the country sent on order to merchants in the city for a quantity of plow 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 de- fendants. Corning v. Colt, 5 Wend. 253. Where a contract was made for the sale and delivery, within a given period, of one hundred tons of pressed hay, to be paid for at a specified price per ton, part in advance, and the residue when- SALE. 767 the whole qiumtity should he delivered, and the vendor, within the time stipulated, 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 condition 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. Champlin v. Rowley, 18 Wend. 187. So, where a contract for the sale and delivery of personal property specifies the quantity, price and time of performance, the vendor is not entitled to re- cover under a quantum meruit for a portion less than the whole quantity agreed to be delivered, notwithstanding that the vendee has consented to a variation of the contract as to price and time of performance. Mead v. Degolyer, 16 Wend. 632 ; Paige v. Ott, 5 Denio, 406 ; Champlin v. Rowley, 13 Wend. 258 ; affirmed, 18 Wend. 187. Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. Where there is a contract to sell goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect to one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is servable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken. Personal Property Law, Laws 1911, chapter 571, sec- tion 126. Where property is sold which, from its nature, must be deliv- ered in parcels, and the contract is for payment on delivery, pay- ment cannot be demanded until the whole is delivered. Timmons V. Nelson, 66 Barb. 594; Williams v. Sherman, 48 Barb. 402; Cinque v. Cassani, 43 App. Div. 383 ; Soloman v. Neidig, 1 Daly, 200; Kein v. Tupper, 52 IST. Y. 550; Baker v. Higgins, 21 K Y. 397. There are some cases in which the vendor is excused from delivering the precise quantity, or indeed, any part of the prop- erty agreed to be sold. Where a contract was made in New York for the sale of five hundred bales of cotton, on its arrival at ISTew York from New Orleans, at any time between the date of the 768 SALE. 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, 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. Eussell v. Nicoll, 3 Wend. 112. Where the contract leaves it optional with the vendor to de- liver 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. Dishorough v. Neilson, 3 Johns. Cas. 81. The same rule applies when the option as to 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 giv- ing a reasonable notice, between two specified dates, he is bound to give notice before the last of the days specified. Topping v. Root, 5 Cow. 404. 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 such case if the vendee accepts a portion of the property, and waives the delivery of the remainder, the vendor may recover for the quantity actually delivered and accepted. Corning v. Colt, 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 performance 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 the stipulated price, and debiting him with a certain sum as damages sustained by the failure of an entire performance, 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 consents to an extension of the time upon condition that another specific quantity should be delivered, and the vendor delivered a part of the latter quan- tity, but failed to deliver the residue; it was held that there was no waiver, and that the plaintiff could not recover for either SALE. 769 quantity delivered, although it had been used by the vendee. Paige v. Ott, 5 Denio, 406. Where one agrees to sell and deliver a crop of com in "mer- ■chantable 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 "merchantable order;" it was held, that he was bound to deliver all the merchantable com that grew •on the thirty acres, and no more ; and where the defendant claimed the right to deliver the whole crop, although it was conceded to have been of unmerchantable quality, and tendered the good and bad com 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 com tendered in fulfillment of the agreement, but might treat the contract as broken, and bring their action to recover the •damages they had sustained. Hamilton v. Ganyard^ 34 Barb. 204, 3 Keyes, 45, 2 Abb. Ct. App. 314. In every executory contract for the future sale and delivery of articles of merchandise, 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 corn in "merchant- able order," he is bound to deliver sound and ripe com, and the vendee is not bound to accept of any other. Ih. So, where the sale relates to property which is in existence, if the vendor repre- sents 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 merchantable quality, still if an inferior article be delivered and ■accepted, the purchaser, when called on for payment, is not en- titled 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 discovered, he must return it, or require the vendor to take it back. Sprague v. Blake, 20 Wend. 61 ; Harqous v. Stone, 5 N. Y. 73, pi. 6. IJnless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right to do o, he is not bound to return them to the seller, but it is sufficient 49 770 SALE. if he notifies the seller that he refuses to accept them. Personal Property Law, Laws 1911, chapter 571, section 131. When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not, within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery amounts to a repudiation or breach of the entire contract, the seller shall have the rights against the goods and on the contract hereinafter provided in favor of the seller when the buyer is in default. Id. Section 132. 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 de- mand, and if he is unable to return it, in consequence of having used it, he will be bound to pay for the property at the market price at the time he received it. Shields v. Pettier 4 JST. Y. 122. 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 contract price. § 11. Sale of Articles to Be Manufactured. The rule is not uniform in the courts of the several States, but 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. But if the chattel contracted for is at the time in existence the contract is one of sale although the vendor is to do some work upon it to adapt it to the uses of the vendee. Gooke V. Millard, 65 N. Y. 352, 22 Am. Eep. 619. The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manu- factured or acquired by the seller after the making of the contract SALE. 771 to sell, called "future goods." Personal Property Law; Laws 1911, chapter 571, section 86. There may he a contract to sell goods, the acquisition of which hy the seller depends upon a contingency which may not happen. Id. Whether the parties pur- port to effect a present sale of future goods, the agreement operates as a contract to sell the goods. Id. 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 ; Andrews v. Durcmt, 11 IsT. T. 35 ; Eart v. Taylor, 82 K Y. 373, 376 ; Butler v. Bulter, 77 N. Y. 472, 475 ; Deeley v. Dwight, 132 JST. Y. 59, 64 ; Interstate Steamboat Co. V. First Nat. Bank, 87 Hun, 93. To make a sale complete so as to vest title in the vendecj the thing sold must not only be in existence, but it must be identified. lb. Where there is a con- tract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascer- tained, but property in an undivided share of ascertained goods may be transferred as provided in section eighty-seven of the Personal Property Law. Personal Property Law; Consolidated Laws, chapter 41 ; Laws 1911, chapter 571, section 98. Where D. agreed to manufacture for K. a quantity of shingles, at a specified price per thousand, which shingles should be 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 futuro, 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 de- livery, lb. The general rule is, that under a contract for the building of a vessel or other thing, no property vests in the person for whom the article is to be constructed, is to, and does superin- Andrews v. Durant, 11 E". Y. 35. The rule is the same, where cer- tain portions of the contract price are agreed to be paid to the build- er at specified stages of the work, and when an agent of the person for who mthe article is to be constructed, is to, and does superin- tend and approve the materials and word. lb. Therefore, where A. contracted to build for B. a vessel of specified dimensions, and deliver it to him complete on a day named, for the price of $5,000, $3,000 to be paid at specified stages of the work, and $2,000 772 SALE. when it was completed and delivered, the workmanship and ma- terials to be inspected and approved as the work progressed, by the superintendent of B., which was done; it was held, that B. had no property in the vessel before it was completed. Ih.j Mer- ritt V. Johnson, 1 Johns. 473. The same rule applies where the contract limits the building to "the hulls, spar, top iron work and cabin," for a sum specified, "payments to be made as the work progresses." Brown v. Morgan, 2 Bosw. 485. When a house builder contracts to build a house, and find materials, for which he was to receive his pay as the work advanced, and after putting up and enclosing the house, worked up some plank in the house preparatory to erecting columns for a piazza, and removed the plank, as a mere matter of convenience, to an adjoining house, where they were levied upon by virtue of an execution against the builder, it was held, in an action by the employer for the taking of such plank, that, although he had made advances as the word progressed, he was not entitled to maintain an action, the materials being personal property, and not passing to the plain- tiff until delivery, or until affixed to the freehold. Johnson v. Hunt, 11 Wend. 135 ; Merritt v. Johnson, 7 Johns. 473. Where raw materials are delivered to be manufactured, and the manufactured article is to be divided between the respective par- ties in certain proportions, the transaction is but a bailment, and the owner of the materials retains his title to them until his con- tract is completely executed. Pierce v. Schenck, 3 Hill, 28 ; Righimyer v. Raymond, 12 Wend. 51 ; Foster v. Pettibone, 7 N. Y. 433 ; Hyde v. Coohson, 21 Barb. 92 ; Gregory v. Stryker, 2 Denio, 628. As has been stated, to transfer the title of a manufacturered ar- ticle there must be both a delivery and acceptance. The accept- ance need not be express, but may be implied from the acts of the vendee even where he has declared that he will not accept. Thus, where the purchaser of machinery, which is so defective that the purchaser would be justified in rejecting it as not in accordance with the contract, continues to use it for long period after knowl- edge of the defects, he will be held to have made a conclusive election to accept it, and the right to rescind the contract of sale to be lost. Brown v. Foster, 108 IST. Y. 387 ; Chambers v. Lmi- caster, 160 K Y. 342 ; Ellison v. Creed, 34 App. Div. 15. See Reed v. Randall, 29 N. Y. 358 ; Beck v. Sheldon, 48 N. Y. 365 ; SALE. 773 Dutchess Company v. Harding, 49 N. Y. 321 ; Chambers v. Lan- caster, 3 App. Div. 215 ; Wiles v. Provost, 6 App. Div. 1. § 12. Sale or Delivery Procured by Fraud. There is another class of cases which is somewhat analogous, though the rule is widely different in the two cases. When a sale is procured hy the fraud of the vendee, it may be laid down as a viniversal rule, that, as between vendor and vendee, the latter will not acquire any title to the property which he may have ob- tained by his fraud, provided the vendor elects to rescind the sale, and seeks to recover the property. Hunter v. Hvdson River I. & 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. Brennan, 79 'N. Y. 254. A sale and delivery of goods, procured through a false repre sentation 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 replevin as against such vendee. Cary v. Hotaling, 1 Hill, 311 ; Olmstead v. Hotaling, id. 317 ; Ash v. Putnam, id. 302. 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 for the recovery of the prop- erty in an action by the defrauded vendor. Nichols v. Michael, 23 ]N". Y. 264. To avoid the sale in such a case, it is not neces- sary that the fraudulent representations should be such as would sustain an indictment for obtaining goods by false pretense. 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 communicated to him,, and with the design of influencing his conduct. Van Kleeck v. Le Boy, 37 Barb. 544; 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 cannot be made a pretext for avoiding a sale mad(3 by the plaintiff himself. lb. But where goods are purchased with a preconceived design of 774 SALE. not paying for them, and with a knowledge by the vendee that he is insolvent at the time of the purchase, this is such a fraud as will invalidate the sale as between vendor and vendee. Ash v. Putnam, 1 Hill, 302; Wright v. Brown, 67 IST. Y. 1; Morris v. Talcott, 96 N. Y. 100, 107. And where the sale is procured through the fraud of the vendee's agent, the rule is the same. Olmstead v. Sotaling, 1 Hill, 317. No one can enforce a con- tract which his agent has fraudulently obtained, although he neither authorized nor had any notice of the fraud prior to the execution and delivery of the contract. Cassard v. Hinma/n, 6 Bosw. 8. How far a principal is identified vsdth the fraud of his agent has been discussed in the chapter on agency. Upon a purchase of goods upon credit, the mere omission of the purchaser to disclose the fact of his insolvency is not suffi- cient to avoid the sale. A purchaser is not bound, when no ques- tions are put to him in regard to it, to disclose his own pecuniary condition and means of payment. If he makes no false statement and resorts to no acts or contrivances for the purpose of mislead- ing the vendor, it is not a fraud to say nothing on the subject. Nicholas v. Pinner, 18 JST. Y. 295 ; Wright v. Brown, 67 IST. Y. 1 ; Morris v. Talcott, 96 N. Y. 100, 107 ; Peoples' Bank v. Bogart, 81 E". Y. 101, 108 ; Buckley v. Artcher, 21 Barb. 585 ; Mitchell v. Worden, 20 Barb. 253. These facts alone do not disclose an intent to defraud. To have that effect there must be added other facts disclosing an intent to acquire the property purchased with- out paying for it. "The intention not to pay can no more be inferred from the mere fact of insolvency, than the fact of insol- vency can be inferred from the existence of an intention not to pay." Morris v. Talcott, 96 IST. Y. 100. See Sinnott v. German- American Bank, 164 !N". Y. 386. But where there is a condition of known insolvency undisclosed, coupled with an existing inten- tion on the part of the insolvent purchaser not to pay for the prop- erty, fraud may be affirmed. Wright v. Brown, 67 N. Y. 1 ; Nichols V. Michael, 23 IST. Y. 264; Hennequin v. Naylor, 24 IST. Y. 139. And it is said that where a trader is hopelessly insolvent, knows that he cannot pay his debts, and that he must fail in business and disappoint his creditors, he cannot honestly take ad- vantage of a credit induced by his apparent prosperity and thus obtain property which he had every reason to believe he could not pay for ; and that in such case he does an act the necessary result of which will be to cheat and defraud another and the intention SALE. 775 to cheat will be inferred. Anonymous, 67 E". Y. 598, affirming ■S. C. sub nom. Boehling v. Duncan, 8 Hun, 502. See Devoe v. Brandt, 53 N. Y. 462; Schajfee v. Port, 2 Lans. 81. Where a vendee has broken up his business, 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. Warden, 20 Barb. 253 ; Buchley v. Artcher, 21 Barb. 585. Where a sale is alleged to have been procured through fraud, by means of the declarations which the vendee has made about his ■circumstances, his declarations, while making purchases at other places about the same time, are admissible in evidence, to show a fraudulent intent in the alleged fraudulent purchase. Gary v. Hotaling, 1 Hill, 311; Olmstead v. Hotaling, id. 317; Hall v. Xaylor, 6 Duer, 71 ; Hawthorne v. Hodges, 28 IST. Y. 486; Nauga- tuch Cutlery Go. v. Babcock, 22 Hun, 481; Hall v. Erwin, 60 Barb. 349 ; Miller v. Barber, 66 K Y. 558 ; Van Kleech v. Le Boy, 4 Abb. Ct. App. 479, 4 Abb. IST. S. 431, 4 Trans. App. 295; King v. Fitch, 1 Keyes, 432 ; Hersey v. Benedict, 15 Hun, 283. See Sommer v. Oppenheim, 19 Misc. 605; Smith v. National Benefit Society, 123 N. Y. 85; White v. Benjamin, 150 IST. Y. •:>58. But evidence cannot be given to show what representations were made by the purchaser to another firm, in respect to his pecuniary circumstances about the time of the purchase from the plaintiff, when it is not shown or pretended that he purchased to defraud such firm. Murfey v. Brace, 23 Barb. 561 ; Durbrow V. McDonald, 5 Bosw. 131. .any goods of that firm on credit, or that he defrauded or intended Where a purchaser has obtained the possession of property by fraud and misrepresentation with the intent not to pay for it, and with the intent to cheat and defraud the vendor out of his prop- erty therein, the title to the property is not changed, and the vendor can retake the property from any one not a bona fide purchaser. Asher v. Deyoe, 77 Hun, 531 ; Devoe v. Brandt, 53 'N. Y. 462 ; Glemmons v. Bourse, 4 App. Div. 129. The defrauded vendor may, on discovery of the fraud, disaffirm the sale and follow the proceeds of the goods in the hands of a sheriff who has levied upon and sold them by virtue of an execution against the purchaser. Converse v. Sickles, 146 E". Y. 200. A creditor of a fraudulent vendee will not get any title as against the vendor, 776 SALE. when sucli creditor obtains his title by levy and sale on an execu- tion issued against the property of the vendee for an antecedent debt. Mowrey v. Walsh, 8 Cow. 238; Ash v. Putnam, 1 Hill, 302; Acher v. Campbell, 23 Wend. 372; Devoe v. Brandt, 53 K Y. 462. See Naugatv^h Cutlery Co. v. Babcock, 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 ante- cedent debt. Root v. French, 13 Wend. 570 ; Barnard v. Camp- hell, 58 N. Y. 73 ; Stevens v. Brennan, 79 JST. Y. 254. So, if the fraudulent vendee has mortgaged the property to secure an antecedent debt the claim of the defrauded vendor will be pre- ferred. Woodbury v. Chamherlin, 17 Barb. 446 ; Asher v. Deyoe, 77 Hun, 531. 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 ]Sr. Y. 264; Stevens v. Hyde, 32 Barb. 171; A. 8. B. Co. v. Fancher, 145 IT. Y. 552; Goodwin v. Wertheimer, 99 N. Y. 149. In such case the vendor has the same right as against the assignee, upon the rescission of the fraudulent contract, as existed against the assignor. In such case the only additional step which a vendor must take to recover possession of the chattels in the hands of the assignee is to demand them from him before commencing the ac- tion. This is so because the assignee having lawfully acquired the title and possession of the goods, a demand and refusal becomes necessary in order to change the character of his possesion. Levy V. Carr, 85 Hun, 289; Goodwin v. Werthimer, 99 IST. Y. 149. See Nat. B. & D. Bank v. Hubbell, 117 N. Y. 384, 398. It is said in many of the reported cases that the fraudulent vendee does not get any title to the property obtained by him as the result of his fraud as against the defrauded vendor. By this it should be understood that the fraudulent vendee does not get an indefeasible title as against his vendor. It is the law of this State, as in England, that title passes on such sale to the fraudu- lent vendee notwithstanding that the crime of false pretenses is now concluded in the statute definition of a felony, but was not such at common law. Barnard v. Campbell, 58 JST. Y. 76 ; Wise V. Grant, 140 JST. Y. 593 ; Fassett v. Smith, 23 IST. Y. 252 ; Bene- dict V. Williams, 48 Hun, 124; A. S. R. Co. v. Fancher, 145 IST. Y. 552. A purchase procured by fraud vests a right of property in the vendee until the sale is rescinded. The sale is not void but only voidable at the election of the party defrauded. This SALE. 77T does not mean that the contract is void until ratified; it means that the contract is valid until rescinded. When a contract of sale infected by fraud of the vendee is consummated and the prop- erty delivered, the vendor on discovering the fraud may pursue one of several courses. He may affirm the contract, and an omis- sion to disaffirm within a reasonable time, after notice of the fraud Avill be deemed a ratification. He may elect to rescind it, and thereby his title to the property is reinstated as against the pur- chaser and all persons deriveing title from him not being bona fide purchasers for value. Upon rescission the vendor may foUovsr and retake the property wherever he can find it, except in the case mentioned, or he may sue for conversion. When these legal remedies are available and adequate, he has no remedy in equity. But where there is no adequate legal remedy, either on the con- tract of sale or for the recovery of the property in specie, or by an action in tort, and it can be shown that the property has been converted by the vendee and the proceeds, in the form of notes or credits can be identified beyond question in his hands or in the possession of his voluntary assignee, the defrauded vendor may proceed in equity and have such proceeds impounded for his benefit. A. 8. R. Co. v. Fancher, 145 E". T. 552. Prior to the amendment of section 1690 of the Code in 1894, where the sale and delivery of goods had been procured by fraudu- lent representations on the part of the purchaser, and the title and possession had passed to him subject to the right of the defrauded vendor to rescind the contract, the purchaser had a leviable interest in the goods until the vendor had exercised his option to rescind, either directly or by some act in disaffirmance of the sale. If before such option was exercised, the goods were levied upon by the sheriff under a warrant of attachment or under an execution against the purchaser, the vendor could not, after a demand and refusal to deliver, maintain replevin against the sheriff. His remedy in such case was by an action for conversion. Wise V. Orant, 140 JST. Y. 593. The amendment of this section in 1894 changed the rule and in effect permits an action of replevin in the case above stated. Nat. Park Bank v. Ooddard, 87 Hun, 487. 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 afterwards took a bill of sale of them from A., who absconded without paying C. ; it was held that C, in an 778 SALE. action of trover against B., might go into evidence to show, that the goods has been obtained from him fraudulently, and by a col- lusion 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 determine who is a hona 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 vendor or knowledge of circumstances sufiicient to put him on inquiry. Barnard v. Campbell, 58 E". T. 73; Stevens v. Brennan, 79 JST. Y. 254; Weis v.Brennan, 9 Jones & Sp. 177. See Weaver v. Barden, 49 IT. T. 286 ; Root v. French, 13 Wend. 570. He is not a hona fide purchaser when a recovery by the true owner would leave him in the same condition as if no contract of purchase had been made by him. Beavers v. Lane, 6 Duer, 232 ; Bohinson v. Dauchy, 3 Barb. 20. And in an action by the vendor to recover the goods from one claiming title under a fraudulent vendee, the burden is upon the latter to show that he is a purchaser in good faith and for value. Stevens v. Brennan, 79 IST. Y. 254; Devoe v. Brandt, 53 ]Sr. Y. 462 ; Benedict v. Williams, 48 Hun, 123. Where the owner of property delivers 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 hona fide pur- chaser who takes a delivery of the property from the first vendee, will obtain a title which is valid as against the first vendor, al- though the latter may have been induced to sell and deliver them by fraud, or by false pretenses, which are indictable, and which would authorize him to disafiirm the contract as against such fraudulent vendee. Caldwell v. Bartlett, 3 Duer, 341 ; Keyser V. Harheck, id. 373 ; Malcom v. Loveridge, 13 Barb. 372 ; Mow- rey v. Walsh, 8 Cow. 238 ; Root v. French, 13 Wend. 570. So a hona fide mortgagee will get a good title if he advances the money for which the mortgage is given. Malcom v. Loveridge, 13 Barb. SALE. 779 372. So, one who in good faith, without notice of such fraud, receives such goods from a fraudulent vendee, on consignment tor sale, and advances money thereon to such vendee, acquires a lien thereon, and such original vendor cannot reclaim the goods from him vdthout repaying his advances. William v. Birch, 6 Bosw. 299 ; Caldwell v. Bartlett, 3 Duer, 341. A purchaser in good faith from such consignee will hold the goods in preference to the original vendor. II. And see Levy v. Carr, 85 Hun, 289. When it appeared that the contract of sale to the subsequent purchaser, 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 subsequent purchaser. Beavers v. Lane, 6 Duer, 232. Where one in good faith makes advances on goods obtained from such vendee, and he acquires a docmnentary title thereto, and the constructive but not the actual possession of the goods^ he is not liable 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 offers to assign all his documen- tary evidence of title to the goods, and to confer upon the original owner all the actual power of disposition of them which he pos- sesses. Keyser v. Harheck, 3 Duer, 373. In an action by the original vendor against one who purchased from his fraudulent vendee, the presumption is, that such subse- quent purchaser bought in good faith from the fraudulent vendee. Stocking bought a cow of the defendant, and gave his not for the purchase money, and agreed that if the note was not paid, he would deliver up the cow as security; Stocking some time afterwards 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 Stocking, 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. The case of Andrew v. Deitrich, 14 Wend. 31, which holds, that the 780 SALE, vendor may recover the property of a hona fide purchaser front a fraudulent vendee, is opposed to all the other cases, and is ex- pressly overruled in Fassett v. Smith, 23 N. Y. 252. Where prop- erty has been stolen, no person can get a good title from the thief, even if he is a bona fide purchaser. Hoffman v. Carow, 22 Wend. 285, 8. C. 20 Wend. 21 ; Robinson v. Dauchy, 3 Barb. 20. Where the owner of personal property has not conferred upon the vendor of it an apparent right of property, or right of disposal, a pur- chaser is not protected against the claims of the owner, although such purchaser acquires the property for a fair and valuable con- sideration, in the usual course of trade, without notice of any con- flicting claim, or knowledge of any suspicious circumstances cal- culated 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 pur- chase 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. Saltus v. Everett, 20 Wend. 175, 267, etc. On the seventh of October, the plaintiffs in the city of ]^ew York, contracted to sell to Lovett & Co., fifty barrels of potash, to be paid for on delivery ; and thereupon Lovett, one of the pur- chasers, engaged freight for the potash from the owners of a vessel which was about to sail to Liverpool. On the ninth of October, the plaintiffs, pursuant to the contract of sale, sent the potash on board the vessel, and took from the defendant, Pea- body, who was master, receipts therefor in their own names; and on the same day Lovett stole the receipts from the plaintiffs, and, on presenting them to the owners of the vessel, 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 action 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 SALE. 781 Tvas liable to them for its value, notwithstanding the bill of lad- ing 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 shipowners in ISTew York, 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 with- out any assignment of them from such party. Brower v. Peabody, 13 ]Sr. Y. 121. A bill of lading is only so far negotiable as to protect a bona fide indorsee thereof, for value, from the exercise by the consignor of the right of stoppage in transitu; but when such bill of lading is obtained by fraud from the owner 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, 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. Dows v. Perrin, 16 N. Y. 325. One who has either tortiously or felionously, without the knowl- edge of the owner, obtained the possession of a certificate of stock having a power of attorney in blank annexed thereto, can- not confer title on a third person by selling and delivering the same for a valuable consideration, 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 ; 28 N. Y. 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 the conversion of the stock, not- withstanding he has paid over the proceeds to the person employ- ing him. Ih. One who deals with or disposes of the personal property of another (the same not being negotiable paper), mtist see to it that he acts by the authority of some one who has power sufiicient to warrant such dealing or disposition. Ih. One who - tortiously possesses himself of another's chattels, without a de- livery from, the trv^e owner, or his consent express or implied, can vest no title to them in a purchaser, though hona fide. Caldivell V. Bartlett, 3 Duer, 341, 352, and cases cited. It is suiScient to impeach the bona fides of a purchase of chat- tels from a fraudulent vendee, that the purchaser had notice of such facts and circumstances, as would naturally excite the sus- picion of a man of ordinary prudence and caution. If he has 782 SALE. 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 purchnser from such a vendee, in the ordinary course of business, for value, will acquire a valid title as against the defrauded vend- or. Danforth v. Dart, 4 Duer, 101; Mitchell v. Warden, 20 Barb. 253 ; Covell v. Hill, 6 N. Y. 374 ; Pringle v. Phillips, 5 Sandf. 157. § 13. Rescinding Contracts of Sale. Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifest- ed his inability to perform his obligations thereunder, or has com- mitted a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. Personal Property Law; Laws 1911, chapter 571, chap- ter 146 ; Consolidated Laws, chapter 41. The right of rescinding contracts 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 contracts of sale either party may rescind the contract if the other party was guilty of a fraud in making such contract. The manner of rescinding and the con- ditions and qualifications to be observed will be explained here- after. When either party exercises the right of rescinding a con- tract, the effect of it will be to restore both parties to the position 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 Bank, 3 IST. Y. 88. 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 full performance thereof by both parties, or by some act of the defendant inconsistent with it, and disabling him from complying with its terms, or by a rescission by the mutual consent of both parties. Lawrence v. Simons, 4 Barb. 354. An exchange of horses was made between the plaintiff's agent and the defendant, upon terms which, as the defendant knew, the plain- tiff had himself refused to adopt as the basis of an exchange. The plaintiff lid lot know of the bargain until after it was made, nor did he knew the terms of it, and that jt was contrary to his propo- SALE. 783 sition, 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 agent to the defendant. Bohertson v. Ketchum, 11 Barb. 652. Where a note was given for a fanning mill, condi- tioned 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 fur- nish him with a new mill ; iti 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- i^o 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 sale, are to be delivered and paid for at a specified time, does not tender the price and take the goods within the time agreed upon, the vendor may request him to pay for and take the goods, and, in case of his refusal, may abandon and erscind the contract,, and dispose of the goods as if no contract had been made, or he may, on due notice to the purchaser, resell the goods, and recover of him the sum lost by the resale, together with the expenses of keeping the goods. McEachron v. Randies, 34 Barb. 301 ; Bogart V. O'Beagan, 1 E. D. Smith, 590 ; Crools v. Moore, 1 Sandf. 297 ; Sands v. Taylor, 5 Johns. 395. It is well settled that a vendor of personal property, when the vendee has declined to take the property and pay for it, ordinarily has the choice of any of three methods to indemnify himself against loss: 1. He may store or retain the property for the vendee, and sue him for the entire purchase price ; 2. He may sell the property and recover the dif- ference between the contract price and the price obtained upon a resale ; or, 3. He may keep the property as his own, and recover the difference between the market value at the time and place of delivery and the contract price. Moore v. Potter, 155 N. Y. 481 ; Dustan v. McAndrew, 44 N. Y. 72, 78; Lewis v. Greider, 49 Barb. 606; 51 K Y. 231, 237; Eayden v. Demets, 53 K Y. 426, 431 ; Cahen v. Piatt, 69 E". Y. 348, 352 ; Mason v. Decker, 72 N. Y. 599 ; Quick v. Wheeler, 78 K Y. 305 ; Windmuller v. Pope, 107 ISr. Y. 674; TutUll v. SUdmore, 124 E". Y. 148, 154; Van Brochlen v. Smeallie, 140 N. Y. 70. But, where the contract is. for sale of goods to be manufactured, and is broken by the buyer before the goods have been manufactured, the rules above cited da 184: SALE. not apply. Then the measure of damages is the difference between the cost of manufacture and delivery and the contract price. Isaacs V. Terry & Tench Co. 125 App. Div. 532. If the vendor elects to purchase the vendee by action to recover the whole or a balance of the purchase money, he is acting in affirmance. of the contract, and, having made his election of remedies, has no right thereafter to resell the property, or to disaffirm the contract and reclaim the property. The remedies given him are not concur- rent. If the vendor succeeds in the action and obtains complete payment, the vendee is entitled to the possession of the property. Westfall V. Peacock, 63 Barb. 209. But, the rule is that, in & Go. V. Fry, 137 W. Y. Supp. 894. A guaranty of payment of a debt void for usury, is also void for usury. Ih. There must be a loan, and the statute is applicable to those loans only which are in substance and effect loans of money. A loan of goods or of a chose in action, unless 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 «f money which is produced by the sale of shares of stock within USUEY. 887 the statute, where the agreement is that the borrower shall replace the stock. Dry Dock Bank v. American Life Ins. Co. 3 N'. Y. 344; Pomeroy v. Ainsworih, 22 Barb. 119. It is essential to the nature of a loan that the thing borrowed is at all events to be re- turned. Where the principal is bona fide put in hazard it is no loan; and it is not usury to take more than legal interest. Ih. Where it appeared that, in May, 1829, the defendant applied to the plaintiff to lend him two hundred pounds, to which the plaintiff consented, and the defendant afterwards gave him a war- rant of attorney for the payment of three hundred pounds by three installments, on the following terms, viz. : one hundred pounds to be paid on Christmas day then next, if both parties should be then living, the further sum of one hundred pounds on Midsummer day, 1830' if both should still be living, and one hundred pounds more on Christmas day, 1830, if both should be living at that time. The first two sums of one hundred pounds each were paid, but the defendant claimed that the contract was usurious, and that he was not liable to pay the third sum of one hundred pounds. The court held that the contract was not usu- rious, because the principal sum was put at risk, and liable to have been lost by the death of either party before the time specified. Flight V. Chaplin, 2 Barn. & Ad. 112. A mere nominal contin- gency, attended by no real hazard of the principal of the money lent, will not divest the transaction of its usurious character. Col- ton V. Dunham, 2 Paige, 26Y. It is also essential to the nature of usury that a certain gain, exceeding the legal rate of interest, is to accrue to the lender as a consideration 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 punc- tual payment of the principal, the contract is not usurious. Pome- roy V. Ainsworth, 22 Barb. 119 ; Green v. Brown, 22 Misc. 279 ; Sumner v. People, 29 ]Sr. Y. 337. The acceptance in addition to the legal rate of interest on a loan, of the use and occupation of a suite of rooms in a hotel conducted by the debtor, and of the rental of the apartment when not occupied by the creditor who suggested the arrangement, is void for usury. Reich v. Cochran, 105 App. Div. 542. An agreement to be void for usury under the statute must be one which will enable the party making the loan to demand and enforce the payment of the excessive interest but for the oper- ation of the statute. There must be no option on the part of the 888 USURY. borrower to pay or not, as he chooses, the excess beyond the legal rate of interest. Home Ins. Co. v. Dunham, 33 Hun, 415. There must be a certain agreement to pay excessive interest. Ih. ; Lord v. Cronin, 9 App. Div. 9. There are instances in -which a creditor may receive an inci- dental advantage from making a loan, and yet the transaction will not be usurious. If a 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 lawful 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. To render a contract void, it is necessary that both of the par- ties 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 upon a mere loan of money. It requires at least two contracting parties to make a contract, and agreements in relation to usury are no ex- ceptions to the rule. To constitute usury, there must be an un- lawful 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. Woodruff v. Hurson, 32 Barb. 55Y; Mor- gan v. Mechanics' Banking Assn. 19 Barb. 584. To render a contract usurious, both parties must be cognizant of the facts which constitute the usury. Aldrich v. Reynolds, 1 Barb. Ch. 43. 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. Ih. Where a bank discounts a bill of exchange, and gives a certifi- cate 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 ; Gillett v. Averill, 5 Denio, 85. So, where money was loaned on bond and mortgage, but the USUEY. 889 money was not advanced on the securities for several days there- after, and the borrower paid the interest thereon for several years, it was held that usury did not constitute a valid defense. Banks V. Van Anhuerp, 15 How. 29. The borrower may make the lender a gift, and the amount may be included in the note given, which will be valid. Yet, a gift under such circumstances, is a suspi- cious transaction, which ought to be shown by clear evidence to be a voluntary act on the part of the borrower. Woodruff v. 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 secu- rity will be valid. Ih. One who makes a contract Avhich 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. Murray, 34 Barb. 158 ; reversed, 32 N. Y. 605. A promissory note for the payment of a particular sum, with interest, payable from a day anterior to the date of the note, does not of itself afford evidence that the note is usurious. Marvin V. Feeter, 8 Wend. 533. ISTor 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 ad- vancement of money by one person as a partner, while another furnishes labor; and, in such case, the person who advances the money will be entitled to his share of the profits of the adventure. Thus, where there is an agreement between two parties to enter into a joint venture in the purchase and sale of stocks or other property, the fact that one of them may have advanced the capital and that the other has agreed that, in consideration of such ad- vanc, he should participate more largely in the profits, does not convert such agreement into a loan of money, or conflict with the statute against usury. The contract is still one of partnership. Orvis V. Curtiss, 157 N. Y. 657. So, where an employer gives an employee an interest in the business carried on with an agree- ment to pay such employee twenty-five per cent, upon the money contributed to the business as compensation for the services of the employee and the use of the money, the transaction is not usurious. Brennan v. Olennon, 4:4: App. Div. 107. But, where the contract is really one for 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 pro- 890 USURY. portion of the profits of the trade or business, this is usurious. Sweet V. Spence, 35 Barb. 44; Morse v. Wilson, 4 Term, 353. See Gilbert v. Warren, 19 App. Div. 403. 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; Quachenbush v. Leonard, 9 Paige, 334; Pomeroy v. Ainsworth, 22 Barb. 118 ; Clift v. Barrow, 108 N. Y. 187. Where parties entered into a real estate speculation, and one of them made advances of money to be used in the venture, under an agreement that he was to be repaid, with interest and one-third of the profits of the speculation, it was held that the transaction was not usurious. Niebuhr v. Schreyer, 37 St. Hep. 495. An agreement in the alternative to pay eight per cent interest on a loan, "or any taxes that may be exacted," is not an absolute agreement to pay interest on money loaned in excess of the statu- tory rate, and is not usurious. Home Ins. Co. v. Dunham, 33 Hun, 415. Contracts for compound interest are not usurious. Tylee v. Yates, 3 Barb. 223 ; Kellogg v. Hicoch, 1 Wend. 521 ; Townsend v. Corning, 1 Barb. 627. The cases in which compound interest may lawfully be contracted for have been stated in the preceding chapter. 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. 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. Y. 223. But, when an ac- commodation note is sold by the payee at a discount, the trans- action is treated as a loan of money, and where the discount exceeds the legal rate of interest, the note is void for usury, and cannot be enforced against the maker. Strickland v. Henry, 175 IST. Y. 372. The rule as to taking 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 instru- ment, and payable at no very distant day ; for, without these quali- IJSUKY. 891 ties, it will not circulate in the course of trade. Under these limi- tations, the taking of interest in advance, either by a bank, or in- < orporated company without banking powers, or an individual, is not usurious." Sutheelanb' J., in N. Y. Firemen's Ins. Co. v. Jily, 2 Cow. 703, 704; and approved by Court of Appeals in Marvine v. Hymers, 12 E". Y. 229, per Denio, J. And See Manhattan Co. v. Osgood, 15 Johns, 162; Utica Ins. Co. v. Bloodgood, 4 Wend. 652. "Every bank and individual banker doing business in this State may take, receive, reserve 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 six per cent, per annum; and such interest may be taken in advance, reckoning the days for which the note, bill or evidence of debt has to run. The knowingly taking, re- ceiving, reserving or charging a greater rate of interest shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. If a greater rate of interest has been paid, the person paying the same or his legal representative may recover back twice the amount of the interest thus paid from the bank or individual banker taking or receiving the same, if such action is brought within two years from the time the excess of interest is taken. The purchase, discount or sale of a hona fide bill of exchange, note or other evidence of debt, payable at another place than the place of such purchase, discount or sale at not more than the current rate of exchange for sight drafts, or a reasonable charge for the collection of the same, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest than six per cent, per annum. The true intent and mean- ing of this section is to place and continue banks and private and individual bankers on an equality in the particulars herein re- ferred to with the national banks organized under the act of Con- gress entitled 'An act to provide a national currency, secured by pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June 3, 1864." Consolidated Laws, ch. 2, known as the Banking Law, L. 1909, ch. 10, section 74. The debt for which an usurious note is given to a state bank may be collected, the only forfeiture being the right of the maker to recover double the amount of interest paid, within two years. Schlesinger v. Kelly, 114 Ap. Div. 546. The debt may also be 892 USURY. collected by a state bank which took the note as transferee of the original payee. lb. The limited liability of a bank in a case of usury does not apply in the case where a bank takes a note al- ready tainted with usury, with knowledge of the fact. Schles- inger v. Lehmaier, 99 IST. Y. Supp. 389, 191 N. Y. 69. Under Banking Law, section Y4, which provides that twice the amount of excess interest charged a borrower may be recovered, cumula- tive penalties may be recovered. Machey v. Royal Bank of New York, 137 N". Y. Supp. 929. "Upon advances of money repayable on demand to an amount not less than five thousand dollars made upon warehouse receipts' bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds or other negotiable instruments, pledged as collateral security for such repayment, any bank or individual banker may receive and collect as compensation for making such advances any sum agreed upon in writing by the parties to such transaction." Banking Law; L. 1909, ch. 10, section 75. The right to recover a penalty imposed by section 74 of the act above cited can be recovered only in a penal action brought for that purpose, and cannot be enforced by way of a counter- claim to an action brought by the bank or banker upon the obliga- tion claimed to be usurious. Cwponigri v. Altieri, 165 itT. Y. 255. An agreement that an agent or factor shall receive a reasonable compensation, to be paid by the principal, for accepting and pay- ing bills with funds furnished by the latter, is not per se, usurious. b'uydam v. Bartle, 10 Paige, 94. And where the agreement, by its terms, contemplates an advance of money to pay the bills Avhen 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 in- tended 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 principal. Ih. Where such advances are made in good faith, and without any intent to take usury, the contract for the payment of a commission is valid. Buy dam v. West fall, 4 Hill, 211 ; Trotter v. Curtis, 19 Johns. 160; Seymour v. Marvin, 11 Barb. 80; Harvey v. Archbold, 3 Barn. & Cres. 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 USUEY. 893 Ramsdell v. Morgan, 16 Wend. 574. 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 or a justice can disregard the defense of usury, when it is clearly established by the evidence. A usurious contract is executed and extinguished by payment ; and consequently, after usurious loanes and advances have been paid, they cannot be recovered back, except that the excess may be sued fo rwithin a year, under the statute. Seymour v. Martin, 11 Barb. 80. A lender, vrhether a banker or a broker, may charge, in addi- tion to the discount, a reasonable sum for his trouble and services. Nourse v. Prime, 7 Johns. Ch. 69 ; Trotter v. Curtis, 19 Johns. 160; Suydam v. Westfall, 4 Hill, 211; Suydam v. Bartle, 10 Paige, 94; Eaton v. Alger, 2 Keyes, 41, 2 Abb. Ct. App. 5; Bennett v. Ginsberg, 141 App. Div. 66 ; Morton v. Thurier, 85 IST. Y. 550. The drawer of a bill of exchange for twelve hundred dollars paid fifty dollars to an accommodation indorser for his indorsing the bill, procuring another indorser, and obtaining its discount. From the proceeds, the indorser retained one hundred and fifty dollars' previously loaned by him to the drawer, and this was held not to be usury. Van Duzer v. Howe, 21 IST. Y. 531. Where a creditor, at the request of the debtor, and upon his express promise to pay the expenses, takes a journey to the resi- dence of the latter, with a view to settle the demand, and after- wards includes such expenses in a security taken for the debt, such security is not usurious. Harger v. McCuUough, 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 twenty dollars, as part of the creditor's traveling expenses, 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. Hance, 7 Paige, 581. The dif- ference between the last two cases cited is, that in the former the expenses were incurred at the express request of the debtor, and he was clearly liable to pay that amount without reference to the 894 USUEY. 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. An agent, who was intrusted with money to invest at legal in- terest, exacted a bonus for himself as a condition of making a loan, which was done without the knowledge or authority of his principal; it was held that this did not constitute usury in the principal, nor affect the security in his hands. Gondii v. Baldwin, 21 ]Sr. Y. 219, S. C. 21 Barb. 181; Barretto v. Snowden, 5 Wend. 181; Coster v. Dilworih, 8 Cow. 299; Crane v. Huhbel, 7 Paige, 413 ; Fellows v. Commissioners, etc., of Oneida, 36 Barb. 655 ; Bell v. Day, 32 W. Y. 165 ; Cowenhoven v. Pfluger, 22 App. Div. 64; Friedman v. Bruner, 25 Bisc. 474; Stillman v. Northrup, 109 N. Y. 473; Estevez v. Purdy, 66 IST. Y. 446; Van Wyck v. Walters, 81 IST. Y. 352 ; Philips v. Machellar, 92 K Y. 34; Jones v. Gay, 139 E". Y. Supp. 158 ; Silverman v. Eatz, 120 N. Y. Supp. 790. But the retention by the agent of the lender of a portion of the money advanced upon the security of the assignment of a mortgage, was held to constitute usury, where the lender was advised that the agent had retained the same and subsequently collected interest on the loan. Schwartz v. Sweitzer, 202 E". Y. 8 ; Bliven v. Lydeeker, 130 K Y. 102. It is incum- bent on the defendant, who claims that the taking of a bonus by the agent renders the obligation sued upon void for usury, to show that the agent took the bonus with the knowledge and assent of the plaintiff, so that the plaintiff, at least by acqui- escence, became a party to the usurious exaction. Ih. The de- fendant in such action has the burden of establishing such knowledge and acquiescence by satisfactory evidence. Mere sur- mise and conjecture or uncertain inferences will not suffice. ISTor is it sufficient for the defendant to show that the plaintiff knew of the transaction after the loan had been made and the security given. It must be shown that the plaintiff had knowl- edge at the time. Nor is it sufficient to show that the plaintiff supposed that the agent was to receive some compensation for services rendered for the defendant in effecting the loan, such as journeying from one place to another to view the property offered as security, and time spent in negotiating the loan. Stillmcm V. Northrup, 109 N. Y. 473. The courts adhere to the well-settled principle that where upon the whole case the evidence is just as consistent with the absence as with the presence of usury, the party USURY. 89& alleging the usury has failed. Ih.; Booth v. Swezey, 8 IST. Y. 276 ; Valentine v. Conner, 40 IST. Y. 248. In the case above cited in which the principal was held not- chargeable with usury on account of the act of the agent in ex- acting a bonus from the borrower, there were in fact two contracts made by the agent with the borrower, one in behalf of his prin- cipal in making the loan, and the other in behalf of himself in providing for his own compensation in making the loan. In those cases, also, the principal had no benefit from the sum thus exacted by the agent as a bonus, and the security taken being for the pre- cise amount of the loan, there was nothing upon the face of the transaction importing usury. But where an agent authorized to lend, but not to take usury, has loaned the money of his prin- cipal at a usurious rate and has taken security in the form of a single instrument covering both the sum loaned and the usury exacted, if the principal, knowing that such security is for a larger amount than the sum loaned, without explanation, accepts it and has the benefit of it for years, he thereby ratifies and adopts his agent's acts with the same effect as if he himself had exacted the usury. Bliven v. Lydecker, 130 IS'. Y. 102. The ratification may be implied from circumstances. Bliss v. Slierrill, 24 App. Div. 280. There may be cases, however, 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 effect an insurance with the company, which was done by paying a pre- mium such as was usually paid by others, this was held not to be usury. Utica Ins. Co. v. Cadwell, 3 Wend. 296. 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. Hurd 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 unlawful interest, the transaction will not be usurious. Woodruff V. Eurson, 32 Barb. 557 ; Marvine v. Hymers, 12 IST. Y. 896 USURY. 223; Archibald v. Thomas, 3 Cow. 284; Conger v. Tradesman's Bank, Hill & Denio, 34 ; iV. F. Firemen's Ins. Co. v. Sturges, 2 Cow. 664 ; Same v. £'^1/, id. 678 ; Bevier v. Covell, 87 N. Y. 50. But, if the lender intentionally takes a larger sum than the law allows as interest, by reason of an erroneous opinion which he entertains as to the law, the loan will be usurious, and the security void. Utica Ins. Co. v. Tilman, 1 Wend. 555 ; Bank of Utica v. Wagar, 8 Cow. 398 ; Marsh v. Martindale, 3 Bos. & Pul. 154. It is a frequent question whether the lender may receive any advantage which may arise from the difference in exchange be- tween different localities. And the rule is now settled, that the law does not recognize any difference in the value of money at different localities within this State. There is no usury, there- fore, in the discount of a note by a banker in the interior of the State, made payable in the city of JSTew York, not for the accom- modation 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 dif- ference of exchange existing in fact and expected to continue. Oliver Lee & Co.'s Bank v. Walhridge, 19 K Y. 134; Eagle Bank v. Bigney, 33 N. Y. 613. The mere fact that a note, dis- counted 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, at least in the absence of proof that such a draft was made a condition of discounting the note. Union Bank of Rochester v. Gregory, 46 Barb. 98 ; Price v. Lyons Bank, 33 IST. Y. 55 ; Beales v. Benjamin, 33 N. Y. 61. So where a country bank discounted a note, by its terms payable in the city of New York, receiving in advance the legal interest on its amount, and at the request of the person for whose account it was discounted, paid him the proceeds in sight drafts upon its correspondent in JSTew 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. Uymers, 12 IST. Y. 223 ; Cuyler v. Sanford, 13 Barb. 339; Merritt v. Benton, 10 Wend. 116. But, where the notes were payable at a country bank, which required the maker, as the condition of a renewal of two promis- sory notes past due, to give a new note for the aggregate principal. USUEY. 897 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 Go. Banlc v. SchennerJiorn, 1 Denio, 133. And see opinion of Oomstock, Ch. J., in Oliver Lee & Co.'s Bank v. Walhridge, 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 ISTew York, immediately previous to the loan, it was held that the con- "tract was usurious, and that the notes given for the money so loaned were void. Jacks v. Nichols, 5 IST. 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 case is usury. Price v. Lyons Bank, 33 IST. Y. 55. Where, upon an application for a loan of money, it is by the agreement made a condition of the loan, that the borrower shall re- ceive from the lender uncurrent bills at a higher rate than their value in cash or current funds, the loan is usurious. Cleveland -V. Loder, 7 Paige, 557; Pratt v. Adams, id. 615. A sale of stocks at their nominal value, when they are at a dis- count 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. Strong, 4 Hill, 255 ; White v. Wright, 3 Barn. & Cress. 273; Parker v. Bavishotton, 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 Bank v. American Life Ins. & Trust Co. 3 -N. Y. 344. A sale of credit can never be void for usury, at whatever price it may be made, unless it can be seen that it is a cover for a usurious loan of money. Forgotson v. McKeon, 14 App. Div. ■342 ; Elwell v. Chamherlin, 31 N. Y. 611, 617; Oilhert v. Warren, 66 App. Div. 289; More v. Rowland, 4 Denio, 264; Dry Dock Bank v. American Life Ins. & Trust Co. 3 IS. Y. 344 ; Flour City Nat. Bank v. Miller, 4 App. Div. 585. Upon a sale of credit made in good faith, the vendor may reserve or secure to himself more than the statutory rate of in- 57 898 USURY. terest without rendering the agreement usurious. Leavitt v. De Launy, 4 IST. Y. 363 ; Ketclium v. Barler, 4 Hill, 224, 7 Hill, 444; More v. Howlomd, 4 Denio, 264. A sale of the credit of the vendor must not, however, be conected with a loan of money by him or it will be usurious. It. 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, without any knowledge of the transaction be- tween the maker and the indorser. Kitchel v. Schench, 29 IT. Y. 515. The indorsement of a note for the accommodation of the maker, for a premium to be paid by the latter, does not make the indorser a holder of the note, nor could he maintain an action upon it tmtil he has paid the amount of it to a subsequent pur- chaser, and, therefore, his mere indorsement does not, in any manner, affect a party to whom the note is subsequently negotiated by the maker. Ih. 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 endorsee may maintain an action against against the indorser. In such a case, the recovery against the indorser cannot exceed the amount which the purchaser paid with interest, etc., though he may recover the full amount of the note, as against the maker of the note. Cooh v. Clarlc, 4 E. D. Smith, 213 ; Burton v. Baker, 31 Barb. 241; Ingcdls v. Lee, 9 Barb. 647; Mazuzan v. Mead, 21 Wend. 285 ; Braman v. Hess, 13 Johns. 52 ; Brownell V. Winne, 29 How. 193. Where two persons exchange with each other notes of equal amounts for the purpose of raising money by a 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. Cobb v. Titus, 10 N. Y. 198, S. G. 13 Barb. 45 ; Bice 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 obligations of the lender for the amounts which the parties intend shall be, and which are. USURY. 899 "used by the borrower to raise the money, tbe 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. Scher- merliom v. Talman, 14 IST. Y. 93 ; Dry Dock Bank v. American Life Ins. Co. 3 IST. Y. 344; Thomas v. Murray, 34 Barb. 157; Gillett V. Averill, 5 Denio, 85 ; Blodgett v. Wadham, Hill & Denio, 65. A borrower who gives his note, may receive the obli- gation of the lender, payable on time, and of less actual value than the sum secured to the lender, provided it is given at the bo-na fide request of the borrower, and for his 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. Gillett v. Averill, 5 Denio, 85 ; Lane 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 re- served at the rate of seven per cent. ; the transaction was held to be usurious, and the mortgage void. New York Life Ins. & Trust Go. V. Beele, 7 K Y. 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. Rice, 5 IS. 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 that 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. Ih. B. loaned to E. on the first 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 first day of May, 1836 or 1838, as he should elect, worth $203, or pay that amount in cash; B. to sustain all losses that should appear providential. The jury found that this agreement was not intended as a cover for a usu- rious loan of money; and it was held that the contract was not usurious, n. 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. Spencer v. Tilden, 5 Cow. 144. So, of a sale of 900 USURY. sheep, of which double the number was to be returned in three years. Holmes v. Wetmore, 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. Cummings 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 an- num, would amount to fifty cents. Hall v. Haggart, 17 Wend. 280. Where the lender makes it the conditions of a loan, that the borrower shall purchase property of such lender at a price greatly pbove 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. Rose v. Dichson, 1 Johns. 196 ; Eagleson v. Shotwell, 1 Johns. Ch. 536; Thomas v. Murray, 34 Barb. 157. 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. & Trust Co. 3 IsT. T. 344. Where, how- ever, the object of the parties is a loan of money, and something else under the form of a sale or an exchange is substituted for it, the principal of the loan or debt will be the value in money re- ceived by the nominal vendee, and any consideration paid or secured to the vendor beyond that will, in general, be considered as interest for the forbearance, and such cases are within the statute and void. Ih. A contract 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. Gooch, 3 Barn. & Aid. 664; Doe y. Brown, Holt's N. P. 295. See Broohs V. Avery, 4 N. T. 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 USUEY. 901 price as he sees 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, 1 Wend. 256 ; Cram v. Hendricks, id. 569 ; Powell V. Waters, 8 Cow. 669 ; Cameron v. Chappell, 24 Wend. 94; Joy v. Diefendorf, 130 IST. Y. 6. Such a note is property, and it may be sold by its owner for such a price as he chooses, in the same manner that he might sell any other species of property. Eastman v. Shaw, 65 JST. Y. 522, 524; Harger v. Wilson, 63 Barb. 237. But this principle does not extend to accommodation notes which are 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 iona fide holder. Hall v. Earnest, 36 Barb. 585; Bossange v. Ross, 29 Barb. 576; Hall v. Wilson, 16 Barb. 548. A note, delivered by the maker without considera- tion 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 Iiands. And if he negotiates the note upon a usurious considera- tion, it is void. Catlin v. Gwiter, 11 1^. Y. 368 ; Williams v. Storm, 2 Duer, 52 ; Clarh v. Loomis, 5 Duer, 468 ; Jones v. Hake, 2 Johns. Cas. 60; Marvin v. McCullum, 20 Johns. 288; Clark V. Sisson, 4 Duer, 408, 22 N. Y. 312 ; Newell v. Doty, 33 K Y. 83; Eastmmi v. Shaw, 65 IST. Y. 522; Claflin v. Boorum, 122 I^. Y. 385; French v. Hofmire, 19 Misc. 714; Thames Loan & Trust Co. V. Hagenmeyer, 17 App. Div. 533 ; Freeport Bank v. Hagenmeyer, 91 Hun, 194. The principles above stated are not limited to mere accommoda- tion paper. The question whether a promissory note, sold by the payee at a discount greater than lawful interest, in view of the usury laws, 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 consideration, or if not assented to and delivered as evidence of a contract, it has no inception until the sale, and the transaction is usurious. Eastman v. Shaw, 65 N. Y. 522. For example, if a person is induced, by means of fraudulent representations made to him, to agree to take an inter- est in a company which he is led to believe is about being formed 902 USUEY. to purchase an interest in a valuable patent right, and is induced 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 in- ception in the hands of the payee, and if sold by him at a dis- count greater than lawful interest, will be held usurious and void. Ih. The same principle applies to a bond and mortgage, given by the mortgagor to the mortgagee without consideration, to enable the mortgagor to raise money, and at his request assigned by the mortgagee to a third person who purchases it for less than its face value, without knowledge of the want of consideration between the original parties. Such bond and mortgage had no inception, and did not represent a real transaction until negotiated, and then became void for usury. Tiedemann v. Acherman, 16 Hun, 307; 84 ISr. Y. 677 ; Miller v. Zeimer, 111 E". Y. 441 ; Pwyne v. Bum- ham, 62 ISr. Y. 69. Bills, of exchange are governed by the same principle, and, if the indorsee of a bill or of a promissory note, deducts more than the 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 in- dorsee or purchaser did not know that the bill or note had no legal inception before he purchased or discounted it. Clark v. Sisson, 4 Duer, 408, 22 IST. Y. 312. Though the statute, in general terms, declares void all con- tracts and securities affected with usury, yet several exceptions have been allowed to its provisions in favor of innocent third parties. Dix v. Van Wych, 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 usurious premium for forbear- ance, 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. Rice v. Welling, 5 Wend. 595; Swartwout v. Payne, 19 Johns. 294; Hammond v. Hopping, 13 Wend. 505 ; Gray v. Fowler, 1 H. Bl. 462 ; Carson V. Ingalls, 33 Barb. 657 ; Real Estate TrvM Co. v. Keech, 7 Hun, 253, 69 K Y. 248; Church v. Malay, 70 N. Y. 63; Abrahams V Clausen, 52 How. 241; Langdon v. Gray, 52 How. 387. But, imless the usurious contract is mutually abandoned, no action will lie upon the original consideration ; for, although the second note is void, and no action can be maintained on it, yet there is no im- USUEY. 903 plied 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 usuri- o.us contract remains in force, unrescinded by the parties, a prom- ise to repay the sum actually borrowed cannot be enforced. Ham- mond V. Hoppiyig, 13 Wend. 505 ; Rice v. Welling, 5 Wend. 595. And see Early v. Mahon, 19 Johns. 147 ; McConkey v. Petterson, 15 App. Div. 11; Sheldon v. Haxtun, 91 N. Y. 124; Patterson v. Birdsall, 64 N. Y. 294. Obligations and securities having an independent existence, ^and untainted by usury, are not affected by the statute, although they are the subject of contracts tainted with the vice of usury. A valid and subsisting debt is not destroyed because included in a security or made the subject of a contract void or invalid, either because violative of the statutes against usury or for any other reason. Although formally satisfied and discharged, and the se- curity surrendered, it may be revived and enforced in case the new security is invalidated and avoided. Ib.j Cook v. Burnes, 36 JST. Y. 520 ; Farmers & Mechanics' Bank of Oenesee v. Joslyn, 3,1 ]Sr. Y. 353 ; Winsted Bank v. ^Ye'bh, 39 N. Y. 325 ; Gerwig v. Bitterly, 56 N. Y. 214; Russell v. Nelson, 99 N. Y. 119. It is not to be inferred from the rule stated that a plaintiff suing upon & usurious note, to which the defense of usury has been interposed .and established, is entitled to recover upon the original indebted- ness, where it is not set up in the complaint and no amendment is asked for or granted on the trial. Hansee v. Phinney, 20 Hun, 153; Botsford v. Bean, 44 App. Div. 190. The rule that a usurious contract may be mutually abandoned ■by the parties, the securites canceled and destroyed so that they may not become the foundation of an action, and a new contract may then be made by the borrower to pay the amount actually received by him which will not be tainted with the original usury .and may be enforced by the courts, is well settled. See Sheldon v. Haxton, 91 N. Y. 124. Just what is necessary to be done touch- ing the old usurious contract to place the parties in a position where they can feel assured that a new contract, which has for its support a promise founded on the consideration of the origi- nal corrupt agreement, is free from all usurious taint, has not been 904 USUEY. fully outlined by the courts. But, in order to do away with the old agreement, both parties must act, and, in the absence of a specific declaration of their intentions, the circumstances proven in an action upon the new contract, must be such as to warrant an inference of fact that the parties intended to do away with the old contract and to put each other in the same position as if the illegal feature of it had never existed. Levey v. Allien, 72 Hun, 321. In the absence of some act of the parties evidencing such in- tent, it is well settled that, where a note is given solely in re- newal of another note tainted with usury and void, the renewal note is equally tainted and alike condemned by the statute, be- cause it operates merely as a renewal or continuance of the usuri- ous contract. Levey v. Allien, 72 Hun, 321 ; Feldman v. McGraiv^ 1 App. Div. 574; Treadwell v. Archer, 76 IST. Y. 196; Stanley v. Whitney, 47 Barb. 586. Where a person purchases real property subject to a mortgage without assuming the mortgage debt, and afterwards, to prevent or postpone a foreclosure of the mortgage, agrees to pay the mort- gagee a sum exceeding the lawful interest on the mortgage debt and to assume the mortgage, this agreement is not usurious, as the relation of lender and borrower does not exist between the parties, and the promisor was under no obligation to pay the debt. But if the latter, for the purpose of securing another extension or term of exemption from liability to foreclosure, pays a further sum, amounting to more than the lawful interest on the mortgage debt, under an agreement on the part of the mortgagee, in con- sideration of such payment, to refrain from foreclosing the mort- gage for aonther year, this last agreement will be within the pro- hibition of the statute against usury, as the second contract is for the forbearance of a sum of money then personally due from the purchaser to the mortgagee, by virtue of the first-mentioned agreement to assume the mortgage debt. Oanz v. Lancaster, 50 App. Div. 204, s. c. 169 IST. Y. 357. In some of the cases a distinction is made between a usurious consideration actually paid to obtain an extension of time of pay- ment, and a usurious consideration agreed to be paid. Thus, it has been held that a mere agreement made by a creditor with the princi- pal debtor, to forbear the payment of the debt in consideration of p. usurious premium to be paid for such forbearance is void, and, therefore, it cannot operate to discharge the sureties. But, where USUEY. 905- the usurious premium is actually paid at the time, the sureties will be discharged. 2 Am. Lead. Cas. 420, 421, 4th ed. ; Vilas v. Janes, 10 Paige, 76, 1 N. Y. 274 ; Fernan v. DouUeday, 3 Lans. 216. Notes given to the holder by the maker of a note falling due, without other consideration than an extension of time thereon, are usurious. Ralli v. Pearsall, 69 App. Div. 254. But the courts have also 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 case the sureties are discharged. Draper v. Trescott, 29 Barb. 401 ; La Farge v. Herter, 9 IST. 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 unlawful acts as against the surety. ISTo 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. Reed v. Smith, 9 Cow. 647; Steele v. Whipple, 21 Wend. 103; Jackson v. Packard, 6 Wend. 415; Tuthill v. Davis, 20 Johns. 285; Jacks v. Nichols, 5 !N". Y. 178 ; Clark v. Sisson, 4 Duer, 408. The rule is the same, whether the new security is given by the borrower, or by a third person for his benefit. Vickery v. Dickson, 35 Barb. 96. 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 depos- ited 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. Mechanics' Banking Association, 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 906 USUKY. where the holder of a usurious mortgage, indorsed thereon an amount equal to the sum included in it for usury, it was held that the mortgage was, nevertheless, void, although such indorse- ment was made with the assent of the mortgagor. Miller v. Hullj 4 Denio, 104. There is no possible mode in which a usurious security can be made good. The vices of such security are in- curable. Jacobson v. Bradley, 16 St. Rep. 896. If a party ex- acts usury at the time of making a loan, and takes security for the loan in the form of a mortgage, the subsequent repayment of the sum retained in excess of lawful interest will not render the mortgage valid. Vati Tassel v. Wood, 12 Hun, 388. But if the person making the loan exacts and receives more than lawful in- terest for the use of money, but before the mortgage given as se- curity is acknowledged, repays the usurious interest, the mortgage given to secure the loan will be valid. Brackett v. Barney, 28 jST. Y. 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, and as a condition of forbearance upon the new secu- rity, taints such security with usury and renders it void. Town^ send V. Corning, 1 Barb. 627. § 2. Who May Plead Usury as a Defense. The statute authorizes the borrower to set up the defense of usury. Schemerhorn v. Am. Life, etc., Ins. Co. 14 Barb. 131. But there are frequently questions as to what constitutes a borrow- er within the meaning of the statute. It is a matter of some im- portance to know who may and who may not set up the defense of usury. 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 "bor- rower," as used in the statute. Hungerford's Bank v. Dodge, 30 Barb. 626 ; Cassabeer v. Kalbfleisch, 11 Hun, 119. So the guar- antor of a note may set up the defense of usury in a case in which an indorser may do so. Parshall v. Lamoreaux, 37 Barb. 189. A surety of a principal who borrows money is within the statute, and he may set up the defense of usury, whenever that defense is available to the principal. Austin v. Fuller, 12 Barb. 360- Cole V. Savage, 10 Paige, 583 ; Morse v. Hovey, 9 Paige, 197. USUKY. 907 He has this right whether the principal desires to set up the de- fense or not. Ih. So, an assignee in trust for the benefit of •creditors may interpose this defense. Pearsall v. Kingsland, 3 Edw. Ch. 195. So a receiver of an insolvent corporation may repudiate the illegal transfer of its securities by its officers, and daim 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 mort- gage, may set up usury in defense to a bill of foreclosure, unless by tlie terms of purchase, he took the eqiiity of redemption merely, subject to the payment of the mortgage. BrooTcs v. Avery, 4 N. Y. 226. And a purchaser at a foreclosure sale under a valid mort- gage 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. But a mortgagee of real estate which is subject to the lien of a prior judgment, which was confessed by the mortgagor upon a usurious consideration, is not a borrower within the meaning of the statutes relating to usury, and therefore he cannot maintain a bill to set aside the judgment, without paying or offering to pay the sum actually due. Bexford v. Widger, 2 IST. Y. 131, 8. C. 3 Barb. Ch. 640 ; Shufeldt v. Shufeldt, 9 Paige, 138. A subsequent grantee or devisee of premises covered by a usur- ious 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 actually loaned. Post v. President, etc., of Bank of Utica, 7 Hill, 391 ; O'Brien v. Ferguson, 37 Hun, 368 ; Buckingham v. Corning, 91 IST. Y. 525. Usury cannot be set up as a defense to an action of foreclosure where the defendant is the grantee of the mortgagor who agreed to pay the usury. The ■defense is personal to the borrower. Terminal Bank v. Duhrojf, 120 IST. Y. Supp. 609. And it seems that the defense of usury cannot be set up in an action by a bank to foreclose a mortgage. If the bank has been guilty of usury the proper remedy for the borrower is to recover in a separate action double the amount of interest paid. lb.; Schlesinger v. Gilhooly 189 N. Y. 1; Caponigri v. Altieri, 165 IST. Y. 255; Schlesinger v. Lehmaier, 191 N. Y. 69. The defense of usury is not available to an accom- modation indorser on the note of a corporation negotiated for its use. Weinreb v. Coleman Stable Co. 70 Misc. 535, 127 IST. Y. Supp. 343. 908 USURY. The defense of usury can only be alleged or set up by the party bound by the original contract to pay the sum borrowed, or his sureties, heirs, devisees or personal representatives. Billingtoiv V. Wagoner, 33 IST. Y. 31. A mere stranger to the usurious con- tract cannot avail himself of the usury. Murray v. Judson, 9 N. Y. Y3 ; Rosa v. Butterfleld, 33 IST. Y. 665 ; Chapuis v. Mathot, 91 Hun, 565 ; Ohio & Mississippi R. R. Co. v. Kasson, 37 IST. Y. 218; Williams v. Tilt, 36 N. Y. 319; Mason v. Lord, 40 IST. Y. 476 ; Kay v. Whittaker, 4:4: IST. Y. 565. Persons who accept a lien upon, or an interest in, the equity of redemption of mort- gaged premises, as mortgagees or purchasers, expressly subject to the lien of the prior mortgage, cannot avail themselves of usury in such mortgage, in defense to a suit for its foreclosure. Sands V. Church J 6 IST. Y. 347. An innocent purchaser of an usurious mortgage may rely on the mortgagor's certificate, reciting that the mortgage was given for a valuable consideration expressed therein, and that there is no counterclaim or defense existing. Rider v. Gallo, 137 'S. Y. Supp. 1015. And the purchaser of a mortgage from an innocent purchaser thereof is entitled to enforce it against the mortgagor as against the defense that it was void because usur- ious in its inception. lb. If a grantee or assignee takes his as- signment or grant from the borrower subject to a lien on the prop- erty tainted 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. Merchants' Exchange Bank v. Commercial Warehouse Co. 49 JSr. Y. 642 ; Bullard v. Raynor, 30 IST. Y. 206 ; De Wolf v. Johnson, 10 Wheat. 369 ; Knickerbocker Life Ins. Co. v. Nelson, 78 ~N. Y. 137, 150. The purchaser of the mere equity of re- demption in premises covered by a usurious mortgage, who buys subject to the lien of the mortgage, cannot set up usury as a de- fense to the incumbrance. Green v. Kemp, 13 Mass. 515. This rule stands upon the fact that such 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 to the land cannot be permitted to avoid the mortgage by plea or proof of usury. Shufelt v. Shufelt, 9 Paige, 145 ; Post v. Dart, 8 Paige, 639; Morris v. Floyd, 5 Barb. 130; Sands v. Church, 6 ]Sr. Y. 347; Knickerbocker Life Ins. Co. v. Nelson, 78 IST. Y. 137, 150 ; Union Dime Savings Inst'n v. Wilmont, 94 N. Y. 221. !N"or is the defense of usury available to one who has purchased the USUKY. 909 land assuming the usurious mortgage. Hartley v. Harrison, 24 j^- Y. 170. And one who has purchased lands subject to a valid mortgage which he has assumed and agreed to pay cannot base the defense of usury to the instrument upon a subsequent agreement between himself and the mortgagee for its extension. Sweny v. Peaslee, 42 St. Eep. 485 ; Ganz v. Lancaster, 50 App. Div. 204. Subject to the rules above stated, a subsequent lienholder, by mortgage, or judgment, or mechanic's lien, may avail himself of the defense of usury against a prior mortgage. Berdan v. Sedg- wick, 40 Barb. 359, 44 K Y. 626; Dix v. Van Wyck, 2 Hill, 522 ; Morris v. Floyd, 5 Barb. 134 ; Union Dime Savings Inst'n v. Wil- ■mot, 94 N. Y. 221. But a subsequent lienholder can have no better right to interpose the defense of usury than the owner or borrower had at the time the lien was created. An owner or borrower may be estopped from setting up the usury, or he may in some way waive the defense, or, by agreement, purge the trans- action of usury; and whoever thereafter purchases from him the real estate upon which the usurious security is a mortgage, or obtains a lien thereon from or under him, takes his position, and can have no bettter right to allege the usury than he had. Ih. But it is only the borrower's own rights, and the rights of others acquired subsequent to the waiver, that are affected by the waiver. Mason v. Lord, 40 N. Y. 476, 486 ; Chapins v. Mathot, 91 Hun, 565, 569 ; French v. Shotwell, 20 Johns. 668. Corporations are precluded by statute from interposing the de- fense of usury. Laws of 1850, ch. 172, § 1. That is, the statute prevents the avoidance by a corporation of its own contract upon the ground of usury, but does not apply where the corporation succeeds to the rights of a party who might avail himself of the ^provisions of the usury laws. Merchants' Exchange Nat. Bank v. Commercial Warehouse Co. 49 IST. Y. 635. But it is not merely the corporation itself which 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 advantage of that defense in any stage of the cause, not even at the final hearing, although such defense was alleged in pleading, and was established by proofs before the act was passed. Curtis v. Leavitt, 15 IST. Y. 13, 8. C. 17 Barb. 309. This statute of 1850, chapter 172, is retrospective in its opera- tion, and it applies to foreign corporations litigating in the courts 910 USUKY. of this State. Southern Life Ins. & Trust Co. v. Packer, IT K Y. 51. A corporation is not merely precluded from interposing the defense of usury, but it cannot recover back usurious premiums- which it has paid on the loan or forbearance of money. Butter- ivorth V. O'Brien, 28 Barb. 187, S. C. 23 JST. Y. 275. It was formerly held that this statute did not preclude the de- fense of usury by one who had indorsed accommodation paper for a corporation, even when sued jointly with the corporation. Hu7i- gerford's Bank v. Dodge, 30 Barb. 626. And see Smith v. Alvord, 03 Barb. 415, 424. But the later decisions have construed the act as including within its prohibition, not only the corporation itself, but also individuals contracting as sureties, guarantors, or indorsers for the corporation. Stewart v. Bramhall, 74 N. Y. 85 ; Rosa V. Butterfield, 33 JST. Y. 665 ; Union Nat. Bank v. Wheeler, 60 iT. Y. 612. An indorser of a promissory note cannot set up usury in the inception of a note as a defense to a bona fide holder, Horowitz V. WoUowitz' 110 IST. Y. Supp. 972. But the indorser of a note for accommodation before its negotiation may set up the defense of usury. Bruck v. Lamheck, 118 IsT. Y. Supp. 117 j Eastman v. Shaw, 65 K. Y. 522. A judgment creditor, by selling the property of his debtor on execution may place himself in a situation to contest the validity of any prior lien or incumbrance affected by usury. Dix v. Van Wyck, 2 Hill, 522. And where an action of replevin was brought against a sheriff for goods which he had taken on an execution, where the plaintifl claimed the property under a prior mortgage executed by the judgment debtor, it was held that the sheriff might show as a defense to the action that such mortgage was usurious. lb. But where a bond is conditioned to save harmless and indem- nify 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 anything, re- cover 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 vipon 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 USURY. 911 it to a bona fide purchaser at a discount, representing it to belong to himself and to be business paper, the transaction is not usuri- ous 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 purpose of being sold at a usurious discount in the market. Holmes v. Williams, 10 Paige, 326. Klar V. Eostiuk, 119 E". Y. Supp. 683, 65 Misc. 199. Where a party purchases accommodation paper at less than its face, on representations made by the parties to it that it is busi- ness paper, and on which he relies, he is entitled to recover the whole sum payable by its terms, although it exceeds the amount paid for it, with the legal interest thereon. Burrall v. DeGrott, 5 Duer, 379. 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. Mechanics' Bank of BrooUyn v. Townsend, 29 Barb. 569, 8. C. 11 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 afterwards sold to a third person, for an amount less than should have been paid for it if discounted at legal interest, the maker is estopped by the certificate from set- ting up the defense of usury. Chamberlain v. Townsend, 26 Barb. 611. The reporter erroneously gives this as a special term deci- sion, when it was, in fact, decided at general term. See 27 Barb, Errata, p. 8. Where a bond and mortgage have been purchased in good faith and for value, in reliance upon a certificate made by the mort- gagor at the time of the execution of the instruments, to the effect that the mortgage was a valid lien and would be such in the hands of an assignee to the full amount of principal and interest, and that he, the mortgagor, had no defense to the mortgage or bond, either in law or equity, or any part thereof, the mortgagor is estopped by his certificate from setting up the defense of usury in an action to foreclose the mortgage. Weyfh v. Boylan, 85 N. Y. 394. Where the maker of a note employs an agent to negotiate the 912 USUKY. sale 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 representations of the agent, and will be estopped from setting up the defense of usury. Ferguson v. Harniilton, 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 a business note and valid. Ih. See Ahem V. Goodspeed, 72 K Y. 108. If the maker of a promissory note negotiates it through the in- strumentality of an agent, who, at the time of the sale and trans- fer thereof, represents to the purchaser 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 represent- tions and in ignorance of the fact that it never had a legal exist- ence as a note, the maker and the agent will both be estopped from alleging the contract of such representations, or from setting up the defense of usury. Parshall v. Ldmoreaux, 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 cogni- zant 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. 75. 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 representations of the indorser that it is busi- Tiess paper. Jackson v. Fassitt, 33 Barb. 645, and reporter's note explanatory in Ferguson v. Hamilton, 35 Barb. 439, 440. So, where the acceptor of a bill or draft gives it to the drawer merely to enable him 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. 76. If the purchaser of a note, which is represented by the payee and indorser to be business paper, knows the character of the paper, or has good reason to suspect its character, or does not purchase in consequence of the representations of the payee, he cannot set xip such representations as an estoppel. Truscott v. Davis, 4 JSarb. 495. See Nichols v. Nusshaum, 10 Hun, 214. But' if the purchaser purchased the note in good faith, and USURY. 913 •on the faith of the representations made by such payee and in- -dorser, he 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 him to raise money. Truscott v. Davis, 4 Barb. 495 ; Jackson v. Fassitt, 33 Barb. 645. Although, where an ac- commodation bill or note is made, and at the time of its first negotiation, representations are made that it is valid business paper, such representations will estope 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 char- acter of the paper, the defense of usury is not excluded by the mere omission to disclose the true character of the paper. ClarJc V. Sisson, 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 proving that the accept- ance and indorsement were for the accommodation of the drawer, and that the bill had no inception until its usurious discount or purchase by the plaintiff. Olarlc v. Sisson, 22 IST. Y. 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 ef- fectual as an estoppel when made orally as they would be in writ- ing. Ferguson v. Hamilton, 35 Barb. 427; Jackson v. Fassitl, S3 Barb. 645; Truscott v. Davis, 4 Barb. 495; Holmes v. Wil- liams, 10 Paige, 326. A contract made between the parties to a usurious agreement that usury shall not be insisted upon to invalidate the agreement, as void and cannot be enforced. Mabee v. Crozier, 22 Hun, 264. A lender cannot avoid his own contract on the ground that it ■contains a usurious reservation in his own favor. Elwell v. 'Chamberlain, 4 Bosw. 320 ; La Farge v. Herter, 4 Barb. 346, 9 K Y. 241 ; Billington v. Wagoner, 33 E". Y. 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; Cuthbert v. Haley, 8 Term, 390. And ■where a new security is given to such a bona fide holder of a 914 USURY. 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 possession of a usurious note by the indorsee is presumptive evidence that he received it before it became due, for a valuable consideration, without notice of the usury. lb. ; Smed- berg V. Whittlesey, 3 Sandf. Ch. 320. Where the payee of a usurious note indorsed it to a third person for a valuable con- sideration, who took it without notice of the usury, and he after- wards 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. § 3. How Affected by the Law of Place. 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 questions of usury. There are some general rules which are applicable to all contracts, and which determine whether such con- tracts are valid or void. The construction and validity of a con- tract which is purely personal 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 country where it is to be performed or carried into effect, and, in the latter case, the contract is governed by the law of the place where it is to be performed. Chapman v. Robertson, 6 Paige, 627 ; liosford v. Nichols, 1 Paige, 221 ; Hyde V. Goodnow, 3 IsT. T. 266; Pomeroy v. Ainsworth, 22 Barb. 120; Curtis V. Leavitt, 15 IST. Y. 14; Balme v. Wombough, 38 Barb. 352. 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 ; Pomeroy v. Ainsworth, 22 Barb. 120. AVhere a personal contract by its terms is to be performed in another State, and the place of performance is not chosen with any intention to evade our laws, but because that place best suits USURY. 91& the honest intention of the parties, our usury laws do not apply to it, although it be made and executed here. And where a nego- tiation for the sale and purchase of lands in Florida was made in that State, but the final agreement and the notes given for the purchase 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. Berrein v. Wright, 26 Barb. 208 ; Curtis v. Leavitt^ 15 K Y. 14 ; Bard v. Poole, 12 N. Y. 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 pay- able. Pomeroy v. Ainsworth, 22 Barb. 120. And where a con- tract 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. 11.; Curtis v. Leavitt, 15 IST. Y. 14, A note made in another State or territory, and designating no' place of payment, which bears a higher rate of interest than ia allowed by 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. The question whether the contract is usurious depends not upon the amount of interest allowed, but upon the validity of the inter- est in the country or State where the contract is made and is to be executed. Thompson v. Ward, 33 Misc. 426; Thoi-n v. Alvord, 32 Misc. 456 ; Sheldon v. Haxtun, 24 Hun, 196, 91 K". Y. 124. 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 discount, it is invalid if negotiated in another State- at a rate of discount greater than that allowed by the usury laws of this State. DicMnson v. Edwards, 77 N. Y. 573; Jewell v. Wright, 30 K Y. 259. 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 bill of exchange in favor of the other upon a person residing in ISTew York, the parties will be con- sidered as contracting according to the laws of the former State, and the bill will not be usurious unless it is rendered so by the laws of the State where it was drawn. Bank of the State of 916 USURY. Georgia v. Lewis, 45 Barb. 340; Balme v. Womhough, 38 Barb. 352. A party residing in one State who goes into ai-other State and there makes an agreement with a citizen of that State for a loan, lawfully 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 County Savings Bank v. Low, 81 K 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 law of that State is' and the 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 Bank 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.; Pomeroy v. Ainsworth, 22 Barb. 120; Davis v. Garr, 6 IST. 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. 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 delivered, is the place of execution. The place where the in- strument 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 per- formed. 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 performed. 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. Goad- •now, 3 IsT. 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 con- USURy. 917 tract is void. Hammond v. Hop-ping, 13 Wend. 505. Where a note or other instrument is made, which on its face reserves law- ful 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 established, such note or instrument will be void for usury. Austin v. Fuller, 12 Barb. 360; Macomber v. Dunham, 8 Wend. 550; Merrills 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 ef- fect in discharging a surety, has been explained. No custom or usage can render a transaction lawful, if it falls within the prohibition of the statute relating to usury. The statute is paramount, and it will render every contract void which is made in violation of its provisions, no matter how numerous the in- stances, or how common the practice of disregarding it. Pratt v. Adams, 7 Paige, 617; Dunham v. Dey, 13 Johns. 40; Dunham V. Oovld, 16 Johns. 367; Bank of Utica 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 the 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. Stillman, 25 IST. T. 541 ; Cat- lin V. Gunter, 11 N. Y. 368; Sizer v. Miller, 1 Hill, 227; Roch- well V. Charles, 2 Hill, 499; Conger v. Tradesman's Bank, Hill & Denio, 34; Doe v. Brown, Holt's N. P. 295; Doe v. Qooch, 3 Bam. & 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 con- tract does not show usury on 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 matter of law, whenever the question is properly before such court. 918 USUEY. 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 thus pledged, mortgaged, or assigned it, may recover the property in an action of replevin, or its value in an action of trover. Schroeppel v. Coming, 6 INT. Y. 107 ; Schroeppel v. Coming, 5 Denio, 236. But, where there is an existing usurious debt, and the debtor volun- tarily sells and delivers personal property to the creditor in pay- ment 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 creditor, except an action under the statute to recover the value of the property so sold, or the money paid on a usurious agreement. AcMey v. Finch, 7 Cow. 290; Schroeppel v. Corning, 10 Barb. 576, S. C. 6 E". Y. 107. The statute which limits the right of the debtor to sue within one year, relates to those cases only in which a pre-existing usur- ious debt has been paid ; and, if the property was delivered at the time of making the xisurious 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 will be noticed, so far as it will be proper to do so, in this work. INSURANCE. 919 CHAPTER XIX. INSURANCE. § 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. The laws relating to the incorporation of insurance companies iave been codified, and are to be found in chapter 33 of the Laws of 1909, which constitutes chapter 28 of the Consolidated Laws, and is known as "The Insurance Law." It is not necessary to more than refer to them in this connection. Insurable interest. — One of the first questions to consider is as to the power to enter into a valid contract for insurance against loss or damage by fire. It is a universal rule that a policy of insur- ance, which constitutes the contract of insurance between the in- .surer and the insured, is absolutely void unless the insured had, at the time of entering into the contract, an insurable interest in the property insured. Without such interest the policy is a mere wagering contract. It is also an undoubted principle in fire in- surance that there must be an insurable interest in the insured, or an insurable interest which he represents in the subject of insur- ance, existing at the time of the happening of the event insured .against to enable him to maintain an action on a fire policy. This flows from the nature of the contract of fire insurance, which is a contract of indemnity; and where there is no interest there is no room for indemnity. Foley v. Manufacturers' Fire Ins. Co. 152 ISr. Y. 131 ; Fowler v. New York Indemnity Ins. Co. 26 N. T. 422. Hence a complaint in an action on a policy of fire in- surance must contain an averment of such an interest in the plaintiff, or in the person for whose benefit the contract was made, in order to state a cause of action. Williams v. Insurance Co. of North America, 9 How. 365 ; Freeman v. Fulton Fire Ins. Co. 14 Abb. 938, 38 Barb. 297; Fowler v. New York Indemnity Ins. €o. 26 IST. Y. 422. But see Sullivan v. Spring Garden Ins. Co. 34 App. Div. 128. In case of an assignment of the policy before 920 INSUEANCE. loss, the complaint should show that the plaintiff or his assignor had an interest in the subject insured. Fowler v. New York In- demnity Ins. Co. 26 ]Sr. Y. 422. What constitutes an insurable interest has been the subject of much discussion in the reported cases and is often a question of great difficulty. The tendency of decisions in recent times is in the direction of a more liberal doctrine upon this point than formerly prevailed. Only a few examples can be given by way of illustration of what has been held to constitute an insurable in- terest, and who are deemed to have such an interest. It is not necessary to constitute an insurable interest, that the interest is such that the event insured against would necessarily subject the insured to loss. It is sufficient that it might do so and that pecuniary injury would be the natural consequences. Cone V. Niagara Fire Ins. Co. 60 IST. Y. 619 ; Riggs v. C. M. Ins. Co. 125 ]Sr. Y. Y. It is not necessary to support an insurance that the assured should have an interest, legal or equitable, in the prop- erty destroyed. It is enough if he is so situated with reference to it that he would be liable to loss if it is destroyed or injured by the peril insured against. Berry v. A. 0. Ins. Co. 132 N. Y. 49 ;. Rohrhacli v. Germania Fire Ins. Co. 62 N. Y. 47 ; National Filtering Oil Co. v. Citizens' Ins. Co. 106 IST. Y. 535, 541; Harvy v. Cherry j 76 IST. Y. 436. A pledgee of personal property or a trustee having the legal title is the ovsraer within the terms of a policy of insurance. Whelan v. Goldman, 62 Misc. 108, 115 N. Y. Supp. 1006. In a contract for future delivery of goods manu- factured and to be manufactured, it was provided that the seller should continue responsible for the goods up to the time of delivery except in case of loss by fire. Insurance had previously been taken out by the seller and as the contract left it without insur- able interest it was changed so as to hold the seller in case of loss by fire. Held, reversing a judgment for the defendant company, that a finding of fact that the contract was not changed was against the evidence, and that it would be a miscarriage of jus- tice if the insurer should be permitted to escape liability for a loss it was fully paid for carrying. Burke v. Continental Ins. Co. 128 App. Div. 391, see 184 IsT. Y. 77, 570. A stockholder in a corporation has neither legal title to the corporate assets or property, nor any equitable title which he can convert into a legal title, yet he has an insurable interest in the corporate property. Biggs V. C. M. Ins. Co. 125 IST. Y. 7. A person may insure against INSURANCE. 921 his liability with reference to a certain property as well as his interest therein. Berry v. A. C. Ins. Co. 132 N. Y. 49. Thus, a tenant who has agreed orally with his landlord to keep the de- mised premises insured, and who would be liable to his landlord for the loss of the buildings if he failed to insure them, has an insurable interest in the buildings, and he may insure them in his own name to their full value. lb. A common carrier may in- sure goods intrusted to him to their full value without regard to his liability to the owner. Crowley v. Cohen, 3 B. & Ad. 478 ; London & N. W. By. Co. v. Glyn, 1 El. & El. 652. So may a warehouseman, although liable to the owner only for his own neg- ligence. Waters v. Monarch F. & L. Ass. Co. 5 El. & Bl. 870 ; Stillwell V. Staples, 19 N. Y. 401 ; De Forest v. Pulton Fire Ins. Co. 1 Hall, 84. So may a charterer of a vessel, who is liable to pay its value in case of loss, or has contracted to insure it against usual risks. Oliver v. Oreene, 3 Mass. 133; Bartlet v. Walter, 13 Mass. 267. Insurers of buildings have an insurable interest therein which they may reinsure. N. Y. Bowery F. Ins. Co. v. N. Y. F. Ins. Co. 17 Wend. 356. The administrators of an insolvent estate have an insurable interest in the buildings belonging to it. Herh- imer v. Bice, 27 N. Y. 163. Agents, commission merchants and others, having the custody of, and being responsible for, prop- erty, may insure in their own names ; and they may, in their own names, recover of the insurer not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy up to the value of the property. Waring v. Indemnity Fire Ins. Co. 45 N. Y. 606. A mortgagor of chattels has an insurable interest by reason of his right to the equity of redemption. Allen v. Franklin Fire Ins. Co. 9 How. 501. A mortgagee of chattels has also an in- surable interest. Boussel v. St. Nicholas Ins. Co. 52 How. 495, 9 Jones & Sp. 279. And a mortgagee of property may recover the insurance on property covered by his mortgage, regardless of any other security that he may hold. Kent v. .^tna Ins. Co. 82 N. Y. Supp. 817, 84 App. Div. 428. The ovraer in fee in pos- session of lands, who has contracted for the erection of buildings thereon out of materials to be furnished by the contract, or has an insurable interest in the buildings while in the course of construc- tion although he was not to pay for them until after completion, and in case of their destruction by fire, before completion, would 922 INSUEANCE. not be bound to pay the contractor for the work done or materials furnished. Foley v. Manufacturers' Fire Ins. Co. 152 N. Y. 131. Unti] a decree declaring an insured structure a nuisance, and directing its removal is actually put into effect by the destruction or removal of the building, the structure continues to be the prop- erty of the owner, and mere promises to abate the nuisance do not deprive the owner of his insurable interest therein so long as it remains undisturbed upon his land. Irwin v. Westchester Fire Ins. Co. 109 IvT. Y. Supp. 612. A sheriff or a constable who has taken personal property into his possession by virtue of an attachment, replevin process, execu- tion, or other legal process, has a special property therein, which gives him an insurable interest. White v. Madison, 26 'N. Y. 117. And a deputy sheriff 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 con- stable'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 subsequently to such sale gave their consent to an assignment of the policy to the purchaser. Hooper v. Hudson River Fire Ins. Co. 17 N. Y. 424. Where a policy upon the goods and chattels covers "the prop- erty of the insured or held by him in trust," the person insured may recover the value of property intrusted to him for the pur- poses of being manufactured ; and he may recover the full value of the entire property, without being limited to his interest therein. Stillwell V. Staples, 19 'S. Y. 401. But where a manufacturer sold glass under an agreement that it was to be delivered and be- come the property of the buyer as soon as manufactured, the manufacturer to store the same on his premises and to be res- ponsible and liable for its custody and safety and for any and all loss except by fire, it was held that it has no title to glass so manufactured and in its custody which gave it an insurable inter- est therein in case of fire. Burke v. Continental Ins. Go. 184 Is. Y. 77. In such case the manufacturer does not hold the property "in trust" for the buyer so as to enable it to recover upon a fire policy. Ih. An insurance effected by one partner on partnership property, although made in his own name, and expressed to be on his sole account, will protect his undivided interest so as to enable him INSUEANCE. 923 to recover the amount of that interest, in ease there is a loss. Irving v. Excelsior Fire Ins. Co. 1 Bosw. 508 ; Sharp v. Whipple, id. 557. One who had a life estate in a farm, insured the build- ings thereon in his own name describing them as "his," and the insurance company agreed to pay the loss to him : Held, that upon a loss only the value of his life estate in the property was recover- able under the policy. Beehman v. Fulton & Montgomery Coun- ties Farmers' Mutual Fire Insurance Association, 66 App. Div. 72. Insurance of mortgaged property.— Where the property insured is mortgaged, and the policy is procured, 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. Ennis v. Har- mony Fire 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. Ih. See Winne v. Niagara Fire Ins. Co. 91 IST. Y. 185. Where the policy makes a portion of the loss payable to a third person "as his interest may appear," either he or his assignee may maintain an action on the policy in case of loss. Pitney v. Olens Falls Ins. Co. 65 N. Y. 6. Where a person talces out an insurance policy covering "the property of the assured or any member of his household," the insured may properly bring the action in his own name alone and recover the entire loss. Mc- Manus v. Western Assurance Co. 43 App. Div. 550. And where a policy insures two persons named, one as owner, and another as contractor, "as interest may appear," several con- tracts are thereby created, one with each insured, upon which either may sue without joining the other. Sullivan v. Spring Garden Ins. Co. 34 App. Div. 128. Where a policy of insurance covering mortgaged chattels makes the loss payable to a mortgagee named, the mortgagee may main- tain an action in his own name upon the policy in case of loss, without joining the persons in actual possession of the property at the time of the insurance and m whose name the policy was obtained, although they were the owners of the property subject to 924 INSUEANOE. the interest of the mortgagee. Roussel v. 8t. Nicholas' Ins. Co, 52 How. 495, 9 Jones & Sp. 279. Action by assignee of the policy. — Where a policy has been as- signed as a collateral security, and an action is brought by the as- signee, 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 ii, will be demurrable. Peahody v. Washington Co. Mutual Ins. Go. 20 Earb. 339. The assignor of the policy is the real owner of the property in such a case, subject only to the rights of the as- signee to the payment of his debt, and in case of a loss, the assignor may recover against the company to the extent of the loss. Ih. In an action by an assignee of a policy, or of a right to recover the money due for the loss, it vdll not be sufficient for the plain- tiff to allege his interest in the subject-matter of the action, and cf the assignment thereof, in general terms, without stating de- tails as to either. Fowler v. N. Y. Indemnity Ins. Co. 26 N. Y. 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 Fire Ins. Co. 2 Duer, 481. But the plaintiff should allege generally the performance of conditions precedent as authorized by the Code. Sullivan v. Spring Garden Ins. Co. 34 App. Div. 128, Code of Civil Pro. § 533. Agreements for insurance. — 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. Whitaker v. Farmers' Union Ins. Co. 29 Barb. 312; Chase v. Hamilton Mutual Ins. Co. 22 Barb. 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 upon the agreement and the loss, and recover a judgment for the amount actually due. Bochwell v. Hartford Fire Ins. Co. 4 Abb. 179 ; Perkins v. Washington Ins. Co. 4 Cow. 645. And see Lighthody v. North American Ins. Co. 23 Wend. 25, 18. Construction of the policy. — If there is a discrepancy or a re- j'Ugnancy between the written and the printed portion of the policy, the written portion will prevail over the printed part. INSUEANOE. 925 Harper v. Albany Mutual Ins. Co. 17 E". Y. 194; Sidlivcm v. Spring Garden Ins. Co. 34 App. Div. 128. Where the stock in trade of a manufacturer is insured, the policy is construed to inaply a license to him to keep on hand and use all such articles as are necessary, and such as are ordinarily used in the manufacture of such articles as are insured, notwith- standing the policy may prohibit in its printed terms the use or keeping of such articles. Bryant v. Poughheepsie Mutual Ins. Co. 17 K T. 200; Harper v. Albany Mutual Ins. Co. id. 194; Harper v. N. Y. City Ins. Co. 22 N. Y. 411. In the absence of any stipulation to the contrary, every insurer against fire takes the risk which is incident to making necessary repairs to the insured property. Townsend v. Northwestern Ins. Co. 18 ]Sr. 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 occupied 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 in application. — Statements which are made in an application for insurance, where they are material in relation to the risk or any part of it, will be considered in the nature of a v/arranty ; 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. Cattaraugus Co. Mutual Ins. Co. 18 K Y. 376; Brown v. Same, id. 385; Murdoch v. Chenango Co. Mutual Ins. Co. 2 IST. Y. 210 ; Wilson v. Herhimer Co. Mutual Ins. Co. 6 IST. Y. 53 ; Wall v. East River Mutual Ins. Co. 7 E". Y. 370. A "representation" is a statement by insured which is mater- ial to the risk, while a "warranty" is any statement whether ma- terial or not which the parties have expressly agreed is true. Eas- przyJc V. Metropolitan Life Ins. Co. 140 E". Y. Supp. 211. A fraudulent statement by insured is a statement known to be false. lb. In the absence of statute, representations as to material mat- ter, which are false, avoid the policy, though not fraudulently made. lb. It is well settled in this State that where, by the terms of a contract of insurance, the application is made a part of the policy, answers made to specific questions in the application are deemed warranties, and if untrue, prevent a recovery on the policy. Egan V. Mut. Ins. Co. of Albamy, 5 Denio, 326; Shoemaker v. Glens Falls Ins. Co. 60 Barb. 84; Pierce v. Empire Ins. Co. 62 Barb. 926 INSURANCE. C36 ; Eipley v. Mtna Ins. Co. 30 IST. Y. 136 ; First N. Bank of Ballston Spa v. Ins. Co. of N. A. 50 N. Y. 45 ; Armour v. Trans- atlantic Fire Ins. Co. 90 N. Y. 450; King v. Tioga Co. Patrons'^ Fire Belief Assn. 35 App. Div. 58. In such case the statements, contained in the application are made material by the contract. lb.; Shoemaker v. Glens Falls Ins. Co. 60 Barb. 84; Pierce v. Empire Ins. Co. 62 Barb. 636; Graham v. Fireman's Ins. Co. 87 JST. Y. 69. But no part of an application for insurance can be- regarded as a warranty unless made so by the contract of insur- ance. When parts of the application are not adopted and made the basis of the contract, so as to constitute warranties, they are to- be treated as representations, not prejudicing the rights of the in- sured, unless they are material to the risk, are untrue, and were not made in good faith. Owens v. Holland Purchase Ins. Co. 56' K Y. 565; Lasher v. Northwestern Nat. Ins. Co. 18 Hun, 98" 103, 57 How. 228. To make an application constitute a part of a policy of insurance, there must be some reference to it, which evinces that the parties understood and accepted it as such. Vilas V. iV". Y. Central Ins. Co. 72 N. Y. 590. Where no written ap- plication is made or authorized by the insured, and in the oral application no untrue statements are made, if the agent acting for the company in procuring the insurance, of his own motion and without the knowledge of the insured, fills out and forwards a written application, the insured is not bound by the untrue state- ments therein made. Blass v. Agricultural Ins. Co. 18 App. Div., 481 ; Benninghoff v. Agricultural Ins. Co. 93 N. Y. 495. And see Sprague v. Holland Purchase Ins. Co. 69 IST. Y. 128. It is often the case that no formal written application for in- surance precedes the issuing of the policy ; and in many cases the agent of the insurer merely ascertains from the assured the loca- tion of the property and the amount of insurance desired, obtain- ing the other information required by a personal survey and exam- ination of the premises, or by inquiries of third persons. In such eases the strict rule of warranty is relaxed, and any misstatement in the policy, known to the agent to be false when the insurance ■^i'as effected, will not be allowed to prejudice the assured. See OliMse V. People's Fire Ins. Co. 14 Hun, 456 ; Van Schoic v. Niagara Fire Ins. Co. 68 JST. Y. 434; McCabe v. Farm Buildings Fire Ins. Co. 14 Hun, 602 ; Broadhead v. Lycoming Ins. Co. 14 Hun, 452; Partridge v. Commercial Fire Ins. Co. 17 Hun, 95. Still, statements contained in the policy descriptive of the prop- INSUKANCE. 927 erty insured or otherwise, have been held to be warranties. Com- pare Alexander v. Germania Fire Ins. Co. 66 N. Y. 464; Maker V. Hihernia Ins. Co. 67 IST. Y. 283 ; Broivning v. Hoone Ins. Co. 71 ]Sr. Y. 508 ; Woodruff v. Imperial Fire Ins. Co. 83 N. Y. 133. Conditions in the policy.— If the conditions of a policy of insur- ance prohibit the storing of certain specified articles, in the build- ings 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. Hynds v. Schenectady Co. Mutual Ins. Co. 11 N. Y. 554. The provision against stor- ing and keeping petroleum, etc., usually found in insurance poli- cies, refers to storing and keeping in a mercantile sense, in con- siderable quantities, with a view to commercial traffic. Williams V. Fireman's Fund Ins. Co. 54 IST. Y. 569 ; Buchanan v. Exchange Fire Ins. Co. 61 N. Y. 26. So, where the policy of insurance upon a sawmill contains a provision avoiding it in case the mill ceased to be operated for more than ten consecutive days or be- come vacant or unoccupied and so remained for ten days, a mere temporary cessation of the operation of the mill by reason of sick- ness, break down, low water or other unavoidable cause, will not have the effect of avoiding the policy. Ladd v. Insurance Co. 147 K Y. 478 ; Whitney v. Blach River Ins. Co. 72 K Y. 117. 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 W. Y. 184. A dwelling furnished through- out, from which the owner had removed for a season, intending to return and resume possession, is not vacant within the mean- ing of such a policy. Ih. A dwelling-house is "unoccupied" when no one lives therein, but it is not necessarily "vacant." 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 JST. Y. 162 ; Stapleton v. Greenwich Ins. Co. 16 Misc. 483, 15 id. 642. Un- der the terms of a policy of insurance a stipulation in regard to occupancy may become an express warranty, and unless either per- formed or waived, the policy will become void. O'Brien v. P. Ins. Go. 134 ]Sr. Y. 28, 30. The words "warranted by the assured that the within described building is occupied exclusively for dwelling purposes by not more than two families," stamped on the face of a fire policy when delivered, mean primarily that the building 928 INSUEAN'OE. is used exclusively for dwelling purposes. De Noyelles v. Dela- ware Ins. Co. of Philadelphiaj 138 N. T. Supp. 855. After a breach of this condition, the fact that the insured returned to the house before the fire, and that absence therefrom may not have increased the risk, will not affect a defense founded on a breach of the condition. Couch v. Farmers' Fire Ins. Co. 64 App. Div. 367. If to the knowledge of the agent at the time of the appli- cation for insurance the dwelling was then vacant and unoccupied, a condition in the policy requiring notice of and a special agree- ment indorsed on the policy in case the building became vacant and unoccupied will be deemed waived. Woodruff- v. Imperial F. Ins. Go. of London, 83 IST. Y. 133. Where the insurer knew, when ac- cepting a premium and delivering a policy, that the premises v/ere not used exclusively for dwelling purposes, as specified in a warranty stamped on the face of the policy, the warranty was waived. DeNoyelles v. Delaware Ins. Go. of Philadelphia, 138 N. T. Supp. 855. 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 condition, thus forming part of a policy, is not complied with, the plaintiff cannot recover. Juie v. Broohlyn Fire Ins. Co. 28 Barb. 412 ; Jennings v. Chenango Co. Mutual Ins. Co. 2 Denio, 75 ; Murdoch v. Same, 2 !N^. Y. 210. So a violation of any of such conditions will avoid the policy, and prevent a recovery upon it. Ih. A violation of the conditions of a policy renders it void, and it is entirely immaterial whether the acts constituting such viola- tion caused the loss or not; and a removal of the property or articles, or a cessation of the performance of the acts, constitut- ing such violation, will not revive a policy once forfeited, unless the insurer by his acts waives the forfeiture, or unless both par- ties consent to a renewal of the risk. Mead v. Northwestern Ins. Co. 7 ]Sr. Y. 530, 533, 535, 536. See Couch v. Farmers' Fire Ins. Co. 64 App. Div. 367. Waiver of forfeiture. — Where there has been a breach of a con- dition contained in an insurance policy, the insurance company may or may not take advantage of such breach and claim a for- feiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that ef- fect, or by acts from which an intention to waive may be inferred, cr from which a waiver follows as a legal result. A waiver cannot INSURANCE. 929 be inferred from its mere silence. It is not obliged to do or say anything to make the forfeiture effectual. It may wait until a c'laim is made under the policy and then in denial thereof, or in defense of a suit commenced therefor, allege the forfeiture. But iL may be asserted broadly that if, in any negotiations or transac- tions with the assured, after knowledge of the forfeiture, it recog- nizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act, or incur some trouble or expense, the forfeiture is as a matter of law waived. Such a waiver need not be based upon any new iigreement or estoppel. Titus v. Glens Falls Ins. Co. 81 IST. Y. 410 ; Benninghojf v. Agricultural Ins. Co. 93 IST. Y. 495, 502. Forfeitures are not favored ; and for the purpose of upholding a contract of insurance, its provisions will be strictly construed against the insurer. When its terms permit more than one con- struction that will be adopted which supports its validity. It is only where no other is permissible by the language used that a con- struction which works a forfeiture will be given it. Baley v. Homestead Fire Ins. Co. 80 IST. Y. 21, 23 ; Darrow v. Family Fund Society^ 116 IST. Y. 637 ; MouUon v. yEtna Fire Ins. Co. 25 App. Div. 275. Slight evidence of a waiver of clauses or stipula- tions in a policy which involve a forfeiture will operate to defeat their effect. When company estopped from claiming a forfeiture. — If a policy has been rendered void by a violation of its conditions by the in- sured, yet if the company, with a full knowledge of such fact, subsequently assesses the premium note of the insured, and col- lects and receives the assessment, this will estop the company from setting up the forfeiture, and it will be liable for any loss sub- sequently occurring during the life of such policy. Viall v. Gene- see Mutual Ins. Co. 19 Barb. 440 ; Frost v. Saratoga Mutual Ins. Co. 5 Denio, 154. 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. Liddle v. Market Fire Ins. Co. 4 Bosw. 179, 188, and cases cited. Where the conditions of a policy provide that any action to re- cover 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 59 930 INSUKANCE. is valid; but, if the company, by its duly authorized agents, pre- vents an action from being comiaenced within that time, such defense will not be available. Ames v. N. Y. Union Ins. Co. 14 K Y. 254. In the case last cited, the insured was induced to defer bringing £in action within the limited time, by the representations of the sec- retary of the company to him, that the time would not expire until a specified day, which was in fact a day after the limited time. Conditions as to the inception of the contract. — A clause in a policy of insurance which is already in existence and operation, that no insurance, whether original or continued, should be con- sidered 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 agreement that such policy shall be renewed from year to year, without paying the premium at the time of such renewal, but that such premium shall be paid on demand; and where such re- newals 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. Brooklyn Fire Ins. Co. 19 N. Y. 305; ;S. C. 18 Barb. 69. Such a clause is one which is inserted for the benefit of the insurer, and he may waive it if he chooses. Goit v. National Pro- tection Ins. Go. 25 Barb. 189. Such w-iver may be established by an express agreement, or it may be inferred from the circum- stances proved on the trial, and it may be made by the managers of the company or by a duly authorized agent. Ih. A general agent of the company who is authorized to make contracts of in- surance for it, may waive such payment and bind the company. lb.; Sheldon v. Atlantic Fire & Marine Ins. Co. 26 IST. Y. 460. The acknowledgment in a fire policy of the receipt of the premium, does not estop the insurer from showing that it has not been paid; it is evidence, but not conclusive. lb. Where the application for insurance is drawn, and the measure- ments and survey are made by a duly authorized agent of the insurers, and the 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 in- surers will be estopped from controverting the truth of such state- ments. Plumb V. Cattaragus Co. Mutvxil Ins. Co. 18 W. Y. 392. But, if the application for insurance provides that the insurer INSUKAWOE. 931 ahall not be bound by any acts or statements made to any a;gents, or by them, unless such statements are contained in the appli- cation, the knowledge 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 applicant was not prevented from having such statement so inserted therein. Chase v. Hamilton Ins. Co. 20 N. T. 52. In this case the applicant for insurance made a misstatement, and the knowledge of the agent did not aid him. See Woodruff v. Imperial F. Ins. Co. of London, 83 ]Sr. Y. 133, 140, 141. But, if the applicant employs an agent of the insurer to draw up his application for insurance, such applicant will be bound by the erroneous statements inserted by such agent in the applica- tion, even if it is done without the knowledge of such applicant. Smith V. Empire Ins. Co. 25 Barb. 497. 'No person is permitted to act in the capacity of agent for both parties; and a contract of insurance so made, may be set aside by either party. N. Y. Central Ins. Go. v. National Protection Ins. Co. 14 ]!T. Y. 85. While it is difficult to harmonize all the decisions upon the sub- ject without a careful comparison of the facts surrounding each case and of the terms of the several contracts entered into by the parties and construed by the court, it has long been settled that general agents of an insurance company may waive stipiilations and provisions contained in the policy with respect to the con- ditions upon which it shall have inception and go into operation as a contract between the parties, by delivering it with knowledge of all the facts and receiving the premium. McNally v. P. Ins. Co. 137 K Y. 389 ; Forward v. Cont. Ins. Co. 142 K Y. 382 ; Wood V. American Fire Ins. Co. 149 N. Y. 382. The restric- tions inserted in a contract of insurance upon the power of the agent to waive any condition unless done in a particular manner, do not apply to those conditions which relate to the inception of the contract, when it appears that the agent has delivered it and received the premiums with full knowledge of the actual situa- tion. To take the benefit of a contract, with full knowledge of all the facts, and attempt afterwards to defeat it, when called upon to perform, by asserting conditions relating to those facts, would be to claim that no contract was made and thus operated as a fraud on the other party. lb. An insurance company which authorizes one of its ' general agents to receive applications for insurance, which are to be sub- 932 INSUEANCE. mitted 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 'S. Y. 351. But, where a local agent is appointed, who is declared by a written appointment to be a regularly appointed agent and sur- veyor of the company, and who is duly authorized to take appli- cations for insurance, he may take such applications, but he ha:^ no legal authority to bind the company by an approval of a sub- sequent policy of insurance issued by another company. Wilson V. Genesee Mutual Ins. Co. 14 IST. Y. 418 ; Mellen v. Hamilton Fire Ins. Co. 17 N. Y. 609, S. C. 5 Duer, 101. But, it has been held that a verbal notice to such an agent of a prior insur- ance upon the same property, is valid, and will bind the com- pany. Sexton V. Montgomery Co. Mutual Ins. Co. 9 Barb. 191 ; McEwen v. Montgomery Co. Mutual Ins. Co. 5 Hill, 101. Notice of loss. — Policies of insurance generally contain a clause that in case of loss, the insured shall forthwith give notice thereof to the company. This does not mean that notice shall be given immediately or instantaneously after the fire, but within a reason- able time, or with reasonable diligence, in view of all the circum- stances of the case. N. Y. Central Ins. Co. v. Nat. Protection Ins. Co. 20 Barb. 468 ; Inman v. Western Fire Ins. Co. 12 Wend. 452; Bennett v. Lycoming Co. Mut. Ins. Co. 67 IST. Y. 274; Griffey v. N. Y. Cent. Ins. Co. 100 K Y. 417; Matthews v. Am. Cent. Ins. Co. 154 N. Y. 458 ; Solomon v. Continental Fire Ins. Co. 28 App. Div. 213, 160 W. Y. 595. The same construction is given to a provision requiring immediate notice of loss. III. In one case, where the policy requires the insurer to forthwith give notice of loss, the fire 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 authorize proof that the proper notice was given on the 21st day of May, 1852. Hovey v. American 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 "immediate" notice of the loss should be given. The office of the company was located in the city of iSTew York, and the plaintiff resided in the city of Buffalo, where the INSURANCE. 933 property was insured by an agent of the company residing there. The loss occurred on Saturday night, between New York and Albany, and the plaintiff was notified thereof by telegraph, on Sunday or Monday; and as early as Monday, the agent of the company at Buffalo 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. Savage v. Com Exchange Fire & Inland Nav. Ins. Go. 4 Bosw. 1. So, in a ease where the policy required notice of loss to be given "forthwith;" 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. Y. Central Ins. Co. V. National Protection Ins. Co. 20 Barb. 468. The re- versal of this case, 14 N. Y. 85, was upon another 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. Inman v. Western Fire Ins. 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 February, preceding, is not sufficient. lb. The com- plaint 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 introduced. lb. Precedents are of little value in determining whether there has been a sufficient compliance with this requirement in a policy as the circumstances surrounding the insured after the loss may be unusual and peculiar. In one case the plaintiff was the assignee of the parties originally insured, and had not personally attended to the matter of obtaining the consent of the company to the trans- fer of the policy to him. There were many other policies upon the property. The buildings insured were totally destroyed by fire on the 16th day of December, 1893. At the time of the fire the policy was in the safe in the building destroyed, and the plain- tiff was without books or papers which would disclose the names cf the companies which had policies upon the property, and with- out knowledge of the defendant's policy or its requirements. The safe could not be removed from the ruins until about six days after the fire, and then could not be opened for some time afterwards^ Through a combination of circumstances the policy in suit was not iound until about fifty days after the fire, and notice was not 934 INSUEANOE. given until three days afterwards, actually reaching the defend- ant company on the 6th of February. It was held in this case that it could not be said, as a matter of law, that the notice was not mailed in a reasonable time, or that the plaintiff had not used due diligence. Solomon v. Continental Fire Ins. Co. 160 N. Y. 595. A delay of five months in giving notice of loss has been held fatal. Sherwood v. Agricultural Ins. Co. 10 Hun, 593. See Brink v. Hanover Fire Ins. Co. 10 N. Y. 593, 80 N. Y. 108 ; Quinlan v. Providence-Washington Ins. Co. 39 St. Rep. 820. Proofs of loss. — 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 pre- liminary proofs required by the policy, and no action can be main- tained until this is done, unless there is a waiver of it by the company. Blossom v. Lycoming Fire Ins. Co. 64 N. Y. 162 ; Savage v. Howard Ins. Co. 52 N. Y. 502 ; Underwood v. Farm- ers' Joint-Stoch Ins. Co. 57 IST. Y. 500. If, upon the trial, it ap- pears that proofs of loss were not furnished within the time re- quired by the policy, and there is no evidence of a waiver, it is the duty of the court to nonsuit the plaintiff. Blossom v. Lycom- ing Fire Ins. Co. 64 'E. Y. 162. It has been held that, where proofs of loss have been furnished, the insured is bound by the statement thus made, and cannot, on the trial, impeach its truth, nor can he recover upon evidence showing a different state of facts. Irving v. Excelsior Fire Ins. Co. 1 Bosw. 507. And see De Grove v. Metropolitan Ins. Co. 61 E". Y. 594. But this doc- trine must not be accepted without qualification. McMaster v. Frest, etc. Ins. Co. of N. A. 55 N. Y. 222 ; Cummins v. Agrir ■cultural Ins. Co. 67 JST. Y. 260; Neill v. Popular Life Ins. Co. 10 Jones & Sp. 259. The liability of an insurance company to a mortgagee, entitled to payment of a loss as his interest may appear, is different from the liability to the owner, and the provisions of the policy as to presentation of proof of loss and as to the short statute of limitations do not apply to a mortgagee. Salomon v. North British and Mercantile Ins. Co. of New York, 135 N. Y. Supp. 806. The insured is bound to comply with 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 ofiice of the insurer, and also permit copies thereof to be made, the insured must comply with such conditions, and if he INSUEANCE. 935 refuses to do so, after a proper demand made by the insurer or his agent, he cannot recover. Juhe v. Brooklyn Fire Ins. Co. 28 Barb. 412 ; O'Brien v. Commercial Fire Ins. Co. 63 K T. 108. Compliance with such conditions will in some cases be excused. And where such books, papers, accounts and vouchers are burned hy 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. Bwmstead v. Dividend Mu- tual Ins. Co. 12 ]Sr. Y. 81; Norton v. Rensselaer & Saratoga Ins. Co. 1 Cow. 645 ; McLaughlin v. 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. II. If the policy contains a provision that the insured shall, if required, submit to an examination under oath, this will require him to answer such questions only as are material to the risk; and his refusal, on examination, to answer questions which have no such bearing, will not be a violation of this provision of the policy. Titus v. Glens 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 insured, 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. Etna, Fire Ins. Co. V. Tyler, 16 Wend. 385, 402, 8. C. 12 Wend. 507; Turley v. North American Fire Ins. Co. 25 Wend. 374. If the preliminary proofs furnished are defective or objection- able, the insurer ought to point out the defects or state his objec- tions 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 neglects or refuses to do this, or if he puts his lefusal to pay the loss upon some other ground, he will be bound by the position assumed, and on the trial he will not be permitted ■to urge any objections but those thus taken. Yos v. Bobinson, « Johns. 192; O'Neil v. Buffalo Fire Ins. Co. 3 K Y. 122; Bodle V. Chenango Mutual Ins. Co. 2 IST. Y. 53; Bilbrough v. Metropolis Ins. Co. 5 Duer, 587; Peacock v. N. Y. Life Ins. €o. 1 Bosw. 338, 8. C. 20 IST. Y. 293; Miller v. Eagle Life und Health Insurance Co. 2 E. D. Smith, 268 ; Savage v. Com 936 INSUKANCE. Exchange Fire and Inland Nav. Ins. Co. 4 Bosw. 1 ; Bini v. Smithy 36 App. Div. 463; McManus v. Western Assurance Co. 43 App. Div. 550; Titus v. Olens Falls Ins. Co. 81 IS. Y. 410; Brink v. Hanover Fire Ins. Co. 80 IST. Y. 108 ; Keeney v. Home Ins. Co. 71 ]Sr. Y. 396. 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; but after a loss has occurred, the insured may transfer his right of recovery against the insurer vsfithout in any manner violating such clause, or in any manner affecting the right of such assignee to recover. Mel- len V. Hamilton Fire Ins. Co. 17 N. Y. 609, 8. C. 5 Duer, 101 ;, Goit V. National Protection Ins. Co. 25 Barb. 189 ; Courtney^ V. N. Y. City Ins. Co. 28 Barb. 116. These cases seem to over- rule Dey V. Poughheepsie Mutual Ins. Co. 23 Barb. 623. Other insurance. — Where the policy requires that the insured, shall give notice to the insurer of any subsequent insurance upon the same property, this condition must be complied with, or the policy will be void from the time of making such subsequent insur- ance; and actual notice of such subsequent insurance to an ordi- nary insurance agent of the insurer will not be a sufficient com- pliance with the condition. Wilson v. Genesee Mutual Ins. Co. 14 N. Y. 418; Baumgartel v. P. W. Im. Co. 136 IS^. Y. 547; Frankfurter v. Home Ins. Co. 10 Misc. 157. The insured is bound to give such notice to his insurers not- withstanding the subsequent insurer would, upon the facts exist- ing, be authorized to avoid such subsequent policy. Bigler v. N. Y. Central Ins. Co. 20 Barb. 635, S. C. 22 N. Y. 402. But merely taking a renewal of a policy of insurance which v/as existing at the time of insurance, and which was mentioned in the application of insurance, is not such another insurance as 1o require notice. Brown v. Cattaraugus Co. Mutual Ins. Co. 18 'N. Y. 385. If the notice as to such subsequent insurance is correct as to the amount, an accidental error in stating the name of the sub- sequent insurer will not affect the policy. Benjamin v. Saratoga Co. Mutual Fire Ins. Co. 17 N. Y. 415. What the policy covers. — A policy of insurance upon a "steam sawmill" embraces the whole thing ; the whole mill with its appa- ratus ; and it does not mean merely the building itself, but includes, the whole machinery necessary to make it a steam sawmill in all INSURANCE. 937 its parts. Bigler v. N. Y. Central Ins. Co. 20 Barb. 635, 8. C. 22 N. T. 402. But the policy will not cover articles whicli 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 tim- bers not united to the keel or structure thereon, although they are intended to be used, and are completely prepared for use, in its framevpork, 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 structure, 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 question, and it reviews numerous authorities. 938 JUDGMENTS. CHAPTER XX. JUDGMENTS. § 1. Actions Upon Judgments. Justices of the Peace have jurisdiction of an action upon a judgment either foreign or domestic rendered in any inferior court, not of record, where the sum claimed does not exceed two hundred dollars, and of an action rendered upon a judgment for- eign or domestic, rendered in a court of record, where the sum claimed does not exceed fiftly dollars. Laws 1906, chapter 246 ; Code Civil Procedure, section 2862. A justice of the peace has also jurisdiction to render judgment, upon the confession of a de- fendant, as prescribed in title sixth of the Code of Civil Procedure, Avhere the sum confessed does not exceed five hundred dollars. Code Civil Pro. sections 2864, 3010. Before the Code a judgment creditor could bring an action in a justice's court, upon a judgment rendered therein, immediately after its rendition. Under the former Code this right was denied v/here five years had not elapsed between the rendition of the judgment and the commencement of an action thereon' except in certain cases. This limitation on longer exists, but in place thereof the plaintiff is denied costs where before he was denied a right of action. It is now provided that "In an action upon a judgment of a justice of the peace, brought in 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, or otherwise incapable of act- ing; 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 Pro. § 3154. The statute provides for a judgment in an action brought against two or more persons jointly indebted upon contract, where the summons has been served upon one or more, but not upon all ■of them. Id. §§ 1932, 3020. After such judgment has been en- tered it may be made a judgment of the county court, by filing a transcript of the judgment in the ofiice of the clerk of the county JUDGMEl^TS. 939 in which it was rendered. An action upon a judgment so docketed can he maintained in a justice's court against the defendants summoned, only in a like ease, and with like effect, as if they were the only defendants in the original action. Id. § 3021. Although a judg-ment rendered hy a justice of the peace, when docketed in the county clerk's ofSce, becomes a statutory judgment cf the County Court (id. § 3017), it is not a judgment "ren- dered" in that court {Dieffenbach v. Eoclie, 112 JST. Y. 621), and may still be sued upon in a justice's court. Harris v. Clark, 47 St. Eep. 780. Where an action is brought in a court of record upon a judg- ment rendered by a justice of the peace it is not necessary to state the facts conferring jurisdiction, but the judgment may be stated to have been duly given. Code of Civil Pro. § 532. But this section does not apply to justices' courts, and in actions brought in a justice's court upon a judgment rendered by a justice of the peace the complaint must state the jurisdictional facts with the strictness required under the old practice before this section was enacted, and must show affirmatively that the justice had juris- diction of the subject-matter of the action and of the person of the defendant. When sufficient facts are stated to show this, the com- plaint may then allege that such proceedings were afterwards had, that a judgment was duly rendered in favor of the plaintiff and against the defendant, etc. Barnes v. Harris, 3 Barb. 603, 4 IST. Y. 374 ; Turner v. Rohy, 3 K Y. 193. The proof necessary on the part of the plaintiff to sustain an action upon a judgment, the means of evidence that may be em- ployed to that end, the right of the defendant to rebut or con- trovert the evidence so produced and the various defenses which may be interposed in such action will be considered in a subse- quent volume. 940 FIXTUEES. CHAPTEE XXL ElXTUEES. § 1. Heir and Executors, etc. The law in relation to fixtures is somewhat complicated, and' iu some respects contradictory. Fixture is a term which is gener- ally 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 partievilar 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 because 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 frdbject, for the purposes of this work, will be, to show what articles are treated as fixtures in those cases which occur most frequently in practice. The cases in which it is important to determine the rights of the parties to this species of property, arise most frequently between vendor and purchaser of real es- state; mortgagor and mortgagee of real estate; landlord and ten- ant; 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 ad- rainistrator of an estate, and the heir-at-law. As to such ques- FIXTURES. 941 lions the statute declares that 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 he essential to its support, are to be deemed assets and go to the executors or administrators to be inventoried, applied and distributed as part of the personal property of the testator or intestate. All other things annexed to the freehold or to a building, descend with the freehold to the heirs or devisees and do not go to the executor. Code of Civil Pro. § 2712. Crops growing on the land of the deceased at the time of his Instrument construed in favor of innocence of fraudulent intent . . lOlO- Assignment with intent to hinder, delay and defraud creditors is void 1011 Freedom of assignees from fraudulent design does not cure the vice 1011 1012 Assignment valid at its creation, not vitiated by subsequent acts . . 1011 Provision for part payment and return of surplus to assignor .... 1012- Reserving benefit to assignor in a general assignment 1012 Fraudulent assignments of co-partnership property 1012 Provisions in a general assignment rendering it void 1012, 1013 Retention of the assigned property by the assignor 1014 Rights of creditors under valid assignment cannot be varied by as- signee 1015' Whether an assignment is void on its face is a question of law .... 1015- Whether it was made with fraudulent intent is a question of fact . . 1015 Assignment by tenant of his interest in a lease 197 Distinction between underletting and assignment 198 Effect of the assignment of a lease 198, 199' Liability of the assignee of a lease 201, 202 Of rent due under a lease 227 Assignment by partner dissolves the firm 400- ATTACHMENT: Levy under attachment enables creditor to impeach chattel mort- gage Ill, 112 ATTORNEY: Not liable without demand for money collected 279' Accounting by attorney for his client's money 279 Lien of attorney for services 521, 522 Payments to attorney holding mortgage 234 BAGGAGE: (See Common Cabeieks.) Carriers are insurers of passengers' baggage 497, 49& Payment of fare includes carriage of baggage 498 Passenger who has not paid fare entitled to safe carriage of baggage 49* Obligations of railroad companies as to carriage 498 Carrier liable for ordinary baggage only 498 Loss of baggage in the passenger's custody 498, 499' Delivery at point of destination 499, 500 Checks for baggage 500, 501 Liability of connecting carriers for loss 501, 502 Liability of innkeepers for loss of baggage of guest 464-468 What is included in the term baggage 470, 471 Lien of carriers, innkeepers and boarding-house keepers on bag- gage 517^ 518 BAIUVIENT: General definitions 408 Bailor defined 408 Bailee defined 408 Degrees of care required of bailees 408, 409 Classification of bailments 409 410 Depositum or deposit .' 409 Mandatum or gratuitous commission 409 Commodation or gratuitous loan 409 Pignus, or pledge 409 Locatio, or hiring 4O9 INDEX. 102S B AIUKENT — ( Continued ) : Page. Depoaitum or deposit ilO Nature of the transaction 410 Must be a delivery to the bailee 410 Must be a consent on the part of the depositary 410, 411 Care required of the depositary 411 Liability of depositary for gross negligence 411 Depositary not liable for ordinary negligence or loss by theft . . 411 What will amount to gross negligence 411 Nature of deposit as affecting the question of negligence. . . .411, 412 Whether there has been negligence is a question for the jury. . 412 Loss of property of depositary as a test of negligence 412 Negligence of bailor in selection of depositary 41$ Bailor may maintain trover against purchaser of deposit.... 41S Use of the deposit by the depositary 413, 414 Liability of officer for destruction of goods levied on 414 Liability of a receiptor 414 Depositary bound to deliver deposit to true owner 415 Eight of depositary to reasonable time for determination of ownership 415 Joint deposit cannot be revoked by one of the depositors 415 Demand for property jointly deposited must be by all the de- positors 415 Depositary must return deposit on demand with its increase 415, 41ft Depositary not bound to deliver the accessory without the prin- cipal 416 Delivery to true owner or seizure under legal process an excuse for non-delivery 41ft Place of return 416 Mandatum 417 Nature of the contract of the mandatary 417 Express and implied mandate 417 Mandate must be gratuitous 417 When the contract is revocable and when complete 417, 41S^ Liability of the mandatary in respect to the custody of the thing bailed 418 Care required of the mandatary 418, 419 Liability of mandatary for negligence 419 Mandatary not liable for loss by robbery 420 When loss unexplained raises presumption of negligence 420 Liability of skilled mandatary for injury to thing bailed 420, 421 Liability of unskilled mandatary 420, 421 Implied contract of mandatary receiving money for investment 421 Liability of attorney for want of skill in making investment. . . 421 Care required where the bailment is of living animals 421, 422 Wearing apparel temporarily laid aside in a store, restaurant, theater or bath room 422 Question of gross negligence usually one of fact 422 Degree of skill required of mandatary 423: Liability of farrier, physician or surgeon for unskillful gratui- tous treatment 423 Care of paintings or perishable goods 423 Commodatum, or gratuitous loan 424 Distinction between mutuum and commodatum 424 Care and diligence required of a borrower and his liability for neglect ; 424, 425 Borrower not responsible for inevitable accidents 426 Liability for placing thing borrowed in a dangerous place .... 426 Care required in the custody and use of a borrowed horse.. 426, 427 Negligence of bailor in intrusting property to improper nerson 427 1024 INDEX. BAILMENT — (Continued) : Commodatum or gratuitous loan — (Continued): Page. Duty of borrower as to return of property in case of loan by way of mutuum 427 Demand of return before action 427 Transfer of right of property in the thing bailed by way of mutuum 427, 428 Bailee must make good a loss in case of loan by way of mutuum 428 When the contract is not a mutuum but an exchange or sale. . 427 Liability for failure to return on demand property loaned by way of commodatum 428 Borrower cannot claim right to detain the property for debt or expenses 428 Nature of ordinary deposits of money with bankers 428 Title to the money deposited in a bank 428, 429 Liability of a. banker for refusal to honor a check 429 Pledges or pawns 429 Distinction between a pledge and a chattel mortgage 83 to 86 Nature of the contract of pledge 429, 430, 431 General definitions 429, 430 Distinction between a contract of pledge and of hypothecation 429, 430 By a pledge the right of possession is altered but not the right of property 430 Pawnee has a special property and pawnor the general property in the pledge 430 What may be pledged 430 Pledges by persons without title or right 430 Pledges by persons having only a limited interest 431 Pledge by mortgagor of chattels 97, 433 Right of factor to pledge the goods of his principal 431 Pledge of firm property by one of several partners 395 Borrower, with privilege of purchasing, has no power to pledge 431 Implied undertaking of pledgor that he is owner of the property pledged 431 Pledgee may restore property to lawful owner when pledged without right 431 Pledgee may plead return to lawful owner when sued by pawnor 431 Undertaking by pawnee to return property pledged 431 Rights of the parties when the pledge is for a definite time. .431, 432 Rights of the parties where the pledge is for an indefinite time . . 432 Eights and remedies of the pledgor on payment or tender of the debt 432 Property pledged for a particular debt cannot be held for an- other debt 432 Title to property pledged remains in pledgor after default and until sale 433 Pledgor may sell property pledged subject to lien of pledgee. . . 433 Purchaser from pledgor entitled to redeem 433 The interest of pledgor may bei taken and sold on execution 433 Purchaser at execution sale entitled to redeem 433 Eights of the pledgee on failure of the pledgor to redeem, 433 to 436 Implied agreement that the pledge shall be available for pay- ment of the debt 433 Eight of pledgee to appropriate pledge to payment of debt. . . . 433 Demand of payment and notice of sale 433, 434 Objections of the pledgee as trustee for the pledgor 435 Contracts authorizing sale without notice and purchase by pledgee ". 435 In the absence of agreement, pledgee cannot sell without notice 435 Ordinarily a sale without notice will not cut off right to redeem 435 INDEX. 1025 BAILMENT — (Continued) : Nature of the contract of pledge — (Continued) : Page. When a sale without notice, is a conversion 436 Eights of pledgor after sale without notice or demand of pay- ment 43C, 437 Pledgee not bound to wait for favorable market before sale .... 436 Waiver of forfeiture and rights of pledgor thereafter 436, 437 When a sale of the property pledged is necessary 436, 437 When no sale of the property pledged is necessary 437 Collection of money becoming due on securities pledged 437 Accounting for proceeds of sale, and payment of surplus to pledgor 437, 438 Accounting for the increase, fruits and profits of the pledge 437, 438 Possession of the pledge does not suspend right of pledgee to sue on the debt 438 Care required of the pledgee in the keeping of the property pledged 438 Liability of pledgee for negligence 438 Loss of goods pledged by robbery, theft or accident 438, 439 Use of the pledge 438, 439 Eights of action against stranger unlawfully interfering with the pledge 439 Letting and hiring of personal chattels 440 Implied warranty upon the letting of chattels 440 Upon whom the duty rests of keeping the chattel hired in order and repair 440, 441, 442 Duty to keep hired horse shod or to pay for expenses of sickness 441 Implied authority to hirer to make necessary expenditures. .441, 442 Eecovery from owner of moneys so expended in action for money paid 442 Care required of the hirer of a chattel and duty to return it in good order 442 Who must bear or make good the loss of or injury to the chattel 442 Use of the chattel must be confined to the purpose for which it was hired 443 Loss of or injury to a hired horse 442, 443 Burden of proof in action for injury to property hired. . . .444, 445 What acts of the hirer put an end to the bailment 445 Eetention of property after the stipulated period 445, 446 Locatio, or letting and hiring of work 446 Distinction between a sale and a bailment 446 Illustrations 446, 447, 448 Implied obligations of the employer to the employee 448, 449 Eef usal by employer to permit the workman to perform 449 Time, when of the essence of the contract 449, 450 Failure to complete the contract within the time specified . . 449, 450 Destruction of the work before completion, upon whom the loss falls 451, 452, 453 Unskillful or negligent performance of work requiring art or skill 453 Eepresentation and undertaking implied from public profession of an art 453 Obligations of a person entering into a contract to perform a particular task , 453 Delay in commencing work or in completing the task ,...., 453, 454 When workman may employ others to perform his contract. . . . 454 When the workman impliedly undertakes to perform personally 454 Undertaking of every workman, mechanic or artist 454 ■Contracts for personal services requiring skill 454 Degree of care and diligence required from the workman . . . 454, 455 65 1026 INDEX. BAILMENT — (Continued) : Locatio, or letting and hiring of work — (Continued) : Page. Responsibility of workman for negligent and unskillful per- formance 455 Undertaking of members of learned professions 455 Responsibility for gross ignorance or gross negligence 455 Employer bound to ordinary care and judgment in selection of the employee 455, 456 Eights of bailor to return of materials furnished, on counter- mand of order 456 Tender of payment for the work done at the time of counter- mand 456 Lien of the workman for labor done before termination of con- tract 45ft Responsibility of the bailee for delivery to wrong person by mis- take 456 Retention or return of a chattel bailed by several joint owners 456 Care of the property in custody of bailee and liability for loss . . 456 457 Care required of persons keeping goods of others for hire.... 457 Proof required to sustain action against warehouseman for loss of goods 457 Duties and responsibilities of wharfingers 457 Liabilities of agisters 457, 458 Implied undertaking of livery-stable keepers 458 Care required of factors in the custody of goods consigned . . 458, 459 Innkeepers, duties and liabilities of 459, 460 to 471 (See Innkeepeb.) Common carriers 471 to 506 (See Common Caerieb.) Receiptor's agreement 506 Action against receiptor for refusal to redeliver on demand .... 506 Receiptor estopped from claiming property receipted for .... 506, 507 Statement of agreement in complaint 507 Proof on the part of the plaintiff, and the amount recoverable . . 507 Liens of bailees 508 (See Lien.) BANK: Ownership of money on general deposit in bank 428, 429 Relation of banker and depositor that of debtor and creditor 429 Duty of banker to honor customer's check 429 Not liable on certification of a check drawn by its president 272 Liability for overdrafts 293 Liability on checks certified by cashier 294 Notice to an officer, when notice to the bank 291 Banker's lien 521, 522 Prohibition against exercise of banking powers by other corporations 332 333 BANKRUPTCY: Revival of liability after discharge in bankruptcy 15, 1018 Property of principal not affected by bankruptcy of agent 267 Of one or more members of a firm dissolves the partnership 399 New promise 1018 BASTARD: Defined yi^ Bastardy bonds 77 INDEX. 1027 BILL OF EXCHANGE: (See Promissory Note: Check.) Page. Governed by the negotiable instruments law and the law merchant. . 589' Definition and general nature 589, 590 Inland and foreign bills 591 Checks 619 Is often termed a draft 591, 592. Parties to the bill 591, 592. The relation of the parties to the bill and to each other. . . .591, 592. The several contracts of the different parties 592. Capacity of the parties to contract 59S Primary or secondary liability of the parties 59:j' Referee in case of need 597 Accommodation parties 635 Requisites as to negotiability 594 Must be in writing and signed by the drawer 596, 612 Writing includes print 594, 612 Mode of writing not material 612 May be on paper or other substitute 612: Signature may be by the full name or by initials 612 May be by figures as a substitute for a name 612 Signature by mark 612 When signer deemed an indorser 613 Signing in a trade or assumed name 613 Only the person signing liable on the bill 613 Signature by agent 613, 614 Forged signature 614 Must contain an unconditional order to pay a sum certain in money 594 What constitutes certainty as to sum 594, 595 What constitutes an unconditional order 595 Effect of order to do an act in addition to payment of money 595, 607, 60S Must be payable in money and not in goods or other prop- erty 608 Must be payable on demand or at a fixed or determinable future time 594 What instruments are deemed payable on demand 595 What constitutes a determinable future time 595 Not negotiable if payable on a contingency 606, 607, 608 Happening of the event does not cure the defect 60S Where payment is dependent on event certain to occur .... 60S Must be payable to order or to bearer 594, 602 Bill payable to bearer named, not negotiable until indorsed 603; Instruments payable to order 596; Naming or indicating payee in such case 596, 60O Instruments payable to bearer 596 Drawee must be named or indicated with reasonable certainty 596 600, 601 Effect of uncertainty as to drawee 601 How addressed to more than one drawee 596 Bills payable to fictitious or non-existing persons .... 596, 601 602 Bills payable to holder of an office for the time being. .596, 600i Bills payable to a person named or his successor in office. . 603 Additions or omissions not affecting negotiability 595, 59® Omission of date 595, 600, 59» Ante-dated or post-dated bills 599' Failure to specify where drawn or where payable 595 Addition of a seal 595, 615 Designating the kind of money in which payment is to be made 595, 606 Effect of designating the fund to be debited, etc. . . 595, 597, 609 610 1028 INDEX. BIIX OF EXCHANGE- (Continued): Page. Form of a bill of exchange 597 When the holder may treat the instrument either as a bill or a note 597 598 Distinction between a bill of exchange and an order for goods . . 607, 628 Delivery of the bill 615 Bill revocable before delivery 615 Has no inception before delivery 615-617 Presumption as to delivery 615, 617 Conditional delivery 615, 616 Authority of holder to fill blanks in incomplete instrument. 619 Insertion of the amount in blanl£ space 619 Deviations from authorized mode of completing the bill 619 Completion and negotiation without authority 619 Cheeks 619 to 623 Bills of exchange in a set 623 Form of a set of three parts 623 Statute in regard to bills in sets 623, 624 Non-negotiable bills 625 Are valid contracts but subject to equities 625 Orders for goods 607, 626, 627 Acceptance of order 627, 628 Order for the payment of money out of a particular fund . . 628, 629 633 Consideration of bills of exchange and notes 633 Necessity of a consideration as between original parties 633 Sufficiency, validity or legality of consideration as between the parties 633 Inadequacy of consideration as a defense 633, 640 Failure of consideration 634 Presumption of consideration 634 What constitutes a valuable consideration 634-640 Who are deemed holders for value 634 Alleging or proving consideration 634, 635 Liability of an accommodation party 634, 635 Want of consideration as a defense 636-640 Rights of bona fide holder 636-640 Who is deemed a bona fide holder 640, 642 Proof in action on bill fraudulently put in circulation 637 Fraudulent diversion of accommodation paper 636-639 (See Accommodation Paper.) Fraud in obtaining a bill 639, 640 Guaranty of bills of exchange and notes . , 644, 647 (See Guaranties.) Negotiation of bills of exchange 647 When and how a bill is negotiated 647 When payable to bearer, by delivery 647 When payable to order, by indorsement 647 Indorsement of bills of exchange 647 Not binding before delivery with the Instrument indorsed .... 647 Requisites of » valid indorsement 647 Must be of the entire instrument 648 Special indorsement or indorsement in full 648, 649 Indorsement in blank 648 Conversion of blank indorsement into special indorsement. . . . 648 Restrictive indorsement 648, 649 Qualified indorsement 648, 649 Conditional indorsement 648, 649 Of a bill payable to two or more 649 Of paper held by a partnership 649 Of paper negotiated to or by a bank 650 By a person wrongly designated or whose name is misspelled . . 650 INDEX. 1029 BIU, OF EXCHANGE— (Continued): Indorsement of bills of exchange — (Continued): Page. By persons acting in a representative capacity 650 Presumption as to time of indorsement 650 After dishonor 650, 651 Transfer without indorsement 651 Liability of person indorsing in blank before delivery 652 Warranty by person indorsing paper 653-655 Indorsers liable prima facie in order of indorsement 654, 655 Acceptance of bills 655, 656 Contract of acceptor 655, 656 Contract of the drawer 656 Drawee not liable before acceptance or agreement to accept. ... 656 Mode of acceptance 657 Right of the holder to have the acceptance written on the bill. . 657 Acceptance not written on the bill, and its effect 657 Unconditional written promise to accept a bill to be drawn. . . . 657 Drawee has twenty-four hours in which to decide upon accept- ance 657 Effect of destruction or retention of the bill by the drawee. . . . 657 Acceptance of unsigned, incomplete, overdue or dishonored bill . . 657 General acceptance 657, 658 Qualified acceptance, and its effect on the rights and liabilities of the parties 657, 658 Duty of agent presenting bill for acceptance 658 Parol evidence not admissible to change terms of acceptance .... 658 Acceptance by an executor 658 Place of payment, and demand of payment at that place . . . 658, 659 Acceptance of a forged bill 659 Presentment of bills of exchange for acceptance 659 Duty of the payee in respect to presentment for acceptance .... 659 When presentment for acceptance is necessary 659, 660 Presentment must be within a reasonable time 660 Delaying presentment at request of the drawer 660 Time of presentment 660- 662 To whom the bill must be presented 662 Place of presentment 662 When presentment is excused and the bill may be treated as dis- honored 662, 663 In case of lost bills 687 Proceedings on non-acceptance 663 Presentment for payment 663 Demand of payment not necessary to charge persons primarily liable 663 When not necessary to charge the drawer, or an indorser . . 664, 665 666 Place of demand 664 Time of demand 664, 665, 666 When the bill is payable on a holiday 668 Person authorized to demand payment 664, 665 Surrender of the bill on payment 665 In case of lost bills 687 Delay in presentation for payment, when excused 666, 667 When presentment for payment is dispensed with 666, 667 Dishonor by non-payment 667, 668 When the bill is payable 668, 669 What constitutes payment in due course 669 Notice of dishonor 669 By whom given 669, 670, 671 Requisites of the notice 671, 672 To whom given 672, 673 When to be given 672, 673, 674 1030 IIsTDEX. BILI. OF EXCHANGE— (Continued) : Notice of dishonor — (Continued) : Page. Notice by mail 673, 674 Place to which notice must be sent 674 Waiver of notice 674 When notice is dispensed with 674 Delay in giving notice, when excused 674 When notice to drawer or indorser not required 674, 675 Protest of bills of exchange 675 Not required except in case of foreign bills 675 Protest for non-acceptance or non-payment 675 Time, mode and place of protest 675, 676 Where the acceptor has been adjudged a bankrupt, etc 676 When dispensed with 676 When delay in protesting is excused 676 Waiver of protest 676 Rights of the holder of a bill of exchange 676 Who are deemed bona fide holders or holders in due course. . . . 67(i Who is not a holder in due course 677 Notice of infirmity in the instrument or defect of title 677 What constitutes such infirmity or defect 677 Rights of holder in due course 677 Other holders take subject to defenses 677 Presumption that the holder is a holder in due course 677 Donee takes subject to equities 678 Discharge of negotiable instruments 680, 681 Payment by bill of exchange 681, 686 (See Payment.) Lost bills, and the procedure to recover thereon 686 Undertaking by the plaintiff 686, 687 Approval by the judge or referee 686, 687 Form of undertaking 687 Proof required on the trial 687 When no indemnity is required 687 Proceedings to charge an indorser 691, 692 Giving notice of loss 692 Notice to acceptor to pay only to the owner 692 BILL OF LADING: Authority to pledge bills of lading 266, 268 Possession of the bill as a badge of ownership 266, 269 BILL OF SALE: When treated as a chattel mortgage 82-84 May be shown to be a mortgage by parol evidence 83, 125 Failure to take possession of the property conveyed 136 BLANKS: Execution of bonds in blank 68 Filling blanks in bonds 68 Authority to fill blanks in negotiable instruments 619 BO ABDING-HOUSE : Distinction between boarding-house and inn 461, 462 Lien of boarding-house keeper 516 BONDS: Defined 66 Parties to bonds 66 Requisites of a valid bond 66 INDEX. 1031 B ONDS — ( Continued ) : Page. Form of unimportant 66 Date not essential 66 Place of signature and seal 66 Failure of the principal named in the bond to sign it 66, 67 Liability of surety executing but not named in the bond 67 Conditional delivery of a bond 67 Filling blanks under a parol authority 68 Bonds taken in pursuance of a statute 68 Act for the protection of holders of coupon bonds, etc 257, 258 Indemnity bonds 69 Object of an indemnity bond 565 Jurisdiction in actions upon bonds taken by a justice 69- 75 When the right of action upon a bond of indemnity is complete 69 70, 565 Distinction between different covenants for liability 69, 70, 565 Bond for the performance of an act or to indemnify against liability ' 69, 70 Bond to save harmless from damages by reason of liability. .69, 70 566 Code provision respecting suits upon bonds 69, 70 Damages recoverable in actions upon indemnity bonds .... 70, 869 Suit upon a bond of a village collector 70 Bonds to indemnify a city or town for support 70, 71 Indemnity against loss from advances made 71 Bond conditioned for the maintenance of a person for life, etc. 72 Liability on a bond to pay costs "on demand" 72, 73 Indemnity against claim to property attached 73, 74 Indemnified officer not bound to defend suit against him .... 74 Officer not bound to advance money before suing on his bond. . . . 566 567 When constable may sue on bond given to indemnify him 567 Amount recoverable by constable on indemnity bond .... 567, 568 Amount recoverable by sheriff on bond in attachment case .... 567 Recovery of costs of a defense 568 Collusively preventing indemnitors from presenting a defense . . 568 Right of indemnitors to defend in place of sheriff 568 Bond to indemnify against a past trespass 568 Bond to indemnify against an illegal act 70, 568, 569 Notice to indemnitor to defend suit 73 Effect of failure to give such notice 73, 583 Liability on covenant of indemnity against recovery of judg- ment .' . . 73, 74, 583 Surety bonds and undertakings under the Code 75 Jurisdiction of justice in action upon administrator's bond .... 72 Requisites of undertaking given on appeal to a county court . . 75 Consideration need not be expressed in the undertaking 75 Extent of liability on undertaking given on appeal 76 Bastardy bonds 77 Bastardy defined 77 Liability for bastard's support 77 Indemnity against liability to support bastard 77 BORROWER: (See Bailment.) Care and diligence required by a borrower 427 Liability for negligence 427 Return of the article borrowed 427, 428 Who is not a "borrower" within the statute against usury . . . 903, 907 BROKER: (See Principal and Agent.) Distinction between a factor and a broker 258 1032 INDEX. BROKEB— (Continued) : Page- Nature of a broker's employment 258 Responsibility of principal for false representations of broker . . 263, 264 Cannot be both agent to buy and to sell 270, 271, 273 May act for both parties who have notice of double employment .... 275 Commissions of brokers 280 Statutory limit of commissions for procuring a loan 280, 281 When failure to effect a sale does not forfeit commissions .... 281, 282 Evidence necessary to establish right to commissions 282-283 When commissions are or are not earned 283, 284 When commissions are forfeited by misconduct 286 Liability of a broker negotiating an instrument without indorsement 651 652 BtniiDING: Failure of substantial performance of a building contract 53, 166 Is prima facie a part of the realty 87, 947, 948 May by agreement be treated as a chattel 87, 88, 948 Erection for agricultural purposes on leased land 942, 943 Eight of a tenant to remove buildings erected by him 944 Rights to buildings as between vendor and purchaser . 945, 946 BY-LAWS: Power of corporations to make by-laws 331, 332 How far binding on the public generally 338, 339 Validity of by-laws imposing fines or penalties 339, 340 CARRIER: (See Common Cabbiek.) CHARTER: Of a corporation, as a limitation upon its powers 332 CHATTEL MORTGAGES: Statutory provisions 78 Who may make a chattel mortgage 79 Validity and effect of mortgages by infants 79 By tenants in common or joint tenants 80 By agent 80 What is a chattel mortgage SO, 83 May be sealed or unsealed 80 Agreements resting in parol 80 Delivery of property to surety as indemnity 80, 81 Instruments not under seal 81, 82 In the form of a bill of sale 82, 83, 84 In the form of a pledge or lien 83, 84, 85, 86 Distinction between a pledge and a mortgage 84, 85, 86 Contracts constituting a pledge and not a mortgage 85, 86 Nature of the contract of mortgage 83-93 Need not be in any special form of words 84 Instrument construed as a conditional sale 86, 87 What may be mortgaged 87 Choses in action 87 Tenant's fixtures and buildings 87-90 Grass and growing crops 88, 89, 90 Crops not yet planted ordinarily not the subject of mortgage 89, 90 Legal title to property not in existence, not transferable . . 89, 90 Effect given in equity to such transfers 90 Mortgage of chattels having a potential existence 90-92 Contract to give a lien on crops incorporated in a lease .... 90, 92 Contract giving a lien on articles to be manufactured 92 INDEX. 1033 CHATTEI, MORTGAGES — (Continued) : What may be mortgaged — (Continued): Page. Mortgage covering stock on hand and to be thereafter acquired . . 92-95 Mortgage of rolling stock of a railroad company 93 Rights of the mortgagor 93 Legal title to the mortgaged property is in the mortgagee .... 93 Right of the mortgagor to possession until default 93, 94 Invalidity of clause permitting sales by mortgagor 94 Invalidity of collateral agreements to the same effect 94, 95 Agreements for sale and application of proceeds on debt se- cured 95, 96 Agreements for sale and purchase of other property with the proceeds 96 Transfer to mortgagee of the property mortgaged in payment of the debt secured 96, 97 Purchase of the mortgaged property from the mortgagor before default 97 Right of the mortgagor to sell, and title of the purchaser, 96, 99, 100 Remedy of the mortgagee in case of sale by the purchaser from the mortgagor 96 Seizure and sale of the mortgaged property under execution against mortgagor 96 Mortgagor cannot pledge the property to prejudice of the mort- gagee 97 Title to mortgaged property after default is in mortgagee .... 97 Mortgagor has no interest subject to levy after default 97 Remedy of creditors of the mortgagor after default 97 Where no time of payment is mentioned it is due immediately . . 98 Mortgage of exempt property not a waiver of exemption as to sheriff 98, 99 Tender after default will not reinvest title in mortgagor, 99, 102, 123 Right of mortgagor to redeem after forfeiture 100 Mortgagor may transfer the right to a purchaser 106 Sale by mortgagee of sufficient property to pay debt, interest, etc. 99 Right of mortgagor to surplus after such sale 99 Remedies of the mortgagor after excessive sale and purchase by mortgagee 110 Action by mortgagor to redeem mortgaged property 99 Claiming right to redeem when sued for conversion 99 Failure to file cannot be taken advantage of by general assignee of mortgagor 100 Right of receiver in supplementary proceedings to set aside un- filed mortgage 100 Rights of the mortgagee 101 Has absolute title after default 93, 100, 101, 105 May cut off equity of redemption by sale 101, 106 After default in the payment of an installment 101 Where the property mortgaged has been changed, and default is made 102 Right of action by mortgagee against third persons 102-105 The law of place as affecting the rights of the parties to a mort- gage 104 Levy on mortgaged property under execution against mortgagee 105 Title of the mortgagee absolute after default without sale .... 105 When the mortgage absolute after default without sale 105 When the mortgage gives right of possession before default . . 105-121 When the mortgagee may sell at private sale 106, 107 Accounting for proceeds of sale 106, 107 Mortgagee may maintain action in equity to foreclose 107 Refiling of mortgage does not affect rights of mortgagee as against mortgagor 123 Assignment of the debt secured, passes interest of mortgagee . . 107 1034 IJ^DEX. CHATTEL MORTGAGES — (Continued) : Eights of the mortgagee — (Continued) : Page. Eight of action for wrongful taking passes to- the assignee .... 107 Eight of mortgagee to replevy chattels sold on execution against mortgagor 107-108 Transfer of overdue mortgage transfers the property mortgaged 107 Eights under a mortgage to several persons to secure several debts 107 Effect of fraudulent intent of mortgagor in executing the mort- gage 108 When the mortgagee may sue upon the mortgage for the debt secured 108 Covenant by the mortgagor to vparrant and defend the property 109 Liability of mortgagor for deficiency after a sale 109 Priority as between unfiled chattel mortgages 109 Effect of knowledge of prior unfiled mortgage 109 Mortgagee may purchase at the sale of the property mortgaged 110 Eemedies of mortgagor after excessive sale and purchase by mortgagee 110 Statutory penalty for sales by mortgagor with intent to defraud mortgagee 110 Eights of creditors of the mortgagor 110 Provision of the statute requiring mortgages to be filed Ill Who are "creditors" within the protection of the statute . . Ill, 113 114 Creditor at large cannot avail himself of omission to file Ill Judgment creditor, with lien by execution, protected Ill Judgment by confession and execution thereon sufficient Ill Attaching creditor protected Ill, 112 What passes to the purchaser at a sale under an execution against the mortgagor 112 After default, property may be sold under execution against mortgagee 113 Assignment of contract intended to operate as a mortgage, requisites of 113, 114 Creditors with knowledge of unfiled mortgage not protected . . . 114 When the interest of the mortgagor is liable to sale under exe- cution 115 Eights of purchasers in good faith 115 Void bills of sale 116 Who are "purchasers in good faith" 116, 117 Only subsequent purchasers in good faith protected by the statute 117 The question of fraudulent intent 117, 118 Form and requisites of a mortgage 118 The consideration 118 Mortgage given for pre-existing debt 118 Mortgage to secure future advances 118 Time when payment is due by the terms of the mortgage .... 119 Demand, where the mortgage is payable on demand 120, 122 Description of the property mortgaged 120 Eeference to a schedule as annexed 121 Tender of the amount due on a mortgage of chattels ' 99, 101, 123 Eefiling does not operate to extend credit or waive forfeiture 123 Acceptance of mortgagor's notes no waiver of the mortgage security 123 Creditor may take all the securities the debtor will give 123 Taking second mortgage on same property to secure same debt . . 123, 124 Second mortgage to secure the same and additional Indebtedness . . 124 Judgment confessed as collateral does not extinguish prior mortgage 124 Eenewal notes secured by mortgage given to secure originals 124 When mortgage debt satisfied by taking possession of the property, 125 INDEX. 1035 CHATTEL MORTGAGES— (Continued): Page. Parol evidence to show that bill of sale is a mortgage 125 To vary or contradict the mortgage, not admissible 125 That the sum specified in the condition is more than is due .... 126 That an assignment of the mortgage was not intended as such . . 126 To apply a description to its subject-matter 126 Validity of chattel mortgages 127 Though void as against creditors, valid as between parties .... 127 Persons authorized by statute to impeach a mortgage 127 Fraudulent as to creditors, if made to hinder, delay or defraud them 128 Sales or assignments presumed by statute to be fraudulent 128 Must be filed, or an immediate delivery and actual and continued change of possession 128-130 Mortgage not filed may be void, though not tainted with vice. . 130 Mori^age, though filed, may be actually fraudulent and void . . 130 Decisions under former statutes 130, 131 Object of requiring immediate delivery, etc 130 What is meant by immediate delivery 131 Change of possession must be actual, not constructive 131 What is meant by actual change of possession 131, 132 Effect of permitting mortgagor to retain possession, etc. . . 131, 132 When the statutory presumption of fraud is conclusive 132 When failure to make immediate delivery is excused .... 132, 133 Proof of good faith, to rebut presumption of fraud 133, 134 Proof of a good and valid consideration 134, 135 Continued change of possession required 135 Fraudulent intent of mortgagor and acts subsequent to mortgage. . 135 Filing chattel mortgages 135 When a mortgage is invalid if not filed 135 When filing not essential 135, 136 As between the parties 136 As against purchaser with notice 136 As against prior purchasers 136 As against a wrongdoer 136 Where the transaction is not in effect a mortgage 136 Corporate mortgages recorded as mortgages of real property . . 137 As against holder of fraudulent judgment 137 Time when the mortgage should be filed 138 Must be filed within a reasonable time 138 Where the mortgage must be filed 138, 139 Where the mortgage is on partnership property 139 How the mortgage should be, filed 139 Leaving mortgage at the clerk's office to be filed 140 Effect of subsequent taking mortgage from the files 141 Fees for filing 141 Eefiling of chattel mortgage 142 Necessary to validity after one year as against creditors, etc. . . 142 Two modes of procedure provided by statute 142, 148 Time of refiling 142, 147 Place of refiling 142, 143, 146 Making new mortgage as substitute for refiling 143 Who may or may not take advantage of omission to refile. .143, 144 Meaning of term "subsequent" as used in the statute 143 Meaning of the term "purchaser" 143 Rights of creditors where there is a failure to refile 144, 145 Refiling after the expiration of a year 145 How to refile 147, 148 Certified copy of the mortgage as evidence 148 Taking property under an inaccurate copy 148, 149 Discharge of chattel mortgages 149 1036 lisDEX. CHATTEL NOTES: Page- Are not negotiable 625 Form of a chattel note 625 Notes payable in goods or money are not chattel notes 626 Are valid obligations 626 May be assigned and enforced by assignee 591, 626 Assignee takes subject to equities 626 Proof of consideration 626 The time when and place where payable 630 When the note is made by a mechanic, manufacturer, merchant or producer 630 When there is no time or place of payment mentioned .... 631, 632 When payable on demand, but no place of payment is specified, 632 633 When the note specifies both time and place of payment 633 (See Bill of Exchasge. ) Is a bill of exchange drawn on a hank payable on demand .... 591, 619 Form of a check 619 Delivery of check a representation that the drawee has funds for payment 620 Contract of the drawer of a cheek 620 Obligation of the holder to present it for payment in reasonable time ' 620 Effect of delay in presentment 620 Time for presentment under the law merchant 621 As to indorser, insolvency, etc., of drawer no excuse for delay in presentment 621 As between holder and drawer, presentment may be made at any time 621 Forwarding check for presentment 621 Delay on the part of collecting agent in making presentment 621 Presentment must be made during banking hours 622 Waiver of right acquired through delay in presentment 622 Does not require acceptance 622 Certification, and its effect 294, 622, 623 Does not operate as an assignment of funds to credit of drawer .... 623 Bank not liable to holder 623 Payment by check 681-686 (See Payment.) Liability of drawer of accommodation check 638 For baggage 500, 501 CHOSE IN ACTION: When assignable 705 COLLECTION AGENTS: Are liable for the acts of attorneys employed by them 252, 253 Are liable for negligence causing loss to principals 252, 253 Duty to pay over to principal the money collected 275, 276 COMMISSION MERCHANT: (See Pactoe.) Usually perform the business of a factor 258 Eights, duties and liabilities when acting under a del credere com- mission 258, 262, 263, 267 Duty to furnish statement of property received and sales made. .275, 276 Title to the property until sold 266, 267 When he must pay over proceeds of sales 277 Proceeds of sales, whatever their form, are the principal's property 277 INDEX. 1037 COMMISSION MERCHANT — (Continued) : Page. Commissions 280 Reimbursement for advances 287 Lien 287, 289 COMMISSIONS: Of factors, brokers, and commission merchants 258, 262, 263, 280 COMMOD ATUM : ( See Bailment. ) Nature of the bailment 424 Distinction between a mutuum and a commodatum 424 COMMON CARRIES: What persons are classed as common carriers 471, 472, 473, 474 Must carry for all persons 474 Liable for refusal to carry without legal excuse '. 474 Tender of freight or readiness to pay 474 Railroad company must carry all passengers or property offered . 474, 475 Must ordinarily carry goods in the order of their receipt 475 Exception in case of perishable property 475 Contracts as to compensation for carriage 474, 475 Bound by contract to carry for a stipulated price 480 Must carry on tender of the usual or a reasonable sum 475, 476 Must convey goods to and from such places as he professes to carry them 476 May protect his lien for advances by replevin 476 Cannot dispute title of persons contracted with as owners 476 When the responsibility of the carrier, as such, commences . . 476, 477, 478 479, 484 What delivery to or acceptance by him necessary to liability .... 476-484 Title in a third person as a defense to an action against carrier .... 478 Duty of the carrier to deliver to the person entitled to the delivery. . 478 Liability for a wrong delivery 478, 479 Liability for refusal to deliver to person entitled to delivery 479 Wrong delivery deemed a conversion by the carrier 479 Surrender of goods to sheriff in replevin without notice to holder of bill of lading 479 Liability of carrier does not rest on his contract, but is imposed by law 479 Liable for losses not occasioned by his fault or negligence .... 479, 480 Insures against loss not arising from the act of God or public enemy 479 485 Limitation of the rule when applied to the carriage of live stock .... 487 Distinction between "act of God" and "inevitable accident" 480 Meaning of the phrase "act of God" 480 When liable for loss of live stock carried 487 Liability for loss of goods by intense cold 487 Liability for acts of agents or employees 483, 484 Liability on contracts made on Sunday for carriage to commence on Sunday 485 Liability for loss through theft and robbery 486 Not liable for loss occasioned by defective packing or inherent defect 487 488 Presumption of negligence from depreciation in weight of goods de- livered 488 Not liable for loss to which the conduct of consignor has in any way conduced 488 Concealment of the value of the goods carried, effect of 488, 489 Shipping brittle or perishable goods as ordinary merchandise 489 Duty to carry according to agreement or instructions or directions 490 491 1038 INDEX. COMMON CARRIERS— (Continued) : Page- Compensation for carriage 480 Implied contract of consignor to pay a reasonable sum for carriage 480 Right of carrier to demand prepayment of freight 481 When delivery must precede action to recover freight 480, 481 When freight paid in advance may be recovered back 481 Not entitled to freight on goods thrown overboard or destroyed by fire 481 May refuse to deliver until freight is paid 481 Lien for carriage, and how lost 481, 482 Has no lien on goods carried for compensation for delay in unloading ear 517 Counterclaim for damages in action for freight 482 May act as factor to sell goods for the owner 485 Liability of carrier continues until delivery or its equivalent 490 Duty to hold goods when consignee cannot be found or is a swindler 482 Duty of carrier when goods are refused by consignee 482 Liability for the value of goods shipped C. 0. D 491 When the carrier may warehouse the goods and liability thereafter 491 Notice to consignee of arrival of goods, and to remove them . . 492, 493 494 Loss of goods after tender of delivery or notice to remove them, 492, 493 Place of delivery 491 When the carrier is a railroad company 493 Where the carriage is by water 495 When the carriage is by express 491 Time of delivery 492, 495 Liability for delay, and the nature thereof 496 Carrier bound only for exercise of due diligence 495 May excuse delay by accident or misfortune 494 Delay caused by fault of another 494 Delay caused by strike of employees 494, 495 Delay caused by mob violence 495 Freezing of canal or river, and duty of carrier thereon 495 Carriers of passengers not insurers of their safety 495 Degree of care required of such carriers 495 Liability for delay in carriage of passenger 49& Duty to protect passenger from violence 497 Carrier of passengers is an insurer of baggage 497, 498 Passenger's fare includes carriage of his baggage 498 Passenger who has not paid his fare entitled to safety of his bag- gage 49S For what baggage the carrier is liable 498 Not liable for baggage retained in custody of carrier 498, 499 Liability for property inadvertently left by passenger in a car 499 Exemption of owners, etc., of steamboats from liability for loss of jewelry, etc 499-500 Delivery of baggage at passenger's destination 500 Checks for baggage 500, 501 Duration of carrier's liability for baggage 501 Rights and liabilities of connecting lines of steamboats and railroads 501 502 Baggage lost during transit over connecting roads 502 Eights of action by passenger sustaining such loss 502 Rights of action for damage to baggage 502 Presumption as to the condition of the baggage before receipt by last carrier 502, 503 Liability of carrier contracting to carry baggage to its destination 503 Liability of subsequent connecting carrier 503 Double responsibility as carrier and as bailee of goods 505 Power of carrier to restrict his common-law liability 504 Cannot restrict liability by mere notice 504 INDEX. 1039 COMMON CARRIERS— (Continued) : Power of carrier — (Continued) : Page. May limit or exempt himself from liability by express contract 504 Requisites of a contract to have the latter effect 504, 505 When relieved from liability as a carrier he is still liable as bailee 505 May stipulate for exemption unless claim is presented in a speci- fied time 505 Has an insurable interest 920, 921 Delivery to carrier when delivery to purchaser 756-758 COMPLAINT: In action for work done under a special contract 159 In action upon a judgment 939 COMPOUND INTEREST: (See Interest.) Contract for compound interest not usurious 873-875 When and when not recoverable 874, 875 When reservation of compound interest is usurious 904-906 COMPROMISE: Of a doubtful claim, a good consideration for a note 19, 20 Of a wholly unfounded claim 19, 20 Authority of agent to receive payment, no authority to compromise . . 233 Adoption of statements made by agent effecting compromise 247 CONDITIONS: Conditional delivery of bonds 67 In bonds of indemnity 69, 70 In policies of insurance 927-929 (See Insurance.) Precedent or independent - 47, 48 CONDITIONAIi SAI.es : How viewed at common law 549 Where valid as between the parties 549 No title passed to purchaser before performance of condition . . 549 Purchaser took no leviable interest 551 Purchaser could transfer no title to a hona fide purchaser .... 552 Object of the statute to change the common-law rule 552 When and as to what sales the statute has no application .... 550, 551 Title to goods sold under contract for conditional sale since the statute 552 When sale deemed absolute as against subsequent purchaserss, pledgees or mortgagees 552, 553 Statute has not changed the relations between conditional vendor and vendee 552 Sale or mortgage by conditional vendee a conversion of vendor's chattel 552 Conversion by assignee of vendee by failure to deliver the property after default 552 Waiver of condition that goods must be paid for on delivery 552 Contracts on condition that the goods may be returned, carry title to buyer 552, 553 Filing of contracts for conditional sale 553 Where filed 553, 554 Only bona fide purchasers, etc., can take advantage of failure to file 554 Eights of the vendor on default 554, 55o Default in the payment of installments 555, 556 1040 INDEX. CONDITIONAL SALES— (Continued) : Rights of the vendor on defaults — (Continued) : Page. Kight of vendor to take possession of the property 556 Rights of the parties after default as defined by the statute .... 556 Purchaser may waive the benefit of the statute 556, 557 Waiver of forfeiture 557 Eflfect of taking note for the purchase money and suing on the note 557, 558 Sale of the property and disposition of the proceeds 558 Time within which the sale must be made 558, 559 Notice of sale to be served upon the vendee or his successor in interest 558 Sale must be at public auction 559 Disposition of the proceeds of sale 559 Statute as to conditional sale of railroad equipment and rolling stock 550 CONSIDERATION : Indispensable to a valid contract 1, 8 Not essential to executed contract 9 Contract for sale af stocks, etc 9 Written sealed agreement need not express consideration 9, 47 Of unsealed agreement must appear on its face or be alleged and proved 9 Parol evidence of consideration 11 Kinds of consideration 11 Sufficiency of consideration 12-16 Part payment of a debt due 16, 17 Performance of an act the promisor was legally bound to per- form 16 Must be valuable 16 Moral obligation unconnected with prior legal liability 17 Meritorious consideration 17 Adequacy of consideration unimportant 18 Distinction between inadequacy and failure of consideration . . 18 Prevention of litigation 19 Settlement of a doubtful claim 19 Compromise of an unfounded claim 20-21 Forbearance in prosecuting claim 22 Labor and services rendered 23 Services rendered without request or expectation of payment . . 24 Services rendered for near relatives 24-25 Gratuitous or voluntary services 25, 26 Promise for a promise 27, 29 In case of voluntary subscriptions 30, 31, 32 Rewards offered 33 Recovery where consideration is void in part 36 Illegality of consideration 36 Impossible considerations 37 Failure of consideration 38 Stranger to the consideration 38, 982 Time of the consideration 39 Impeaching consideration 40 Not necessary to support a gift 41, 693 Of surety bonds and undertakings under the Code 75 Of an assignment .' 713 Inquiry as to consideration given by assignee 713, 714 Warranty made after sale is without consideration 810 Statement of consideration in memorandum of sale 833, 956 Statement of consideration to satisfy requirements of statute of frauds 833, 956 Mode of expressing consideration 957 INDEX. 1041 CONSIDERATION— (Continued) : Statement of consideration — (Continued) : Page. In contracts of guaranty and suretyship 958 Parol evidence of consideration 960, 961 In case of promise to answer for debt or default of another . . 975-981 On sale of an interest in land 990-992 Transfer not adjudged fraudulent for want of consideration only 1004 1006 CONSTABI.E: Not liable for loss by iire of goods levied on 414 CONSTRUCTION : Of contracts generally 56-63 Of contracts of suretyship 560-563 Of contracts of guaranty 579, 580 Of contracts of sale 731 Of policies of fire insurance 924 Of agreements which may or may not be performed within a year . . 965 966 CONTRACTS: The principles of law relating to contracts generally 1 Jurisdiction of a justice in an action on contract 1 Requisites of a valid contract 1 Concurrence of intention essential 3 Mutuality of contract or liability 3 Curing want of mutuality by performance 2 General definitions and classification 1, 3 Contract defined 1-2 Unilateral or bilateral contracts 2-3 Principal or accessorial L 3 Executory or executed 3 Express or implied 4-5 Nature of an implied promise 4 Entire or severable 5 Sealed or unsealed, oral or written , . . . . 5 Parties to contracts 5-0 Must be parties to every contract - 6 Capacity or incapacity to contract 6 Married women may contract as if sole 6 May contract through agents, attorneys, etc 6 Change of parties 6 Joint or several liability of parties to contracts 7 Joint or several rights under a contract 7 Joinder of parties jointly interested 7-8 Splitting joint demands • • • • 7-8 Contribution 8 Consideration of contracts 8 (See Consideration.) General rule requiring a consideration 8 Statutory exception in favor of stock contracts 9 Necessary to executory contracts only 9 Need not be expressed in sealed agreements 9-47 Must be expressed in other agreements or alleged and proved . . 10 Not necessary to a gift 41 Want of consideration of promissory notes 11 Parol evidence of the consideration of contracts 11 Kinds of consideration H Sufficiency of the consideration of a contract 12-16 Prevention of litigation as a consideration 19 66 1042 INDEX. CONTRACTS— (Continued) : Consideration of contracts • — ( Continued ) : Page. Forbearance as a consideration 22 Labor and services as a consideration 23 Promise for a promise 27 Subscriptions and contributions 30 Rewards offered 33 Considerations void in part 36 Illegality of the consideration 3& Impossible considerations 37 Failure of consideration 3& Stranger to consideration 38 Time of the consideration 3& Impeaching the consideration of a contract 40 Assent of parties to the contract 42 Mutual assent essential to existence of a contract 42 Assent must be with knowledge of the offer 42 Assent must be to the same thing in the same sense 42 Acceptance must he as broad as the offer 42 A modified or qualified acceptance deemed a rejection of an offer 43 A proposition not accepted as proposed, creates no contract .... 43 The assent must go both to the terms and to the parties 44 When a party is estopped from denying assent to the contract . . 44 Assent not essential to contract implied by law 45 Time of giving assent 45' When the time for acceptance is expressly limited 45 When the proposal is by mail 45-46 Written sealed agreements 46 Need not express a consideration 9-47 Seal only presumptive evidence of consideration 47 Covenants 47 Conditions precedent def ned 48 Independent covenants 48 Mutual or dependent covenants 48 Allegations and proof in actions upon dependent covenants .... 48 Allegations and proof in actions upon independent covenants . . 48-49 Illustrations of the rule as to allegations and proof 49 Construction of covenants in contracts for the sale of lands .... 50 Construction of executory contracts for the sale of chattels .... 50-51 Presumption as to time of payment where there is no provision for credit 50-51 When full performance by the vendor precedes the right to pay- ment 51-52 When recovery may be had without complete performance 53 Effect of failure fully to perform a building contract 53 When there must be complete performance of contract for labor 54-5& Sickness or death as an excuse for non-performance 55-56 Where complete performance is impossible by act of the law . . 55 Where the contract has been changed or modified 55, 56 Pleading excuse for non-performance 56 Construction of contracts 56 When a question of fact, and when a question of law 56 How far the intention of the parties is controlling 57, 58 Giving a broad interpretation to the words used 57 Agreements to perform "as soon as possible," construed 58 The subject-matter of a contract as affecting its construction . . 58 Imputing a technical sense to the words used 58 Situation of the parties and the property as indicative of inten- tion 58 When the terms of the contract do not permit of construction . . 58 INDEX. 1043 CONTRACTS — (Continued): Construction of contracts— (Continued) : Page, Construction preferred which will make the contract legal and operative 59 Court will not so construe a contract as to place one party at the mercy of the other 59 Presumptions as to the intended sense or meaning of the terms used 60, 61 The whole contract must be considered to determine the mean- ing of its parts 61 Construing different instruments as one contract 61 Recitals as aids to construction 61 Effect to be given to all the parts and to all the language used. . 61 To be strictly construed as against the party giving the contract 61 Grammatical rules may be disregarded in construction 61 Preference given to the written over the printed matter 61 Practical interpretation by the parties 62 Giving the same meaning to words wherever found 62 Supplying defects by implication 62 Contract deemed to contain whatever may be fairly implied . . 62 Expressing an obligation which the law would imply 62: Presumption of intent to bind personal representatives eS' Presumption that several parties intend a joint obligation .... 63 Custom or usage and its effect on construction 63 Bonds 66 (See Bonds.) Money bonds 66 Indemnity bonds 69 Surety bonds and undertakings under the Code 75 Bastardy bonds 77 Chattel mortgages 78 (See Chattel Mortgages.) Special contracts to labor 150 Complete performance as a condition precedent 150 Certificate of architect, when a condition precedent 152 Alleging and proving performance of conditions precedent .... 152 Building contracts 152, 153 Forfeiture of wages by leaving employment 153, 154 Contract to saw logs into boards within a specified time 155 Failure to perform contract within the time limited. . .155, 156, 164 When partial performance gives a right of action 156, 163 Contracts to work a year, payments monthly 156 Sale of grain to be paid for as each load is delivered 156 Where employee has been wrongfully discharged 157 Liability of employer for wrongful discharge 157, 162 Remedies of servant wrongfully discharged 157, 158 Pleading the special contract 159 When deviation from contract precludes party from setting it up 159 Contracts for personal services of infants 159 160 Continuance in service beyond time fixed by the contract 160 Contracts conditioned upon "satisfaction," etc. 160 Rights and liabilities under such contract 160-162 Liability where order for work has been countermanded 159 Deviations from original contract for services 162 Measure of damages where contract is departed from. .163, 164 Recovery where there has been a failure to perform in time 164- Recovery where employer responsible for the delay. . . .164, 165 Immaterial variations from the terms of the contract. .165, 166 Leases 167 (See Landlord and Tenant.) Liability of principal on contracts of agent 230, 292 (See Principal and Agent.) 1044 IISTDEX. CONTRACTS— (Continued) : Page- Power of corporations to contract 332-341 (See COBPOKATIONS.) Partnership agreements and agreements to form a partnership 353 (See Partnebship. ) Contracts of bailment '^^° (See Bailment.) Contracts for the conditional sale of goods and chattels 549 (See Conditional Sales.) Contracts of suretyship 560 (See Principal and Sukety.) Bills of exchange and promissory notes 589 (See Bills and Notes.) Contracts of assignment 705-708 (See Assignment.) Contracts of sale 7^^ (See Sale.) Contracts to pay interest 862 (See Interest on Monet.) Contracts void for usury 884 ( See USTJEY. ) Contracts of fire insurance 919 (See Insurance.) Judgments 938 (See Statute of Frauds.) CONTRIBUTION: (See Sureties.) Origin and nature of the right 578 When the right exists between co-sureties 578-580 CORPORATIONS : May sue or be sued in a justice's court 323 Classification and definitions 321, 322 Subscriptions for stock 323 Agreements to form a corporation and subscribe for its stock.. 324 Mutual agreements to subscribe at some future time 324 By whom enforceable 324 Subscriptions for stock of company actually incorporated 325 Payment of 10 per cent, of the amount subscribed 325 What must be shown to establish the relation of stockholder. . 325 Subscriptions upon an express condition not performed 326 Conditional subscriptions, when not enforceable 326 Secret collateral contract that the subscriber shall not be bound 326 Secret contract, varying the terms of the subscription, is void . . 326 Issuing of certificate of stock to subscriber not essential to lia- bility 326 What is a sufficient subscription 327 Transfers of stock 327 Action against corporation for refvising to permit transfer. .327, 328 Directors cannot, by by-laws, restrict transfer of stock. .. .327, 328 How stock may be made non-transferable 328 Assignment of a certificate of stock in blank 328 Assignee of certificate may fill blank with his name 328 Transfer not in conformity to by-laws passes interest of trans- feror 328 Transfer upon forged power of attorney 328 When action lies for purchase price of stock sold for future delivery 328 Assignee of stock takes subject to equities against assignor .... 328 Eight to dividends after transfer 329 Gifts of stock of a. corporation 329 INDEX. 1045 CORPORATIONS— (Continued) : Page. General powers of all corporations 330 Statutory limitation 330 General powers conferred and declared by statute 331 Decisions limiting and defining powers of a corporation 332 Power to contract debts and make notes, drafts or accept- ances 332, 333 Municipal corporation may issue negotiable paper for a debt. . 333 Same rule applies to all corporations, public or private .... 333, 334 Incidental powers possessed by corporations 333, 334 Power of trustees or agents to contract 334 Statutory directions as to mode of acting must be followed. . . . 334 Cannot indorse for other persons or corporations 334, 335 May indorse paper which it owns 335 Power of the president to borrow money in name of company . . 335 Incidental powers of corporations to borrow money 335 Banking corporations cannot purchase stocks for sale 335 Agreement of company to purchase its own stock is void 335 Cannot create a debt against itself except for authorized pur- pose 335, 336 Bank may lawfully sell property received for debt 336 Person contracting with corporation cannot question capacity to contract 336 Liability upon express or implied agreements 386, 394 Ratification of unauthorized act of agent or officer 336 Failure to disaffirm unauthorized act within a reasonable time 336 337 Power to purchase implies power to sell or mortgage 337 Corporate seal 337, 338 Affairs of the corporation to be managed by the directors .... 338 Quorum for the transaction of business 338, 339 Directors may make by-laws 339 Directors may delegate authority to agents 338 Power to appoint officers and agents and fix compensation .... 338 Appointment and powers of an executive committee 339 Validity of by-laws, and the persons bound by them 339 Power to impose fines or penalties by a by-law 339, 340 By-laws of municipal corporations having the effect of a statute 340 Power to manufacture goods implies power to sell and collect price 344 Liability of corporations 340 Corporations cannot have any intent 340 For wrongful acts of officers or agents 341, 342 Liability in action for slander 342 No liability for manslaughter 342 How far liable for willful acts of its servants 341, 342 Proof that the wrongdoer was the agent of the corporation . . 342, 343 For negligence of agent in discharge of his duties 343 Ejectment will lie against a corporation aggregate 343 Acts which would forfeit charter no defense to action by cor- poration 344 When estopped from disputing official character of trustees .... 344 Eight of person dealing with a corporation to assume that it is acting within its charter 344 Liability upon an implied promise 344 Liability for services rendered and accepted 345 Liability for unauthorized acts of officers or agents 345 Liability upon a contract not in writing 345 How far bound by declarations or acts of a director 345 Liability upon indorsements 345 Assignment of corporate property 346 Notice to agent, when notice to corporation 289, 347 1046 INDEX. CORPORATIONS— (Continued): Liability of corporations — (Continued) : Page. Persons dealing with officers of a corporation bound to know their powers 294 Personal liabilities of an agent 347 Liability of stockholders 347 Where the capital stock is not fully paid 347 For debts due and owing to laborers, servants, etc 347 Holders of stock as security, or as executors, etc 347, 348 No action against stockholder before judgment and execution against corporation 348, 349 Limitation of time of commencement of action against stock- holder, etc 349 Cannot plead usury 909 Same rule applied to receiver, surety, guarantor or indorser.. 910 Stockholder has an insurable interest in corporate property 920 COSURETIES: (See Sureties.) Rights of cosureties as against each other 575-577 COVENANTS: (See Contkacts.) Are the stipulations or promises contained in sealed instruments 47, 48 Mutual or dependent 47-49 Covenant in chattel mortgage to warrant and defend 109 . For quiet enjoyment, in a lease 189, 190 Against underletting or assignment 197, 198 Breach of covenant to repair 223 To pay taxes and to renew a lease 226 CREDITOR: Eights of creditors in respect to chattels mortgaged 110 When a creditor may impeach a chattel mortgage 110, 111 CROPS: Mortgage of growing crops 88-90 Clause in lease giving a lien upon crops 90-92 Right of tenant to emblements 228, 229 Sale of crops to grow 731 Growing crops are personal property 941 Growing crops pass to purchaser of realty 949 Pass under sale upon foreclosure 952 May be transferred by oral agreement 996, 997 CUSTOM: Distinction between custom and usage 63 Influence upon contracts 63 DAMAGES: Recoverable for breach of an indemnity bond 69, 70 DATE: Not essential in a bond 66 Want of date does not affect validity or negotiability of a bill or note 595-600 Note may be ante-dated or post-dated 599 Right of holder to insert the true date 599, 600 DATS OF GRACE: Have been abolished 668, 669 INDEX. 1047 DEATH: Page- Of person making subscription to a charitable object 30 Of either party terminates contract of employment 55, 56 Of an agent terminates the agency 318 Authority of the agent ceases on death of his principal 318, 319 Exception in case of an agency coupled with an interest 319, 320 DECLARATIONS : Of a director, how far binding on a corporation 345 DELIVERY: Of bonds 66 Conditional delivery of bonds 67 Of goods to carrier for transportation, what delivery is sufficient, 476-484 Carrier must make complete delivery before he is entitled to freight 480 481 When delivery to a carrier is a delivery to the purchaser 756-758 Of negotiable instruments to give them a legal inception 615-617 Of the subject of a gift, and what will be a sufficient delivery. . . .696-698 Time of delivery of a gift 701 Conditional delivery of property sold 737, 758 What is a sufficient delivery of property sold 753 When tender of delivery is excused 755 When delivery to a carrier is a delivery to the purchaser 756, 758 Time of delivery of property sold 759 Place of delivery 760 When complete delivery precedes right to payment 768, 769 DEMAND: Of payment of mortgage payable on demand, when necessary. .102, 120 122 Of rent before commencing summary proceedings 188, 189 Before commencement of action against agent 276, 277 Before suit against factor 277, 278 Before suit against attorney for money collected for client 279 Of payment of debt before sale of a pledge 433, 434 Of principal when necessary to charge surety 588 Of property specified in a chattel note 631, 632 DEPOSIT: Ownership of money deposited in a bank 428, 429 DEPOSITUM: (See Bailment.) Nature of the bailment 410 DESCRIPTION: Of chattels mortgaged 120 Of premises leased 176 Distinction between words descriptive of article sold and warranty . . 800 DIRECTORS: Business of corporations transacted by directors 338 Powers of directors ^^^i ^^^ Notice to directors, when notice to corporation 346, 347 DISCHARGE: Of chattel mortgages I'if' Of a mechanic's lien 539 Of a lien for labor on stone 544 Of sureties • • ■ ■ 569 Of negotiable instruments "»", 681 1048 INDEX. DISHONOR: Page- Of a bill by non-acceptance 663 Notice of dishonor of a bill or note 669 DISSOLUTION: (See Pabtneeship. ) Of partnerships 398-403 Necessity of notice of dissolution 374 ELECTION: Of remedies on breach of contract of sale 782-794 EMBLEMENTS: Right ( f tenant to emblements 228 EQUITIES: Assignee of mortgage takes subject to equities 716, 717 EQUITY OF REDEMPTION: Of mortgaged chattels, how cut off 107 Eight to redeem a pledge, how divested 435 ESTOPPEL: Leases by estoppel 173 Disputing landlord's title 173, 174 'When insurance company estopped from claiming a forfeiture 929 EVICTION: (See Landlord and Tenant.) Defined 212 Actual and constructive 212, 213 What constitutes an eviction 213-217 Rights and remedies of evicted tenant 219 EVIDENCE: Bill of sale may be shown to be a mortgage by parol 125 Parol evidence inadmissible to change terms of a mortgage .... 125, 126 Absolute assignment of mortgage cannot be contradicted by parol. . 126 Parol evidence to apply description to subject-matter of a mortgage 126 To support the validity of a chattel mortgage 133 Certified copy of a chattel mortgage as evidence 148 Possession of negotiable paper as evidence of ownership 619 Of consideration where none is stated in a writing 960, 961 EXECUTION: Sale of interest of mortgagor of chattels under execution. . . .96, 99, 114 Levy on interest of mortgagee of chattels 105 Responsibility of a sheriff or constable for goods levied on 414 Sale of interest of pledgor under execution 433 Fixtures, when liable to an execution 953, 954 EXECUTOR: Right to fixtures as between executor and heir 940, 941 FACTOR: (See Pbincipal and Agent.) Factor and broker distinguished 258 Duty of factor to obey instructions 249-253 The factor's act, and its object and application 258-266 Validity of sales by factors 259, 260 When liable for loss of goods by fire 261 Assumption of the purchaser's debt by factor 261 INDEX. 104& FACTOR— (Continued) : Page. Right to maintain replevin for the goods consigned 263 Risk of remittances by factor to consignor 263^ Contract of factor acting under del credere commission need not be written 262, 263 Taking note payable to himself or bearer and receiving payment, 261, 262 264 Has no authority to pledge the goods consigned 266 Relation between factor and the consignor 266, 267 Title to the specific proceeds of sale is in the consignor 267, 277 Title to the goods consigned remains in consignor 268 Lien of factor under advances or who guarantees sales 268 Demand before suit by principal 276-278 Liability of joint factors 277 When liable to pay over money to principal 278 Commissions of factors 279, 280 Lien of factors 268, 287, 289, 518 Right to sue in his own name 309 Care required of factor in custody of the goods consigned 458, 459 Set-off of demands against factor in action by principal 518-520 FIIiING: (See Chattbx Mortgages; Conditioisial Sale.) Of chattel mortgages Ill, 135, 148 Of contracts of conditional sale 553 FIXTURES: Meaning and common use of the term 940 As between heir and executor 940, 941 Growing crops 941 Grass and fruits 941 Hop poles 941 Machinery, etc 941 , 942 Pump, pipes, scales, etc 942 As between landlord and tenant 942, 943 Machinery, etc., placed on leased premises by tenant 943, 944 Right of removal by tenant 944 Time of removal 944 What the tenant may remove 945 As between vendor and purchaser of real estate 946 Tests as to whether property is personal or real 946, 947 Purpose and intent of the annexation the principal test 947 Intent may be presumed or inferred 947 Mode of annexation as evidence of intent 947 Gas fixtures and mirrors 947, 948 Machinery in a mill 948 Buildings 948, 949 Fencing materials and manure on a farm 948 Erections for the purpose of trade, manufacture, or agriculture 948 949 Growing crops 949 Steam engine, boilers, etc 949 Shelves, counters, drawers and tables of a retail store 949, 950 As between mortgagor and mortgagee of real estate 950 Time when the articles were placed on the premises immaterial 950 Special agreement that articles shall remain personal 951 Rights as between mortgagee and conditional vendor 950, 951 Intention in annexation 951, 952 Articles held to pass to the mortgagee 952 When liable to execution 953, 954 Right to mortgage fixtures 87-90 1050 INDEX. rOOD: Page. Warranty on sales of articles of food • 810, 811 FORBEARANCE : As a consideration for an agreement 22 FORECLOSURE: Of chattel mortgages 106 Of liens upon chattels 525 Of mechanics' liens 525 Of vendee's interest under a conditional sale 556 Of the right of redemption of the pledgor of chattels 433 FORFEITURE: Of a lease 211 Waiver of forfeiture of purchase under conditional sale 557 Waiver of forfeiture from breach of conditions in a policy 928 Is not favored 920 When insurer estopped from claiming forfeiture 929 FORMS: Of a bill of exchange 597 Of a negotiable promissory note 598 Of a joint and several note 599 Of a note payable at a bank 600 Of a check 619 Of a bill of exchange drawn in a set 623, 624 Of a non-negotiable note 626 Of a chattel note 626 Of an undertaking in action on a lost note 688, 689 FRAUD : Liability of principal for fraud of agent 294-298 Liability of partners for fraud of a member of the firm 388 Of the shipper of merchandise in concealing character of goods .... 489 Recovery upon notes obtained by fraud 615, 616 Title of purchaser from vendee who obtained goods by fraud 752 Sale or delivery procured by fraud 775 (See Sale.) Eescission of a contract procured by fraud 787-789 Lien of carrier continues where delivery has been procured by fraud 481-482 FRAUDULENT CONVEYANCES: Form of a. fraudulent disposition of property not regarded by the law 1003-1006 Statutes respecting the fraudulent disposition of personal prop- erty 1003-1006 Statutes respecting the fraudulent disposition of real property, 1005, 1006 Persons authorized by statute to impeach a fraudulent conveyance . . 1006 Chattel mortgages void as against creditors 127, 1006 Bills of sale, etc., void as against creditors 1007 Assignments with preferences 1008 (See Assignments.) Transfers of property in contemplation of assignment 1008, 1009 Assignments made with intent to hinder, delay and defraud creditors are void 1010-1017 Innocence of assignee of fraudulent design is immaterial 1011, 1012 Acts of assignee subsequent to a. valid assignment are im- material 1012-1015 INDEX. 1051 rRAXJDTILENT CONVEYANCES - (Continued) : Page. Reservation of benefits to the assignor 1012 Void assignments of partnership property 1012 Provisions in an assignment rendering it void 1012, 1013 Retention of the assigned property by the assignor 1014 When the validity of an assignment is a question of fact 1015 When the validity of an assignment is a question of law 1015 Fraudulent confessions of judgment 1015 fraudulent sales under execution 1015 Rights of purchaser from fraudulent vendee 1016 Proof to invalidate a sale on the ground of fraud 1016, 1017 Ansvper justifying seizure of properly fraudulently conveyed 1017 FREIGHT: When carrier may sue for and recover freight 480, 481 Recovering back freight paid in advance 481 Refusal to deliver until payment of freight 481 GIFTS: Nature, definition and classification 693 Gifts inter vwos and gifts causa mortis distinguished 693 Parties to gifts 694 Capacity to make a gift 694 Grift by wife to husband 694 Gift by husband to wife 694 Power of corporations to take by gift 331 Property which is the subject of gift 695 Essentials of a valid gift 696 Delivery to the donee 696 Intention to give not suflScient 617, 696-697 Mere words insufficient 617, 697 What constitutes delivery 697, 698 Donor must part with his entire title and interest 698 Return of property to donor after delivery to donee 699 Deposit by husband in name of himself and wife 699 Loan of money by husband and taking note payable to himself and wife 699 Gift of a pass-book, when a gift of money in bank 699, 700 Delivery must be unconditional 700, 701 Delivery not required when donee already has possession 701 Delivery subsequent to the declaration of gift 701, 702 Acceptance by the donee 702 Proof of gift 702 Essentials of a gift causa mortis 693, 702 Revocation of gifts 703 Consummated gift inter vivos is irrevocable 703 Before delivery may be recalled 703 Gift cOMSa mortis may be revoked by donor 704 Recovery from sickness revokes gift causa mortis 693, 704 GRAVESTONES: Liens for labor upon gravestones, monuments, etc 543 GUARANTY: Defined 644-647 By a partner, when binding on the firm 390, 391 Continuing guaranties 579, 580 Construction of guaranties 579, 580 Examples of continuing guaranties 579, 580 Of collection or payment 585 Liability on a guaranty of collection 585 1052 INDEX. GUARANTY— (Continued) : Page. Conditions precedent to liability of guarantor 586, 587 What constitutes due diligence on the part of the creditor 586 Diligence required on guaranty of collection from an estate 586 That a note is collectible 586 Of the collection of notes 586, 587 Of the payment of a debt 587 Who may enforce a guaranty 588, 647 When and what guaranties are assignable 588, 646, 647 Of bills and notes 644, 647 Transfer of guaranties are indorsed upon notes 646, 647 Guaranty cannot be enforced in action on the note 646, 647 Guarantor not entitled to notice of dishonor 647 GUEST: Who are deemed guests at an inn 464, 465 HEIR: Rights to fixtures as between executor and heir 940, 941 HIRING: (See Bailments.) Letting and hiring of personal chattels 440 HOLDER: (See Bill of Exchange: Promissokt Note.) Eights of a holder of a negotiable instrument 676 Who is a holder in due course 676 Eights of holder in due course 677 HOLDING OVER: Eights and liabilities arising from holding over by a tenant . . 181, 182 HUSBAND AND AVIFE: Gifts from husband to wife or wife to husband 694, 699 IDIOTS: Want of capacity to contract 6 ILLEGALITY: Of consideration 36 INDEMNITY: (See Bonds.) Bonds of indemnity 69 Implied promise of principal to indemnify surety 575 INDORSEMENT: (See Bill or Exchange: Peojussory Note.) Defined 592, 647 Negotiation of bills or notes by indorsement 647, 648 Eequisites of an indorsement 647 Kinds of indorsements 647 Special 648, 649 In blank 648 Eestrictive 648, 649 Qualified 648, 649 Conditional ? 648, 649 Without recourse 648, 649 By two or more 649 By a partner in the firm name 649 By an officer of a corporation 649 By person in representative capacity 650 INDEX. 1053 INDORSEMENT — ( Continued ) : Page. By indorser or payee whose name is misspelled, etc 650 Presumptions as to time and place of indorsement 650 After dishonor 650, 651 Transfer without indorsement 651 Person signing other than as maker, drawer or acceptor deemed an indorser 652 Liability of an indorser in blank 652 Warranty on negotiation by qualified indorsement 653-655 Warranty on indorsement without qualification 053-655 Older of liability of indorsers 654, 655 Conditions upon which an indorser's liability depends 666, 667 Proceedings to charge an indorser 669-675 Protest of foreign bills 675 INFANTS: Want of capacity to contract 6 Note made by infant voidable but not void 15, 16 Liability on contracts for necessaries 79 Chattel mortgage made by infant, voidable 79 Liability for services rendered by an infant 159, 160 May act as agents 230 Infant partner not liable for firm debt 353 INN: What is or is not an inn 460-461 INNKEEPERS: Who are deemed common innkeepers 459 Who are not innkeepers 459, 460 A restaurant or eating-house is not an inn 460 Combination of lodging-house and restaurant may be an inn 460 Distinction between an inn and a boarding-house 460 Keeper of Kaines law hotel may be held liable as an innkeeper 460 Lodging-house, another name for a boarding-house 46 1 Distinction between an innkeeper and a lodging-housekeeper. . . .461, 462 Proof necessary to charge a person as an innkeeper 462 Obligation of innkeeper to entertain all comers 462 Race, creed or color no ground for refusing privileges of an inn . . 462, 463 Liability for refusal to receive a guest 463 Not bound to furnish accommodations for carrying on a trade 463 Character of the accommodations that may be required by a guest 463, 464 Liability extends only to such persons as are guests 464 What is necessary to constitute one a guest 464, 465 Who cannot claim the rights of a guest 464, 465 When a traveler ceases to be a guest 46{. Are insurers of the property of their guests 465,-468 Modification of the common-law liability by statute 466 Statutory notice of safe for deposit of money, jewels or ornaments . . 466 467 A watch is neither money, jewel nor ornament, and is not within the statute 468 Statutory exemption cannot be extended by implication 468 Innkeeper may waive the protection of the statute 467 Oral notice of safe for deposit of valuables equivalent to posted notice 467 To what losses the statute does not apply 467, 468 Statutory exemption from loss through destruction of outbuildings by fire 467, 468 Statutory limitation as to value of animal destroyed by fire 468 1054 INDEX. INNKEEPERS — (Continued) : Page. Except as liability is modified by statute, innkeepers are insurers . . 468 Commencement and duration of liability for baggage of guest .... 469 Not liable for money lost through gross negligence of guest 469 Not chargeable with loss through theft of servant of the guest .... 469 Loss through use of hotel by guest for immoral purpose 470 Not liable for safety of goods in room used for sales-room 470 Innkeeper liable for larceny committed while he was sick 470 Loss of goods of guest left in outhouse or shed 470 Liability for loss of packages sent to a guest 470 Liability for goods left until called for 470, 471 Money, as a part of guest's baggage 471 Responsibility for dishonesty of other guests 471 Loss of goods as suflScient proof of negligence of innkeeper 471 Demand not necessary before suit 471 Lien of innkeepers upon baggage, etc., of guest 517^ 518 INSURANCE: Contracts of fire insurance and actions thereon 919 Insured must have an insurable interest in the property insured .... 919 Averment of such interest in the complaint 919 Who are deemed to have an insurable interest 920 Stockholders in a corporation 920 Tenant under obligation to insure 921 Common carrier or warehouseman 921 Charterer of a vessel who has contracted to insure 921 Insurers of buildings may reinsure their interest 921 Administrators of insolvent estates 921 Agents, commission merchants, etc 271, 921 Not the duty of the commission merchant to insure at his peril 269 Mortgagor and mortgagee of chattels 921 Owner of lands on which buildings are being erected 921 Officer holding property under execution, etc 922 Person in possession of property to be manufactured 922 Partner insuring partnership property in his own name . . 922, 92.3 Who must sue in case of destruction of mortgaged property 923 Action by assignee of the policy 924 Agreements for insurance 924 Liability for loss occurring before delivery of policy 924 Construction of the policy 924 Statements in the application 925, 927 When treated as warranties 925, 927 Conditions in the policy 927 Against other insurance without notice and consent 936 Against storage of specified articles 927 Against contingency of building becoming vacant or unoccupied 927 Violations of conditions prevent recovery on the policy 92S Waiver of forfeiture from breach of condition 928, 929 When company estopped from claiming forfeiture 929 Conditions as to the inception of the contract 930, 931 Conditions as to payment of premium 931 Waiver of such conditions 931 Conditions as to transfers of the policy or property 936 Notice of loss 932 Time within which the notice must be given 932, 933 Meaning of the terms "forthwith" and "immediate" 933^ 934 Proofs of loss 934 Must be furnished within the time specified in the policy 934 How far conclusive on the insured 934 Inspection of books of account, etc 934, 935 Examination of insured under oath 935 INDEX. 1055 INSURANCE— (Continued) : Proofs of loss — (Continued): Page. Certificates of third persons 935 Pointing out defects in preliminary proofs 936 What the policy covers 936 Agent of insurance company cannot act for himself and principal . . 271 INTOXICATION: Contracts made by person intoxicated 6 INTEREST: Nature and rate of interest 862 When payable by virtue of contract and when as damages 862 Rate of interest, when payable as damages 864 How affected by the law of place 864, 865 On bonds issued to refund bonded indebtedness of a municipality . . 865 Demands upon which interest is recoverable 865-875 When interest may be charged upon an implied agreement to pay it 866 867 When payment of the principal bars recovery of interest ........ 869 When interest may be recovered although principal has been paid . . 869 In an action upon a bond of indemnity 869 In action against surety 870 In action upon open, running account for goods sold 870 Evidence of custom and usage 870, 871 Where moneys are repaid on failure to perform contract 872 Upon cash sales 872 Unliquidated accounts for work, labor and services 872 In actions for tort 873 When life tenant refuses to pay interest 874 Compound interest or interest upon interest 874, 875 From what time interest commences to run 875 Not payable before principal unless otherwise agreed 875, 876 No general principle of law requiring annual payment 876 On contracts for the payment of money 876, 877 Charging interest from the time of default 876, 877 Judgment bears interest from entry 877 Where judgment directs money refunded or repaid 877 Upon a pecuniary legacy 877, 878 Income of trust fund 878 Upon award in condemnation proceedings 878, 879 Upon balance of an account 879 Upon amount agreed to be paid as a compromise 880 Upon chattel note 880, 881 Upon notes and bills of exchange 881 In action for money received 881 When sheriff liable for interest 881, 882 Computation of interest 883 In case of partial payments 883 Tender, to stop running of interest 883 Where payment has been enjoined 883 INVESTMENTS: Skill and diligence contracted for by agent to make investments 253 JOINT DEBTOR: Composition with creditors, and its effect 393 One or more joint debtors may confess judgment for joint debt 393 1056 IXDEX. JOINT-STOCK: Page- Joint-stock companies 382 Liability of the members for the debts of the concern 382 Subscription to articles of association 382 Action for dissolution 382, 383 Articles of association 384 Officers 384 Action brought by or against president or treasurer 384 Joint-stock corporation may mortgage its property 80 JOINT TENANTS: May join in mortgaging their property 80 JUDGMENTS: Actions upon judgments 938 Jurisdiction of actions in justice's court upon judgments 938 In action against persons jointly indebted on contract 938, 939 Suits upon judgments docketed in the clerk's office 939 Statement of jurisdictional facts in the complaint 939 Proof necessary to sustain action upon a judgment 939 Fraudulent confessions of judgment 1003, 1004 When such judgment may be successfully impeached 1005, 1006 Confession of judgment by one of several partners 393 Confession of judgment by joint debtors 393 Bear interest from entry 877 JURISDICTION: Of a justice of the peace in actions on contract 1 On bonds required and taken by a justice 69, 70 On the official bond of an administrator 72, 73 On surety bonds 75 I/ABOR: When performance of labor furnishes cause of action 23 Gratuitous services furnish no ground of action 24 When the law will imply a promise to pay for services 24 Services rendered by member of family presumed to be gratuitous . . 24-26 Services rendered by a woman supposing she was a wife 26 Services rendered by a minor under void indentures 26 Services by employee presumed to be under contract of employment 26 Services rendered in extinguishing fires 26, 27 Recovery under entire contract to labor 54, 55 Sickness or death excuses non-performance of entire contract . . 55, 56 Special contracts to labor 150 Complete performance as a condition precedent to recovery .... 150 Performance of building contracts 152 Agreements to work for a specified time 54, 152 Agreements to complete job in a specified time 153, 154 When part performance gives a right of action 154 Discharge of servant without cause 155, 162 When the act of the employer caused the default 157, 162 Pleading special contract 159 Services rendered beyond the specified time 160, 162 Contracts conditioned upon satisfaction, etc 160, 162 Deviations from original contract 162 Amount recoverable as damages for breach of the contract. .163, 164 Improper, negligent and unskillful execution of the work.. 164, 165 Immaterial variations from the contract 165, 166 Liens for labor on stone 543 INDEX. 1057 I.ANDLOBD AND TENANT: Page- Creation of the relation of landlord and tenant 167 By an oral or written lease 107, 168 (See Lease.) What constitutes a lease 167 What is a lease and not an agreement for a, lease 168-170 What is not a lease 170 What is a mere agreement for a lease 170, 173 Words of present demise essential to create a letting 173 Relation does not exist where party goes into possession under a contract to purchase 171, 173 Relation not created by agreement to work land on shares . . 172, 173 When the relation is that of master and servant and not land- lord and tenant 172, 173 Lease by estoppel 173 Landlord cannot deny ownership of land demised 173 Tenant cannot deny landlord's title 173, 174 Tenant may show eviction under title paramount 174 Tenant may show that landlord's title has terminated .... 174, 176 Description or identity of the premises demised 176 Duration of the term 177 Statutory provision for the city of Kew York 177, 178 Examples of the construction of leases with reference to the term 178-180 Covenants to renew a lease 179, 180 Holding over by the tenant 180 Landlord may treat tenant holding over as a trespasser or tenant 180-183 Continuance in possession implies contract to renew tenancy for a year 181 Where the landlord does not object, assent of both parties pre- sumed 181 Option to regard tenancy as continuing rests with the landlord 181 Tenant holding over cannot throw off the character of tenant . . 181 Notice to landlord of renting of other premises does not change the rule 181 Exception where the holding over is in consequence of sickness 181 182 Where a possible holding over was provided for in the lease .... 182 When the holding over is presumed to be upon the original terms 181 When the terms of the original holding are not controlling .... 182 Landlord's remedy when he elects to treat the holding over as wrongful 182 Tenant liable for rent when his sub-lessee holds over 183 Reletting of the premises, an election not to hold original tenant 183 Whether there has been a holding over may be a question of fact 184 Holding over after notice of intention to quit 184 Holding over after notice to quit 187 Occupation under a lease void by the statute of frauds 184 Parol lease for a period longer than a year is absolutely void . . 185 Either party may repudiate the lease as soon as made 185 Such lease vests no term in the lessee 185 Lessee bound to pay only for the time he has occupied 185 Landlord may recover for use and occupation 185 Lessee is merely a tenant at will 185 Tenancy at will may be converted into yearly tenancy by a new contract 185 New contract may be implied from circumstances 185 Effect of holding over a year under void lease 185, 180 Lease of premises for unlawful purposes, void and not enforceable . . 186 67 1058 INDEX. LANDLORD AND TENANT— (Continued) : Page- Agreement void because not to be performed within a year .... 186, 187 Notice to quit 187 To terminate a tenancy at will or by sufferance 187 Remedies of the landlord who has served the notice 187 To terminate an estate for life or for years 187 Penalty for holding over after notice 187 Notice in summary proceedings 187 Who will be deemed a tenant at will 187, 188 Requisites of notice to terminate a tenancy at will 188 Notice in case of default in payment of rent 188, 189 When a month's notice must be given 188, 18& Where the parties have stipulated as to the length of the notice 188 No notice necessary when tenancy ends on a day certain 189 Waiver in ejectment of notice to quit 18& Eights and obligations of the parties 189 Implied agreement of the lessor to give lessee possession 18& Implied covenant for quiet enjoyment 189 Action lies for breach of such implied agreement and covenant. . 189 Damages recoverable in action for refusal to give possession . . 190 Implied covenants of title and for quiet enjoyment not war- ranties against acts of strangers 190 Remedy of lessee is against former tenant holding over 190 When the lessor cannot recover rent for premises held adversely 190 191 Liability of lessor for letting infected premises 191 Concealment of the fact that demised premises had been used for prostitution 191 Farm tenant bound to cultivate in manner required by good husbandry 191 Eight of tenant to remove fixtures 944 (See FixTTJEES.) When the manure belongs to the farm 191 When the tenant may remove the manure 192 Tenant must use the premises for the purpose for which they were leased 192 Landlord may recover his damages if used for other purposes . . 192 Liability of tenant for making material alterations 192 Eights of several tenants in the demised premises 192-193 Liability of one of several tenants for negligent use of water pipes 193 I>uty of landlord of apartment-house to keep water pipes in re- pair 194 Liability of both landlord and upper tenant for injuries from water 194 Eight to surrender premises rendered untenable by fire, etc. . . 194 Eule at common law 195^ 19g Eemedies of tenant for breach of agreement to repair 196 Underletting and assignment 197 Eight of tenant to underlet or assign in the absence of covenants to the contrary I97 Eight of action for breach of covenant against underletting, etc. 198 Covenant not broken by change in firm of the lessees 197, 198 Covenant is broken by general assignment by lessee 198 Distinction between underletting and assignment 198 What is a sub-lease and not an assignment 198 What is an assignment and not a sub-lease 198, 199 Lessor cannot sue undertenant upon lessee's covenant to pay rent 199 Implied agreement by undertenant to pay rent to lessor 199 Liability of assignee of the term for rent 199, 200 Presumption that party in possession occupies as assignee .... 200 Liability of assignee for benefit of creditors for rent 201, 202 INDEX. 1059 liANDI^ORD AND TENANT — (Continued) : Underletting and assignment — (Continued) : Page. Banlcruptey of tenant does not cancel lease 201 Requisites of assignment of a lease for a term exceeding one year 202 Remedies of grantee of leased property, etc., for violation of covenants in lease 202 Remedies of lessee of real property, etc., for breach of covenant in lease 202 Obligation of person taking an assignment of a lease 203 Liability of an assignee of a lease 202, 203 Liability of the lessee who has assigned his lease 203 Sub-tenant may pay rent to lessor to protect his possession .... 204 Rent cannot be reserved out of chattels personal 204 When rent goes to heir of lessor and not to executor 204 Apportionment of rent 204 Surrender of the term .' 205 Surrender defined 205 Mode in which the surrender of a term exceeding one year may be made '. 205 Requirements of the statute of frauds 205 Surrender by operation of law 205, 206 By creating the relation of vendor and vendee 206 By a new lease of the premises 206, 207, 210 Surrender of sealed lease may be by unsealed instrument 207 Surrender of written lease by parol 208 Surrender of an unwritten lease by parol 209 Acceptance by landlord of key of demised premises 208 Underletting or assignment not a surrender of original lease . . 210 Forfeiture of the lease 211 Forfeitures not favored in law 211 Must be a clear case before forfeiture will be decreed 211 By violation as to condition as to payment of rent 211 Forfeiture in part operates as forfeiture in toto 212 Mere words do not work a forfeiture of an estate for life or years 212 Waiver of forfeiture by acceptance of rent 212 Eviction 212 Defined 212 May be actual or constructive 212, 213 Bars lessor's action for rent 213 Requisites of a constructive eviction 213 Must be an actual expulsion from or abandonment of the prem- ises 213 What will justify an abandonment of the premises . . 213, 214, 215 216, 218 Waiver by tenant of his right to quit 214 Partial eviction 214, 218 Acts of landlord equivalent to an eviction 214, 215, 218 Continuance in possession after injury has ceased 217 Acts not amounting to an eviction 216, 217 Recovery of rent accruing before dispossession 218, 219 No liability for rent of the quarter in which eviction occurred 219 Recovery of damages arising from eviction -. 219 The obligation to repair 220 Landlord not bound to repair in absence of agreement to repair 220 Statutory exception in respect to fire-escapes 220 Duty of landlord of a flat to keep stairways in repair 220 Lessor does not warrant that a dwelling is tenantable 221 Lessee rents at his peril 221-224 Want of repair no defense in action for rent 222 Oral agreement to repair not incorporated in written lease . . 222 Oral agreement to repair subsequent to the lease 222 1060 INDEX. I^NDLOBD AND TENANT — (Continued) : The obligation to repair — (Continued) : Page. No warranty that premises shall continue fit for purpose demised 222 Remedy of tenant for breach of agreement to repair 223 Duty to keep sinks and privies in order 224 Tenant not bound to rebuild building destroyed by fire 224 Knowingly renting a house unfit for human habitation 225 Remedy of adjoining proprietor injured by failure of landlord to repair 226 Covenants to pay taxes, to renew, etc 226 Taxes no part of rent reserved in a lease 220 Liability of a tenant under a covenant to pay assessments .... 226 Right of successor of lessee to enforce covenant for renewal .... 227 Breach of covenant to renew a lease 227 Assignment by landlord of rent or interest in lease 227, 228 Rights and liabilities of grantee of lessor 228 Emblements 228 Right of tenant to crop as emblements 228, 229 When purchaser under foreclosure entitled to crops 229 Fixtures 942, 943 (See Fixtures.) Right of removal as between landlord and tenant 942, 943 Time of removal 944 What the tenant may remove 945 IjA-W of PLACE: Governs as to validity and effect of contract in relation to chat- tels 104, 864, 914 I.E ASE : ( See Landloed and Tenant. ) Effect of clauses in a lease giving a lien on chattels as security for rent 90-92 What constitutes a lease 167, 168 May be oral or in writing 167, 168 If for longer than one year must be in writing 167, 990, 991 Contracts which are not a lease but mere agreements for a. lease . . 168-170 Occupation under a lease signed by lessee only 170 By estoppel 173 Description or identity of the premises leased 176 Duration of the term 177 Occupation under a void lease 184 Implied agreement by lessor to give possession 189 Implied covenant for quiet enjoyment 189 Implied covenant for cultivation in manner required by good hus- bandry 191 Covenants against underletting and assignment 197 Forfeiture of the lease 211 No implied covenant or warranty that a dwelling is tenantable .... 221 Written lease presumed to contain entire agreement of the parties . . 222 Rights of tenant on breach of covenant to repair 223, 227 Effect of covenant to surrender premises in good condition, etc 224 Covenants to pay taxes to renew, etc 226 LEGACY: When payable 877, 878 When interest is payable on a legacy 877, 878 LIEN: Defined 508 May exist at common law or by virtue of a statute 508 May exist where recovery of the debt secured is barred by statute . . 508 INDEX. 1061 IjIETT — ( Continued ) : Page. Particular and general liens 509 For work done on a chattel at request of the owner 509, 510 Particular lien of workman, etc., for labor or money expended 509 Of a shipwright for repairs 509 Of a printer on the paper to be printed 509, 510 Of a miller on grain ground at his mill 509 Of a sawyer on the logs in the mill-yard 509, 511 Of a livery-stable keeper on animals boarded or trained .. 509, 512' 515 Of a carrier for carriage of goods 515, 524 Of an innkeeper on the baggage of a guest 516, 517 Of a boarding-house keeper or lodging-house keeper 516^ 517 Of a warehouse company or of a warehouseman 518, 519, 523 Of factors 287, 519 Of insurance brokers 520 Of bankers 521, 522 Of attorneys 521^ 522 Of a laundryman 524 Of a wharfinger 524 To what property the lien of a manufacturer, etc, extends 510 Possession necessary to give a lien 510, 511 Mere custody by one person, the right of possession in another, gives no lien 511 Claim of lien must be consistent with contract for service 512 Farmer has no lien for pasturing horses 513 No lien for past debt on property received under new employment . . 513 Dealing upon credit inconsistent with claim of lien 513 Discharge of lien by agreement to look to personal credit of employer for payment 513 Taking security for the debt secured by the lien 513 Refusal to deliver goods upon grounds other than a lien 514 Claim of ownership of goods bars subsequent claim of lien 514 Claim of lien upon one ground bars claim of lien upon another ground 514 Lien not lost by mere failure to mention it when goods are demanded 514 Claim of lien for an excessive amount 514, 515 Claim of lien upon too many grounds 515 Relation of employer and employed essential to existence of a lien . . 515 Carrier has no lien for compensation for delay of consignee in unload- ing car 515 Mere trespasser or wrongdoer cannot give a lien as against true owner 515 Only persons authorized to contract for services can create lien there- for 516 Of a keeper of a hotel, inn, boarding-house or lodging-house under the statute 516 Innkeepers had no lien at common law 516 Board -house keeper had no lien at common law 516 What constitutes a boarding-house within the statute 517 Lodging-house keeper had no lien at common law 517 Upon what property the lien attaches 517, 518 General liens 518 Defined 509, 518 Upon what the right depends 518 Burden of establishing the right 518 Proof of custom and usage 518 General lien of warehousemen 518, 519, 523 General lien of factors 518, 519 Of insurance brokers 520, 521 Of bankers 521 Of attorneys and counselors 521, 522 Eight of workman to stipulate for a general lien 523 Of laundrymen 524 1062 INDEX. UEKT — ( Continued ) : Page- Loss of lien by voluntarily parting with possession of the property . . 524 Change of possession acquired by fraud, etc 524 Right of lien is personal and cannot be trai^pferrcd 524 Taking goods on execution in favor of the lienor _ 525 Mechanics' liens 525-540 (See Mechanics' Lien.) Liens on vessels 540 For what debts given 540, 541 For damages caused by another vessel 541 Notice of lien, and filing 541, 542 Lien on monuments, gravestones and cemetery structures 543 Provisions of the statute in relation thereto 543 Liens for labor on stone 543 For what labor given 543 Filing notice of lien 543 Requisites of the notice of lien 543 Service of a copy of the notice 543 Action must be brought to enforce lien within three months, 543, 544 Liability of owner when contract was with contractor 544 Discharge of the lien 544 Liens for the services of stallions 544, 545 Enforcement of liens on personal property by sale 545 Remedy provided by the Lien Law not exclusive 545 What is requisite to give a right to sell under the statute .... 545 Notice to be served upon the owner and its contents 546 Mode of sale 546, 547 Publication of notice of sale 546, 547 Redemption by owner before sale 547 Disposition of the proceeds of sale 542, 548 IiOAN: (See Bailment.) Gratuitous loans 424 IiOCATIO: Letting and hiring of work 446 XODGING-HOUSES : Distinguished from inns 459 Lien of lodging-house keeper 516-518 rOSSES: Agreement to share in losses as a requisite of partnership 358 Division of profit and loss between partners 369 XOST BILLS AND NOTES: No action would lie on lost negotiable paper at common law 686 Statutory provisions as to recovery upon lost negotiable paper, 686, 687 Undertaking to be given by the plaintiff 686, 689 Form of the undertaking 687 Statute does not apply to paper destroyed intentionally 687 No undertaking required in case of accidental destruction .... 687, 688 Proof on the trial 687 Proceedings to charge the indorser of ii, lost negotiable note . . 691, 692 Protest of lost bills 692 Notice of loss, and to stop payment 692 Recovery upon lost non-negotiable paper 686-687 lUN ATIC : Incapacity to contract 6 Revocation of agency by principal becoming a lunatic 320 INDEX. 1063 MANDATUM: (See Bailment.) Page- Nature of the bailment 417 MARRIED 'WOMEN: Capacity to contract under the present statutes 6 Services rendered for supposed husband under a void marriage 25 May act as agent for husband or for third parties 230 Refusal by wife to deliver property, not a refusal by husband 230 MASTER AND SERVANT: (See Labor.) Part performance of contract to work for a specified time 54, 55 Sickness or disability of employee excuses non-performance .... 55, 56 Death of either party terminates employment 55, 56 Occupation of servant of house of master not that of a tenant 172 Power of servant to warrant on a sale for the master 295 Liability of master for torts of agent 296-298 MECHANICS' riEN: Eight of lien given by the Lien Law 525 Procedure for the enforcement of the lien given by statute 525 Jurisdiction of a justice's court to enforce the lien 525 To whom, for what, on what, and against whom the lien is given . . 525 Definition of the terms used in the statute 525, 526, 527 Consent of the owner to the doing of the work or furnishing of materials 527, 528 Consent may be implied 528 What will not amount to consent 528 Extent of the lien given by the statute 528 Liens for public improvements 529 Liens upon railroads 529 Effect of attempts to evade statute by advance payments, etc 530 Statement of terms of contract, etc., to be furnished by owner on de- mand 530 Penalty for refusal to furnish such statement or for false statement 530 Lien becomes operative from time of filing notice of lien 531 Requisites of the notice of lien 531, 532 Verification of the notice 532 Effect of untrue statement of facts in the notice 533 Error in statement of amount 533 Notice need not be signed if name of lienor appears 533 Failure to state the name of the true owner, etc 533 Filing notice of lien 534 Time of filing 534 Place of filing 534 Entry in lien docket • 535 Lien not affected by death of owner before filing 534 Lien filed after expiration of time limited is void 534 Filing where lien is for public improvements 535 Service of copy of notice of lien upon the owner 534 Priority of lien over conveyance, judgment or other claim 535, 536 Over advances made in the contract 536 Priority as between several lienors 536 Assignment of the lien, and its eflfect 536, 537 Assignment of contract, or of money due or to become due thereafter 537 538 Filing of contract and assignment 537, 538 Duration of the lien 538 Order continuing the lien 538, 539 Modes of discharging the lien 539 Execution, acknowledgment and filing of contract for a building loan 540 Mechanics' lien law to be construed liberally 540 Substantial compliance with the.statute is sufficient 540 1064 INDEX. MEMORANDUM: Page- Sufficiency of memorandum of agreement to satisfy statute of frauds 831 1000 MONUMENTS: Lien given by statute on monuments, etc 543 MORTGAGEE: (See Chattel Mobtgage.) Title of mortgagee after default in payment of chattel mortgage 98, 101 Rights of a mortgagee in a chattel mortgage 101 Right of mortgagee to maintain action on policy of insurance 923 Right to fixtures as between mortgagor and mortgagee 950 MORTGAGOR: (See Chattel Moetgage.) Rights of mortgagor who has given a mortgage of chattels 93 Right to maintain action upon an insurance policy 923 Rights in fixtures as between mortgagor and mortgagee 950 MUNICIPAL CORPORATION: Territorial divisions of the state included in the term 322 Act for the protection of purchasers of its bonds 257, 258 MUTUALITY: Essential to executory contracts 28, 29 Need not exist at inception of contract 28, 29 MUTUUM: (See Bailment.) Nature of the bailment 424 NAME: Partnership agreement may be valid though no name of firm is agreed upon 366 Statutory limitation upon right to use words "and Company" or "& Co." 366 Who are protected by this statute 366 Statutory provisions as to carrying on business under assumed name 367 When the name of a partner cannot be used as the firm name 368 NEGLIGENCE: Liability of principal for negligence of his agent 295, 296 Liability of agent to principal for loss through negligence 306 Liability of a corporation for negligence of its agents 341, 342 Partner is liable for negligence of his co-partner or servant. . .396, 397 Degrees of negligence 408, 409 When the question of gross negligence is a question of fact 423 Liability of pledgee for negligent loss of pledge 438 How far a common carrier may contract against liability for negli- gence 504, 505 NEGOTIABLE INSTRUMENTS: (See Bill of Exchange, etc.) Governed by "Negotiable Instruments Law" and the law merchant . . 589 General principles and definitions 589, 590 Parties to negotiable instruments 592 Form and requisites of negotiable instruments 593 Form of bill of exchange 597 Form of negotiable promissory notes 598, 599 Requisites as to negotiability 594 Specifying payee or drawee 600-603 The promise to pay 603 Writing, signing, sealing, etc 612 Delivery 615 mCEX. 1065 NEGOTIABLE INSTRUMENTS - ( Continued ) : Page. Incomplete negotiable instruments 619 Filling blanks 619 Unauthorized negotiation of incomplete instrument ...... 619, 620 Checks . . 619-623 ±JiUs oi exchange in a set 623 Bills and notes not negotiable 62.5 Chattel notes 627-633 Orders for goods ..............'.'.'... 627^ 628 Consideration g33 Guaranty of bills or notes 644-647 Negotiability of the contract of guaranty 645, 646 Negotiation of bills and notes .' 647 Indorsement of bills and notes .............!. 647 Acceptance of bills .655 656 Presentment of bills of exchange for acceptance ' 659 Proceedings on non-acceptance 663 Presentment of negotiable instruments for payment 663 When due and payable 666-668 Notice of dishonor of a bill or note 669 Protest of bills of exchange 675 Rights of the holder 676 Discharge of negotiable instruments 680, 681 Payment by bill or note 681 Lost bills or notes and actions thereon 686 How far bills of lading are negotiable 780, 781 NEGOTIATION: Of bills and notes 647 NOTICE: Officer indemnified is not obliged to give notice of suit 74 Effect of failure to give such notice 74, 568 Effect of failure to defend after such notice 583, 584 Purchaser with notice of unfiled mortgage not a purchaser in good faith 112, 116, 135, 136 Notice to quit 1 87 When notice to agent is notice to his principal 289 When notice to a director is notice to the corporation 347 Publication of notice of dissolution of a partnership, when sufficient 401 402 When actual notice of dissolution must be given 401, 402 Of sale, etc., by vendor after default on conditional sale 558, 559 Of acceptance of a proposed suretyship, when necessary 564 Effect of disregard by creditor of notice by surety to collect .... 569, 570 Notice to principal not always notice to surety 585 Of dishonor of a bill or note 669 Of assignment, when necessary to protect the assignee 718 Notice of loss under fire insurance policy 932 Notice to insurer of other insurance 936 Of sale of property pledged 433, 434 By innkeeper, etc., of a safe for deposit of valuables 466, 467 Of mechanic's lien 531 Of assignment of a mechanic's lien 538 Of sale of chattels under the Lien Law 546, 547 ORDERS: For the delivery of goods, acceptance of 604 PARENT AND CHILD: When no promise to pay for services will be implied between 24-26 1066 IIsTDEX PARENT AND CHIIJ} — (Continued) : Page. Stepfather not bound to support step-children 26 When parent not liable for support of his child 14 PARTIES! To contracts !> ^j Must have legal capacity to contract I) Joint or several liability of parties 7 Assent of the parties 42 To bonds 66 To chattel mortgages 78 To copartnership agreements 351 To contracts of suretyship 560-563 To bills of exchange and promissory notes 591-593 To gifts 694 PAROL EVIDENCE: (See EviomcE.) PARTIAL PAYMENT: When and where not a consideration for a promise 13 Of debt secured by mortgage after default 99 Of the purchase money removes sale from statute of frauds 834 Rule for the computation of partial payments 883 PARTNERSHIP: Statutory definition of a partnership 351 Partnerships may be general or limited 351 Who are partners 351 Ostensible partners 351 Nominal partners 351 Dormant partners 351 Secret partner 351 Ownership of the partnership property 351, 352 Partnership is a, tenancy in common but every such tenancy is not a partnership 352 Mere community of interest does not create a partnership .... 352, 353 Agreements to form a, partnership and agreements creating a part- nership 353 Who may enter into a contract for a partnership 353, 354 Infant partners 353 Number of partners not limited by law 354 Members of joint stock associations liable as partners 354 No person can become a partner without consent of all 355 Purchase of partner's interest does not make purchaser a partner. . 355 Assignment for benefit of creditors does not make creditors partners 355 Test of a partnership is the intention of the parties 356 Sharing in profits as a test of partnership 357, 358 Interest in profits as a compensation for services, etc 358 Liability as partners to third persons 358 Persons not partners between themselves may be liable as such to others 359 Participation in profits as a return for capital advanced 359 Liability as a partner from permitting use of name 360 Liabilil^ of one holding himself out as member of a firm.. 360, 361 Presumed liability of each member of a firm 361, 362 Dealings with notice of restricted liability of a partner 362 What is not a partnership as to third persons 362 Agent paid a share of gross profits, not a partner 363, 364 What is a tenancy in common and not a partnership 364 Form of the partnership agreement 365 May be by parol, or in writing, sealed or unsealed 365 INDEX. 1067 PARTNERSHIP— (Continued) : Form of the partnership agreement — (Continued) : Page- Parol agreement for a longer period than one year creates part- nership at will 305 Agreement should be reduced to writing 365, 366 Name of the firm 366, 372 Unlawful use of the name of a, person or the words "and com- pany" 366 Statutory provision for protection of those giving credit only 366 Statutory provisions as to carrying on business under an as- sumed name 367 Limitation of the right to use name of partner as the firm name 368 Action for breach of agreement to form a copartnership 369 To what business the partnership extends 369, 370 Division of profits and losses 369 Law presumes they are to be divided equally 369 Parties presumed to be equally interested in partnership funds . , 369 Agreements for unequal division of the profits 369, 370 Partner may stipulate for exemption from losses 371 No partnership where there is no joint interest in the profits. . 371 Retiring partner 372 Liability for continuing to share in the profits 372 Liability to creditors of the old firm 372, 373 Agreements by some of the partners to assume firm debts 373 Notice of retirement and effect of omission to give notice . . 373, 374 375 Continued use of the name of the retiring partner 374 How notice of dissolution must be given 374 Effect of allowing unliquidated interest to remain in the business 374 Relations between partners when one takes the property and as- sumes the debts 374 Effect of taking the individual note of the partner assuming the debts 374 Survivorship 375 Partners are joint tenants in stock in trade without right of sur- vivorship 375 Interest of each partner in the partnership property 375 Eights of the survivor on death of partner 375 Duty of survivor to representatives of deceased partner. . . .375, 376 Law allows survivor no pay for closing up firm business 376 Right of representatives of deceased partner to require survivor to account 377 Survivor cannot bind representatives by contract 378 Liability of survivor for losses and to account for profits 378 Legal nature and incidents of lands purchased with partnership funds 378, 379 Property in the good will of the business 379 Duties and liabilities of purchaser of interest of survivor 379 Xiimited partnership and special partners under the statute 380 Statutory provisions as to limited partnerships 380, 381 Joint-stock companies 382 Contracts and agreements between the parties 382 Liability of the members 382 Subscription to articles of association 382 How the association differs from a corporation 382 Dissolution 382, 383 Individual liability of the members 383 Suits by a member against the association 383, 384 Statutory provision as to the articles of association 384 Actions brought by or against the president or treasurer 384 1068 IXDEX. PABTNERSHIP — ( Continued ) : Page. Eights, duties and liabilities of partners 384 Duty of a partner to devote himself to the interests of the firm 385 Ought not to engage in any other business 385 Not entitled to compensation except by share in profits 385 Agreement may provide for compensation 385 Partner cannot bind firm by acts outside firm business . . 386, 387 Entire firm bound by act of a partner in the firm business. . . . 386 General powers of a partner in respect to firm business. . .386, 387 388 Indorsement of accommodation paper 388, 389 Liability of firm on note in firm name but not in firm busi- ness 388, 389, 390 Partner not authorized to bind firm by guaranty of debt of third person 390 What guaranties are or are not binding on the firm 390, 391 Indorsing notes of third person given in exchange for firm nates 391 Partner may give receipt in name of the firm 391 Admissions of a partner as evidence against the firm 392 Ratification by firm of unauthorized act of a partner 392 Partner cannot bind firm by agreement under seal 392 Partner may assign chose in action belonging to the firm 392 Compounding for a partnership debt 392 All the partners must join in a submission to arbitration. ... 393 One partner cannot bind firm by confession of judgment 393 Power to assign partnership property for payment of firm debts 394 Insolvent partner may devote his individual property to pay- ment of firm debts 394 Insolvent partner must respect statute as to preferences 395 Firm property cannot be assigned to pay individual debts, 394, 395 Firm may make preferences among its creditors 395 Partner may transfer all of firm property to a creditor of firm 395 Fraudulent assignments of copartnership property 1012 Conveyance by one partner of firm real property 395 Partner cannot sell firm property to himself 269 Pledge of partnership property for a firm debt 395 Insurance of partnership property by single partner 922, 923 Liability of partner for fraud of copartner 396 Liability of partner for negligence of employee 396, 397 Firm liable on warranty made by one partner 397 Concealment of firm interest on sale of firm property 397 Proof of partnership in action against the firm 397 Admissions of a partner may be given in evidence 397 Partnership debts must be first paid from firm property 397 Dissolution of the partnership 398 Partnership at will may be dissolved at pleasure of a partner. . 398 Dissolution may be implied from circumstances 398 Damages recoverable for dissolution before the time limited . . . 398 Dissolution \vill not operate retrospectively 398 Death of partner effects a dissolution 398 Dissolution by war between countries in which partners reside. . 398 Dissolution by insanity of a partner 398 By bankruptcy of the firm or of a partner 400 Eights of assignee of bankrupt partner 400 Sale of interest of partner under an execution 400 By assignment by partner for benefit of his creditors 400 Rights of assignee of partner 400 Rights of partners after dissolution 400 Efl'eet of failure to give notice of dissolution 374, 400 Dissolution does not discharge from liability for firm debts. . . . 402 Revival of debts barred by statute of limitations 402 Actions, how brought after dissolution , 402 INDEX. 1069 PARTNERSHIP — ( Continued ) : Page. Actions by partners against each other 402 When no suit at law will lie in favor of one partner against a copartner 403, 404 Suits by one partner against another upon implied promise, 404, 405 For conversion of partnership assets 406 For receiving money without right after dissolution 405, 400 To recover amount paid by partner in excess of his shares .... 406 On promise to pay balance found on settlement 406 For breach of copartnership agreement 406 On promise to pay for extra services rendered for the firm. . . . 407 By one firm against another having a common member 407 Partnership cannot be proved by general reputation 407 Admission by one partner in the absence of the other not evidence. . 407 Presentment of negotiable instrument to partners for payment. . . . 666 PATENT RIGHT: Requirements of the statute as to notes given for patent right 679 PAYMENT: Payment upon a debt before due as a consideration for a promise . . 12 Part payment of a debt due no consideration for a promise 13 Failure to specify time of payment makes mortgage due immediately 98 119 Part payment of mortgage after default does not put title in mort- gagor 99 Extending time of payment discharges surety 573, 574 Presentment of negotiable paper for payment 663 Payment by bill or note 681 When the giving of a note is not regarded as a payment. . . .681, 682 Giving of a bill or note by debtor does not extinguish the debt 682 Acceptance by creditor of bill or note of a third person. . .i. 682, 683 Presumption from receipt of bill, note or check on precedent debt 682, 683 Presumption from receipt of such instrument at time of con- tracting debt 682, 683 Receipt of guaranteed bill, note or check at time of creation of the debt 682 Effect of taking note of some of several joint debtors 683 Effect of taking note of one of several partners 683 Acceptance of check given "in full payment" 683, 684 Receipt of negotiable note extends time of payment of original demand 684 Agreement to accept note of third person who becomes insolvent 684 Duty of a party receiving bill or note of third person 685 Forged negotiable paper, no payment 685, 686 PENALTIES: How far by-laws imposing penalties are valid 339 PLACE, LAW OF: (See Law OF Place.) PLEDGE: (See Bailment.) Distinction between a pledge and a chattel mortgage 83-86 Mortgagor cannot so pledge as to impair rights of mortgagee 97 Transfer of a chattel mortgage as collateral, is a pledge 130 By a factor 260, 266 Nature of the bailment 429-431 Rights, remedies and liabilities of the parties to the contract . . 429-439 Possession of the property essential to a pledge 85, 86 1070 INDEX. POSSESSION: ' I'age- Of the property pledged essential to a pledge 85, 86 Of mortgaged chattels by the mortgagor necessitates filing 94 Character of the possession by mortgagee required by statute . . 131, 132 Of the vendor of chattels equivalent to an affirmation of title 819 POWERS: Of agents 23a General powers of corporations 33(r PRESENTMENT: Of bills of exchange for acceptance 659 Of negotiable instruments for payment 663 PRESUMPTIONS: That the parties to a contract intended to bind representatives. ... 63 Of fraud from continued possession of mortgaged property 132, 133 That occupation of demised premises is as assignee of lessee . . 201, 202 Of an agent's authority from his acts 244-247 That credit was given principal on purchase by a known agent. . . . 265 Negotiable instrument presumed to be taken on credit of names thereon 305, 306 Against intent of carrier to contract for exemption from negligence 503 That purchaser from fraudulent vendee purchased in good faith, 779, 780 That partners are equally interested in partnership funds 369 PRINCIPAL AND AGENT: Authority of an agent 230 Who may act as an agent 230 Wife as an agent of her husband 230 General agents, and their powers 231-294 Special agents, and the limits of their authority 231, 244 Person dealing with special agent must ascertain his powers 232 Persons deal with special agent at their peril 232 Power of agent to sell to warrant 232, 233, 235, 29G Power to accept a bill for one sum will not authorize acceptance for another 233 Authority to purchase a certain amount, not authority to purchase less 233 Agent to solicit orders not authorized to receive payment 232, 251 Agent authorized to sell mortgage not authorized to foreclose 233 Authority to receive payment not authority to compromise 233 Agent authorized to deposit not authorized to draw 233 Authority of attorney to receive payment upon a mortgage 234 Authority to receive interest not authority to receive principal . . . 234 Clerk has no authority to sign note in name of his employer 235 Authority of agent to make note on behalf of corporation 235 Powers implied from a general authority to do an act or acts 251 Mode of appointing an agent 235 Authority to execute a deed must be under seal 235, 249 Authority to sell and convey lands or to contract to sell 992 Officer serving process not the agent of the party 235 When a public agent becomes the agent of a party 236 Agent acting under a power of attorney 237 Notice that the agent is acting in excess of his powers 237 Person may be bound by act of assumed agent 237 Apparent authority, when equivalent to actual authority 237, 238 Assumed authority of agent of railroad corporation 238, 239 Implied authority to sign from omission to repudiate forgeries .... 239 Authority of clerk to sign name of firm implied from repeated acts. . 240 That a person is reputed to be an agent, no proof of agency 240 INDEX. 1071 PRINGIPAI. AND AGENT— (Continued): Page. Authority to do an act inferred from nature of employment 240 What does not constitute apparent authority 241 Authority to sell and collect not authority to make deductions .. 242, 243 Recovery from agent of money borrowed for county 243 Ratification of unauthorized contracts by agents of the State 243 Powers of trustees of school district as agents of the district 243 Transfer by agent in excess of power passes no title 243 Special agent for a particular line of business is a general agent therein 244 Powers of an agent co-extensive with the business intrusted to him . . 244 Responsibility of insurance company for acts, etc., of local agent. . 244 Presumption as to powers of general agent of foreign insurance com- pany 244 Duties of incorporated companies in respect to control of acts of agents 244 Presumption of authority of agent of a corporation acting openly at its office 244 When school district is estopped from denying legal employment of a teacher 245 Undisclosed restrictions upon powers of general agent not effective 245 Facts from which assent to purchase by agent will be presumed, 245, 246 Acts of principal necessary to disaffirmance of purchase by agent . . 246 Presumption of authority of agent from general character of his acts 246 Presumption of agency from previous acts adopted and confirmed . . 246 Acceptance of benefits estops principal from denying agent's au- thority 247 Subsequent ratification equivalent to prior authority 247, 24& Ratification must be with knowledge of the facts to be binding. .248, 249 There must be an intention to ratify 247 Duty of principal to disavow unauthorized act of agent 247 Disavowal of acts of a mere volunteer 247 Ratification by acceptance of benefits 247 Of unauthorized arbitration 247 Of a usurious loan 247 Of representations made 247 Ratification of a part of a transaction a confirmation of the whole . . 248 Ratification of one act not ratification of a subsequent act 248 Alteration of sealed instrument under a. parol authority 24S Contracts to be binding on corporation must be within power con- ferred by charter 248, 249 Directors cannot ratify acts in excess of corporate powers 249 Parol ratification of an instrument under seal 249 Duties of agents 249 To obey instructions of his principal 249, 253 Of carriers of goods to forward them as directed 249 Of factor to follow instructions as to sales 250, . . 251 In the absence of instructions, agent must exercise a sound dis- cretion 250 Agent must be diligent in the discharge of his duties 252 Liability of collection agents for loss occasioned by negligence 252 Agent bound to possess requisite skill and knowledge 253 Skill and diligence required of agent to make investment 253 Diligence, care and judgment required of agent to make sales. . 253 254 Sales by agents on credit , ■ 254 Must act with sole regard to interests of his principal 254 Agent must act in person and not by substitute 255 Agent cannot delegate his authority 254, 255 Agent cannot act for himself and for principal at same time. . 269 Agent employed to purchase cannot be the seller 269, 270 Partner cannot sell firm property to himself 269 1072 II^DEX. PRINCIPAL AND AGENT— (Continued) : Duties of agents — (Continued) : Page. Cleric in a store cannot sell to a Arm of which he is a member. . 270 Agent taking conveyance in his own name holds for his principal 270 Agent cannot bind his principal where he is acting for himself 270 Insurance agent cannot contract for insurance with himself... 271 President of a bank cannot certify check drawn by himself. .272, 296 Principal may authorize agent to so act that he may reap a benefit 272 The authority to so act must be clearly expressed 272 Same rules apply to acts of directors of corporations, etc. .272, 273 Person cannot be agent for two opposite parties 273 Agent to collect a mortgage cannot be purchaser at sale 274 Person employed to purchase an estate cannot purchase for him- self 274 Agent to obtain a loan may see that lenders obtain valid security 274 Undisclosed double agency of broker defeats claim for commis- sions 271, 274 If double agency is known commissions may be recovered 27.5 Duty of agent to account 275 Duty of collecting agent to pay over money collected 275, 276 When a demand is necessary before action by the principal. . . .276, 277 Statement of sales of agricultural products by commission merchants 277 When money is due to principal from factor or commission mer- chants 277, 278 Proceeds of sale by commission merchant are property of the princi- pal 278 Duty of treasurer to keep money of principal distinct from his own 278 Agent must obey instructions as to the mode of remitting funds, 278, 279 When money collected by an attorney for his client must be demand- ed before suit 279 Notice to agent, when notice to his principal 289 Duty of agent to notify principal of facts affecting principal's interest 289 Law presumes that agent has notified his principal 289 Corporations chargeable with knowledge of entries in corporate books 290 Banking corporation chargeable with knowledge possessed by cashier 290 Time of acquiring knowledge by the agent as affecting the rule 290 291 Knowledge not coming to agent in the course of his employment 291 Exceptions to the general rule 291 Liability of principal for acts of his agent 292 Principal liable for acts of agent within scope of apparent au- thority 292 How far bound by acts of agent in excess of authority. . . .292, 293 General power of attorney to draw or indorse checks not author- ity to overdraw 293 Rule that principal rather than innocent third persons must suffer 294-296 Persons dealing with agents of corporations bound to know ex- tent of their powers 294 Authority of agent must be proved in order to charge the princi- pal 294 Liability of bank on check certified by cashier in violation of duty 294 Liability of the principal for the tort of his agent 294-298 Liability of principal on contracts made by agent 263, 299 Eight of principal to sue on contract made by agent. .263, 264, 298 Person not a party to a note cannot be charged thereon 297 INDEX. 1073 PRINCIPAL AND AGENT— (Continued): Page. Authority of the agent, how exercised 301 Authority conferred on several must be exercised by all 301 Exceptions in case of public agents 301 Agent should execute authority in name of his principal. . .301, 302 Proper mode of execution of papers by agent 301, 302 Execution of scaled instruments by agents 302 Xote to bind a principal must be executed in his name 303 E.xecution of instruments by agents of corporations 304, 305 Liability of the agent to his principal 306 For want of skill and diligence, causing loss 306 For improper investment of his principal's money 307 For failure to give notice of non-acceptance of a bill 307, 308 Agent not liable in tort for acts of omission 308 Collecting agent liable for act of attorney employed by him, 308, 309 Liable for failure to return goods on demand after revocation of agency 309 Dealings in his own behalf in hostility to principal's interest. . 309 Rebate on bills paid by agent belongs to principal 309 Actions by agents on their contracts 309 Agent contracting in his own name for benefit of his principal may sue 309 Principal may sue on such contract 310 If the contract is under seal the agent only can sue 310 Compensation of agents 310 Eight to reimbursement for advances 310 Right to reimbursement for costs, charges or damages incurred 311 Liability of agents to third persons 311 Not generally liable on contract made for a known principal. . 311 Principal question is as to whom credit was given 312 Agent should disclose name of his principal to avoid liability . . 312 Agent liable unless other party had actual knowledge of the agency 313 Liability in damages if he makes an unauthorized contract. .313, 314 Grounds of liability of assumed agent 313, 314, 315 Agent not liable for entering into an unauthorized void contract 315 Agent does not warrant that liis principal has capacity to con- tract 315 Agent contracting as such, may contract for personal liability. . 315 Agent submitting to an arbitration in his own name, bound by the award 315 Liability of agent upon contracts executed in his own name, 315, 316 Liability of agent for money mispaid to him for use of his prin- cipal 316 How far payment over to principal protects agent receiving money 316, 317 Payment to principal of money to which he was not entitled, as a defense 316, 317 Agent of carrier not liable for refusal to deliver property before payment of charges 317 Indorsement in oflBcial capacity by officer of corporation creates no personal liability 317 Agent purchasing at execution sale liable on his bid 318 Contract in name of agent cannot be changed to contract of prin- cipal by parol testimony 318 Remedy of third persons injured by failure of agent to perform a duty owed to his principal 318 Termination of the agent's authority 318 By death of the agent 318 By death of the principal 318, 319 By revocation of authority 319, 320 68 1074 INDEX. PKINCIPAI, AND AGENT— (Continued) : Page. Public agents 256 Liability on contracts made in behalf of government 256, 257 Personal liability of public officers 257 Statutory liability under act for protection of holders of coupon bonds 257, 258 Factors, brokers and commission merchants 259 (See Factors; Brokers; Commission Merchants.) Factors and brokers distinguished 25.S Business of factors usually done by commission merchants .... 258 The factor's act and its application 258, 259, 260 Factor's responsibility for losses 260, 26 1 Relation between a commission agent and his principal 261, 263 Ownership of the specific proceeds of sales 258, 259 When a broker may properly act for two principals 274, 275 Remittance by foreign factor or commission merchant 276 Statute requiring statement of receipt and sales of agricultural products 277 When the proceeds of sales are due from factor to principal . . 277, 278 Commissions of factors, brokers, etc 280-287 Lien of agents, factors, etc 287 PRINCIPAL AND SURETY : (See Sureties: Guaranty, etc.) When the relation of principal and surety exists 560 How the relation may be created 560 Consideration necessary to the contract of suretyship 560 Who are sureties 560, 56J Liabilities of sureties 562, 563 The obligation of a surety is measured by his contract 563 Contract cannot be extended by implication 563 Interpretation of the sureties' contract 563, 564 Notice of acceptance 564 Sureties in indemnity bonds 69, 565-569 (See Bonds.) Discharge of sureties 369 By delay of the creditor in proceeding against the principal, 569, 570 Taking other securities 572 By extending the time of payment 572-575 By change or alteration of the principal's contract 572, 573 By surrender of collateral securities held by the creditor . . 573, 574 Rights of a surety against his prneipal 575 Implied promise by the principal to indemnify the surety .... 575 Right to benefit of collateral securities held b}' the creditor . . 576 Remedy of surety is by action for money paid for his principal 576 Amount recoverable against principal 576, 577 Rights and liabilities of cosureties 577 Contribution 578, 579 Continuing guaranties 579^ 580 Rights of sureties against third persons 581-584 Guaranties of collection or of payment 585 Notice to principal not always notice to sureties 585 PROFITS: Sharing in profits and losses essential to partnership 357, 358 Taking share of profits renders party liable to third persons 359 ^ Agent paid a share of gross profits not a partner ■..:... 363 j Division of profits between partners 360 PROMISSORY NOTE: (See Chattel Notes.) Governed by "Negotiable Instruments Law" and the law merchant. . 589 Defined 590 INDEX. 1075 PROMISS OB Y NOTE — ( Continued ) : Page. Relation of the parties to the note and to each other 591, 592 Parties to a note 59 1 593 Capacity of the parties to contract 593 Parties primarily and secondarily liable 593, 594 Form and requisites of negotiable instruments 594 Must be in writing and signed by the maker 595, 596 Writing includes print 594-61 2 Mode of writing not material 612 May be on paper or other substitute 612 Signature may be by name in full or by initials 612 Signature by mark 612 When uncertain as to intent, signer deemed an indoraer . . 613 Signing in a trade or assumed name 613 Only the persons whose signatures are on the note arc liable 613 Signature by agent 613, 614 Liability of one signing as agent or in a representative char- acter 613, 614 Liability on notes signed by agents or officers of corpo- rations 613, 614 Signature by "procuration" 614 Forged signatures 614 Seal does not destroy negotiability 615 Absence of revenue stamp does not invalidate note 615 Must contain unconditional promise to pay a sum certain in money 594 What constitutes certainty as to sum 594, 595 What constitutes an unconditional promise 595, 608 Effect of promise to do an act in addition to payment of money 595-608 Express promise not necessary, where promise may be im- plied 603, 604 Due bills having the effect of formal notes 604 Guaranties to pay or to be accountable for a specified sum 604 Promises to pay in money or goods at option of the holder 604 605 Promise to pay in money or goods at the option of the maker 607 Conditional promise renders note non-negotiable 606 Must be payable in money only 608 Specifying the kind of money in which payment is to be made 606, 607 Must be payable on demand or at a fixed or determinable future time 594 What notes are deemed payable on demand 595 What constitutes a determinable future time 595 May be payable in installments 607 Not negotiable if payable on a contingency 606-608 Happening of the event on which payment depends 608 When payment is dependent on an event certain to occur 595 608 Notes payable after death of the maker 608 Must be payable to order or to bearer 594, 602 Notes payable to order, must be to a payee named or identi- fied 596, 602 Notes deemed payable to bearer 596 Notes payable to an officer for the time being .... 596, 601, 602 Notes payable to an officer named or his successor .... 601, 602 Notes payable to either of two persons in the alternative . . 602 Notes payable to the order of fictitious persons 602 Leaving blank as to name of payee i 606 1076 IIs^DEX. PROMISSORY NOTE— (Continued) : Must be payable to order of bearer — (Continued) : Page. Additions or omissions not affecting negotiability 595, 596 Omission of date 595-600 Ante-dated or post-dated notes 599, 600 Omission to state that it was given for value 595 Addition of a seal 595, 615 Stating or omitting to state the amount in figures 619 Specifying place of payment 601, 602 Designating fund from which payment is to be made . . 609-611 Designating fund to be charged or debited 595, 611 Designating kind of money in which payment is to be made 595 606 Statement that bonds have been deposited as collateral, 610, 611 Instruments which may be treated as notes or as bills 597, 599 Form of a negotiable promissory note 599 Form of a joint and several note 599 Form of a note payable at a bank 600 Delivery of promissory notes 615 Presumptions as to delivery 615, 617 Note not dated considered dated as of the time of delivery 599, 600 Note has no inception before delivery 615-617 Conditional delivery 615-617 Delivery upon condition that the maker should not be liable . . 635 Presumption of ownership from possession 617 Incomplete negotiable notes 617 Implied authority of holder to fill blanks 61 7-6] 9 Negotiation of incomplete note without authority 619-623 Non-negotiable notes 625 May be assigned 626 Form of note not negotiable 626 Form of note payable in chattels 626 Enforcement of chattel notes 626, 627 When and where chattel notes are payable 630-633 Consideration of notes " 633 Question of consideration open between original parties 633 Presumption of the existence of a valuable consideration 633 Necessity of alleging or proving consideration 633 Where the note is not negotiable 634, 635 Liability of an accommodation party 634, 635, 641-644 (See Accommodation Papeb.) Defense of want of consideration 634, 639, 640 Fraud in obtaining the noti 639, 640 Inadequacy of consideration no defense to action on note 640 Guaranty of collection or of payment of notes 585, 644 Relation of the guarantor to the note 646, 647 Negotiability of the contract of guaranty 646, 647 Guaranty passes to purchaser of the note 646 Who may sue on the guaranty 646, 647 Joinder of guarantor as a party defendant 647 Guarantor not entitled to notice of dishonor 647 Negotiation of promissory notes 647 Negotiation of incomplete note without authority 619-623 By delivery 647 By indorsement 647 Mode of indorsing promissory notes 647 The indorsement must be of the entire instrument 648 Special indorsement, or indorsement in full 648, 649 Indorsement in blank 64S Changing a blank indorsement into a special indorsement 648 Restrictive indorsement 648 649 Qualified indorsement 648 649 Il^DEX. 1077 PROMISSORV NOTE — (Continued) : Negotiation of promissory notes — (Continued): Page- Conditional indorsement 648, 649 Limit of liability of a special indorser 649 When the indorsement must be by all the payees 649 Indorsement by one of several partners 649 Indorsement of a note to or by a bank 649 Indorsement by person whose name is wrongly designated, etc. 650 Indorsement by person in a representative capacity 650 Presumption that note was indorsed before overdue 650 Indorsement after dishonor 650, 651 Striking out all indorsements except the first .' 651 Transfer of note payable to order without indorsement 651 Assignment of note payable to order 651 Assignee of note takes subjects to equities 651, 652 Liability of agent or broker negotiating note without indorse- ment 651, 652 Reissue of a note negotiated back to prior party 652 Person signing other than as maker deemed an indorser 652 Liability of one not a party to note who signs in blank before de- livery 652 Warranty by person negotiating note by delivery or qualified indorsement 653 Warranty by person indorsing without qualification 653-655 Order of liability as between indorsers 654, 655 Joint payees or indorsers deemed to indorse jointly and severally 655 Transfer of usurious note and rights of transferee 654, 655 Indorsement of non-negotiable note by person not a party . . 654, 655 Presentment of promissory note for payment 663 Not necessary to charge persons primarily liable 663 Action against maker is a sufBcient demand 663 Holder not bound to allege and prove demand at particular place 664 Effect of readiness to pay at the place specified 664 Necessary to charge indorser 664 When presentment must be made 664-666 By whom it must be made 664, 665 Place of presentment for payment 664, 665 Exhibiting note and delivery upon payment 665 Where the note is payable at a bank 665 When the maker is dead and no place of payment is specified . . 665 When the note was made by a firm and no place specified 665 Where several persons not partners are liable on the note .... 665 Not required to charge indorser on note made for his accom- modation 666 Omission of demand and notice not excused by insolvency of maker 666, 667 Excusing delay in presentment 666 Holder charged with default of agent 666 When presentment for payment is dispensed with 666, 667 Waiver by indorser of demand and notice 666, 667 What constitutes dishonor, and the rights of the holder thereon 666 667 When a note becomes due and payable 667, 668 Days of grace abolished 669 Holidays and half -holidays 669 Rule for computing the time when a note becomes due 669 Payment in due course, what is such payment 669 Notice of dishonor 669 Must be given to the indorser or he will be discharged 670-672 In what cases notice need not be given an indorser 674, 673 By whom given 669-671 When dishonored in the hands of an agent 669-670 1078 IXDEX. PROMISSORY NOTE — (Continued) : Notice of dishonor — ( Continued ) : Page. Requisites and sufficiency of the notice 671, 672 To whom given 672, 673 Time within which the notice must be given 672, 674 Notice by mail 673, 674 To what place the notice must be sent 674 Waiver of protest waives presentment and notice of dishonor. . 674 In what cases dispensed with 674 Excusing delay in giving notice 674, 675 Eights of the holder of a promissory note 676 Right to sue in his own name 676 Payment to holder in due course discharges the note ....:... 676 Who are holders in due course 676 Who are not holders in due course 677 Rights of a holder in due course 636, 677 Other holders take subject to defenses 677 When holder succeeds to title of a prior holder in due course, 677, 678 Every holder deemed prima facie a holder in due course 677 Shifting of the burden of proof in case of fraud in inception of the note 636, 677 Negligence of the holder in taking the note 677, 678 Donee takes subject to equities 678 Price paid by holder of a valid note is not material 678 Note purchased after maturity is subject to equities 678 Patent right notes 678, 679 Notes given for the purchase price of farm products for speculative purposes 680 Discharge of promissory notes 680, 681 As to persons secondarily liable 680, 681 Payment by party secondarily liable and rights of such party. . 681 Renunciation by holder of his rights against a party 681 Intentional cancellation of the note by the holder 680, 681 Unintentional cancellation, and burden of proof of the fact .... 681 Material alteration, and what alterations are material 681 Payment by note 681-686 (See Payment.) Lost notes 680 At common law 686 Statutory provisions for recovery on a lost note 686, 687 Undertaking on the part of the plaintiff 686, 688 Form of the undertaking 687 Statute applies only to negotiable instruments 687 Proof that the note was negotiable 688 Statute does not apply to notes deliberately destroyed .... 688, 689 Proof to charge indorser of lost note 689, 692 Giving notice of loss to all the parties to the note 691, 692 PROOFS OF LOSS: (See Insurance.) Duty of insured to furnish proofs of loss 934 PUBLIC OFFICER: Not the agent of the party whose process he executes 235 Liability on contract 258 PURCHASER: Rights of purchasers in good faith of mortgaged property 115 Rights of purchaser from fraudulent vendee 752 Right to fixtures 946, 947 RAILROADS: (See Common Caebier.) Liability for loss of baggage or goods on connecting lines .... 359, 502 INDEX. 1079 RAILROADS - ( Continued ) : Page Conditional sale of railroad equipment and rolling stock 550, 551 Are common carriers gOi go2 RATIFICATION: Ratification of act of assumed agent equivalent to prior authority 247 248 Must be with knowledge of all the material facts 248 Evidence of ratification 248 249 Ratification of part of unauthorized transaction, ratification of the whole 248 Ratification of one transaction not a ratification of a subsequent one 248 Authority by ratification extends back to time of original trans- action 248 Of unauthorized contract with officer of a corporation . 336 Corporation cannot ratify an act in excess of its powers 336, 337 REASSIGNMENT : May be without writing 717 7^8 Original assignment need not be proved in action by original owner. .' 718 RECEIPTOR: Not liable without demand 414 Receiptor's agreement 506 RECEIVER: In supplementary proceedings, power to impeach chattel mortgage . . 100 RECITAE: Of a consideration in subscription paper does not bar proof to con- tradict 31, 32 Of a consideration in mortgage, when sufficient as proof of the fact. . 135 REDEMPTION: Mortgagor may commence action to redeem at any time before fore- closure 99, 125 Claiming right to redeem in action against mortgagor 99, 100 REFIUNG: Of chattel mortgages 142 RENE'WAL: Mortgage to secure original note, secures note given in renewal . . . ■ 124 Renewal notes tainted with usury of the original 904 Covenant for the renewal of a lease 226 RENT: (See Landlokd and Tenant.) When due and payable in the city of New York 178 Possession precedes liability for rent 179, 180 Dispossessing tenant for non-payment of rent 188 Not collectible after destruction of demised premises 194, 195 What will or will not free tenant from liability for rent 218-220 REPAIRS: .Duty to make repairs where premises are occupied by several tenants 193-194 Remedy of tenant for breach of landlord's agreement to repair .... 196 The obligation to repair 220-226 1080 IISTUEX. REQUEST: Page- For the rendition of services raises implied promise to pay 24-26 RESCISSION: (See Sale.) Of contracts of sale 782 REVOCATION: Of an agency 319, 320 Of gifts 703 REWARDS: Offers of rewards, and right to the reward offered 33, 34 SALE: (See Conditional Sales.) What constitutes a sale 721 Intention of the parties that the title shall pass 722 What is a bailment instead of a sale 723, 724 Sales in gross 725, 726 Requisites of a valid sale 726 Parties having capacity to contract 726, 727 Must be a, meeting of minds on all the essential matters 727 Must be an offer and unconditional acceptance 727 By agent, binds principal 728 Must be subject-matter of sale 728, 729 Property not in existence at time of sale 728, 729 Property must have an actual or potential existence 731 Construction of contracts of sale 731 Wagering contracts 732 Intention to be collected from whole writing 732 Test whether the contract is executed or executory 732, 733 Sale of goods to arrive 732, 733, 734 Time of payment 735, 737 When title passes on contract of sale 737 Where the property is to be manufactured by the vendor 737 When the title will pass without delivery 737-745 When the title will not pass before payment 737-745 Waiver of conditions 740-741 Where some act of the vendor is required to complete delivery 742 Upon a sale of a quantity of grain, etc., in a mass 743-745 Sale or return 748, 749 Where the title rests upon such sales 749, 750 Sales by persons without title 750 Thief cannot transfer title to stolen goods 750, 751 By conditional vendee 750 No person can transfer greater title than he has 751 Exception in case of bank bills and negotiable paper 751 Effect of vesting another with the evidence of title 752 Purchase frofti fraudulent vendee 752 Delivery of the property sold 752, 753 Mode of delivery depends upon contract and nature and situation of property 753-759 Of ponderous and bulky articles 753 Of goods in warehouse, etc 754 Of goods in possession of bailee of vendor 754, 755 Eefusal to receive excuses omission to tender delivery 755 Delivery to a carrier, when delivery to purchaser 756-758 Proving delivery conditional 758, 759 Time of delivery 759 Partial delivery '. 759 Place of delivery 760-762 Amount to be delivered 759-76S Condition of the property delivered 769, 770 i:NrDEX. 1081 SAliE— (Continued) : Page. Sale of articles to be manufactured 770 When the title passes 770, 771 Delivery and acceptance necessary to pass the title 772^ 773 Sale or delivery procured by fraud 773 No title passes if the vendor elects to rescind the sale . . 773, 774 Title is in fraudulent vendee until sale is rescinded 775, 776 Rights of the defrauded vendee 773-777 Sale procured by false and fraudulent representations 775 Purchase by insolvent 780 When failure to disclose insolvency amounts to fraud 780 Evidence of declarations made to other persons to show fraudu- lent intent 777, 778 Right of defrauded vendor to follow the property 775, 778 Rights of a lort^ fide purchaser from the fraudulent vendee 778 Rights of bona fide mortgagee or consignee who has made ad- vances 778 Rights of purchaser from such consignee 778 Presumption of good faith in purchasing from fraudulent vendee 779 Bona fide purchaser from a thief gets no title 780 Bills of lading fraudulently obtained 780, 781 Sale of certificate of stock fraudulently or feloniously obtained 781 Sale of chattels tortiously obtained without delivery by owner 781 When a purchaser is put upon inquiry 781 Rescinding contracts of sale 782 Rights and remedies of the vendor when the vendee refuses to take the goods 782, 783 Rescission when the vendee has obtained possession by fraud . . 785 When the contract of sale was procured by fraud 775, 782 Election of remedies by defrauded vendor 785, 796 Breach of warranty no ground for rescinding sale 786 Party rescinding must act promptly 787 Restoration of benefits received under the contract rescinded, 787-795 When omission to return the property received is excused. .789, 790 791 By an infant 791, 792 Where there is a total failure of title 792 Entire contract must be rescinded 792, 793 Of contract of sale or return 793 Defrauded party may elect to treat the contract as valid and en- force it 793, 794 When the goods were sold with a warranty 786, 793, 794 Action in equity for a rescission of the contract 794 Warranty on sales of personal property 794 (See Waeeantt.) Distinction between breach of principal contract of sale and of col- lateral warranty 797, 798 Acceptance of goods which were not as represented 798 The doctrine of caveat emptor 811 Purchaser not obliged to accept goods not in accordance with his order ^21 Want of title in the vendor, when no defense to action for purchase money 821, 822 Duty of vendor, with notice of suit, to indemnify his vendee . . 822, 823 Sale of spurious goods by an auctioneer without warranty 823 Parol negotiations merged in written contract 823 Stoppage in transitu 824-827 Where the sale was on credit and vendor found to be insolvent . . 827 Origin and nature of the right 827 Who may exercise the right 827 When the right ceases 827 Delivery that will defeat the right 829 Where the goods are in a public store 830 1082 INDEX. SALE — (Continued) : Page. How affected by the statute of frauds 830 (See Statute of Fbatjds.) Sales of goods of the value of fifty dollars and upwards . . 830, 831 The object or purpose of this statute 831 Agreements that must be in writing and signed by the person charged 832 Requisites of tne memorandum of the agreement 833 The subscription to the memorandum 832, 833 The acceptance which will take the ease out of the statute 834 Part payment which will have the same effect 834 Application of the statute to executory contracts of sale 841 Agreements held not to be within the statute 842-844 Eights and remedies of parties to contracts of sale 844 Provisions of statute 845, 846, 847 Where, by the terms of sale, the goods are to be paid for on de- livery 844, 845 When the contract is silent as to the time of payment 845 When the goods are sold on credit 845, 847 When the time of delivery and the time of payment are not the same 845, 847 When the note of a third person is to be taken in payment, 847, 848 When the purchaser gives his note for the purchase price .... 848 When the vendor refuses to receive and pay for the goods. . 782, 783 850, 851 When there is a breach by the vendor of his contract to deliver 850 851 Proof to sustain action by vendee for breach of contract to de- liver 851, 852 Allegations and proof where a party has refused to perform .... 852 When demand of performance or tender of price not required . . 851 Of property by conditional vendor after default 557 Other statutory provisions 851-862 Of property pledged to cut off rights of pledgor 433 Of property for the enforcement of a lien 545 SATISFACTION: Contracts conditioned upon "satisfaction," etc 160 SEAL: Imports a sufficient consideration 9, 40 Consideration of sealed contracts may be impeached 40 Written sealed agreements considered 46 Bond must be under seal 66 Chattel mortgage need not be sealed 80-82 Execution of sealed instruments by agents 302, 305 Of a corporation 331, 337 Seal does not destroy negotiability of instruments 613 614 SERVICES: (See Labor.) SIGNATURE: Place of signature to bonds, unimportant 66 To negotiable instruments 612, 652 SKILL: Required of an agent 252, 253, 254, 306 Right of principal to its exercise 269 Responsibility of principal for want of skill of agent 294-298 Required of one undertaking a work of art 442, 454 Required of professional men 455 INDEX. 1083 SPECIAL CONTRACTS: Page- Special contracts to labor 150 STALIilONS: Liens for services of stallions 544, 545 STATUTE OF FRAUDS: When sales of chattels of the value of $50 or more are within the statute 830 When the contract is deemed entire, though for a number of articles 840 841 When there must be a written memorandum of the agreement 830 Object and purpose of the statute 831 Applies to sales of things in action 831 Requisites of the memorandum 832 Must show on its face the whole agreement so far as executory 832 Must show who are the contracting parties 832 Entire agreement need not be contained in one writing 832 Several instruments may be construed together 832 Subscription to the memorandum 832 Statement of the consideration 833, 95ft Sales by brokers, and the memorandum of agreement thereon 833 834 Acceptance of part of the property to take the case out of the statute 834 840 Must be both receipt and acceptance 834 Time of receipt and acceptance 834 Evidence of receipt and acceptance 834 Acceptance and retention of bill of lading 834 Selection, separation and marking of part of a flock of sheep . . 834 Marking logs 834 Retention and use of the property 834 Promise to remove ponderous property and attempts to sell it . . 834 Question of acceptance for the jury 834 Part payment which will take a case out of the statute 834 Time of making part payment 835 Giving purchaser's note is not part payment 835 Crediting purchase price on precedent debt 835 Payment may be in money or property 836, 838 Payment to an agent of the vendor 837 The payment must be for the goods sold by the contract to be enforced 837 Statute applied to sales of several articles at same time 836-838 Agreements void in part and good in part 839-841 Application of statute to executory contracts of sale 841 Agreements not within the statute 842 For articles to be manufactured 842-844 For sale of wood to be cut from standing trees 844 Contracts of commission merchants upon del credere commission 263 Expressing a consideration in the memorandum 833, 956 Decisions under former and present statutes 956 Mode of expressing consideration 957 In contracts of guaranty and suretyship 958 Parol evidence of a consideration 960, 961 Parol evidence in aid of the writing 961, 962 Contracts not to be performed within one year 962 Contracts within this branch of the statute 963 Agreement which may be performel witliin a year not within the statute 9SS, 964 Contracts oif employment 964, 965 Construction of the agreement 965, 966 1084 IXDEX. STATUTE OF FRAUDS — (Continued) : Contracts not to be performed within one year — Continued) : Page. Miscellaneous examples of void agreements 966, 970 Part performance %vithin the rear 970, 971 Pleading the statute ' 971, 972 Contracts which may be performed within the year 963, 973 Oral contract for leasing of real property 974 Performance limited upon the death of one of the parties. . .974, 975 Promise to answer for the debt, default, or miscarriage of another . . 975 976 Original or collateral promises considered 976-981 Nature of the consideration 981, 982 Stranger to the consideration 982 Premise must be valid as between promisor and promisee 982 Promise must be in writing 983 When the promise is or is not within the statute 983-986 Question as to whom credit was given 986 Where there has been an abandonment of a contract and a new one made 987 Compliance with request of promisor as a consideration 988 Promises made on transfer of notes, etc 989 Sale of an interest in lands, etc 990-992 Statute requiring a deed or conveyance in writing 991 Conveyance, and agreements to convey, distinguished 992 Authority of agent to sell and convey must be in writing. .992, 993 Authority to make agreement for sale may be oral 993 Evidence of authority of the agent 993 Enforcement of contracts made by agents 993 Verbal agreement to transfer property in payment of lands .... 993 What is deemed an interest in lands 993, 994 Agreements to purchase for the benefit of another 995 Contracts in respect to crops, trees, etc 996, 997 Contracts to pay in land, etc 997 Eight to recover back payments made on void contracts .... 998, 999 Part performance of a void agreement 999 Requisites of the note or memorandum under this branch of the statute 1000 Subscription to the memorandum 1000 Agreements not within the statute 1002, 1003 Fraudulent sales, assignments, judgments, etc 1003-1006 Statute declaring such sales assignments, etc., void 1004-1006 Fraudulent transfers of personal property 1004, 1005 Fraudulent transfers of real property 1005, 1000 Persons authorized by statute to impeach such transfer 1006 Chattel mortgages void as against creditors, etc 127, 1006 Bill of sale, etc., void as against creditors 1007 Assignments with preferences 1008 Transfers made in contemplation of assignment .1008, 1009 Proof of fraudulent intention 1010 When a general assignment is valid or otherwise 1010-1017 STATUTE OF LIMITATIONS: Partner, after dissolution, cannot revive debt barred by statute .... 402 Is a valid defense by a surety 588 STOCKS: (See Coeporations.) Stock corporations 321, 322 Subscriptions for stock 323 Transfers of stock 327, 32S Obtaining certificate of stock by a felony or tort 781 No implied warranty as to value on sale of stocks 811, S 1 2 IXDEX. 1085 STOCKHOI.DER: (See Coepokatioks.) Page- Liabilities of stoclcholders 347 STOPPAGE IN TRANSITU: (See Sales.) Tlie right and its origin 824, 827 SUBSCRIPTIONS : When supported by a sufficient consideration 30, 31 How far voluntary subscriptions are binding 30, 31 For stocks 323 SUMMARY PROCEEDINGS: Remedy given by the Code to eject tenant holding over 182, 183 Notice to tenant in case of resort to this remedy 187 SURETIES: (See GuAHANTT.) When the relation of principal and surety exists 560 Contract of suretyship must be in writing and subscribed 560 Not necessary that the name of the surety should be in body of con- tract 562 Consideration to support the contract 560, 958 How the relation of principal and surety may be created 560 Indorsement of an accommodation note 560 Signing a note as a joint maker 560 Acceptance of a bill of exchange makes the drawer and indorsers sureties 560 By one partner assuming the debts of the firm 560 Wife mortgaging her lands to secure debt of husband 561 Assumption by grantee of lands of payment of mortgage 561 Liabilities of sureties 562, 563 Liability measured by the terms of the agreement 563, 564 Contract of surety cannot be extended by construction 563 Contract to oe construed strictly and favorably to surety 563 Ordinary rules of interpretation apply to the contract 563, 564 Application of the principle of strictissimi juris 564 Words of severalty cannot be interpolated into joint contract. . . 564 Any alteration of the principal's contract discharges the surety 563 564 Notice of acceptance of a proposition to become a surety 564 Liability of sureties in indemnity bonds 564-569 (See Bonds.) Discharge of sureties 569 Not discharged by mere delay of the creditor in prosecuting. . . 569 570 By neglect to sue upon request 569, 570 Not discharged by the taking of other security by the credit- or 572-575 Distinction between taking security as collateral and as a pay- ment 573 By release or surrender of securities held by the creditor .... 573-575 By extending time of payment of the demand against princi- pal 572-576 Taking new note payable at a future day 572, 573 Extension of time for one day releases the surety 572 Actual injury to the surety by the extension not material. . 573 Agreement to extend time must be valid and on valid con- sideration 575 Agreement must be with knowledge of the suretyship 575 Reservation of remedies against the surety 575 Usurious consideration for agreement extending time . . 575, 576 By alteration of the principal's contract 563 1086 IXDEX. SUKETIES - (Continued) : Page. Eights of a surety against his principal 575 Implied promise of indemnity 575 May recover moneys paid on a judgment subsequently reversed 575 Payment by surety before action against principal 575 Limit of the sureties' recovery against his principal 576, 577 Right of surety, on payment, to benefit of collateral securities held by creditor 577, 578 Remedy of the surety on payment is by action for money paid. . 577 578 Surety may pay debt for which he is liable without suit 577 May recover against principal costs and expenses of a defense. . 577 Has no right to defend against a claim known to be just 577 Judgment by default not evidence of amount of principal's lia- bility 577 Rights of contribution between sureties 578, 57S> Origin of the right 578, 579 On payment of a note 578, 579 Where the parties are bound jointly or severally 579 Where they become bound by different Instruments or at dif- ferent times 579, 580 Knowledge of the contracts of other sureties not material to the right .* 580 Requisites of the right of contribution 580 Effect of promise of indemnity by cosurety 580 Effect of the release of securities held by a cosurety 580 Surety suing for contribution must account for money, etc., re- ceived 580 No subrogation as between cosureties to rights of creditor .... 580 Discharge of surety in bankruptcy releases him from contribu- tion 580 Continuing guaranties 580 Eights of sureties against third persons 581, 584 How far bound by a judgment in suit between principal and creditor 581-585 May set up usury as a defense 581 Not concluded by fabricated account of their principal 581 Rights as to notice of suit against principal 582-585 Guaranties of collection or of payment 585 Statute of limitations as a defense in behalf of surety 588 Cannot revive debt against principal when barred by the statute .... 588 SURRENDER: Of the term created by a lease 205 SURVIVOR: (See Partnership.) Rights of the survivor or survivors of a copartnership 375 TAXES: Covenants to pay taxes in a lease 226 TENANTS IN COMMON: May sell or mortgage their property or interests 80 What is a tenancy in common and not a partnership 364 TENDER: Of the money due on a mortgage will not reinvest title after de- fault 99-102 Refusal of tender after default and sale of mortgaged property not conversion gg jqO Tender and acceptance of part of mortgage debt will not reinvest title 123 IISTDEX. 1087 TENDEK- (Continued) : Page. Of delivery to vendee, when excused 755 Of bulky articles 759 THIEF: Cannot transfer any title 75O, 751 TRESPASS: How far principal is liable for trespass of agent 294-298 Liability of corporations for trespass of agent 341, 342 "UNDERIiETTING: (See Landlord and Tenant.) Distinction between underletting and assignment 198 tTNDEBT AKINGS : Substituted by the Code for many indemnity bonds 68, 69 Undertaking given on appeal need not be under seal 75 No consideration necessary to uphold Code undertakings 75 Liability on undertakings given on appeal 76 Required in action upon lost negotiable paper 686, 687 Form of such undertaking * 687 rrSAGE: Distinguished from custom 63 Not allowed, to contradict what is plain in a contract 63 trSURY: Statutes prohibiting usury 884-886 Every contract intended to violate this statute is void whatever its form 884 What constitutes usury 884-886 Must be found on the loan or forbearance of money 886 Must "be a corrupt purpose or intent to take illegal interest, 886, 888 Must be a lender and borrower 886 Must be a purpose to loan on usurious terms and to borrow on such terms 886 Loans other than of money not within the statute 886, 899 What is or is not a loan 887 If the principal is put in hazard there is no loan and no usury 887 Must be a certain gain exceeding the legal rate of interest. .887, 890 If the payment beyond legal interest is at option of borrower, there is no usury 887, 888 Both parties must be cognizant of the facts which constitute usury 888 Ignorance of the law is no excuse 889 Agreements to pay interest on money subsequently advanced . . . 889 890 Gifts from borrower to lender 889 Sharing in proiits of copartnership by partner advancing the capital 889 Sharing in profits by employee who contributes money and ser- vices 889 Contracts for compound interest not usurious 890 Eeserving compound interest against the will of the debtor .... 905 Taking interest in advance 890, 891 Loans or discounts by banks 891 Compensation to factor for accepting and paying bills 892 Payment for trouble and services of the lender 892 Bonus paid agent of the lender 894 Incidental advantage to the lender . 887, 895 1088 INDEX. USURY— (Continued) : What constitutes usury — (Continued) : Page- Mistake in computing interest 895 Receiving advantage from difference in exchange 896 Sales on credit 897, 898 Charge for indorsement of notes 898 Exchange of notes and sale at a discount 898, 899 Loans on condition that the borrower purchase property 900 Purchase of negotiable paper at a discount and recovery of face value 900, 901 Sale at a discount of notes, etc., having no legal inception 901 Recovery upon valid original debt for which no usurious security has been given 902, 903 Abandonment of usurious contract and making new contract. . . .903, 904 Renewal notes tainted with usury of originals 904 Collateral securities for usurious debt are void 905 Agreements to pay more than lawful interest to prevent foreclosure 904 Distinction between usurious premiums paid and agreed to be paid . . 904 905 Who may plead the defense of usury 906 Only the borrower, or his sureties, heirs, devisees or personal representatives 907, 908 Right of surety to defend on this ground 682, 583 Purchasers of mortgaged property 908, 909 Subsequent lienholders 909 Corporations and receiver of a corporation cannot 909 Sureties, guarantors or indorsers for a corporation 910 Judgment creditors 910 Who are estopped from setting up the defense 910, 913 Contracts that usury shall not be pleaded are void 911, 913 Lender cannot avoid his own contract on ground of usury 911, 913 Rights of bona fide holder of a usurious note 912 How affected by the law of place 914-918 VESSEIiS: Statute giving a lien upon vessels .* 540 WAIVER: Of forfeiture by acceptance of mortgage debt and interest 123 Of carrier's lien by delivery to consignee 481 Of notice of dishonor of negotiable paper 674 Of protest 676 Of forfeiture of contract of insurance 928, 929 WAREHOUSEMAN : Care required of a warehouseman 456, 457 Proof necessary to charge him for loss of goods 457 Lien of warehousemen 518 W^ARRANTY: Upon sales of personal property 794, 797 Independent stipulations in all contracts of sale with a warranty, 798-799 Breach of warranty no ground for rescinding contracts of sale 788 When the purchaser has an election between rescission and action for breach 793, 794 Action lies for breach of warranty even after sale by plaintiff with- out warranty 791 Distinction between causes of action for fraud and for breach of war- ranty 795-798 Need not be expressed in any particular form of language 798, 799 Not necessary to the contract that the word "warranty" be used. . . . 799 i:^lDEX. 1089 ■WARRANTY— (Continued) : Page- What statements constitute an express warranty 802 The intention to warrant or not to warrant not important 802 Interpretation of the language used by the vendor 802-809 Distinction between breach of principal contract of sale and of col- lateral contract of warranty 802 Words merely descriptive of the articles sold, and words constituting a warranty 802-809 Executory contract of sale may be accompanied by a warranty 803 Eight of action for breach of express warranty survives acceptance of the goods 803-811 When no return or offer to return the thing warranted is neces- sary 801-802. 810, 811 May relate to the quality, condition or character of the thing sold . . 804 Illustrations of warranties on sale or exchange of horses 802, 803 Assertions as to quality of the chattel sold 803 Expressions of opinion by the vendor 804 On sales of articles purchased for a, known purpose 807 On sales of a manufactured article by the manufacturer 807, 810 Must be made at the time of sale 807 If made after time of sale is without consideration 807 Does not ordinarily extend to open and visible defects 809 May be so worded as to cover visible or known defects 809, 810 On the sale of food for consumption 810 On the sale of provisions as merchandise 810 By person negotiating a bill or note 653-655 Implied warranty 810 Implied warranty survives acceptance only as to latent defects . . 810, 812 Not necessary that all the representations should be false if a part are 812 Positive afSrmation of a part, a warranty 812 Cannot be implied from payment of a sound price 813 Of goodness of the article sold, not implied from custom or usage. . 813 The doctrine of caveat emptor 809, 813, 814 On sales by sample 814, 81 7 That goods shall be merchantable 818 On sale "with all faults" 81 8 Of title to the goods sold 819 On sale of a chose in action 819, 820 On transfers of negotiable instruments 653, 655, 820 No implied warranty of kind or quality as a general rule 821 Sale of spurious goods by auctioneer without warranty 823 Written bill of sale containing warranty merges parol agreements . . 823 May be an implied warranty, though contract of sale is in writing. . 823 Parol evidence of a warranty, when admissible 824 By agent of his authority to contract for his principal 313, 314 Warranties in statements made on application for insurance 925 Liability of the firm on warranty of a partner 397 Power of agent to sell with a warranty 294 69