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 Library 
 
 The original of tiiis book is in 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022881605 
 
THE 
 
 LAW AND PEAOTICE 
 
 IN CIVIL ACTIONS AND PROCEEDINGS IN 
 
 JUSTICES' COURTS, 
 
 AND IN OTHER COURTS NOT OF RECORD 
 
 AND ON 
 
 APPEALS TO THE COUNTY COURTS 
 
 IN THE STATE OF NEW YORK. 
 
 INCLUDING THE PRINCIPLES OF LAW RELATING TO ACTIONS OR DEFENSES ; THE 
 
 RULES OF PRACTICE, PLEADING AND EVIDENCE ; TOGETHER WITH 
 
 PRACTICAL FORMS AND PRECEDENTS. 
 
 By ^A^ILLIAM WAIT, 
 
 COUNSELLOR AT LA'VT. 
 
 IN THREE VOLUMES. 
 
 Vol. I. 
 
 SEVENTH EDITION. 
 By EDWIN BAYLIES, LL. D. 
 
 ALBANY, N. Y. 
 MATTHEW BENDER, 
 
 1903. 
 
COPTKIGHT, 1883, 
 
 By JAMES A. WILLIAMSON and DANIEL POTTER, Executors of Last Will 
 and Testament of WILLIAM WAIT, Deceased. 
 
 COPTEIGHT, 1903, 
 By WILLIAM H. RAINEY and ISAAC V. A. WAIT. 
 
PREFACE TO THE SEVENTH EDITION. 
 
 As "was stated in the preface to the fifth edition of this work, 
 Wait's Law and Practice needs no introduction to- the legal pro- 
 fession, and no words of apology or commendation. It was the 
 design of the author of these volumes to include therein as large 
 a number of the titles or subjects of the law as the space allotted 
 to the work would permit, and in the discussion of those subjects 
 to present not only the general principles of law applicable thereto, 
 but also an explanation of such questions of an unusual character 
 as occasionally arise in practice, and though settled by the deci- 
 sions of our courts, are not readily found in ordinary text books 
 or digests. The author was so far successful in carrying out this 
 design, that for more than a quarter of a century many of our 
 judges and members of the bar have been accustomed to resort to 
 Wait's Law and Practice for a line of authorities or a statement 
 of a legal principle not readily found elsewhere. Although vn-it- 
 ten primarily for the use of the younger members of the profes- 
 sion the work soon became the hand-book of the older members of 
 the bar, and was and is cited as authority by lawyers in their 
 briefs and by judges in their opinions. 
 
 The statement of the law as laid down by Mr. Wait was 
 founded upon the decisions contained in the common-law reports, 
 English and American, then in existence, which are.now recog- 
 nized as the fountain head of our knowledge of th;^ common law. 
 The great principles of the common law are unchangeable, save 
 by statutory enactment; and the common-law principles stated 
 by the author in the first edition of the Law and Practice are, as 
 a whole, as authoritative to-day as on the day when they were 
 written. 
 
 ill 
 
iv PEEFACE. 
 
 But the fact was recognized that the law is ever growing; and 
 from time to time Mr. Wait added new matter to his work in the 
 form of notes, and in this manner prepared and published four 
 editions of the Law and Practice, and a few days before his death 
 arranged for the publication of another edition which should in- 
 corporate these notes in the text with such other matter as was 
 applicable and important. This arrangement was carried into 
 effect by his executors, and resulted in the publication of a fifth 
 edition in 1882. 
 
 Twenty years have elapsed since that publication, and in those 
 years many changes have been wrought in the statute law of this 
 State. A system of general laws has superseded and repealed the 
 greater portion of the Revised Statutes and of the various aicts 
 of the legislature of general application scattered through the 
 Session Laws. Questions which formerly were referred to the 
 principles of the common law for their solution, are now, in many 
 instances, settled by statute. (A notable illustration of this is 
 to be found in chapter 50 of the G^eral Laws, which codifies 
 the prior decisions of the courts in respect to negotiable instru- 
 ments, and substantially enacts in statutory form the principles 
 of the law merchant.) During the same time many changes have 
 been made in our judicial system; new courts have been created; 
 former courts have been abolished; the jurisdiction of some of 
 the courts has been extended and that of others restricted; and 
 the modes of procedure in all the courts have to some extent 
 been revised and changed. 
 
 The courts have not been idle during this period. The sources 
 of legal knowledge have been enriched by over two hundred volumes 
 of reported decisions of the appellate courts, and the principles of 
 the common law have been applied and extended to many things 
 now of common use which were unknown twenty years ago. 
 
 It has been the object and aim of the editor of this edition to 
 present to the profession Wait's Law and Practice in the words 
 of the author, where the law itself is unchanged, but with the cita- 
 tion of the latest authorities in addition to the early cases cited in 
 
PREFACE. V 
 
 stipport of the text. In that sense the work has been revised but 
 not rewritten. But wherever the law has been changed since the 
 first edition was written, the obsolete matter has been eliminated 
 and in its place has been given the law as it is to-day. 
 
 Following the plan of the previous editions, much new matter 
 has been added, which, it is believed, will greatly increase the 
 usefulness of the work. The decisions of other States have been 
 sparingly cited, as there are but few questions of importance that 
 have not been passed upon by our courts. In some instances it 
 may seem that an unnecessary number of cases has been cited in 
 support of legal propositions, where a single authority would have 
 sufiiced ; but it must be remembered that each additional ease cited 
 is another illustration of the application of the principle of law 
 to another and diflPerent state of facts, and may be of great value 
 in pointing the application of the principle to the facts of the case 
 at bar. 
 
 The General Laws have been cited as such, and in the same con- 
 nection the chapters of the Session Laws where they may be found. 
 A careful index has been prepared with a view of furnishing a 
 ready reference to the subject-matter, and of obviating any de- 
 fect in the manner of its arrangement. 
 
 Special care has been exercised in the preparation of the chapter 
 on evidence in the second volume, in view of the importance of 
 the subject. 
 
 The third volume is devoted to the practice and procedure in a 
 justice's coiirt and in the city courts to which such procedure 
 is made applicable by statute, and to the practice and procedure 
 on appeal to the county court. 
 
 To the older members of the profession who have known and 
 used this work in the past, the present edition is submitted in the 
 hope and expectation of an indulgent criticism ; and to the younger 
 members of the bar, in the hope that they will find it a safe guide 
 along the highways of success in their chosen profession. 
 
 EDWIN" BAYLIES. 
 
 JomTSTOWisr, X. T., January, 1002. 
 
PREFACE TO THE FIRST EDITION. 
 
 This work was written in the belief that it would be useful to 
 the members of the legal profession, and to the magistrates of this 
 State. 
 
 The plan of the work embraces many of the principles of the 
 law relating to actions and defenses, and the rules of practice, 
 pleading and evidence. Such subjects and titles of the laws have 
 been selected as were deemed to be most useful in practice in cases 
 tried in these courts and the illustrations have been as numerous 
 as could be given in the copipass of two large volumes. 
 
 The first volume is devoted to an explanation of the law relating 
 to actions, whether founded upon contract or for a tort, and in- 
 cluding the law relating to the defense of actions. The second 
 volume contains the rules of practice, pleadings and evidence, and 
 the practice on appeals and on special proceedings, together with 
 such appropriate precedents as were deemed valuable. For more 
 particular information as to the subjects discussed, a refer Mice to 
 the Table of Contents and to the Index will give the desired in- 
 formation. 
 
 There are some general features of the work which may be 
 properly mentioned, since there may be some persons who will de- 
 sire to know in what particulars the present work differs from other 
 similar publications. The gradually increasing jurisdiction of 
 jiistices' courts will naturally increase the amount of business 
 and litigation to be disposed of by them. To do this properly 
 requires a considerable degree of legal knowledge. And for the 
 purpose of furnishing the greatest possible number and variety of 
 legal principles that could be compressed into a reasonable space, 
 this work has been published. The work will be found to be con- 
 
 vii 
 
viii PREFACE. 
 
 venient as well as economical, which caunot fail to commend it 
 to the attention of all who may need such assistance. Criminal 
 law or practice does not fall within the plan of the work, and is 
 not discussed in the following pages. 
 
 The character of the work is essentially American, in the sense 
 that the decisions of our courts have been preferred to those of 
 foreign courts, and the adjudications of the New York courts have 
 been preferred to those of the other States, because it was intended 
 to write a work for the courts of this State. But, while such a 
 preference was indispensable under the circumstances of the case, 
 it is not to be understood that the New York decisions constitute 
 the largest portion of the materials used in preparing the work. 
 It will be found, on examination, that the reports of the other 
 States and those of the English courts have been fully and care- 
 fully examined, and whenever a case has been found in them which 
 was valuable as an illustration of a legal principle, it has been 
 properly pressed into service. This method of selecting subjects 
 and decisions has rendered it possible to give a very extensive 
 variety of legal principles, which are founded upon actual ad- 
 judications of a recognized authority. 
 
 It has been intended to cover as large a variety of subjects or 
 titles of the law as was possible, so as to include most of the prin- 
 ciples which are scattered through many large volumes. This 
 method furnishes information which is usually unattainable ex- 
 cept by the purchase of several large and expensive volumes. It 
 will be found, on examination, that the principles of law stated in 
 these volumes will furnish information and a reliable guide upon 
 nearly all questions that arise in ordinary cases. And it will also 
 be found, that tliere are few questions even of an unusual char- 
 acter which do not receive some explanation, so far as the infor- 
 mation may be useful in cases in these courts. Even so large a 
 work as the present does not answer all questions which may arise 
 in practice. But the selections have been so extensive, and the 
 illustrations so various, that most legal principles will be found 
 
PKEFACE. ix 
 
 explained, so far as may be necessary for their application by a 
 justice's court. Such a collection of principles answers a double 
 purpose ; it furnishes a library for magistrates and for young men, 
 and it is a convenient hand-book for either of them during the 
 progress of a trial in a litigated cause. And the experienced prac- 
 titioner will find the collection of cases of service, either as a hand- 
 book in the office of examining questions, or as a ready reference 
 to such cases on the trial of causes at the circuit. 
 
 It will be found, that most of the cases cited in the first volume 
 are as applicable to cases tried at the circuit, as though they had 
 been arranged for that court. And the same thing is true of many 
 of the cases cited in the second volume. The continual changes 
 which are taking place in the law require a vigilant watch on the 
 part of the practitioner. To aid in doing this, the latest changes 
 in the statutes, and the most recent of the reported decisions have 
 been carefully and fully given. The cases have been brought down 
 to 41 Barb.; 13 E. P. Smith; 8 Bosw.; 2Y How.; 17 Abb.; 2 Hilt.; 
 4 E. D. Smith, and to the corresponding English authorities. 
 The value of the authorities thus cited will be fully appreciated 
 by the profession. 
 
 The Code, as printed in this work, includes the amendments of 
 1865, and the amended sections of the stamp and license law of 
 March 3d, 1865. To do this required the recasting of quite a 
 large number of stereotype plates, which had been completed 
 before the amendments were made. The second volume of the 
 work is devoted exclusively to practice, pleadings and evidence. 
 The general principles relating to jurisdiction are there discussed, 
 and to that are added such explanations of preliminary matters 
 as the subject seemed to demand. The mode of issuing process, 
 and the rules relating thereto have been minutely discussed, and 
 to this have been added such practical forms as were deemed 
 necessary. The principles of pleadings, whether of a general 
 character, or relating to the manner of drawing complaints or 
 answers, have been stated at length and with care. This subject 
 
X PREFACE. 
 
 ihas received, as it deserves, more attention than is usually be- 
 stowed upon the subject in other similar works. 
 
 Ajs evidence is a most important branch of the law, and as it 
 forms a frequent subject of discussion in these courts, the entire 
 principles have been given as fully and as minutely as it was 
 possible to do in a work like the present. If this title alone is 
 not a most valuable contribution to the practice relating to evi- 
 dence, then a great deal of labor and care have been spent in 
 vain. The proceedings during the course of a trial sometimes 
 interpose diificulties which perplex both court and counsel. The 
 practice has been stated so fully that most of these questions 
 may be easily and correctly settled. 
 
 The subject of appeals forms a prominent part of the entire 
 work. This branch of the practice has never received a due 
 share of attention from authors. And now for the first time in 
 the history of the practice of this State has any attempt been 
 made to do justice to this important subject. The entire practice 
 is here pointed out with minuteness, and appropriate forms have 
 been given for every important paper necessary to be used. 
 
 A table of contents will be found at the beginning of each 
 volume. So, too, a most copious index will be given with each 
 of them. For the convenience of those who are not familiar 
 with the reports, a table of abbreviations has been given. It 
 will be found to be the most extensive and the most complete 
 of any yet published in any work of this character. A complete 
 table of cases has also been prepared. The value of such a table 
 will be readily appreciated by the experienced practitioner, either 
 as a means of finding a principle from a known case, or as a 
 means of determining the value of a case cited. In numerous 
 instances the author has pointed out the overruled or the modi- 
 fied cases; and where an authority is cited, a reference to the 
 table of cases will determine whether that case is to be found 
 in this work; and if it is, a reference to the page where it is 
 cited will show whether it is noted as overruled or modified. So, 
 
PREFACE. 
 
 XI 
 
 too, where a single case is found, and others are desired, it will 
 be easy to know whether they are to be found in this work, by 
 a reference to the table of cases, and from them in. the body 
 of the work. 
 
 The cases relating, to appeals have been collated so fully and 
 so carefully, that the text will serve as a ready-made brief upon 
 most questions of practice. It will thus be of service to the 
 profession, and relieve them of a task which is usually a laborious 
 one. It is hoped, too, that the cases collected will sometimes be 
 found useful by the judges of the courts who sit in review of 
 causes on appeal. 
 
 My thapks are due to Alva H. Tremain, Esq., for copying a 
 portion of the statutes printed in these volumes, and he has my 
 best wishes for that success in the profession which his talents, 
 his industry, and his integrity promise. 
 
 If the young men for whose benefit the work was written shall 
 find it useful in assisting them to discharge their professional 
 duties with accuracy and despatch, and if it shall render them 
 some service in acquiring a knowledge of legal principles, the 
 author's highest ambition vsdll be gratified. 
 
 The work, such as it is, is now submitted to the profession. 
 That they will judge of it candidly and with liberality is a mat- 
 ter of certainty, since they are familiar with the numerous difii- 
 culties which beset and perplex a legal writer. But they also 
 judge generously, since they are aware that the sole object of 
 the work was to benefit themselves. If the toils of several 
 years shall serve to lighten the arduous labors of the profession,- 
 and if they shall tend to inculcate a liberal spirit in the practice 
 as well as to foster a desire for the acquisition of legal learning 
 by those young men who are soon to lead at the bar and preside 
 on the bench, the author will feel that his time was well spent, 
 attempting to discharge that duty, which a sage of the law has 
 declared that every lawyer owes to his profession. 
 
 WILLIAM WAIT. 
 
 Albany, June 30, 1865. 
 
PREFACE TO THE FIFTH EDITION. 
 
 Wait's Law and Practice needs no introduction to the legal pro- 
 fession, and no words of apology or commendation. For many- 
 years it has had a place upon the shelves of nearly every law library 
 in the State, and has long been cited as authority by the bench and 
 bar. Few legal works have been received with greater favor, and 
 by few has that favor been longer retained. 
 
 But it is nearly a quarter of a century since the first page of the 
 Law and Practice was written, and over fifteen years since the 
 first editions issued from the press. Since that time over two hun- 
 dred volumes of decisions of the courts of this State have been 
 reported, of which one-fourth were rendered by the court of last 
 resort. Since that time, too, many changes have been made in 
 the statutory law of the State. Many statutes affecting the law 
 applicable to causes triable in justices' courts have been amended 
 or repealed ; new statutes have been enacted conferring new rights 
 and imposing new liabilities; and the old system of practice in 
 those courts has been swept away, and a new system inaugurated 
 by the Code of Civil Procedure. Whilst these changes have left 
 unaffected the great mass of common-law principles laid down in 
 the first edition, they have materially affected and impaired its 
 usefulness as a work of practice and rendered an entire revision 
 of the work a necessity. No one perceived this necessity more 
 clearly than Mr. Wait. But the demands made upon his time and 
 strength by his other publications, the uncertainty that for a time 
 attended the adoption of the Code of Civil Procedure, and after- 
 ward failing health combined to prevent the completion of that 
 revision during his life. He had, however, matured his plans and 
 
 xiii 
 
xiv PREFACE. 
 
 collected, in the form of notes, the greater portion of the material 
 for the present edition of his work. It has been the task of the 
 editor of this edition to carry out the plans of the author, and to 
 adapt this mass of matter to the text of the prior editions. To 
 accomplish this task it has been necessary to re-examine each propo- 
 sition of law and each case cited in the light of recent statutes and 
 authorities; to expunge obsolete matter; and to make certain 
 changes in the subdivision and arrangement of the work. In the 
 present edition, the decisions of the courts have been brought down 
 to the time of going to press ; the statute law has been given as it 
 existed at the close of the one hundred and fifth session of the 
 legislature; and an attempt has been made to state the law ap- 
 plicable to the subjects treated as it exists to-day. In addition 
 to the citation of cases decided in this State, frequent citations 
 have been made of recent cases decided in other States and in Eng- 
 land. Where these cases have been reported in the American Re- 
 ports, or in the English Reports edited by Mr. Moak, a reference 
 to those reports has been made as well as to the regular series. 
 Portions of chapter first of second part of the original edition have 
 been taken from that chapter and made the subject-matter of 
 separate chapters; as for example, the portions specially relating 
 to bonds, chattel mortgages, leases, gifts and assignments; while, 
 on the other hand, the chapter relating to the construction of con- 
 tracts has been made a section of the chapter first mentioned. 
 These changes were necessary to a logical subdivision of the work, 
 and to avoid useless repetitions. The title of the chapter on " Mar- 
 riage " has been changed to " Husband and Wife " ; the portion 
 treating of actions for breach of a marriage promise omitted, as 
 these actions are not within the jurisdiction of a justice of the 
 peace ; and several sections have been added treating of the rights 
 and liabilities of married women under the enabling acts. An 
 attempt has been made also to give a full discussion of the rights of 
 action given and the liabilities created by the " Civil Damage 
 Act " and also of the statutes giving actions for penalties. 
 
PREFACE. XV 
 
 Many of the forms inserted in the last volume are those in 
 common use, prepared by Mr. Moak, and published by Avery Her- 
 rick, at Albany. The source from which they are derived is a 
 sufficient guaranty of their accuracy. 
 
 The subject-matter of former editions of this work was bound 
 in two volumes. It was found that the great bulk of these vol- 
 umes was the ground of frequent complaint, and to obviate this 
 defect and to provide for the additional matter the present edition 
 is issued in three volumes uniform with the Practice in size of 
 page. 
 
 In taking up this work at the point where death stayed the 
 author's hand, the editor of this edition would have felt great 
 hesitation had he not, from long association, been familiar with 
 the author's plans and wishes, and been aware that it was his 
 desire, when he found that his days of law-writing were about to 
 end forever, that such should be the disposition of his unfinished 
 task. In the preparation of this edition there has been a faithful 
 endeavor to carry out those plans and respect those wishes, and to 
 leave untouched each portion of the work unaffected by recent 
 statutes and decisions. In a work of this magnitude it would be 
 strange if some mistakes and inaccuracies should not appear. But 
 it is the hope of the editor that these may not be so numerous or 
 so important as to materially detract from the value of the eight 
 years of labor bestowed by Mr. Wait upon the first edition of this 
 work, or as to repel the kindly interest with which the profession 
 have regarded each of the preceding editions. 
 
 EDWIN BAYLIES. 
 
 .JoHNSTowK, K Y., October, 1882. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 THE PRINCIPLES OF LAW RELATING TO CONTRACTS IN GENERAL. 
 
 CHAPTER I. 
 
 The Law or Contbacts. 
 
 Page. 
 
 Sectioj^ 1. General definitions 1 
 
 2. Parties to a contract 4 
 
 3. Joint or several liability of parties 5 
 
 4. Consideration 6 
 
 A consideration, as an essential to the validity of a contract, 6 
 
 Kinds of consideration 8 
 
 SuiBcieney of consideration 12 
 
 Prevention of litigation 14 
 
 Forbearance 16 
 
 Labor and services 17 
 
 Promise for a promise 20 
 
 Subscriptions and contributions 22 
 
 Rewards offered 24 
 
 Consideration void in part 25 
 
 Illegality of consideration 26 
 
 Impossible considerations 26 
 
 Failure of consideration • 27 
 
 Stranger to consideration 28 
 
 Time of the consideration 28 
 
 Impeaching consideration 20 
 
 Gifts 30 
 
 5. Assent of the parties .30 
 
 Time of giving assent • 32 
 
 6. Written sealed agreements 33 
 
 7. Construction of contracts 42 
 
 The general object and principles of construction 42 
 
 CHAPTER II. 
 
 BOIiTDS. 
 
 Sectioij 1. Money bonds 49 
 
 2. Indemnity bonds ."jl 
 
 3. Surety bonds and undertakings under the Code 56 
 
 4. Bastardy bonds 58 
 
 CHAPTER III. 
 Chattel Mortgages. 
 
 Section 1. Who may make a mortgage • 59 
 
 2. What is a chattel mortgage 60 
 
 3. What may be mortgaged ■ . . 67 
 
 4. Rights of the mortgagor 72 
 
 xvii 
 
XVlll 
 
 TABLE OF CONTENTS. 
 
 Page. 
 
 Section 5. Rights of the mortgagee 79 
 
 6. Eights of creditors 88 
 
 7. Rights of purchasers in good faith 93 
 
 8. Form and requi^tes of a mortgage 95 
 
 9. Validity of chattel mortgages 104 
 
 10. Filing chattel mortgages 112 
 
 When a mortgage is invalid unless filed 112 
 
 When filed 114 
 
 Where filed -115 
 
 How filed 116 
 
 11. Refiling chattel mortgages 118 
 
 When to refile • 122 
 
 Where to refile 122 
 
 How to refile 123 
 
 12. Certified copies as evidence ■ 124 
 
 13. Discharge of chattel mortgages 125 
 
 CHAPTER IV. 
 Special Contracts to Labor. 
 
 Section 1. Complete performance as a condition precedent 126 
 
 2. When partial performance gives a right of action 130 
 
 3. Contracts conditioned upon " satisfaction," etc 134 
 
 4. Deviations from the original contract 136 
 
 CHAPTER V. 
 
 Landlord and Tenant. 
 
 Section 1. What constitutes a lease 140 
 
 What is not a lease 142 
 
 Lease by estoppel 145 
 
 Description or identity of premises 147 
 
 Duration of term 148 
 
 2. Holding over by the tenant 151 
 
 3. Occupation under a void lease 155 
 
 4. Notice to quit 157 
 
 5. Rights and obligations of the parties 159 
 
 Underletting and assignment 165 
 
 6. Surrender of the term • 172 
 
 7. Forfeiture of the lease 178 
 
 8. Eviction , 179 
 
 9. The obligation to repair 186 
 
 10. Covenants to pay taxes, to renew, etc 191 
 
 11. Emblements 193 
 
 CHAPTER VI. 
 The Law of Agency, or. Principal and Agent. 
 
 Section 1. Authority of an agent 195 
 
 2. Duties of agents 211 
 
 Duty to act in person and not by substitute 216 
 
 3. Public agents 217 
 
 4. Factors, brokers aud commission merchants 219 
 
 5. Agent cannot act for himself and for principal at same time.. 229 
 
 6. Person cannot be agent for two opposite parties 233 
 
TABLE OF CONTENTS. 
 
 XIX 
 
 Page. 
 
 Section 7. Duty of agent to aecounti 2.35 
 
 8. Commissions of factors, brokers, etc. 239 
 
 9. Lien of agents, factors, etc 244 
 
 10. Notice to the agent, when notice to his principal 246 
 
 11 . Liability of principal for acts of agent ■ 248 
 
 12. Authority of the agent, how exercised 259 
 
 13. Liability of the agent to the principal 262 
 
 14. Actions by agents on their contracts 264 
 
 1-^. Compensation of the agent 265 
 
 16. Liability of agent to third persons • . . . . 266 
 
 17. Termination of agent's authority 272 
 
 CHAPTER VII. 
 
 COEPOBATIONS. 
 
 Section 1. Classification and definitions 275 
 
 2. Subscriptions for stack 277 
 
 3. Transfers of stock 279 
 
 4. General powers of all corporations 282 
 
 5. Liability of corporations 290 
 
 6. Liability of stockholders 296 
 
 CHAPTER VIII. 
 Pabtnekship. 
 
 Section 1. Who are partners 298 
 
 2. Liability of partners to third persons 304 
 
 3. Agent who is paid a share of gross profits not a partner 308 
 
 4. What is a tenancy in common instead of a partnership 309 
 
 5. Form of partnership agreement 310 
 
 6. To what business partnership extends 313 
 
 7. Division of profits and losses 314 
 
 8. Retiring partner 317 
 
 9. Survivorship 320 
 
 10. Limited partnership and special partners under statute 323 
 
 11. Joint-stock companies 324 
 
 12. Rights, duties and liability of partners 327 
 
 13. Dissolution of partnership 339 
 
 14. Actions by partners against each other 344 
 
 CHAPTER IX. 
 Bailment. 
 
 Section 1. General definitions 349 
 
 2. Depositum 350 
 
 3. Mandatum 357 
 
 4. Commodatum or gratuitous loan 363 
 
 5. Pledges or pawns 368 
 
 6. Letting and hiring of personal chattels, etc 378 
 
 7. Loeatio, or letting and hiring of work 383 
 
 8. Innkeepers 395 
 
 9. Common carriers 405 
 
 10. Receiptor's agreement 435 
 
XX 
 
 TABLE OF CONTENTS. 
 
 CHAPTER X. 
 
 ^^^^- Page. 
 
 SECTioif 1. Liens in general 437 
 
 2. Mechanics' liens 453 
 
 3. Liens on vessels 466 
 
 4. Liens on monuments, gravestones and cemetery structures. . 468 
 
 5. Liens for labor on stone 468 
 
 6. Liens for the services of stallions 470 
 
 7. Enforcement of liens on personal property by sale 470 
 
 CHAPTER XL 
 
 CONTBACTS FOB THE CONDITIONAL SaLE OF GoODS AND CHATTELS. 
 
 Section 1. In general 474 
 
 2. Conditional sale of railroad equipment and rolling stock .... 475 
 
 3. Title to goods sold under a contract for conditional sale .... 476 
 
 4. Filing of contracts for conditional sale 478 
 
 5. Eights of vendor on default 479 
 
 6. Sale of the property and disposition of the proceeds 481 
 
 CHAPTER XII. 
 Principal and Surety. 
 
 Section 1. Who is a surety 483 
 
 2. Liabilities of sureties 485 
 
 3. Sureties in indemnity bonds 487 
 
 4. Discharge of sureties 491 
 
 5. Rights of a surety against his principal 497 
 
 6. Rights and liabilities of co-sureties 499 
 
 7. Continuing guaranties 501 
 
 8. Rights of sureties against third persons 503 
 
 9. Guaranties of collection or of payment ._ 506 
 
 CHAPTER XIII. 
 Bills of Exchange and Pkomissoey'Xotes. 
 
 Section 1. General principles and definitions 511 
 
 2. Parties to a bill or note gi4 
 
 3. Eorm and requisites of negotiable instruments 515 
 
 Specifying the payee or drawee 521 
 
 The promise to pay 523 
 
 Writing, signing, sealing, etc 531 
 
 Delivery 535 
 
 4. Incomplete negotiable instruments 537 
 
 5. Checks 539 
 
 6. Bills of exchange in a, set 542 
 
 7. Bills and notes not negotiable ". , 544 
 
 8. Consideration of bills and notes 552 
 
 9. Guaranty of bills and' notes 5g2 
 
 10. Negotiation of bills and notes 5Q5 
 
 11. Acceptance of bills 574 
 
 12. Presentment of bills of exchange for acceptance 577 
 
 13. Proceedings on non-acceptance 58j 
 
 14. Presentment of negotiable instruments for payment 58I 
 
 15. Notice of dishonor of a bill or note 537 
 
TABLE OF CONTENTS. 
 
 XXI 
 
 Page. 
 Section 16. Protest of bills of exchange 592 
 
 17. Rights of the holder 594 
 
 18. Discharge of negotiable instruments 597 
 
 19. Payment by bill or note 598 
 
 20. Lost bills and notes 603 
 
 CHAPTER XIV. 
 Gifts. 
 
 Section 1. Nature, definition and classification of gifts 610 
 
 2. Parties to gifts 611 
 
 3. Property which is the subject of gift 612 
 
 4. Essentials of a valid gift 613 
 
 5. Revocation of gifts 618 
 
 CHAPTER XV. 
 
 Assignments. 
 
 Section 1. What may be assigned 620 
 
 2. Requisites of an assignment 627 
 
 3. What passes to the assignee under the assignment 629 
 
 4. Notice of the assignment 633 
 
 CHAPTER XVI. 
 Sale. 
 
 Section 1. What constitutes a sale 635 
 
 2. What is a bailment instead of a sale 637 
 
 3. Sales in gross 638 
 
 4. Requisites of a valid sale 639 
 
 5. Must be a subject-matter of sale 642 
 
 6. Construction of contracts of sale 643 
 
 7. When the title passes on a contract of sale 648 
 
 8. Sale or return 657 
 
 9. Sales by persons without title 658 
 
 10. Delivery of the property sold 661 
 
 11. Sale of articles to be manufactured 675 
 
 12. Sale or delivery procured by fraud 677 
 
 1 3. Rescinding contracts of sale 686 
 
 14. Warranty 697 
 
 1 5. Stoppage in transitu ■ 722 
 
 16. Sales, how affected by the statute of frauds 726 
 
 17. Rights and remedies of parties to contracts of sale 739 
 
 CHAPTER XVII. 
 Interest on Money. 
 
 Section 1. Nature and rate of interest • 747 
 
 2. Demands upon which interest is recoverable 750 
 
 3. Interest upon interest 757 
 
 4. From what time interest commences to run 758 
 
 5. Computation of interest 763 
 
XXll 
 
 TABLE OF CONTENTS. 
 
 Section 
 
 CHAPTER XVIII. 
 
 USUEY. p^g,_ 
 
 1. What constitutes usury 765 
 
 2. Who may plead usury as a defense 786 
 
 3. How affected by the law of place 793 
 
 CHAPTER XIX. 
 
 Instjeance. 
 
 Section 1. Contracts of fire insurance and actions thereon 798 
 
 Insurable interest 798 
 
 Insurance of mortgaged property 801 
 
 Action by assignee of the policy . . . • 802 
 
 Agreements for insurance 802 
 
 Construction of the policy 802 
 
 ■Statements in application 803 
 
 Conditions in the policy • 804 
 
 Waiver of forfeiture 806 
 
 When company estopped from claiming a forfeiture 807 
 
 Conditions as to the inception of the contract 807 
 
 Notice of loss 809 
 
 Proofs of loss 811 
 
 Other insurance 813 
 
 What the policy covers 814 
 
 CHAPTER XX. 
 
 Judgments. 
 Section 1. Actions upon judgments 
 
 815 
 
 CHAPTER XXI. 
 
 FlXTUBES. 
 
 Section 1. Heir and executor 817 
 
 2. Landlord and tenant ; gift 
 
 Time of removal §20^ 
 
 What the tenant may remove 821 
 
 3. Vendor and purchaser of real estate 822 
 
 4. Mortgagor and mortgagee of real estate 825 
 
 5. When liable to an execution 827 
 
 CHAPTER XXII. 
 
 The Statute op Frauds. 
 
 Section 1. Provisions of the Personal Property Law 82? 
 
 Expressing a consideration 829 
 
 Mode of expressing consideration 830' 
 
 In contracts of guaranty and suretyship 831 
 
 Parol evidence in aid of the writing 833 
 
TABLE OF CONTENTS. xxiii 
 
 Page. 
 
 Section 2. Contracts to be performed within one year 834 
 
 Contracts within the statute 835 
 
 Contracts of employment 836 
 
 Construction of the agreement 837 
 
 Miscellaneous examples of void agreements 838 
 
 Part performance 841 
 
 Pleading the statute 842 
 
 Contracts which may or may not be performed within a 
 
 year 843 
 
 3. Promise to answer for the debt, default or miscarriage of 
 
 another 846 
 
 Original or collateral promise 846 
 
 Nature of the consideration 851 
 
 Stranger to the consideration 852 
 
 Promise must be valid as between promisor and promisee.. 853 
 
 Promise must be in writing 853 
 
 Question as to whom credit was given • 856 
 
 New contract and abandonment of the old 857 
 
 Compliance with request of promisor 858 
 
 Transfer of notes, etc 859 
 
 4. Sale of an interest in land, etc 861 
 
 Conveyance and agreement to convey, distinguished 861 
 
 Authority of agent to sell, etc 862 
 
 Exchange of lands, etc 863 
 
 Interest in lands 863 
 
 Agreements to purchase for the beneiit of another 864 
 
 Contracts in respect to crops, trees, etc 866 
 
 Contracts to pay in land 867 
 
 Recovering back payments made on void contracts ...... 868 
 
 Part performance of void agreement 869 
 
 Sequisites of the note or memorandum 869 
 
 5. Agreements not within the statute 871 
 
 6. Fraudulent sales, assignments, judgments, etc 872 
 
 Chattel mortgages void as against creditors, etc 875 
 
 Bills of sale, etc., void as against creditors 876 
 
 Assignments with preferences 877 
 
TABLE OB^ CASES CITED. 
 
 A. Page. 
 
 Abbett V. Frederick 377 
 
 Abbott V. Draper 868, 692, 695 
 
 Abeel v. Eadcliflf 151 
 
 Abegg V. Bishop 878 
 
 Abell V. Bradner 216, 230 
 
 Aberdeen v. Blackmar . . 55, 488, 490 
 
 505 
 
 Abrahams v. Clausen 782 
 
 Academy of Music v. Haekett... 178 
 
 A. C. Nellis Co. v. Nellis 287 
 
 Acker v. Campbell 679, 688 
 
 Ackley v. Finch 79, 796 
 
 Ackley v. Westervelt 151 
 
 Adair v. Brimmer 208 
 
 Adams & Co. v. Albert 318 
 
 Adams v. Burr 181 
 
 Adams v. City of Cohoes. . . 152, 159 
 
 Adams v. Cole 253 
 
 \dams V. Davidson 883 
 
 lams V. Fort Plain Bank 759 
 
 Adams V. Hull 8 
 
 Adams v. Jones 535 
 
 Adams v. Mills 246 
 
 Adams v. Eoscoe Lumber Co., 649, 650 
 
 Adams v. Sage 15 
 
 Adams v. Tator 497 
 
 Adams v. Van Alstyne 872 
 
 Adolff V. Schmitt 144, 224 
 
 Adrianee v. Roome 251 
 
 jEsehilmann v. Presbyterian Hos- 
 pital 460 
 
 jffitna Ins. Co. v. Aldrich 82 
 
 Agawam Bank v. Strever 502 
 
 Aguirre v. Allen 730 
 
 Ahern v. Goodspeed. . . 227, 708, 790 
 
 Ainis V. Ayres 725 
 
 Akin T. Blanehard 293 
 
 Albany City Ins. Co. v. Deven- 
 
 dorf 493, 495 
 
 Albany, etc. v. Vedder 492 
 
 Albright v. Voorhies 638 
 
 Alden v. N. Y. C.*R. R. Co 427 
 
 Aldrich v. Pyatt 736 
 
 Aldrich v. Reynolds 769 
 
 Aldridge v. Husted 232 
 
 Alexander v. Cauldwell 251 
 
 Alexander v. Germania Fire Ins. 
 
 Co 804 
 
 Alexander v. Greene 433, 407 
 
 Alexander v. Thomas 528 
 
 Allaire v. Ouland 54 
 
 Page, 
 AUamon v. Mayor, etc., of Al- 
 bany 137 
 
 Allard v. Booth 389 
 
 AUard v. Greasert 664, 736 
 
 Alleman v. Bowen 587 
 
 Allen V. Brown 628, 630 
 
 Allen V. Coit 246 
 
 Allen V. Corby 442 
 
 Allen V. Cowan 109, 111, 617 
 
 Allen V. Devlin 178 
 
 Allen V. Fosgate 565 
 
 Allen V. Franklin Fire Ins. Co. . . 800 
 
 Allen V. Hammond 642 
 
 Allen V. Jaquish 175 
 
 Allen V. Merchants' Bank 712 
 
 Allen V. Rightmere 565 
 
 Allen V. Sackrider 405, 407 
 
 Allen V. Scarff 856 
 
 Allen V. Sewall 413, 416 
 
 Allen V. Smith 442, 445 
 
 Allen V. Suydam 263, 579 
 
 Allerton v. Allerton . 693, 697 
 
 Allerton v. Lang 612, 614 
 
 Allis V. Read 733 
 
 Allison V. Matthieu 681 
 
 Alt V. Weidenberg 443 
 
 Althorf V. Wolf 256 
 
 Alvord V. Baker 547 
 
 Ambler v. Bradley 310 
 
 Ambler v. Owen 872 
 
 Amburger v. Marvin 840, 841 
 
 American Boiler Co. v. Fontham, 518 
 American Exchange Bank v. Cor- 
 liss 557 
 
 American Exchange Bank v. Webb, 880 
 
 883 
 American Forcite Powder Mfg. Co. 
 
 V. Brady 707 
 
 American Typefounders Co. v. 
 
 Conner 639 
 
 Ames V. Belden 47 
 
 Ames V. Downing 321, 340, 752 
 
 Ames V. Jones 714 
 
 Ames V. N. Y. Union Fire Ins. Co., 807 
 
 Amidon v. Wheeler 226 
 
 Anderson v. Coonley 196 
 
 Anderson v. Drake 580 
 
 Anderson v. Nicholas . . 443, 659, 685 
 
 Anderson v. Read 648 
 
 Andrew v. Dietrich 683 
 
 Andrew v. Newcomb 70, 643 
 
 XXV 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Andrews v. Garstin 313 
 
 Andrews v. Chadbourne 337 
 
 Andrews v. D. B. Co 822 
 
 Andrews v. Durant . . 90, 388, 649, 675 
 
 Andrews v. Keeler 749 
 
 Andrews v. Kneeland 253, 641 
 
 Andrews & Co. v. Hess 536 
 
 Angel V. Felton 601 
 
 Annent v. Terry 503 
 
 Anonymous 678 
 
 Anthony v. Harrison 7, 30 
 
 Antisdel v. Williamson .... 494, 496 
 
 Appleby v. Biddulph 526 
 
 Archer v. Cole 77 
 
 Archibald v. Thomas 44, 775 
 
 Arend v. Smith 6, 79 
 
 Argersinger v. Macnaughton .... 267 
 Armour v. Michigan Cent. R. R. 
 
 Co 660 
 
 Armour v. Transatlantic Fire Ins. 
 
 Co 803 
 
 Armstrong v. Danahy 279 
 
 Armstrong v. Gilchrist 210 
 
 Armstrong v. Lewis 313 
 
 Armstrong v. McLean 371 
 
 Armstrong v. Wheeler 170 
 
 Arnold v. Arnold 345 
 
 Arnold v. Camp 319 
 
 Arnold v. Halenbake 406 
 
 Arnold v. Nichols 28 
 
 Arnold v. Rock River, etc., R. R., 530 
 
 Arnot V. Erie Railway Co 8 
 
 Arnot V. Pittston & E. Coal Co. . . 26 
 
 Aronson v. Abrahamson 577 
 
 Aronson v. Wertheim 46 
 
 Arras v. Richardson 176 
 
 Artcher v. Zeh 727, 733, 849 
 
 Arthur v. Brooks 628 
 
 Artman v. Hare 267 
 
 A. S. R. Co. V. Faneher 680, 681 
 
 Ash V. Putnam . . 677, 679, 688, 689 
 
 Asher v. Deyoe . . . 679, 680 
 
 Ashner v. Abenheim 267 
 
 Aspinwall v. Saehi 6 
 
 Astor V. L'Amoreaux 171 
 
 Atkins V. Saxton 320 
 
 Atkinson v. Collins 133 
 
 Atkinson v. Manks 526, 530, 547 
 
 Atlantic State Bank v. Savery. . 247 
 
 329, 330 
 
 Attwater v. Fowler 345 
 
 Atwood V. Emery 43 
 
 Atwood V. Ernest 356, 393 
 
 Auburn Savings Bank v. Brinker- 
 
 hoflt 493 
 
 Austin V. Burns 525 
 
 Austin V. Dye 477 
 
 Austin V. Fuller 786, 795 
 
 Austin V. Sawyer 824, 871 
 
 Austin V, Vandermark 333 
 
 Auten V. Ellingwood 
 Averill v. Loucks . . . 
 Averill v. Taylor . . . 
 Aymar v. Beers . . . . 
 Ayrault v. McQueen 
 Ayres v. Doying .... 
 
 Page. 
 
 . 299 
 
 . 882 
 
 . 141 
 
 . 578 
 
 . 550 
 
 . 535 
 
 B. 
 
 Babcock v. Beman 259, 271, 
 
 Babcoek v. Bonnell 
 
 Babcock v. Kuutzseh 9, 
 
 Baer v. Bonynge 
 
 Baglehole v. Walters 
 
 Bagley v. Bowe 
 
 Bagley v. Freeman 
 
 Bagley v. Smith 340, 
 
 Bailey v. Adams 
 
 Bailey v. Bidwell 
 
 Bailey v. Delaplaine 
 
 Bailey v. Freeman 
 
 Bailey v. Mayor of N". Y 200, 
 
 Bailey v. Ogden 
 
 Bailey v. United States .... 624, 
 
 Baily v. Burton 
 
 Bain v. Clark 
 
 Bainbridge v. Firmstone 
 
 Baird v. Baird 7, 
 
 Baird v. Daily 
 
 Baird v. Walker 
 
 Baker v. Bonesteel 
 
 Baker v. Braman 
 
 Baker v. Codding 
 
 Baker v. Cuyler 
 
 Baker v. Drake 
 
 Baker v. Higgins 40, 
 
 Baker v. N. Y. Nat. Exeh. Bank, 
 
 Baker v. Bobbins 
 
 Baker v. Spencer 
 
 Baker v. Woodruff 
 
 Bakewell v. Ellsworth 
 
 Baldey v. Parker 
 
 Baldwin v. Burrows . . . 208, 300, 
 
 Baldwin v. Palmer 865, 
 
 Baldwin v. Liverpool & G. W. S. S. 
 
 Co 415 
 
 Baldwin v. Williams 727 
 
 Baley v. Homestead Fire Ins. Co., 806 
 
 Balfe V. West 35S 
 
 Balme v. Wombough. . . 749, 793, 794 
 
 Ball v. Larkin 632 
 
 Ball v. Liney 35,5 
 
 Ball V. N. J. Steamboat Co 411 
 
 Ball V. Shatter 74, 78, 105 
 
 Ball V. Stover 837 
 
 Ballard v. Burgett 476, 477, 659 
 
 Ballou V. Cunningham 84 
 
 Balch V. Symes 450 
 
 Baltzen v. Nieolay 268, 269 
 
 Bamberger v. Kahn 623 
 
 Bancroft v. Winspear 48i> 
 
 568 
 722 
 496 
 266 
 717 
 879 
 169 
 347 
 441 
 5.56 
 175 
 858 
 690 
 727 
 C25 
 90 
 19S 
 359 
 30 
 393 
 236 
 603 
 872 
 841 
 731 
 373 
 672 
 228 
 237 
 694 
 15 
 636 
 372- 
 736 
 310 
 869 
 
TABLE OF CASES CITED. 
 
 Page. 
 
 Bander v. Bander 758 
 
 Bangs V. Bailey 755 
 
 Bangs V. Bangs 50 
 
 Bangs V. Mcintosh 755 
 
 Bangs V. Mosher. . 493, 494, 495 
 
 Bangs V. Strong 495 
 
 Bank of Albion v. Burns .... 484, 494 
 
 Bank of Albion v. Smith 576 
 
 Bank of British North America v. 
 
 Delafield ; 346 
 
 Bank of Genesee v. Patchin Bank, 285 
 Bank of Lansingburgh v. Crary. . 08 
 
 867 
 Bank of Monongahela Valley v. 
 
 Weston 318, 343 
 
 Bank of N. Y., etc., Assn. v. Amer- 
 ican Dock and Trust Co 232 
 
 Bank of N". Y. v. Bank of Ohio. . . 285 
 
 Bank of N". Y. v. Livingston 509 
 
 Bank of. Niagara v. Johnson.... 293 
 Bank of North Am. v. Embury. . 329 
 
 Bank of Orange v. Brown 405 
 
 Bank of Orleans v. Torrey 234 
 
 Bank of Port Jefferson v. Darl- 
 ing 571 
 
 Bank of Rochester v. Gray. . 287, 581 
 Bank of Rochester v. Jones. . 60, 79 
 
 80, 447 
 Bank of Rochester v. Monteath . . 269 
 
 317 
 
 Bank of Rutland v. Buck 558 
 
 Bank of the State of Georgia v. 
 
 Lewis 794 
 
 Bank of Silver Creek v. Talcott . . 44 
 
 879 
 Bank of Syracuse v. Hollister . . . 580 
 
 Bank of Troy v. Topping 8 
 
 Bank of Utica v. Manufacturers 
 
 & Traders' Bank 280 
 
 Bank of Utica v. Smalley 281 
 
 Bank of Utica v. Smith 590 
 
 Bank of Utica v. Wager 776, 796 
 
 Bank of United States v. Davis . . 246 
 256, 295, 590 
 
 Banks v. Van Antwerp 769 
 
 Barbeau v. Picotte 345 
 
 Barber v. Kerr 559 
 
 Barber v. Lyon 663 
 
 Barber v. Rose 164 
 
 Bard v. Poole 793 
 
 Bardwell v. Roberts 60 
 
 Barker v. Bradley 8, 28, 855 
 
 Barker v. Bueklin 28, 852, 855 
 
 Barker v. Mechanic Ins. Co. . 261, 270 
 
 Barkley v. McOue 176 
 
 Barlow v. Broadhurst 529 
 
 Barlow v. Myers. . . 28, 630, 569, 852 
 Barnard v. Campbell . . 660, 680, 682 
 
 Barnard v. Viele 50 
 
 Barnes v. Brown 232 
 
 Barnes v. Harris 816 
 
 Page. 
 
 Barnes v. Marshall 413 
 
 Barnes v. Ferine 22 
 
 Barnes v. Ryan 14 
 
 Barney v. Dewey 720, 721 
 
 Barns v. Graham 552 
 
 Barr v. N. Y., L. E. & W. R. R. 
 
 Co 232 
 
 Barretto v. Snowden 774 
 
 Barring v. Corrie 220 
 
 Barron v. Yost 311 
 
 Barrow v. Paxton 62, 04 
 
 Barrow Steamship Co. v. Mexican 
 
 Cent. Ry. Co 31 
 
 Barry v. Nesham 300 
 
 Barry v. Ransom 500, S55 
 
 Bartlet v. Walter 7911 
 
 Bartlett v. Campbell 505 
 
 Bartlett v. Hopock 707 
 
 Bartlett v. Wheeler 841 
 
 Bartholomew v. Finnemore . . 59, 694 
 
 Bartholomew v. Jackson 19, 20 
 
 Bartniek v. Erie R. R. Co 427 
 
 Barto V. Himrod 290 
 
 Barton v. Port Jackson, etc., P. R. 280 
 
 Barton v. Speis 565 
 
 Baskins v. Shannon 79, 111 
 
 Bass V. Pierce 440 
 
 Bassett v. French ] ni 
 
 Bassett v. Spofford 658 
 
 Basten v. Butler 380 
 
 Bates V. Conkling 656 
 
 Bates V. Fish Bros. Wagon Co. . . 701 
 
 710 
 
 Bates V. Stanton 412 
 
 Bates V. Todd 424 
 
 Bath Gas Light Co. v. Claffy 286 
 
 Batterman v. Morford 33 
 
 Batterman v. Pierce 104 
 
 Battershall v. Davis 22 
 
 Battle V. Rochester City Bank . . 680 
 
 868 
 
 Batty V. Carswell 108 
 
 Baumgartel v. P. W. Ins. Co 813 
 
 Baumann v. Jefferson 622 
 
 Baxter v. Baughan 355 
 
 Beach v. Fulton Bank 201 
 
 Beach v. Raymond 02^ 
 
 Beach v. Barons 020 
 
 Beach v. Vandewater 253 
 
 Beales v. Benjamin 770 
 
 Beals V. Allen 196, 204, 252 
 
 Beals V. Buffalo Construction Co., 279 
 
 Beals v. Gurnsey 756, 884 
 
 Beals V. Terry 440 
 
 Bean v. Mather 332 
 
 Beau V. Sturtevant 410 
 
 Beardslee v. Richardson.... 359, 360 
 
 Beardsley v. Baldwin 528 
 
 Beardsley v. Duntley 863 
 
 Beardsley v. Ontario Bank 72 
 
 Beaty v. Marine Ins. Co 285 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Beaver v. Beaver 613, 615, 61S 
 
 Beavers v. Lane 682, 683 
 
 Beek v. Sheldon 676, 701 
 
 Becker v. Hallgarten 725 
 
 Beckwith v. Union Bank of N. Y., 632 
 
 Bedell v. Carll.... 537, 610, 612, 613 
 
 614, 618. 610 
 
 Bedford v. Terhune 168, 173 
 
 Beebe v. Robert 225, 691, 710 
 
 Beekman v. Hale 487 
 
 Beers v. Housatonic R. E. Co. . . 407 
 
 Beers v. Phoenix Glass Co 294 
 
 Beers v. Finney 55, 504 
 
 Beers v. Reynolds 324, 343, 760 
 
 Beers v. Shannon 753 
 
 Berry v. Robinson 526 
 
 Belanger v. Dana 345, 346 
 
 Belden v. Burke 44, 45 
 
 Belknap v. Reinhart 218 
 
 Bell V. Dag 573 
 
 Bell V. Day 774 
 
 Bell V. Holford 883 
 
 Bell V. Lent 785 
 
 Belloni v. Freeborn 52, 486, 488 
 
 Bendetson v. French 401, 402 
 
 Benedict v. Arnoux 248 
 
 Benedict v. Cowden 567 
 
 Benedict v. Field 602, 742 
 
 Benedict v. Huntington 879 
 
 Benedict v. Lansing 198 
 
 Benedict v. Smith 113 
 
 Benedict v. Williams 96, 680, 682 
 
 Benjamin v. Saratoga Co. Mut. 
 
 Fire Ins. Co 814 
 
 Bennett v. Bates 631, 748 
 
 Bennett v. Buchan 246, 708 
 
 Bennett v. Cook 758 
 
 Bennett v. Earl 94, 113 
 
 Bennett v. Hull 737 
 
 Bennett v. Judson 256 
 
 Bennett v. Lycoming Co. Mut. Ins. 
 
 Co 810 
 
 Bennett v. Mellor 399 
 
 Bennett v. Pratt 834 
 
 Bennett v. Seott 866 
 
 BenninghoflF v. Agricultural Ins. 
 
 Co 804, 806 
 
 Benson v. Suarez 191 
 
 Bentley v. Columbia Ins. Co. . . 32, 231 
 
 Benton v. Martin 578 
 
 Berdan v. Sedgwick 788 
 
 Berger v. Varrelmann 878 
 
 Bernard v. Aaron 255 
 
 Bernhard v. Brunner 536 
 
 Berry v. Alderman 555 
 
 Berry v. A. C. Ins. Co 799 
 
 Berrien v. Wright 793 
 
 Besch V. Frolich 341 
 
 Beskin v. Fiegenspan 120 
 
 Betts v. Hoyt 435, 436 
 
 Bevier v, Covell 775 
 
 Page. 
 BieniBtoek v. Ammidown . . . 248, 255 
 
 Bierne v. Dord 712, 71.3, 715, 716 
 
 Bierraan v. City Mills Co... 707. 711 
 
 Bigelow V. Benedict 644 
 
 Bigelow v. Benton 487 
 
 Bigelow V. Davis 28 
 
 Bigelow v. Grannis 11, 59 
 
 Bigelow V. Heaton 414, 452 
 
 Bigler v. N. Y. Cent. Ins. Co., 813, 814 
 Bilbrough v. Metropolis Ins. Co.. 813 
 
 Bildersee v. Aden 57 
 
 Billings V. Jane 569 
 
 Billings V. O'Brien 625 
 
 Billings V. Russell 877, 885 
 
 Billington V. Cahill 836, 837 
 
 Bini V. Smith 813 
 
 Billington v. Wagoner. . 497, 787, 792 
 
 Binnev v. Le Gal 335 
 
 Bird v. Everard 362 
 
 Birdsall v. Davenport 630 
 
 Birdseye v. Frost 709 
 
 Birkmyr v. Darnell 856 
 
 Bishop V. Bishop 819, 826 
 
 Bishop V. Cook HI, 117 
 
 Bishop V. Sniff en 608 
 
 Bissell V. Balcour 733 
 
 Bissell V. Harrington 310 
 
 Bissell V. Hopkins 756 
 
 Bissell V. N. Y. C. R. R. Co 433 
 
 Bissell V. Pearce. ... 75, 124, 372, 441 
 
 Bixby V. Drexel 270 
 
 Black V. Caffe 526 
 
 Black River & Utica R. R. Co. v. 
 
 Clarke 278 
 
 Bla6kstock v. N. Y. & Erie R. R. 
 
 Co 426 
 
 Blade v. Noland 606. 607 
 
 Blake v. Corbett 63, 64 
 
 Blake v. Nicholson 438 
 
 Blake v. Voigt 836 
 
 Blakeman v. Mackay. . . 268, 700, 703 
 
 Blanchard v. Isaacs 413, 416 
 
 Blackenhagen v. Blundell 522 
 
 Blasdale v. Babcock 55, 720, 721 
 
 Blass V. Agricultural Ins. Co. . . . 804 
 
 Blass V. Terry 249 
 
 Bleaden v. Charles 498 
 
 Bleaden v. Hancock 439 
 
 Bleecker v. Smith 179 
 
 Bliss v. Bliss 448 
 
 Bliss v. Cottle 688, 689 
 
 Bliss V. Lawrenc* 625 
 
 Bliss V. Sherrill 775 
 
 Bliven v. Hudson River R. R. . . 356 
 
 370 
 
 Bliven v. Lyndeeker 209, 775 
 
 Blodgett v. Wadham 778 
 
 Blood V. Goodrich 211 
 
 Bloodgood V. Bruen 344 
 
 Bloomer v. Bloomer 619 
 
 Bloomer v. Merrill 190 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 Pat'e. 
 Bloomincrdale v. Butehei-s & Drov- 
 ers' Bank 523 
 
 Bloss V. Chittenden 345 
 
 Blossom V. Champion 409 
 
 Blossom V. Griffin 44 
 
 Blossom V. Lycoming Fire Ins. 
 
 Co 811 
 
 Blossom V. Shotter 648, 654 
 
 Blot V. Boioeau 212 
 
 Blount V. Burrow 617 
 
 Blydenburffh v. Bingham 496 
 
 Board of Education v. Fonda .... 599 
 Board of Supervisors v. Clark. . . 759 
 Boardman v. Lake Shore & Mich. 
 
 So. Ry. Co 282 
 
 Boardman v. Sill 442 
 
 Bodle V. Chenango Mut. Ins. Co., 81.3 
 Boggart V. O'Reagan. . . 264, 687, 688 
 
 Bohn V. Hatch 145 
 
 Bolen V. Crosby 622, 630 
 
 Bolton V. Dugdale 525 
 
 Bond V. Pittard 315 
 
 Bonesteel v. Vanderbilt .308 
 
 Bonito V. Mosquera 227, 238 
 
 Bonn V. Steiger 752 
 
 Bonnell v. Briggs 213 
 
 Bonney v. Seeley 497, 562 
 
 Bookstaver v. Jayne 536 
 
 Boorman v. Jenkins 696, 697, 716 
 
 Boorman v. Johnson 253 
 
 Booss V. Marion 337, 881 
 
 Booth V. Bierce 250 
 
 Booth V. Farmers & Mechanics' 
 
 Nat. Bank 634 
 
 Booth V. Spuyt'en Duyvil Rolling 
 
 Mill Co 26, 390 
 
 Booth V. Svvezey 774 
 
 Booth Brothers v. Baird 48 
 
 Boreel v. Lawton 159, 180, 181 
 
 Bossange v. Ross 781 
 
 Bosanquet v. Wray 347, 348 
 
 Boston Carpet Co. v. Journay. . . . 243 
 
 Bostwick V. Drygoods Bank 660 
 
 Botsford V. Bean 783 
 
 Bouker Contracting Co. v. Sorib- 
 
 ner 298 
 
 Bourne v. Freeth 300 
 
 Boutwell V. O'Keefe 744 
 
 Bowdish v. Page 75, 121 
 
 Bowe V. Ellis 732 
 
 Bowe V. Wilkins 491 
 
 Bowen v. Bell 872 
 
 Bov^en v. Bradley 750 
 
 Bowen v. N. Y. C. R. R. Co 427 
 
 Bowery Nat. Bank v. Mayor 128 
 
 Bowery Nat. Bank v. Wilson .... 625 
 
 Bowman v. Hoffman 372 
 
 Bowman v. Teal 424, 426 
 
 Boyce v. Washburn 739 
 
 Boyd V. Brotherson 538 
 
 Boyd V. Cummings 556, 557 
 
 Page. 
 
 Boyd V. Emmerson 308 
 
 Boyd V. L. H. Quinn Co 267 
 
 Boyer v. Pack 758 
 
 Brabin v. Hyde 734, 735 
 
 Brace v. City of Gloversville 404 
 
 Braeegirdle v. Heald 836, 837 
 
 Braekelt v. Barney 11, 785 
 
 Brackett v. Griswold 622 
 
 Brackett v. Harvey 73, 74 
 
 Bradbury v,. Smith 314 
 
 Bradford v. Kimberly 244, 327 
 
 Bradley v. Waterhouse 420 
 
 Bradley v. Wheeler. . 48, 654, 657, 659 
 
 Bradner v. Strang 338 
 
 Brady v. Sackrider 856, 857 
 
 Brp.dy v. Cassidy 42 
 
 Brady v. Little Miami R. R. Co., 254 
 
 Brady v. Todd 253 
 
 Braekeleer v. Schwabeland . . 112, 114 
 
 Bragelman v. Dane 64, 79, 80 
 
 Brainard v. Jones 753 
 
 Braman v. Hess 778 
 
 Brandt v. Verdon 460 
 
 Bray v. Mayne 381 
 
 Breed v. Cook 600, 741 
 
 Breen v. Rives 242 
 
 Breese v. Bangs 175 
 
 Brennan v. Glennon 770 
 
 Brennan v. HaflF 24 
 
 Brewer v. Ford 477 
 
 Brewer v. Salisbury 663 
 
 Brewster v. Baker 67 
 
 Brewster v. Games 198, 634 
 
 Brewster v. Countryman 721 
 
 Brewster v. McCardle 520 
 
 Brewster v. Silence. . 8, 831, 832, 834 
 
 856 
 
 Brewster v. Wakefield 748 
 
 Bridenbecker v. Lowell 201 
 
 Bridgeport F. & M. Ins. Co. v. Wil- 
 son 55 
 
 Brierly v. Cripps 345 
 
 Briggs V. Briggs 236, 317 
 
 Briggs T. Dorr 629 
 
 Briggs V. Hilton 701, 711 
 
 Briggs V. Langford 631 
 
 Briggs V. Oliver 84 
 
 Briggs V. Partridge 261, 270, 862 
 
 Briggs V. Rowe 241 
 
 Briggs V. Tillotson 21 
 
 Briggs V. Weidman Cooperage Co., 339 
 
 Briggs V. Vanderbilt 27, 308 
 
 Brigham v. Tillinghaat. . 879, 882, 883 
 
 .Brill V. Tuttle 518 
 
 Brink v. Dolsen 237 
 
 Brink v. Hanover Fire Ins. Co.. . 811 
 
 813 
 
 Brinkerhoff v. Sartwell 246 
 
 Bringloe v. Morrice 366 
 
 Brisbane v. Adams 205 
 
 Brisban T. Boyd 222 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Page. 
 Bristol V. Rens. & Sar. R. R. Co., 422 
 
 Bristow V. Taylor 329 
 
 Britt V. Lawson 583 
 
 Broad V. Hoffman 240 
 
 Broadbent v. Ledward 356 
 
 Broadhead v. Lycoming Ins. Co., 804 
 
 Broadhead v. Smith 98 
 
 Broadwell v. Getman. 839, 841 
 
 Broadwood v. Granara 445 
 
 Brooks V. Avery 780, 786 
 
 Brooks V. Ball 13 
 
 Brooks V. Galster 820 
 
 Broekman v. Biiell 97 
 
 Broekway v. Allen 260, 568 
 
 Broekway v. Burnap 309 
 
 Bronner v. Walter 186 
 
 Bronson v. Wiman 688, 738, 744 
 
 Bronson v. Gleason 550, 670 
 
 Bronson v. Woolsey 218 
 
 Bronx Gas & Electric Co. t. City 
 
 of New York 753 
 
 Brookman v. Stetson 307 
 
 Brouer v. Vandenburgh 226 
 
 Brower v. Jones 753 
 
 Brower v. Lewis 210. 703, 716 
 
 Brower v. Peabody 443, 659, 684 
 
 Brower v. Mechanics & Traders' 
 
 Bank 488 
 
 Brown v. Bement 63, 64 
 
 Brown v. Bigelow 700 
 
 Brown v. Bradshaw 856, 857 
 
 Brown v. Butchers & Drovers' 
 
 Bank 532 
 
 Brown v. Cattaraugus Co. Mut. 
 
 Ins. Co 80,3, 814 
 
 Brown v. Cherry 264 
 
 Brown v. Cook 100, 355, 357 
 
 Brown v. Curran 28, 852 
 
 Brown v. Curtiss 509, 565 
 
 Brown v. Foster 676 
 
 Brown v. Guthrie 879 
 
 Brown v. Knapp 760 
 
 Brown v. Keifer 96 
 
 Brown v. Mason 493, 494 
 
 Brown v. Mayor 287 
 
 Brown v. Mechanics & Traders' 
 
 Bank 52 
 
 Brown v. Morgan 388 
 
 Brown v. N. Y. C. R. R. Co 427 
 
 Brown v. Piatt 108 
 
 Brown v. Taber 556 
 
 Brown v. Waters 438 
 
 Brown v. Wilmerding. . . 94, 107, 884 
 
 Browne v. Paterson 44, 46 
 
 Brownell v. Hawkins. . 60, 65, 372, 378 
 
 Browning v. Dalesme 162 
 
 Browning v. Hart 880 
 
 Browning v. Home Ins. Co 804 
 
 Bruce v. Burr 860 
 
 Bruce v. Davenport 211, 229 
 
 Bruce v. Fulton Nat. Bank 151 
 
 Page. 
 
 Bruce v. Pearson 719 
 
 Bruce v. Westcott 524, 539 
 
 Bruen v. Marquand 334 
 
 Brumm v. Gilbert 626 
 
 Brutt v. Picard 539 
 
 Bryan v. Baldwin 373, 374, 375 
 
 Bryant v. Poughkecpsie Mut. Ins. 
 
 Co 803 
 
 Bryant ,'. Wardell 382 
 
 Bryce v. Brooks 244 
 
 Buchanan v. Exchange Fire Ins. 
 
 Co 805 
 
 Buchanan v. Findlay 441 
 
 Buchanan v. Tilden 240 
 
 Buchannan v. Smith 381, ,382 
 
 Buck v. Burk 550, 670 
 
 Buckingham v. Corning 787 
 
 Buckingham v. Payne 214 
 
 Buckley v. Arteher 678, 679 
 
 Buckley v. Buckley 818, 819 
 
 Buckley v. Packard 227, 228, 238 
 
 Buddy V. Furniss 724 
 
 Bucknam v. Brett 244 
 
 Buddenburg v. Benner 403 
 
 Eudweiser Brewing Co. v. Cappar- 
 
 elli 97, 582 
 
 Bueb V. Geraty 116 
 
 Buell V. Cole 345 
 
 Buell V. Rope 877 
 
 Buffalo City Bank v. Howard. . . . 318 
 BufTalo German Ins. Co. v. Third 
 
 Nat. Bank 281 
 
 Buffalo & J. R. R. Co. v. Clark. . 277 
 Buffalo & ,T. R. R. Co. v. Gifford, 277 
 Buffalo & N. Y. C. R. R. Co. v. 
 
 Dudley 279 
 
 Bulger V. Rosa .3,37 
 
 Bulkley v. Dayton 334 
 
 Bull v'. Sims 519, 531, 779 
 
 Bullard v. Kenyon 88 
 
 Bullard v. Raynor 787 
 
 Bullock V. Bemis 752 
 
 Bumstead v. Dividend Mut. Ins. 
 
 Co 812 
 
 Bunnell v. Empire Laundry, etc., 
 
 231 
 
 Co. 
 
 Bunnel v. Stern 362 
 
 Bunnt V. Barrett 394 
 
 Bureh v. Spencer 7] 
 
 Burck V. Taylor 624, 625 
 
 Burchell v. Green 476 
 
 Burekle v. Eekhart 309 
 
 Burden v. Burden 288 
 
 Burdick v. Green 567, 599, 601 
 
 Burdick v. MeVanner R.3 
 
 Burdick v. Post 883 
 
 Burgess v. Badger 321 
 
 Burgess v. Clement 403 
 
 Burkitt V. Harper 455 
 
 Bnrlingame v. Bnrlingame 867 
 
 Burlingame v. Mandeville 836 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 Page. 
 
 Burnell v. N. Y. C. R. R. Co 431 
 
 Burnet v. Bisco 8 
 
 Burnett v. Scribner 174 
 
 Burnett v. Snyder 303 
 
 Burnhisel v. Firman 748 
 
 Burns v. Bryant 157, 158 
 
 Burns t. Rowland 306 
 
 Burr V. Beers 28, 852 
 
 Burrall v. Aoker 436 
 
 Burrall v. De Groot 790 
 
 Burrall v. Jacot 647, 745 
 
 Biirrows v. Whitaker 653 
 
 Burt V. Dewey 717, 720 
 
 Burt V. Horner 508 
 
 Burton v. Baker 778 
 
 Burton v. Stewart 559 
 
 Bush V. Gilmore 533, 582 
 
 Bush V. Lathrop 631 
 
 Bush V. Stevens 832 
 
 Buskirk v. Cleveland 70, 734 
 
 Bushnell v. Chautauqua Co. Nat. 
 
 Bank 286 
 
 Butcher v. London & Southwest- 
 ern R. R. Co 425 
 
 Butler V. Butler 649, 675 
 
 Butler V. Dinan 840 
 
 Butler V. Evening Mail Assn., 225, 266 
 
 Butler V. Flynn 455 
 
 Butler V. Haight 741 
 
 Butler V. Miller 101, 109 
 
 Butler V. N. Y. & Erie R. R. Co.. . 623 
 
 Butler V. Rawson 526 
 
 Butler V. Stocking . 330, 333 
 
 Butler V. Thompson 640 
 
 Butt V. Hoge 588 
 
 Butternuts & Oxford Turnpike 
 
 Co. V. North 278 
 
 Butterworth v. O'Brien 789 
 
 Butterworth v. Peck 574 
 
 Buttman v. Dennett 362 
 
 Button v. Rathbone, Sard & Co.. 64 
 
 88, 93 
 Buxton V. Baughan 443 
 
 C. 
 
 Cable V. Bonnell 180 
 
 Cady V. Bradshaw 585 
 
 Cady V. McDowell 396, 445 
 
 Cafre v. Lockwood 707 
 
 Cagger v. Lansing 869 
 
 Cahen v. Piatt 687 
 
 Oairnes v. Bleecker 209 
 
 Caldwell v. Bartlett 96, 665, 682 
 
 685 
 
 Caldwell v. Cassidy 582 
 
 Caldw«n V. N. J. Steamboat Co. . . 427 
 
 Caldwell v. Leiber 327 
 
 Calkins v. Palk. . 728, 834 
 
 Calkins v. Griswold 639 
 
 Calkins v. Hellman 233 
 
 Callahan v. Crow 596 
 
 Page. 
 
 Callanan v. Van Vleek 274 
 
 Callender v. Dinsmore 48 
 
 Calvo V. Da vies 494, 495, 496 
 
 Cameron v. Chappeil 780 
 
 Camden Co. v. Balknap 433 
 
 Camden R. R. & S. S. Co. v. Bel- 
 knap 417, 428, 433 
 
 Camden R. R. & T. Co. v. Belknap, 428 
 Camden R. R. & T. Co. v. Burke, 428 
 
 Camidge v. Allenby 603 
 
 Campbell v. Birch 85 
 
 Campbell v. Campbell 867 
 
 Campbell v. Muller 268 
 
 Campbell v. Parker 369, 374 
 
 Camp V. Camp 108 
 
 Campbell Printing Press Co. v. 
 
 Yorkston 241 
 
 Canajoharie Nat. Bank v. Diefen- 
 
 dorf 556, 595, 596 
 
 Canda v. Totten 865 
 
 Candler v. Mayor, etc., of N. Y. . . 54 
 Canfield v. Baltimore & Ohio R. R. 
 
 Co 434 
 
 Caponigri v. Alteri 772 
 
 Cardell v. MoNiel 600, 741, 860 
 
 Carhart v. Ryder 160 
 
 Carleton v. Lumbard, Ayres & Co., 701 
 
 707, 710, 721 
 
 Carley v. Wilkins. . 698, 700, 711, 719 
 
 Carnright v. Gray. . . 8, 528, 546, 553 
 
 Carpenter v. Blote 96 
 
 Carpenter v. Branch 363 
 
 Carpenter v. Griffin 636 
 
 Carpenter v. Simmons 90 
 
 Carpenter v. Taylor 396 
 
 Carpenter v. Town 89, 97, 100 
 
 Carpenter v. Underwood 883 
 
 Carpenter v. Weller 18 
 
 Carr v. Ellison 193 
 
 Carr v. Roberts 52 
 
 Carr v. Thompson 236 
 
 Carroll v. Cone 295 
 
 Carroll v. Newton 161 
 
 Carroll v. Pettit 243 
 
 Carroll v. Staten Island R. R. Co., 428 
 Carroll v. Sweet. . . 540, 541, 584, 599 
 
 Carson v. Ingalls 782 
 
 Carter v. Burr 186 
 
 Carter v. Byron 181 
 
 Carter v. Hammet 171 
 
 Carter v. Stork 27l 
 
 Carter v. Wallace 478 
 
 Carville v. Crane 856 
 
 Cartwright v. Greene 237, 855 
 
 Cartwright v. Rome, W. & O. R. R. 
 
 Co 409 
 
 Cartwright v. Wilmerding. . 220, 221 
 
 Cary v. Gruman 690 
 
 Gary v. Hotaling. . 677, 679, 688, 689 
 
 Cary V. Kreizer 188 
 
 Gary v. Thompson 148 
 
xxxu 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Gary v. White 493, 494 
 
 Casco Nat. Bank v. Clark. . . 247, 533 
 
 Case V. Abeel 320 
 
 Case V. Boughton 79, 86, 102 
 
 Case V. Brush 235 
 
 Case V. Hall 720 
 
 Casoni v. Jerome 503 
 
 Cass V. Shewman 509 
 
 Cassabeer v. Kalbfleisch 786 
 
 Cassard v. Hinman 227, 257, 644 
 
 678 
 
 Casserly v. Witherbee 79, 87 
 
 Cassidy v. Hall 303 
 
 Castle V. Beardsley 829, 830 
 
 Castle V. Jlarks 339 
 
 Castleman v. Mayer 88 
 
 Caswell V. Distrieh 144 
 
 Caswell V. Hazard 311, 313 
 
 Caton V. Rumney 407 
 
 Catlin V. Gunter 535, 781, 796 
 
 Catlin V. Tobias 666 
 
 Cauldwell v. Cassidy 577 
 
 Caulkins v. Hellman 730 
 
 Cayuga Co. Bank v. Hunt. . . 579, 580 
 
 Cayuga R. R. Co. v. Niles 866 
 
 Cayuga Co. Bank v. Warden, 588, 589 
 Central Bank v. Empire Stone 
 
 Dressing Co 285, 294 
 
 Central Trust Co. v. Folsom 197 
 
 198 
 Central City Savings Bank v. 
 
 Walker 303 
 
 Central Bank v. Pindar 690 
 
 Central Presbyterian Church v. 
 
 Thompson 23 
 
 Cesar v. Karutz 160 
 
 Chadwick v. Lamb 82 
 
 Chadwick v. Manning 497 
 
 Chaffee v. Cattaraugus Co. Mut. 
 
 Ins. Co 803 
 
 Chaffee v. Fort 678 
 
 Chaffee v. Thomas 12 
 
 Chamberlain v. Seller 55, 490 
 
 Chamberlain v. Martin 79, 84 
 
 Chamberlain v. Pratt 382 
 
 Chamberlain v. Townsend 790 
 
 Chamberlyn v. Delarive 602 
 
 Chambers v. Lancaster. . 627, 676, 732 
 
 Champion v. Bostwick 338 
 
 Champlin v. Butler 63 
 
 Champlin v. Parish 870 
 
 Champlin v. Rowley 39, 672 
 
 Champney v. Blanchard 617 
 
 Chandler v. Belden 414 
 
 Chandler v. Bunn 116 
 
 Chapin v. JTerrill 856 
 
 Chapins v. Mathot 788 
 
 Chapman v. Jenkins . . , 101 
 
 Chapman v. Kent 245, 439, 647 
 
 Chapman v. Lathrop 648 
 
 Chapman v. Lynch 284 
 
 Page. 
 
 Chapman v. Mureh 699, 711 
 
 Chapman v. N. Y. C. R. R. Co.. . . 254 
 
 Chapman v. Robertson 793 
 
 Chapman v. Searle 547 
 
 Chapman v. Shepard 656 
 
 Chapman v. White 574 
 
 Chappell V. Dann 272 
 
 Chapuis V. Mathot 787 
 
 Charter v. Stevens. . . 77, 84, 100, 102 
 
 Chase v. Day 856 
 
 Chase v. Hinman 488 
 
 Chase v. Hamilton Mut. Ins. Co., 802 
 
 Chase v. People's Fire Ins. Co 804 
 
 Chase v. Hamilton Ins. Co 808 
 
 Chase v. Nichols 709 
 
 Chase v. Westmore 437, 438 
 
 Chase Nat. Bank v. Faurot. . 534, 536 
 Chatham Nat. Bank v. Pratt, 506, 507 
 
 Chatterton v. Fox 185 
 
 Cheesman v. Exall 370 
 
 Cheever v. Pittsburgh, etc., R. R. 
 
 Co 595 
 
 Cheever v. Sohall 829, 843, 869 
 
 Cheever v. Smith 226 
 
 Chemung Canal Bank v. Bradner, 333 
 
 538 
 Chemung Canal Bank v. Payne. . . 107 
 Chester v. Dickerson. . . 310, 314, 337 
 
 338 
 
 Chileott V. Trimble 10, 11 
 
 Childs V. Barnum 832, 833 
 
 Childs V. Clark 167, 170 
 
 Chilton V. Butler 240, 242 
 
 Chretien v. Doney 150 
 
 Christopher v. Austin.. 181, 184, 18.5 
 
 Chrvsler v. Renois 526 
 
 Church V. Brown 831, 858 
 
 Church V. Howard 509 
 
 Church V. Maloy 782 
 
 Church of the Ascension v. Buck- 
 hart 292 
 
 Churchill v. Hunt. . 52, 488, 490, 789 
 
 Cinque v. Cassani 672 
 
 Citizens' Bk. v. Nantucket Steam- 
 boat Co 407 
 
 Citizens' Nat. Bank v. Weston. . 5.t6 
 
 595 
 
 City Bank v. Bangs 2-5 
 
 Citv Bank v. Rome, W. & 0. R. R. 
 
 Co 412 
 
 City Bank of Brooklyn v. Dear- 
 born 331 
 
 Citv Bank of Brooklyn v. McChes- 
 
 ney 318, 343 
 
 Citv Bank of New Haven v. Per- 
 kins 249 
 
 Citv of Brooklyn v. Brooklyn City 
 
 R. R. Co 13.5 
 
 City Savings Bank v. Bidwell. . . . 795 
 
 Citron v. Bayley 163 
 
 Claflin v. Boorum 781 
 
TABLE or CASES CITED. 
 
 XXXlll 
 
 Page. 
 Claflin V. Farmers & Citizens' Bk., 232 
 
 253 
 
 Claflin V. Meyer 394 
 
 Claflin V. Ostrom 509, 631 
 
 Olapp V. Cooper 554 
 
 Clapp V. Mott 90 
 
 Clapp V. Rogers 343 
 
 Clark V. Andrews 881 
 
 Clark V. Barlow 750 
 
 Clark V. Burdett 509 
 
 Clark V. Dales 740, 744 
 
 Clark V. Dearborn 331 
 
 Clark V. Dibble 347 
 
 Clark V. Downing 628 
 
 Clark V. Gilbert 452 
 
 Clark V. Farmers', etc., Woolen, 
 
 etc., Co 285 
 
 Clark V. Faxton 406, 433 
 
 Clark V. Fey 666 
 
 Clark V. Griffith 81 
 
 Clark V. Holmes 338 
 
 Clark V. Howard 28 
 
 Clark V. Jones 179 
 
 Clark V. Lake Ave. Permanent 
 
 Savings & Loan Assn 762 
 
 Clark V. Loomis . . . . > 781 
 
 Clark V. Marsiglia 133, 386, 392 
 
 Clark V. Masters 414 
 
 Clark V. Mayor of N. Y 137 
 
 Clark V. Metropolitan Bank 257 
 
 Clark V. Pinney -. 762 
 
 Clark V. Rawson ; 485 
 
 Clark V. Siekler 492 
 
 Clark V. Sisson 781, 782, 785, 792 
 
 Clark V. Tucker 730, 733 
 
 Clark V. Woodruff 46 
 
 Clarke v. Crandall 745 
 
 Clarke v. Cummings 179 
 
 Clarke v. Fell 452 
 
 Clarke v. Rochester & Syracuse 
 
 R. R. Co 419 
 
 Clarkson v. Edes 414 
 
 Clason V. Morris 498 
 
 Clay V. Willan 420 
 
 Clement v. N". Y. C, etc., R. R. 
 
 Co 412 
 
 Clemmons v. Rose 679 
 
 Clendaniel v. Tuckerman 424 
 
 Cleves V. Willoughby 187 
 
 Cleveland v. Loder 777 
 
 Clews V. Bank of N". Y 541, 542 
 
 Clift V. Barrow 770 
 
 Close V. Clark 450 
 
 Clute V. Fitch 89, 109 
 
 Glute V. Small 538, 539 
 
 Olute V. Wiggins 404 
 
 C. N. Bank v. Bell 371 
 
 C. N. Bank v. Seligman 877, 878 
 
 Coats V. Donnell 69 
 
 Cobb V. Knapp 267 
 
 Cobb V. Hatfield 690 
 
 rage. 
 
 Cobb V. Titus 778 
 
 Cobb V. West 130 
 
 Cochran v. Newton 204 , 
 
 Cochran v. Sherman 632 
 
 Cochrane v. Schryver 396, 445 
 
 Cock T. Moore 855 
 
 Coe V. Cassidy 79, 84 
 
 Coe V. Hobby 172, 173 
 
 Coe V. Tough 728 
 
 Coit V. Palmer 168 
 
 Coffee V. Brian 345 
 
 Coffin V. President, etc., G. R. H. 
 
 Co 264 
 
 Coggs V. Bernard 358, 360, 365 
 
 Cohen v. Dupont 181, 182 
 
 Cohen v. Frost 429 
 
 Colburn v. Woodworth 132 
 
 Cole V. Goodwin 42a, 431, 433 
 
 Cole V. Mann 476, 479 
 
 Cole V. Reynolds 348 
 
 Cole V. Savage 786 
 
 Coleman v. Beach 44 
 
 Coleman v. Cook 528 
 
 Coleman v. Eyre 21 
 
 Coleman v. First Nat. Bank 224 
 
 Coleman v. Fitzgerald Bros. Brew- 
 ing Co 154 
 
 Coleman v. Garrigues 198, 862 
 
 Coleman v. Livingston 394 
 
 Coleman v. Riches 255 
 
 Coleman v. Wade 495 
 
 Colemard v. Lamb 486, 487 
 
 Colgrove v. Tallman... 319, 484, 492 
 
 Collier v. Coates 868 
 
 Collins V. Bennett 382 
 
 Collins V. Hasbrouck 167 
 
 Collins V. Fhcenix Ins. Co 802 
 
 Collins V. Ralli 220, 659 
 
 Collyer v. Collyer 18 
 
 Colton V. Dunham 768 
 
 Columbia Bank v. Equitable As- 
 surance Society 634 
 
 Colvin V. Holbrook 272 
 
 Colwel V. Thompkins 241 
 
 Combs V. Bateman 727, 733, 741 
 
 Comfort V. Kiergted 649, 675 
 
 Comstock v.. Buchanan 230 
 
 Comer v. Cunningham 478 
 
 Commercial Bank v. Davy. . . 101, 120 
 
 Commercial Bank, etc., v. Norton, 206 
 
 217, 554, 555 
 
 Commercial Bank v. Warren, 208, 248 
 
 334 
 
 Commercial Bank v. Union Bank, 263 
 Commercial Bank of Buffalo v. 
 
 Kortright 279, 281 
 
 Commercial Banlc of Kentucky v. 
 
 Varnum 586 
 
 Commercial Nat. Bank of Penn- 
 sylvania V. Heilbronner 228 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 rage. 
 Conant v. American Rubber Tire 
 
 Co 201, 249 
 
 Conde V.Lee 820, 821 
 
 Conderman v. Smith 69, 70, 643 
 
 Condit V. Baldwin 774 
 
 Cone V. Niagara Fire Ins. Co 799 
 
 Congden v. Sanford • • • 19* 
 
 Conger v. Hudson River R. R. Co., 425 
 
 ^ 426 
 
 Conger v. Tradesman's Bank, 775, 796 
 
 Conger v. Van Aernum 18 
 
 ConUev V. Bond 229, 230, 233 
 
 Conkey v. Hart 99 
 
 Conklin v. Barton 306, 309 
 
 Conkling v. King ■■ ■ 601 
 
 Conkling v. Shelley 74, 98 
 
 Conklin v. White 160 
 
 Connah v. Sedgwick 883 
 
 Connecticut v. Jackson 757, 765 
 
 Conner v. Reeves 488, 505 
 
 Connor v. Reeves 56 
 
 Conover v. Mut. Ins. Co. of Al- 
 bany 207 
 
 Considerant v. Brisbane 224, 264 
 
 Constant v. University of Roch- 
 
 Gstcr ^^* 
 
 Consumers' Ice Co. v. Webster, 
 
 Son & Co 31 
 
 Conrow v. Little 438, 439 
 
 Conroy v. Warren 537 
 
 Continental Bank v. Tradesmen's 
 
 Bank 542 
 
 Couturier v. Hastie 642 
 
 Converse v. Kellogg 16 
 
 Converse v. Sickles 679 
 
 Conway v. Bush ' 650 
 
 Conway v. Starkweather 152 
 
 Cook V. Adams 251, 253 
 
 Cook V. Bennett 74 
 
 Cook V. Burnes 783 
 
 Cook V. Champlain, etc., Co 821 
 
 Cook V. Clark 778 
 
 Cook V. Colehan 528 
 
 Cook V. Farrall's Adm's 550 
 
 Cook V. Genesee M. Ins. Co 6 
 
 Cook V. Husted 613 
 
 Cook V. Litchfield 588 
 
 Cook V. Moseley 700, 702 
 
 Cook V. Satterlee 525, 527 
 
 Cook V. Soule 164 
 
 Cook V. Nathan 508, 509 
 
 Cooke V. Meeker 760 
 
 Cooke V. Millard.. 675, 730, 736, 738 
 
 739 
 
 Cookingham v. Lasher 339 
 
 Cooley V. Betts 237 
 
 Cooley V. Lobdell 869 
 
 Coonly V. Wood .520 
 
 Coombe v. Greene 390 
 
 Coone V. Eyre 299, 300 
 
 Page. 
 
 Cooper V. Barton 382 
 
 Cooper V. Burr 614, 615 
 
 Cooper V. Dedriek 8, 510, 563, 832 
 
 Cooper V. Willomatt 354 
 
 Coplay Iron Co. v. Pope. . . . 701, 704 
 
 705 
 
 Coppin V. Craig 438 
 
 Cordier v. Thompson 509 
 
 Corey v. White 498 
 
 Corlies v. Gumming 223, 244 
 
 Cornell v. Cornell 614 
 
 Cornell v. Masten 249 
 
 Cornell v. Moulton 97 
 
 Oornforth v. Rivett 453 
 
 Corning v. Colt 671, 073, 719 
 
 Corning v. Green 327 
 
 Corning v. Southland 210, 203 
 
 Cornwall v. Haight 648, 744, 74r, 
 
 Corrigan v. Sheffield 667 
 
 Cortelyou v. Lansing 371 
 
 Cortland Wagon Co. v. Lynch 533 
 
 Cossani v. Dunn 481 
 
 Costello V. Herbst 478, 628 
 
 Coster V. Dillworth 774 
 
 Coster V. Erie R. R. Co 5 
 
 Coster V. N. Y. & Erie R. R. Co. . . 629 
 Gostigan v. Mohawk, etc., R. R. 
 
 Co 131 
 
 Colta V. Carr 440 
 
 Cotter V. Bettner 338 
 
 Couch V. Farmers' Fire Ins. Co., 805 
 
 806 
 
 Coudert v. Cohn 156 
 
 Coulter V. Richmond 570 
 
 Counsel v. Vulture Mining Cn. . . 551 
 Courtney v. N. Y. City Ins. Co.. . 813 
 
 Oourtwright v. Stewart 738 
 
 Covel'l V. Hill. . 221, 443, 053, 659, 685 
 
 Covel V. Hitchcock 724 
 
 Coventry v. Barton 54 
 
 Cowdin V. Gottgetreu 856, S57 
 
 Cowee V. Cornell 12. 28. 553 
 
 Cowen V. Paddock 455 
 
 Cowen V. Village of West Trov. . 211 
 
 287 
 
 Cowenhoven v. Pfluger 774 
 
 Cowie V. Storm 521 
 
 Cowperthwaite v. Sheffield. . 57.^, 587 
 Cox V. Albany Brewing Co.. . 196, 206 
 
 207 
 
 Cox V. Sammis 159 
 
 Cox V. Stokes 690, 691 
 
 Cozine v. Graham 843 
 
 Coyk«ndall v. Constable . . . 492, 493 
 
 Coykendall v. Eaton 399, 404 
 
 Coyne v. Feiner 140, 142 
 
 Craft V. Brandow 76 
 
 Crafts V. Mott 485 
 
 Cragie v. Hadley 247 
 
 Cragin v. N. Y. C. R. R. Co 419 
 
TABLE OF CASES CITED. 
 
 XXX7 
 
 Page. 
 
 Craig V. Craig 612 
 
 Craig V. Parkis 506, 507, 565, 631 
 
 Cram v. Dresser 142, 183 
 
 Cram v. Hendricks 780 
 
 Cram v. Union Bank 639 
 
 Crandal v. Clark 42 
 
 Crandall v. Brown 108 
 
 Crandall v. Clark 744 
 
 Crane v. Dygert 763 
 
 Crane v. French 335 
 
 Crane v. GruenwaM 197, 198 
 
 Crane v. Hardman 761 
 
 Crane v. Hendricks 778 
 
 Crane v. Hubbel 774 
 
 Crane v. Powell 843 
 
 Crane v. Turner 631 
 
 Crans v. Hunter 14, 209 
 
 Crater v. Bininger 345 
 
 Craven v. Bloomingdale 291 
 
 Crawford v. Collins 311 
 
 Crawford v. Mail & Express Pub. 
 
 Co 135 
 
 Crawshay v. Homfray 441 
 
 Creamer v. Mitchell 501 
 
 Cregin v. Brooklyn Crosstown 
 
 E. R. Co 621 
 
 Cressey v. Sabre 69 
 
 Cresson v. Stout 827 
 
 Crippen v. Hudson 90 
 
 Crippen v. Thompson 54, 488 
 
 Crisfield v. Bogardus 78, 105 
 
 Crisfield v. Murdock 499, 500 
 
 Crofoot V. Bennett 654, 655 
 
 Cromelin v. N. Y. & Harlem E. R. 
 
 Co 438, 443 
 
 Cromwell v. Hewitt 573 
 
 Cromwell v. Lovett 599 
 
 Cromwell v. Stephens 396 
 
 Cronkite v. Wells 411, 416 
 
 Croninger v. Crocker 667 
 
 Crook V. Rindskopf 336. 879 
 
 Crooks V. Moore 648. 687, 688 
 
 Crooks V. Propp 501 
 
 Crookshank v. Burrell 739 
 
 Cropsey v. Sweeny 19 
 
 Crosby v. Nichols 347 
 
 Cross V. Andrews 403 
 
 Cross V. O'Donnell 722, 730 
 
 Cross V. Jackson 325, 326 
 
 Crouch V. Great Western R. R. 
 
 Co 415 
 
 Crouch V. Gutmann '. . 39 
 
 Crouch V. London & N. W. R. R. 
 
 Co 408, 409 
 
 Crouch V. Parker 165 
 
 Crounse v. Johnson 117 
 
 Crowley v. Cohen 799 
 
 Cruger v. Armstrong 537 
 
 Cruehley v. Clarence 523 
 
 Crutohley v. Mann 423 
 
 Culley V. Hardenburgh 13 
 
 Page. 
 
 Culver V. Sisson 86 
 
 Cuming v. Roderick 570 
 
 Cummings v. Morris 627 
 
 Cummings v. Williams 779 
 
 Cummins v. Agricultural Ins. Co., 812 
 
 Cumpston v. Haigh 439 
 
 Cumpston v. McNair . . . 314, 507, 568 
 
 Cunningham v. Hedge 481 
 
 Cunningham v. Jones 39, 128 
 
 Cunningham v. Spier 713 
 
 Currie v. Anderson 732 
 
 Curry v. Powers 612, 613, 614 
 
 Curtis V. Barrus 619 
 
 Curtis V. Delaware, etc., R. R. Co., 749 
 Curtis V. Leavitt. . . 25, 285, 788, 793 
 
 794, 880 
 
 Curtis V. Murphy 403 
 
 Curtis V. Smallnian 508, 509 
 
 Curtiss V. Miller 176 
 
 Cushman v. Addison 320 
 
 Cushman v. Bailey 306 
 
 Cushman v. Haynes 529 
 
 Cuthbert v. Haley 792 
 
 Cutter V. Mayor, etc., of N. Y. . . 753 
 
 Cuyler v. McCartney 880 
 
 Cuyler v. Sanford 776 
 
 Cuyler v. Stevens 588 
 
 D. 
 
 Dalton v. Daniels 446, 712 
 
 Dalrymple v. Hillenbrand . . . 572 
 
 Daly V. Stetson 626 
 
 Daly V. Wise 163 
 
 Damb v. Hoffman 171 
 
 Dana v. Fiedler... 627, 751, 755, 762 
 
 Dane v. Mallory 83, 100, 125 
 
 Danforth v. Dart 685 
 
 Danforth v. Schoharie Turnp. Co., 287 
 
 Daniels v. Pond 161 
 
 Dansey v. Richardson 397 
 
 Darby v. Darby 322 
 
 Darby v. Pettee 230 
 
 Darlington v. McCunn 858 
 
 Darrow v. Calkins 322 
 
 Darrow v. Family Fund Society. . 806 
 Darrow v. Wendelstadt. . . 77, 79, 80 
 Dater v. Troy Turnpike & R. R. 
 
 Co 292 
 
 Davenport v. Buckland 198 
 
 Davenport v. Gilbert 588 
 
 Davenport v. MoChesney 87 
 
 Davis V. Allen ' 318, 319, 343 
 
 Davis V. Beechstein 631, 660 
 
 Davis V. Bowsher 448 
 
 Davis V. Bly 571 
 
 Davis V. Garr 794, 795, 522 
 
 Davis V. MoCready 560 
 
 Davis V. Meeker 713 
 
 Davis V. Revnolds 264 
 
 Davis V. Shields 30, 729, 870 
 
 Davis V. Van Buren 486 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Davies v. Wilkinson 525 
 
 Davison v. Donadi 185 
 
 Davison v. Robertson 544 
 
 Davidson v. Hutchins 3.34 
 
 Davidson v. Westchester Gas- 
 
 Light Co 18 
 
 Dawks V. De Lorane 530 
 
 Day V. Dox 35 
 
 Day V. N. Y. C. R. R. Co 841 
 
 Day V. Pool. . 690, 701, 702, 708, 710 
 
 Day V. Swacldiammer 170 
 
 Dayton v. Trull 602 
 
 Deal V. Maxwell 737 
 
 Dean v. Clark 47 
 
 Dean v. Roesler 258 
 
 Dean v. Keate 381 
 
 Dean v. Whiton 6 
 
 Dearing v. HcKinnon Dash & 
 
 Hardware Co 886 
 
 Deegan v. Kilpatrick 455 
 
 Deeley v. Dwight. . . 68, 643, 649, 675 
 De Groff v. American Linen 
 
 Thread Co 293 
 
 Dechart v. Municipal El. Light 
 
 Co 45 
 
 Decker v. Boiee 631 
 
 Decker v. Judson 50 
 
 De Cordova v. Powter 309 
 
 De Fonclear v. Shottenkirk 657 
 
 De Forest v. Byrne 161 
 
 De Forest v. Frary 528 
 
 De Forest v. Fulton Fire Ins. Co.. 222 
 
 799 
 
 Defreeze v. Trumper 717 
 
 De Grove v. Metropolitan Ins. Co. 812 
 
 De Hierapolis v. Webber 267 
 
 Deifendorf v. Gage 704, 719 
 
 De Klyn v. Gould 456, 460 
 
 Delafield v. State of Illinois, 196, 206 
 
 Delaney v. Valentine 877, 879 
 
 De Lancy v. Ganong 179 
 
 De Lavallette v. Wendt 751 
 
 Delaware Bank v. Jarvis... 718, 720 
 Delaware County v. Diebold Safe 
 
 & Lock Co 625 
 
 Deming v. Colt 336 
 
 De Mott V. Laraway 406, 422 
 
 Denick v. Hubbard 492 
 
 Denniston v. Bacon 556 
 
 Dennistoun v. Hubbell 169 
 
 Denny v. Manhattan Co 272 
 
 Deobold v. Oppermann 503 
 
 De Ridder v. McKnight. . . . 647, 663 
 
 De Rider v. Sehermerhorn 565 
 
 Des Arts v. Leggett. 607, 741 
 
 Desmond v. Rice 607 
 
 Despard v. Walbridge 63, 147 
 
 Devendorf v. Beardsley 256 
 
 Devereux v. Barclay 412 
 
 Devlin v. Devlin 313 
 
 Page. 
 Devlin v. Greenwich Savings 
 
 Bank 618 
 
 Devlin v. Mayor 625, 620, 753 
 
 Devlin v. O'Neill 479 
 
 Devlin v. Woodgate 857 
 
 Devoe v. Brandt 678, 679, 682 
 
 De Witt V. Walton, 259, 261, 533, 756 
 
 De Wolf V. .Johnson 787 
 
 De Wolf V. Murray 580 
 
 De.xter v. Bevins 649, 653 
 
 Dexter v. Norton 27 
 
 Dexter v. Syracuse, B. & N. Y. R. 
 
 R. Co 429 
 
 Dey V. Dox 740 
 
 Dey V. Greenebaum 168 
 
 Dey V. Poughkeepsie Mut. Ins. Co. 813 
 
 Deyo V. Bleakley 150 
 
 Deyo V. Thompson 554 
 
 De'zell V. Odell 435 
 
 De Zeng v. Fyfe 557 
 
 Dibble v. Cor'bett . , 668 
 
 Dickinson v. City of Poughkeep- 
 sie 211 
 
 Dickinson v. Edwards 750, 794 
 
 Dickinson v. Valpy. . . . 300, 307, 332 
 
 Dieffenbach v. Roch 816 
 
 Dike V. Erie Railway 749 
 
 Dillingham v. Bolt 120 
 
 Dillingham v. Ladue 120 
 
 Dinehart v. Wilson 144, 310 
 
 Dininny v. Fay 623 
 
 Disbrough v. Neilson 647, 673 
 
 D'lvernois v. Leavitt 882, 883 
 
 Divine v. McCormick 709 
 
 Divver v. McLaughlin 97 
 
 Dix v. Shaver 278 
 
 Dix V. Van Wyck 782, 788, 789 
 
 Dixon V. Frazee 856 
 
 Dixon V. Hammond 411 
 
 Doane v. Eddy 107 
 
 Dob V. Halsey 306 
 
 Dobbin v. Bradley 486 
 
 Dodge V. McKechnie 877 
 
 Dodge V. Potter 103, 104, 117 
 
 Doe V. Bateman 166 
 
 Doe V. Brown 796 
 
 Doe V. Gooch 780, 796 
 
 Doe V. Laming 396 
 
 Doherty v. Matsell 145 
 
 Doig V. Haverly 93 
 
 Doll v. Noble 128, 135 
 
 Dollard v. Roberts 187 
 
 Dollfus v. Frosch 200, 596 
 
 Dolittle V. Eddy 144 
 
 Donlon v. English 311 
 
 Donnelly v. City of Brooklyn .... 760 
 
 Donner v. Ogilvie 187 
 
 Donohue v. Kendall 187 
 
 Donovan v. Frazier 4C0 
 
 Donovan v. Will son 7,33 
 
 Doorman y, Jenkins 353, 360, 377 
 
TABLE OF CASES CITED. 
 
 XXXVll 
 
 Page. 
 
 Doolittle V. Dininny 57 
 
 Doolittle V. Naylor 834 
 
 Dorlon v. Christie 493, 494 
 
 Dorsheimer v. Nichols 630 
 
 Dorthy v. Servis 78, 105 
 
 Dorr V. Barney 141 
 
 Dorr V. N. J. Steam Nav. Co. . . 433 
 
 434 
 
 Dorranee v. Dean 220 
 
 Dorris v. Sweeny 277 
 
 Doty V. Miller 240, 617 
 
 Doubleday v. Kress 198 
 
 Doughty V. O'Donnell 386 
 
 Doughty V. Manhattan Brass Co.. 728 
 Douglas V. Chesebrough Building 
 
 Co 189 
 
 Douglass V. Howland . . 7,8, 506, 509 
 
 832 
 
 Douglass V. Rathbone 509 
 
 Douglass V. Wilkeson 522, 566 
 
 Douuee v. Dow 701, 702, 707 
 
 Downer v. Thompson. . . 653, 671, 673 
 
 719 
 
 Downs V. Ross 737 
 
 Dows V. Green 202 
 
 Dows V. Kidder 660 
 
 Dows V. Morewood 441, 442, 655 
 
 Dows V. Perrin 443, 659, 685 
 
 Dox V. Dey 740 
 
 Doxlieimer v. Gautier 618 
 
 Doyle V. St. James Church 756 
 
 Drake v. Seaman. . 727, 728, 829, 830 
 
 Drake v. Smith 022 
 
 Draper v. Jones 652, 742 
 
 Draper v. Romeyn 496 
 
 Draper v. Snow 831, 8.34, 856 
 
 Draper v. Treseott 497, 784 
 
 Dresser v. Ainsworth 717 
 
 Dresser V. Dresser 836, 846 
 
 Driscoll V. West Bradley & Cary 
 
 Mfg. Co 280, 660 
 
 Dry Dock Bank v. American Life 
 
 ins. Co 767, 777, 778, 780 
 
 Drummond v. Burrell 840, 841 
 
 Dubois V. Delaware, etc., Co., 138, 267 
 
 270 
 
 Dubois V. Kelly 820 
 
 Du Bois V. Lamson 306 
 
 Duclos V. Cunningham 242 
 
 Dudley v. Danforth 86, 885 
 
 Dudley v. Hawley 92 
 
 Duff V. Budd 415 
 
 Duff V. Hart 184 
 
 Duffee V. Mason 700, 702 
 
 Duffield V. Scott 55, 504 
 
 Duffy V. O'Donovan 843 
 
 Duffy V. Wunsch 17, 854 
 
 Dunbar v. Williams 20 
 
 Duncan v. Blundell 391 
 
 Duncan v. Brennan 371 
 
 Duncan v. C. M. Ins. Co 264 
 
 Page. 
 
 Duncan v. Surrey Canal Co 291 
 
 Dung V. Parker. . . 268, 269, 272, 869 
 
 Dunham v. Dey 796 
 
 Dunham v. Gould 796 
 
 Dunham v. Griswold 14 
 
 Dunham v. Mann 38, 662, 774 
 
 Dunham v. Silverstein 114 
 
 Dunham v. Waterman. . 882, 883, 884 
 
 Dunlap V. Hunting 357, 442 
 
 Dnnlop V. Richards 232 
 
 Dunn V. Commercial Bk. of Buf- 
 falo 281 
 
 Dunn V. Wright 220 
 
 Dunning v. Leavitt 853 
 
 Dunning v. Roberts . . . 248, 250, 251 
 
 Dunning v. Stearns 71, 98 
 
 Dunning v. Stevens 80 
 
 Durgin v. Ireland 626 
 
 Durkee v. Marshall 550 
 
 Durkin v. Cranston 544 
 
 Duplex Safety Boiler Co. r. Gar- 
 den 135 
 
 Durando v. Wyman 168, 169 
 
 Durbrow v. McDonald 653, 679 
 
 Duryea v. Bonnell 662 
 
 Duryee v. Lester 235 
 
 Dusenbury v. Ellis 269 
 
 Dusenbury v. Hoyt 11 
 
 Dustan v. McAndrew. . 687, 688, 723 
 
 Dutcher v. Swartwood 73 
 
 Dutchess Co. v. Hardtng 676 
 
 Duvoll V. Wilson 10 
 
 Dutchess Cotton Manufactory v. 
 
 Davis 527 
 
 Dwight V. Germania Life Ins. Co. 42 
 
 Dye V. Kerr 19 
 
 Dyett V. Hyman 491 
 
 Dyett V. Pendelton 180, 181 
 
 Dykers v. Townsend 727, 834, 870 
 
 E. 
 
 Eagle v. White 422 
 
 Eagle Bank v. Rigney . . . . . 776 
 
 Eagleson v. Shotwell 780 
 
 Earl V. Crane 28 
 
 Earl V. Peek 12, 28, 553 
 
 Earle v. Robinson •. . 481 
 
 Early v. Mahon 782 
 
 Early v. Reed 329 
 
 East River Bank v. Butterworth, 554 
 
 555 
 Eastern Brewing Co. v. Feist. ... 112 
 
 Eastman v. Shaw 780, 781 
 
 Easterly v. Barber 6, 484 
 
 Eastwood v. Kenyon 10 
 
 Eaton V. Alger 773 
 
 Ebaugh V. German Reformed 
 
 Church 293 
 
 Eccleston v. Ogden 494 
 
 Eckhert v. Ellis 596 
 
 Edgell V. Hart 73, 98, 108, 883 
 
X.X.WIU 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Edgerly t. Bush 82 
 
 Edgerton v. Page 180, 181 
 
 Edgerton v. Thomas 195 
 
 Edmiston v. Biucker 87 
 
 Eclmonds v. Abeel 271 
 
 Edmonston v. Hartshorne 263 
 
 Edmunds v. Groves 556 
 
 Edson V. Weston 355, 356 
 
 Ed-wards v. Candy 180 
 
 Edwards v. Dick 572 
 
 Edwards v. Dooley : . 201, 249 
 
 Edwards v. Farmers' Fire Ins. 
 
 Co 870 
 
 Edwards v. Great Western E. R. 
 
 Co 408 
 
 Egan V. Kieferdorf 240 
 
 Egan V. Mut. Ins. Co. of Albany, 803 
 
 Ehle V. Judson 10, 11, 865 
 
 Eichner v. Bowery Bank 291 
 
 Eichold V. Tiflfany 503 
 
 Eisenlord v. Dillenback .582, 587 
 
 Elder v. Rouse 86 
 
 Eldrcd V. Eames 752 
 
 Elford V. Teed ■. 579, 580 
 
 Elliot V. Dudley 330, 334 
 
 Ellis V. Craig 764 
 
 Ellis V. MeCormick 164 
 
 Ellis V. Willard 424 
 
 Ellison V. Creed 676 
 
 Elliston V. Berryman 54 
 
 Elmira, etc.. Rolling Mill Co. v. 
 
 Harris 298, 316, 318, 749 
 
 Blsee V. Gatward 358 
 
 Elting V. Vanderlyn 17 
 
 Elwell V. Chamberlain. . 227, 257, 777 
 
 792 
 
 Elwell V. Skiddy 500 
 
 Elwood V. Diefendorf . . 493, 496, 497 
 498, 501, 599 
 
 Elwood V. Monk 852 
 
 Ely V. Carnly. . 97, 120, 121, 122, 124 
 
 Ely V. Cooke 449, 881 
 
 Ely V. Fahy 164, 186, 188 
 
 Ely V. Ormsby 733 
 
 Emery v. Baltz 496 
 
 Emery v. Dunbar 414 
 
 Empire State Type Founding Co. 
 
 V. Grant 649, 650 
 
 England v. Davidson 25 
 
 Engle V. Owen 161 
 
 English V. Hanford 481 
 
 Ennis v. Harmony Fire Ins. Co.. 801 
 
 Enoch V. Wehrkamp 245 
 
 Ensign v. Wands 307 
 
 Episcopal Church, etc. v. Varian, 296 
 Eppens, Smith & Wiemann Co. v. 
 
 Littlejohn 667 
 
 Equitable Co-operative Foundry 
 
 Co. V. Hersee 689 
 
 Erben v. Lorillard 867 
 
 Erichs v. De Mill 518, 530 ' 
 
 Page. 
 Erie County Savings Bk. v. Coit, 483 
 
 Ernst V. Crosby 156 
 
 Erwin v. Downs 572 
 
 E. S. T. F. Co. V. Grant, 476, 477, 480 
 
 Esdaile v. Oxenham 450 
 
 Esdaile v. Wuytaek 347 
 
 Esterly v. Cole 754 
 
 Estervez v. Purdy 774 
 
 Etheridge v. Ladd 585 
 
 Ethelridge v. Osborn 185 
 
 Etna Fire Ins. Co. v. Tyler 812 
 
 Evans v. Conklin 142, 505 
 
 Evans v. Evans 320 
 
 Evans v. Harris 732 
 
 Evans v. Root 212 
 
 Evans v. Warner 302, 314 
 
 Evans v. Wells 258 
 
 Evans ville Nat. Bk. v. Kaufmann, 483 
 501, 510, 565, 626 
 
 Everet v. Parks 664 
 
 Everit v. Strong 337, 568 
 
 Everitt v. N. Y. Eng. & Printing 
 
 Co 836 
 
 Everson v. Carpenter 11 
 
 Ev«rson v. Gehrman 335 
 
 Everson v. Gere 563 
 
 Evertson v. Sawyer 1.51. 153 
 
 Excelsior Grain Binder Co. v. 
 
 Stayner 278 
 
 Excelsior Steam Power Co. v. 
 
 Halstead 154 
 
 Exchange Bank v. Monteath, 206, 208 
 
 2.il 
 
 Ex parte Decker 50 
 
 Ex parte Holbrook 205 
 
 Ex parte Kerwin 50 
 
 Ex parte Owen 314 
 
 F. 
 
 Fahy v. North 41, 243 
 
 Fairbank Canning Co. v. Metzger, 099 
 700, 701, 709 
 
 Fairbanks V. Bloomfield 72. Oil 
 
 Fairbanks v. Sargent 631, 634 
 
 Fairchild v. McMahon 2.i7 
 
 Fairchild v. Ogdensburgh C. & R. 
 
 E. Co 519, 581 
 
 Fairfax v. N. Y. C, etc., R. R. 
 
 Co 394, 429 
 
 Faith V. Richmond 3,31 
 
 Fake v. Eddy 753, T.-^ri 
 
 Fake v. Smith 7lg 
 
 Fales V. McKeon 721 
 
 Fallkill Nat. Bk. v. Sleight, 493, 494 
 
 Fancher v. Goodman 692, 697 
 
 Fancourt v. Thorne 530 
 
 Fanning v. Consequa 749 
 
 Parian v. Wiegel 618 
 
 Farley v. Cleveland 852, 8.5.5 
 
 Farmer v. Medico-Legal Journal 
 
 Assn 30 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Page. 
 Farmers' Bk. of Amsterdam v. 
 
 Blair 14 
 
 Farmers & Mechanics' Nat. Bk. v. 
 
 Atkinson 659 
 
 Farmers', etc., Bk. v. Butchers', 
 
 etc., Bank 200, 251, 252 
 
 Farmers' Bank v. Cownn 84 
 
 Farmers & Mechanics' Bank of 
 
 Genesee v. Joslyn 783 
 
 Farmers', etc., Bank v. Evans ... 51 
 Farmers', etc.. Bank v. Haight. . . 287 
 Farmers & Merchants' Nat. Bk. v. 
 
 Lang 65, 496 
 
 Farmers & Mechanics' Bank v. 
 
 Lang 496 
 
 Farmers', etc., Bank v. Logan. . . 229 
 Farmers & Citizens' Nat. Bk. v. 
 
 Noxon 556 
 
 Farmers' Loan, etc., Co. v. Hen- 
 
 drickson 91, 113, 120, 826 
 
 Farmers' Loan & Trust Co. v. 
 
 Long Branch Imp. Co 68 
 
 Farmers' Loan, etc., Co. v. Wal- 
 worth 210 
 
 Farmers' L. & T. Co. v. Wilson. . 272 
 
 273 
 Farnworth v. Packwood .... 400, 403 
 
 Farquhar v. Morris 759 
 
 Farrar v. Chauffetete 827 
 
 Farrell v. Hildreth 92 
 
 Farrington v. Caswell 884 
 
 Farrington v. Frankfort Bank. . 536 
 
 556 
 
 Fash V. Kavanagh 189 
 
 Fassett v. Smith 96, 680, 683 
 
 Faulkner v. Hart 423 
 
 Favor v. Philbrick 422 
 
 Fay V. Ames 505 
 
 Fay v. Halloran 172 
 
 Feeter v. Heath 750 
 
 Feeter v. Weber 14 
 
 Feldman v. Beier 599 
 
 Feldman v. McGraw 784 
 
 Fell V. Knight 398 
 
 Fellows V. Commissioners of 
 
 Oneida 255, 774 
 
 Fellows V. Hyring 124 
 
 Fellows V. Prentice . . . 487, 493, 494 
 
 495, 502 
 
 Fenly v. Stewart 727, 729 
 
 Fenn v. Bittleston 354, 382 
 
 Fenner v. Buffalo & State Line 
 
 R. R. Co 425 
 
 Fenton v. Emblers 836 
 
 Ferguson v. Baker 345 
 
 Ferguson v. Hamilton, 790, 791, 792 
 
 Ferguson v. Lee 83, 90 
 
 Ferffuson v. Union Furnace Co.. 61 
 
 ^62 
 
 Fernan v. Doubkday 784 
 
 Ferren v. O'Hara 739 
 
 Page. 
 
 Ferris v. Bond 526 
 
 Ferris v. Hard 748 
 
 Ferris v. Paris 230 
 
 Ferry v. Stephens 612 
 
 Fidelity & Casualty Co. v. Wells.. 509 
 
 Fielden v. Lahens 332 
 
 Fieldings v. Mills 441 
 
 Fiese v. Wray 723 
 
 Field v. Ingraham 115 
 
 Field V. Mayor of N. Y. . . 6, 625, 634 
 
 Field V. Moore 655 
 
 Field V. Munson 44 
 
 Fifth Nat. Bank v. Woolsey 502 
 
 Figueira v. Lerner 201, 249 
 
 Fink v. Cox 612 
 
 Filkins v. Whyland 722 
 
 Firemen's Ins. Co. v. Ely. . . 771, 775 
 Firemen's Ins. Co. v. Sturges. . . . 775 
 First Baptist Church v. Bigelow, 864 
 First Baptist Church v. Brooklyn 
 
 Fire Ins. Co 294 
 
 First Nat. Bk. v. Fourth Nat. Bk. 214 
 
 First Nat. Bk. v. Gallaudet 303 
 
 First Nat. Bk. v. Green 556 
 
 First Nat. Bk. v. Ocean Nat. Bk., 351 
 
 352 
 
 First Nat. Bk. v. Staples 309 
 
 First Nat. Bk. v. Stuetzer 533 
 
 First Nat. Bk. v. Wallis 533 
 
 First Nat. Bk. v. Wood 596 
 
 First Nat. Bk. of Ballston Spa v. 
 
 Ins. Co. of N. A 803 
 
 First Nat. Bk. of Batavia v. Ege, 228 
 First Nat. Bk. of Chittenango v. 
 
 Morgan 330 
 
 First Nat. Bk. of Jersey City v. 
 
 Leach 542 
 
 First Nat. Bk. of Toledo v. Shaw, 222 
 
 227 
 Fish Eddy Chemical Co. v. Ste- 
 vens 735 
 
 Fisher v. Clisbee 406 
 
 Fisher v. Fredenhall 690 
 
 Fisher v. Saffer 824 
 
 Fishkill Savings Inst'n v. Nat. 
 
 Bank 257 
 
 Fishkill Savings Inst. v. Nat. Bk. 
 
 of Fishkill 291 
 
 Fisk V. Newton 422 
 
 Fister v. La Rue 206^ 207, 29."? 
 
 Fitch v. Armour 162 
 
 Fitch V. Beach 737 
 
 Fitch V. Hall 308 
 
 Fitch V. Humphrey 124 
 
 Fitch V. Snedaker 25, 30 
 
 Fitzhugh V. Wiman 409 
 
 Flalierty v. Greenman 429 
 
 Flanders v. Crolius 856 
 
 Fleeraan v. McKean 657 
 
 Fleetham v. Reddick 68, 69 
 
 Flewellin v. Rave 377 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Flight V. Chaplin 768 
 
 Flint V. Corbitt 739 
 
 Flour City Nat. Bk. v. Miller. . . 777 
 
 Fobes V. Shattuck 160 
 
 Foden v. Sharp 577, 581 
 
 Foden v. Slater 749 
 
 Foley V. Foley 752 
 
 Foley V. Manufacturers' Fire Ins. 
 
 Co 798, 800 
 
 Follard v. Wallace 135 
 
 Fonda v. Gross 95, 884 
 
 Foot V. Marsh 656 
 
 Foote V. Storrs 394 
 
 Ford V. Cobb 824, 825 
 
 Ford V. Sherman 260 
 
 Ford V. Stuart 629 
 
 Ford V. Williams, 73, 74, 85, 109, 112 
 
 Forgotson v. Cragin 717 
 
 Forgotson v. McKeon 777 
 
 Forman v. Forman . . . . , 757 
 
 Fort Edward, etc.. Plank Road 
 
 Co. V. Payne 278 
 
 Forth V. Simpson 440 
 
 Fortunato v. Patten 625, 634 
 
 Forward v. Cont. Ins. Co 809 
 
 Forward v. Pittard 418 
 
 Foster v. Mott 90 
 
 Foster v. Oldham 168 
 
 Foster v. Persch 225 
 
 Foster v. Pettibone 383, 638, 676 
 
 Foster v. Preston 217 
 
 Foster v. Schneider 459 
 
 Fowler v. Clearwater 860 
 
 Fowler v. Dorlon 403 
 
 Fowler v. Hoschke 240, 241 
 
 Fowler v. N. Y. Gold Exch. Bk.. . 210 
 Fowler v. N. Y. Indemnity Ins. 
 
 Co 798, 799, 802 
 
 Fox V. Abbott 188 
 
 Fox V. Burns 79, 117 
 
 Fox V. Drake 218 
 
 Fox V. McGregor 440, 445 
 
 Fox V. Parker 493 
 
 Fox V. Wabash Ey. Co 432 
 
 Foy V. Troy & Boston R. R. Co.. 623 
 
 Francois v. Oeks 390 
 
 Frank v. Batten 476, 479 
 
 Frank v. N. Y., L. E. & W. R. R. 
 
 Co 168 
 
 Trank v. Wessels 608 
 
 Frankfurter v. Home Ins. Co.... 813 
 Franklin v. Brown . . . 163, 186, 187 
 
 Franklin v. Hosier 438 
 
 Franklin v. Neale 372, 378 
 
 Franklin v. Robinson 327 
 
 Franklin Nat. Bk. v. Newoombe.. 373 
 
 374, 375 
 
 Frascherieris v. Henriquies 725 
 
 Eraser v. WyckoflF 242 
 
 Frear v. Hardenberg 19 
 
 Trear v. Sweet 631 
 
 Page. 
 
 Freeland v. Southworth 824 
 
 Freeman v. Auld 630, 852 
 
 Freeman v. P'ulton Fire Ins. Co. . . 798 
 
 Freeman v. Newton 623 
 
 Freeport Bank v. Hagemeyer . . . . 781 
 
 French v. Bauer 458 
 
 French v. Hoflfmire 781 
 
 French v. Kennedy 758, 764 
 
 French v. Stevenson 632 
 
 French v. Shotwell 788 
 
 Fried v. New York Cent. R. R. 
 
 Co 622 
 
 Friedman v. Bruner 774 
 
 Friedman v. Breslin 401 
 
 Friend v. Jetter 242 
 
 Frink v. Green 8 
 
 Frisbie v. Larned 600 
 
 Fromont v. Coupland 345 
 
 Frost V. Ackron Iron Co 154 
 
 Frost V. Mott 72, 77 
 
 Frost V. Saratoga Mut. Ins. Co. . . 807 
 
 Frost V. Warren 73 
 
 Frost V. Benedict 142 
 
 Froude v. Bishop 497 
 
 Fryatt v. Sullivan Co 824 
 
 Frye v. Lockwood 270, 271 
 
 Fuller V. Acker. . 79, 81, 97, 100, 102 
 
 Fuller V. Kemp 601 
 
 Fuller V. Negus 494 
 
 Fulton V. Matthews 492, 496 
 
 Fulton Bank v. Benedict 295 
 
 Fulton Bank v. N. Y. & Sharon 
 
 Canal Co 295 
 
 Furman v. Haskin 582 
 
 Furman v. Union Pacific R. R. 
 
 Co 411 
 
 G. 
 
 Gage V. Parker 639 
 
 Gahn v. Niemcewicz 493, 495 
 
 Gale v. Miller 332 
 
 Galen v. Brown 76 
 
 Gallagher v. White 564 
 
 Gallagher T. Vought 18 
 
 Gallagher v. Nichols 562, 630 
 
 Galle v. Tode 884 
 
 Gallery v. Prindle 529 
 
 Galvin v. Prentice 841, 842 
 
 Gallup V. Perue 751 
 
 Gamble v. Cuneo 486 
 
 Gamble v. Queens Co. Water Co.. 233 
 
 Gammon v. Schmoll 576 
 
 Gannon v. McGuire. . . 610, 613, 615 
 
 Gansevoort v. Kennedy 339 
 
 Ganson v. Tift 167 
 
 Ganz V. Lancaster 784, 788 
 
 Garbutt v. Smith 695 
 
 Gardner v. Clark 40 
 
 Gardner v. Finley 825 
 
 Gardner v. Keteltas 159, 160 
 
 Gardner v. Lane 640 
 
TABLE or CASES CITED. 
 
 xli 
 
 Page. 
 Gardner v. McEwen.. 72, 73, 98, 109 
 
 Gardiner v. Suydam 245 
 
 Gardenier v. Tubbs 884 
 
 Garfield Nat. Bk. v. Col well, 536, 554 
 
 Garner v. Hannah 191 
 
 Garniss v. Gardiner 758 
 
 Garr v. Martin 497 
 
 Garrigue v. Loesoher 13, 632 
 
 Garvey v. Dung 255 
 
 Gaskell v. Beard 460 
 
 Gates V. Beecher . . . . : 583 
 
 Gates V. Brower 195 
 
 Gates V. Davenport 133, 135, 136 
 
 Gates V. McKee 502, 831 
 
 Gay V. Siebold 311 
 
 Geary v. Physic 532 
 
 Geer v. Archer 10, 11, 16 
 
 Geismer v. L. S. & M. S. R. Co.. 425 
 
 426 
 
 Gellespie v. Mayor, etc 764 
 
 Genges v. Genges 450 
 
 Genet v. Howland 374 
 
 Genin v. Tompkins 668 
 
 George v. Clagett 447 
 
 George v. Surrey 532 
 
 G«orge V. Tallman 639 
 
 Geortner v. Trustees of Canajo- 
 
 harie . 568 
 
 Gerding v. Haskin 242 
 
 Gerken v. Smith 171 
 
 German-American Bank v. At- 
 
 water 538, 540, 587 
 
 German-American Bk. v. Milli- 
 
 man 583 
 
 Gerwig v. Sitterly 783 
 
 Gerould v. Wilson 503 
 
 Getty V. Binsse 485, 486 
 
 Gibbon v. Paynton 420 
 
 Gibbs V. Coykendall 394 
 
 Gibbs V. Hanchette 460 
 
 Gibbs V. Long Island Bank 281 
 
 Giblin v. Nat. Steamship Co 419 
 
 Gibson v. Culver 422, 424 
 
 Gibson v. Lupton 300 
 
 Gibson v. Minet 522, 523 
 
 Gibson v. Renne 9, 496 
 
 Gibson v. Tobey 651, 860 
 
 Gihon V. Stanton 266 
 
 Gilbert v. Danforth 551 
 
 Gilbert v. Manchester Iron Co... 281 
 
 367 
 
 Gilbert v. Marsh 492 
 
 Gilbert v. N. Y. C. & H. R. R. R. 
 
 Co : 649 
 
 Gilbert v. Warren 770, 777 
 
 Gilbert v. Wiman 52, 488 
 
 Gildersleeve v. Landon 113 
 
 Gile v. Libby 404 
 
 Gilhooley v. N. Y. & Savannah 
 
 Steam Navigation Co 431 
 
 Gilhooley v. Washington 183 
 
 Page. 
 
 Gilkinson v. Third Ave. R. R. Co. 612 
 
 614, 615 
 
 Gill V. Brown 218 
 
 Giles V. O'Tool 159 
 
 Gillespie v. Torrance 186 
 
 Gillett V. Balcom 194, 826 
 
 Gillet V. Bank of America 373 
 
 Gillett V. Averill 769, 778, 779 
 
 Gillett V. Hill 547 
 
 Gillett V. Mawman 388 
 
 Gillet V. Van Rensselaer 752 
 
 Gillis V. Space 131 
 
 Gilmore v. Ontario Iron Co 140 
 
 Gilpin V. Endenby 315 
 
 Gilsey v. Wild 12 
 
 Given v. Driggs 55, 504 
 
 Ginther v. Richmond 879 
 
 Glacius V. Black 39 
 
 Glasco V. N. Y. C. R. R. Co 429 
 
 Glaser v. N. Y. Physicians' Mut. 
 
 Aid Assn 759 
 
 Gleadell v. Thomson 415 
 
 Gleason v. Morrison 382 
 
 Glen V. Whitaker 664 
 
 Glenn v. Garth 278 
 
 Glenn v. Rossler 38 
 
 Globe Mills Co. v. Quinn 821 
 
 Glover v. Tuck 347 
 
 Gluckman v. Kleiman 443 
 
 Godard T. Gould 68, 823 
 
 Goddard v. Hodges 345 
 
 Godin v. Bank of Commonwealth, 520 
 
 Goelth v. White 692, 695, 868 
 
 Goertner v. Trustees, etc 884 
 
 Goit v.Nat.Proteetionlns.Co. 808, 813 
 
 Golden v. Manning 422 
 
 Goldberg v. Lavinski 845 
 
 Goldberg v. Mittler 154 
 
 Goldrich v. Ryan 713 
 
 Goldsmid v. Lewis Co. Bank 557 
 
 Goode v. Harrison 300 
 
 Goodman v. Niblack 624 
 
 Goodrich v. Gillies 460 
 
 Goodrich v. Jones 824 
 
 Goodrich v. Thompson 211 
 
 Goodsell V. Myers 11, 59 
 
 Goodwin v. Bayerle 94, 112 
 
 Goodwin v. Eelly 109 
 
 Goodwin v. Kerker 1 33 
 
 Goodwin v. Kirker 386. 392 
 
 Goodwin v. Holbrook.. 550, 552. Rfi9 
 
 Goodwin v. Simonson 4(12 
 
 Goodwin v. Wertheimer 680 
 
 Goodyear v. Vosburgh S67 
 
 Goodyear v. Watson 1 08 
 
 Goold V. Chapin 4^ 124 
 
 Gordon v. Buchanan ^06 
 
 Gorman v. Williams 441 
 
 Goss V. Watlington 506 
 
 Gossler v. Sohepler 723 
 
 Gottsberger v. Radway 832 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Gough V. Staats 541, 584 
 
 (roulding V. Davidson 10, 11 
 
 Gould V. Cayuga County Nat. Bk. 690 
 
 693 
 
 Gould V. Gould 230, 314 
 
 Gould V. Moring 831, 834 
 
 Goulet V. Asseler 75, 90 
 
 Graham v. Chrystal 750 
 
 Graham v. Fireman's Ins. Co 803 
 
 Graham v. Negus 494 
 
 Grandin v. Le Roy 558 
 
 Grangiac v. Arden 613 
 
 Grant v. Ellieott 554, 555 
 
 Grant v. Griffith 475 
 
 Grant v. Hotchkiss 509 
 
 Grant v. Skinner 67 
 
 Grant v. Smith 486 
 
 Grapel v. Hodges 273 
 
 Graser v. Stellwagen 337 
 
 Gratz V. Bayard 340 
 
 Graves v. Berdan 164 
 
 Graves v. Brinkerhoff 639 
 
 Graves v. Friend 600 
 
 Graves v. Porter 170 
 
 Graves v. Spier 622 
 
 Gray v. Barton 30, 610, 612 
 
 Gray v. Central E. R. Co. of N. J. 751 
 
 Gray v. Davis 732 
 
 Gray v. Green 631 
 
 Gray v. Kaufman Dairy, etc., Co. 174 
 
 Gray v. Lessington 694 
 
 Great Western Turnpike Co. v. 
 
 Shafer 837 
 
 Greenly v. Hopkins 763 
 
 Greenwood v. Brink 305 
 
 Greenwood v. Spring 233 
 
 Greenwich Ins. Co. v. Oregon Imp. 
 
 Co 599 
 
 Gregg V. Pierce 25 
 
 Gregory v. Hitchcock Pub. Co. . . . 534 
 
 Gregory v. Stryker 384, 388, 676 
 
 Gregory v. Thomas, 93, 101, 112, 120 
 Green v. Armstrong, 16, 866, 867, 871 
 
 Green v. Brown 768 
 
 Green v. Carrill 611 
 
 Green v. Deakin 330 
 
 Green v. Goings 577, 581 
 
 Green v. Green 60 
 
 Green v. Hart 629 
 
 Green v. Miller 257 
 
 Green v. Kemp 787 
 
 Green v. Schroeder 45 
 
 Greene v. Northern Steamship Co. 836 
 
 Greene v. Warwick 631 
 
 Greenslade v. Dower 332 
 
 Grennell v. Cook 398, 399 
 
 Gridley v. Dole 345 
 
 Griffey v. N. Y. Cent. Ins. Co.. . . 810 
 
 Griffin v. Baust 140 
 
 Griffin v. Cranston 881 
 
 Page. 
 
 Griffin v. Marquardt 78 
 
 Griffin v. Prudential Ins. Co 629 
 
 Griffith V. Reed 526 
 
 Griffith v. Robertson 507 
 
 Griffiths V. Hardenbergh, 44, 491, 753 
 
 Grimes v. Hillenbrand 29 
 
 Grinnell v. Buchanan 217 
 
 Grinnell v. Cook 440, 444, 445 
 
 Grinnell v. Kiralfy 135 
 
 Grinnell v. Schmidt 264 
 
 Grippin v. Weed 460 
 
 Griswold v. Haven 250 
 
 Griswold v. Sheldon 109 
 
 Griswold v. Waddington 341 
 
 Groat V. Gile 654, 656 
 
 Groat V. Rees Ill 
 
 Grosvenor v. N. Y. C. & H. R. R. 
 
 R. Co 416 
 
 Grosvenor v. Phillips 245 
 
 Grouse v. Wolf 689 
 
 Grover v. Wakeman 881 
 
 Grow V. Garlock 319, 496 
 
 Grymes v. Hone 610, 618, 619 
 
 Guckenheimer v. Angevine 693 
 
 Guggenheimer v. Gieszler 749 
 
 Guilford v. Mulkin 599 
 
 Guillaume v. Hamburgh & Am. 
 
 Packet Co 412 
 
 Gulwillig V. Zuberbier 664 
 
 Gurney v. Atlantic & Great West- 
 ern R. Co 711 
 
 Gurnsey v. Rexford 757 
 
 Guy V. Oakley 223 
 
 Guyon T. Lewis 270 
 
 H. 
 
 Haas V. Roat 305 
 
 Racket v. Campbell 625 
 
 Hackett v. Stanley 303, 305 
 
 Haeket v. Tilley 491 
 
 Haekley v. Patrick 342 
 
 Hackney v. Vrooman 612, 614 
 
 Hedges v. H. R. R. R. Co 431 
 
 Haggerty v. Allaire Works 16 
 
 Hagadorn v. Lang 870 
 
 Hague V. Porter 664 
 
 Hahenfeld v. Wolff 197 
 
 Haines v. Thompson 836 
 
 Haight V. Holcomb 449 
 
 Haight V. Hoyt 622 
 
 Haight V. Sailer 260, 270 
 
 Halden v. Crafts 236 
 
 Hale V. Andrus 504 
 
 Hale V. Boardman 28 
 
 Hale V. Sweet 108, 114 
 
 Hall V. Arnold 86, 112, 880 
 
 Hall V. Ayer 450 
 
 Hall V. Brown 16 
 
 Hall V. Buffalo 625 
 
 Hall V. Daggett 770 
 
 Hall V. Earnest 781 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 I'atrc. 
 
 Hall V. Erwin 679 
 
 Hall V. Haggart 780 
 
 Hall V. Lauderdale, 218, 266, 269, 272 
 
 Hall V. Naylor 679 
 
 Hall V. Sampson 82 
 
 Hall V. Shehan 455 
 
 Hall V. Stevens 599, 650, 651 
 
 Hall V. Stryker 89 
 
 Hall V. Tuttle 61, 63, 95, 109 
 
 Hall V. Wilson 520, 537, 558, 781 
 
 Hallalian v. Webber 690 
 
 Hallenbeck v. Coehran 730, 733 
 
 Hallett V. Wylie 141, 163 
 
 Halliday v. Hart 496 
 
 Halloek v. Belcher 53 
 
 Halsey v. Christie 89 
 
 Halstead v. Mayor, etc., of N. Y. . 280 
 
 Halstead v. Sehmelzel 345 
 
 Halstead v. Swartz 80 
 
 Hamer v. Sidway 9, 12 
 
 Hammet v. Linneman 650, 651 
 
 Hamill v. Gillespie 75 
 
 Hamilton v. Coogan 461 
 
 Hamilton v. Ganyard 674 
 
 Hamilton v. Van Rensselaer, 748, 753 
 Hammond v. Hopping. . . 11, 782, 795 
 
 Hammond v. Shepard 23 
 
 Hanoke v. Hooper 391 
 
 Hancock v. Gomez 235 
 
 Hancock v. Rand 396 
 
 Hand v. Baynes 422 
 
 Hand v. Church 756 
 
 Hanford v. Archer. . 95, 109, 110, 883 
 
 Hanford v. Higgins 859 
 
 Handford v. Palmer 381 
 
 Hanes v. Saekett 628 
 
 Hangen v. Hachmeister 59, 73 
 
 Hankinson v. Vantine . 456 
 
 Hanna v. Mills 742 
 
 Hansee v. Phiney 783 
 
 Happy V. Mosher 494 
 
 Harbeek v. Craft 557 
 
 Harbeck v. Pupin 335, 336 
 
 Harder v. Plass 93 
 
 Harding v. Jenkins 553 
 
 Hardmann v. Bowen 880 
 
 Hardman v. Willcock 411 
 
 Hardt v. Deutseh 75 
 
 Harger v. McCullough 773 
 
 Harger v. Wilson 780 
 
 Harger v. Worrall 554, 555 
 
 Hargous v. Ablon 719 
 
 Hargous v. Stone 674, 715, 716 
 
 Harker v. Anderson 582 
 
 Harker v. Dement 378 
 
 Harmer v. Cornelius 390 
 
 Harman v. Reeve 736 
 
 Harmony v. Bingham 26, 426 
 
 Harper v. Albany Mut. Ins. Co.. 46 
 
 802, 803 
 Harper v. Fairley 509 
 
 rage. 
 
 Harper v. N. Y. City Ins. Co 803 
 
 Harrington v. Higham 335 
 
 Harrington v. Snyder :'>S-2 
 
 Harris v. Berger ■ 538 
 
 Harris v. Birch 369 
 
 Harris v. Clark... 528, 578, 612, 613 
 
 Harris v. Eldridge 565 
 
 Harris v. Frink.. 144, 866, 867, 868 
 
 Harris v. Greejiberger 160 
 
 Harris v. Kniokerbaeker 843 
 
 Harris v. Paekwood 409 
 
 Harris v. Pratt 724 
 
 Harris v. Story 4, 143 
 
 Harris v. Warner 500 
 
 Harrison v. Burlingame 113 
 
 Harrison v. Hannel 785 
 
 Harrison v. Ross 220 
 
 Harrison v. Utley '. . . . 57 
 
 narrower v. Heath 144, 177 
 
 Harsha v. Reid 869 
 
 Hart V. Hart 135 
 
 Hart V. Hudson 493, 508 
 
 Hart V. Mills 658 
 
 Hart V. Taylor 649, 675 
 
 Hart V. Thompson 31 
 
 Hart V. Rensselaer & Saratoga 
 
 R. R 305 
 
 Hartford Fire Ins. Co. v. Dickin- 
 son 600 
 
 Hartley v. Harrison 788 
 
 Hartop V. Hoare 443, 448 
 
 Harvey v. Archbold 773 
 
 Harvey v. Towers 556 
 
 Harvy v. Cherry 799 
 
 Hasbrouek v. Ciiilds... 315, 328, .347 
 
 Hasbrouck v. Weaver 195 
 
 Haskins v. Kelly 113, 372 
 
 Haslam v. Adams Express Co.. . . 423 
 
 Hastings v. Belknap 90 
 
 Hastings v. Pepper 422 
 
 Hatch V. Hamlin 497 
 
 Hatch V. Mann 25 
 
 Hatfield v. Reynolds 197 
 
 Hathaway v. Brayman 75, 82 
 
 Hathaway v. Howell 117 
 
 Hathorn v. Hodges 679, 692 
 
 Haussoullier v. Hartsinck 530 
 
 Haulenbeok Advertising Agency v. 
 
 November 328 
 
 Havemeyer v. Cunningham 646 
 
 Havens v. Huntington 569 
 
 Haviland v. Chase 324 
 
 Hawley v. Keeler 257, 735 
 
 Hawthorn v. Hammond . 397 
 
 Haxtun v. Bishop 577, 5S2 
 
 Hawes v. Lawrence 666 
 
 Hawk V. Thorn 622 
 
 Hawkes v. Smith 420 
 
 Hawkins v. Appleby 338 
 
 Hnwkins v. Campbell 303 
 
 Hawkins v. Cardy 566 
 
xliy 
 
 TABLE OF CASES CITED. 
 
 rage. 
 
 Hawkins v. Hoffman 412 
 
 Hawkins v. Mosher 52, 488 
 
 Hawkins v. Pemberton, 700, 702, 705 
 
 Hay V. Cohoes Co 290 
 
 Hay V. Cumberland 147, 160, 185 
 
 Hayden v. Demets .... 656, 661, 687 
 
 Haydock v. Coope 881 
 
 Haydock v. Lynch 529 
 
 Haydock v. Stow 862 
 
 Hayman v. .Jones 112 
 
 Haynes v. Aldrieh 151, 152, 153 
 
 Haynes v. Brooks 320 
 
 Hays V. Hathorn 628 
 
 Hays V. Stone 599 
 
 Hayward v. Barron 303, 309 
 
 Haywood v. Miller 144, 145 
 
 Hazard v. Manning 438 
 
 Hazleton v. Webster 7 
 
 Hearne v. Keene 203 
 
 Hearsey v. Pruyn 271 
 
 Heaverin v. Donnell 576 
 
 Hedges v. Sealy 569 
 
 Hedley v. Bainbridge 332 
 
 Heermance v. Taylor 730 
 
 Heermans v. Ellsworth 633 
 
 Hegeman v. Mc Arthur 176 
 
 Hegeman v. Moon 524, 528 
 
 Hegeman v. Western Railroad 
 
 Corporation 427 
 
 Hegerich v. Keddie 621 
 
 Heilbronn v. Herzog 689 
 
 Heimstreet v. Howland 308 
 
 Heine v. Anderson 662 
 
 Heineman v, Grand Trunk E. Co. 433 
 
 Heinemann v. Heard 215, 262 
 
 Hellman v. Strauss 868 
 
 Hempstead v. N. Y. C. R. R. Co.. 417 
 
 Henderson r. Wasserman 664 
 
 Hendriekson v. Beers 623 
 
 Hennequin v. Naylor 678 
 
 Hennequin ^'. Sands 651 
 
 Henning v. N. Y. & N. H. R. R. 
 
 ■Co 204 
 
 Henricus v. Bnglert 261 
 
 Henry v. Allen 248, 255 
 
 Henry v. Marvin 224 
 
 Hentz V. Miller 220 
 
 Hepke v. Schmalholz 666 
 
 Herkimer v. Rice 800 
 
 Herman v. Adriatic Fire Ins. Co. 805 
 
 Heroy v. Van Pelt 344 
 
 Herriek v. Borst 492, 493 
 
 Herrick v. Guarantors' Finance 
 
 Co 563 
 
 Herrick v. Whitney 572 
 
 Herring v. Hoppock 55, 476 
 
 Herrman v. Merchants' Ins. Co.. 805 
 
 Hersey v. Benedict 679, 689 
 
 Herter v. Merser 845 
 
 Herter v. Mullen 152 
 
 Hesketh v. Blanchard 309 
 
 Page, 
 
 Hess V. Fox 871 
 
 Hess V. Rau 273 
 
 Heubaeh v. Rother 223 
 
 Hewett V. Bronson 20 
 
 Hewison v. Guthrie 441 
 
 Heye v. Tilford 302, 303 
 
 Heyhoe v. Burge 306 
 
 Heyl V. Inman Steamship Co.... 418 
 Hibbard v. N. Y. & Erie R. R. Co. 291 
 Hibernia Nat. Bank v. Lacombe. . 540 
 
 Hickling v. Hardey 603 
 
 Hicks V. Hinde 568 
 
 Hicks V. Whitmore 265, 742 
 
 Hicks V. Williams 114, 116 
 
 Higgins V. Moore 197, 220 
 
 Higgins V. Murray 388, 389 
 
 Higgins V. O'Donnell 555 
 
 Higgins V. Ridgway 536, 554 
 
 Hill V. Beebe.. 93, 101, 112, 120, 599 
 
 Hill V. Blake 666 
 
 Hill V. Hanford .' 19 
 
 Hill V. Hibernia Ins. Co 44 
 
 Hill V. Hoole 631 
 
 Hill V. Miller 46, 861 
 
 Hill Y. Packard 489 
 
 Hill V. Wilson 614 
 
 Hilliard v. Austin 436, 858 
 
 Hills V. Bannister 28, 533 
 
 Hills V. Hills 617 
 
 Hills V. Place 582 
 
 Hilton V. Vanderbilt 228 
 
 Hinds V. Kellogg 737 
 
 Tlincklev v. Kreitz 57 
 
 Hinckley v. N. Y. C. & H. R. R. 
 
 R. Co 211 
 
 Hinemann v. Heard 394 
 
 Hinman v. Judson 78, 102 
 
 Hinsdale v. Bank of Orange 609 
 
 Hinsdale v. White 185 
 
 Hinton v. Locke 446, 712 
 
 Hirschberg v. Dinsmore 434 
 
 Hiseox V. Greenwood 444 
 
 Hitchcock V. Cadmus 882 
 
 Hitchcock V. Covill 169, 688 
 
 Hoag V. Hoag 146 
 
 Hoar V. Clute 136 
 
 Hoar V. Dawes 299, 300 
 
 Hoard v. Garner 252 
 
 Hoare v. Parker 370 
 
 Hobbs Y. McLean 44, 624 
 
 Hochster v. De La Tour 132 
 
 Hoch V. Goodhart 690 
 
 Hodge V. Sexton 660 
 
 Hodges V. City of Buffalo.. 211, 286 
 
 287 
 
 Hodges V. Hunt 11 
 
 Hodges V. Shuler 524, 588 
 
 Hodges V. Tenn. M. & F. Ins. Co. 63 
 
 Hodgman v. Smith 315 
 
 Hop v. Sanborn 690, 707 
 
 Hoffman v. ^tna Ins, Co 45 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 Page. 
 
 Hoffman v. Carow 658, 683 
 
 Hoffman v. Van Allen 158 
 
 Hogan V. Shorb 447, 448 
 
 Hogeboom v. Hall 97 
 
 Holbrook v. Wright. . . 223, 224, 441 
 
 442 
 
 Holcroft V. Hoggins 308 
 
 Holden v. Dakin 712, 713 
 
 Holden v. N. Y. & Erie Bank, 246, 247 
 
 Holden v. Trust Co 748, 740 
 
 Holder v. Soiilby 397 
 
 Holdsworth v. Hunter 544 
 
 Holland v. Cole 166 
 
 Hollister v. Nowlen 428, 433 
 
 Hollister v. Simmonson 301 
 
 Holliday v. Atkinson 612 
 
 Holliday v. MeDougall 348 
 
 Hollingsworth v. Moulton 264 
 
 Hollingsworth v. Kapier . . . 662, 723 
 
 Hollis V. Claridge 450 
 
 Holman v. Dord 641, 703 
 
 Holmes v. De Camp 601 
 
 Holmes v. Higgins 345 
 
 Holmes v. Rankin 762 
 
 Holmes v. Roper 528 
 
 Holmes v. Tremper 821 
 
 Holmes v. U. S. Ins. Co 316 
 
 Holmes v. Weed. . 6, 55, 497, 498, 504 
 
 Holmes v. Wetmore 779 
 
 Holmes v. Williams 789. 792 
 
 Holsaple v. Rome, W. & 0. R. R. 
 
 Co 434 
 
 Holsman v. Abrams 153 
 
 Home Ins. Co. v. Dunham. . . 768, 771 
 
 Home Ins. Co. v. Green 589 
 
 Home Ins. Co. v. Watson .... 7, 30 
 Home Life Ins. Co. v. Sherman . . 180 
 Hone V. Mutual Safety Ins. Co. . . 446 
 Hood V. Manhattan Fire Ins. Co. 814 
 
 Hooper v. Baillie 336 
 
 Hooper v. Hudson River Fire Ins. 
 
 Co 800 
 
 Hooper v. Story 710 
 
 Hope V. Lawrence 371 
 
 Hopper V. Sage 282 
 
 Hopkins v. Davis 479 
 
 Hopkins v. Marlette 528 
 
 Hopkins v. Mollinieux 195 
 
 Hopkins v. Tanqueray 707 
 
 Hopkins v. Ward 11 
 
 Houehin v. Vacher 330 
 
 Hough taling v. Marvin 273 
 
 Houghtaling v. Randen 21 
 
 Houghton V. Dodge 569 
 
 Houghton V. Matthews 447 
 
 Housatonic Nat. Bk. v. Foster. . 15 
 
 House V. Burr 151, 171, 172, 178 
 
 House V. Grant " 614 
 
 House V. House 818 
 
 Houston V. Shindler 210 
 
 Horncastle v. Farran 441 
 
 Horner v. Sidway 843 
 
 Horner v. Wood 028 
 
 Horton v. Garrison 206, 257, 568 
 
 Hosack V. College of Physicians . . 284 
 
 Hosea v. MeCrory 416 
 
 Hosford V. Nichols 750, 793 
 
 Hosstatter v. Wilson 524, 546 
 
 Hotchkiss v. Artisans' Bank .... 204 
 
 Hotchkiss V. Gage 704, 712 
 
 Hotop V. Neidig 882 
 
 Hough V. Brown 33 
 
 Howard v. Daly 131, 132 
 
 Howard v. Doolittle 188 
 
 Howard v. France 345 
 
 Howard v. Hoey 690, 717 
 
 Howard v. Shepard 412 
 
 Howard v. Van Gieson 570 
 
 Howe Maeh. Co. v. Farrington. . . 492 
 
 Howell V. Brodie 300 
 
 Howell V. Jackson 397 
 
 Howland v. Lounds 25 
 
 Rowland v. Willett. , 76, 81, 97, 100 
 
 Howland v. Woodruff 220 
 
 Hovey v. American Mut. Ins. Co.. 810 
 
 Hovey v. Smith 819 
 
 Iloxie V. Kennedy 607 
 
 Hoyt V. Thompson 287, 288 
 
 Hubbard v. Gurney 484, 493, 495 
 
 Hudson V. Baxendale 415 
 
 Hudson V. Swan 441 
 
 Huertematte v. Morris 540 
 
 Huested v. Mathes 455 
 
 Huffman v. Hulbert 495 
 
 Hughes V. Wheeler 599, 601 
 
 Huiett V. Swift 398, 400 
 
 Hull V. Barth 303 
 
 Hull V. Carnley 72, 73, 75, 90 
 
 Hull V. Pearson 23 
 
 Hume V. Bollard 338 
 
 Humerton v. Cherry 480 
 
 Humerton v. Hay 57 
 
 Hungerford v. Wagoner 158 
 
 Hungerford's Bank v. Dodge, 786, 789 
 
 Humphrey v. Persons 56, 815 
 
 Hunt V. Bloomer 9, 490 
 
 Hunt V. Comstock 142 
 
 Hunt V. Hudson River Fire Ins. 
 
 Co 802 
 
 Hunt V. Peake 22 
 
 Hunt v.. Purdy 492 
 
 Hunt V. Rousmanier 273 
 
 Hunt V. Smith 486, 487 
 
 Hunter v. Batterson 595 
 
 Hunter v. Hudson River I. & M. 
 
 Co 677 
 
 Hunter v. Hunter 613, 617 
 
 Hunter v. Wetsell 733 
 
 Huntington v. Gilmore 613 
 
 Huntington v. Potter 344, 633 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 Pago. 
 
 Hurd V. Oreen 7, 12 
 
 Hurd \-. Hunt 775 
 
 Hurd V. PendiiDli 13 
 
 Hurd V. West 7 037 
 
 Hurff V. Hires ' C5G 
 
 Hurlbut V. Post 185 
 
 Hutchings v. Miner 852 
 
 Hutchinson v. Campbell .'!22 
 
 Hutchison v. Walter 728 
 
 Hutt V. Zimmer 46 
 
 Hyatt V. Clark 240 
 
 I-lyatt V. Wait 755 
 
 Hyde v. Cookson 384, 638, 670 
 
 Hyde v. Goodnow 537, 793, 795 
 
 Hyde v. Trent Nav. Co 418, 422 
 
 Hyde v. Tuffts 622 
 
 Hyde v. Stone 756 
 
 Hyland v. Paul 164 
 
 Hyland v. Sherman 710 
 
 Hyman v. Central Vermont E. R. 
 
 Co 432 
 
 Hynds v. Schenectady Co. Mut. 
 
 Ins. Co 804 
 
 I. 
 
 Ide Y. Sadler 423 
 
 Iden V. Sommers 475 
 
 Ingalls V. Lee 778 
 
 Ingallsby v. Wood 398 
 
 Ingate v. Christie 405 
 
 Ingraham v. Baldwin 145 
 
 Tngraham v. Gilbert 10, 12, 29 
 
 Importers & Traders' Nat. Bk. > . 
 
 Peters 693 
 
 Inman v. Western Fire Ins. Co.. . 810 
 
 In re Broomhead 437 
 
 In re Medewe's Trust 371 
 
 Insurance Co. v. Willcinson 207 
 
 Interstate Steamboat Co. v. First 
 
 Nat. Bank 649, 675 
 
 Ireland v. Oswego, etc., P. E. . . . 292 
 
 Irish V. Nutting 614, 618 
 
 Irons V. Smallpieee 617 
 
 Irvin V. Conklin 307 
 
 Irving V. Excelsior Pire Ins. Co. 801 
 
 812 
 
 Irvine v. Fobes 299 
 
 Irvine v. Stone 736 
 
 Isaaek v. Clark 369 
 
 Isaacs V. Third Ave. R. E. Co. . . 29] 
 Isaacson v. N. Y. C; & H. E. E. E. 
 
 Co. 211, 428 
 
 Ives V. Miller 345 
 
 J. 
 
 Jacob V. Emmett 753 
 
 Jacobs V. Day 714 
 
 Jacobs V. Kolf 129 
 
 Macobs V. Latour 452 
 
 Jacobson v. Bradley 785 
 
 Page. 
 
 Jacks V. Darrin 607 
 
 Jacks V. Nichols 777. 785 
 
 Jackson v. Allen 179, 879 
 
 Jackson v. Blodget 630 
 
 Jiielcson V. Bradt 158 
 
 Jackson v. Brown 287 
 
 Jackson v. Brownson 172, 179 
 
 Jackson v. Builders' Wood Work- 
 ing Co 46 
 
 •lackson v. Caldwell 104 
 
 .Taekson v. Campbell 757 
 
 Jaelcson v. Covert 737 
 
 Jackson v. Davis 146- 
 
 Jackson v. Decker 506, 509 
 
 Jackson v. Delacroix 143 
 
 Jackson v. Fassitt 791, 792 
 
 Jackson v. Garnsey 104 
 
 Jackson v. Griswold 503 
 
 Jackson v. Harrison 192 
 
 Jackson, etc.. Iron Works v. Hul- 
 
 burt 405 
 
 Jackson v. Kasseall 440 
 
 Jackson v. Packard 785 
 
 Jackson v. Eayner 16 
 
 Jackson v. Rode 30 
 
 Jackson v. Eowland 146, 147 
 
 .lackson v. Second Ave. R. E. Co. 291 
 
 Jackson v. Tupper 730, 733 
 
 Jackson v. Twenty-third St. Ry. 
 
 Co 282 
 
 .Taekson v. Walker 144 
 
 Jackson v. Whedon 145 
 
 Jaeger v. Kelley 885 
 
 Jaffe V. Bowery Bank 627 
 
 Jaffe V. Harteau 187 
 
 Jagger Iron Works v. Walker . . . 599 
 
 James v. Chalmers 537 
 
 James v. Coe 174 
 
 James v. Hagar 126 
 
 James v. Patten 728, 870 
 
 James v. Pope 342 
 
 James v. Rubino 174 
 
 James v. Whitebread 302 
 
 Jaques v. Todd 205 
 
 Jarvis v. Sewall 52, 488 
 
 Jarolauski v. Sanderson 374 
 
 Jefferson Iron Co. v. Thompson . . 706 
 
 Jeffery v. Walker 842 
 
 Jeffrey v. Bigelow 196, 256, 700 
 
 Jeffrey v. Walton 532 
 
 Jellinghaus v. N. Y. Ins. Co 294 
 
 Jemison v. Citizens' Savings Bank, 251 
 
 267 
 
 Jeneks v. Smith 68, 129 
 
 Jenney v. Herle 529 
 
 Jennings v. Alexander 167 
 
 Jennings v. Camp 41 
 
 Jennings v. Chenango Co. Mut. 
 
 Ins. Co 806 
 
 Jennings v. G. T. E. Co 432 
 
 Jennings v. Merril 221 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 rage. 
 Jermain. v. Lake Shore & Jlicli. 
 
 So. Ry. Co 2S2 
 
 Jerome v. Whitney 522. .54.5 
 
 Jervis v. Iloyt . ." 209 
 
 Jessiip y. Hiilse 882 
 
 Jessup V. Steviror 22 1 
 
 Jewell V. Wright T.'iO, 794 
 
 Johnson v. Alexander 303, 307 
 
 Johnson v. De Peyster 39 
 
 Johnson v. Dixon 190 
 
 Johnson v. Doll 176 
 
 Johnson v. Gibson 10 
 
 Johnson v. Gilbert, 489, 600, 741, 859 
 
 Johnson v. Hartshorne 321 
 
 Johnson v. Haws 307 
 
 Johnson v. Hill 444 
 
 Johnson v. Hunt 389 
 
 Johnson v. Jones 200, 207 
 
 Johnson v. Lee 538 
 
 Johnson v. Mildand R. R. Co. . . 407 
 
 409 
 
 Johnson v. Miln 833 
 
 Johnson v. N". Y. C. R. R. Co.. . . 211 
 
 Johnson v. Oppenheim 159 
 
 Johnson v. Titus 12, 560 
 
 Johnson v. Weed 60 
 
 Johnston v. Brannan 752, 753 
 
 Johnstown Cemetery Assn. v. Par- 
 ker 289, 290 
 
 John T. Noye Mfg. Co. v. Ray- 
 mond 648 
 
 Jones V. Bradner 664 
 
 Jones V. East Society, etc 497 
 
 Jones V. Graham... 88, 93, 107, 112 
 
 Jones V. Hake 781 
 
 Jones V. Hausmann 169 
 
 Jones V. Home Furnishing Co.. . . 522 
 
 Jones V. Judd 27, 41 
 
 Jones V. Methodist Church of 
 
 Rochester 485 
 
 Jones V. Morrill 444 
 
 Jones V. Pearle 452 
 
 Jones V. Fhcenix Bank 24 
 
 Jones V. Reynolds 732 
 
 Jones V. Ryde 603 
 
 Jones V. Savage 602 
 
 Jones V. Terre Haute & Richmond 
 
 R. R. Co 282 
 
 Jones V. Turner 47 
 
 Jordan v. Nat. Shoe & Leather 
 
 Bk 449 
 
 Jordan v. Volkenning 503 
 
 Joseph V. Struller 196 
 
 Jourgensen v. Traitel 141 
 
 Journeay v. Brackley 169 
 
 Joyce V. Adams 650 
 
 Joy V. Diefendorf 556, 595, 780 
 
 Jube V. Brooklyn Fire Ins. Co. . . 805 
 
 812 
 Judah V. Harris 526 
 
 Page. 
 
 Judd V. Smith 582 
 
 Judson V. Etheridge 440 
 
 Jugla V. Trouttet 44 
 
 Julian •/. Shobroke 547 
 
 Jury V. Barker 530 
 
 Justice V. Lang 729 
 
 K. 
 
 Kafka v. Levinsohn 
 
 Kain v. Fisher 
 
 Kain v. Hoxie 168, 
 
 Kaiser v. Hoey 
 
 Kalley v. Baker 
 
 Kane v. Smith 755, 
 
 Karst V. Gane 88, 114, 115, 
 
 Kasson v. Smith 
 
 Kay V. Whittaker 
 
 Kayser v. Siehel 
 
 Kayton v. Barnett 
 
 Keates v. Cadogan 
 
 Kedian v. Hoyt 
 
 Keeler v. Vanderveer 653, 
 
 Keeney v. Grand Trunk R. R. Co. 
 
 Keeney v. Home Ins. Co 
 
 Kein v. Tupper 
 
 Kelley v. Hurlburt 
 
 Kelley v. Mayor of Brooklyn, 285, 
 
 Kelley v. Upton, 38, 645, 648, 649, 
 Kellogg Bridge Co. v. Hamilton . . 
 
 Kellogg V. Hickok 757, 
 
 Kellogg V. Olmstead 9, 
 
 Kellogg V. Slawson 879, 
 
 Kelly V. Ferguson 
 
 Kelly V. Lane 
 
 Kelly V. Manhattan Ry. Co 
 
 Kelly V. Smith 
 
 Kelsey v. Durkee 148, 
 
 Kelty V. Simmons 
 
 Kemp V. Carnley 
 
 Kennedy v. Strong 
 
 Kenney v. N. Y. C. & H. R. R. R. 
 
 Co 
 
 Kennerly v. Nash 
 
 Kent V. Friedman 
 
 Kent V. Kent 
 
 Kent V. Quicksilver Mining Co. . . 
 
 Kent V. Shuekard 
 
 Kent V. Walton 780, 
 
 Kerford v. Mondel 
 
 Kernochan v. Murray 
 
 Kerr v. Merchants' Exchange Co. 
 
 Kerrains v. People 
 
 Kersted v. 0. & A. R. R. Co 
 
 Kessler v. N. Y. C. & H. R. R. R. 
 
 Co 
 
 Ketcham v. Clark 
 
 Ketchum v. Barber 
 
 Ketchell v. Burns 
 
 Keteltas v. Fleet 
 
 438 
 818 
 169 
 434 
 240 
 761 
 121 
 556 
 787 
 689 
 224 
 187 
 264 
 736 
 408 
 813 
 672 
 318 
 518 
 531 
 744 
 707 
 771 
 496 
 883 
 526 
 90 
 427 
 626 
 821 
 660 
 336 
 227 
 
 434 
 762 
 711 
 836 
 287 
 402 
 792 
 443 
 47 
 164 
 144 
 270 
 
 433 
 318 
 
 777 
 564 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Key V. Flint 441 
 
 Keyset- v. Harbeck 96, 682, 683 
 
 Kiernan v. Roeheleau 690 
 
 Kieisted v. 0. & A. R. R. Co 261 
 
 Kilmer v. N. Y. C. & H. R. R. R. 
 
 Co 434 
 
 Killmore v. Hewlett 739, 867 
 
 Kilpatiiek v. Villaume 311 
 
 Kimball v. F. & M. Nat. Bk 79 
 
 Kimball v. Huntington 524 
 
 Kimberly v. Patehin 654, 662 
 
 King V. Baldwin 492 
 
 King V. Barnes 301 
 
 King V. Brown 867 
 
 King V. Fitch 679, 694 
 
 King V. Despard 857 
 
 King V. Leighton 341 
 
 King V. Lenox 416 
 
 King V. MaeKellar 208 
 
 King V. Norman 498 
 
 King V. Richards 412 
 
 King V. Sarria 332 
 
 King V. Talbot 760 
 
 King V. Tioga Co. Patrons' Fire 
 
 Relief Assn 803 
 
 King V. Van Veeck 64 
 
 King V. Walbridge 87 
 
 Kingdom v. Cox 387 
 
 Kingsbury v. Kirwan 644 
 
 Kingsbury v. Westfall 163 
 
 Kingsford v. Merry 96, 370 
 
 Kingsley v. Balcome 856 
 
 Kinloch v. Craige 447 
 
 Kinnan v. Sullivan County Club, 280 
 
 Kinne v. Ford 668 
 
 Kinney v. Kiernan 693 
 
 Kinsey v. Leggett 220 
 
 Kinyon v. Kinyon 626 
 
 Kip V. Brigham 55, 594 
 
 Kipp V. Wiles 666, 745 
 
 Kirby v. Hewett 319, 334, 348 
 
 Kirby v. Sisson 603 
 
 Kirk V. Young 5, 6 
 
 Kirkland v. Dinsmore 433 
 
 Kirkman v. Kirkman 322 
 
 Kitchen V. Schenek 778 
 
 Kitchen v. Lowery 88 
 
 Kittel V. Callahan 333 
 
 Kline v. Green 452 
 
 Klumpp.v. Gardner 336 
 
 Knapp V. Alvord 244, 273 
 
 Knapp V. Curtis 394 
 
 Knapp V. Maltby 50, 210 
 
 Knapp V. Wallace 240 
 
 Kneeland v. Rogers 491 
 
 Knickerbocker Life Ins. Co. v. 
 
 Nelson 787, 853 
 
 Knox V. Goodwin 769 
 
 Knox V. Nutt 856 
 
 Knox V. Sehoenthal 246 
 
 Koehler & Co. v. Brady 179 
 
 Page. 
 
 Kohler v. Matlage 52, 488 
 
 Kohn V. Consolidated Butter & 
 
 Egg Co 570, 571 
 
 Kolasky v. Jliehels 192 
 
 Konitzky v. Meyer 29, 497 
 
 Kopper V. Willis 306 
 
 Kreuder v. Woolcott 417 
 
 Kribbs v. Alford 69 
 
 Krohm v. Sweeney 396 
 
 Krulder v. Ellison . .' 664 
 
 Krumm v. Beach 257 
 
 Kuney v. Amizon Ins. Co 207 
 
 L. 
 
 Lacy V. Getman 27, 41 
 
 Ladd V. Insurance Co 805 
 
 Ladd V. Moore 692, 693 
 
 La Farge v. Halsey 186 
 
 La Farge v. Herter, 495, 497, 784, 792 
 
 La Fai-ge v. Kneeland 212 
 
 La Farge v. Mansfield 160 
 
 La Farge v. Rickert 552 
 
 La Farge Fire Ins. Co. v. Bell ... 295 
 
 La Petra v. Glover 370 
 
 Lafflin v. Buffalo & Southwestern 
 
 R. R. Co 427 
 
 Laflin v. Griffiths 825 
 
 Lafond v. Deems 326 
 
 Laird v. McGeorge 186 
 
 Lake v. Artisans' Bank 591 
 
 Lakeman v. Grinnell 417 
 
 Lake Ontario Shore R. R. Co. v. 
 
 Curtiss 277, 278 
 
 Lamb v. Camden & Amboy R. R. 
 
 & T. Co 434 
 
 Lamb v. Camden & Amboy R. R. 
 
 Co 394 
 
 Lambert v. Buckmaster 449 
 
 Lambert v. Huber 145 
 
 L'Amoreux v. Gould 2, 22 
 
 Lamorieux v. Hewitt 562 
 
 Langdon v. Gray 782' 
 
 Langdon v. Buel.. 63, 66, 79, 80, 84 
 270, 629, 630 
 
 Langly v. Warner 270 
 
 Lane v. Bailey 371 
 
 Lane v. Cotton 407 
 
 Lane v. King 194, 826 
 
 Lane v. Losee 769, 779 
 
 Lane v. Y'oung 146 
 
 Lanphire v. Phipos 391 
 
 Lansing v. Gaine 342 
 
 Lansing v. Lansing 758 
 
 Lansburgh v. Walsh 309 
 
 Lantry v. Parks 41, 128 
 
 Larned v. Hudson 157 
 
 Lasher v. Northwestern Nat. Ins. 
 
 Co 804 
 
 Latimer v. Wheeler 120 
 
 Lathrop v. Morris 5.57 
 
 Lauer v. Brown 138 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Pnge. 
 Laughi-an v. Smith, 140, 142, 151, 155 
 
 156 
 
 Lawler v. Keaqiiick 262 
 
 Lawveneo v. Congregational 
 
 Church 463, 632 
 
 Lawrence v. Dawson 458 
 
 Lawrence v. Fox 28, 852 
 
 Lawrence v. French 185 
 
 Lawrence v. Gallagher 730 
 
 Lawrence v. Kemp 821, 827 
 
 Lawrence v. Maxwell 377 
 
 Lawrence v. Miller 662 
 
 Lawrence v. Simons 686 
 
 Lawrence v. Taylor, 210, 248, 258, 270 
 
 862, 868 
 Lawrence v. Trustees of Leake & 
 
 W. Orphan House '.: 756 
 
 Lawson v. Buckley 492 
 
 Lawson v. Dickinson 450 
 
 Lawton v. Newland 376 
 
 League Cycle Co. v. Abrahams. . . 711 
 
 Leavitt v. De Launy 777 
 
 Leavitt v. Palmer 25 
 
 Leavitt v. Putnam 569, 587 
 
 Ledoux V. Bank of America 114 
 
 Lee V. Clark 55, 504 
 
 Lee V. Huntoon 119 
 
 Lee V. Marsh 433 
 
 Leeds v. Dunn 486 
 
 Leeds v. Mechanics' Ins. Co 809 
 
 Leggett V. Humphreys 485 
 
 Leggett V. Hyde 303, 305 
 
 Leitch V. Hol'lister 880 
 
 Leland v. Douglass 215 
 
 Lennon v. Grauer 572 
 
 Lent V. Hodgman 529 
 
 Leonard v. Mason 523, 531 
 
 Leonard v. Vredenburgh 853 
 
 Le Page v. McCrea 600 
 
 Lepard v. Vernon 273 
 
 Lethbridge v. Phillips 352 
 
 Leven v. Smith 650, 657, 743 
 
 Leverick v. Meigs 222, 237, 262 
 
 Leverson v. Lane 331 
 
 Levey v. Allien 783, 784 
 
 Levison v. Stix 836 
 
 Levy V. American Wax & Paper 
 
 Mfg. Co 706 
 
 Levy V. Brush 865 
 
 Levy V. Carr 680, 682 
 
 Levy V. Long Island Brewing Co. 170 
 
 Lewis V. Angermiller 174 
 
 Lewis V. Greider 687, 688 
 
 Lewis V. Merritt 618 
 
 Lewis V. O. N. & P. Co.. 821 
 
 Lewis V. Palmer 113, 498, 683 
 
 Lewis V. Payn 142 
 
 Lewis V. Whitehall Lumber Co... 752 
 Lewisohn v. Kent & Stanley Co.. 522 
 Leyh v. Newburgh Electric R. Co. 427 
 Liddle v. Market Fire Ins. Co.. . . 807 
 
 Paste. 
 
 Liebcr v. Goodrich 526 
 
 Life & Fire Ins. Co. v. Mechanics' 
 
 Fire Ins. Co 285, 286 
 
 Lightbody v. North Am. Ins. Co.. 274 
 
 802 
 
 Lightbody v. Ontario Bank 603 
 
 Lightfoot v. Keane 450 
 
 Lilley v. Barnsley 392 
 
 Lillie V. Hoyt 235 
 
 Lincoln v. Battelle 217 
 
 Lincoln v. Crandell 258 
 
 Liotard v. Graves 755 
 
 Lippincott v. Ashfield 854 
 
 Lisk V. Sherman 842, 867 
 
 Litchfield v. White 881 
 
 Littauer v. Goldman 573, 718 
 
 Little V. Banks 44, 852 
 
 Little V. Fargo 426 
 
 Little V. Phosnix Bank, 526, 540, 584 
 
 Little V. Slackford 528 
 
 Little V. Wilson 840, 841, 842 
 
 Littler v. Holland 386, 387 
 
 Livingston v. Bain 720 
 
 Livingston v. Hastie 484 
 
 Livingston v. Miller 750, 762 
 
 Livingston v. Moore 486 
 
 Livingston v. Spero 628 
 
 Livingston v. Stoessel 195, 442 
 
 Livingston v. Tremper 7, 832 
 
 Livingston v. Van Rensselaer. . . . 500 
 
 Livor v. Orser 77, 97 
 
 L. & L. F. Ins. Co. v. R., W. & O. 
 
 R. R. Co 416 
 
 Lloyd V. Mathews 241, 242 
 
 Lobdell V. Hopkins 550 
 
 Locklin v. Moore 582 
 
 Lockwood V. Barnes 838, 841 
 
 Lodge V. Martin 146 
 
 Loeb V. Hellman 262 
 
 Loeschigk v. Hatfield 320 
 
 Loeschman- v. Mackin 354 
 
 Loftus V. Clark 628 
 
 Loftus V. Union Ferry Co 427 
 
 Lohman v. New York & Erie R. 
 
 R , :. 280 
 
 London & Lancashire Fire Ins. Co. 
 
 v. Rome, W. & O. R. R. Co 410 
 
 London & N. W. Ry. Co. v. Glyn.. 799 
 
 Long V. Bailie 608 
 
 Long V. Stafford 176 
 
 Long Island Brewery Co. v. Fitz- 
 
 patrick 441 
 
 Lord V. Cronin 768 
 
 Lord V. Kenny 696 
 
 Lorillard v. Clyde 27 
 
 Lough V. Outerbridge 408 
 
 Loughran v. Ross 821 
 
 Lounsbery v. Snyder 141 
 
 Loveland v. Shepard 508 
 
 Lovett v. Adams 50 
 
TABLE OF CASES CITED. 
 
 rage. 
 Lovett V. German Eeformed 
 
 Church 293 
 
 Low V. Archer 490 
 
 Lowenstinp v. Mcintosh 209 
 
 Lower v. Winters 841 
 
 Lowery v. Steward 574 
 
 Lowery v. Stewart 531 
 
 LoAvman v. Yates 496 
 
 Lubbock V. Inglis 392 
 
 Lubricating Oil Co. v. Standard 
 
 Oil Co 291 
 
 Lucas V. Dorrien 447, 449 
 
 Lucia V. Omel 403 
 
 Luckpy V. Frantzkee 184 
 
 Luddington v. Pulver 506 
 
 Luden v. Hazen 479 
 
 Ludlow V. Simond 485 
 
 Ludlum V. Couch 18 
 
 Ludwig V. Bungart 869 
 
 Ludwig V. Glaessel 622 
 
 Ludwig V. Gillespie 224, 267 
 
 Luff V. Pope 578 
 
 Lunham v. Hafner 300 
 
 Lupin V. Marie 651 
 
 Luqueer v. Prosser 524 
 
 Lush V. Druse 148, 750, 762 
 
 Lusk V. Smith 342 
 
 Lydecker v. Village of Nyack. ... 137 
 
 Lygo V. Newbald 407 
 
 Lygo V. Newbould 413 
 
 Lyle V. Murray 235, 236 
 
 Lynar v. Mossop 399 
 
 Lynch v. Johnson 633 
 
 Lynch v. Metropolitan El. E. Co. 291 
 
 Lynch v. Tibbits 81 
 
 Lynn v. Smith 18 
 
 Lyon V. Clark 753 
 
 Lyon V. Fitch 330 
 
 Lyon V. Mells 378 
 
 Lyon V. Mitchell 241 
 
 Lyth V. Hingston 319 
 
 M. 
 
 Maanss v. Henderson 448 
 
 Maas V. Falk 878 
 
 Mabbett v. White 337 
 
 Mabee v. Crozier 792 
 
 Maber v. Massias 547 
 
 Maghee v. Camden & Amboy E. R. 
 
 Co 211 
 
 Magnin v. Dinsmore 433 
 
 Magnise v. Adams Express Co.. . 421 
 
 Magovern v. Robertson 305 
 
 Maguire v. Woodside 132 
 
 Maeaulay v. Palmer . 332 
 
 Macedon & Bristol Plankroad Co. 
 
 V. Snediker 278 
 
 Machell v. Kinnear 535 
 
 Mack V. Anderson 493 
 
 Mack V. Mack 611 
 
 Mack V. Patehin 159 
 
 Page. 
 
 JIaek V. Phelan 94, 112 
 
 Mack V. Snell 385 
 
 Mackey v. Mackey 450 
 
 Mackie v. Cams 883 
 
 Mackie v. Egian 664 
 
 Maolay v. Robinson 618 
 
 Mactier v. Frith 33 
 
 Macomber v. Dunham 748, 795 
 
 McAlpine v. Powell 186 
 
 McArthur v. Wilder 636 
 
 McBride v. Hagan 335 
 
 McCabe v. Evers 154 
 
 McCabe v. Farm Buildings Fire 
 
 Ins. Co 804 
 
 McCabe v. Goodfellow 326 
 
 McCabe v. Green 836 
 
 McCaffrey v. Woodin 64, 69 
 
 MeClanathan v. Friedel 46 
 
 McCIave v. Paine 241 
 
 McCarragher v. Gaskell 338 
 
 McClelland v. Remsen 337 
 
 McClusky V. Cromwell 44 
 
 INTcConkey v. Peterson 11, 782 
 
 McConneil v. Sherwood 877 
 
 McCormie v. Venable 113 
 
 McCoun V. N. Y. C. & H. R. R. R. 
 
 Co 3 
 
 McCoy V. Artcher 717 
 
 McCraekan v. Cholwell 704 
 
 MoCrea v. Hopper 120 
 
 McCrea v. Purmort 8, 863, 870 
 
 McCready v. Riimsey 280 
 
 McCready v. Wright 662 
 
 McCready v. Van Antwerp 6 
 
 McCreery v. Day 753 
 
 McCullough V. Moss 211 
 
 McDermott v. Board of Police. . . 290 
 McDonald v. Edgerton, 398, 399, 405 
 McDonald v. Hancock Mut. Life 
 
 Ins. Co 30 
 
 M'Donald v. Hewitt 653 
 
 McDonald v. Lord 229, 230 
 
 McDonald v. Mayor 287 
 
 McDonald v. Williams .... 744, 74? 
 
 MeDougall v. Walling 623 
 
 McDugall V. Travis 271 
 
 McEachron v. Randies 687 
 
 McEntee r. New Jersey Steamboat 
 
 Co '. 355, 412 
 
 McEwen v. Montgomery Co. Ins. 
 
 Co 246, 295, 809 
 
 McFadden v. Allen 825 
 
 MacFarlane v. MacFarlane 299 
 
 McFarlane v. Watson 167 
 
 McFarland v. Wheeler 451 
 
 McGaw V. Adams 409 
 
 McGibbon v. Schlessinger 688 
 
 McGiffln V. Baird 717, 720 
 
 McGivern v. Fleming 728 
 
 McGlashan v. Tallmadge 187 
 
 McGlueky v. Bitter 840, 842 
 
TABLE OF CASES CITED. 
 
 r 
 
 McGolderick v. Willets 
 
 McGregor v. Brown 16, 
 
 McGregor v. Comstoek 
 
 MacGregor v. Rhodes 
 
 McGrell V. BiifTalo Office Bldg. Co. 
 
 McGuire v. O'Hallaran 
 
 Mcllvane v. Hilton 
 
 McKeage v. Hanover Fire Ins. Co. 
 
 628, 
 
 McKeclvnie v. Ward 
 
 McKee v. Judd 022, 
 
 MoKensie v. Farrell 178,- 
 
 rilcKenzie v. Decl-cer 
 
 McKenzie v. Hatton 
 
 McKeon v. Wendellcen 
 
 McKinney v. Holt 
 
 McKinney v. White 
 
 McKnight v. Dunlop 730,' 
 
 MacKnight Flintic Stone Co. v. 
 llayor 
 
 McK night v. Lewis 
 
 MeKnight v. Wheeler.. 572, 573, 
 
 Watson 510, 
 
 V. Bipber 
 
 V. "Washington Co. 
 Co 
 
 MeLaren v. 
 jWcLaughlin 
 McLaughlin 
 5 Tut. Ins. 
 McT^ees v. Hale 
 
 836, 
 
 McLeod V. Snee 
 
 McMahon v. Hodge 
 
 INIcMahon v. New Yor)< & Erie R. 
 
 R. Co 750, 751, 761, 
 
 MoManus v. Crickett 
 
 Mcllanus v. Western Assurance 
 
 Co 801, 
 
 McMaster v. Prest., etc., Ins. Co. 
 
 of N. A 
 
 McMaster v. State 
 
 McMillan v. Vanderlip . . ." 
 
 McMillen v. Vanderlip 
 
 McMonies v. Maekay 
 
 MoMorris v. Simpson 
 
 McMurra,y v. Noyes 506, 
 
 McXair v. Gilbert 603, 
 
 McNally v. P. Ins. Co 
 
 McNaught V. MoClaughry 
 
 McNeil V. Tenth Nat. Bank, 280, 
 McNeilly v. Continental Life Ins. 
 
 Co. ^ • • • • 
 
 MoNuIty V. Duffy 
 
 McPadden v. N. Y. C. R. R. Co. . 
 
 McParlin v. Boynton 
 
 MoPherson v. Rathbone 
 
 McPherson v. Walton ". - . . 
 
 MePhillips v. Jones 
 
 McRea v. Cent. 'Nat. Bk. of Troy, 
 
 823, 
 
 MeShane Co. v. Padian 
 
 McSpedon v. Mayor, etc., of N. Y. 
 
 McWilliams v. Mason 
 
 MoWhorter v. MeMahan 
 
 Mahar v. Compton 
 
 age. 
 659 
 807 
 450 
 572 
 427 
 348 
 444 
 622 
 823 
 402 
 630 
 833 
 44 
 180 
 171 
 160 
 459 
 
 128 
 589 
 793 
 563 
 319 
 
 812 
 844 
 531 
 461 
 
 762 
 
 291 
 
 813 
 
 812 
 751 
 41 
 128 
 224 
 215 
 509 
 606 
 809 
 483 
 660 
 
 274 
 185 
 428 
 710 
 334 
 460 
 570 
 822 
 826 
 503 
 293 
 486 
 870 
 31 
 
 Page. 
 
 Maher v. Hibernia Ins. Co 804 
 
 Mahaney v. Walsh 630 
 
 Mahoney v. Farley 193 
 
 Mahoney v. Kent 267 
 
 Main v. Eagle 243 
 
 Main v. Feathers 193 
 
 Main v. King 697 
 
 Main v. Scliwartzwaelder . . . 825, 826 
 
 Mainwaring v. Newman 347 
 
 Manice v. Millen 192 
 
 Maleom v. Loveridge 90, 370, 082 
 
 Malins v. Brown 869 
 
 Mallory v. Gillett 17, 85, 853 
 
 Mallory v. Willis. . 383, 384, 636, 637 
 
 638 
 
 Maloney v. Nelson 52, 488 
 
 MalCby v. Harwood 19 
 
 Manchester, etc. v. Sweeting 492 
 
 Manchester v. Van Brunt 496 
 
 Mandeville v. Avery 73, 121 
 
 Mandeville v. Newton 719 
 
 Mandeville v. Reed 455 
 
 Manhattan Brass & Manuf. Co. 
 
 V. Sears 303, 305 
 
 Manhattan Co. v. Osgood 771 
 
 Manhattan Life Ins. Co. v. Forty- 
 second St. & Grand St. F. R. R. 
 
 Co. 231 
 
 JIanhattan Shoe Co. v. C, B. & Q. 
 
 R. R. Co 415 
 
 Manheira v. Seitz 153 
 
 Manley v. Clemens 154 
 
 Mann v. Eckford 509 
 
 Mann v. Nat. Linseed Oil Co., 663, 688 
 
 Man V. Shiffner 448 
 
 Mann v. Witbeck 879, 881 
 
 Manning v. Beck 878 
 
 Manning v. Keenan 210 
 
 Manning v. Lyon 584 
 
 Manning v. Monaghan 75, 78 
 
 Manny v. Harris 764 
 
 Mansfield v. N. Y. C. & H. R. R. 
 
 R. Co 751 
 
 Manufacturers & Traders' Bank 
 
 v. Love 533, 589 
 
 Marcus v. Collins B. & C. Co. ... 142 
 Marcus v. St. Louis Mut. Life Ins. 
 
 Co 629 
 
 Marfield v. Goodhue 212, 228 
 
 Marie v. Garrison 21, 233 
 
 Marine Bank v. Piske 661 
 
 Marine Bank, etc. v. Clements. . . 251 
 Marine Nat. Bk. v. Nat. City Bk. 541 
 
 Markle v. Hatfield 603 
 
 Markham v. Jaudon 369, 372 
 
 Marks v. Dellaglio 181 
 
 Marrion v. Farnan 18, 19 
 
 Mars v. Del. & H. Canal Co 291 
 
 Marselis v. Seaman 195 
 
 Marsden v. Cornell 94, 113 
 
 Marsh v. Benedict 498 
 
Hi 
 
 TABLE OF CASES CITED. 
 
 I'agc. 
 
 Marsh v. Dodge 45 
 
 Marsh v. Howe 768 
 
 Marsh v. Lawrence 62 
 
 Marsh v. Martindale 776 
 
 Marsh v. Richards 638 
 
 Marsh v. Titus 383 
 
 Marsh v. Wickham 636 
 
 Marshall v. Davics 484 
 
 Marshall v. Eise Vineyard Co 30 
 
 Marshall v. Moseley 172 
 
 Marshall v. N. Y. Cent. R. R. Co. 408 
 
 Marston v. Sweet 843 
 
 Marston v. Vultee 73 
 
 Martens-Turner Co. v. Mackin- 
 tosh 494 
 
 Martin v. Bliss 243 
 
 Martin v. Chauntry 525 
 
 Martin v. Farnsworth 196 
 
 Martin v. Funk 613 
 
 Martin v. Hall 82 
 
 Martir. v. Home Bank 540 
 
 Martin v. Lewinski 75 
 
 Martin v. Moore 197 
 
 Martin-Barris Co. v. Jackson, 690, 695 
 
 Martine v. Robinson 336 
 
 Marvin v. Feeler 770 
 
 Marvin v. MeCullum 535, 781 
 
 Marvine v. Hymers. . . . 771, 775, 779 
 
 Marx V. Jones 335 
 
 Maryon v. Carter 386, 387 
 
 Marzetti v. Williams 368 
 
 Mason v. Decker 687, 729 
 
 Mason v. Lord 787, 788 
 
 Mason v. Partridge 305 
 
 Mason v. Raplce 622 
 
 Mason v. Smith 701 
 
 Mason Stable Co. v. Lewis 224 
 
 Massachusetts Nat. Bk. v. Shinn, 820 
 
 Masson v. Bovet 690, 691 
 
 Maule V. Crawford 545 
 
 Maund v. Monmouthshire Canal 
 
 Co 292 
 
 Mauri v. HeflFernan . .» 498 
 
 Mather v. Perry 859 
 
 Mathews v. Aikin 498 
 
 Matthews v. Am. Cent. Ins. Co.. . 810 
 
 Matthews v. Matthews 843 
 
 Matteawan Co. v. Bentley. . 683, 688 
 
 690, 695 
 
 Mattiee v. Allen 733 
 
 Mattison v. Bauous 76, 97, 100 
 
 Matter of Barnes 760 
 
 Matter of Benson 760 
 
 Matter of Crawford 282 
 
 Matter of Delaney 19 
 
 Matter of Dusenberry 18 
 
 Matter of Ernst 239 
 
 Matter of Eureka Mower Co., 46, 823 
 
 Matter of Haines 468 
 
 Matter of Hoagland 300, 302 
 
 Matter of Kelly v, Excise Comm, 396 
 
 Page. 
 
 Matter of Kernochan 282 
 
 Matter of McGowan 760 
 
 Hatter of Oakes 760 
 
 Matter of Raby 239 
 
 Matter of Ryder 19 
 
 Matter of Stafford 355 
 
 Matter of Stanfield 760 
 
 Matter of Strickland 19 
 
 Matter of Teyn 18 
 
 Matter of Travis 760 
 
 Matter of Trustees, etc 747 
 
 Matter of Wilbur v. Warren 10 
 
 Matter of Worthington 625 
 
 Maxwell v. Gerard 402 
 
 Maxwell v. Inman 124 
 
 May v. Gillis 163 
 
 May v. Seyler 556 
 
 Mayer v. Dean 210 
 
 Mayer v. Mode 520 
 
 Mayer v. Moller 187 
 
 Mayfield v. Wadsley 736 
 
 Mayo V. Knowlton 230, 264 
 
 Mayor, etc., of Albany v.'Cunliif, 292 
 
 Mayor of Auburn v. Draper 238 
 
 Mayor of N. Y. v. Mabie 159 
 
 Mayor v. Tenth Nat. Bank 248 
 
 Mazuzan v. Mead 778 
 
 Mead v. Case 739 
 
 Mead v. Degolier.. 39, 666, 672, 673 
 Mead v. Northwestern Ins. Co. . . . 806 
 Meads v. Merchants' Bank.. 253, 541 
 
 Meaker v. Fiero 767 
 
 Mechanics' Bank v. Livingston . . 330 
 
 34.? 
 Mechanics' Bank v. N. Y. & C. R. 
 
 R. Co 200, 251, 282 
 
 Mechanics' Bank of Brooklyn v. 
 
 Townsend 790 
 
 Mechanics & Farmers' Bk. v. 
 
 Smith 289 
 
 Mech. & Farm. Bk. v. Wixson. . . 17 
 Mechanics', etc., Co. v. Scott, 159, 160 
 Mechanics' Bank v. Livingston . . . 343 
 Medbury v. N. Y. & Erie' R. R. . . 201 
 
 Mee V. McNider 664 
 
 Meech v. Patehin 120 
 
 Meech v. Smith 752 
 
 Meech v. Stoner 623 
 
 Meehan v. Forrester 246 
 
 Meeker v. Claghorn. . . . 224, 225, 266 
 
 Meeks v. Bowerman 160 
 
 Meleher v. Kreiser 261 
 
 Mellen v. Hamilton Fire Ins. Co. 809 
 
 813 
 
 Menagh v. Whitwell 320 
 
 Meneely v. Meneely 313 
 
 Mentz V. Newwitter. . . . 727, 869, 870 
 Mercantile Deposit Co. v. Hunt- 
 ington 615 
 
 Mercantile Mut. Ins. Co. v. 
 Calebs 433 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Page. 
 
 Merchants' Bank v. Birch 583 
 
 Merchants' Bank v. Griswold . . . 749 
 
 Merchants' Bank v. Spicer 532 
 
 Merchants' Bank v. Woodruff. . . 446 
 Merchants' Exchange Bk. v. Com- 
 mercial Warehouse Co. . . . 787, 788 
 Merchants' & Mf. Bank v. Cum- 
 
 ings 52 
 
 Merchants' Nat. Bk. v. Barnes . . 303 
 
 309 
 Merchants' Nat. Bank v. Clark . . 533 
 Merchants & Traders' Bk. v. Crow, 555 
 
 Merriam v. Field 700 
 
 Merrick v. Brainard 623 
 
 Merrick v. Gordon 308 
 
 Merriden Nat. Bk. v. Gallaudet. . 311 
 Merrill v. Ithaca, etc., R. E. Co.. 137 
 
 Merrills v. Law 795 
 
 Merrit v. American Dock & T. Co. 20 
 
 Merritt v. Benton 776 
 
 Merritt v. Bissell 209 
 
 Merritt v. Earle 244, 412, 418 
 
 Merritt v. Johnson 388, 676 
 
 Merritt v. Lincoln 492, 493 
 
 Meriden Britannia Co. v. Zingsen, 45 
 Meriden Nat. Bk. v. Gallaudet. . 314 
 
 317 
 
 Merry v. Wilcox 115 
 
 Merwin v. Butler 422 
 
 Merwin v. Hamilton 266 
 
 Meserole v. Hoyt 163 
 
 Meserole v. Sinn 163 
 
 Meyer v. Blair 279 
 
 Meyer v. Harnden's Express Co.. 433 
 
 Meyer v. Hibsher 571 
 
 Meyer v. Peck 424 
 
 Meyer v. Straus 242 
 
 Meyers v. Dorman 843 
 
 Meyers v. New York Co. Nat. Bk. 449 
 
 Milburn v. Belloni 253, 641 
 
 Michel V. O'Brine 179 
 
 Michael v. Eley 196 
 
 Michaels v. N. Y. C. R. E. Co.. . . 413 
 
 Mickles v. Colvin 536 
 
 Middlebrook v. Cor win 160, 161 
 
 Miesell v. Globe Mut. Life Ins. 
 
 Co 135 
 
 Milburn v. Codd 345 
 
 Miller v. Ball 863, 869 
 
 Miller v. Barber 679 
 
 Miller v. Burroughs 749 
 
 Miller v. Cook 8, 832 
 
 Miller v. Eagle Life & Health Ins. 
 
 Co 813 
 
 Miller v. Gamble 535 
 
 Miller v. Gaston 510, 564 
 
 Miller v. Hannibal & St. J. E. R. 
 
 Co 46 
 
 Miller v. Holbrook 496 
 
 Miller v. Hull 785 
 
 Page, 
 ililler V. Illinois Central E. R. . . . 295 
 
 Miller v. Livingston 239 
 
 Miller v. Lookwood 96 
 
 Miller v. McKenzie 2, 553 
 
 Miller v. Mead 455 
 
 Miller v. Plumb 824 
 
 Miller v. Race 558 
 
 Miller v. Steam Navigation Co.. . 419 
 
 Miller v. Thompson 519 
 
 Miller v. Zeimer 782 
 
 Millerd v. Thorn 319, 484 
 
 Milliken v. Dehon 373, 374 
 
 Milliman v. Neher 66, 68, 71 
 
 Millon V. Salisbury 380 
 
 Mills V. Hunt 267, 268, 735 
 
 Mills V. Miller 124 
 
 Minard v. Mead 259 
 
 Ming V. Corbin 4 
 
 Minturn v. Main 264 
 
 Mirick v. Bashford 193 
 
 Mitohel V. Bristol 224, 225 
 
 Mitchell V. Culver 519 
 
 Mitchell v. Ostrom 342 
 
 Mitchell v. West 110 
 
 Mitchell v. Worden 678, 679, 685 
 
 Moakley v. Riggs 507, 508 
 
 Moffatt V. Smith 187, 193 
 
 Moffat V. Strong 146, 159 
 
 Mohawk Bank v. Broderick. . 540, 584 
 
 Moller V. Tuska 689 
 
 Moss V. Jerome 307 
 
 Moss V. Livingston 259 
 
 Moss V. Sweet 658 
 
 Monahan v. Story 627 
 
 Monev v. Fisher 710 
 
 Monn'ot v. Ibert 60, 97, 101 
 
 Monroe Dairy Assn. v. Webb 289 
 
 Monroe v. Hoff 600 
 
 Monroe v. Reynolds & Upton. . . . 480 
 Montgomery Co. Bk. v. Albany 
 
 City Bk 263 
 
 Moody V. Smith. . . 232, 862, 867, 868 
 
 Moore v. Brink 325 
 
 Moore v. Cockroft 559 
 
 Moore v. Cross 571 
 
 Moore v. Evans 433, 434 
 
 Moore v. Fox 836, 844 
 
 Moore v. Goedel 162 
 
 Moore v. Hitchcock 438 
 
 Moore v. Huntington 299 
 
 Moore v. King 708 
 
 Moore v. McKinstry 622 
 
 Moore v. McLaughlin 460 
 
 Moore v. Metropolitan Nat. Bank, 660 
 
 Moore v. Moore 233, 535 
 
 Moore v. Mourgue 361 
 
 Moore v. Potter 687 
 
 Moore v. Westervelt 355 
 
 Moors V. Kidder 229 
 
 Morford v, Fanners' Bank 285 
 
liv 
 
 TABLE OF GASES CITED. 
 
 Morgan v. Congdon 438, 4ol 
 
 Morgan v. Crocker 394 
 
 Morgan v. Mechanics' Banking 
 
 Assn 7t)9, 785 
 
 IMorgan v. Reid 264 
 
 Morgan v. Smith 496, 499 
 
 IMorgan v. Woodworth 590 
 
 More V. Deyo 786 
 
 ]\rorp \ . Rowland 777 
 
 Morey v. Town oi Newfane 14 
 
 Morrison v. Currie 572 
 
 Morris V. Floyd 787, 788 
 
 Morris v. Lee 524 
 
 Morris v. ^Murray 266 
 
 Morris v. N. Y. "C. & H. R. R. R. 
 
 Co 427 
 
 Morris v. Rexford 697 
 
 Morris v. Talcott 677, 078 
 
 Morris v. Third Ave. E. R. Co.. .. 430 
 
 Morris v. Sliter 37 
 
 Morrison v. Currie 267 
 
 Morse v. Hovey 503, 786 
 
 Morse v. Willson 770 
 
 Morss V. Gleason 319, 484 
 
 Morss V. Salisbury 45 
 
 Mortimer v. Bruner 180, 183 
 
 Mortland v. Philadelphia & Read- 
 ing R. R. Co 431 
 
 Morton v. Naylor 527, 530, 548 
 
 Mosely v. Fossett . 394 
 
 Moses V. Bierling 242 
 
 Moses V. Mead 709, 710 
 
 Moses V. Walker 113 
 
 Moses V. Waterbury Button Co. . . 623 
 
 Moss V. Livingston 533 
 
 Moss V. Oakley 284 
 
 Motley V. Flannagan 501 
 
 Mott V. Consumers' lee Co 291 
 
 Mott V. Hicks 284, 490, 533, 568 
 
 Mott V. Palmer 68, 821 
 
 Mott V. Richtmyer 45 
 
 Mott V. United States Trust Co.. 286 
 
 Motram v. Heyer 723, 726 
 
 Mottram v. Mills 266 
 
 Moulton V. iEtna Fire Ins. Co. . . 806 
 
 Mowat V. McLean 270 
 
 Mowers v. Fethers 398 
 
 Mowrey v. Walsh 679, 682 
 
 Mowry v. Bishop 757, 758, 771 
 
 Moyer v. Bloomingdale 94 
 
 Mudgett V. Bay State Steamboat 
 
 Co 430 
 
 Muldon V. Whitlock 599, 600 
 
 Mulford V. Hodges 629 
 
 jNIull V. Jones 460 
 
 Mnller v. Eno 690, 697 
 
 Muller V. Pondir 723 
 
 Mumford v. Brown 186 
 
 Mumford v. Hawkins 756 
 
 Mumford v. MePherson 722 
 
 Hunger v. Shannon 518 
 
 Page. 
 
 Munn y. Barnum 282 
 
 Munn V. Commission Co., 196, 252, 284 
 
 ilunroe v. .Judson 208 
 
 Munson v. Riley 627 
 
 Murdock v. Chenango Co. Mut. 
 
 Ins. Co 98, 803, 806 
 
 Murdock v. Gifford 827 
 
 Murfey v. Brace 679 
 
 Murphy v. Bell 882 
 
 Murphy v. Coram, of Emigration, 218 
 
 Murphy v. Winchester 641 
 
 Murray v. Bogert 345 
 
 Murray v. Burtis 95, 109 
 
 Murray v. Harway 179 
 
 Murray v. Mumford 320 
 
 ifurray v. Judah 541 
 
 Murray v. Judson 787 
 
 ^lurrav v. Marshall 484 
 
 Murray v. Smith 700 
 
 ilurrav v. Shave 176 
 
 Murray v. Vanderbilt 235, 295 
 
 Mussen v. Price 003 
 
 Mutual Benefit Loan & Building 
 
 Co. V. Lynch 747 
 
 Mutual Life Ins. Co. v. Aldrich . . 9 
 
 Muzzy V. Whitney 304 
 
 Myer v. Jacobs 244 
 
 Myers v. Burns 189 
 
 Myers v. Mut. Life Ins. Co 246 
 
 Myers v. Trescott 31 
 
 Myers v. Wells 494 
 
 IMyerson v. Woolverton 432 
 
 Mygatt V. Coe 7 
 
 M;\Tiard v. Syracuse, B. & N. Y. 
 
 R. R. Co 433 
 
 Mytton V. Cock 363 
 
 N. 
 
 Naael v. Lutz 571 
 
 Nasel V. McFeeters 229 
 
 Nash V. Fly 109 
 
 Nash V. Russell 10 
 
 Nasoiy v. Tomlinson 601 
 
 Nason v. Cockroft 271 
 
 National Bank v. Norton . . 294, 295 
 
 318, 342, 568 
 
 National Bank v. Insurance Co.. . 449 
 
 National Bank v. Van Berwerker, 325 
 
 National Bank v. White. . . 554, 555 
 Nat. Bank of Gloversville v. 
 
 Place 497 
 
 National Bank of Newburgli v. 
 
 Bigler 496 
 
 National Bank of Salem v. 
 
 Thomas 298, 316 
 
 National Cash Register Co. v. 
 
 Coleman 476 
 
 National D. & B. Bank v. Hub- 
 bell 680 
 
 National Exchange Bank v. Silli- 
 
 man 49S 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 Page. 
 National Filtering Oil Co. v. Citi- 
 zens' Ins. Co 799 
 
 National Fire Ins. Co. v. Loomis, 870 
 Kat. Hudson Eivtr Bank v. Rey- 
 nolds 585 
 
 National Life Assn. v. Thompson, 263 
 
 Nat. Life Ins. Co. v. Minch 248 
 
 Nat. Mereh. Banking Assn. v. 
 
 Conlding 485, 486 
 
 National Park Bank v. Goddard.. 081 
 Nat. Shoe & Leather Bk. v. Herz, 318 
 Nat. Union Bk. of Watertown v. 
 
 Landon 196 
 
 National Wall Paper Co. v. Sire.. 455 
 Naugatuck Cutlery Co. v. Bab- 
 
 eoek 679 
 
 Neale v. Turton 347 
 
 Needles v. Howard 404 
 
 Neele v. Berryhill 117 
 
 Neff V. Thompson 440 
 
 Neibuhr v. Schreyer 770 
 
 Neidig v. Eifler 113 
 
 Neill V. Popular Life Ins. Co 812 
 
 Nelson v. Andrews 267 
 
 Nelson v. Bostwiok 54, 509 
 
 Nelson v. Cowing 253, 537, 641 
 
 Nelson v. Edwards 374 
 
 Nelson v. Hvidson River R. R. Co. 416 
 
 Nelson v. Neil 60, 116 
 
 Nellis V. Bradley 693, 694 
 
 Nestell V. Hewitt 69 
 
 Nester v. Craig 196 
 
 N. Y. Bank Note Co. v. MeKeige, 268 
 Neuendorff v. World Mut. Life 
 
 Ins. Co 232 
 
 Neustadt v. Joel 90 
 
 Nevins v. Bay State Steamboat 
 
 Co 429, 433 
 
 Newark India Rubber Co. v. 
 
 Bishop 580 
 
 Newcomb v. Clark 861 
 
 Neweomb v. Cramer. . . . 551, 669, 744 
 
 Newell V. Griswold 755 
 
 Newell V. Warner 120, 121 
 
 Newcomb v. Hale 492 
 
 Newell V. Doty 781 
 
 Newhall v. Appleton 48 
 
 New Hope & Del. Bridge v. Phce- 
 
 nix Bank 246, 295 
 
 N. Y. Bowery JFire Ins. Co. v. N. 
 
 Y. Fire Ins. Co 800 
 
 New York Firemen's Ins. Co. v. 
 
 Ely 284 
 
 N. Y. Cent. Ins. Co. v. Nat. Pro. 
 
 Ins. Co 231, 233, 808, 810 
 
 New York Cent. R. R. Co. v. Lock- 
 wood 434 
 
 N. Y. C. & H. R. R. E. Cc.v. 
 
 Standard Oil Co 413, 414 
 
 New York Exchange Co. v. De 
 Wolf 278 
 
 rage. 
 New York & Harlem R. R. v. 
 
 Mayor, etc., of N. Y 287 
 
 New York Ice Co. v. Cousins 870 
 
 New York Investment Co. v. Cos- 
 grove 826 
 
 N. Y., L. E. & W. R. R. R. Co. v. 
 
 N. S. Co 414 
 
 New York Life Ins. & Trust Co. 
 
 V. Beebe 779 
 
 New York & N. H. R. R. v. Schuy- 
 ler 282 
 
 N. Y. & N. H. Sprinkler Co. v. 
 
 Andrews 44 
 
 N. Y. Security & Trust Co. v. 
 
 Lipman 220 
 
 New York Security & Trust Co. v. 
 
 Storm 573 
 
 New York State Bank v. Fletcher, 600 
 New York & Virginia State Bank 
 
 V. Gibson 559, 578 
 
 Newberry v. Wall 728, 729, 830 
 
 Newhall v. Vargas 723 
 
 Newman v. Wilson 706 
 
 Newsam v. Pinch 9, 83, 97, 99 
 
 Newstadt v. Adams 406 
 
 Newton v. Bronson 862 
 
 Newton v. Pope 382 
 
 Nexsen v. Lyell 602 
 
 Niagara Co. Nat. Bk. v. Lord, 78, 105 
 
 108, 110 
 Nicholas v. N. Y. C. & H. R. R. R. 
 
 Co 434 
 
 Nichols V. McEwen 882 
 
 Nichols V. Mase 82 
 
 Nichols V. Michael 678, 680, 693 
 
 Nichols V. Moody 217 
 
 Nichols V. Nussbaum 791 
 
 Nichols V. Pinner 678 
 
 Nichols V. Smith 630 
 
 Nichols V. Townsend 690 
 
 Nicholson v. Leavitt 882, 883 
 
 NicoU v. Burke 224, 261 
 
 Nicoll V. Sands 46 
 
 Niekerson v. Ruger 556, 557 
 
 Nitchie v. Townsend 122 
 
 Niven v. Spickerman 345 
 
 Nixon V. Hyserott 260 
 
 Nixon V. Palmer 197, 198, 208 
 
 Nixon V. Stanley 121 
 
 Noble V. Smith 613 
 
 Noe V. Gregory 268 
 
 Noel V. Murray 599, 860 
 
 Nolan V. Whitney 39, 128 
 
 Nomes v. Homer 840. 841, 842 
 
 Non-Electric Fibre Mfg. Co. v. 
 
 Peabody 277 
 
 Nordemeyer v. Loescher 429 
 
 North V. Bloss 298 
 
 North Am. Fire Ins. Co. v. Mow- 
 
 att 764 
 
 Northampton Nat. Bk. v. Kidder, 556 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Northern Ins. Co. v. Wright 506 
 
 North Eiver Bank v. Aymar, 200, 251 
 
 295 
 
 Norton v. Coons 500 
 
 Norton v. Rensselaer & Saratoga 
 
 Ins. Co 812 
 
 Norton v. Woodruff 383, 636 
 
 Norway Plains Co. v. B. & M. R. 
 
 E. Co 407 
 
 Nourse v. Prime 773 
 
 Novelty Mfg. Co. v. Connell 599 
 
 Noyes v. Anderson 186 
 
 Noyes v. Chapin 872 
 
 Nugent V. Jacobs 885 
 
 Nutting V. Kings Co. El. R. Co.. . 251 
 
 O. 
 
 Oakley v. Aspinwall 306 
 
 Oakley v. Boorman 12 
 
 Oakley v. Crenshaw 222 
 
 Oakley v. Morton 26, 40, 42 
 
 O'Brien t. Brietenbaok 745 
 
 O'Brien v. Capwell 187 
 
 O'Brien v. Commercial Tire Ins. 
 
 Co 812 
 
 O'Brien v. Ferguson 787 
 
 O'Brien v. P. Ins. Co 805 
 
 O'Brien v. Smith 628 
 
 O'Brien v. Young 748 
 
 Ocean Nat. Bk. v. Carll 536 
 
 Ochsenbein v. Shapley 291 
 
 O'Clair v. Hale 439 
 
 Oddy V. James 836 
 
 Odeil V. Greenly 778 
 
 Odell V. Webendorfer 837, 840 
 
 O'Donnell v. Smith 523 
 
 Ogden V. Arnot 342 
 
 Ogden V. Astor 316, S21 
 
 Ogden V. Sanderson 175, 179, 182 
 
 Ogilvie V. Hull , . . 183 
 
 O'Gorman v. Harby 184 
 
 O'Hara v. Robinson 10 
 
 Ohio & Mississippi R. R. Co. v. 
 
 Kasson 787 
 
 Oleott V. Tioga R. R. Co.. . 84, 87, 294 
 
 Oliver v. Greene 799 
 
 Oliver Lee & Co.'s Bank v. Wal- 
 
 bridge ., 776 
 
 Olmstead v. Hotaling. . 677, 678, 679 
 
 688, 689 
 
 Olmstead v. Latimer 9, 496 
 
 Olney v. Wickes 218 
 
 Olyphant v. Baker 653, 654, 656 
 
 Olyphant v. McNair 197 
 
 Omboney v. Jones.. 67, 68, 192, 820 
 
 821 
 
 Oneida Mfg. Society v. Lawrence, 700 
 
 O'Niel V. Martin 54 
 
 O'Neil V. Buffalo Fire Ins. Co... 813 
 
 O'Neil V. Meighan 584 
 
 Page. 
 O'Neil V. N. Y. C. & H. R. R. R. 
 
 Co 416 
 
 O'Neil V. N. Y. State Ag. Soc. . . 202 
 
 O'Neill V. Patterson 479 
 
 Ontario Bank v. Hennessey. . 305, 306 
 Ontario Bank v. Oneida County 
 
 Bank 630 
 
 Ontario Bank v. Walker 498 
 
 Oothout V. Ballard 585 
 
 0. P. R. R. Co. V. Forrest 7 
 
 Orchard v. Rackstraw 440 
 
 Oreutt V. Rickenbrodt 481 
 
 Organ v. Stewart 735 
 
 Orvis V. Curtiss 767, 770 
 
 Osborn v. Alexander 119 
 
 Osborn v. American Ink Co 711 
 
 Osborn v. Gantz 650 
 
 Osborn v. Kerr 218 
 
 Ostrander v. Brown 422 
 
 Oswego M. R. R. Co. v. Van Horn, 278 
 
 Otis V. Sill 71, 72, 107, 108 
 
 Otiss V. Dodd 455 
 
 Ouderkirk v. Central Nat. Bk. . . 352 
 
 353 
 
 Cutwater v. Dodge 731, 737 
 
 Owens V. Holland Purchase Ins. 
 
 Co 804 
 
 P. 
 
 9 
 
 Pabodie v. King 
 
 Pacific Iron Works v. Long Island 
 
 R. R. Co 664 
 
 Packard v. Getman 417 
 
 Packard v. Hill 43 
 
 Paddon v. Taylor 660 
 
 Page V. Ellsworth 174 
 
 Page v. Morrell 519 
 
 Paige V. Ott 130, 666, 672, 673 
 
 Paine v. .Jones 45, 484, 486 
 
 Pain V. Packard 492 
 
 Paine v. Noelke 553 
 
 Paine v. Thatcher 327, 347 
 
 Palmer v. Bearing 187 
 
 Palmer v. D. & H. C. Co 427 
 
 Palmer v. Hand 651 
 
 Palmer v. Minar 29 
 
 Palmer v. Myers 336 
 
 Palmer v. North 761 
 
 Palmer v. Purdy 319 
 
 Palmer v. Stephens 269, 271, 317 
 
 532 
 
 Palmer v. Wetmore 183 
 
 Palmeri v. Manhattan R. Co 291 
 
 Palmerton v. Huxford 210 
 
 Pancoast v. American Heating & 
 
 Power Co 112 
 
 Pardee v. Drew 421 
 
 Parish v, Wheeler 78, 102 
 
 Parker v. Barker 306 
 
 Parker v. Baxter 650, 660 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Page. 
 
 Parker v. Bradley 50 
 
 Parker v. Bristol & E. E. R. Co. . 408 
 
 Parker v. Ellis 6 
 
 Parker v. Gordon 576, 579, 580 
 
 Parker v. Great Western R. R. 
 
 Co 408 
 
 Parker v. Parmelee 7 
 
 Parker v. Patrick 370 
 
 Parker v. Ramsbottom 777 
 
 Parker v. Schenek 738 
 
 Parkhill v. Imlay 239 
 
 Parmalee v. Thompson 9, 49G 
 
 Parmelee v. Dann 629 
 
 Partridge v. Badger 284, 286, 287 
 
 Parks V. Brinkerhoffi 485 
 
 Parks V. Morris Ax & Tool Co.. 690 
 
 701, 702 
 
 Parshall v. Eggert 63 
 
 Parshall v. Lamoreaux 786, 791 
 
 Parsons v. Loucks 737, 739 
 
 Parsons v. Monteath 433 
 
 Parsons v. Hardy 406, 425 
 
 Partridge v. Commercial Eire Ins. 
 
 Co. . 804 
 
 Partridge v. Gildermeister 746 
 
 Pasmore v. North 520 
 
 Passenger v. Thorburn 706 
 
 Patehen v. Wilson 630 
 
 Patchin v. Pierce, 77, 79, 100, 102, 103 
 
 374 
 
 Patterson t. Birdsall 782 
 
 Patterson v. Choate 762 
 
 Patterson v. Powell 843 
 
 Pattison v. Blanchard . . 303, 304, 345 
 
 Pattison v. Hammerstein 362 
 
 Pattison v. Hull 630 
 
 Pattison v. Syracuse Nat. Bk. . . . 353 
 
 Paton V. Westervelt 884 
 
 Payne v. Burnham 782 
 
 Peabody v. Speyers 728 
 
 Peabody v. Washington Co. Mut. 
 
 Ins. Co 802 
 
 Peacock v. N. Y. Life Ins. Co 813 
 
 Peacock v. Peacock 314 
 
 Pearsall -v. Kingsland 786 
 
 Pearse v. Pettis 693 
 
 Pearson v. Skelton 345 
 
 Pearson v. Pearson 612 
 
 Pease v. Smith 658 
 
 Peck V. Grouse 880 
 
 Peek V. Hiler 184 
 
 Peck V. Ingersoll 172 
 
 Peck V. Vandermark 728 
 
 Peck V. Yorks 628 
 
 Peckham v. Leary 90, 193 
 
 Peckhara v. Smith 626 
 
 Pegram v. Carson 220, 227 
 
 Peil V. Reinhart 187 
 
 Peel V. McGraw 444, 445 
 
 Pelletreau v. U. S. Electric Light 
 
 & Power Co 737 
 
 Page. 
 
 Peltier v. Collins 30, 640, 722 
 
 Pendergast v. Union Ry. Co 434 
 
 Penfield v. Thayer 616, 618 
 
 Penn v. Bufifalo & Erie R. R. Co.. 419 
 
 Penny v. Black 299 
 
 Pentz V. Winterbottom 569 
 
 Pentz V. Stanton. . 225, 258, 261, 533 
 
 People V. Annis 144 
 
 People V. Backus 486 
 
 Peoples' Bank of N. Y. v. Bogart, 573 
 
 678 
 People V. Bank of North America, 217 
 
 249 
 
 People V. Berner 492 
 
 People V. Bostwick 50 
 
 People V. Campbell 285 
 
 People V. Darling 156, 158 
 
 People V. Fromme 534 
 
 People V. Gates 535 
 
 People V. Gasherie 763 
 
 People V. Gedney 158, 181 
 
 People V. Globe Mut. Ins. Co 27 
 
 People V. Goodwin 872 
 
 People V. Jones 396 
 
 People V. Judges, etc 206 
 
 People V. May 284 
 
 People V. Manhattan Co 293 
 
 People V. Russell 492, 503 
 
 People V. Remington & Sons 64 
 
 People V. N. Y., L. E. & W. R. R. 
 
 Co 407, 408 
 
 People V. St. Nicholas Bank 449 
 
 People V. Stiner 145, 146 
 
 People V. Shall 8 
 
 People V. Stearns 8 
 
 People V. Tioga Common Pleas. . 621 
 
 Perry v. Tynen 257 
 
 People V. Utica Ins. Co 284 
 
 People V. Wiman 303 
 
 Perkins v. Batterson 69 
 
 Perkins v. Goodman 50 
 
 Perkins v. Washington Ins. Co. . . 294 
 
 802 
 
 Perreira v. Jopp 544 
 
 Petrie v. Barckley 7 
 
 Peters v. Whitney 134 
 
 Peterson v. Mayor, etc., of N. Y.. 287 
 
 Pettee v. Orser 336 
 
 Petty V. Pish 699 
 
 Petty V. Overall 377 
 
 Peyser v. Myers ; . . . 757, 764 
 
 Pfanner v. Sturmer 193 
 
 Phoenix Nat. Bk. v. Cleveland Co. 80 
 
 Phoenix Mills v. Miller 825 
 
 Phoenix Ins. Co. v. Church 557 
 
 Phcenix Warehouse Co. v. Badger, 279 
 
 Philpot V. Bryant 583 
 
 Phillips V. Mackellar 774 
 
 Phillip V. Gallant 31, 39 
 
 Phelps V. Vischer 570 
 
Jviii 
 
 TABLE OF CASES CITED. 
 
 Page. 
 Piekford v. Grand Junction R. R. 
 
 Co 407, 413 
 
 Picker v. Fitzelle 502 
 
 Pickering v. Dowson 717 
 
 Pickett V. Bartlett 152 
 
 Pickslay v. Starr 614, 619 
 
 Pidcoek v. Bishop 491 
 
 Pier V. George 622, 630 
 
 Pierce v. Drake 689 
 
 Pierce v. Empire Ins. Co 803 
 
 Pierce v. Nichols 755 
 
 Pierce v. Schenck. . 129, 383, 384, 638 
 
 676 
 
 Pierrepont v. Bernard 867 
 
 Pierson v. Hooker 334 
 
 Pigot V. Cubley 374 
 
 Piggot V. Mason 166 
 
 Pinckney v. Hagadorn 870 
 
 Pine V. Rickert 883 
 
 Pinney v. Hall 686 
 
 Pintard v. Taekington, 603, 606, 608 
 
 Piper V. Manny 404 
 
 Pitney v. Glens Falls Ins. Co... 733 
 
 801 
 
 Pitt V. Yalden 392 
 
 Pitkin V. Long Island R. R. Co.. . 838 
 
 Pitts V. Congdon 498 
 
 Place V. Mellvain 493, 494, 495 
 
 Place V. Union Express Co.. 406, 435 
 
 Placide v. Burton 127 
 
 Plato V. Reynolds 579 
 
 Planche v. Colburn 386 
 
 Piatt V. Grubb 615 
 
 Piatt V. Hibhard 394 
 
 Piatt V. Stout 623 
 
 Plets V. Johnson 522 
 
 Plimpton V. Curtiss 844 
 
 Plumb V. Cattaraugus Co. Mut. 
 
 Ins. Co 808 
 
 Plumb V. Milk 268 
 
 Pollen v. Le Roy 688 
 
 Pollock V. Ehle 648, 755 
 
 Pollock V. National Bank 281 
 
 Pollock V. Penn. Iron Works Co. . 44 
 
 Pollon V. Secor 306 
 
 Pomeroy v. Ainsworth. . 749, 707, 768 
 770, 793, 795 
 
 Port V. Jackson 52 
 
 Porter v. McClure 299 
 
 Porter v. Parmley 84, 100 
 
 Porter v. Wormser 843 
 
 Post V. Dart 787 
 
 Post V. Kearney 166, 192 
 
 Post V. Kimberly 314, 316 
 
 Post V. Post 158 
 
 Post V. President, etc., of Bank of 
 
 Utica 787 
 
 Post V. Vetter 188 
 
 Pothonier v. Dawson 373 
 
 Pott V. Clegg 368 
 
 Pott V. Eyton 306, 309 
 
 Page. 
 
 Potts V. Hart 73 
 
 Potter V. Cromwell 822. 
 
 Powell V. Smith 497, 498 
 
 Powell V. Trustees of Newburgh. . 265 
 
 Powell V. Myers 412, 428, 433 
 
 Powder Co. v. Burkhardt 383 
 
 Powell V. Waters 780 
 
 Powers V. Benedict 689 
 
 Powers V. Knapp 278 
 
 Powers V. Silberstine 492, 496 
 
 Poucher v. Blanchard 291 
 
 Pratt V. Adams 537, 777, 796 
 
 Pratt V. Baker 822, 823, 826 
 
 Pratt V. D. H. M. F. Ins. Co 232 
 
 Pratt V. Gulick 40 
 
 Prall V. Hinchman 556 
 
 Pratt V. Stiles 77, 102 
 
 Prentice v. Fargo 706 
 
 Prentiss v. Farnham 24 
 
 Prentiss v. Slack, 93, 94, 95, 107, 108 
 109, 110, 111 
 Presbyterian Church v. Mayor, 
 
 etc., of N. Y 290 
 
 Presbyterian Church of Albany v. 
 
 Cooper 23 
 
 Prescott V. Hull 628 
 
 Preston v. Fitch 320, 321 
 
 Preston v. Hawley 155 
 
 Preston v. Southwick 114 
 
 Preston v. Strutton 345 
 
 Pretzfelder v. Strobel 348 
 
 Price V. Hartshorn 413, 418 
 
 Price V. Holman 758 
 
 Price V. Keyes 215, 216 
 
 Price V. Lyons Bank 776, 777 
 
 Price V. Powell 423 
 
 Price V. Price 622 
 
 Prime v. Koehler 853, 854 
 
 Prindle v. Caruthers 8, 626 
 
 Pringle v. Leverich 307 
 
 Pringle v. Phillips 685 
 
 Pringle v. Spaulding 862 
 
 Provost V. Calder 168, 169 
 
 Puckford V. Maxwell 603 
 
 Pugsley V. Akin 151 
 
 Pullman v. Corning 138 
 
 Pulver V. Harris 627 
 
 Purchase v. Mattison 557 
 
 .Purdy V. Collyer 872 
 
 Purdy V. Phillips 759 
 
 Purvis V. Coleman 401 
 
 Purvis V. Landell 392 
 
 Putnam v. Lewis 494, 601, 602 
 
 Putnam v. Wise 144, 310 
 
 Puttock V. Warr 213 
 
 Putzel V. Wilson 234 
 
 Q. 
 
 Quackenboss v. Clarke 168, 169 
 
 Quackenbush v. Ehle 845 
 
 Quackenbush v. Leonard 757, 770 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Page. 
 
 Quick V. Wheeler 687 
 
 Quinn v. Moore 621 
 
 Quinlan v. Providence-Wsisliing- 
 
 ton Ins. Co 8H 
 
 Quintard v. De Wolfe 857 
 
 R. 
 
 Raba v. Eyland 337 
 
 Eabone v. Williams 447 
 
 Eadt V. Rossenfeld 335 
 
 Raffles V. Wichelhaus 31 
 
 Raitt V. Mitehel 441 
 
 Ramaley v. Leland 401, 402 
 
 Ramsay v. Gardner 265 
 
 Ramsdell v. Morgan 773 
 
 Ramsey v. Lewis 501 
 
 Randall v. Carman 73 
 
 Randall v. Cook 107 
 
 Randall v. Parker Ill 
 
 Randall v. Sweet 59 
 
 Randell v. Van Veehten, 260, 269, 271 
 
 Ranger v. Bacon 171 
 
 Raney v. Weed 199 
 
 Rapalee v. Stewart 879 
 
 Rapelye v. Mackie 653 
 
 . Raphael v. Pickford 422 
 
 Rapp V. Gottleib 631 
 
 Rapp V. Latham 338 
 
 Rappley v. Adee 732 
 
 Ratcliff V. Davies 369 
 
 Rathbon v. Budlong 267 
 
 Rathbone v. N. Y. C. &. H. R. R. 
 
 R. Co 434 
 
 Rathbone v. Warren 494 
 
 Eathbun v. Ingalls 238 
 
 Rathbun v. Platner 880 
 
 Eauth V. Davenport 164 
 
 Eawson v. Grow 756 
 
 Eaymond v. Bearnard 764 
 
 Raymond v. Merchant 601 
 
 Eaymond v. White 821, 827 
 
 Raynor v. Hoagland 569 
 
 Reab v. McAllister 754 
 
 Reab v. Moor 128 
 
 Read v. City of Buffalo 5111, 582 
 
 Eead v. Marine Bank 604 
 
 Eead v. Spaulding 418 
 
 Eeadhead v. Midland Ey. Co 426 
 
 Eeading Brai-d Co. v. Stewart. . . 318 
 Eeal Estate Trust Co. v. Keeoh ... 782 
 
 Eector, etc. v. Higgins 52, 488 
 
 Eector, etc. v. Teed 9, 15 
 
 Redhead v. Parkway Driving 
 
 Club 233 
 
 Redmond v. Liverpool, N. Y. & 
 
 Phila. S. Co 423 
 
 Eeformed, etc.. Church v. Brown, 23 
 
 Regan v. Fosdick 154, 155 
 
 Eegus v. Moran 648 
 
 Reid V. Hollinshead 337 
 
 Reid V. Sprague 631 
 
 Page. 
 
 Eemsen v. Beekman 492 
 
 Eeed & Barton v. Ashe, 319, 484, 493 
 
 494 
 
 Reed v. Drake 49 
 
 Eeed v. Lozier 630 
 
 Reed v. Panama R. E. Co 256 
 
 Eeed v. Eandall 676, 701 
 
 Eeed v. Smith 785 
 
 Eeed v. Warner 234 
 
 Eeeder v. Sayer... 141, 155, 156, 193 
 
 Eeehl v. Martens 599 
 
 Eenaud v. Peck 696, 697 
 
 Eensselaer Glass Factory v. Eeid, 752 
 
 756 
 Eepublie of Mexico v. Ockers- 
 
 hausen 53 
 
 Eequa v. Domestic Pub. Co 173 
 
 Reubens v. Joel 90 
 
 Eew V. Barber 600, 741 
 
 Eex V. Ivens 397 
 
 Eexford v. Widger 787 
 
 Eeynolds v. Bank of Mt. Vernon. . 280 
 
 Reynolds v. Doyle 555 
 
 Eeynolds v. Ellis 73 
 
 Eeynolds v. Empire Lumber Co.. 601 
 
 Eeynolds v. Meldrum 18& 
 
 Eeynolds v. Meyer^ Lane & Co. . . 707 
 Eeynolds v. N. Y. Building-Loan 
 
 B. Co 280 
 
 Reynolds v. Shuler 821 
 
 Reynolds v. Spencer . : 664, 666 
 
 Eeynolds v. Ward 496 
 
 Eieard v. Sanderson 852 
 
 Eiee v. Butler 59, 695 
 
 Eiee v. Churchill 552, 669 
 
 Eiee v. Dewey 825 
 
 Eiee V. Mather 778 
 
 Rice V. Peet 868 
 
 Rice V. Rice 528,' 546 
 
 Rice V. Welling 782 
 
 Eich V. Milk 83 
 
 Eieh V. Monroe 223, 263 
 
 Eich V. Penfield 310 
 
 Richards v. London R. E. Co 425 
 
 Eichards v. Warring 573 
 
 Eichardson v. Emmett 282 
 
 Eichards v. Westcott 406, 420 
 
 Richardson v. Hughitt 300, 303 
 
 Eichardson v. Mead 627 
 
 Eichardson & Morgan Co. v. Gude- 
 
 will 553 
 
 Eichmond v. Smith 402 
 
 Richmond v. Union Steamboat Co. 413 
 Richmondville Union Seminary v. 
 
 McDonald 23 
 
 Eickard v. Stanton 868 
 
 Ehinelander v. Seaman 160 
 
 Eider v. McKnight 661 
 
 Rider v. Union India Rubber Co. 266 
 
 Ridgway v. Grace 9 
 
 Ridden v. Thrall 610, 617, 618 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 Eightmyer v. Raymond 638, 673 
 
 Riggs V. C. M. Ins. Go 799 
 
 Riley v. Seymour 56, 506 
 
 Riley v. Suydam 195 
 
 Rinchey v. Stryker 89 
 
 Riudge V. Judson 501, 502, 831 
 
 Ringle v. O'Mathiessen 486 
 
 Ringle v. Wallis Iron Works, 458, 459 
 
 461 
 
 Rinsehler v. Jellffe 710 
 
 Ripley v. iEtna Ins. Co 803 
 
 Ripley v. Colby 314 
 
 Ripley v. Larmouth 45 
 
 Risley v. Phojnix Bank 627, 629 
 
 Ritt V. Washington, etc., Ins. Co. 231 
 
 Ritter v. Phillips 16, 748 
 
 Rives V. Micliaels 307, 348 
 
 Roach V. Coe 210 
 
 Robbins v. Butcher 882 
 
 Robbins v. Fuller 344 
 
 Robbins v. Robbins 865 
 
 Roberts v. Chenango Co. Mut. Ins. 
 
 Co 98 
 
 Roberts v. Cobb 23 
 
 Roberts v. Johnson 338 
 
 Roberts v. Morgan 699, 703 
 
 Roberts v. Ogilby 411 
 
 Roberts v. S. S. D. Co 412 
 
 Roberts v. Turner 406 
 
 Roberts & Co. v. Buckley. . . 879, 880 
 
 Robertson v. Kennedy 405 
 
 Robertson v. Ketehum 206, 686 
 
 Robertson v. Livingston .... 215, 222 
 
 Robertson v. Loekie 341 
 
 Robertson v. Sully 494 
 
 Robertson v. Vaughn 737 
 
 Kobinson v. Ames 578 
 
 RobinBon v. Cornish 406 
 
 Robinson v. Dauchy 683 
 
 Robinson v. Frost 485 
 
 Robinson v. Jewett 9 
 
 Robinson v. Kaplan 121, 440 
 
 Robinson v. Rutter 438 
 
 Robinson v. Plimpton 57 
 
 Robinson v. Preswick 825 
 
 Robinson v. Springfield Iron Co.. 451 
 
 Hobinson v. Stewart 756 
 
 Robinson v. Walter 444 
 
 Robinson v. Williams 96 
 
 Roberge v. Winne 863 
 
 Rockfeller v. Donnelly 52, 488 
 
 Rochester v. Taylor 556 
 
 Rochester Distilling Co. v. Deven- 
 
 dorf 689 
 
 Rochester Distilling Co. v. Rasey, 68 
 
 69 
 Rochester & K. F. Land Co. v. 
 
 Raymond 280 
 
 Rochester White Lead Co. v. City 
 
 of Rochester 292 
 
 Rock-well v. Charles 796 
 
 Page. 
 
 Rockwell v. Dye 541 
 
 Rockwell v. Hartford Fire Ins. 
 
 Co 802 
 
 Rodgers v. Phillips 664, 732 
 
 Rodney Hunt Mach. Co. v. Stew- 
 art 477 
 
 Roebling v. Duncan 678 
 
 Roehr v. Liebmann 565 
 
 Rogers v. Ackerman... 700, 703, 711 
 
 Rogers v. Coit 317 
 
 Rogers v. D wight 118 
 
 Rogers v. Kneeland 830 
 
 Rogers v. Ostrom 182 
 
 Rogers v. Smith 45 
 
 Rogers v. Van Hoesen 669 
 
 Roget V. Merritt 602, 742 
 
 Rorbach v. Crossett 154 
 
 Rohrbaeh v. Germania Fire Ins. 
 
 Co 799 
 
 Rolt V. Watson 608 
 
 Roman Catholic Orphan Asylum 
 
 V. Strain 615 
 
 Roome v. Jennings 689 
 
 Rooney v. Second Ave. R. R 450 
 
 Roosevelt v. Hopkins 106 
 
 Root V. French 677, 680, 682 • 
 
 Root V. Strang 528 
 
 Root V. Long Island R. R. Co. . . . 408 
 
 Root V. N. Y. & N. E. R. R. Co.. . 419 
 
 Rooth V. Wilson 377, 378 
 
 Rosa V. Butterfield 787, 789 
 
 Rose V. Dickson 780 
 
 Rose V. Baker 630 
 
 Rose V. B. & P. Paper Works 460 
 
 Rosenthall v. Dessau 725 
 
 Rosenbaum v. Gunter 832, 833 
 
 Rosenweig v. McCaffrey 5 
 
 Ross V. Bedell 554, 555 
 
 Ross V. Drinker 309 
 
 Ross V. Hardin 19 
 
 Ross V. Hurd 585 
 
 Ross V. Moses 369 
 
 Ross V. Terry 719 
 
 Ross V. West 346 
 
 Rossiter v. Rossiter 198, 260, 272 
 
 Roth V. Buffalo & State Line R. 
 
 R. Co 431 
 
 Roth V. Palmer 689, 690 
 
 Rothmiller v. Stein 709 
 
 Rouillon V. Wilson 187 
 
 Rounds V. Del., Lack. & W. R. R. 
 
 Co 291 
 
 Ro'urke v. Duffy 13 
 
 Rousell V. St. Nicholas Ins. Co.. 800 
 
 801 
 
 Rowan v. Buttman 224 
 
 Rowan v. Lytle 173 
 
 Rowe V. Stevens 235 
 
 Rowland v. Phalen 260, 269 
 
 Rowley v. Ball 603 
 
 Rowley v. Gibba 756 
 
TABLE OF OASES CITED. 
 
 Ixi 
 
 Page. 
 
 Eoyer Wheel Co. v. Fielding 336 
 
 Ruokman v. Pitcher 752 
 
 Ruderow v. Huntington 721 
 
 Ruff V. Webb 528 
 
 Ruffin V. Ruggiero 423 
 
 Rumsey v. Briggs 332 
 
 Russell V. Allerton 44 
 
 Russell V. Butterfield 99 
 
 Russell V. Carrington 656 
 
 Russell V. Cook 14 
 
 Russell V. Freer 50 
 
 Russell V. Livingston 406 
 
 Russell V. McCall 320 
 
 Russell V. Minor 650, 657, 742 
 
 Russell V. Nelson 783 
 
 Russell V. Niool.. 645, 646, 665, 672 
 
 729 
 
 Russell V. Whipple 524 
 
 Russell V. Winne 73 
 
 Rust V. Eekler 690 
 
 Rust V. Morse 93 
 
 Eyan v. Dox 864 
 
 Ryan v. Jones 176, 181 
 
 Kyan v. Voelke 39 
 
 Ryan v. Wollowitz 479 
 
 Ryall V. Rolle 369 
 
 Ryder v. Gilbert 314 
 
 S. 
 iSacketts Harbor Bk. v. Lewis Co. 
 
 Bk 286, 287 
 
 Saokett v. Palmer 528, 833 
 
 Sackett v. Spencer 524 
 
 Sadler v. Nixon 345 
 
 Sagalowitz v. Pellman 21 
 
 Sage V. Hazard '. 21 
 
 Sage V. Sharman 198 
 
 Sage V. Stafford 458, 459 
 
 Sale V. Darragh 729, 731 
 
 Salisbury v. Stainer 715 
 
 Salmon v. Grosvenor 582 
 
 Salomon v. Weisberg 145 
 
 Salt Springs Nat. Bk. v. Barton.. 583 
 Salt Springs Nat. Bank v. Burton, 580 
 Salt Springs Nat. Bank v. Sloan, 507 
 
 Salter v. Ham 302 
 
 Saltus V. Everett. . 441, 443, 659, 684 
 
 Sampson v. Rose 194 
 
 Sander v. Sander 341 
 
 Sanders v. Gillespie 853, 854 
 
 Sanders v. Potlitzer Bros. Fruit 
 
 Co 30 
 
 Sanders v. Lake Shore & Mich. S. 
 
 R. R. Co 749 
 
 Sanders v. P. B. F. Co 141 
 
 Sanders v. Spencer 400 
 
 Sanderson v. Bell 438 
 
 Sanderson v. Goodrich 26 
 
 Sandford v. Am. Dist. Tel. Co.. . . 406 
 
 Sandiland v. Marsh 338 
 
 Sands v. Church 787 
 
 Page. 
 
 Sands v. Taylor 687, 716 
 
 Sanford v. Mickles 342, 568 
 
 Sanford v. Sanford 615 
 
 Sanger v. Eastwood 93, 112, 120' 
 
 Sanger v. French ■. 843 
 
 Sanger v. Waterbury 654 
 
 Saratoga Co. Bk. v. King 26 
 
 Sargeant v. Slack 395 
 
 Satterlee v. Groat 407, 413 
 
 Sattler v. Hallock 45, 46, 383 
 
 Satler v. Hallock 385 
 
 Satterthwaite v. Vreeland 242 
 
 Saunders v. Plumnier 397 
 
 Savage v. Corn Exchange Fire & 
 
 Inland Nav. Ins. Co 810, 813 
 
 Savage v. Howard Ins. Co 811 
 
 Savage v. Putnam 317, 319 
 
 Sawyer v. Chambers 553 
 
 Sawyer v. McLouth 10 
 
 Sayles v. Kerr 171 
 
 Sayles v. Nat. Water Purifying 
 
 Co 479 
 
 Scarfe v. Morgan 442, 443 
 
 Sehaefer v. Henkel 261 
 
 Schafer v. Reilly .■ 631 
 
 Schenectady Stove Co. v. Hol- 
 
 brook 31, 640 
 
 Schermerhorn v. Am. Life, etc., 
 
 Ins. Co 786 
 
 Schermerhorn v. Farley 197 
 
 Schermerhorn v. Loines 600 
 
 Schermerhorn v. Talman 778 
 
 Soheu V. Erie Ry. Co 412 
 
 Schick V. Fleisehauer 189 
 
 Sehiffer v. Dietz 690 
 
 Sehieffelin v. Carpenter 173 
 
 Schmitz V. Langhaar . .■ . . 506 
 
 Schmalz v. Mead 455 
 
 Schmidt v. Blood 394, 451 
 
 Schmerenbeok v. Finke 837 
 
 Schmittler v. Simon 518, 577 
 
 Schmitz V. Langhaar . .- 507 
 
 Schaelfield v. Eichelberger 340 
 
 Schoonmaker v. Elmendorf 54 
 
 Sehoonmaker v. Hoyt 44 
 
 Schoonmaker v. Vervalen 656 
 
 Schram v. Werner 6 
 
 Schreyer v. Fenton 650 
 
 Schroeder v. Hudson River R. R. 305 
 
 424 
 
 Schroder v. Ward 382 
 
 Schroeppel v. Corning 796 
 
 ■^.-hmepwl ■" Phaw... 492, 493, -'"R 
 
 Schultz v. Griffn 242 
 
 Schultz V. Hoan-'and 8"^" 
 
 Schuyler v. "R„sr 70R. 7?2 
 
 SchuVier v. S^Hh 32, ^^^. }'^2 
 
 Schwart7 v. Trvman 501, 502 
 
 Schwartzchild & Sulzberger Co. 
 
 v. Mathews 337 
 
 Seobell v. Block 822 
 
TABLE OF CASES CITED. 
 
 Page. 
 
 Scott V. Brown 48 
 
 Scott V. Central Park, etc., R. R. 
 
 Co 428 
 
 Scott V. Delahunt 437 
 
 Scott f. Frink 9 
 
 Scott V. McGrath 198, 253 
 
 Scott V. Meeker 606, 607 
 
 Scott V. Parker 376 
 
 Scott V. Pentz 647 
 
 Scott V. Rogers 212 
 
 Scott V. Simes 614 
 
 Scott V. Tyler 490 
 
 Scott V. Warner 639 
 
 Scovill V. Griffitli 426 
 
 Seovill V. Scovill 762 
 
 Scranton v. Baxter 365 
 
 Scranton v. Booth 143 
 
 Scranton v. Clark 717 
 
 Scroeppel v. Shaw 498 
 
 Seaman v. Hasbrouck 28, 852 
 
 Seaman v. Low 688 
 
 Seaman v. Luce '. 435 
 
 Seaman v. Seaman 14, 15 
 
 Sear v. Prentice 391 
 
 Sears v. Brink 830 
 
 Sears v. Conover 623 
 
 Second Ave. R. R. v. Coleman . . . 237 
 Second Nat. Bank v. Weston ... 596 
 
 Seeley v. Engell 537 
 
 Segelken v. Meyer 263 
 
 Selden v. Pringle 608 
 
 Seneca County Bk. v. Lamb 289 
 
 Seneca County Bank v. Neass . . . 557 
 Seneca Co. Bank v. Schermerhorn, 776 
 Seventeenth Ward Bk. v. Smith.. 287 
 
 Sewall V. Allen 416 
 
 Sewell V. Fitch 737 
 
 Sewall V. Gibbs 755 
 
 Sexias v. Woods 712 
 
 Sexton V. Montgomery Co. Mut. 
 
 Ins. Co 809 
 
 Seymour v. Brown 636 
 
 Seymour v. Cowing 536 
 
 Seymour v. Pellows 628 
 
 Seymour v. Marvin 773 
 
 Seymour v. Strong 777 
 
 Seymour v. Wilson 883 
 
 Seymour v. Wyekoff 208, 212 
 
 Shaefer v. Heiikel 224, 258 
 
 Shaf er v. Guest 445 
 
 Sharp V. Cropsy 19 
 
 Sharp V. Whipple 801 
 
 Shaver v. Ehle 572 
 
 Shedlinsky v. Budweiser ' Brewing 
 
 Co 156 
 
 Sheills V. Blackburn 361 
 
 Sheldon v. Atlantic Fire & Marine 
 
 Ins. Co 808 
 
 Sheldon v. Button 618 
 
 Sheldon v. Chapman 578 
 
 Sheldon v. Dodge 882, 883 
 
 Page. 
 Sheldon Hat Blocking Co. v. 
 
 Eickemeyer Hat Blocking Mach. 
 
 Co 287 
 
 Sheldon v. Haxtun 11, 782, 794 
 
 Sheldon v. Horton 585 
 
 Sheldon v. Smith 883 
 
 Sheldon v. Stevens 346 
 
 Sheldon v. Wickham, 78, 88, 105, 115 
 
 Sheldon v. Wood 623 
 
 Shelmire v. Williams & Clark Co. 45 
 
 Shepard v. Philbriok 194, 826 
 
 Shephard v. Little 872 
 
 Shepherd v. Temple 559 
 
 Sheridan Electric Light Co. v. 
 
 Chatham Nat. Bk 289 
 
 Sherman v. Bernard 14 
 
 Sherman v. Hudson River E. R. 
 
 Co 422, 423 
 
 Sherman v. Inman Steamship Co. 407 
 Sherman v. N. Y. C. R. R. Co. . . 260 
 
 270 
 
 Sherman v. Wells 406 
 
 Sherridan v. Mayor 628 
 
 Sherrill v. Crosby 866 
 
 Sherwood v. Agricultural Ins. Co. 811 
 
 Sherwood v. Barton 331 
 
 Sherwood v. Buffalo & N. Y. City 
 
 R. R 449 
 
 Sherwood v. Saratoga, etc., R. R. 
 
 Co 233 
 
 Sherwood v. Stone 224, 237, 855 
 
 Shields v. Pettie. . . 645, 674, 695, 696 
 
 Shilcoek v. Passman 391 
 
 Shillibeer v. Glyn 358 
 
 Shindler v. Houston 7^30 
 
 Shipman v. Bank of New York. . 248 
 
 255 
 
 Shipman v. Kelley 319, 493, 494 
 
 Shiras v. Morris 210 
 
 Shoemaker v. Benedict 509 
 
 Shoemaker v. Glens Falls Ins. Co. 803 
 
 Short V. Kalloway 498 
 
 Shotwell V. Dixon 877, 878 
 
 Shott V. Strealfleld 307 
 
 Shower v. Pilck 617 
 
 Stephens v. Perrine 107 
 
 Shuart v. Taylor 60, 68 
 
 Shufeldt V. Shufeldt 787 
 
 Shull V. Ostrander 707, 708 
 
 Shute V. Dorr 840, 841, 842 
 
 Sbutts V. Fina-ar 583 
 
 Sibbald v. Bethlehem Iron Co. . . 241 
 
 242 
 
 Sice v. Cunningham 578, 582 
 
 Sidney Glass Works v. Barnes & 
 
 Co 31 
 
 Siedenbach v. Riley 65 
 
 Siefke v. Koch 170, 171 
 
 Sier v. Bache 197 
 
 Siffken v. Wray 723 
 
 Silsbury v. McCoon 80 
 
TABLE OF OASES OITED. 
 
 Ixiii 
 
 Page. 
 
 Sill V. Rood 559 
 
 SilVernail v. Cole 14, 16, 867 
 
 Simis V. Hodge '72, 73 
 
 rSimon-Riegel Cigar Co. v. Gordon- 
 
 Burnhani Battery Co 162 
 
 Simmons v. More 268 
 
 Simmons v. Ocean Causeway .... 137 
 
 Simpson v. Del Hoyo 660 
 
 Sims V. United States Trust Co., 48 
 
 Sinclair v. Jackson 257 
 
 Singer v. Troutman 492 
 
 Sinnott v. German-American Bk., 678 
 Sinslieimer v. N. Y. C, etc., E. R. 
 
 Co 412 
 
 Sipperly v. Stewart 751 
 
 Sisson V. Hibbard 826 
 
 Sizer v. Miller 796 
 
 Skidmore v. Collier 321 
 
 Skilding v. Warren 556 
 
 Skinner v. Tinker 339 
 
 Slater v. Baker 391 
 
 Slee V. Bloom 293 
 
 Slingerland v. Morse 357, 436 
 
 Slingerland v. Swart 763 
 
 Sloan T. Baird 751 
 
 Smack v. Cathedral of the Incar- 
 nation 458 
 
 Small V. Smith 556 
 
 Smart v. Sandars 373 
 
 Smedberg v. Simpson 792 
 
 Smedberg v. Whittlessy 792 
 
 Smith V. Abbot 547 
 
 Smith V. Acker 109 
 
 Smith V. Allt 153 
 
 Smith V. Applegate 601 
 
 Smith V. Alvord 789 
 
 Smith V. Aylesworth 585 
 
 Smith V. Beattie 64 
 
 Smith V. Benson 67, 68, 824 
 
 Smith V. Bodine 303, 309 
 
 Smith V. Bradhurst 208 
 
 Smith V. Brady 39, 842 
 
 Smith V. Braine 555 
 
 Smith V. Briggs 127 
 
 Smith V. Birmingham, etc., Gas 
 
 Light Co 292 
 
 Smith V. Clark 636 
 
 Smith V. City of Newburgh. . 211, 287 
 
 Smith V. Clews 48, 370 
 
 Smith V. Conlin 836 
 
 Smith V. Cook 395 
 
 Smith V. Cooper 74 
 
 Smith V. Cross 852 
 
 Smith V. Crouse 57 
 
 Smith V. Dann 487 
 
 Smith V. Devlin 178 
 
 Smith V. Empire Ins. Co.. . . 803, 808 
 
 Smith V. Griffith 348 
 
 Smith V. Hicks 499 
 
 Smith V. Howell 489 
 
 Smith V. Hughes 32 
 
 Page. 
 
 Smith V. James 540, 541, 584, 638 
 
 Smith V. Kerr 44, 334 
 
 Smith V. Kidd 197, 198 
 
 Smith V. Knox 555 
 
 Smith V. Law 293 
 
 Smith V. Lynes 650, 665 
 
 Smith V. McGovern 240 
 
 Smith V. Miller 541, 584 
 
 Smith V. Molleson 483, 486 
 
 Smith V. Nashua & Lowell R. R. 
 
 Co 425 
 
 Smith V. National Benefit Society, 679 
 Smith V. N. Y. C. R. R. Co. . . 432, 739 
 Smith V. N. Y. & N. H. R. R. Co., 623 
 
 Smith V. Nightingale 529 
 
 Smith V. Niver 174 
 
 Smith V. Pettee 687 
 
 Smith V. Robson 135 
 
 Smith V. Rockwell 608, 609 
 
 Smith V. Schanek 537 
 
 Smith V. Seward 406 
 
 Smith V. Simmis 394 
 
 Smith V. Smith 750 
 
 Smith V. Stewart 144 
 
 Smith V. Thompson 136 
 
 Smith V. Townsend 494 
 
 Smith V. Tracy 196 
 
 Smith V. Unangst 582 
 
 Smith V. Velie 756 
 
 Smith V. Van Nostrand 269 
 
 Smith V. Ware 10 
 
 Smith V. Weston 556, 572, 595 
 
 Smith V. Wilson 602 
 
 Smith V. Wilcox 244 
 
 Smyley v. Reese 611 
 
 Snead v. Watkins ■ 444 
 
 Snediker v. Warring 825, 826 
 
 Snook V. Davidson 448 
 
 Snyder v. Garden 160 
 
 Snyder v. Lindsey 325 
 
 Soloman v. Neidig 672 
 
 Solomon v. Continental Fire Ins. 
 
 ^o 810, 811 
 
 Soltau V. Gerdau 220 
 
 Sommer v. Oppenheim 679 
 
 Soper V. Buffalo & Rochester R. R., 294 
 South Baptist Society v. Clapp . . 288 
 South Buffalo Natural Gas Co. v. 
 
 Bain 278 
 
 South Carolina Bank v. Case. . . 317 
 
 South Sea Co. v. Duncomb 37? 
 
 Southard v. Bennett 73 
 
 Southard v. Eenner 88 
 
 Southern Central R. R. Co. v. 
 
 Town of ]Moravia 753 
 
 Southern Life Ins. & Trust Co. v. 
 
 Packer 788 
 
 Southwick V. Sax 602 
 
 South worth v. Isham 80 
 
 Spade V. Hudson River R. R. Co., 417 
 Spalding v. Rosa 41 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Spalding v. Vandereook 28 
 
 Spark V. Heslop 489 
 
 Sparks v. Messick 700 
 
 Sparrow v. Chisman 555 
 
 Spaulding v. Keyes 74 
 
 Spaulding v. Rosa • . . . 27 
 
 Spear v. Myers 557 
 
 Spears v. Hartly 437 
 
 Spears v. Willis 340 
 
 Spellman v. Freedman 878 
 
 Spence v. Ham 39 
 
 Spencer v. Ballou 591 
 
 Spencer v. Field 258, 270 
 
 Spencer v. Halstead 839, 841 
 
 Spencer v. Spencer ■ 484 
 
 Spencer v. Tilden 779 
 
 Sperry v. Baldwin 73, 74 
 
 Speyers v. Lambert 483, 829 
 
 Spiegel V. Pacific Mail Steamship 
 
 Co 412 
 
 Spies V. Voss 176 
 
 Spitser v. St. Marks Ins. Co 294 
 
 Spoflford V. Kirk 624 
 
 Speckels v. Sax 188 
 
 Spencer v. Babcock 147 
 
 Sprague v. Blake 731, 733, 735 
 
 Sprague v. Cochran 863 
 
 Sprague v. Holland Purchase Ins. 
 
 Co 804 
 
 Spring V. Ansonia Clock Co 135 
 
 Spring V. George 495 
 
 Springer v. Westcott 432 
 
 Spruck V. MeRoberts 455 
 
 Staats V. Bristow 320 
 
 Staats V. Hewlett 321 
 
 Stacy V. Graham 762 
 
 Stafford v. Low 487 
 
 Stafford v. Richardson 238 
 
 Stainer v. Tysen 200, 253 
 
 Stalker v. McDonald 558 
 
 Stall V. Wilbur 818 
 
 Stallman v. Kimberly 447 
 
 Stanbro v. Hopkins Ill 
 
 Standard Fashion Co. v. Ostrom. . 21 
 Standard Oil Co. v. Triumph Ins. 
 
 Co 248 
 
 Standard Underground Cable Co. 
 
 V. Stone 50 
 
 Stanley v. Whitney 784 
 
 Stanton v. Camp 270 
 
 Stanton V. Leland 404, 623 
 
 Stanton v. Small 644, 661 
 
 Stapleton v. Greenwich Ins. Co. . . 805 
 
 Starin v. Kelly 885 
 
 State V. Dunnavant 43 
 
 State Bank v. Smith 496, 498 
 
 State of Indiana v. Woram 284 
 
 State Trust Co. v. Casino Co 121 
 
 Stead V. Salt 335 
 
 Steam Navigation Co. v. Weed. . . 286 
 
 Page. 
 Stearn v. Florence Sewing Mach. 
 
 Co 170 
 
 Stearns v. Marsh. . 371, 372, 373, 374 
 
 Steele v. Taft 729 
 
 Steif V. Hart 372 
 
 Stein V. Rice 180 
 
 Steinbock v. Evans 53 
 
 Steinhart v. Boker 559 
 
 Steinhardt v. Burt 192 
 
 Steele v. Benham 108 
 
 Steele v. Whipple 785 
 
 Stenton v. Jerome 373 
 
 Stephens v. Ely 821 
 
 Stephens v. Meriden Britannia 
 
 Co 78, 88, 107, 115 
 
 Stephens v. McNeill 599 
 
 Stephens v. Perrine 78 
 
 Stephens v. Santee 738 
 
 Stephenson v. Hart 415 
 
 Stephenson v. N. Y. & Harlem 
 
 R. R 203 
 
 Stern v. Drinker 854 
 
 Stettheimer v. Meyer 557 
 
 Steuben Co. Bk. v. Alberger 333 
 
 Stevens v. Barringer 753, 764 
 
 Stevens v. Brennan. . 93, 677, 680, 682 
 Stevens v. Buffalo & N. Y. C. R. R. 
 
 Co 72, 91 
 
 Stevens v. Eno 655 
 
 Stevens v. Fisher 109 
 
 Stevens v. Hyde. . . . 680, 686, 694, 695 
 
 Stevens v. Schroeder 274 
 
 Stevens v. Strong 522, 523 
 
 Stevens v. Wheeler 724, 725 
 
 Stevens v. Willson 220 
 
 Stevenson v. Blakelock 449 
 
 Stevenson v. Maxwell 755 
 
 Stevenson Brewing Co. v. Iba 631 
 
 Stewart v. Ahrenfeldt 14 
 
 Stewart v. Bramhall 789 
 
 Stewart v. Brooklyn & Crosstown 
 
 R. R. Co 428 
 
 Stewart v. Doughty 871 
 
 Stewart v. Eden 583 
 
 Stewart v. Ellice 749 
 
 Stewart v. Keteltas 128 
 
 Stewart v. Long Island R. R. Co., 168 
 Stewart v. Slater. . . 76, 109, 110, 339 
 
 Stewart v. Stone 384, 390, 394 
 
 Stewart v. Trustees of Ham. Coll., 22 
 
 Stierle v. Union Ry. Co 426, 427 
 
 Still V. Hall 750 
 
 Stillman v. Northrup 565, 631, 774 
 
 Stillwell V. Otis 852 
 
 Stillwell V. Staples 226, 799, 800 
 
 St. John V. Purdy 600 
 
 St. John V. St. John's Church. . . 54 
 
 Stoddard v. Cleveland 22 
 
 Stoddard v. Dennison 84 
 
 Stoddard v. Gailor 633 
 
 Stokes V. Stickney 622 
 
TABLE OF CASES CITED. 
 
 IxY 
 
 Page. 
 
 Stone V. Browning 727, 728, 730 
 
 Stone V. Frost 628 
 
 Stone V. Hayes 231, 238 
 
 Stone V. Hooker 54, 490, 491, 504 
 
 Stone V. Marsh 333 
 
 Stone V. Wood 270 
 
 Storer v. Eyeleshimer 625 
 
 Storm V. Stirling 521 
 
 Storms V. Snyder 872 
 
 Storr V. Crowly 425 
 
 Story V. Salomon 644 
 
 Stoughton V. Lynch 752 
 
 Stroher v. Biting 338 
 
 Strong V. National Mechanics' 
 
 Banking Assn 374 
 
 Strong V. Sheffield 17 
 
 Strong V. Skinner 880, 882 
 
 Strong V. Strong 690 
 
 Strong V. Taylor 476 
 
 Strouse v. Love 264 
 
 Struthers v. Smith 15 
 
 Stuart V. Crawley 420 
 
 Stubbs V. Railroad Co 460 
 
 Studer v. Bleistein 708, 711 
 
 Stymets v. Brooks 830 
 
 Sullivan v. Fosdiek 749 
 
 Sullivan v. Miller 107 
 
 Sullivan v. Ringler & Co... 151, 153 
 Sullivan v. Spring Garden Ins. 
 
 Co 798, 801, 802 
 
 Sullivan v. Sullivan 18 
 
 Sullivan v. Toole 819, 825, 826 
 
 Sully V. Schmitt 163, 176, 181 
 
 Sumner v. People 768 
 
 Sunderland v. Westcott 416 
 
 Sunderlin v. Wyman 124 
 
 Suydam v. Westfall 561, 562, 773 
 
 Supervisors of Erie v. City of Buf- 
 falo 760 
 
 Supervisors of Rensselaer Co. v. 
 
 Bates 205, 504 
 
 Susman v. Whyard 63 
 
 Sussdorff V. Schmidt... 240, 241, 242 
 
 Sutton V. Dillaye 246 
 
 Sutton V. Temple 379 
 
 Suydam v. Bartle 772, 773 
 
 Suydam v. Clark 30, 446, 640 
 
 Suydam v. Jackson 163 
 
 Suydam v. Jenkins 756 
 
 Swan V. Cox 547 
 
 Swartwout v. Payne 782 
 
 Swasey v. Vanderheyden 59 
 
 Sweet V. Barney . .". 406, 423 
 
 Sweet V. Bradley 338, 711 
 
 Sweet V. Colgate 712, 713 
 
 Sweet V. Pym 451, 452 
 
 Sweet V. Spence 770 
 
 Sweeting v. Fowler 523 
 
 Sweetman v. Prince 717, 720 
 
 Sweetman v. Price 695 
 
 Sweny v. Peaslee 788 
 
 Page. 
 
 Swift V. Beers .' 506 
 
 Swift V. Hart. . . 85, 95, 109, 110, 114 
 
 117, 121 
 
 Swift V. Hopkins 218 
 
 Swift V. MacNamara 307 
 
 Swift V. Opdylce 735, 736 
 
 Sylvester v, Ralston 143 
 
 T. 
 
 Tabor v. Robinson 825 
 
 Taft V. Brewster 260, 269, 533 
 
 Taft V. Sergeant 11, 59 
 
 Taintor v. Prendergast 224 
 
 Talamo v. Spitzmiller 155 
 
 Talbot V. Cruc;er . . , , 821 
 
 Talcott V. Cowdry 214, 263 
 
 Tallman v. Bresler 170 
 
 TaHman v. Earle 175, 184 
 
 Tallman v. Franklin 728, 870 
 
 Tallman v. Murphy, 163, 179, 180, 181 
 
 184 
 
 Talman v. Smith 79, 84, 87 
 
 Talmage v. Pell 286, 786 
 
 Talmadge v. Rensselaer, etc., R. R. 
 
 Co 872 
 
 Talmadge v. Wallis 833 
 
 Tammien v. Clause 9 
 
 Tanner v. Hills 310 
 
 T. N. Bank v. Parker 17 
 
 Tanner v. Bank of Fox Lake. . . . 599 
 Tanner v. Trustees of the Village 
 
 of Albion 290 
 
 Taplin v. Packard 522 
 
 Tappan v. Ely. 567 
 
 Tausig V. Hart ' 233 
 
 Taylor v. Allen 493 
 
 Taylor v. Baldwin 10 
 
 Taylor v. Bates 238 
 
 Taylor v. Bullen 507 
 
 Taylor v. Coldwell 27 
 
 Taylor v. Harlow 261 
 
 Taylor v. Kelly 617 
 
 Taylor v. Monnot 404 
 
 Taylor v. Nassau Electric R. R. 
 
 Co 428 
 
 Taylor v. Nostrand 268 
 
 Taylor v. Nussbaum 205, 213 
 
 Taylor v. Robinson 447 
 
 Taylor v. Snyder 580 
 
 Taylor v. Tillotson 658, 696 
 
 Taylor v. Wing ,. 748 
 
 Teaft V. Hewitt 822 
 
 Teague v. Hubbard 347 
 
 Teall V. Sears 406 
 
 Tedeseo v. Oppenheimer 108 
 
 Teed v. Teed 733, 734 
 
 Ten Eyck v. Houghtaling 756 
 
 Terry v. Fargo • 198 
 
 Terry v. Wheeler 647, 648, 657 
 
 Terwilliger v. Ontario, C. & S. 
 R. R. Co 60, 273 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Thackray v. Blackett 609 
 
 Thalheimer v. Klapetzky 878 
 
 Thalheimer v. Lempert 184 
 
 Thames Loan & Trust Co. v. Ha- 
 
 genmeyer • 781 
 
 Thatcher r. England 24, 25 
 
 Thaver v. King 497 
 
 The'King t. Box 522, 523 
 
 Thomas v. Allen ■.. 52 
 
 Thomas v. Boston & Providence 
 
 R. R. Co 407, 425 
 
 Thomas v. Dickenson 871 
 
 Thomas v. Pleury • 128 
 
 Thomas v. Gumaer 485 
 
 Thomas v. Hubbell 55, 490, 506 
 
 Thomas v. Murray 769, 780 
 
 Thomas v. Nelson 141, 155, 176 
 
 Thomas v. Todd - . 603 
 
 Thomas v. Woods 507 
 
 Thomas v. Quintard 12, 695 
 
 Thompson v. Ashton 712 
 
 Thompson V. Blanohard.. 56, 61, 62 
 95, 109, 110, 883 
 
 Thompson v. Bower . • 144 
 
 Thompson v. Clubley 555 
 
 Tompkins v. Dudley 26, 389 
 
 Thompson v. Giles 449 
 
 Thompson v. Gordon 845 
 
 Thompson v. Hall 493 
 
 Tompkins v. Hunter. . . . 877, 878, 879 
 
 Thompson v. Laey 397 
 
 Thompson v. Leslie 650 
 
 Thompson v. MacGregor ..."....• 503 
 
 Thomson v. Poor 867 
 
 Tompkins v. Sheehan 726 
 
 Thompson v. Sloan 526 
 
 Thompson v. Taylor • . 499 
 
 Tompkins v. Tompkins 599 
 
 Thompson v. Van Vechten, 88, 93, 114 
 
 120 
 
 Thompson v. Ward 794 
 
 Thorn v. Alvord 794 
 
 Thorn v. Garner 760 
 
 Thornton v. Barber 301 
 
 Thornton v. Grange 19 
 
 Thornton v. Payne 150 
 
 Thorp V. White 136 
 
 Thurman v. Van Brunt 562 
 
 Thurman v. Wells - 198 
 
 Tibbetts v. Blood 327 
 
 Tibbits V. Percy 164, 188, 565 
 
 Tiedemann v. Ackerman 782 
 
 Tierney v. N. Y. C. & H. E. R. 
 
 Co 409 
 
 Tiffany v. St. John • 441 
 
 Tiffany v. Warren 86, 90 
 
 Tiffany v. Willis 507 
 
 Tifft V. Barton 109, 111 
 
 Tifft V. Horton. . . . 822, 823, 825, 826 
 
 Tilden v. Blair 794 
 
 Tilden v. TildcH 46 
 
 Page. 
 Tilton V. Hamilton Fire Ins. Co., 814 
 
 Tilyou V. Reynolds 145 
 
 Timmons v. Nelson 672 
 
 Tinsdale v. Murray 535 
 
 Tlndall v. Taylor . 412 
 
 Tipton V. Fietner 39, 40, 41 
 
 Title Guarantee & Trust Co. v. 
 
 Weiher 496 
 
 Titus V. Glens Falls Ins. Co., 806, 812 
 
 813 
 
 Titus V. Pool 699 
 
 Tobey v. Barber 495, 59», 600 
 
 Tobias v. Lissberger 667 
 
 Tobias v. Rogers 499, 501 
 
 Toland v. Murray 238 
 
 Tolano v. Nat. Steam Navigation 
 
 Co 429, 430 
 
 Toles V. Adee 507 
 
 Toll V. Hiller 757 
 
 Tolman v. Heading 158 
 
 Tooker v. Gormer 423 
 
 Toplitz V. Bauer 373, 374, 375 
 
 Topping V. Lynch 108 
 
 Topping V. Root 647, 673, 744 
 
 Torbett v. Godwin 622 
 
 Terry v. Black 7 
 
 Torrv V. Hadlev. . . 509, 600, 741, 860 
 
 Toub V. Schmidt 397, 398 
 
 Tower v. Utica & Schenectady 
 
 R. R. Co 429 
 
 Towle V. Stevenson 263 
 
 Townsend v. Albers 175 
 
 Townsend v. Billinge 537 
 
 Townsend v. Corning. . . 258, 757, 771 
 
 780 
 
 Townsend v. Goewey 325, 326 
 
 Townsend v. Hubbard . . 258, 260, 870 
 
 Townsend v. Stearns 879 
 
 Tracy v. Albany Exchange Co.. . . 193 
 
 Tracey v. Suydam 234 
 
 Tradesmen's Bank v. Astor 207 
 
 Trankla v. McLean 256 
 
 Traphagen v. Burt 310, 314 
 
 Treadwell v. Archer 45, 784 
 
 Tremain v. Cohoes Co 290 
 
 Tremain v. Mortimer 121 
 
 Trevor v. Wood 32 
 
 Trimmer v. Trimmer 8 
 
 Tripp V. Riley 144, 310 
 
 Tripp V. Saunders 336 
 
 Trotter v. Curtis 773 
 
 Trotter v. Grant 752, 753 
 
 Trow V. Shannon 613 
 
 Truscott V. Davis 791, 792 
 
 Truscott V. King 96, 97 
 
 Trustees v. Bowman 208 
 
 Trustees of First Baptist Church 
 
 V. Bigelow 727, 728 
 
 Trustees of First Baptist Church 
 
 V. Brooklyn Fire Ins. Co.. . 807, 836 
 
 846 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 Page. 
 Trustees of N. Y. & B. Bridge v. 
 
 Third Methodist Episcopal Ch., 760 
 
 Trustees of Newburgh v. Galatian, 55 
 
 504 
 
 Trustees, etc., v. Stewart 347 
 
 Trustees of Union College v. 
 
 Wheeler 631, 633 
 
 Tubridy v. Wright : . 461 
 
 Tucker v. Ives 755 
 
 Tucker v. Penn. R. R. Co 419 
 
 Tucker v. Wilson 373 
 
 Tuller V. Davis 189 
 
 Turnbull v. Bowyer 572 
 
 Turley v. North Am. Fire Ins. Co., 812 
 
 Turk V. Ridge 853 
 
 Turner v. Brown 614 
 
 Turner v. Deane 450 
 
 Turner v. Ford 367 
 
 Turner v. Hadden 491 
 
 Turner v. Haight 139 
 
 Turner v. Keller 573 
 
 Turner v. Kouwenhoven 40 
 
 Turner v. Roby 816 
 
 Turney v. Wilson 406 
 
 Turrill v. Crawley 444 
 
 Tuthill V. Davis 785 
 
 Tuthill V. Skidmore 687, 723 
 
 TutMll V. Wilson 261 
 
 Tuthill V. Wheeler 657 
 
 Tuttle V. Gladding 442 
 
 Tuttle V. La Dow 626 
 
 Tuttle V. Love 30 
 
 Tuttle V. Tompkins 164 
 
 Twenty-third St. Bap. Ch. v. Cor- 
 nell 23 
 
 Tylee v. Yates 771 
 
 Tyler v. Ames 135 
 
 Tyler v. Stevens 600, 741, 860 
 
 Tyler v. Strang 63, 91, 113, 655 
 
 Tyler v. Taylor 85, 103 
 
 Twopenny v. Young 493 
 
 U. 
 
 Udell V. Atherton 256 
 
 Uhlman v. Day 640 
 
 Ulrioh V. Ulri'ch 18 
 
 Ulster County Savings Inst. v. 
 
 Young 485, 486 
 
 Ulster Savings Inst. v. Ostrander, 485 
 
 Underhill v. Collins 174 
 
 Underbill v. Palmer 496 
 
 Underhill v. Phillips 8 
 
 Underwood v. Farmers' Joint- 
 Stock Ins. Co 811 
 
 Unger v. Forty-second St., etc., 
 
 E. R. Co 427 
 
 Unglish V. Marvin 157, 840 
 
 Union Bank v. Costers' Ex 831 
 
 Union Bank v. Mott 250 
 
 Union Bank of Rochester v. Greg- 
 ory 776 
 
 Page. 
 Union Dime Savings Bk. v. Feltz, 486 
 Union Dime Savings Inst. v. Wil- 
 
 mot 787, 788 
 
 Union Nat. Bank v. Scott . . 534 
 
 Union Nat. Bank v. Wheeler .... 789 
 Union Nat. Bank v. Underhill . . 330 
 Union Stove Works v. Klingman, 459 
 United Press ■<'. N. Y. Press Co.. . 834 
 
 United States v. Boyd 504 
 
 United States V. Hodge 494 
 
 United States v. Hudson 213 
 
 United States v. White 522 
 
 United States Bank v. Chapin. . 748 
 United States Nat. Bank v. Home- 
 stead Bank 14 
 
 United States Nat. Bank v. Nat. 
 
 Park BanJc 534 
 
 United States Nat. Bank v. Un- 
 derwood 319 
 
 United States Trust Co. v. Har- 
 ris 704, 712, 713 
 
 Urquhart v. Melver . . . 223, 227, 229 
 
 Utter v. Stuart 691, 868 
 
 Uthoff V. Gerhard 460 
 
 Utica Ins. Co. v. Bloodgood 771 
 
 Utica Ins. Co. v. Caldwell 775 
 
 Utica Ins. Co. v. Tillman 776 
 
 Utica Ins. Co. v. Toledo Ins. Co., 233 
 
 V. 
 
 Vail V. Jersey, etc., Mfg. Co 134 
 
 Vail V. Rice 446, 745 
 
 Valentine v. Conner 774 
 
 Valentine v. Healy 152 
 
 Vallett V. Parker 331 
 
 Vance v. Bloomer 550 
 
 Van Allen v. Vanderpool 215 
 
 Van Alstine v. Wimple . . : 866 
 
 Van Benschooten v. Lawson 757' 
 
 Van Beuren v. Van Gaasbeek, 749, 755 
 
 Van Bracklin v. Fonda 709 
 
 Van Brooklen v. Smeallie. . . 687, 688 
 
 Van Brunt v. Applegate 337 
 
 Van Buskirk v. Roberts ....... 428 
 
 Van Cott V. Hull 215, 262 
 
 Vandecar v. Reeves 174 
 
 Vandenheuvel v. United Ins. Co., 752 
 Vanderbilt v. Richmond Turnp. 
 
 Co 225, 290 
 
 Vanderburgh v. Hull 309 
 
 Vanderpoel v. Kearns 232, 243 
 
 Vanderveer v. Suydam 242 
 
 Van Derveer v. Wright 508 
 
 Vanderzee v. Herman 59 
 
 Vanderzee v. Willis 371, 448 
 
 Van Dorn v. Tapscott 21 
 
 Van Deusen v. Rowley 611, 612 
 
 Van Duzer v. Howe 773 
 
 Van Dyke v. Clark 838 
 
 Van Etten v. Van Etten 146 
 
 Van Hassell v. Borden 72, 97 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 Page. 
 Van Heusen v. Radcliff. . 72, 78, 93 
 
 98, 99 
 
 Van Hozer v. Cory 69, 70, 643 
 
 Van Horn v. Kermitt 429, 431 
 
 Van Hovenburgh v. Hasbrouek . . 218 
 
 Van Kewren v. Corkins 633 
 
 Van Keuren v. Parmelee . . . 344, 509 
 
 Van Kuren v. Saxton 18 
 
 Van Kleeck v. Le Roy 677, 679 
 
 Vann v. Rouse 163 
 
 Van Name v. Van Name 314 
 
 Van Ostrand v. Reed 722 
 
 Vanpell v. Woodward 843 
 
 Van Rensselaer v. Chadwick 172 
 
 Van Rensselaer v. Gallup 167 
 
 Van Rensselaer v. Jewett. . 750, 751 
 
 759, 762 
 Van Rensselaer v. Jones . . . 750, 762 
 Van Rensselaer v. Miller ...... 509 
 
 Van Riper v. Aokerman. ... 712, 713 
 
 Van Rossum v. Walker 881 
 
 Van Santvord v. St. John 417 
 
 Van Sehoyek v. Backus 19 
 
 Van Schoie v. Niagara Fire Ins. 
 
 Co 804 
 
 Van Scoter v. Lefferts 626 
 
 Van Tassell v. Wood 785 
 
 Van Wagner v. Terrett, 518, 528, 529 
 Van Woert v. Albany, etc., R. R. 
 
 Go 836 
 
 Van Wyck v. Allen .... 700, 702, 706 
 
 Van Wyck v. Howard 404 
 
 Van Wyck v. Walters 774 
 
 Vassar v. Camp 32, 33 
 
 Viall V. Genesee Mut. Ins. Co. . . 807 
 
 Viannay v. Barclay 209, 212 
 
 Vibbard v. Johnson 720 
 
 Vickery v. Dickson 785 
 
 Victoria Paper Mills Co. v. N. Y. 
 
 & Penn. Co 479 
 
 Viele V. Judson 633 
 
 Vielie v. Osgood 864, 870 
 
 Vilas V. Jones 784 
 
 Vilas V. N. Y. Central Ins. Co.. . 804 
 Village of Warren v. Philips. ... 53 
 
 Vincent v. Germond 731 
 
 " Vernon v. Manhattan Bank, 295, 318 
 
 Vogedes v. Bealces 876 
 
 Volekers v. Sturke 88 
 
 Vorebeek v. Roe 866 
 
 Voorhees v. Earl 690, 695 
 
 Voorhees v. McGinnis . . 822, 823, 826 
 
 VoB V. Robinson 813 
 
 Vosberg v. Corn 154 
 
 Vosburgh v. Diefendorf . . . . 595, 596 
 Vose V. Florida R. R. Co.. . . 495, 496 
 
 Vreeland v. Pratt 114, 115 
 
 Vrooman v. Phelps 7 
 
 Vrooman v. Turner 852 
 
 W. Page. 
 
 Wade V. Kalbfleiseh 622, 623 
 
 Waeber v. Talbot 701, 705 
 
 W. C. & M. Co. V. Holbrook, 737, 739 
 
 836 
 
 Wagner v. Jones 74 
 
 Wahl V. Barnum.. 14, 310, 840, 841 
 
 Wait V. Borne 197, 70T 
 
 Wakeman v. Hazelton 214 
 
 Waleott V. Van Santvord 764 
 
 Walden v. Sherburne 342, 760 
 
 Waldron v. Hendrickson 132 
 
 Waldron v. Willard 623 
 
 Walker v. Bank of State of N. Y., 263 
 
 269, 576 
 Walker v. British Guarantee Assn., 359 
 
 Walker v. Henry 119 
 
 Walker v. Millard 695 
 
 Wallcer v. Sherman 818 
 
 Walker v. Squires 559 
 
 Walker v. State Trust Co 197 
 
 Walker v. Swartwout 218 
 
 Walker v. Tucker 44 
 
 Wall V. East River Mut. Ins. Co., 803 
 
 Wall V. Gillin Printing Co 21 
 
 Wallace v. Dinning 173 
 
 Wallace v. Lent 191 
 
 Wallace v. Vigns 422 
 
 Wallace v. Woodgate 452 
 
 Wallis V. Manhattan Co 274 
 
 Walls V. Bailey 48 
 
 Walrad v. Petrie 522 
 
 Walradt v. Maynard 238 
 
 Walrath v. Richie 733 
 
 Walrath v. Thompson 486, 487 
 
 Walsh v. Sexton 612, 614 
 
 Walsh V. Bailie 485 
 
 Walsh V. Hartford Fire Ins. Co., 249 
 
 Walshe v. Provan 356, 393 
 
 Waltermire v. Westover 11 
 
 Wain V. Warlters 830 
 
 Wamsley v. Darragh 582 
 
 Wanamaker v. Rhomer ........ 836 
 
 Ward v. Benson 622 
 
 Ward V. Fryer 54, 508 
 
 Ward v. Killpatrick . 822 
 
 Ward V. N. Y. C. R. R. Co ', 422 
 
 Ward V. Shaw 65? 
 
 Ward V. Wordsworth 449 
 
 Warden v. Union Pacific R. R. Co., 233 
 
 Wardwell v. Haight 343 
 
 Warfield v. Watkins 9 
 
 Ware v. Dos Passes 240^ 
 
 Waring v. Indemnity Fire Ins. Co., 800- 
 
 Waring v. Loder 632 
 
 Waring v. Loomis 655 
 
 Waring v. Mason, 690, 696, 697, 7lff 
 
 Warner v. Hitchins 190 
 
 Warner v. Lake 87T 
 
 Warner v. Price 500 
 
 Warner v. Zucchel , 480' 
 
 Warren v. Leiand 867 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 Page. 
 
 Washburn v. Goodman 340 
 
 Washoe Tool Co. v. Hibernia Fire 
 
 Ins. Co 632 
 
 Waterbury v. Graham 487, 858 
 
 Waterbury v. Sturtevant 884 
 
 Waters v. Monarch F. & L. Ass. 
 
 Co 799 
 
 Watervliet Bank v. White 569 
 
 Watkins v. Cousall 232 
 
 Watkins v. Halstead ■ 10 
 
 Watson V. Almirall 187 
 
 Watson V. McLaren 564, 832 
 
 Watson V. Randall 16, 854 
 
 Watson V. Russell 32 
 
 Watson V. Swann . £25 
 
 Watts V. Christie 363 
 
 Watts V. Van Ness 244 
 
 Waugh V. Carver 306, 307 
 
 Waydel v. Luer 319, 344 
 
 Wayland v. Elkins ■ 338 
 
 Wayne v. Hanham 372 
 
 Wayne Co. Savings Bk. v. Low. . . 794 
 Wayne & Ontario Collegiate In- 
 stitute V. Smith 23 
 
 Weaver v. Barden 93, 660, 682 
 
 Weaver v. Darby 438 
 
 Webb V. Pond 488 
 
 Weber v. Bridgman 272 
 
 Weber V. Brooklyn, A. C. & S. R. R. 
 
 Co : 428 
 
 Weed V. Barney 415 
 
 Weed V. Bentley 491 
 
 Weed V. Carpenter 202 
 
 Weed V. Covill 86 
 
 Weeks v. Goode 442 
 
 Weeks v. N. Y., N. H. & H. R. R. 
 
 Co 429 
 
 Weeks V. O'Brien 128 
 
 Weed V. Panama R. R. Co 256 
 
 Wehrum v. Kuhn ■ . . 14 
 
 Weidmann v. Champion 729 
 
 Weil v. Malone 690 
 
 Weis V. Brennan 682 
 
 Weissenstine v. Elias 630 
 
 Weisser v. Denison 247 
 
 Welles V. March ....'. 336 
 
 Wells V. Evans 331 
 
 Wells V. Gates ■ 325 
 
 Wells V. Horton 845 
 
 Wells V. Mann 492 
 
 Wells V. Miller • 500 
 
 Wells V. Monihan 522, 843 
 
 Wells V. N. Y. C. R. R. Co 433 
 
 Wells V. Smith 386 
 
 Wells V. Steam Nav. Co • . 407 
 
 Wells V. Whitehead 542, 544 
 
 Welsh V. Carter 560 
 
 Welsh V. German-American Bank, 247 
 
 248, 255 
 
 West V. Crary 84 
 
 West V. Newton 729 
 
 Page. 
 
 West V. Wright 644 
 
 West Bank v. Taylor 591 
 
 Westcott V. Fargo 326 
 
 Wescott V. Gunn... 96, 97, 101, 112 
 
 114 
 
 Westcott V. Tilton 637 
 
 Westcott V. Thompson 637 
 
 Westerlo v. Evertson 345 
 
 Westerlo v. De Witt.. 612, 613, 614 
 Western Transp. Co. v. Barber. . . 415 
 Western Transp. Co. v. Hawley. . 725 
 
 Western Trans. Co. v. Hoyt 413 
 
 Western Transp. Co. v. Lansing. . 151 
 
 Westervelt v. Smith 490, 505 
 
 Westfall V. Parsons 28 
 
 Westfall V. Peacock 687 
 
 Weston V. Barker 548 
 
 Wetherow v. Lord 615, 616 
 
 Weyth V. Boylan 790 
 
 Weyerhauser v. Dun 214 
 
 Wheadon v. Olds 639 
 
 Wheat V. Rice 853 
 
 Wheatcroft v. Hickman.' 302 
 
 Wheatland v. Pryor 248 
 
 Wheaton v. Baker, 688, 689, 690, 695 
 
 Wheeler v. Bell 216, 230, 264 
 
 Wheeler v. Benedict 493 
 
 Wheeler v. Childs 336 
 
 Wheeler v. Connecticut Mut. Life 
 
 Ins. Co 26 
 
 Wheeler v. Newbould.. 373, 376, 446 
 
 712 
 
 Wheeler v. 0. S. N. Co 434 
 
 Wheeler v. Sweet 56, 490 
 
 Wheeler v. Wheeler 633 
 
 Wheeler v. Reynolds .....'. 865 
 
 Wheeler & Wilson Mfg. Co. v. 
 
 Keeler 650 
 
 Whipple V. Foot : . 871 
 
 Whittaker v. Bank of England . : 368 
 Whitaker v. Farmers' Union Ins. 
 
 Co 802 
 
 Whitaker v. Whitaker 10 
 
 Whitbeck V. Van Ness . . 599, 651, 741 
 
 Whitbeck v. Skinner 185 
 
 Whitehead v. Greetham 358, 361 
 
 Whitford v. Laidler 261, 266 
 
 Whitford v. Panama R. R. Co. . . 621 
 
 Whiting V. Barrett 617, 619 
 
 Whiting V. Saunders 267 
 
 Whitlock V. Bueno 742 
 
 Whitlock V. Washburn 208 
 
 Whitman v. Conner 82 
 
 Whitman v. Johnson 267 
 
 Whitman v. Steamboat Carolina, 416 
 
 Whitmarsh v. Cutting 193 
 
 Whitmarsh v. Hall 134 
 
 Whitnash v. George 506 
 
 Whitney v. Allaire 141 
 
 Whitney Arms Co. v. Barlow . . . 286 
 Whitney v. Black River Ins. Co., 805 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Whitney v. Martine 208 
 
 Whitney v. Meyers 171, 177 
 
 Whitney v. Groot 487, 502 
 
 Whitney v. Sutton 699, 703, 711 
 
 White V. Baxter 2 
 
 White V. Benjamin 679 
 
 White V. Brown • 569 
 
 White V. Continental Nat. Bank, 572 
 
 White V. Dodds 692 
 
 White V. Gainer 442 
 
 White V. Garden 370 
 
 White V. Hoyt 14, 42 
 
 White V. Madison 268, 272, 800 
 
 White V. Miller 702, 706, 751 
 
 White V. Skinner 269 
 
 White V. Spettigue 354 
 
 White V. Springfield Bank 557 
 
 White V. Stillman 765, 796 
 
 White V. Wright 777 
 
 White's Bank v. Myles 44, 501 
 
 White's Case 399, 508 
 
 White Mts. R. R. Co. v. Eastman, 279 
 Wibert v. N.-Y. & Erie R. R. Co., 425 
 
 Wiekham v. Miller 884 
 
 Wiehle v. Saffold 224 
 
 Wigand v. Sichel 689 
 
 Wilbur V. Cartright 709 
 
 Wilbur V. Collin 141 
 
 Wilcox V. Parmelee 422, 
 
 Wilcox V. Pratt 301 
 
 Wilcox Silver Plate Co. v. Green, 664 
 
 Wilcox V. Wilcox 18 
 
 Wilcox V. Williams 302, 303 
 
 Wilcox V. Wood 149 
 
 Wild V. Porter 88 
 
 Wiles Laundering Co. v. Hahlo . . 441 
 
 451 
 
 Wiles V. Provost 676 
 
 Wilkes V. Ferris 661, 662 
 
 Wilkins v. Earle 400, 401, 430 
 
 Wilkins v. Jadis 580 
 
 Wilkins v. Pearce 335 
 
 Willard v. Germer 600 
 
 Willard v. Rheinhardt 396, 405 
 
 Willard v. Stone 22 
 
 Willard v. Tillman 193 
 
 Willets V. PhtEnix Bank 541 
 
 Willett V. Chambers 338 
 
 Willetts V. Sun Mut. Ins; Co 2 
 
 William Wicke Co. v. Kaldenberg 
 
 Mfg. Co 141 
 
 Williams v. Birch 677, 682 
 
 Williams v. Brown 540, 541, 584 
 
 Williams v. Christie ■ 272 
 
 Williams v. Fireman's Fund Ins. 
 
 Co 805 
 
 Williams v. Fisher 28 
 
 Williams v. Gillies 306, 310 
 
 Williams v. Hance 773 
 
 Williams v. Healey 37 
 
 Williams v. Holland 423 
 
 Page. 
 
 Williams v. Houghtaling 764 
 
 Williams v. Hutchinson 18, 19 
 
 Williams v. Ingersoll ■ 634 
 
 Williams v. Ins. Co. of North Am., 798 
 
 Williams v. Lawrence 332 
 
 Williams v. Littlefield 222 
 
 Williams v. Marshall 485 
 
 Williams v. Matthews 569 
 
 Williams v. Millington 438 
 
 Williams v. Nichols • . . . 415 
 
 Williams v. Sherman.. 672, 756, 759 
 
 Williams v. Storm 781 
 
 Williams v. Tilt 787 
 
 Williams v. Townsend 492, 493 
 
 Williams v. U. S. Trust Co 374 
 
 Williams v. Vanderbilt 27 
 
 Williams v. Walker 198 
 
 Williams v. Whedon 320 
 
 Williams v. Woodard 168, 169 
 
 Williamson v. Continental Filter 
 
 Co 279 
 
 Williamson v. Johnson 329 
 
 Willis V. Green 583 
 
 Williston V. Jones 73, 91, 111 
 
 Wilmot V. Hurd 707 
 
 Wilson V. Anderton 412 
 
 Wilson V. Baptist Ed. Soc. of 
 
 N. Y 7, 34 
 
 Wilson V. Brett 363, 366 
 
 Wilson V. Conine 756 
 
 Wilson V. Dean 188 
 
 Wilson V. Finney 636 
 
 Wilson V. Foree 688, 689 
 
 Wilson T. Forsyth 880, 883 
 
 Wilson V. Genesee Mut. Ins. Co., 809 
 
 813 
 Wilson V. Herkimer Co. Mut. Ins. 
 
 Co 803 
 
 Wilson V. Kings Co. El. R. Co 251 
 
 Wilson V. Little 65, 374 
 
 Wilson V. ]\rartin 839, 841 
 
 Wilson V. Marsh 722 
 
 Wilson V. Powis 392 
 
 Wilson V. Roberts 834 
 
 Wilson V. Robertson 337 
 
 Wilts V. Morrell 211 
 
 Winchel v. Doty 562 
 
 Winchell v. Hicks 509 
 
 Winehell v. Winchell 869 
 
 Winchin v. Merrill 617 
 
 Windmuller v. Pope 687 
 
 Wing v. Griffin 626 
 
 Wing V. N. Y. & Erie R. R. Co.. . . 419 
 
 Winne v. Brundage 307 
 
 Winne v. Niagara Fire Ins. Co. . . 801 
 
 Winsted Bank v. Webb 783 
 
 Winston v. Kilpatrick 279 
 
 Winter v. Coit 245, 441, 447 
 
 Winter v. Drury 575 
 
 Winter v. Winter 617 
 
 Wintermute v. Clarke 397 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 Page. 
 
 Wintermute v. Light 68 
 
 Winters v. Judd 485 
 
 Wintringham v. Lafoy 881 
 
 Wise V. Grant 680, 681 
 
 Wisner v. Ocumpaugh 69 
 
 Wisner v. Sehopp ■ 601 
 
 Wissell V. Ott 159 
 
 Witbeck v. Schuyler 203, 248 
 
 Witherby v. Mann 497 
 
 Witherhead v. Allen 325 
 
 Witherow v. Slaybaok • 571 
 
 Witty V. Matthews 186, 188 
 
 Woerz v. Schumacher, 747, 752, 753 
 Woleott V. Van Santvoord. . '577, 581 
 
 Wolf V. Di Lorenzo 642 
 
 Wolf V. Gluck 170 
 
 Wolf V. Michael 695 
 
 Wolf V. Eausch 120 
 
 Wolfe, ex., etc., v. Howes, 41, 42, 243 
 
 842 
 
 Wolfe V. Myers 424 
 
 Wolff V. Koppel 224, 237, 855 
 
 Wood V. American Fire Ins. Co., 320 
 
 809 
 
 Wood V. Auburn, etc., R. R 202 
 
 Wood V. Benson 736 
 
 Wood V. Edwards 143 
 
 Wood V. Erie R. R. Co 311 
 
 Wood V. Fisk 486 
 
 Wood V. Hickok 754, 755 
 
 Wood V. Hubbell 163 
 
 Wood V. Lowry 73 
 
 Wood V. Rabe . 865 
 
 Wood V. Shultis 868 
 
 Wood V. Tunnicliflf 21 
 
 Wood V. Walbridge 176 
 
 Wood V. Wheeloek 834 
 
 Woodburn v. Chamberlin 95, 680 
 
 Woodburn v. Mosher 882 
 
 Woodhouse v. Duncan 261 
 
 Woodhull V. Rosen thall 167 
 
 Woodin V. Foster 588 
 
 Woodruff V. Cook 613 
 
 Woodruff V. Hurson 769, 775 
 
 Woodruff V. Imperial Fire Ins. 
 
 Co 804, 805, 808 
 
 Woodward v. Fuller 39 
 
 Woodworth v. Bank of America, 580 
 
 Woodworth v. Hodgson 64 
 
 Woodworth v. Woodworth 884 
 
 Wooley V. Constant ■ . . . 50 
 
 Woolsey v. Funke 46 
 
 Worden v. Dodge 529 
 
 Worrall v. Munn. . 199, 211, 258, 862 
 
 Page. 
 
 Worth V. Case 12, 553 
 
 Wortman v. Robinson 615 
 
 Wright V. Brown 677, 678 
 
 Wright V. Garlinghouse, 526, 561, 562 
 
 Wright V. Hart 712 
 
 Wright V. Johnson 486, 487 
 
 Wright V. N. Y. Cent. R. R 217 
 
 Wright V. Reusens 44 
 
 Wright V. Weeks 834, 864 
 
 Wright V. Whiting 52, 488 
 
 Wright V. Wilcox 291 
 
 Wynantskill Knitting Co v. Mur- 
 ray 423 
 
 Wyckoff V. Anthony 371 
 
 Wyckoff V. Fromer 180 
 
 Wyckoff V. Meyers 128 
 
 Wyerhauser v. Dun 263 
 
 Wyld V. Pickford 413 
 
 Wylie v. Marine Nat. Bank . . 240, 242 
 
 Wylie V. Kelly 734 
 
 Wyman v. Hart 884 
 
 Wyman v. Smead 630 
 
 Wyman v. Smith • 852 
 
 Y. 
 Yarborough v. Bank of England, 291 
 
 Yates V. Nash 521 
 
 Yates V. Olmsted 74 
 
 Yonkers Gazette Co. v. Taylor.. 277 
 
 279 
 
 York V. Condee ■ 625 
 
 Yorke v. Greenaugh 440, 444 
 
 Young V. Dake 845 
 
 Young V. Hill 12, 757 
 
 Young V. Leary ■ 47 
 
 Young V. Young 613, 615 
 
 Youngs V. Lee 557, 589 
 
 Youngs V. Perry 534 
 
 Z. 
 Zabriskie v. C. V. R. R. Co.. . 704, 711 
 
 Zabriskie v. Smith 621 
 
 Zachrison v. Ahman 221 
 
 Zaohrisson v. Poppe 665 
 
 Zeltner v. Irwin 32 
 
 Zimmer v. Chew 537 
 
 Zimmer v. Third Ave. R. R. Co., 427 
 
 Zink V. People • . 658 
 
 Zinn V. N. J. Steamboat Co., 423, 425 
 
 Zoebisoh v. Von Minden 14 
 
 Zogbaum v. Parker 627 
 
 Zule V. Zule 382 
 
 Zuller V. Rogers 690 
 
PART I. 
 
 THE PRINCIPLES OF LAW BELHTING TO CONTRACTS IN GENERAL. 
 
 CHAPTER I. 
 
 THE LAW OF CONTRACTS. 
 
 § 1. General Definitions. 
 
 Speaking generally, a justice of the peace has jurisdiction of a 
 civil action to recover damages upon or for the breach of a contract, 
 express or implied, other than a promise to marry, where the suna 
 claimed does not exceed two hundred dollars. Code of Civil Pro., 
 § 2862. There are certain limitations to this jurisdiction which will 
 be pointed out hereafter. These limitations do not relate to the 
 nature or kind of contract which is alleged to have been broken, but 
 rather to the character of the contracting parties and the amount 
 involved, and, therefore, a justice has jurisdiction of actions for the 
 breach of any kind of contract, other than a promise to marry, 
 where the amount involved does not exceed two hundred dollars. 
 Actions to recover damages for breach of contract constitute the 
 greater part of the causes litigated in courts' held by justices of the 
 peace, and, in fact, in courts of record, and a thorough knowledge 
 of the principles of law relating to contracts is of paramount im- 
 portance to practitioners in those courts. 
 
 Every valid contract has several indispensable conditions or 
 requisites : 1. There must be parties who have legal capacity to make 
 a contract at the time of its execution. 2. There must be an adequate 
 or sufficient legal consideration. 3. There must be a subject-matter 
 of the contract, or thing or act to be done or omitted, and this must 
 be a legal act or thing. 4. There must be a mutual assent or promise 
 in relation to the subject-matter of the contract. 5. The agree- 
 ment ought to be expressed in clear and explicit terms. 
 
 Pothier defines a contract thus : " An agreeinent by which two 
 parties mutually promise or engage, or one of them only promises 
 and engages to the otJier to give some particular thing, or to do or 
 to abstain from doing some particular act." 
 
2 THE LAW OF COJSTTEACTS. 
 
 Every contract includes a concurrence of intention between two 
 parties, one of whom promises something to the other, who, on his 
 part, accepts the promise, but it does not necessarily include a 
 mutuality or reciprocity of contract or liability. 
 
 Thus, if A. promises to pay B. the price of goods which may be 
 sold by the latter to C, but B. does not promise to sell the goods to 
 C, here, although B. does not promise, yet if he does subsequently 
 deliver the goods to C, the liability of A. attaches, and his engage- 
 ment becomes absolute and binding upon such delivery. UAtnoreux 
 V. Gould, 7 N. Y. 349. A promise void when made for want of 
 mutuality of obligation becomes valid and binding upon the per- 
 formance by the promisee of that in consideration of which the 
 promise was made. Willetts v. Sun Mutual Ins. Co., 45 ]^. Y. 45 ; 
 Miller v. McKenzie, 95 N. Y. 575, 580; White v. Baxter, 71 N. Y. 
 254. 
 
 Where there is a mutual contract which is binding upon one or 
 more persons towards another or several others, the contract is 
 bilateral, or two-sided. Where the contract binds one person to 
 another, without any engagement being made by the latter, it is 
 unilateral or one-sided, as in the case of promissory notes, bills of 
 exchange, bonds, and the like. 
 
 Contracts are also either principal, or accessorial; the first, are 
 those which are entered into by the parties on their own account 
 as principals; the second, are those which are entered into for the 
 assuring of the performance of an other principal contract, such as 
 guaranties or engagements of sureties. 
 
 Contracts of all kinds, whether bilateral or unilateral, principal 
 or accessorial, are made and authenticated either by matter of record, 
 by deed, by simple contract, or they are implied and arise by opera- 
 tion of law. A contract may be executory or executed, or it may be 
 express or implied. 
 
 An executory contract is one in which a party binds himself to do 
 or not to do a particular act or thing, which is specified or under- 
 stood. A contract executed is one in which the " object or the sub- 
 ject matter " of the contract is performed. If A. agrees to exchange 
 horses with B., and they make the exchange immediately, the pos- 
 session and the right of property or of action, passes at once and 
 together, and the contract is an eg^ecuted one. But, if A. and B. 
 agree to exchange horses next week, and they postpone the exchange 
 and delivery of the horses until that time, the contract is an exec- 
 utory one. A contract is execided when both parties have fully 
 performed it. A contract is executory when it is unperformed on 
 
THE LAW OF CONTEACTS. 3 
 
 the part of one or of both the parties. A contract may be an 
 executed one as to one of the parties, and' an executory one as to 
 the other; as, for instance, when one purchases goods which are de- 
 livered at the time of the sale, but the time for payment is postponed. 
 A right of action may be founded upon an executory contract, if 
 the party who is bound to perform it does not do so, unless he has a 
 legal excuse for his non-performance. So, a right of action may be 
 founded upon an executed contract; as, for instance, in the sale or 
 exchange of property, which is delivered, for, if there was a war- 
 ranty which has been broken, or if there was a fraud perpetrated in 
 such sale, the party injiired has a remedy by action. An express 
 contract is one of which the terms are, at the time of making it, 
 defined in writing, or openly uttered and declared, as, for example, 
 when one party ofPers to sell his horse for one hundred dollars, and 
 the other party agrees to purchase it and pay the price specified. 
 An implied contract is one which reason and justice dictate, and 
 which the law presumes, therefore, that every man undertakes to 
 perform. And in implied contracts, the law implies from anteced- 
 ent acts of persons, what their obligations are to be; whereas, if an 
 express contract is made, the parties themselves thereby define or 
 assume to define them. In implied contracts, however, the law does 
 not vary or introduce new terms into an existing contract or agree- 
 ment; it merely declares, that particular acts, imaccompanied or 
 unexplained by express stipulations, give rise to particular duties 
 or liabilities; and it then proceeds as though the parties had pre- 
 cisely and expressly stipulated for their performance. Thus, to take 
 the example which Sir W. Blackstone gives, 2 Com. 443 : " If I 
 employ a person to do any business for me, or to perform any work, 
 the law implies that I undertook or contracted to pay him as much 
 as his labor deserves," and such amount may be recovered from me 
 just as surely. as though there had been a written agreement be- 
 tween the other party and myself to that effect. If, however, I am 
 desirous beforehand that the work in question should be done for a 
 fixed sum, I ought to have an express agreement specifying it, and 
 thus limiting'and defining my liability. To exhibit the purport of 
 what has been said, in a somewhat different form, contracts, whether 
 express or implied, are founded upon the actual agreement of the 
 parties, the only distinction between them being in regard to the 
 mode of proof. An implied promise or contract is but an express 
 promise proved by circumstantial evidence. McCoun v. N. T. C. 
 & H. R. R. Co., 50 ISr. T. 1Y8, 180. In an implied contract the law 
 only supplies that which, although not stated, must be presumed, 
 so as to complete the agreement intended by the parties; as in the 
 
4 THE LAW OF CONTRAOTS. 
 
 case of a person buying an article without stipulating for the price, he 
 is understood or presumed to have undertaken to pay its market value, 
 or -what it is fairly vs'orth. In the usual course of business there are 
 very numerous cases in which the rights of parties are governed by 
 the law relating to implied contracts, and such cases will be con- 
 sidered hereafter. But it must be remembered that there can never 
 be a recovery upon an implied promise, when there is an express 
 agreement upon the subject, either verbal or in writing. Harris 
 V. Story, 2 E. D. Smith, 364. 
 
 A contract may be entire or severable. A contract is entire when 
 the parties intend that the promise by one party is conditional upon 
 entire performance by the other party of his part of the contract. 
 A contract is said to be severable when the part to be performed by 
 one party consists of several distinct and separate items, and the 
 price to be paid by the other is apportioned to each item or is left 
 to be implied by law. Ming v. Corhin, 142 IST. Y. 334. 
 
 Contracts are sometimes divided into several classes for con- 
 venience in explaining the law in relation to them. Contracts are 
 sometimes in writing and under seal, in other cases they are written 
 but unsealed; again, in numerous cases they are only verbal, and 
 in numerous instances the contract or liability arises by operation 
 of law from the circumstances of the case. 
 
 The general division of the law of contracts relates to the parties 
 contracting, the consideration, the assent of the parties, the subject- 
 matter of the contract, and its construction or interpretation. 
 
 § 2. Parties to a Contract. 
 
 There must be patties to every contract. And to constitute a 
 valid contract, the parties contracting must possess the legal capacity 
 to make a contract. When the parties are of the age of twenty- 
 one years, or upwards, and in possession of their natural faculties, 
 the general rule is, that they are competent to enter into contracts 
 which will be legal and binding upon them. 
 
 But, there are several cases in which there is a legal incapacity to 
 make a valid contract. Such incapacity may be permanent, or it 
 may be temporary; and it may relate to some contracts, and not 
 apply to others, even in its application to the same persons. An 
 infant may make some valid contracts, though he is not bound by 
 others. 
 
 The most usual eases in which there is a legal incapacity to make 
 contracts, are those which relate to infants, lunatics, idiots, and 
 other persons of unsound or imbecile minds; or to persons intoxi- 
 cated, and the like instances. 
 
THE LAW OF CONTEACTS. 5 
 
 Formerly married women were included in this category. This 
 was not because a married woman had not as much mental capacity 
 to contract nnderstandingly after as before marriage, but because at 
 common law a married woman had no property under her owner- 
 ship and control which could furnish the subject-matter of a con- 
 tract. The husband was the legal entity. This has been changed 
 by statute. Now a married woman has all the rights in respect to 
 property, real or personal, and the acquisition, use, enjoyment and 
 disposition thereof, and to make contracts in respect thereto with 
 any person, including her husband, and to carry on any business, 
 trade or occupation, and to exercise all powers and enjoy all rights 
 in respect thereto and in respect to her contracts, and be liable on 
 such contracts, as if she were unmarried; but a husband and wife 
 cannot contract to alter or dissolve the marriage or to relieve the 
 husband from his liability to support his wife. Laws of 1896, 
 ch. 272, § 21; General Laws, ch. 48, § 21. 
 
 Parties who are competent to make valid contracts, may enter into 
 such agreements, through the instrumentality of agents, attorneys, 
 etc. And again, the parties may be numerous, and may contract in 
 their individual capacities, or they may contract in a collective 
 capacity, as corporations, joint-stock companies, or partnerships. 
 So there may be a change of parties, as by sale, indorsement, assign- 
 ments, etc., or by the death of some of the contracting parties, whose 
 places are taken by representatives. 
 
 § 3. Joint or Several Liability of Parties. 
 
 The nature and the form of a contract generally determines 
 whether the liabilities of parties are joint, or several, or joint and 
 several. When a contract is made by two or more persons jointly, 
 and there are no words which indicate a several liability, the con- 
 tract is a joint one. Bosenzweig v. McCaffrey, 28 Misc. 485; 59 l!^. 
 Y. Supp. 863. There will be no several liability under the contract 
 unless there are words which ■ expressly provide for a several lia- 
 bility; or unless the entire agreement or transaction shows that a 
 several liability was intended. But there are rights, under contracts, 
 as well as liabilities, and it is frequently important to determine 
 whether those rights are joint, or several. 
 
 Where several persons are jointly interested In the money which 
 ig due for services rendered, or for money which is due upon some 
 Instrument, all the parties are equally and jointly interested in the 
 whole sum and every part of it, and the claim cannot be split up so 
 as to authorize each person, or his assignee, to sue separately for 
 such share. Coster v. N. Y. and Erie B. B. Co., 6 Duer, 43 ; Kirlc 
 
6 THE LAW OF COXTEACTS. 
 
 V. Young, 2 Abb. 453; Dean v. WUton, 16 Hun, 203; Code of 
 Civil Pro., § 448. In equity the rule is different. Cook v. Genesee 
 M. Ins. Co., 8 How. Pr. 514; Field v. Mayor of N. Y., 6 N. Y. 
 179, 1S8. But a contract may provide that the sums which are to 
 be paid to several persons, shall be paid to each person in proportion 
 to his interest therein specified, and in such caseSj each one may sue 
 separately for his proportion. Partners ought to be all joined as 
 plaintiffs, because jointly interested in the demand. See " Parties 
 to Action." Tenants in common may, sometimes, join or sever at 
 their option. See " Parties, etc." Where several persons are bound 
 jointly, or jointly and severally, for the payment of a sum of money, 
 and one of them pays the whole debt, or more than his proportion 
 of it, he may call upon the parties who have not paid their share to 
 contribute so as to make the payments of all the parties equal. 
 Parher v. Ellis, 2 Sandf. 223; Holmes v. Weed, 19 Barb. 128; 
 McCready v. Van Antwerp, 24 Hun, 322 ; Aspinwall v. 8acchi, 57 
 'N. Y. 331, 337. If several persons are sureties for a common prin- 
 cipal, and one of the sureties pays the entire debt, he may call on 
 the other sureties to contribute their proportion of the debt. 
 Schram v. Werner, 85 Hun, 293. Where several persons are liable 
 to contribute as joint debtors, or as co-sureties, each person is liable 
 severally for his proportion of the debt paid by his co-debtor or co- 
 surety; but a joint action against several who are separately liable 
 to contribute, will not lie. Parher v. Ellis, 2 Sandf. 223. An ac- 
 tion at law by a surety for contribution must be against each of the 
 sureties separately for his proportion; and no more can be recovered 
 even AVhere one or more are insolvent. It is otherwise in equity. 
 Easterly v. Barler, 66 N". Y. 433. 
 
 The rights of joint parties are sometimes modified by law, under 
 a change of circumstances, as in the case of the death of one of the 
 members of a firm; there the siTrvivors must sue, or must be sued, 
 as the case may be, whether the partners are plaintiffs or defend- 
 ants. See " Parties to Action." So there are cases, in which process 
 need not be served on all the joint debtors. See " Joint Debtors," 
 etc. 
 
 § 4. Consideration. 
 
 A consideration, as an essential to the validity of a contract Sub- 
 ject to a statutory exception hereafter noticed, every contract or 
 promise must be founded upon a sufiicient legal consideration to 
 entitled it to enforcement in an'actipn at law. Arend v. Smith, 151 
 ISf. Y. 502. A promise to do or to omit doing a specified act, where 
 there is no consideration for such promise, is called a nudum pactum. 
 
THE LAW OF CO^'TEAOTS. 7 
 
 or a mere naked agreement, and a breach of such promise is not a 
 ground of action. Arend v. Smith, 151 JST. Y. 605; Doctor and 
 Student, Dial. 2, ch. 24. But a statute of this State provides that an 
 agreement for the purchase, sale, transfer, or delivery of a certifi- 
 cate, or other evidence of debt, issued by the United States, or by 
 any State, or a municipal or other corporation, or of any share or 
 interest in the stock of any bank corporation or joint-stock asso- 
 ciation, iiicorporated or organized under the laws of the United 
 States or of any State, is not void or voidable for want of considera- 
 tion, or because of non-payment of consideration, or because the 
 vendor, at the time of making such contract, is not the owner or 
 possessor of the certificate or certificates or other evidences of debt, 
 share or interest. Laws of 1897, ch. 417, § 22; Greneral Laws, 
 ch. 47, § 22. The exception proves the rule. 
 
 The rule stated, as to the necessity of a consideration to support 
 a contract, applies to such contracts as are executory. There is au- 
 thority for saying that a consideration is not an essential part of an 
 executed contract. " Though a contract is without consideration, 
 yet, if it is voluntarily and vrith full knowledge of the facts exe- 
 cuted, the property in the thing, whether money or chattel, is trans- 
 ferred, and it cannot be reclaimed." Bishop on Contracts, § 81. 
 And see 0. P- B. E. Co. v. Forrest, 128 N. Y. 83. 
 
 In all written sealed agreements the paper need not show on 
 its face any consideration, becai;se the seal implies or imports a 
 sufficient consideration. Livingston v. Tremper, 4 Johns. 416 ; 
 Douglass v. Rowland, 24 Wend. 35; Wilson v. Baptist Ed. Society, 
 etc., 10 Barb. 308 ; Vrooman v. Phelps, 2 Johns. 177 ; Hazleton v. 
 Webster, 20 App. Div. 177 ; Torry v. Blach, 58 JST. Y. 185 ; Petrie 
 V. BarcUey, 47 N. Y. 653 ; Hurd v. Oreen, 17 Hun, 327 ; Parher 
 V. Parmelee, 20 Johns. 130. But a seal upon an executory instru- 
 ment, executed after the present Code went into effect, is only pre- 
 sumptive evidence of a sufficient consideration, which may be re- 
 butted, as if the instrument was not sealed. Code of Civ. Pro., 
 § 840 ; Home Ins. Go. v. Watson, 59 N. Y. 390 ; Anthony v. Har- 
 rison, 14 Hun, 198 ; 74 IST. Y. 613. Formerly, a seal upon an in- 
 strument imported consideration, and the presumption could not 
 be rebutted so as to invalidate the instrument; and such is still its 
 effect upon executed instruments, such as a deed of real estate; 
 but a mortgage is an executory instrument and comes within the 
 provisions of the section of the Code cited above. Baird v. Baird, 
 81 Hun, 300. See Mygatt v. Ode, 147 K Y. 456. 
 
 A written unsealed promise or agreement must show a consid- 
 eration on its face ; or, a sufficient consideration must be alleged in 
 
8 THE LAW OF CONTKAOTS. 
 
 the pleadings, and proved in evidence, or no action can be main- 
 tained upon it. People v. Shall, 9 Cow. 778 ; People v. Stearns, 
 21 Wend. 414; Burnet v. Bisco, 4 Johns. 235. 
 
 The consideration need not appear on the face of the written 
 contract, if a sufficient legal consideration exists, and is pleaded, 
 and proved at the trial. 76. There are two exceptions to this rule. 
 One is whei'e the statute of frauds requires the consideration to be 
 expressed in the agreement, and the other is that negotiable prom- 
 issory notes, bills of exchange, etc., are valid in the form in which 
 they are employed, without alleging or proving any other consid- 
 eration than that appearing upon their face. Underhill v. Phil- 
 lips, 10 Hun, 591 ; Bank of Troy v. Topping, 13 Wend. 557. And 
 see Carnright v. Gray, 57 Hun, 518. And if a negotiable prom- 
 issory note, or a bill of exchange, is transferred before it is due, 
 to a person who buys it in good faith, and pays value for it, the 
 want of consideration between the original parties will not be any 
 defense to an action by such holder. See " Promissory Notes/' etc. 
 
 Where no consideration is expressed in a deed, or in a written 
 unsealed agreement, parol evidence may be given of the actual con- 
 sideration, in order to give effect to the deed or agreement, if such 
 deed or agreement is not within the statute of frauds ; and so, where 
 a consideration is expressed in a deed or a written agreemient, an 
 other and a different one may be proved. FrinTc v. Green, 5 Barb. 
 455 ; McCrea v. Purmort, 16 Wend. 460 ; Adams v. Hull, 2 Denio, 
 306; Barker v. Bradley, 42 IST. Y. 316; Arnot v. Erie Railway Co., 
 67 ]Sr. Y. 315, 321 ; Trimmer v. Trimmer, 13 Hun, 182. Where a 
 written unsealed agreement purports to have been made " for value 
 received," that is a sufficient showing of a consideration. Prindle 
 V. Cai-uthers, 15 E". Y. 425 ; Miller v. Cook, 22 How. Pr. 66 ; ^S". C, 
 23 ]Sr. Y. 495 ; Brewster v. Silence, 8 N. Y. 207 ; Cooper v. Ded- 
 rick, 22 Barb. 516 ; Douglass v. Rowland, 24 Wend. 35. 
 
 Kinds of consideration. — Several different terms have been em- 
 ployed to designate the nature and the kinds of consideration; and 
 it is a common practice to call considerations by such names as legal, 
 moral, equitable, good, sufficient, and the like. 
 
 There is no harm in distinguishing considerations in that way, 
 though such a method does not in any manner assist in determin- 
 ing what kind of consideration is legally sufficient. A consideration 
 may arise from some beneiit which is received by the person who 
 makes the promise; or, it may arise from some detriment sustained 
 by the person to whom the promise is made. 
 
 It is not necessary that there shonld be a concurrence of benefit 
 to one party and of detriment to the other in order to constitute a 
 
THE LAW OF CONTEACTS. 9 
 
 consideration. If the party promising receives a benefit for his 
 promise, that is sufiicient, althotigh the other party suffers no detri- 
 ment. So if the party promised suffers any detriment, that is suf- 
 ficient, although the party promising does not receive any benefit. 
 And it is not even essential, in order to make out a good considera- 
 tion for a promise, to show that the promisor vfas, in fact, bene- 
 fited, or to the promisee, in fact, injured. 'Injury in a legal sense is 
 sufficient. The injury may consist in the compromise of a disputed 
 claim or forbearance to exercise a legal right, the alteration in 
 position being regarded as a detriment that forms a consideration 
 independent of the actual value of the right forborne. Hamer v. 
 Sidway, 124 K Y. 538 ; Rector, etc. v. Teed, 120 N. Y. 583. The 
 prejudice to the party which will avail as a consideration for a con- 
 tract must be a prejudice on entering into it and not a prejudice 
 from the breach of it. Ridgway v. Grace, 2 Misc. 293; 50 St. Kep. 
 326; 21 K Y. Supp. 934. 
 
 The making of a payment upon a note, before it is legally de- 
 mandable, is a sufficient consideration between the holder and the^ 
 maker that the time for the payment of the balance of the note 
 shall be extended. Newsamv. Finch, 25 Barb. 175. So an agree- 
 ment by a creditor to accept a larger sum than that secured by his 
 mortgage, and to discharge the lien before the debt is due by the 
 terms of the mortgage, is founded upon a sufficient consideration. 
 Scott V. Frink, 53 Barb. 533; 54 JST. Y. 635. But the payment of a 
 part of a debt which is then actually due and payable, or the pay- 
 ment of interest already accrued, or an agreement to pay the debt 
 with interest at a future day, is not a sufficient consideration for an 
 agreement by the creditor to postpone the payment of the debt, or 
 the residue unpaid, to a future day. Hunt v. Bloomer, 5 Duer, 
 202 ; Kellogg v. Olmstead, 28 Barb. 96 ; 25 K Y. 189 ; Pabodie 
 V. King, 12 Johns. 426 ; Oihson v. Renne, 19 Wend. 389 ; Warfield 
 V. Watkins, 30 Barb. 395; Parmalee v. Thompson, 45 IST. Y. 58; 
 Mutual Life Ins. Co. v. Aldrich, 60 N. Y. Supp. 95 ; BahcocTc v. 
 Kuntzsch, 85 Hun, 615; Olmstead v. Latimer, 158 JST. Y. 313. 
 And it may be stated generally that the performance of an act which 
 the party is under a legal obligation to perform, cannot constitute 
 a consideration for a new contract. Robinson v. J^wett, 116 IST. Y. 
 40 ; Arend v. Smith, 151 N. Y. 502. But it seems that where an 
 agreement to extend the time of payment is based upon an agree- 
 ment of the debtor to do an act which he was under no legal obli- 
 gation to do, as, for example, to procure and assign a policy of 
 insurance to the creditor, it is based upon a sufficient consideration. 
 Tammien v. Clause, 67 Barb. 430. 
 
10 THE LAW OF CONTKAOTS. 
 
 Unless there is what the law considers a valuable consideration, 
 it will not be sufficient to sustain an action.,. -And here it may be 
 noticed that there is a distinction between a valuable consideration, 
 other than money, and a money consideration. In the former casQ, 
 the slightest consideration will support a promise to pay the largest 
 amount, to the full extent of the promise, while, in the latter case, 
 the consideration will support a promise only to the extent of the 
 money forming the consideration. The law leaves the measure of 
 the value of a valuable consideration, other than money, for a 
 promise to pay money, to the parties to the contract; but money 
 being the standard of value is not subject to be changed by contract, 
 and will support a promise to pay money only to the amount of the 
 consideration. Sawyer v. McLouth, 46 Barb. 350. 
 
 A mere moral obligation, unconnected with a prior legal lia- 
 bility, is not sufficient to support an express promise. Geer v. 
 Archer, 2 Barb. 420 ; S^nith v. Wa7-e, 13 Johns. 257 ; Ehle v. Jud- 
 son, 24 Wend. 97; Goulding v. Davidson, 28 Barb. 438; Wathins 
 V. Halstead, 2 Sandf. 311 ; O'Hara v. Robinson, 63 Hun, 569. If 
 one person volunteers, without any request and without any legal 
 obligation, to pay the debt of a third person, such payment does not 
 give any right of action in favor of the party paying against the 
 party for whom the payment was made, nor will a subsequent 
 promise give a right of action. Ingraham v. Gilbert, 20 Barb. 151; 
 Eashvood v. Kenyan, 11 Ad. & Ellis, 438 ; Taylor v. Baldwin, 10 
 Barb. 626. A meritorious consideration, or the duty to provide for 
 a wife or child, is not sufficient to support an executory covenant. 
 Duvoll V. Wilson, 9 Barb. 487 ; Whitaker v. WUtaker, 52 K Y. 
 368. It seems to be the general doctrine that an executory agree- 
 ment supported only by a meritorious, as distinguished from a 
 ^^aluable or pecuniary consideration, cannot be enforced either at 
 law or in equity. Matter of Wilbur v. Warren, 104 N. Y. 192. 
 Where a parent is willing to support his infant child, and a relative, 
 without his request, but with his assent, receives the child into his 
 family and supports it as a child of his own, no agreement on. the 
 part of the father can be implied to pay for such support, and a 
 subsequent promise will not support an action. Chilcott v. Trimble, 
 13 Barb. 502. And see Johnson v. Gibson, 4 E. D. Smith, 231. So, 
 an action cannot be maintained upon a note given by a person to 
 an officer of a benevolent society, for his initiation fee as a member, 
 and for his quarterly dues. Nash v. Btissell, 5 Barb. 556. And see 
 Geer v. Archer, 2 Barb. 420; Ehle v. Judson, 24 Wend. 97. 
 
 There are cases where a moral obligation that is founded upon 
 an antecedent valuable consideration is sufficient to sustain a prom- 
 
THE LAW OF CONTEAOTS. 11 
 
 ise, though the obligation on which it is founded never could have 
 been enforced at law. In other words, a moral obligation is some- 
 times a sufficient consideration for an express promise, if at some 
 time or other a good or valuable ccyasideration has existed, although 
 there never was a time prior to such express promise when any 
 portion of the precedent consideration could have been enforced at 
 law or in equity through the medium of any promise. Gouldmg 
 V. Davidson, 26 N. Y. 604, 609. A note given in the place of one 
 absolutely void by the laws of this state, which excludes the vice 
 which destroyed the other, may be enforced. Brackett v. Barney, 
 28 jST. Y. 333, 338 ; McConhey v. Petterson, 15 App. Div. 77 ; Shel- 
 don V. Haxtim, 91 N. Y. 124; Hammond v. Hopping, 13 Wend. 
 505. 
 
 W^hen there has once been a valid legal right of action, which 
 is barred by the statute of limitations, a bankrupt's or an insolvent's 
 discharge, or some similar operation of law, the liability may be 
 revived by a subsequent promise. Hopkins v. Ward, 67 Barb. 452. 
 There is undoubtedly a distinction between the effect of the opera- 
 tion of the statute of limitations upon a debt and the effect of a 
 discharge in bankruptcy or under the insolvent laws. See Walter- 
 mire V. Westover, 14 N. Y. 16. But it would not be profitable to 
 consider and discuss the grounds of distinction in this connection. 
 It is sufficient to notice that the statute of limitations merely sus- 
 pends the remedy, while in case of a discharge in bankruptcy the 
 legal obligation of the bajokrupt is by force of positive law dis^ 
 charged. But the debt is not paid by the discharge, and the moral 
 obligation to pay it remains. It is due in conscience, although 
 discharged in law, and this moral obligation, uniting with a subse- 
 quent promise by the bankrupt to pay the debt, gives a right of 
 action. Dusenhury v. Hoyt, 53 IST. Y. 521. A promissory note, 
 given by an infant, is iiOt void, but mlerely voidable, if he elects 
 to set up infancy as a defense; and, therefore, a ratification or new 
 promise, after he becomes of age, will be binding upon him. 
 Hodges v. Hunt, 22 Barb. 150 ; Taft v. Sergeant, 18 Barb. 320 ; Bige- 
 lovj V. Grannis, 2 Hill, 120; Everson v. Carpenter, 17 Wend. 419; 
 Goodsell V. Myers, 3 Wend. 479. But the promise must be made 
 to the plaintiff, or to his agent. lb. 
 
 It may be stated generally that where there never was a legal 
 liability, no subsequent promise can give a right of action, if it is 
 founded upon a mere prior moral obligation, notwithstanding such 
 subsequent promise is express, and even reduced to writing. Geer 
 V. Archer, 2 Barb. 420 ; Ehle v. Judson, 24: Wend. 97 ; Chilcott r. 
 
12 THE LAW OF CONTKACTS. 
 
 Trimble, 13 Barb. 502 ; Ingraham v. Gilbert^ 20 Barb. 151 ; Chaffee 
 V. Thomas, 7 Cow. 358. 
 
 The parties to an obligation may agree that the interest already 
 accrued thereon shall be turned. into principal so as to carry in- 
 terest in future, and the forbearance will furnish a consideration; 
 but a promise to pay interests upon interest, which is to operate 
 retrospectively and is supported by no consideration other than the 
 moral one that the interest is in arrear and unpaid, cannot be en- 
 forced. Young v. Hill, 67 lii. Y. 162. 
 
 SufBlciency of consideration — If the consideration is legal, and is 
 one which is recognized by the law as valuable, it need not be of 
 any particular value; nor need it be equal to the imiportance of 
 the obligation assumed. Parties are at liberty to make such con- 
 tracts as they please, if they are legal, and the court will not inquire 
 into the adequacy of the consideration. The slightest consideration 
 is sufficient to support the most onerous obligation. Oahley v. 
 Boorman, 21 Wend. 588; Johnson v. Titus, 2 Hill, 606; Gilsey v. 
 Wild, 1 Hilt. 305 ; Thomas v. Quintard, 5 Duer, 80 ; Earl v. Pech, 
 64 K Y. 596; Cowee v. Cornell, 75 K Y. 91; Worth v. Case, 42 
 ISr. Y. 362; Hurd v. Oreen, 17 Hun, 327. There is a broad dis- 
 tinction between inadequacy of consideration and want or failure 
 of consideration. The former is no defense to an action ; the latter 
 is. lb. A person has the right to pay for services rendered a much 
 larger sum than they are worth, and there is no standard by which 
 the courts can limit the measure of value in such a case. An obli- 
 gation is not wanting, even partially in consideration, because the 
 value is less than the obligation. A note for a thousand dollars given 
 for a horse confessedly worth but one hundred, cannot be success- 
 fully defended in whole or in part on the ground of a want or failure 
 of consideration. Earl v. Pech, 64 K Y. 596, 599. 
 
 A promise to give another five thousand dollars if the latter would 
 refrain from drinking liquor, using tobacco, swearing, and playing 
 cards or billiards for money until he should become twenty-one 
 years of age, if agreed to and performed by the promisee, is founded 
 upon a sufficient consideration. A waiver of any legal right at the 
 request of another party is a sufficient consideration for' a promise. 
 Earner v. Sidway, 126 IST. Y. 538. 
 
 Where the plaintiff claimed that a sum of money was due to him 
 from the defendant, which the latter denied, but he offered to pay to 
 the plaintiff the sum claimed by him, provided he would make oath to 
 the correctness of his claim, which the plaintiff did, by making oath 
 before a proper magistrate, and he then demanded the money of 
 
THE LAW OF CONTKACTS. 13 
 
 the defendant, the latter was held liable to pay the amount so de- 
 manded and sworn to. Brooks r. Ball, 18 Johns. 337; Bourke v. 
 Duffy, 15 Abb. 340. And, in such a case, the defendant will not be 
 permitted to show that the plaintiff is mistaken, or that he has sworn 
 falsely in relation to the justice or the accuracy of his claim. lb. 
 So, an agreement by the defendant to pay what a certain named tax- 
 ing oiEcer should say was a fair charge for services rendered by the 
 plaintiff, as a lawyer, for the defendant, is a valid agreement, and 
 the defendant will be compelled to pay the amount thus settled and 
 adjusted, especially when the amount taxed is merely the legal tax- 
 able costs in the case. Culley v. Hardenhurgh, 1 Denio, 508. So 
 in an action against a common carrier to recover the value of goods 
 lost by him, if he agrees, after suit commenced, that he will pay 
 the amount of the bill of the articles claimed by the plaintiff, pro- 
 vided the latter will swear to the bill, this agreement is legal and 
 valid, and if the plaintiff accordingly makes an affidavit to such bill, 
 and to the amount, this will be evidence of the defendant's liability, 
 and the affidavit will be evidence of the amount of the demand. 
 Ilurd V. Pendrigh, 2 Hill, 502. The case last cited differs from 
 some other cases somewhat similar, for the reason that in this case 
 the promise was made after the commencement of the action, and 
 during its pendency, while in the others the promise was made be- 
 fore the action was brought. 
 
 The principle of the rule which admits such promises after suit 
 brought is, that the affidavit is competent evidence as an admission 
 of the defendant, by complying with his request to make it. It could 
 not, of course, be considered as a substantive cause of action, because 
 it occured while the suit was pending, and in all cases the cause of 
 action must be perfect before it is commenced, or it will fail. Oarri- 
 gue V. Loescher, 3 Bosw. 579. In such a case, the evidence will be 
 used to establish the original cause of action by way of ad- 
 mission, instead of being relied on as a substantive cause of action 
 itself. The making of an affidavit, or the taking of an oath, under 
 such circumstances, vdll be equally available as a ground of defense 
 to a claim. And if a plaintiff offers to be satisfied that nothing is 
 due to him, provided the defendant will make an affidavit that noth- 
 ing is due, a compliance with the offer, by the defendant, by making 
 such affidavit, will be a bar to the plaintiff's right of action. Bourke 
 V. Duffy, 15 Abb. 340. Whether the affidavit is true or false is of 
 no consequence in such a case, for the maiing of the affidavit under 
 such circumstances, is a consideration sufficient to bar the right of 
 action. Ih. And the defendant need not deliver the affidavit to the 
 
14 THE LAW OF CONTKACTS. 
 
 plaintiff ; it will be enough if he shows it to him, and then retains it 
 in his own custody. Ih. 
 
 The sale of a chose in action which is absolutely void, is not a sufS- 
 cient consideration to support a promise. Sherman v. Barnard, 19 
 Barb. 291. x\n executory promise to pay a sum of money to be re- 
 canted from a bargain which is void by the statute of frauds, as in 
 the case of a parol contract for the sale of standing timber, is not 
 binding for want of a consideration to support it. Silvernail v. Cole, 
 12 Barb. 685. And see Morey v. Town of Newfane, 8 Barb. 645. 
 And it may always be shown that the consideration is fraudulent or 
 illegal, and therefore insufficient. Ih. 
 
 Every consideration must have some vame and realty, and there- 
 fore, the assumption of a supposed liability or danger which has no 
 foundation, either in law or in fact, is not a valiiable or Sufficient 
 consideration to sustain an action. Silvernail v. Cole, 12 Barb. 685 ; 
 Sherman v. Barnard, 19 Barb. 291. 
 
 Prevention of litigation. — The law favors the settlement of dis- 
 putes and the prevention of litigation. The settlement of a suit, 
 or the compromise of a doubtful claim preferred in good faith by 
 a promisee against a promisor, is, in the absence of fraud or duress, a 
 legal consideration for a promise and the fact that the promisor had 
 a legal defense to the claim settled is no defense to an action on the 
 new promise. Stewart v. Ahrenfeldt, 4 Denio, 189 ; Seaman v. 
 Seaman, 12 Wend. 381 ; Crans v. Hunter, 28 IST. Y. 389 ; White v. 
 Hoyt, 73 K Y. 505; Feeter v. Weber, 78 IST. Y. 334; Dunham v. 
 Griswold, 100 IS". Y. 224 ; Wahl v. Barnum, 116 ]SF. Y. 87 ; Zoeiisch 
 V. Von Minden, 120 IST. Y. 406 ; U. S. Nat. Banh v. Homestead Bank, 
 46 St. Rep. 173 ; 18 JST. Y. Supp. 758. In an action upon such prom- 
 ise it is not competent for the defendant to shoAV that nothing was 
 due to the promisee on the demand which had been adjusted. 
 Stewart v. Ahrenfeldt, 4 Denio, 189. But if the party to whom the 
 promise is made has fraudulently concealed material facts, not 
 within the knowledge of the other party, such fraudulent conduct 
 may be shown to defeat a recovery on the promise. Ih.j Feeter v. 
 Weber, 73 IST. Y. 334. A note given upon the settlement of a doubt- 
 ful claim preferred against the maker will be upheld as founded upon 
 a sufficient consideration without regard to the validity of the claim. 
 In such cases it matters not on which side the right ultimately 
 tvirns out to be; the court will not look beyond the compromise. 
 Russell V. Coolc, 3 Hill, 504 ; Barnes v. Byam,, 66 Hun, 170 ; Far- 
 mers' Banh of Amsterdam r. Blair, 44 Barb. 641. See also Wehrum 
 V. Kuhn, 61 ]Sr. Y. 623. 
 
THE LAW OF CONTKAOTS. 15 
 
 It is not essential that the promise be made by a party to the con- 
 troversy. It is well settled that the discharge by A. of a doubtful 
 claim against B. is a good consideration for the promise by C. to pay 
 a sum of money to secure such discharge. Struthers v. Smith, 85 
 Hun, 261; 66 St. Kep. 299; 32 K Y. Supp. 905. And in applica- 
 tion of this principle, the release by one person of a doubtful claim 
 against another is a good consideration for a promissory note given 
 by a third person. Housatonic Nat. Bank v. Foster, 85 Hun, 376 ; 
 66 St. Rep. 432 ; 32 IST. Y. Supp. 1031. 
 
 The nature of the matter or suit compromised is not material to 
 the application of the principles stated. The withdrawal of a caveat 
 by an heir-at-law to the proving of the will of his ancestor has been 
 held to furnish a sufBcient consideration to support a promise by the 
 devisees for the payment of a specific sum of money to the heir. 
 Seaman v. Seaman, 12 Wend. 381. And see Rector, etc., of St. 
 Marls Church v. Teed, 44 Hun, 349; 120 E". Y. 583. The law 
 favors the compromise of doubtful and disputed claims, whether 
 they arise ex contractu or ex delicto If the subject of the compro- 
 mise is a fraud, the party aggrieved may magnify the enormity of 
 it, and the party accused may assert his innocence. Where fraud 
 has been committed by misrepresentation and false statements, and 
 the aggrieved party, with knowledge of the facts constituting the 
 fraud, makes a compromise of the matter without suit, or, after suit 
 brought to redress the wrong, compromises such suit, the compromise 
 will be held valid in law, although the party committing the fraud 
 may reiterate such misrepresentations and false statements, and 
 affirm and reaffirm his integrity in the matter in order to effect the 
 compromise, and the aggrieved party may thereby be induced to 
 make the compromise. Adams v. Sage, 28 IST. Y. 103. But the party 
 defrauded will not be bound by the compromise unless it appears 
 that he had, at the time of the compromise, knowledge of the facts 
 constituting the fraud. A bare suspicion, not founded upon facts or 
 upon any investigation, is not sufficient. Baker v. Spencer, 47 IST. Y. 
 562. 
 
 In all such cases of compromise there must be a ease where there 
 could be some pretense of a claim sustained, though the result of a 
 litigation might be involved in doubt. 
 
 If the claim made is one which is utterly and palpably untenable, 
 either in fact or in law, no action will lie upon the compromise of 
 such a claim; as, where the defendant sold, by a verbal contract, a 
 quantity of standing trees, then growing on his land, and the plain- 
 tiff claimed trees which the defendant insisted he did not sell, and 
 
16 THE LAW OF CONTEAOTS. 
 
 the plaintiff threatened to sue the defendant for the non-delivery, 
 and he gave his note to the plaintiff if he would recant the bargain. 
 In an action upon this note, it was held that there was no considera- 
 tion for the note, because there was no possible legal liability on the 
 part of the defendant, even if he had made such an agreement, and 
 then refused to perform it. Silvemml v. Cole, 12 Barb. 685-; Green 
 V. Armstrong, 1 Denio, 550 ; McGregor v. Brown, 10 N. Y. 114. 
 
 The possession of a farm and some other matters in controversy 
 between the parties, were submitted to arbitration, and a sum of 
 money and possession of the farm were awarded to the defendant, 
 who brought an action of ejectment to recover the possession. It 
 was then agreed that the plaintiff should give up possession to the 
 defendant, and that the defendant should relinqiiish his claim under 
 the award, and pay the defendant one hundred and fifty dollars. 
 In an action on a note given to secure part of that sum, it was held 
 that the note was given on good consideration and was valid, the 
 subsequent settlement not being affected by the previous award, 
 and the parties having authority to vary the rights acquired under 
 it Hall V. Brown, 15 Johns. 194. 
 
 A., being entitled, as devisee, to a share of an estate, the division 
 of which was illegally postponed by the will, until ten years after 
 the death of D., in consideration of the payment of a portion of the 
 fund to him, to be deducted from his portion on the final division, 
 covenanted with the executors that he would not sue for an account, 
 etc., until D.'s death ; and this covenant was held void for want of con- 
 sideration, because the money which was paid to A. belonged to 
 him, so that he did not receive, and the executors did not pay, the 
 money before it was due. Converse v. Kellogg, 7 Barb. 590. A. sold 
 and conveyed land to B., and, to quiet A.'s complaints that she had 
 not got enough for it, B. gave her his note for a further sum ; it was 
 held that this note was without consideration. Geer v. Archer, 2 
 Barb. 420. 
 
 Forbearance — An agreement to forbear proceedings at law for the 
 enforcement of a valid claim, is a valid consideration for a promise. 
 And where, in consideration of forbearance in prosecuting a claim 
 which is due, the debtor promises to raise the rate of interest from 
 six to seven per cent., this is a valid consideration. Haggerty v. 
 Allaire WorTcs, 5 Sandf. 230, 23'.. See Bitter v. Phillips, 53 IST. Y. 
 586. And when a debt is due, and the creditor forbears collection 
 in consideration of the guaranty of a third person to pay the debt, 
 this is a sufficient consideration to make the guarantor liable. Wat- 
 son V. Randall, 20 Wend. 201 ; Jachson v. Bayner, 12 Johns. 291 ; 
 
THE LAW OF CONTKACTS. IT 
 
 Elting v. Vanderlyn, 4 Johns. 237. An agreement by a creditor to 
 forbear the collection of a debt presently due is a good consideration 
 for an absolute or conditional promise of a third person to pay the 
 debt, or for any obligation he may assume in respect thereto. Me- 
 chanics' & Farmers' Bank v. Wixson, 42 N. T. 438. It is not essen- 
 tial to the validity of such new promise that the creditor should bind 
 himself, at the time, to forbear collection or to give time. If he 
 is requested by his debtor to give time, and a third person undertakes, 
 in consideration of forbearance being given, to become liable as surety 
 or otherwise, and the creditor does, in fact, forbear in reliance upon 
 the undertaking, although he enters into no enforcible agreement to 
 do so, his acquiescence in the request, and an actual forbearance in 
 consequence thereof for a reasonable time, furnishes a good con- 
 sideration for the collateral undertaking. Strong v. Sheffield, 144 
 X. Y. 392. An agreement to withhold suit is a good consideration 
 to support a promise to pay a debt, although no fixed and definite 
 time is expressly agreed upon. The legal effect of such an agreement 
 is to bind the creditor to withhold suit for a reasonable time. T. N. 
 Bank v. Parker, 130 IST. Y. 415. The promise of the third person 
 to pay the debt in consideration of forbearance should be in writing, 
 as a mere oral promise to that effect would be void as within the 
 statute of frauds. Duffy v. Wunsch, 42 N. Y. 243. So, where a 
 person has a lien upon property, in whatever manner the lien may 
 have been legally obtained, a discharge of such lien, at the request 
 of a third person who promises to pay the claim, is a valid considera- 
 tion for the promise, but the promise must be in writing and state 
 the consideration, or it will be void by the statute of frauds. Mallory 
 V. Gillett, 21 ]Sr. Y. 412. 
 
 Labor and services performed by laborers, mechanics, professional 
 men and others, furnish the consideration for very many of the ex- 
 press or implied agreements upon which actions are brought in our 
 courts. When such labor or service is rendered or performed for 
 another at his request ; or, where it is rendered or performed in pur- 
 suance of an implied request which the law recognizes, it will be a 
 sufficient consideration to support an action upon an express or im- 
 plied agreement for compensation. 
 
 If one person requests another to render services for a third per- 
 son, and the service is rendered accordingly, an action will lie against 
 the person who made the request for the value of the services ren- 
 dered. While it may be that a request made by one person to per- 
 form service beneficial only to another will not alone raise the pre- 
 sumption of his intention to pay for it, yet, when it appears that the 
 2 
 
18 THE LAW OF CONTKACTS. 
 
 requested service has been performed pursuant to such request, he, 
 in the absence of authority from or ratification by such other per- 
 son, is charged as upon an implied promise to pay the person so em- 
 ployed. Ludlum V. Couch, 10 App. Div. 603. Services which are 
 rendered gratuitously vi^ithout a prior request, and without any ex- 
 pectation of compensation, cannot be made the ground of an action 
 against the person for whom such service was rendered. And where 
 the relations of the parties are such that compensation for services 
 is not expected no action will lie to recover compensation for them. 
 Carpenter v. Weller, 15 Hun, 134; Williams v. Hutchinson, 3 IST. Y. 
 312. A promise to pay for services is implied by law only when the 
 court can see that they were rendered under such circumstances as 
 authorize the party performing to entertain a reasonable expectation 
 of their payment by the party soliciting the performance. Davidson 
 V. Westchester Gas-Light Co., 99 IST. Y. 558. In the case of near 
 relatives or members of the same family, the law regards services 
 rendered by one for another as acts of gratuitous kindness and affec- 
 tion, and requires clear proof of an express contract to support a 
 claim for board, on the one side, or wages, on the other. See Wilcox 
 V. Wilcox, 48 Barb. 327 ; Matter of Teyn, 2 Eedf. 306 ; Sullivan v. 
 Sullivan, 6 Hun, 658 ; Gallagher v. Vought, 8 Hun, 87 ; Van Euren 
 V. Saxton, 3 Hun, 547 ; Conger v. Van Aernum, 43 Barb. 602 ; Mat- 
 ter of Dusenberry, 10 ffisc. 633 ; 66 St. Eep. 217 ; 32 N. Y. Supp. 
 820 ; Marion v. Farnan, 68 Hun, 383 ; Collyer v. Collyer, 113 N. Y. 
 442 ; Lynn v. Smith, 35 Hun, 275. The rule of law that, from a 
 request to perform services, an implied promise arises to pay what 
 such services are reasonably worth, and that, in some cases, the law 
 will imply a request from the beneficial nature of the services, or 
 their acceptance by the party, has no application when the request is 
 to a member of the promisor's family, for the reason that the rela- 
 tion between the parties repels the presumption of a promise to pay, 
 and raises a contrary presumption that the service was to be gratui- 
 tous. This is the rule where there is no proof of a contract between 
 the parties. But there is no rule of law which compels an inference, 
 from the fact of such relationship, against the existence of an agree- 
 ment by the parent to compensate a child for services to be rendered ; 
 and it is as competent for the parent to contract with his adult 
 child for support and care, and a claim for compensation thereunder 
 is onite as valid as it would be in any other case between indi- 
 viduals. Ulrich V. Ulrich, 136 N. Y. 120. Each case must be de- 
 cided in view of the peculiar circumstances surrounding it; and 
 where a promise to pay for services is shown, or where there has 
 
THE LAW OF CONTKACTS. 19 
 
 been an interruption of the family relation and a return to it for 
 the express purpose of performing the services, and especially where 
 the party performing the services is not so nearly related to the 
 recipient of the favor by ties of blood as to raise a presumption of 
 natural love and affection, the presumption of gratuitous service 
 may not arise. See Matter of Ryder, 38 St. Rep. 29 ; 13 N. Y. 
 Supp. 542 ; Marion v. Faman, 68 Hun, 383 ; Matter of Strickland, 
 10 Misc. 486; 65 St. Rep. 250; 32 K Y. Supp. 171; Matter of 
 Delaney, 24 Misc. 45 ; 53 K Y. Supp. 268 ; Van Schoych v. Backus, 
 9 Hun, 68 ; Hill v. Hanford, 11 Hun, 536 ; Thornton v. Grange, 
 66 Barb. 507. 
 
 Where a woman has lived with a man as his wife, and sup- 
 posed that she was such, but subsequently discovered that the 
 marriage between them was void, she cannot maintain an action to 
 recover for her services, upon an implied promise to pay for them. 
 Cropsey v. Sweeny, 27 Barb. 310. Where a daughter resides with 
 her father, and renders services for him in the ordinary duties of 
 the household, and he provides for her, and supplies her wants, there 
 will not be any implied promise to pay her wages. Dye v. Kerr, 15 
 Barb. 444. So a stepfather is not bound by law to support his step- 
 children, nor is he entitled to their services, but if they live with 
 such stepfather in the manner that natural children do, and render 
 similar services, that will not give any right of action. Sharp v. 
 Cropsey, 11 Barb. 224; Williams v. Hutchinson, 5 Barb. 122 ; 8. C, 
 3 ^SL Y. 312. 
 
 Where a minor was indentured as an apprentice, and rendered 
 services as such, and then discovered that the indentures were void, 
 it was held that no action would lie to recover pay for the services 
 so rendered. MaWby v. Harwood, 12 Barb. 473. 
 
 And where a person renders valuable services for another, but 
 there is no prior express or implied requ.est, no action will lie to 
 recover compensation. Frear v. Hardenbergh, 5 Johns. 273 ; Bar- 
 tholomew v. Jackson, 20 Johns. 28. This rule may operate harshly 
 in some cases, but it is founded upon the principle that one man 
 cannot make another his debtor without the consent of the party 
 who is to be charged. 
 
 Where services are rendered by an employee for his employer, the 
 law implies that they were rendered under the contract of employ- 
 ment unless the contrary is shown; and this implication is much 
 stronger if the services are of the same character as those embraced 
 in the contract. Ross v. Hardin, 79 E". Y. 84, 90. 
 
 The doctrine that where a person stands by and accepts the service 
 of another a promise to pay their reasonable value is implied, does 
 
20 TPIE LAW OF CONTEACTS. 
 
 not apply where a person assists in extinguishing a fire in a ware- 
 house, 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 exclusive 
 benefit of the warehouseman and no liability arises from a failure 
 to prevent their rendition. Merritt v. American Dock & Trust Co., 
 36 St. Kep. 428; 13 K Y. Snpp. 234. 
 
 If a man humanely bestows his labor and even risks his life in 
 voluntarily aiding to preserve his neighbor's house from destruction 
 by fire, the law considers the service rendered as gratuitous and 
 it therefor forms no ground for action. Bartholomew v. Jackson, 
 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 Jobns. 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 without 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 required such 
 service to have been performed with the understanding 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 almost 
 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 contract, or 
 any part of it, at the time it is made. Now, it is evident that the 
 only consideration which exists, in such a case, is a promise for a 
 promise. And such a contract is as binding upon the parties as 
 though one of them had paid money or delivered property to the 
 other, in consideration of which the latter promised to do some speci- 
 
THE LAW OF CONTEACTS. 21 
 
 fied thing. Briggs v. Tillotson, 8 Johns. 304; Houghtaling v. 
 Banden, 25 Barb. 21; Sage v. Hazard, 6 Barb. 179; Coleman v. 
 Eyre, 45 JST. Y. 38. An agreement by one party to sell to another 
 shares of stock in a corporation to be thereafter incorporated 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 deiinite time is a sufficient consideration 
 for an agreement by the other party to receive, sell and pay for the 
 goods. Standard Fashion Co. v. Osirom, 16 App. Div. 220. So. 
 mutual promises, by persons competent to contract, to submit to ar- 
 bitration claims and demands which are the subject of arbitration, 
 are a good consideration, each for the other. Wood v. Tunnicliff, 
 74 N. Y. 38. 
 
 It is sometimes said that both parties must be boimd at the same 
 time, or that neither will be bound ; and, when the sole consideration 
 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 ex- 
 ecuted 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. 
 
 Mutuality is essential to an executory contract. Wall v. Gillin 
 Printing Co., 21 Misc. 649; 48 IT. Y. Supp. 67. But it is not 
 essential to the existence of a consideration for a promise that mu- 
 tuality 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 
 nphold 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 exe- 
 cution of the agreement. Sagalowitz v. Pellman, 32 Misc. 508. 
 
 There is a class of cases in which no promise is given for a promise, 
 and yet there may be a valid contract in pursuance of a request 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 de- 
 
22 THE LAW OF CONTKAOTS. 
 
 liver the goods, the master is liable to pay for them. L'Amoreux v. 
 Oould, 7 N". Y. 349. In such a case, the merchant's compliance with 
 the master's request is all that is necessary ; and, when the goods are 
 delivered, there will be that mutuality of consideration 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 Jhe 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 cases 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 mu- 
 tuality 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 infant's 
 promise is not void, but voidable at his election; and, therefore, 
 if he elects to hold it valid, the adxilt cannot complain. Willard v. 
 Stone, Y Cow. 22 ; Hunt v. Peake, 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 subscription. Batter- 
 shall V. Davis, 31 Barb. 323. 
 
 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 subscription shows 
 a consideration upon its face; or, if it contains a request that any 
 act shall be done, and then it is shown that there has been a com- 
 pliance with such request, this will render the subscription valid. 
 Barnes v. Ferine, 12 IST. Y. IS, 24 ; 8. C, 15 Barb. 249 ; and 9 Barb. 
 202 ; Stewart v. Trustees of Hamilton College, 2 Denio, 403 ; 8. C, 
 1 N. Y. 581; Stoddard v. Cleveland, 4 How. Pr. E. 148; Be- 
 
THE LAW OF CONTEACTS. 23 
 
 formed, &c., Ohurch v. Brown, 29 Barb. 335 ; 8. C, 11 How. Pr. 
 R. 28Y; Central Presbyterian Church v. Thompson, 8 App. Div. 
 565 ; Roberts v. Cobb, 103 K Y. 600 ; Richmondville Union Semi- 
 nary V. McDonald, 34 W. Y. 379 ; Wayne & Ontario Collegiate In- 
 stitute V. Smith, 36 Barb. 576. Where the subscription paper does 
 not show upon its face any valid consideration for the promise 
 therein contained, and does not show any request, express or im- 
 plied, that the party to whom tJie promise "is made shall do any act 
 on the faith thereof, and where the party to whom the promise is 
 made has neither promised to do nor has done any act upon the faith 
 of the subscription, the instnmaent is void for want of consideration 
 and cannot be enforced against the subscriber. See Hull v. Pear- 
 son, 38 App. Div. 588 ; Presbyterian Church of Albany v. Cooper, 
 112 j^. Y. 517; Twenty-third Street Baptist Church v. Cornell, 
 117 I^. Y. 601. The recital in the insti-ument that it was made " in 
 consideration of one dollar to each of us in hand paid and the 
 agreement of each other in this contract contained" will not pre- 
 clude the promisor from showing that nothing was in fact paid to 
 him ; and the fact that the promise of each subscriber was made by 
 reason of and in reliance upon similar promises by the others con- 
 stitutes no consideration as between the promisors and the persons 
 or corporation for whose benefit the promise is made. Presbyterian 
 Church of Albany v. Cooper, 112 !N". Y. 517. While it may follow 
 that the expenditure of large sums of money in reliance upon and 
 in furtherance of the object of a subscription may furnish a con- 
 sideration where none existed before, to have this effect the ex- 
 penditure must have been made with the knowledge and assent of 
 the subscribers. In case 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 N. Y. 601. 
 
 In an action based upon a subscription for the support of a col- 
 lege it appeared that the defendant and an agent of the college signed 
 a paper reading, as follows : " 1 promise to pay the trustees of the 
 ^N^ew York Central College one hundred dollars, in five years, or 
 to their authorized agent. They agree to apply it for college pur- 
 poses;" 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 agree- 
 ment to pay such sum on condition that the college holds its doors 
 
24 THE LxiW OF CONTKAOTS. 
 
 open upon all moral subjects, and that they would use their influ- 
 ence on the studentsi to hear and investigate the subject, if the 
 morality of the soul should be presented for discussion in the lyceum, 
 and also that the college chapel should be open, on proper notice, 
 for any suitable Christian person 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 pos- 
 sibility of a valid defense to this contract other than the want of 
 consideration. 
 
 The want of consideration for a subscription under seal may be 
 shown the same as if no seal were attached. 
 
 The liability of parties to subscriptions for the purpose of form- 
 ing 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 considera- 
 tion to sustain an action in favor of any one who complies with it 
 by giving the information required, and by also complying with any 
 other conditions therein speciiied. 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. 
 Farnham, 22 Barb. 519. 
 
 Where a reward is offered for the apprehension of a criminal, and 
 the recovery of the moneys feloniously obtained by him, it is es- 
 sential that there should be both an apprehension of the offender and 
 a recovery of the moneys, and without the performance of both 
 conditions the plaintiff will not be entitled to recover. Jones v. 
 Phoenix BanTc, 8 IST. Y. 228. The rule is the same when the offer 
 is to pay a portion of the reward, proportionate to the amount re- 
 covered, n. 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. Ih.; Thatcher v. England, 3 
 Man., Grang. & Scott, 254. Where the advertisement which offers 
 the reward merely requires information which will lead to the de- 
 tection of the offender, it will be sufficient to prove that the plaintiff 
 gave such information to the defendant as led him to have the sus- 
 pected 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 the reward is offered to any person who 
 
THE LAW OF CONTRACTS. 25 
 
 will give such information as will lead to the apprehension and con- 
 viction of the criminal, both apprehension and conviction must 
 concur, as a consequence of the information given, to entitle the in- 
 formant to the reward. FUch v. Snedaker, 38 N. Y. 248. Not 
 only that, but the person claiming the reward must show a rendi- 
 tion of the requisite services after a loiowledge and with a view 
 of obtaining the offered reward. lb.; Howland v. Lounds, 51 N. 
 Y. 604. 
 
 A public ofHcer, 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 where a statute fixes the fees which are to be paid to such 
 an officer for a specified service which he is bound to perform, no 
 action will lie for the recovery of a greater sum than the statute 
 fees, on the ground that extra exertions were made in the discharge 
 of such official duty, and this although an express promise 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 governor, follows one, who, 
 being at large on bail for felony, has left the State, arrests him with- 
 out the State, and brings him into the State, the fact of his official 
 character will not prevent his recovering on an offer of reward. 
 Gregg v. Pierce, 53 Barb. 387. 
 
 Rewards are also offered for various other acts and things than 
 the detection, arrest or conviction of criminals. 
 
 And in all such cases a compliance with the offer will entitle the 
 person rendering the service to recover the amount offered. 
 
 Consideration void in part. — The maxirti " 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 contract 
 void, on account of some unlawful provision in it. Second. When 
 there is some pervading vice which infects all parts of the agree- 
 ment, as fraud for example, so that no separation can be made. 
 CuHis V. Leavitt, 15 N. Y. 14, 97 ; Leavitt v. Palmer, 3 K Y. 19. 
 
26 THE LAW OF CONTEACTS. 
 
 Illegality of oonsideration. — 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 statute 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 penalty or to crimi- 
 nal punishment, because, in the latter case, the contract would be 
 like a contract which is bad at common law for illegality. 
 
 If the consideration is entire, and there cannot be any separation 
 of it, the entire contract will be void, although a portion of the con- 
 sideration may not be illegal. If there are two separate and distinct 
 considerations for a contract, and one of the considerations 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 Isl". Y. 558 ; Saratoga County BcCnh v. King, 
 44 ISr. T. 87. 
 
 Illegality of consideration will be fully discussed in another place. 
 
 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 possibly be per- 
 formed under the circumstances which have happened. Harmony v. 
 Bingham, 12 IST. Y. 99 ; Booth, v. Spuyten Duyvil Rolling Mill Co., 
 60 IST. Y. 48Y ; Oakley v. Morton, 11 IST. Y. 25 ; Tompkins v. Dudley, 
 25 ]Sr. Y. 272 ; Wheeler v. Connecticut Mut. Life Ins. Co., 82 IST. Y. 
 543. The non-performance of a contract is not excused by the act 
 of God where it may be substantially carried into effect, although 
 the act of God makes a literal and precise performance of it impos- 
 sible. Thus, where a carrier of passengers has agreed to transport 
 a passenger from one place to another, the latter part of the route 
 
THE LAW OF CONTEACTS. 27 
 
 by a particular vessel, the fact that, at the time of making the con- 
 tract, that particular vessel had, without the knowledge of either 
 party, been rendered a total wreck by the act of God, rendering 
 precise performance of all of the terms of the contract impossible, 
 does not excuse the carrier from all obligation to complete his con- 
 tract. It is still his duty to use all means in endeavoring to supply 
 another vessel, which a diligent, careful man exercises in regard to 
 his own affairs. WUliams v. Vanderbilt, 28 E". T. 217. In such 
 case, 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 apparent contradiction, but 
 in harmony with the spirit of the case last cited, is the now well- 
 settled rule that, where performance depends upon the continued 
 existence of a particular person or thing, and such continued exist- 
 ence 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. 
 Lorillard v. Clyde, 142 E". Y. 456. Executory contracts for per- 
 sonal 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 K Y. 62; Spdulding v. Rosa, 71 N. Y. 40; People v. Globe 
 Mutual Ins. Co., 91 N. Y. 174; Taylor v. Coldwell, 113 Eng. C. L. 
 826. And see Lacy v. Getman., 119 !N". 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 perform- 
 ance arrives. Lorillard v. Clyde, 142 I^. Y. 456. So, if, after a con- 
 tract is made, the law interferes and makes subsequent performance 
 impossible, the party is held to be excused. Jones v. Judd, 4 N. Y. 
 412. 
 
 Failure of consideration — Where there is a total failure of con- 
 sideration upon one side, the other party will be discharged from 
 performing the contract upon his part ; and if the latter has ad- 
 vanced any money upon such contract, he may recover it as money 
 had and received by the other party. Briggs v. Vanderbilt, 19 
 Barb. 222. 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 consideration. 
 
28 THE LAW OF CONTKAOTS. 
 
 Hills V. Bannister, 8 Cow. 31; Spalding v. Vandercook, 2 Wend, 
 431. 
 
 As has been stated, mere inadequacy in value of the thing bough t 
 or paid for does not constitute what is termed in law want or failure 
 of consideration. These terms apply only to either total worthles&- 
 ness to all parties, or subsequent destruction, partial or complete. 
 Cowee V. Cornell, 75 JST. Y. 91, 98. See Earl v. Peck, 64 N. Y. 596 ; 
 ante, p. 12. 
 
 Stranger to consideration Usually the consideration moves from 
 
 the plaintiff to the defendant, unless it is in the case of assigned de- 
 mands. 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 ~N. Y. 268 ; Barker 
 V. Bradley, 42 N. Y. 316; Brown v. Curran, 24 Hun, 260; Arnold 
 V. Nichols, 64 IST. Y. IIY ; Barlow v. Myers, 64 N. Y. 41 ; Clark v. 
 Howard, 150 N. Y. 232; Williams v. Fisher, 8 Misc. 314; 59 St. 
 Eep. 282 ; 28 IST. Y. Supp. 739. Accordingly, it was held that, where 
 B., who was indebted to the plaintiff, sold property to the defendant, 
 who agreed to pay the price of it to the plaintiff, on account of his 
 idemand against B., the plaintiff might maintain an action against 
 the defendant on such a promise. Barker v. Bucklin, 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 IST. Y. 268. And 
 see Earle v. Crane, 6 Duer, 564; Hale v. Boardman, 27 Barb. 82; 
 Westfall V. Parsons, 16 Barb. 645 ; Seaman v. Hasbrouck, 35 Barb. 
 151 ; Bw'r V. Beers, 24 IST. Y. 178. In a case of mere agency for the 
 transmission of money, the party for whom the money was designed 
 cannot maintain an action against the agent for money had and re- 
 ceived to his use. To sustain an action, there must be an express 
 promise by the agent. Bigelow v. Davis, 16 Barb. 561. 
 
 Time of the consideration — Considerations are executed or ex- 
 ecutory. When executed, they are called past, or executed considera- 
 tions ; and when they are of that nature they are not sufficient to 
 sustain a promise unless such past consideration arose at the request 
 of the party who promises ; or unless the person to whom such prom- 
 is made has been compelled to pay some money or to do some act 
 in consequence of a liability incurred at the request of the promisor. 
 
 If a person renders gratuitous services, and a subsequent promise- 
 
THE LAW OF CONTKACTS. 29 
 
 i:? made to pay for them, this will be a past consideration. Ante, 18. 
 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. Ingraham v. Gilbert, 20 Barb. 151. 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 action 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. Konitzlcy v. Meyer, 49 IST. Y. 571. 
 
 A past consideration may be valid, because there was an implied 
 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 clothing 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 sustain 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 ex- 
 ception ; which is, the case of a negotiable promissory note, or bill 
 of exchange, which has passed into the hands of a hona fide holder 
 for value, before the note or bill became due ; in such cases the want 
 of consideration is no defense. Grimes v. Hillenbrand, 4 Hun, 354; 
 Palmer v. Minar, 8 Hun, 342. And see " Negotiable Instruments 
 Law," Laws of 1897, ch. 612, § 96 ; General Laws, ch. 50, § 96. 
 
 To the exception 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 certificates 
 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 incorporated 
 or organized under the laws of the United States or of any State. 
 See Laws of 1897, ch. 417, § 22 ; General Laws, ch. 47, § 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 
 contract, 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 uppn the same footing so far as impeaching the considera- 
 
30 THE LAW OF CONTRACTS. 
 
 tion is concerned. Code Civ. Pro., § 840 ; Bdird v. Bedrd, 81 Hun, 
 300; Home Ins. Co. v. Watson, 59 N. Y. 390; Anthony v. Harrison, 
 14 Hun, 198 ; 74 IST. Y. 613. 
 
 Gifts. — A gift may be defined as a voluntary transfer by one per- 
 son to another, vpithout 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 within 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 trans- 
 ferred as effectually as by a sale or assignment. 
 
 The general subject of gifts will be considered in another chapter. 
 
 § 5. Assent of the Parties. 
 
 To the existence of every express contract it is essential that there 
 be a mutual 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. Snedaker, 38 X. 
 Y. 248. It is essential to the assent that the offer of the one party 
 has been brought to the knowledge 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 presumed that a party who executed 
 it, whether able or unable to read, knew its contents. McDonald v. 
 Hancock Mut. Life Ins. Co., 17 App. Div. 16. 
 
 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. Hep. 940 ; 7 N. Y. Supp. 322. The acceptance 
 of an offer must be of the exact terms offered to luake a valid con- 
 tract. Marshall v. Eisen Vineyard Co., 7 Misc. 674; 58 St. Eep. 
 375 ; 28 K Y. Supp. 62 ; Jackson v. Rode, 7 Misc. 680 ; 58 St. Eep. 
 362 ; 28 IST. Y. Supp. 147. If one party does not accede to a promise 
 as made, the other party is not boimd 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. Pottlitzer Bros. 
 Fruit Co., 53 St. Eep. 645. Where the bought and sold notes de- 
 livered 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. 
 
THE LAW OF COXTRACTS. 31 
 
 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 modified 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. Holbrooh, 101 K Y. 45 ; Mahar v. Oompton, 18 App. 
 Div. 536 ; Barrow Steamship Go. v. Mexican Cent. Railway Co., 134 
 ]Sr. Y. 15; Sidney Glass WorJcs v. Barnes & Co., 86 Hun, 374; 
 Myers v. Trescott, 59 Hun, 395 ; Hart v. Thompson, 10 App. Div. 
 183. A modified or qualified acceptance will be treated as a rejec- 
 tion of the offer. lb. 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 will not be any contract. This 
 is to be understood, however, in relation to the fact that the parties 
 know what facts or stipulations they are agreeing to, not that they 
 fully comprehend the effect or legal liabilities of their engagement. 
 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 meet- 
 ing of minds and no contrapt. One who enters into an executory 
 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. Raffles v. Wichelhaus, 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 N. Y. 256; 
 
33 TPIE LAW OF CONTKACTS. 
 
 Smith V. Hughes, L. B., 6 Q. B. 597. E"or 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 rautually 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 mjay treat him as 
 a tenant for another year upon the terms of the prior lease, notwith- 
 standing the intention of the tenant to remain as a mere trespasser. 
 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 wrong- 
 doer is necessary further than that which the law conclusively im- 
 plies 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 pro- 
 posal for a contract, and he may offer to give the opposite party 
 a definite term within which to accept or reject such proposal. 
 
 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 proposing 
 will be bound by the terms of the contract, froan the time of such 
 acceptance. A very frequent method of making contracts is by let- 
 ters between the parties. 
 
 Where one party proposes by mail to make a contract with an 
 other residing at a distance, and the latter accepts the proposition 
 made and deposits a letter . containing his acceptance in the post- 
 ofiice, addressed and to be transmitted to the former, the contract is 
 complete. Yasswr v. Camp, 11 N. Y. 441 ; Trevor v. Wood, 36 1^. 
 Y. 307 ; Bentley v. Columbia Ins. Co., 17 N. Y. 421, 424 ; Watson 
 V. Bussell, 149 N. Y. 388 ; Zeltner v. Irnnn, 21 Misc. 13 ; 46 N. Y. 
 Supp. 852. 
 
 The party may make it a condition that the proposed contract shall 
 not be obligatory upon him until he receives a notice of itsi accept- 
 ance, 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 ac- 
 
THE LAW OF CONTRACTS. 33 
 
 ceptanee is deposited for transmission to him by mail, although he 
 never receives it. Accordingly, where merchants residing at Sack- 
 ett's Harbor forwarded by mail to brewers at Poughkeepsie a pro- 
 posed 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 accept- 
 ance directed and to be transmitted by mail to the former at Sack- 
 ett's Harbor, it was held that the deposit of the acceptance and coun- 
 terpart in the post office consummated the contract, and that it was 
 obligatory on the parties making the proposal, although they never 
 received the acceptance. Vassar v. Camp, 11 K". 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. Baiterman v. Morford, 76 
 K y. 622. 
 
 A letter referring to a previous verbal proposition, stating its terms 
 according to the understanding of the vn-iter, accepting them, and 
 requiring the party addressed to acknowledge his acceptance in writ- 
 ing, does not constitute a contract, but is a proposition for a contract. 
 Hough V. Brown, 19 N. Y. 111. 
 
 An offer by letter is a continuing proposition until it is received, 
 and for a reasonable time to answer it. But the proposal may be 
 withdrawn at any time before acceptance, and such withdrawal or 
 acceptance may be made by a written communication, though the 
 acceptance will be complete when such letter of acceptance is prop- 
 erly directed and mailed. ^ 
 
 § 6. Written Sealed Agreements. 
 
 The jurisdiction conferred by the code upon justices' courts in- 
 cludes actions upon every kind of contract, without regard to its 
 form, or whether it is sealed or unsealed. But the law miakes certain 
 distinctions between sealed and unsealed agreements which may 
 materially influence the mode of introducing proof and the procedure 
 upon the trial. 
 
 One of the most important distinctions between sealed agreements 
 
 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. See ante, p. 7. In an action 
 
 3 
 
34 THE LAW OF CONTKAGTS. 
 
 upon any contract, except one under seal, it is important that the 
 plaintiff should allege and prove that there was a legal and sufficient 
 consideration for the defendant's promise, unless the case is one of 
 negotiable paper, or an undertaking on appeal, or some similar in- 
 strument. In an action upon a sealed instrument, the production and 
 proof of the execution and delivery of it is sufficient for the plaintiff 
 in the first instance. But the seal is only presumptive evidence of 
 a sufficient consideration and the defendant is at liberty to allege 
 and prove that there was no consideration, which, if established, will 
 be a perfect defense to the action. This is the rule in actions based 
 upon exectitory contracts. Code of Civ. Pro., § 840 ; Wilson v. Bap- 
 tist Education Society of New York, 10 Barb. 308. And see ante, 
 p. 7. _ 
 
 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 specified 
 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 cases, 
 the covenants are all made by one party, as where one borrows 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 under- 
 stood, 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 determine whether such a breach has been committed ; 
 and this cannot be determined without 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 obliga- 
 tion to perform his covenants, 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; 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. 
 
THE LAW OF CONTRACTS. 35 
 
 In the case of mutual and dependent covenants, there is always 
 a condition precedent to be alleged andi 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 niutiial or dependent. Dey v. Dox, 
 9 Wend. 139, 133. And so there may be contracts in which there 
 is a condition precedent, to be alleged and proved by one party in 
 an action brought by himi, while no such allegation or proof is 
 necessary if an action is brought by the other party ; as, for instance, 
 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 he has 
 done anything, or in other words, that he has performed any con- 
 dition precedent. But, on the other hand, if A. should bring an 
 action to recover the price for building the house, it will be neces- 
 sary 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 prece- 
 dent, 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 performance 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 a tender of per- 
 formance, of the conditions precedent upon his part. Some confu- 
 sion 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 
 
36 THE LAW OF CONTKACTS. 
 
 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 performance 
 of the act, in such case the covenant of one party is independent, 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 performance or tender 
 by the other party. But the promise to pay is mutual and dependent, 
 and if an action is brought for the recovery of the payment, the 
 plaintiff must allege and prove the performance of the act to be 
 iione 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 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 any condition 
 precedent, and those cases are when there is a time specified in 
 the contract at which each party must perform his contract without 
 reference to any performance on the part of the other party; and 
 when each of the parties is to perform his covenants at a time 
 different 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 condi- 
 tions 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 evi- 
 dent 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 vnW 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 making it a condition that the other 
 party should do any act as a condition precedent to a performance 
 upon his own part. 
 
 A few of the numerous cases upon this subject will be cited by 
 way of illustration. 
 
THE LAW OF CONTEACTS. 37 
 
 A. and B. entered into a written agreement for the sale of lands 
 by A. to B. ; and B. covenanted to pay the piirchase-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 sufficient 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 independent, and he 
 was bound to perform it at the time and in the manner agreed with- 
 out reference to any act which A. was to do ; and whenever the time 
 passed for the performance of his covenants to pay, B. was liable to 
 
 A. for the purchase-price. But if an 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 dependent 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 independ- 
 ent, in the same contract, yet, if there is a condition precedent to 
 be performed by either of them, such performance must be alleged ; 
 while the party who is not bound to perform such condition need 
 not allege a performance, etc. By articles of agreement, A. cove- 
 nanted 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 exhibit a like cer- 
 tificate 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 conditions precedent on his part. 
 Williams v. Mealey, 3 Denio, 363. 
 
 In this case the covenants were to be performed at the same time, 
 and were, therefore, mutual and dependent, and neither party could 
 
38 THE LAW OF CONTEACTS. 
 
 maintain an action without alleging performance, or tender, on his 
 own part. The coiirt said, at page 367 : " If the vendor sues for the 
 consideration money, he must aver a tender of such deed, as hy 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 property, or choses in action, or 
 for the performance of labor or services. 
 
 In determining the question of the dependence or independence 
 of covenants in contracts for the sale of real estate, the intention 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 intention appears. 
 Glenn v. Rossler, 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. Whichever party 
 seeks to enforce the contract against the other, must show perform- 
 ance or a tender of perfonnance on his part. DunJiam v. Mann, 8 
 jSr. T. 508 ; S. C, 4 E. D. Smith, 500 ; Kelley v. Upton, 5 Duer, 
 336. 
 
 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 party, 
 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 with- 
 out payment, when there is no provision for a credit. The plaintiff, 
 in one agreement, contracted to deliver forthwith a quantity of 
 dressed pork to the defendant, for a certain price, and also 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 stipulation being 
 made as to the time of payment for either. The pork was delivered, 
 but the plaintiff violated his contract by not delivering the live hogs, 
 and it was held that this did not preclude him from recovering the 
 price of the dressed pork, subject to recoupment for the defendant's 
 damages from the breach of contract as to the live hogs. Tipton v. 
 Feitner, 20 E". Y. 423. In this case it will be noticed that the court 
 
THE LAW OF CONTKACTS. 39 
 
 held that each parcel was to be paid for on delivery ; and, therefore, 
 Avhen one parcel was delivered, 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, notwithstanding he may have delivered nearly the whole quan- 
 tity. Full performance is a condition precedent in such cases ; and 
 no recovery can be had until the delivery of the entire quantity. 
 Ghamplin v. Bowley, 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 perform on his 
 part, he can recover nothing for his labor and materials, notwith- 
 standing the owner has chosen to occupy and enjoy the erection. 
 Mere occupation of a btiilding in such a case, is not a waiver of strict 
 performance, but the question of waiver is one of intention, depend- 
 ing on all the circumstances, of which occiipancy may be one. Smith 
 V. Brady, 17 N. Y. 173; Cunningham v. Jones, 20 K Y. 486; 
 Spence v. Ham, 27 App. Div. 379 ; Vanderzee v. TIermmfi, 35 St. 
 Rep. 778 ; 13 K Y. Supp. 164. But where the builder has, in good 
 faith, intended to and has substantially complied with the contract, 
 although there may be slight defects caused by inadvertence or im- 
 intentional omissions, he may recover the contract-price, less the 
 damages on account of such defects. Phillip v. Oallant, 62 N. Y. 
 256 ; Johnson v. De Peyster, 50 K Y. 666 ; Olacius v. Black, 50 
 IS". Y. 145 ; Nolan v. Whitney, 88 N. Y. 648 ; Byan v. YoelU, 26 
 Misc. 840 ; 56 IST. Y. Supp. 1065 ; Crouch v. Gutmarm, 134 IST. Y. 
 45 ; Woodward v. Fuller, 80 IST. Y. 312 ; Spence v. Ham, 27 App. 
 Div. 379. 
 
 Where, by a contract under seal, O. agreed that he would keep 
 twenty cows during the season for the dairying business, and sell 
 the butter made from said dairy to M., to be delivered at a 
 time and place specified, at a price per pound named, and M. 
 agreed to pay for the butter to be delivered, and O., at the com- 
 mencement of the dairy season, put twenty cows on his farm, from 
 which butter was made until the end of the season, which was about 
 the middle of November, except that three of the cows, about the 
 first of September, and two of them, about the middle of October, 
 ceasing to yield more than about a quart of milk per day, and to be 
 
iO THE LAW OF COXTKACTS. 
 
 of much value for dairy purposes, were respectively sold at those 
 dates, it was held that O. could not sustain an action upon the con- 
 tract. By the contract, 0. was required to keep, during the season, 
 twenty milch cows, and when any of those provided ceased to yield 
 milk, it was his duty to procure others within a reasonable time. 
 Oakley v. Morton, 11 K Y. 25. 
 
 An agreement provided as follows : " I will deliver John Hig- 
 g'ins 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." l^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 contract 
 was entire, and that the whole 75,000 bricks must be delivered be- 
 fore an action could be maintained. Baker v. Higgins, 21 ~S. Y. 
 397. It was also held that parol evidence was not admissible to show 
 that the parties intended that payment should be made for each par- 
 cel 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. Clark, 21 K Y. 399 ; Pratt v. Gulick, 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 prece- 
 dent to a right of recovery. Turner v. Kouwenhoven, 100 E". 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 precisely that involved 
 in the case of the barley, last cited. Gardner v. Clark, 21 N. 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 
 
THE LAW or CONTRACTS. 41 
 
 to recoup out of his wages such damages as were the result of such 
 a breach of the contract. Tipton v. Feitner, 20 IST. Y. 423, 429. 
 
 There is a class of cases in which it has been held that, either 
 from the express terms of the contract, or from its legal construction, 
 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 performance. Wolfe, 
 executor, &c. v. Howes, 20 K Y. 197 ; 8. C, 24 Barb. 174 ; Fahy v. 
 North, 19 Barb. 341 ; Lacy v. Getman, 119 I^. Y. 109 ; Spalding v. 
 Rosa, 71 N. Y. 40. In case of sickness 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 applica- 
 cation. 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 therefor, terminates vrith the death of the 
 party, whether the services contracted for fall within the class of 
 skilled or unskilled labor. Lacy v. Getman, 119 E". Y. 109. So 
 where by the terms of a contract for work and labor the full price is 
 rot to be paid until the work is completed, and a complete perform- 
 ance becomes impossible by act of the law, the contractor may re- 
 cover 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, if 
 the agreement to modify is a valid one, it will be a sufficient excuse 
 
42 THE LAW OF CONTEACTS. 
 
 for the non-performance of the contract. But, in such cases, the ex- 
 cuse must be set up in the complaint, or evidence cannot be received 
 to prove it. Oakley v. Morton, 11 IST. Y. 26 ; Crandall v. Clark, 7 
 Barb. 169. 
 
 Though, vsrhen 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 contract. Wolfe 
 V. Howes, 20 IST. Y. 197. 
 
 § 7. Construction of Contracts. 
 
 The general object and principles of construction. — It is essential 
 to the attainment of justice that every contract should be correctly 
 construed and firmly enforced. The construction of a contract, vs^here 
 its terms are conceded, is always a question of lavp; and it is there- 
 fore of the first importance that the rules of construction 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 therefore 
 act safely in relation to settled rules, while all would be uncertainty 
 if the question of construction were one of fact instead of law. If 
 the contract is in writing, the construction is determined from the 
 face of the instrument. As a rule the interpretation of written in- 
 struments is with the court as a question of law. See Brady v. Cas- 
 sidy, 104 ]Sr. Y. 147; Dwight v. Germania Life Ins. Co., 103 K Y. 
 341. 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. Hoyt, 73 IT. Y. 505. 
 So if the agreement is by parol, and the parties disagree as to its 
 terms, it will be a question of fact what 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 some- 
 times the case, that evidence is admissible on both sides, for the pur- 
 pose 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. 
 
THE LAW OF CONTEACTS. 43 
 
 One 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 is 
 done, the law gives effect to the intention by compelling a performance 
 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 expressed 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 in- 
 struments is, that no violence shall be done to the rules of language, 
 or to the principles of the law. And the same ru.le obtains in rela- 
 tion to oral contracts, when their terms are clearly ascertained and 
 settled. If a contract provides for the sale of " horses," no court 
 would construe the contract in such a manner as to declare 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. Hill, 7 Cow. 434; 8. C, 5 
 Wend. 375. 
 
 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 engage- 
 ments, and the nature of the articles. Atwood v. Emery, 1 0. B. 
 K S. 110. 
 
 In giving construction to a contract, its subject-matter ought to 
 be fiilly and attentively considered. There are many words which 
 have one meaning in ordinary narration or composition, and quite an 
 other 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. 
 
44 THE LAW OF CONTEACTS. 
 
 So for the purpose of determining the true construction of a con- 
 tract, it is proper to take into account the situation of the parties, and 
 of the property which is the subject-matter of the contract, as well 
 as the object and intention of the parties in making the agreement, 
 for the intention is always carried into effect, so far as is consistent 
 with the principles of law, and the rules of language. Browne v. 
 Paterson, 36 App. Div. 167; Smith v. Kerr, 108 TT. Y. 31, 37 ; Blos- 
 som V. Griffin, 18 N. Y. 569 ; Griffiths v. Hardenhergh, 41 N. Y. 464 ; 
 Field V. Munson,, 47 ]^. Y. 221 ; Whites Bank v. Myles, 73 IST. Y. 
 335 ; N.Y. (& N. H. Sprinkler Co. v. Andrews, 38 App. Div. 56 ; 55 
 1ST. Y. Supp. 1020 ; Coleman v. Beach, 97 N. Y. 545, 553, 554. 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. Hihernia Ins. Co., 10 Hun, 26 ; Wal- 
 ker V. Tucker, 70 111. 527. ISTo court will defeat the express stipula- 
 tions of the parties by mere construction. And where a contract does 
 not express the true intention of the parties, some other remedy must 
 be sought than that of construction. Schoonmaker v. Hoyt, 148 
 :N'. Y. 425, 431 ; McCluskey v. Cromwell, 11 IST. Y. 593, 601. If the 
 words employed convey a definite meaning, and there is no contradic- 
 tion or ambiguity in the different parts of the same instrument, then 
 the apparent meaning of the instrument must be regarded as the one 
 intended. Tb. 
 
 There are many instances in which mistake or fraud in making a 
 contract will relieve a party from performing it, but the rules of 
 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 con- 
 tract 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; Hobhs v. McLean, 117 U. S. 567; Bank of Silver Creek v. 
 Talcott, 22 Barb. 550. So if there is doubt or uncertainty as to the 
 meaning of the language employed, the court for the purpose of con- 
 struction 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 IST. Y. 288 ; Jugla 
 V. Trouttet, 120 N. Y. 21, 28 ; Wright v. Reusens, 133 IST. Y. 298, 
 305 ; Pollock v. Pemn. Iron Works Co., 13 Misc. 194 ; 68 St. Rep. 
 215 ; 34 N. Y. Supp. 129 ; McKenzie v. Decker, 94 IST. Y. 650. 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 
 
THE LAW OF CONTRACTS. 45 
 
 presumption is in favor of the comprehensive over the restricted, 
 i.he 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 vievsr 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. Hoffmmi v. JJ^tna Ins. Co., 32 IST. Y. 405, 413 ; 
 Belden v. Burke, 12 Hun, 51, 83. No rule 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. Larmoidh, 56 Barb. 21 ; Battler 
 V. HallocJc, 160 N. Y. 291, 298. The reason is obvious. The same 
 parties make the entire contract, 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, 
 which, 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. Ifott v. RicJitmyer, 5T N. Y. 
 49, 65 ; Marsh v. Dodge, 66 E". Y. 533 ; Rogers v. Smith, 47 K Y. 
 324; Treadwell v. Archer, 76 K Y. 196; Paine v. Jones, 76 IST. Y. 
 274, 278 ; Meriden Britannia Co. v. Zingsen, 48 IST. Y. 247. This is 
 especially the rule where the two instruments refer to each other 
 (Green v. Schroeder, 13 Misc. 324), or where the contract is sup- 
 posed to have been executed in duplicate, but there is a variance in 
 the terms employed. Shelmire v. Williams & ClarTc Co., 68 Hun, 
 196; Morss v. Salishury, 48 IST. Y. 636, 644. But the rule does not 
 apply to instruments of different dates, executed at different times. 
 Mott V. Richtmyer, 57 N. Y. 49, 65. The language of the two con- 
 tracts may show, that though drawn and executed at the same time 
 and in relation to the same general subject, they are in fact distinct 
 and separate obligations, each to be construed according to its own 
 terms, without regard to the other. See Dechart v. Municipal Elec- 
 tric Light Co., 9 App. Div. 573. The recitals found in an instru- 
 ment, or in one or more of several instruments which relate to each 
 other, will be taken into account in determining the true construc- 
 tion. 
 
46 THE LAW OF CONTEACTS. 
 
 It is an important rule of construction, that all the different parts, 
 of a contract shall be so constructed as to give effect to each part of 
 it, and to all the language used, where that is possible. When it is 
 not possible to give effect to all parts of the contract, or to all the 
 words used, those which are least important are to be disregarded 
 rather than the more important ones. An other rule is, that the party 
 who gives a contract, or is to perform it, is the person against whom 
 the construction is to be made, if any preference is given, for the 
 assigned reason, that men who give the instrument and who choose 
 the words by which they agree, ought to be held to a strict interpreta- 
 tion of them, rather than the one who merely accepts them. Jachson 
 v. Builders'" Wood Working Co., 91 Hun, 435. 
 
 The reason, however, is not a strong one, nor is the rule itself 
 frequently applied, and it is seldom applied unless the other rules 
 fail to decide a question. 
 
 Contracts or legal instruments ought to be grammatically written, 
 and construed in accordance with grammatical rules. There is not, 
 however, any rule of law requiring an observance of this rule. But 
 on the contrary, all rules of grammar will be disregarded, if the 
 meaning and intention of the parties can be clearly ascertained. 
 Where an instrument is partly written and partly printed, the 
 written portion will prevail, if there is a discrepancy or contradic- 
 tion between the written and printed portions. Harper v. Albany 
 Mut. Ins. Co., 17 ]Sr. Y. 194; Hutt v. Zimmer, 78 Hun, 23; Hill v. 
 Miller, 76 N. Y. 32 ; Clarh v. Waodruff, 83 IST. Y. 518. But this 
 rule applies only where the written and printed clauses cannot be 
 reconciled. Effect must be given to all the clauses whether written 
 or printed. Miller v. Hannibal & St. Joseph R. R. Co., 90 IST. Y. 
 430. 
 
 Where the language of a contract is somewhat indefinite and am- 
 biguous the courts attach great importance to the practical interpre- 
 tation of it by the parties, upon the theory that there is no surer way 
 to find out what the parties meant by their contract than to see what 
 they have done under it. Woolsey v. Funke, 121 IST. Y. 87 ; Battler 
 V. HallocJc, 160 W. Y. 291 ; Nicoll v. Sands,-131 1^. Y. 19 ; Aronson 
 V. Wertheim, 21 Misc. 483 ; 47 IST. Y. Supp. 657 ; Tilden v. Tilden, 
 8 App. Div. 99; Matter of Eureka Mower Co., 86 Hun, 309; 
 McClanathan v. Friedel, 85 Hun, 175. And where in the contract 
 the parties have used the same word more than once, that word 
 should be given the same meaning wherever it occurs, if that is 
 practicable. Browne v. Paterson, 36 App. Div. 167. 
 
 The principles applicable when parol evidence is offered for the 
 
THE LAW OF CONTEACTS. 47 
 
 purpose of explaining, contradicting, varying or reforming written 
 contracts, will be more fully noticed under title " Evidence." 
 
 The law frequently supplies defects by implications, in the absence 
 of an express agreement between parties, but the rule is never carried 
 so far that it overturns express agreements by any implication what- 
 ever. If express stipulations are illegal, the law declares them void. 
 But if they are legal, the law yields to them, and does not sub- 
 stitute in their place what it would have supplied by implication 
 had the parties been silent upon thiat point. 
 
 The general ground of a legal implication is, that the parties to 
 the contract would have expressed that which the law implies, had 
 they thought of it, or had they not supposed it was unnecessary to 
 speak of it because the law provided for it. But when the parties 
 do themselves make express provision, the reason of the implication 
 fails. 
 
 Whatever may be fairly implied from an instrument in writing 
 is, in judgment of the law, contained in it. Dean v. Clark, 80 
 Hun, 80 ; Jones v. Turner, 80 Hun, 157. When language fs used 
 in a contract which does no more than express in terms the same 
 obligation which the law raises from the facts of the transaction 
 itself, the party using the language is no further bound than he 
 would have been without it. Ames v. Belden, 17 Barb. 513 ; Young 
 V. Leary, 135 N. Y. 569. Thus, if a person hires a steamboat, and 
 there is a condition in the charter party by which the hirer agrees 
 to return the boat at the expiration of the term in as good condition 
 as it then was, excepting ordinary use and wear, this language will 
 be held to have reference to the ordinary obligation of the bailee to 
 return the article hired, and will not render the bailee liable in case 
 of the destruction of the boat without his fault before the expiration 
 of the bailment. Ames v. Belden, 17 Barb. 513. And in all con- 
 tracts containing the ordinary language providing for redelivery, an 
 implication of continued existence of the thing to be returned is to 
 be made unless there is something else in the contract to negative 
 it. Young v. Leary, 135 N. Y. 569. 
 
 There are some legal presumptions of law, which may be con- 
 sidered as affecting the construction of contracts. Thus, it is a 
 presumption of law, that the parties to a simple contract intended 
 to bind not merely themselves, but their personal representatives. 
 Kemochan v. Murray, 111 N. Y. 306. This presmnption will not 
 arise where the parties have expressly stipulated that the contract 
 shall not survive the death of one or both of the parties, or where the 
 contract is of such a nature as to admit only of personal performance 
 such as contracts for the rendition of personal or professional 
 services. Ih. 
 
48 THE LAW OF CONTEACTS. 
 
 So, too, if several persons stipulate for the performance of any 
 act, without words of severalty, the presumption of law is, that they 
 intended to bind themselves jointly. But this presumption may be 
 rebutted, as for instance, where it appears that certain separate 
 things were to be done by separate parties, who could not join in 
 the work. 
 
 Custom sometimes has an influence upon contracts. But custom 
 and usage are not the same thing. Custom is the thing to be proved, 
 and usage is the evidence of custom. Whether a custom exists 
 is a question of fact. But in the proof of this fact, questions of law 
 of two kinds may arise. One, whether the evidence is admissible, 
 which is to be settled by the common principles of the law of evidence. 
 The other, whether the facts stated are legally sufHcient to prove a 
 custom. 
 
 ISTo custom can be proved or permitted to influence the construc- 
 tion of a contract, or vary the rights of parties, if the custom itself 
 be illegal. Nor can a custom be any more set up against the clear 
 intention of the parties than it could against their express agree- 
 ment. 
 
 It has long been the settled law of the State that usage in relation 
 to matters embraced in a contract, when it is reasonable, uniform, 
 well settled, not in opposition to fixed rules of law, not in contra- 
 diction of the express terms of the contract, and so far established 
 and known to the parties that it may be supposed the contract was 
 made in reference thereto, is deemed to form a part of it, and may 
 be shown in order to enable the court to declare what the contract 
 expressed to the parties. Walls v. Bailey, 49 N. Y. 464 ; Newhall 
 V. Appleton, 114 K T. 140 ; Smith v. Clews, 114 IST. Y. 190 ; Booth 
 Brothers v. Baird, 87 Hun, 452 ; Sims v. United States Trust Co., 
 35 Hun, 533. On the other hand, a party cannot be presumed to 
 have contracted with reference to a custom not uniform, continuous, 
 and general. Scott v. Broiun, 27 Misc. 203 ; 57 N. Y. Supp. 763. 
 And while usage is admissible to explain an ambiguity, it is never 
 received to contradict what is plain in a written contract. Callen- 
 der V. Dinsmore, 55 N. Y. 200; Bradley v. Wheeler, 44 N. Y, 495. 
 
BOARDS. 49 
 
 CHAPTER II. 
 
 BONDS. 
 
 § 1. Money Bonds. 
 
 Actions upon mere money bonds are not very frequent in a jus- 
 tice's court, becavise the amount recoverable is generally larger than 
 the jurisdiction of the court. Such bonds usually accompany a mort- 
 gage, and proceedings upon a mortgage of real estate must, of course, 
 be taken in a court of record, or by a statutory foreclosure by 
 advertisement. 
 
 There are some cases in -which bonds are given, in which an 
 action may be maintained in this court, and, therefore, the subject 
 will be briefly explained. An obligation or bond is a deed whereby 
 the obligor obliges himself, his heirs, executors and administrators, 
 to pay a certain sum of money to another at a day appointed. 
 
 If this is all of the bond, it is called a simple bond. But there 
 is generally a condition added, that if the obligor pays a smaller 
 sum, or does, or omits to do, some particular act, the obligation 
 shall be void. The word hond, from the force of the term, imports 
 a sealed instrument. 
 
 There must be parties to a bond; an obligor, or one who is to 
 make payment; and an obligee, or one to whom payment is to be 
 made. 
 
 jSTo particular form of words is essential to create an obligation, 
 but any words which declare the intention of the parties, and, de- 
 note that one is bound to the other, will be suflicient, provided the 
 following rules are observed : 1. It must be in writing, or printed, 
 upon paper or parchment. 2. It must be sealed, though it need 
 not recite that it is sealed. 3. It must be delivered, either to the 
 obligee or his agent or attorney. The date is not essential, and, 
 therefore, if there is no date, or a wrong or an impossible one, it 
 will do no harm; because such an instrument takes effect from its 
 delivery, not from the time of its date. 
 
 Where an obligor signs his name and affixes his seal in the space 
 between the penal part of the bond and the condition, the condition 
 is as much a part of the bond as though the signature and seal were 
 at the foot of it. Beed v. Drahe, 7 Wend. 345. Where, in the body 
 of an instrument, a principal and several sureties were named as 
 parties, but it was signed by the latter only, and there was nothing 
 
 4 
 
50 BONDS. 
 
 in the nature of the bond to prevent it from operating without the 
 signature of the principal, this was held to be "prima facie valid and 
 complete. Parker v. Bradley, 2 Hill, 584. 
 
 A surety who is not named in the body of the bond is liable, if 
 he executes the bond, in the same manner and to the same extent 
 as thoiTgh his name had been inserted. Standard Underground 
 Cable Co. v. Stone, 35 App. Div. 62 ; Decker v. Judson, 16 N. Y. 
 439 ; Perkins v. Ooodmam,, 21 Barb. 218. 
 
 If a bond is signed, and put into the hands of the obligee or a 
 third person on the condition that it shall become obligatory upon 
 the performance of some act by the obligee or any other person, 
 the paper signed does not become the bond of the party signing 
 until the condition precedent is performed. Lovett v. Adams, 3 
 Wend. 380. It was held by the court of appeals that where one 
 of several co-obligors of a bond is intrusted with its keeping and 
 instructed to deliver it to the obligee thereof only on condition that 
 D. shall sign the same as co-surety, such holder of the bond is the 
 special agent of his co-obligors, and the delivery of such bond to 
 the obligee thereof, without the signature of D., is a nullity, and 
 the co-obligors will not be bound thereby. People v. Bostwick, 32 
 IST. Y. 445. But the authority of this case has been questioned. 
 Russell V. Freer, 56 IN". Y. 6Y, 11; Bangs v. Ba7igs, 41 Hun, 41, 43. 
 And it has been held that where there is nothing upon the face of 
 a bond indicating that other sureties are expected to become parties 
 to the instrument, and no fact is brought to the knowledge of the 
 obligee, before he accepts the instrument, calculated to put him on 
 guard in respect to that point, and to induce him, in the exercise 
 of ordinary and reasonable caution and prudence, to make inquiry 
 before accepting the security, the fault cannot be said to rest to 
 any extent upon the obligee, and the failure to procure other sure- 
 ties is no defense. Bangs v. Bangs, 41 Hun, 41. 
 
 A bond may be executed in blank with a material part of it to 
 be filled up by an agent who has a parol authority for that pur- 
 pose; and if the agent fills up the blank in pursuance of his au- 
 thority, the bond is valid. Ex parte Kerwin, 8 Cow. 118. And 
 see Woolley v. Constant, 4 Johns. 54; Ex parte Decker, 6 Cow. 59. 
 An alteration in a sealed agreement, given to secure the payment 
 of a sum of money, does not avoid it, although the person making 
 the alterations acts under a parol authority only. Knapp v. Maltby, 
 13 Wend. 587. A bond taken in pursuance of a statute must con- 
 form strictly to its requirements. Barnard v. Viele, 21 Wend. 88. 
 But this decision must be read in connection with subsequent stat- 
 
BONDS. 51 
 
 utes affecting the form of the obligation. "A provision of law- 
 authorizing or requiring a bond to be given shall be deemed to have 
 been complied with by the execution of an undertaking to the same 
 effect." Laws of 1892, ch. 677, § 16; General Laws, ch. 1, § 16. 
 ''A bond or undertaking required by statute to be given by a person 
 to entitle him to a right or privilege, or to take a proceeding, is 
 sufficient if it conforms substantially to the form therefor pre- 
 scribed by the statute, and does not vary therefrom to the preju- 
 dice of +he rights of the party to whom, or for whose benefit, it is 
 given." Code of Civil Pro., § 729. 
 
 The condition of a bond executed by E. to the F. and M. Bank 
 was " that J. and K. shall and will, from time to time, as occasion 
 may require, ask for and receive from the said F. and M. Bank 
 certain siims of nioney at no time exceeding $5,000. ISTow if the 
 said J. and K. shall well and truly pay or cause to be paid to the 
 said F. and M. Bank all such sums as they the said J. and K. may, 
 as aforesaid, receive, then in that case this obligation to be void; 
 otherwise," etc. Held that it was the intention of the obligor to 
 restrict the whole amount of the indebtedness of J. and K. to the 
 bank, at any one time, to $5,000-; and that the bank having suf- 
 fered J. and K. to become indebted to a larger amount, E., the 
 guarantor, was not liable upon the bond. Farmers, etc., Barik v. 
 Evans, 4 Barb. 487. 
 
 § 2. Indemnity Bonds. 
 
 Bonds of indemnity are in common use in the ordinary business 
 transactions of every community, and formerly were a necessary part 
 of various proceedings in courts of justice, and particularly in 
 justices' courts. The changes in the practice made by the Code of 
 Civil Procedure have materially reduced the number of cases in 
 which such bonds are required of parties in the course of proceed- 
 ings in inferior courts; and in most cases, where security is still 
 required of parties, undertakings may be substituted in place of 
 bonds. There are cases in which these bonds may still be required 
 and taken by justices of the peace, and jurisdiction of actions on 
 such bonds has been expressly conferred upon the justice, by the 
 Code. Code of Civil Pro., § 2869. 
 
 The manner in which a cause of action upon such an obligation 
 shall be alleged in a complaint will be considered in connection with 
 the subject of pleadings in a subsequent volume. The provisions 
 of the Revised Statutes in respect thereto have been repealed. 
 
 The liability of parties on bonds of indemnity will depend upon 
 
52 BONDS. 
 
 the terms of the instrument creating the liability and defining the 
 thing against which indemnity is promised. It is settled law in 
 this State that upon an obligation to do a particular thing or to pay 
 a debt for which the covenantee is liable, or to indemnify against 
 liability, the right of action is complete upon the failure of the 
 party to do the particular thing he agTeed to do, or to pay the debt 
 or discharge the liability. The distinction is clearly defined be- 
 tween such an obligation and an indemnity against loss or damage 
 by reason of a liability. In the former case the covenantee is 'to 
 be saved from the thing specified, and in the latter from the conse- 
 quences of it. Kohler v. Matlage, 72 JST. Y. 259 ; Belloni v. Free- 
 horn, 63 N. Y. 383 ; Churchill v. Hunt, 3 Denio, 321 ; Thomas v. 
 Allen, 1 Hill, 145 ; Brown v. Mechanics & Traders' Banh, 43 App. 
 Div. 173 ; Maloney v. Nelson, 144 K Y. 182 ; Rector, etc. v. Hig- 
 gins, 48 N. Y. 532, 537; Merchants & Manufacturers' Banh v. 
 Cumings, 149 IST. Y. 360. If the bond is conditioned solely to in- 
 demnify the obligee and save him harmless from damages by rea- 
 son of liability, a recovery on the bond will necessarily be limited 
 to the actual damages sustained. Ih.; Gilbert v. Wiman, 1 IST. Y. 
 550 ; Belloni v. Freeborn, 63 jST. Y. 383. If the bond is conditioned 
 as well to pay the debt or sum specified as to indemnify and save 
 harmless the obligee against his liability to pay the same, the obligee 
 may recover the entire debt or demand upon default in pajTnent, 
 without having paid anything. Churchill v. Hunt, 3 Denio, 321 ; 
 RocTcfeller v. Donnelly, 8 Cow. 623 ; Belloni v. Freeborn,, 63 N. Y. 
 383; Wright v. Whiting, 40 Barb. 235; Jarvis.v. Bewail, 40 Barb. 
 449 ; Port v. JacTcson, 17 Johns. 239 ; Haivhins v. Mosher, 13 
 Hun, 563; Rector, etc. v. Higgins, 48 JST. Y. 532. The distinction 
 above pointed out between an afiirmative covenant for a specific 
 thing, and one of indemnity against damage by reason of the thing 
 specified, is very important. The object of both may be to save 
 the covenantee from damages, but their legal consequences to the 
 parties are essentially different. Gilbert v. Wiman, 1 IST. Y. 550. 
 
 It is said that there is a distinction between " indemnify " and 
 " save harmless," the latter phrase possessing the more extensive 
 meaning. Carr v. Roberts, 5 Barn. & Adol. 78. And it has also 
 been said that the use of the word " molestation " in the condition 
 of the bond cannot enlarge the condition beyond what would be im- 
 plied from the word " damage," and that the latter is much the 
 more comprehensive word of the two. Gilbert v. Wiman, 1 .N". Y. 
 550. 
 
 The Code of Civil Procedure provides that a bond in a penal 
 
BONDS. 5;3 
 
 sum, executed within or -without the State, and containing a con- 
 dition to the effect that it is to be void, upon the performance of 
 any act, has the same effect, for the purpose of maintaining an 
 action or special proceeding or two or more successive actions or 
 special proceedings thereupon, as if it contained a covenant to pay 
 the sum, or to perform the act specified in the condition thereof. 
 But the damages to be recovered for a breach, or successive breaches, 
 of the condition, cannot, in the aggregate, exceed the penal sum, 
 except where the condition is for the payment of money; in which 
 case they cannot exceed the penal sum with interest thereupon 
 from the time when the defendant made default in the perform- 
 ance of the condition. Code of Civil Pro., § 1915. See Steinbock 
 V. Evans, 122 N. Y. 551 ; Republic of Mexico v. OcTcershausen, 31 
 Hun, 533. 
 
 In actions for a breach of an indemnity bond, if the plaintiff 
 states no special damages in his complaint, he is confined in his 
 recovery to such damages only as arise from the breach, and then 
 only such as are proximate, and are the fair, legal and natural re- 
 sult of the act provided against. Hallock v. Belcher, 42 Barb. 199. 
 In an action in which an attachment was issued for the seizure of 
 a vessel, the bond for such attachment was conditioned for the pay- 
 ment of " all expenses, damages and charges which might be in- 
 curred by the owner or master of the schooner, or to which they 
 might be subjected for unloading said goods from said vessel, and 
 for all necessary detention of said vessel for that purpose," and it 
 was held that the obligee could not, in an action upon the bond, 
 recover compensation for such legal expenses as he had been sub- 
 jected to in defending an action commenced in Florida against the 
 schooner, by the consignee of the goods. lb. 
 
 A few of the earlier cases will be noticed for the purpose of 
 showing some of the rules applicable to these cases. When a col- 
 lector of an incorporated village executes a bond with sureties for 
 the faithful performance of his duties as collector, the village may 
 maintain an action in its corporate name for a breach of the con- 
 dition. Village of Warren v. Philips, 30 Barb. 646. As soon as 
 such a bond is accepted by the trustees of the village, by resolution, 
 it becomes binding. lb. The statute which requires an indorse- 
 ment or approval is merely directory. lb. And an action lies 
 without waiting for the issuing of a Avarrant by the county treas- 
 urer against the goods, etc., of the collector. lb. 
 
 ■Where a bond of indemnity is given to save harmless a city or 
 town from the support and maintenance of any persons who may 
 
54 BONDS. 
 
 become chargeable to such city or town, and such support is af- 
 forded by the overseers of the poor, in a proper case, an action 
 may be maintained on the bond, although a previous order for such 
 support has not been given by the proper authority. Candler v. 
 Mayor, etc., N. Y., 1 Wend. 493. 
 
 An action will not lie on a promise by one to indemnify and 
 save another harmless from all loss which he may sustain, in con- 
 sequence of making advances to a third person at the request of 
 the promisor, without showing an ineffectual attempt to coerce pay- 
 ment from the party to whom the advances were made, or that 
 endeavors to collect the money from him would have been useless 
 by reason of his insolvency or otherwise. Ward v. Fryer, 19 Wend. 
 494. A bond for the maintenance of a person for life, and the 
 payment of a certain sum annually, is valid, and each installinent 
 may be collected when due. Schoonmaker v. Ehnendorf, 10 Johns. 
 49 ; Code of Civil Pro., § 2862, subd. 4. 
 
 An action against one of the obligors of a bond, conditioned for 
 the faithful execution of his duties as an administrator, is an ac- 
 tion against the defendant personally, and is within the jurisdic- 
 tion of a justice's court. O'Neil v. Martin, 1 E. D. Smith, 404. 
 See Code of Civil Pro., § 2862. 
 
 In an action on a bond given by S., a non-resident plaintiff, and 
 his surety, conditioned that the former should pay, on demand, all 
 costs which might be awarded in the suit, it was held that the 
 surety was not liable until after the costs had been demanded of 
 S., and that the fact of such demand should be averred in the com- 
 plaint and proved at the trial. Nelson v. Bostwick, 5 Hill, 37. 
 
 Upon a mere indemnity bond to save another harmless from a 
 bond executed by him, the party indemnified, in order to recover, 
 must show damage, and that such damage was involuntarily sus- 
 tained. -Crippen v. Thompson, 6 Barb. 532. 
 
 Where a bond of indemnity is given to one who comjnits an act 
 which he knew to be illegal at the time of doing it, no action will 
 lie upon such indemnity bond; but, although the act done is in 
 reality a trespass, yet, if the person indemnified and performing 
 it, acts in good faith, and in the belief that his acts are lawful, a 
 promise of indemnity to him is valid and binding upon the in- 
 demnitor. Coventry v. Barton, 17 Johns. 142, 144; Stone v. 
 Hooker, 9 Cow. 154; Elliston v. Berryman, 15 Ad. & E. N. S. 
 206, and note at end of case; St. John v. St. John's Church, 15 
 Barb. 346 ; Allaire v. Ouland, 2 Johns. Gas. 52. An indemnity 
 bond given by a plaintiff in an attachment or execution on a claim 
 
BONDS. 56 
 
 of property by a tkird person is valid, although no jury had been 
 previously called to try the title to the property. Chamberlain v. 
 Beller, 18 IsT. Y. 115. And such a bond is to be so construed as 
 to secure a full indemnity to the officer. Ih. When a bond of 
 indemnity is given to an officer to induce him to sell property which 
 he has levied upon, but which is claimed by a third person, the 
 sureties in such bond will be liable as trespassers, if a sale takes 
 place, and the property really belonged to such third person. Her- 
 ring V. Hoppoch, 15 N. Y. 409; 8. C, 3 Duer, 20. An officer 
 who is indemnified for m,aking a sale "of property, ought, if he is 
 sued for selling it, to notify his indemnitor of the bringing of such 
 action; and, if such notice is given, the judgment rendered against 
 such officer will be conclusive upon the indemnitor, in an action 
 against him by such officer. Blasdale v. Bahcoch, 1 Johns. 517 ; 
 Kip V. Brigham, 6 Johns. 158 ; Trustees of Newhurgh v. Galatian, 
 4 Cow. 340; Beers v. Finney, 12 Wend. 309. The officer who is 
 sued in such a case is not bound to defend the action, but may 
 permit a judgment to be taken by default if he acts in good faith 
 and in the belief that there is no valid defense. Given v. Driggs, 
 1 Gaines, 450 ; Lee v. Clark, 1 Hill, 56 ; Holmes v. Weed, 19 Barb. 
 128. The law does not require an officer to give notice of the suit 
 to his indemnitor, in order to entitle him to recover against such 
 indemnitor. Aberdeen v. Blackmar, 6 Hill, 324; Duffield v. Scott, 
 3 Term, 374. But an omission to give such notice leaves the in- 
 demnitor free to controvert the right of recovery; while, if notice 
 had been given, such judgment would have been conclusive upon 
 him. Thomas v. Hubbell, 15 N. Y. 405. If one who holds an 
 indemnity against all actions and all damage by reason of a certain 
 claim is sued thereon, and he having a probably ample defense, 
 undertakes to defend it himself, without calling on the obligor in 
 the indemnity; and omits to set up such defense, and by other 
 neglect fails in such suit, he cannot afterwards enforce the in- 
 denmity. Bridgeport Fire & Marine Ins. Co. v. Wilson, 7 Bosw. 
 427. 
 
 As a matter of course the liability of the indemnitors will depend 
 upon the nature of the obligation they have entered into and what 
 they have contracted to indemnify against. When the covenant is 
 one of indemnity against the recovery of a judgment, the cause of 
 action on the covenant is complete the moment the judgment is re- 
 covered, and an action for damages may be immediately maintained 
 thereon, measured by the amount of the judgment, and this although 
 the judgment has not been paid by the covenantee, and although the 
 
56 BONDS. 
 
 covenantor was not a party, or had no notice of the former action. 
 The covenantor in an action on a covenant of general indemnity 
 against judgments, is concluded by the judgment recovered against 
 the covenantee, from questioning the existence or extent of the cov- 
 enantee's liability in the action in which it was rendered. The right 
 of the covenantee to maintain an action on the covenant cannot be 
 made to depend upon the result of a retrial of the issues, which, as 
 against the covenantee, had been conclusively determined in the for- 
 mer action, saving, however, the right to contest the proceeding on 
 the ground of fraudulent collusion for the purpose of charging the 
 stirety. Connor v. Beeves, 103 IST. Y. 527. It is an implied condi- 
 tion in a bond given to indemnify a sheriff against any judgment that 
 may be recovered against him by reason of a levy under execution, 
 that he will act in good faith, and not permit or suffer a collusive 
 judgment to be obtained against him, with a view to bring upon the 
 indemnitors a liability within the words of the bond, when there was 
 no rightful claim made against him, or any claim which would stand 
 against an honest defense. If when sued for the damages sustained 
 by reason of the levy, he collusively, intentionally, and in bad faith, 
 prevents the indemnitors from presenting a defense interposed in 
 good faith, and which is not frivolous, he cannot afterwards avail 
 himself of the judgment obtained in that action as a ground of re- 
 covery on the bond, or say that his indemnitors have not been injured, 
 or that the judgment determines their liability. Wheeler v. Sweet, 
 137 'N. Y. 435. The notice of suit which is given to an indemnitor 
 must be a reasonable one, so as to enable him to properly defend the 
 action. Riley v. Seymour, 1 Wend. 143. 
 
 § 3. Surety Bonds and TIndertakings Under the Code. 
 
 An action may be brought in justice's court upon a surety bond 
 taken by any justice of the peace, and the amount of recovery in such 
 action is not limited to two hundred dollars, but may be for any sum 
 recoverable on the bond. Code of Civil Pro., § 2862, subd. 5 ; 
 Humphrey v. Persons, 23 Barb. 313, 316, 320. 
 
 In an action upon an undertaking given upon appeal to the county 
 court from a judgment rendered by a justice of the peace, it is not 
 necessary that the instrument sued upon should express a considera- 
 tion or be under seal. It will be sufficient if it conforms to the re- 
 quirements of the statute and shows that fact on its face. Thompson 
 r. Blanchwrd, 3 IST. Y. 335. So no consideration is necessary to up- 
 hold an undertaking given upon a release of an attachment, or given 
 upon a claim for the delivery of personal property pursuant to the 
 
BONDS. 57 
 
 Code. Bildersee v. Aden, 62 Barb. 175 ; Harrison v. Utley, 6 Hun, 
 565. -^ 
 
 Where a party, on appealing to the county court from the judg- 
 ment of a justice of the peace, for the purpose of staying execution 
 of the judgment, executes an undertaking, with sureties, conditioned 
 that " if judgment shall be rendered " against the appellant, and 
 execution thereon be returned unsatisfied in whole or in part, the 
 obligors will pay the amount unsatisfied, and the county court re- 
 verses the judgment of the justice, and on an appeal to the supreme 
 court, that court, at general term reverses the judgment of the county 
 court and affirms that of the justice, with costs, the sureties are liable, 
 not merely for the amount of the judgment in the county 
 court, but for the amount recovered in the supreme court. Smith v. 
 Crouse, 24 Barb. 433. 
 
 On an appeal to a county court from a judgment of a justice of 
 the peace, the undertaking provided that if judgment should be 
 rendered against the appellant " on said appeal," and execution be re- 
 turned unsatisfied, he would pay the amount; it was held that the 
 surety was liable for all the costs incurred by an appeal to the su- 
 preme court, even though the judgment of the justice was reversed 
 by the county court, if that judgment was in turn reversed by the 
 supreme court ; and it was also held that the words " on said appeal " 
 did not limit the liability to such costs as might be incurred on an ap- 
 peal to the county court, but extended such liability to the result of 
 the final judgment on any ultimate appeal. Doolittle v. Dininny, 31 
 ]Sr. Y. 350. See also Robinson v. Plimpton, 25 IST. Y. 484. 
 
 So, where an appeal to the county court resulted in a judgment in 
 favor of the respondent, which was reversed by the general term of 
 the supreme court and the cause certified into the supreme court and 
 there tried, resulting in a judgment for the respondent, upon which 
 execution was issued and returned unsatisfied, it was held that the 
 surety on the undertaking, given on appeal to the county court, was 
 liable. Humerton v. Hay, 65 E". Y. 380. But the sureties in an 
 undertaking given on appeal to the late general term of the supreme 
 court, conditioned that the appellant will pay " all costs and dam- 
 ages which may be awarded against him on said appeal," were held 
 not liable for the costs of an appeal by their principal to the court of 
 appeals from a judgment of affirmance of the general term. Hinck- 
 ley V. Kreitz, 58 N. Y. 583. 
 
 The distinction in relation to the amount for which a justice has 
 jurisdiction is this : whenever the bond or undertaking is one which 
 the justice takes in the ordinary course of proceedings before him, 
 
58 BONDS. 
 
 and which is such as the law authorizes, the justice has jurisdiction 
 of any amount which is recoverable upon such surety bonds, etc. 
 
 But in all other cases, such as money bonds, and indemnity bonds, 
 not given in the course of proceedings before the justice as just ex- 
 plained, the justice has no jurisdiction if the amount of the recovery 
 exceeds two hundred dollars. 
 
 § 4. Bastardy Bonds. 
 
 A bastard is a child who is begotten and born out of lawful matri- 
 mony; or, while the husband of its mother was separated from her 
 for a whole year previous to its birth; or, during the separation of 
 its mother from her husband pursuant to a judgment of a competent 
 coiirt. Code of Criminal Procedure, § 838. 
 
 The father and mother of a bastard are liable for its support. In 
 case of their neglect or inability, it must be supported by the county, 
 city or town in which it is born, as provided by special statutes. lb., 
 §839. 
 
 It is this latter liability that has caused the legislature to enact 
 laws calculated to compel the father or mother of the bastard to pro- 
 vide for its support and prevent it from becoming a public charge. 
 Formerly these proceedings were directed toward requiring from the 
 putative father a bond indemnifying the county, city, or town against 
 any expense for the support of the bastard, or of its mother during 
 her confinement and recovery. ISTow an undertaking is substituted 
 for the former bond and the practice and procedure in proceedings 
 sgainst the father of the bastard are prescribed by the Code of Crim- 
 inal Procediire in sections 838 to 860, inclusive. The statutory pro- 
 visions in relation to the support of bastards are to be found in chap- 
 ter 27 of the general laws, known as the " Poor Law." See Laws of 
 1896, ch. 225, §§ 60-75. 
 
 The subject of bastardy bonds has ceased to have any present im- 
 portance in view of the change in the law further than this, that the 
 decisions under the former law may furnish some light upon the un- 
 dertakings required under the present statutes. As the pursuit of 
 this subject would require a comparison of statutes, past and present, 
 it would be of doubtful value in this connection. 
 
CHATTEL MOKTGAGES. 59 
 
 CHAPTER III. 
 
 CHATTEL nORTQAQES. 
 
 § 1. Who May Make a Mortgage. 
 
 Chattel mortgages are so freqviently and. so extensively used that 
 an explanation of some of the principal rules relating to them 
 cannot fail to be of use to justices of the peace and to attorneys 
 practicing in a justice's or other court. For although actions are 
 not very frequently brought upon the covenants contained in these 
 instruments, yet the title of personal property is daily transferred 
 by them, and from such transfers much litigation arises which usu- 
 ally is disposed of in justices' courts. 
 
 The importance of the principles of the law of chattel mortgages 
 is such that special works have been recently published treating of 
 this subject. See Smith on Chattel Mortgages and Conditional 
 Sales. 
 
 All persons who are legally competent to make other valid con- 
 tracts may make chattel mortgages. Infants may make chattel 
 mortgages, but, like all other contracts made by an infant, they 
 will be voidable at his election. Hangen v. Haclimeister, 49 Super. 
 Ct. 34; 16 Week. Dig. 552. Such a mortgage may be ratified when 
 the infant becomes of lawful age, and it will then be binding. 
 There are some contracts for necessaries which are said to be bind- 
 ing upon infants; but it must be remembered that the liability 
 which arises in such cases is by operation of law through an im- 
 plied contract ; because an infant may s-how what was the real value 
 of the articles which he has received, even if he has fixed a price 
 and has given his promissory note for the amount. Swasey v. Yan- 
 derheyden, 10 Johns. 33. Such a, note is not void, but voidable 
 at the election of the infant. Goodsell v. Myers, 3 Wend. 479; 
 Bigelow v. Orannis, 3 Hill, 120; Taft v. Sergeant, 18 Barb. 320; 
 Randall v. Sweet, 1 Denio, 460. But an infant cannot disaffirm 
 a contract which is executed on his part by the payment of money, 
 or the delivery of property, unless he restores to the other party what 
 has been received from him upon such contract. Bartholomew v. 
 Finnemore, 17 Barb. 428. And, therefore, if an infant should 
 mortgage property, and receive money upon a loan as the consid- 
 eration of the mortgage, he would be bound to return the money 
 before he could repudiate such mortgage. lb. And see Bice v. 
 
60 CHATTEL MOKTGAGES. 
 
 Butler^ 160 J^. Y. 5TS. But there is a limit to the application of 
 the rule requiring a restoration of money or property upon dis- 
 afBrmance of a contract by an infant. See Green v. Oreen, 69 
 IsT. Y. 553. This will be noticed in a subsequent chapter. 
 
 If several persons own property as tenants in common, or joint' 
 tenants, they may all join in mortgaging it. So partners may mort- 
 gage the personal property of the iirm. Monnot v. Ibert, 33 Barb. 
 24. A joint-stock corporation may mortgage its property. Nelson 
 V. Neil, 15 Hun, 383. And each person, whether tenant in com- 
 mon, joint tenant, or partner, may mortgage his individual interest, 
 though such mortgage is always subject to the equitable adjust- 
 ment of such rights as may exist between the mortgagor and his 
 co-tenants, or partners. Shuart v. Taylor, 7 How. Pr. 251. A 
 chattel mortgage may be executed by an agent who is authorized 
 for that purpose, and such authority may be either verbal or writ- 
 ten; or even by a subsequent ratification. Brownell v. Haubhms, 
 4 Barb. 491, 492. 
 
 § 2. What is a Chattel Mortgage. 
 
 A chattel mortgage may be written and imder seal; or it 
 may be written and not under seal. And it has been said 
 that a chattel mortgage may be made by an oral agreement 
 between the parties to it when no question arises as to the 
 rights of creditors, hona fide purchasers or mortgagees. In the 
 opinion in an early case it was said, " I am not aware that it is 
 necessary to the validity of a mortgage of goods and chattels that 
 it should be in writing, except so far as the act of 1813, in relation 
 to the filing of mortgages of goods and chattels, requires them to 
 be in writing. That act declares that a mortgage not filed shall 
 be void as against the creditors of the mortgagors and subsequent 
 purchasers and mortgagees in good faith." Paige, J., in the Bank 
 of Rochester v. Jones. 4 ]Sr. Y. 506. And in a recent case the cputt 
 says : " Since the Statute of Frauds a mortgage of chattels, being 
 a conditional sale, must be brought within its provisions, and stat- 
 utes requiring registration make chattel mortgages not filed void 
 as against creditors and purchasers. The almost uniform practice, 
 therefore, is that chattel mortgages are made in writing, but we 
 suppose a mortgage of chattels for less than fifty dollars would now 
 be valid as between the parties." TerwilUger v. Ontario, 0. & 8. 
 B. B. Co., 149 K Y. 86, 96. And see Bardwell v. Roberts, 66 
 Barb. 133. 
 
 The delivery of a chattel by a purchaser, to one who has become 
 
CHATTEL MOETGAGES. 61 
 
 his surety for the payment of the purchase-money, is a valid and 
 legal transaction, and the continuance of the possession and use 
 of the property by the purchaser does not invalidate the right of 
 the surety to control the property upon the happening of the event 
 which, by the agreem^ent of the parties, vyas to render his interest 
 absolute. Ferguson v. Union Furnace Co., 9 Wend. 345. And see 
 Hall V. Tuithj 8 Wend. 375, as to the rights of a surety in such a 
 case. 
 
 The facts in the case of Ferguson v. Union Furnace Co., 9 Wend. 
 345, were as follows: The Union Furnace Co. sued Ferguson in 
 trover for the conversion of a yoke of oxen, alleged to have been 
 purchased by them of Moses Clark and Michael Nichols. Clark 
 and JSTichols bought the oxen of Ferguson in March, 1829, and gave 
 him two notes for twenty-five cords of wood each, one payable on 
 the 15th July, and the other on the 15th September, 1829. One 
 Orimel Starhs signed the notes as surety for Clark and IN^ichols. 
 When the cattle were delivered to the purchasers (Clark and Nich- 
 ols), they delivered them to Starks in security for the responsibility 
 he had assumed, declaring the terms of the delivery to be, that if 
 they did not pay Ferguson when the notes became due, the cattle 
 should be Starks' s to enable him to pay Ferguson ; but that until 
 both notes became due, they would have the right to use the cattle. 
 On the 15th of September, when the second note became due, Fer- 
 gnison demanded payment of the notes, and they not being paid, 
 Starks delivered the cattle to Ferguson, who gave up to Starks the 
 notes which he had signed as surety; Starks tore off his name and 
 handed the notes to Clark, one of the original purchasers. Clark 
 and Nichols used the cattle until September. The jury found that 
 the Union Furnace Co. were bona fide purchasers ; but the supreme 
 court held that the title of the surety was superior to that of the 
 Union Furnace Co., and that Ferguson got a perfect title on the 
 resale to him in September, 1829, by Starks. 
 
 But this case is not law now in one respect. It was decided be- 
 fore the enactment of the statute which requires that mortgages 
 shall be filed, and that if they are not, they will be void as against 
 subsequent bona fide purchasers. And, as the law now stands, if 
 a similar case were to arise, in which the possession was retained 
 by the mortgagors, and the mortgage was not filed, the title of the 
 Union Furnace Co. would prevail. Thompson v. Blanchard, 4 N. 
 Y. 303. 
 
 But, as between the mortgagor and the mortgagee, the case is 
 as valid an authority as ever. 
 
62 CHATTEL MOETGAGES. 
 
 There is a class of cases in which a chattel mortgage without 
 a seal has been held to be sufficient. A., a manufacturer, pur- 
 chased wool to be paid for by his note indorsed by B. The note 
 was made accordingly and indorsed by B. for A.'s accommodation. 
 At the same time A. executed to B. a writing, reciting that B. 
 had indorsed the note to be used in purchasing the wool, and de- 
 claring that the wool and the cloth to be manufactured therefrom 
 shoiild belong to B. until the note was paid. It was held that the 
 ■writing was a mere mortgage, and not having been ■ filed as such 
 in the proper town clerk's office, that it was void as against a sub- 
 sequent purchaser in good faith from A. Thompson v. Blanchard, 
 4 K Y. 303, 304. 
 
 The mortgage in this case was in writing but not under seal, and 
 it was valid so far as that point was concerned ; and it was also valid 
 as between the parties. The facts in this case are very similar to 
 those in Ferguson v. Union Furnace Co., ante, p. 61, and this case il- 
 lustrates the remarks made as to the necessity of filing siich mortgage 
 as against hona fide purchasers, etc. The law does not require that a 
 chattel mortgage shall be in any particular form^. In Thompson v. 
 Blanchard, 4 IST. Y. 304, the instrument was in this form: " J. W. 
 Thompson indorsed for me a note of $685.14, at six months, indorsed 
 by T. B. Wheeler, which note I am to use to buy wool at Valentine 
 Hall's, New York, said wool so purchased is to be brought to Gran- 
 ville in my nam;e ; but said Thompson shall and may own the same, 
 and if it is manufactured at Granville the cloth is also to be his until 
 the said note is paid. And I will, if necessary, execute any further 
 paper to make him secure thereon, and he is not to be in any way 
 liable for manufacturing the same. May 24, 1846. K. C. Wheelee." 
 Another note was also made and indorsed by said Thompson for the 
 purchase of other wool ; and on the face of the bill of sale the follow- 
 ing was written : " J. W. Thompson having signed the note given 
 for this wool, has title to the same and the cloth until the said note is 
 paid for value received. March 2, 1847. E. C. Wheelee." The 
 court of appeals held these instruments to be chattel mortgages, and 
 that unless they were filed as such, or unless there was a change of 
 possession, that they would be void as against hona fide purchasers. 
 
 A bill of sale was executed for the purpose of securing the pay- 
 ment of the rent of a house, but there was a clause in it, which pro- 
 vided, that if the rent should be paid as it became due, then the bill 
 of sale was to be void, and this instrument was held to be a chattel 
 mortgage. Barrow v. Paxton, 5 Johns. 258 ; Marsh v. Lawrence, 4 
 Cow. 461. An absolute bill of sale will be rendered a chattel mort- 
 
CHATTEL iiOKTGAGES. 63 
 
 gage, if it is accompanied by a separate written defeasance, which, 
 provides that the bill of sale shall be void on the payment of the debt 
 for which the bill of sale was given. Broiun v. Bement, 8 Johns. 95. 
 And so a verbal defeasance of the same nature will render a bill of 
 sale a mortgage. Hall v. Tuttle, 8 Wend. 3Y5, 392 ; Champlin v. But- 
 ler^ 18 Johns. 169. And this may be shown by third persons who 
 are not parties to the instrument, in support of the claims of cred- 
 itors. Tyler v. Strang, 21 Barb. 198 ; Hodges v. Tenn. M. & F. Ins. 
 Co., 8 N. Y. 416 ; Despard v. Walbridge, 15 IST. Y. 3T4. 
 
 An instrument in the following form was held to be a chattel mort- 
 gage and not a pledge. It first recited an indebtedness on certain 
 notes, and then continued : " ISTow therefore, for securing the pay- 
 ment of the said notes, I hereby pledge and give a lien on the said en- 
 gine to the said Langdon, and in case the notes are not paid, hereby 
 consent that Langdon shall hold the same as security to save himself 
 harmless ; it being understood that I keep possession of the same un- 
 til the time arrives for the payment of the notes, and in case the 
 notes are not paid, Langdon may take the same." Langdon v. Buel, 9 
 Wend. 80. At page 83 the court said, " The instrument executed 
 by Chester Francis to the plaintiff on the 25th of July, 1828, was 
 clearly designed by the parties to be a mortgage upon the steam en- 
 gine which Langdon had previously sold him, and was intended to 
 secure the balance of the consideration money remaining unpaid for 
 it. It has all the essential attributes of a mortgage of personal prop- 
 erty, it recites the original purchase of the steam engine from the 
 plaintiff, the payment of part of the consideration money, the giving 
 of two notes for the balance, and then states that for securing the 
 payment of said notes, the said Francis hereby pledges and gives a 
 lien on said engine to said Langdon, and in case the notes are not 
 paid, the said Langdon shall hold the same as security and to save him 
 harmless ; the said Francis, however, to retain the possession until the 
 notes shall become due, and if they are not paid, then the said Lang- 
 don to take possession of said engine. It has all the attributes of a 
 mortgage, and none of those of a pledge as distinguished from a mort- 
 gage." 
 
 A chattel mortgage is a present transfer of the title to the prop- 
 erty mortgaged, subject to be defeated on payment of the sum or in- 
 strument it is given to secure. Parshall v. Eggert, 54 N. Y. 18, 23 ; 
 BlaJre v. Gorhett, 130 N. Y. 327, 331 ; Busman v. Whyard, 149 IST. Y. 
 127, 131. 
 
 "No special form of words is necessary to constitute a mortgage. 
 The statement that the creditor is to have a lien, and that on default 
 
64: CHATTEL MORTGAGES. 
 
 lie may take possession and sell, in the same manner as in cases of 
 chattel mortgage, discloses an intent to create a chattel mortgage, and 
 does create an instrument which the court will treat as a mortgage. 
 McCaffrey v. Woodin, 65 N. Y. 459. It is not necessary that a chat- 
 tel mortgage shall declare that the defeasible title of the mortgagee 
 will become absolute on failure of the mortgagor to pay the sum se- 
 cured when due. Bragelman v. Dane, 69 IST. Y. 69. Is is not neces- 
 sary that the entire contract of the parties should be embraced in one 
 instrument. A bill of sale absolute in form accompanied by an agree- 
 ment to redeliver on payment within a specified time of the amount 
 of the debt for which the bill is given, is, when construed with the 
 agreement, a chattel mortgage. Button v. Rathhone, Sard & Co., 35 
 St. Eep. 169 ; 126 IST. Y. 187. And a bill of sale, absolute on its face, 
 transferring property to be held as security for the payment of a debt, 
 is in effect a mortgage. Smith v. Beattie, 31 N. Y. 542; Woodworth 
 V. Hodgson, 56 Hun, 236. A bill of sale of personal property with 
 a provision that the property should remain in the possession of the 
 vendor for a specified time, and if during that period the indebted- 
 ness should be paid the conveyance should be null and void, contains 
 all the essentials of a chattel mortgage. Blake v. Corhett, 120 N. Y. 
 327. 
 
 It is sometimes difficult to distinguish between a mortgage of chat- 
 tels and a pledge. Ordinarily, when a chose in action or chattel is 
 deposited by the owner with a third person as security for the pay- 
 ment of a debt or the performance of some other obligation, the trans- 
 action is a pledge. But when the deposit is accompanied by a wfit- 
 ten instrument which declares the transaction to be a sale, coupled 
 with a defeasance, the transaction will be treated as a mortgage. 
 King v. Van Yeeck, 40 Hun, 68 ; 109 W. Y. 363. " A pledge differs 
 from a chattel mortgage in three essential characteristics: 1. It may 
 be constituted without any contract in writing, merely by delivery 
 of the thing pledged. 2. It is constituted by a delivery of the thing 
 pledged, and is continued only so long as the possession remains with 
 the creditor. 3. It does not generally pass the title to the thing 
 pledged, but gives only a lien to the creditor while the debtor re- 
 tains the general property." Jones on Pledges, § 4. See People v. 
 Remington & Sons, 59 Hun, 282 ; 126 K Y. 654. 
 
 It has been said that the distinction between a pledge of personal 
 chattels and a mortgage is, that a delivery of the possession of the 
 property is indispensable to the validity of a pledge, while it is not 
 absolutely necessary that such possession should accompany a chattel 
 mortgage. Barrow v. Paxton, 5 Johns. 258, 261 ; Brown v. Bement, 
 
CHATTEL MOETGAGES. 65 
 
 8 Johns. 96. See also Siedenhach v. Riley, 111 N. Y. 560; Farmers 
 & Merchants' Nat. Bank v. Lang, 87 N. Y. 209. The cases first 
 cited related to personal property which was capable of manual de- 
 livery. But there are rights which cannot be delivered in that man- 
 ner, such as debts, money in stocks, etc. And although it was once 
 doubted whether such choses in action could be pledged, inasmuch as 
 there could not be an actual manual delivery of them, yet it is now 
 held that a written pledge of the demand is valid. 
 
 Possession of the property is essential to the existance of a pledge, 
 but the possession may be according to the nature of the subject. 
 Wilson V. Little, 2 N. Y. 443. Where the property is not capable 
 of manual delivery and possession, as in the case of shares in an in- 
 corporated company, a pledge may be created by a written transfer 
 thereof ; and the transaction may be a pledge instead of a mortgage, 
 although the legal title passes to the creditor. lb. The transfer of 
 the legal title is not in any case inconsistent with a pledge, if the 
 debtor has a right to the restoration of the property, on payment of 
 the debt at any time, although after it falls due. lb. The plaintiff 
 transferred to the defendants, on the books of the corporation, fifty 
 shares of stock in the New York and Erie Railroad Company. The 
 transfer was absolute in its terms. At the same time the plaintiff 
 gave to the defendant his note for $2,000 borrowed money, and in 
 the note it was stated that the stock was deposited as collateral se- 
 curity. This was held to be a pledge, and not a mortgage of the stock. 
 lb. A creditor having personal property pledged to him by his debtor 
 as security for the debt, cannot sell the same until he has first de- 
 manded payment of the debtor. lb. And the rule is the same, al- 
 though the debt is payable presently and without demand, and al- 
 though by the terms of the pledge, the creditor may sell at public or 
 private sale, without giving notice to the debtor. lb. Where the 
 pledgee has wrongfully sold the pledge, so that he cannot restore it, 
 the pledgor is not bound to tender the debt in order to entitle hun- 
 self to maintain an action for the wrongful sale. lb. 
 
 Where property is delivered by the owner to a creditor in security 
 for a debt, and an instrument is executed by the debtor, by which 
 he agrees that if he does not return by a certain time to pay the debt, 
 the creditor may dispose of the property to pay the demand, this is a 
 pledge of the property, and not a mortgage. Brownell v. Hawldns, 
 4 Barb. 491. The creditor, in such a case, has only a special prop- 
 erty in the goods, as a pledgee; and in an action of trover for the 
 same, against a third person, connecting himself with the general 
 owner, the pledgor, and deriving his title from him, the pledgee is 
 5 
 
66 CHATTEL MORTGAGES. 
 
 only entitled to recover the amount of the debt, to secure the pay- 
 ment of which the goods were pledged. lb. A pawnee of goods does 
 not acquire an absolute title, simply by a failure of the pawnor to 
 pay the debt or redeem the property at the time specified. His in- 
 terest is a special property, to retain the goods for his security. There 
 is no forfeiture until the pawnor's rights are foreclosed. Ih. 
 
 The instrument mentioned in the last case was, in its material 
 parts, as follows : " This is to certify that I hereby agree to deliver 
 to Mrs. Elizabeth Hawkins (certain articles, describing them), in 
 security for a certain account against said subscriber by the said 
 E. Hawkins, of the place aforesaid. 
 
 " The condition of the above is to be understood as follows, viz. : 
 that if the subscriber does not return to pay said demand by the first 
 day of May next, that the said Mrs. E. Hawkins shall dispose of s^id 
 marble to the paying of said account:' ,.., 
 
 Fredonia, Feb. 13, 1844. ^ V W. V^ir Vechtejn-." 
 
 The court said : " The instrumesit executed by Van Vechten to 
 Mrs. Hawkins was not a mortgage. It, together with the delivery of 
 the marble, constituted a pledge only. There are no words of sale in 
 the instrument, nor any words from which it can be inferred that he 
 intended to transfer to her the title to the property, either absolutely 
 or conditionally. It contained, when accompanied by the delivery, 
 all the requisites of a pledge. The property was delivered in security 
 for a certain account, and if Van Vechten did not return by a cer- 
 tain time to pay the demand, then Mrs. Hawkins was to dispose of 
 the marble to pay the account. Here was a power given to the pledgee 
 to make the amount of the account by a sale of the property, publicly 
 or privately, fairly conducted, not by an absolute appropriation of 
 the property to herself. A mortgage is a sale of goods, with a con- 
 dition that if the mortgagor performs some act it shall be void. If the 
 condition is not performed, the goods become the absolute property of 
 the mortgagee." 
 
 The court distinguish this case from that of Langdon v. Busl, 9 
 Wend. 80; and in speaking of that case, said: "The word pledge 
 was not used in a technical sense ; and, on the failure to pay the notes, 
 Langdon, the mortgagee, was at liberty to take the property ab- 
 solutely ; not by way of sectirity as a pledge." See also MilUman v. 
 Neher, 20 Barb. 37, 40. There is a class of cases in which property 
 is sold conditionally, and the title does not pass unless the property 
 is paid for. 
 
 A., who was the owner of three shingle machines and belting, 
 ^vhich he had recently purchased in the State of Maine, made an agree- 
 
CHATTEL MOKTGAGES. 67 
 
 ment in writing, with B. and C, as follows : " B. and C. agree to 
 pay A., for the above machines and belting, time, services and ex- 
 penses, the sum of $810.75, within five months, and A. agrees to take 
 the above amount, as above stated, but lends the said B. and C. the 
 property above stated ; and, if they fail to pay, he is at liberty to take 
 the property away, to enable him to realize the amount and interest. 
 Plattsburgh, March 29, 1852. " B. and C. 
 
 " A." 
 
 It was held that this transaction was to be regarded as a condi- 
 tional sale, rather than an absolute sale with a reconveyance by way 
 of mortgage; and it was also held that the title of A. was superior 
 to that of creditors of B. and C, who had sold it on an execution; 
 and that the paper need not be filed as a chattel mortgage. Grant v. 
 Skinner, 21 Barb. 581. And see Brewster v. Baker, 20 Barb. 364. 
 
 The requirements of the present statutes of this State in respect 
 to conditional sales will be noticed hereafter. 
 
 § 3. What May be Mortg^aged. 
 
 It has been already seen that choses in action may be pledged 
 by an instrument in writing. Ante, p. 65. If they may be pledged, 
 there does not seem to be any reason why they may not be mort- 
 gaged, if a proper instrument is executed for that purpose; which 
 would be a chattel mortgage, properly describing the debts, shares 
 of stock, etc. Every kind of personal property may be mortgaged, 
 whether it is exempt from levy and sale on an execution or. not, 
 since a person may waive any advantage or benefit which the law 
 gives him. But there may also be a valid cha$]fcg3r-ifi.'ortgage of prop- 
 erty which is sometimes treated as real estate. 
 
 Prima facie, a building erected by one person on another's-; land 
 is to be treated as a fixture, and a part of the realty. But if it 
 be so erected, under an understanding or agreement that it may be 
 removed at any time, it is then no part of the realty, but personal 
 property, for the conversion of which trover will lie; especially 
 when it is only slightly fixed to the freehold. One deriving title 
 from a person who had previously mortgaged a building so erected 
 as personal property, is not in a situation to insist, as against the 
 mortgagee, that it is a part of the freehold; nor is he at liberty to 
 dispute the title of the mortgagor. Smith v. Benson, 1 Hill, 176. 
 
 In the case just cited, the building never became a part of the 
 real estate. The land was owned by one person and the building 
 by another. And see Ombony v. Jones, 19 N. Y. 234, 240 ; 8. C, 
 21 Barb. 520. 
 
68 CHATTEL MOETGAGES. 
 
 Rails built into a fence by a tenant, under an agreement that 
 he might remove them from the land, are, as between such tenant 
 and the owner of the soil, personal property. Mott v. Palmer, 1 
 E". Y. 564, 571. 
 
 Whenever one person owns real estate upon which there are fix- 
 tures which belong to another, who has a right to the possession 
 of them, such owner may mortgage them by a chattel mortgage. 
 Oodard v. Gould, 14 Barb. 662; Smith v. Benson, 1 Hill, 176; 
 Ombony v. Jones, 19 N. Y. 234; S. C, 21 Barb. 520. So, where 
 grass which is growing on the land of one person belongs to another, 
 such owner of the grass may mortgage it as a chattel; as where 
 A. occupied land under H., and by the terms of their agree- 
 ment the grass belonged to A., it was held that A. might transfer 
 it by a personal mortgage. Jenchs v. Smith, 1 N. Y. 90; S'. C, 
 1 Denio, 580. See also Bank of Lansingburgh v. Crary, 1 Barb. 
 542, and Shuart v. Taylor, 7 How. Pr. 251. 
 
 A tenant of a farm who has set out wine plants thereon during 
 his tenancy may mortgage them by a chattel mortgage, and the 
 mortgagee will take title in preference to the vendee of the land- 
 lord. Wintermuie v. Light, 46 Barb. 278. Such plants are usu- 
 ally cultivated like raspberries, grapes or hops, though they are 
 generally transplanted every year or two, and they are personal 
 property as between landlord and tenant, and miay be removed, 
 sold oi- mortgaged by the tenant. Ih. 
 
 A legal title to property not in existence, actually or potentially,, 
 cannot be transferred by mortgage. Farmers' Loan & Trust Go. 
 v. Long Branch Imp. Co., 27 Hun, 89 ; Rochester Distilling Co. v.. 
 Rasey, 142 K Y. 570 ; Deeley v. Dwight, 132 N". Y. 59 ; Fleetham 
 V. Reddick, 82 Hun, 300. 
 
 Ordinarily, a chattel mortgage cannot operate upon crops which 
 are not in existence, or are not growing. Milliman v. Neher, 20 
 Barb. 37. But it was held in one case at special term that if a 
 person who has, by an agreement with the owner of land, an in- 
 terest in a fallow for the purpose of raising a crop of wheat, each 
 to have one-half, executes a chattel mortgage upon the fallow, the 
 mortgage will bind the interest of the mortgagor in the fallow, 
 and in the wheat afterwards put in under the agreement. Shuart 
 v. Taylor, 7 How. Pr. 251. This case is noticed and apparently 
 approved in Milliman v. Neher, 20 Barb. 39. 
 
 But although, ordinarily, crops not in existence and not then 
 growing are not the subject of a mortgage, yet crops, trees or grass 
 growing upon the ground, or wool upon a sheep's • back, may be 
 
CHATTEL MOKTGAGES. 69 
 
 mortgaged. In that case there is a mortgage of a thing in actual 
 existence, in process of growth, though still imperfect and imma- 
 ture. Conderman v. Smith, 41 Barb. 404; Van Hoozer v. Cory, 
 34 Barb. 9 ; Nesiell v. Hewitt, 19 Abb. JST. C. 282. That which 
 has a potential or possible existence, like the spontaneous product 
 of the earth, or the increase of that which is in existence, may 
 properly be the subject of sale or of mortgage. The right to it, 
 when it comes into existence, is regarded as a present vested right. 
 That which is, however, the annual product of labor and of the 
 cultivation of the earth cannot be said to have either an actual or 
 a potential existence before planting. And, therefore, a chattel 
 mortgage on crops not then planted cannot, as a matter of law, 
 be given future effect as a lien upon the crop when raised where 
 the rights of creditors of the mortgagor have intervened. Rochester 
 Distilling Co. v. Rasey, 142 IST. Y. SiYO; Fleetham v. Reddick, 82 
 Hun, 390. Such a mortgage is also invalid as against a purchaser 
 of the crop. Cressey v. Sabre, 17 Hun, 120. 
 
 But a mortgage on property which, at the time of the execution 
 of the instrument, had no existence, actual or potential, may, as 
 between the parties, be given effect in equity when the property 
 comes into existence and into the ownership of the party executing 
 the instrument where no rights of third persons have intervened. 
 Deeley v. Dwight, 132 N. Y. 59 ; Rochester Distilling Co. v. Rasey, 
 142 N. Y. 570. Such a mortgage is sometimes said to be invalid 
 in law and yet operative in equity. Invalidity at law imports 
 nothing more than that a mortgage of property thereafter to be 
 acquired is ineffectual as a grant to pass the legal title. A court 
 of equity, in giving effect to such a provision, does not put itself 
 in conflict with that principle. It does not hold that a conveyance 
 of that which does not exist operates as a present transfer in equity 
 any more than it does in law. But it construes the instrument 
 as operating, by way of present contract, to give a lien which, as 
 between the parties, takes effect and attaches to the subject of it 
 as soon as it comes into the ownership of the party. Kribhs v. 
 Alford, 120 K Y. 53 9, 524; McCaffrey v. Woodin, 65 K Y. 459; 
 Wisner v. Ocumpaugh, 71 IST. Y. 113 ; Coats v. Donnell, 94 IST. Y. 
 168, 177; Perkins v. Batterson, 66 Hun, 583. 
 
 The owner of land may lawfully contract for its cultivation, and 
 may provide in whom the ovmership of the product shall vest; and 
 where A., the owner of land, permitted B. to raise a crop of flax 
 thereon, under a written contract, upon the terms that the flax 
 raised should belong to A. until the agreed rent of the land should 
 
70 CHATTEL MOETGAGES. 
 
 be paid, it was held that, although there could not be an executed 
 sale of a crop not yet raised and in existence, there might, not- 
 Avithstanding, be such an agreement as that made, and that it would 
 attach upon the growing crop as soon as it became property in any 
 one, and that A., the owner, could hold sucU crop in preference to 
 the execution creditors of B. 'Andrew v. Newcomh, 32 ~S. Y. 417. 
 
 A dairy farm, with the cows and all the fixtures and implements 
 thereon, was leased by the plaintiff to one S. at an annual specified 
 rent, payable at a fixed time. The lease contained a clause which 
 provided that all the products of the farm and cows should be and 
 remain the property of the plaintiff until the rent was paid, and 
 this was held to vest in the plaintiff the title in the crops and the 
 products of the cows as the articles came into existence, and that 
 he could maintain trespass against an officer who took and sold the 
 crops on an execution against the tenant without first paying the 
 rent due. Yan Hoozer v. Co7-y, 34 Barb. 9. 
 
 A chattel mortgage given by a tenant to his landlord to secure 
 the latter for the rent of the farm is valid, although the articles 
 mortgaged are the growing crops, and the butter and cheese to be 
 made from the cows then on the farm. Conderman v. Smith, 41 
 Barb. 404. At law a sale or a mortgage of property to be acquired 
 in future, where the vendor or mortgagor had neither the thing 
 itself nor the agent of its production at the time of making the 
 contract, does not transfer any title or interest in the thing at- 
 tempted to be sold or mortgaged. But if the future acquired prop- 
 erty is to be the product of the present property of the vendor or 
 mortgagor, as the wool growing on a flock of sheep, or the produce 
 of a dairy or a farm, or anything of that character, then the sale 
 or mortgage will take effect upon the property as soon as it comes 
 into existence, and the contract will be perfectly binding at law. 
 11. 
 
 But where the lease does not reserve the title to the products of 
 the farm or of some living animal, the freight of a vessel, or the like, 
 but merely provides that the landlord shall have, as a security for his 
 rent, a lien upon all the goods, wares, chattels, implements, fixtures, 
 tools and other personal property which are or may be put upon the 
 demised premises, with the right to take and sell the property in the 
 same manner as upon a chattel mortgage, this will not be sufficient 
 to create a lien upon the hay cut upon the farm as against a creditor 
 who has a judgment and execution against the tenant, and who sells 
 the tenant's interest in the hay by virtue thereof. Bushirlc v. Cleve- 
 land. 41 Barb. 610. If such a clause in the lease could be construed 
 
CHATTEL MORTGAGES. 71 
 
 to render the instrument a chattel mortgage, it would be void for 
 uncertainty as to the property, because it does not identify the prop- 
 erty intended to be mortgaged ; and again, it would be void as against 
 creditors if not filed in the proper town clerk's office. Ih. 
 
 So where a lease contains a clause which provides that the land- 
 lord " shall have a lien upon the crops as a security for his rent, and 
 that the tenant shall market them," this language does not import 
 a sale or a mortgage, because a mortgage is a conditional sale, and no 
 words of sale are contained in such a clause, and a sale of the crops 
 by the tenant to a person who had knowledge of all the facts will 
 be valid. Milliman v. Neher, 20 Barb. 37. The power of sals con- 
 ferred upon the tenant by the terms of the lease, would be sufficient 
 to protect the rights of one who purchased the crops of the tenant. 
 Ih. So far as this case declares that the future product of lands can- 
 not be mortgaged, it is overruled in the cases cited. 
 
 A mortgage which professes to sell and assign to the mortgagee 
 not only the scythes, iron, steel and coal then owned by the mort- 
 gagors, but also " all scythes, iron, steel and coal which may be 
 purchased in lieu of the aforesaid property," is, as respects the prop- 
 erty to be subsequently acquired, void for uncertainty. Otis v. Sill, 
 8 Barb. 102. At law a grant or mortgage of property not then in 
 existence, or not belonging to the mortgagors, but to be acquired in 
 future, is void. Ih. 
 
 If such a grant or mortgage is valid in equity, it is only valid as a 
 contract to assign when the property shall be acquired ; and if it is 
 enforced in equity, it can only be enforced as a right under the con- 
 tract and not as a trust attached to the property. Ih. 
 
 Where personal property is sold, and a' chattel mortgage is given 
 upon the same property to secure the purchase money, it is compe- 
 tent for the mortgagor to agree that the lien of the mlortgage shall 
 extend to the articles which are manufactured from the property sold ; 
 and, rn such a case, the lien will attach upon the new articles as fast 
 as they come into existence. Dunning v. Stearns, 9 Barb. 630. 
 
 A chattel mortgage may be valid as to some of the articles men- 
 tioned in it, although it is inoperative as to others ; as, for instance, 
 when a merchant has articles of a specified description in his store, 
 and he includes such articles in a chattel mortgage, and also agrees 
 in the mortgage that it shall be a lien upon and shall include such 
 other articles of a similar kind as the mortgagor shall afterwards pur- 
 chase and put into such store. The mortgage will be valid as to the 
 articles which are in the store at the time the mortgage is executed, 
 but void as to the others which the mortgagor does not own at that 
 
72 CHATTEL MOETGAGES. 
 
 time. Gardner v. McEwen, 19 N. Y. 123. And see Yon Heusen v. 
 Badcliff, 17 N. Y. 580; Otis v. Sill, 8 Barb. 102, 103. The same 
 principle is applicable to cases in which the mortgagor does not own 
 all the property mortgaged, although it may happen to be in his pos- 
 session, at the time of executing the mortgage. The rolling stock 
 of a railroad company, such as locomotive engines, tenders, passen- 
 ger, freight or other cars, shop tools and machinery, is personal prop- 
 erty, and as against judgment creditors, or purchasers in good faith, 
 a claim of a lien upon them by way of' a mortgage of real estate, must 
 be recorded as a chattel mortgage, or no lien will be secured. Stevens 
 V. Buffalo and New York City B. B. Co., 31 Barb. 590; Beardsley 
 V. Ontario Bank, id. 619. 
 
 § 4. Rights of the Mortgagor. 
 
 A chattel mortgage is a sale of property, upon a condition that 
 the payment of a specified sum of money shall render the sale void. 
 The legal title to the property is vested in the mortgagee. One of 
 the most frequent questions which arises as to the validity of these 
 mortgages is, that in relation to the possession of the mortgaged 
 property. The money secured by such mortgages is frequently 
 payable at a future time; and the mortgaged property must be in 
 the possession of some person until the day of payment. The ques- 
 tion as to a change of possession under ordinary chattel mortgages 
 will be discussed hereafter. It is proper to remark here, however, 
 that if the mortgage is properly filed, and there is a satisfactory rea- 
 son given for leaving the property in the possession of the mort- 
 gagor, the transaction wilLbe valid. 
 
 As between mortgagor and mortgagee, when the rights of cred- 
 itors, or hona fide purchasers, or mortgagees, do not intervene, the 
 mortgage may contain a clause which authorizes the mortgagor 
 to retain the possession of the goods until a forfeiture of the mort- 
 gage by non-payment of the money as agreed. The old contro- 
 versy, whether a mortgage was absolutely or only primarily void 
 by reason of the possession of the mortgaged property being left 
 with the mortgagors, has long been settled, and it is now held, 
 that a mortgage of chattels may contain a clause which authorizes 
 the mortgagor to retain the possession of the mortgaged goods until 
 the mortgage becomes dtie; and that such clause is valid as against 
 creditors, hona fide purchasers, or mortgagees. Fairbanks v. Bloom- 
 feld, 5 Duer, 434; Van Hassell v. Borden, 1 Hilt. 128; Hull v. 
 Camley, 11 IST. Y. 501 ; Bull v. Camley, 17 IST. Y. 202 ; Simis v. 
 Eodge, 50 Hun, 410 ; Frost v. Mott, 34 IST. Y. 253. The presence 
 
CHATTEL MORTGAGES. 73 
 
 of this clause in the mortgage does not render the mortgage void 
 as a matter of law, but leaves the question of fraud as one of 
 fact for the jury. Simis v. Hodge, 50 Hun, 410. 
 
 It has been repeatedly held that the possession of the goods may 
 continue with the mortgagor, and that, if properly explained, the 
 mortgage is valid as against creditors, bona fide purchasers, and 
 mortgagees ; and if the possession is legal in those cases in which 
 there is no such stipulation, there certainly can be no valid legal 
 objection to the insertion of such a clause in the mortgage, if the 
 same explanation is given. Hull v. Carnley, 2 Duer, 99. 
 
 But in such cases as well as in all others in which the rights of 
 creditors of the mortgagor, or subsequent purchasers and mort- 
 gagees in good faith, are concerned, the mortgage must be duly 
 filed to be valid as against them. Laws of 1897, ch. 418, § 90; 
 General Laws, ch. 49, § 90. 
 
 It will be observed, however, that there is a great difference be- 
 tween a clause in the mortgage which merely authorizes the mort- 
 gagor to remain in possession until default, and a clause which 
 authorizes him to remain in possession and to sell and deal with 
 the property as though it were his own. In the latter case, such 
 a clause wotild render the mortgage absolutely void as a matter 
 of law, which is not to be submitted to a jury upon the question 
 of fraudulent intent, because it appears upon the face of the in- 
 strument itself. Edgell v. Hart, 9 IST. Y. 213 ; Williston v. Jones, 
 6 Duer, 504 ; Ford v. Williams, 13 ]Sr. Y. 577, 584 ; Gardner v. 
 McEwen, 19 IST. Y. 123; Wood v. Lowry, 17 Wend. 492; Mars- 
 ton V. Yultee, 12 Abb. 143 ; Southard v. Bennett, 72 N. Y. 424 ; 
 Bussell V. Winne, 37 IST. Y. 591 ; Potts v. Hart, 99 K Y. 168 ; 
 Hangen v. Hachemeister, 114 iN". Y. 566; Sperry v. Baldwin, 46 
 Hun, 120 ; Butcher v. Swartwood, 15 Hun, 31 ; Randall v. Car- 
 man, 89 Hun, 84; Mandeville v. Avery, 124 N. Y. 376; Rey- 
 nolds V. Ellis, 103 ]Sr. Y. 115. It is immaterial whether the agree- 
 ment is expressed in the mortgage itself or exists by tacit under- 
 standing and arrangement between the parties, and it may be in- 
 ferred from the fact that the mortgagee has permitted sales to 
 be made. Ih. But such an agreement miist be proved in some 
 way. A mere expectation of one of the parties is not sufficient. 
 Brackett v. Harvey, 91 N. Y. 214; Frost v. Warren, 42 N. Y. 
 204. 
 
 But an agreement between the parties to a chattel mortgage, 
 which covers the stock of goods in a retail store, that the mort- 
 gagor shall keep possession of the goods, and go on and sell them. 
 
74 CHATTEL MORTGAGES. 
 
 but for cash only, which is to be paid over to the mortgagee and 
 applied on the mortgage debt, does not render the mortgage void 
 as a matter of lavsr, but presents a question of good faith for a 
 jury. Ford v. Williams, 24 JST. Y. 359 ; Conkling v. Shelley, 28 
 N". Y. 360; Brachett v. Harvey, 91 N. Y. 214; Spaulding v. 
 Keyes, 125 N. Y. 113. The mere fact that the mortgagor failed 
 in some respects to perform this agreement, does not, as a matter 
 of law, authorize a court to find that the parties had an intention 
 contrary to that expressed in the written agreement. Ih. 
 
 Although a chattel mortgage is not invalid as a matter of law, 
 merely because it provides that the mortgagor shall remain in 
 possession of the mortgaged property and sell it for cash, which 
 is to be paid over to the mortgagee and applied by him on the 
 mortgage, yet in such a case the mortgagor constitutes the mort- 
 gagee his agent, and the amount of money received from such 
 sales by the mortgagor must be credited on the mortgage, whether 
 the money was paid over by the mortgagor or not, whenever a 
 question arises between the creditors of the mortgagor and the 
 mortgagee as to their respective interests in the mortgaged prop- 
 erty. Conkling v. Shelley, 28 IST. Y. 360; Sperry v. Baldwin, 46 
 Hun, 120. 
 
 A parol agreement that the proceeds of sales made by the 
 mortgagor shall be applied in payment of the debt secured, cannot 
 be shown when the effect of the testimony would be to contradict 
 the terms of the mortjo^age. Ball v. Shafter, 26 Hun, 353. 
 
 A clause in a chattel mortgage upon a stock of goods that the 
 mortgage is to be a continuing lien and security upon stock or 
 goods to be thereafter brought into the store, does not of itself 
 render the mortgage invalid, where there is no arrangement per- 
 mitting the mortgagor to deal with the goods mortgaged, and no 
 knowledge of such dealing on the part of the mortgagee. Yates v. 
 Olmsted, 56 IsT. Y. 632. And it is also held that where there is 
 a permission to use a portion of the proceeds of sales of the mort- 
 gaged property in the piirchase of other property, this does not 
 vitiate the mortgage, where it is coupled with a condition that 
 the property so purchased shall be brought in and subjected to the 
 mortgage lien by a renewal of the mortgage. Brachett v. Harvey, 
 91 W. Y. 214. But see Smith v. Cooper, 27 Hun, 565; Cook v. 
 Bennett, 60 Hun, 8 ; Wagner v. Jones, 7 Daly, 375. And, al- 
 though a mortgage may be void so that the mortgagee would be 
 unable to enforce it as against the creditors of the mortgagor, yet, 
 if the mortgagor treats it as void, and before the creditors obtain 
 
CHATTEL MORTGAGES. Y5 
 
 a lien transfers the mortgaged property to the mortgagee in pay- 
 ment of a debt, the transfer will be valid. Bowdish v. Page, 153 
 K Y. 104; Hwrdt v. Deutsch, 30 App. Div. 589. 
 
 While mortgaged property remains in the hands of the mort- 
 gagor and the condition of the mortgage is unbroken, the mort- 
 gagor has an interest subject to his control and disposition. He 
 can sell and deliver such title as remains to him, and, in case of 
 sale, the purchaser will take title subject to the lien of the mort- 
 gage, whether its existence was known to him or not. Hwmill 
 V. Gillespie, 48 IST. Y. 556. If the purchaser of the mortgaged 
 property sells it to a stranger while the condition of the mortgage 
 is unbroken, he will not thereby become liable to the mortgagee 
 as for a conversion of the property. Martin v. Lewinski, 54 App. 
 Div. 573 ; Hathaway v. Brayman, 42 IST. Y. 322. The remedy of 
 the mortgagee in such case is to follow the property into the hands 
 of the purchaser and require its delivery to him or the payment 
 of his mortgage debt. Ih. 
 
 Chattels which are mortgaged may be seized and the interest of 
 the mortgagor therein sold on an execution against the mortgagor, 
 where they are in his possession, and he, at the time of the seizure 
 and sale is, by the terms of the mortgage entitled to their posses- 
 sion for a definite period. Hull v. Carnley, 11 N. Y. 50 ; Hull 
 V. Carnley, 17 ]l^. Y. 202. The ofiicer making the seizure and sale 
 is not liable to the mortgagee, in such a case, although he sells 
 the property generally without in any way recognizing the lien 
 of the mortgagee and delivers the possession of it to the purchaser. 
 Ih. And such sale may be made of separate parcels, and each 
 parcel delivered to the purchaser, and the ofSeer is not liable ta 
 the mortgagee as for a trespass and conversion of the goods. Ih. 
 But where the property is sold to numerous different bidders, and 
 is thereby so scattered and dispersed as to render it difiScult or 
 impossible for the mortgagee to obtain possession of it under his 
 mortgage, such sale is an actionable injury, and the mortgagee 
 may recover such damages as result to his lien or title in conse- 
 quence of the sale, though he cannot recover, as of course, the 
 entire value of the property sold. Manning v. Monaghan, 23 N. 
 Y. 539 ; 28 K Y. 585 ; Gowlet v. Asseler, 22 JST. Y. 225. 
 
 A mortgagor of chattels has no legal power to pledge the mort- 
 gaged property to a third person in such a manner as to prejudice 
 or impair the mortgagee's rights. Bissell v. Pearce, 28 N. Y. 252. 
 If the property mortgaged consists of living animals, the mort- 
 gagor cannot pledge them for their keeping, so as to create a lien 
 
76 CHATTEL MOKTGAGES. 
 
 that will interfere with the mortgagee's right to the possession of 
 them, discharged from any claim under such pledge. lb. 
 
 After a default in the payment of a chattel mortgage the title 
 to the property is vested in the mortgagee; and therefore, the 
 mortgagor has no interest in the chattels which can be levied upon 
 after such default. Howland v. Willett, 2 Sandf . 607 ; Galen v. 
 Brown, 22 IS^. Y. 37; Craft v. Brandow, 61 App. Div. 247. The 
 only interest remaining in the mortgagor is an equity of redemp- 
 tion which can be reached by the creditors of the mortgagor only 
 by a proceeding in equity and not by a levy and sale. Ih. 
 
 Where no time of payment is mentioned in the mortgage it 
 is due immediately. Galen v. Brown, 22 N". Y. 37. And where 
 in a mortgage of personal property it was provided that the mort- 
 gagor should permit the mortgagee to " have, possess, occupy and 
 enjoy " the mortgaged property, whenever he should demand the 
 same, and after the mortgagor had absconded, the mortgagee took 
 possession of \h& property by virtue of the mortgage ; it was held, 
 that the interest of the mortgagor was not the subject of a levy 
 and sale upon an execution, although the debt secured by the 
 mortgage had not, at the time of the levy become due. Mattison 
 V. Baucus, 1 N. Y. 295 ; S. C, Hill and Denio, 321. 
 
 In this case it will be seen that the mortgagee exercised the 
 right which the mortgage gave him, of " having, possessing, etc.," 
 the mortgaged property, and, therefore, there was no legal right 
 of possession in the mortgagor, after such possession -v/as taken 
 by the mortgagee. The absconding of the mortgagor made a 
 demand upon him impossible ; but the right to take the property 
 is very clear, since the taking of possession was all the dem'and 
 which was legally necessary. 1 N. Y. 297. And see Stewart v. 
 Plater, 6 Dner, 83, 84, 99, 100. The following case will illustrate 
 the principle. Goods which were exempt by law from levy and 
 sale, were seized by a sheriff on an execution ; and, at the time 
 of such seizure, the goods were covered by a mortgage, payable 
 on demand, and containing a clause, that until default in pay- 
 ment, the mortgagor should remain in possession of the mort- 
 gaged property. The mortgagor sued the sheriff for seizing 
 the goods, on the ground that they were exempt by law from 
 such seizure; and the sheriff set up as a defense, that the title 
 to the property was in the mortgagee ; but the court held ; 1, that 
 the action would lie because the property was exempt ; 2, that until 
 demand and failure, at least, if not until possession, the mort- 
 gagor had a leviable interest, the subject of levy on an execution 
 
CHATTEL MORTGAGES. IT 
 
 and a sale, if it had not been exempt; 3, that as between the 
 mortgagor and the sheriff, the property must be taken at its full 
 value, -without regard to the amount of the mortgage; and 4, 
 that the case did not differ in principle, from that where the 
 mortgagor is allowed to retain possession until a debt, payable 
 at a definite time, becomes due. Livor v. Orser, 5 Duer, 501. 
 
 An officer seizing exempt property covered by a mortgage, and 
 rightfully in the possession of the mortgagor, cannot successfully 
 set up as a defense that by the execution of the mortgage there is- 
 a waiver of the exemption. As between the officer and the mort- 
 gagor there is no waiver of exemption. Frost v. Mott, 34 N.. 
 Y. 253. 
 
 Where the title to the mortgaged property has become absolute 
 in the mortgagee in consequence of the non-payment of the money,, 
 a tender of the money due will not reinvest the title in the mort- 
 gagor, nor will a tender and acceptance of a part of the money 
 have that effect; though a tender and acceptance of the whole 
 money would satisfy the mortgage and reinvest the mortgagor 
 with the title. Patchin v. Pierce, 12 Wend. 61 ; Charter v. 
 Stevens, 3 Denio, 33. See Darrow v. Wendelstadt, 43 App. Div. 
 426. 
 
 And where the mortgagee, after the day of payment had passed, 
 sold part of the property by virtue of a power contained in the 
 mortgage, for sufficient to pay the mortgage debt with interest 
 and expenses; it was held that this was equivalent to absolute 
 payment, and that the mortgagee's title to the chattels remaining 
 unsold was extinguished; and the mortgagee having afterwards 
 sold the residue of the property, it was also held that such sale 
 was a conversion of it, for which the mortgagee was liable to the 
 mortgagor in trover. Charter v. Stevens, 3 Denio, 33. This case 
 clearly establishes that when a sale is made of a single article and 
 there is a surplus left after paying the debt, interest and expenses, 
 the surplus belongs to the mortgagor, and if there are several 
 articles mortgaged, no more of them ought to be sold than is 
 necessary. 
 
 After a default in the payment of a mortgage, the title at law 
 is absolute in the mortgagee, but the mortgagor may commence 
 an action on the equity side of the court, in courts of record, for 
 the purpose of redeeming the property at any time before a fore- 
 closure by a sale of the mortgaged property. Charter v. Stevens, 
 3 Denio, 33 ; Patchin v. Pierce, 12 Wend. 61 ; Pratt v. Stiles, 9 
 Abb. 150. And see Archer v. Cole, 22 How. 411, 
 
78 CHATTEL MOKTGAGES. 
 
 In a court of record, under our present system of administering 
 law and equity, a mortgagor of personal property, or those stand- 
 ing in his shoes, can, when sued for a conversion of the mortgaged 
 property, claim the right to redeem in his defense to that suit, 
 and where his right to the property has not been foreclosed by a 
 sale or otherwise, he may mitigate the recovery against himself 
 by reducing the judgment to the amount actually due on the mort- 
 gage. Hinman v. Judson, 13 Barb. 629 ; Parish v. Wheeler, 22 
 ]Si. Y. 494, 511. 
 
 This principle is very equitable, and there is no reason why it 
 ought not to apply to a justice's court as well as to a court of 
 record. 
 
 If the mortgagor sells his interest in the mortgaged property, 
 the purchaser will take precisely the interest of the mortgagor, 
 and nothing more, xinless it is in those cases in which there is a 
 sale to a hona fide subsequent purchaser, and in that case his title 
 will be superior to that of a prior mortgagee who has not taken 
 possession of the property, nor filed his mortgage, or if he is a 
 purchaser who has not taken possession. 
 
 A general assignee for the benefit of creditors cannot object to 
 the want of filing of a mortgage given by his assignor, as he is 
 not a purchaser for value, but a mere trustee, who stands in the 
 shoes of his assignor. Van Heusen v. Radcliff, 17 IST. Y. 580 ; 
 Griffin V. Marquardt, 17 iN". Y. 28 ; Ball v. Shafter, 26 Hun, 353 ; 
 Niagara County Nat. Bank v. Lord, 33 Hun, 557 ; Crisfield v. 
 Bogardus, 18 Abb. N. C. 334; Dorthy v. Servis, 46 Hun, 628; 
 Sheldon v. Wichham, 161 IST. Y. 500. 
 
 A receiver in supplementary proceedings occupies a very dif- 
 ferent position from that of an assignee. The receiver represents 
 a judgment creditor while the assignee represents the assignor. 
 And it has been held that a receiver in supplementary proceedings 
 may maintain an action to set aside an unfiled chattel mortgage 
 as void by reason of the failure to file it, and may recover the 
 property covered by it or its value. Stephens v. Perrine, 143 N. 
 Y. 476. But see Stephens v. Meriden Britannia Co., 160 IST. Y. 
 178; Manning v. Monaghan, 1 Bosw. 459. 
 
 The protection which the statute gives to subsequent hona fide 
 purchasers from a mortgagor in those cases in which the statute 
 requires the mortgage to be refiled by filing a copy thereof, with 
 a statement of the mortgagee's interest, is not limited to a pur- 
 chase from the mortgagor, for a purchase from his vendee, or in 
 case of his death, from the person in whom the title to the prop- 
 
CHATTEL MOETGAGES. Y9 
 
 erty would have vested, but for the mortgage, as his executor, 
 etc., or in certain cases from his widow, is as valid as a purchase 
 from the mortgagor. Fox v. Burns, 12 Barb. 677. And where a 
 cow was mortgaged to secure a debt, but remained in the mort- 
 .gagor's possession, and after a year had elapsed, without a re- 
 newal of the mortgage, the mortgagor died, leaving a widow but 
 no minor children, or executor or administrator, and the widow 
 sold the cow to the plaintiff, who purchased in good faith and for 
 a valuable consideration, it was held that the plaintiff by such pur- 
 chase, and by operation of the statute, could hold the cow as 
 against a person claiming under the mortgage. lb. 
 
 To show good faith in a subsequent mortgage of personal prop- 
 erty, so as to enable the holder thereof to avoid a prior mortgage 
 on the ground of fraud, it must be proved by evidence outside 
 of the instrument itself, that the second mortgage was given for 
 a valuable consideration, or to secure the payment of an honest 
 debt. And evidence showing that about a year before the sub- 
 sequent mortgage was given, the mortgagor became indebted to 
 the mortgagee, but not connecting the two transactions is not 
 sufficient. Baskins v. Shannon, 3 N. Y. 310. 
 
 § 5. Rights of the Mortgagee. 
 
 Where there is a default, by the non-payment of the money 
 due in a chattel mortgage at the time therein specified, the title 
 to the mortgaged property becomes absolutely that of the mort- 
 gagee. This is so well settled that authorities need not be cited 
 to prove it; but it is sometimes convenient to examine the prin- 
 cipal cases iipon that point, and, therefore, a few of them will be 
 cited : Bank of Rochester y. Jones, 4 IST. Y. 498 ; Langdon v. 
 BiLel, 9 Wend. 80 ; Ackley v. Finch, 7 Cow. 290 ; Fuller v. Acker, 
 1 Hill, 473 ; Case v. Boughton, 11 Wend. 106 ; Patchin v. Pierce, 
 12 Wend. 61; Talman v. Smith, 39 Barb. 390; Bragelman v. 
 Dane, 69 'N. Y. 69 ; Chamberlain v. Martin, 43 Barb. 607 ; Kim- 
 ball V. F. & M. Nat. Bank, 138 N. Y. 500; Darrow v. Wendel- 
 stadt, 43 App. Div. 426 ; Casserly v. Witherhee, 119 IST. Y. 522. 
 This absolute ownership of the mortgaged property after default 
 is subject only to a right of redemption in the mortgagor enforce- 
 able only by an action in equity; and this right the mortgagee 
 can cut off by a sale, public or private, fairly made. Coe v. Cas- 
 sidy, 72 N. Y. 133. After default, the mortgagor can maintain 
 no action at law against the mortgagee. Casserly v. Witherhee, 
 
80 CHATTEL MOETGAGES. 
 
 119 ]Sr. Y. 522. And the refusal of a tender of the debt after de- 
 fault, and the subsequent sale of the chattels by the mortgagee, 
 "will not entitle the mortgagor to maintain an action at law for 
 the conversion of the chattels. Darrow r. Wendelstadt, 43 App. 
 Div. 426. It is not necessary that the mortgage should declare 
 that, upon default in payment at the time specified, the title of 
 the mortgagee will become absolute, nor that non-payment will 
 work a forfeiture. This is an incident attending the relation of 
 mortgagor and mortgagee of chattels, and the mortgagor must pay 
 according to the terms of his undertaking, or else his rights at 
 law are terminated. Bragelman v. Dane, 69 N. Y. 69. If the 
 debt secured by the mortgage is payable in installments, and de- 
 fault is made in the payment of one installment only, the title of 
 the mortgagee is as perfect as if default was made in the payment 
 of the whole debt. Halstead v. SwaHz, 1 N. Y. Sup. Ct. (T. & C.) 
 559 ; 46 How. 289 ; Phoenix Nat. Bank v. Cleveland Co., 34 St. 
 Rep. 498 ; 11 IST. Y. Supp. 873. 
 
 The execution of the mortgage is a sale upon condition; and 
 such conditional sale becomes an absolute one, if the money is 
 not paid as specified ; or the condition is not performed as agreed. 
 
 And the right to the property includes the right to all acces- 
 sions to it; as where the mortgagor oi a vessel, after the execu- 
 tion of the mortgage, removes the sails, which are old and nearly 
 worn out, and replaces them with a new set, and in that state 
 the vessel comes into the possession of the mortgagee, the new 
 sails will be held to be covered by the mortgage; and upon a 
 sale of the vessel, under the mortgage, they will belong to the 
 purchaser as a part of the vessel. Southworth v. Isham, 3 Sandf. 
 448. 
 
 So, when the title of the mortgagee becomes absolute, and the 
 property has been changed into something else, the mortgagee 
 may recover the property in its altered condition, if it can be 
 identified, and if the party taking it was guilty of a willful tres- 
 pass or conversion (Silsiury v. McCoon, 3 N". Y. 379), or, if the 
 nwDrtgage provides that it is to be a lien upon such property in its 
 changed condition. Ante, p. 71 ; Dunning v. Stevens, 9 Barb. 630. 
 
 After the mortgagee's title becomes absolute, he may maintain 
 an action against any person who imlawfully takes it or who is 
 guilty of an unlawful conversion of it. Bank of Rochester v. 
 Jones, 4 N. Y. 497 ; Langdon v. Buel, 9 Wend. 80. And if the 
 party who unlawfully took the property, or who unlawfully de- 
 tains it, has it in his possession or under his control, an action 
 
CHATTEL MOKTGAGES. 81 
 
 of replevin will lie to recover the possession of it. Fuller v. Acker, 
 1 Hill, 473 ; Rowland v. Willett, 3 Sandf. 607. 
 ' A clause in a mortgage, which is payable on demand, that the 
 mortgagor may retain possession until default be made in the pay- 
 ment, does not make a demand necessary, or prevent the mort- 
 gagee from recovering the property from any person who takes it 
 oiit of the mortgagor's possession, although no demand of pay- 
 ment has been made. Rowland v. Willett, 3 Sandf. 607. 
 
 Where a mortgagee has a mortgage upon several different arti- 
 cles for their purchase-money, an acceptance of the purchase-price 
 of any one of the articles does not bind the mortgagee to release 
 the claim of the mortgage upon that article until the whole sum 
 secured by the mortgage is paid. Clarh v. Orifflth, 2 Bosw. 
 558. And where four billiard tables were mortgaged for their 
 purchase-price of $275 each, and the mortgagee agreed to release 
 one of such tables as often as the sum of $300 was paid, and the 
 mortgagor paid $275, for which a receipt was given by the mort- 
 gagee, it was held that this was not a compliance with the terms 
 iipon which such table was to be released ; and that, although the 
 sum paid was equal to the price of one table, yet such table was 
 not released from the lien of the mortgage. li. 
 
 Where the defendants, who held a chattel mortgage, prior in 
 date to any other, upon a horse owned by the plaintiff, at the 
 request of the plaintiff, and for his accommodation, gave him a 
 certificate stating that svich mortgage was canceled, at the same 
 time taking from the plaintiff, in exchange therefor, a mortgage 
 upon other property, for the amount secured by the first mort- 
 gage, the plaintiff concealing from the defendants the fact that 
 the property embraced in the second mortgage was already mort- 
 gaged to O., a third person, to its full value, by a mortgage not 
 then filed in the clerk's office; but such mortgage was afterwards 
 filed, before the defendants could get their substituted mortgage 
 on file; it was held that the defendants, on discovering the exist- 
 ence of the mortgage to O., and that it had been made a prior 
 Hen to theirs, could repiidiate the cancellation of the original 
 mortgage, on the ground that such cancellation was procured by 
 fraud, and that such defendants might take possession of the 
 mortgaged property by virtue of the original mortgage, which 
 wotild be a valid title against the mortgagor, who sued the mort- 
 gagees for taking the property on the first mortgage, after the 
 cancellation as aforesaid. Lynch v. Tibhits, 24 Barb. 51. 
 
 It has been held that, where personal property, which is mort- 
 
 6 
 
82 CHATTEL MOETGAGES. 
 
 gaged, has been wrongfully converted, an action to recover its value 
 may be maintained by the mortgagee against the wrongdoer, al- 
 though the money secured by the mortgage is not yet due, if there 
 is a clause in the mortgage which aiithorizes the mortgagee, at 
 any time when he shall deem himself insecure, to take possession 
 of the mortgaged property, and sell it to satisfy the debt. Chad- 
 wich V. Lamb, 29 Barb. 518. But this doctrine has been expressly 
 repudiated by the higher court. Hall v. Sampson, 35 N. Y. 274, 
 277 ; Hathaway v. Brayman, 42 IST. Y. 322. 
 
 A pair of oxen, etc., were mortgaged to A., the plaintiff, by 
 B., to secure a debt which B. owed to A., payable at a future day. 
 B. retained possession of the property, but the mortgage was duly 
 filed in H., the town in which B. lived. B. took the property 
 into F., an adjoining town in Vermont, for a temporary purpose, 
 without the knowledge of A., where it was seized and sold by the 
 defendant, a constable of the town of F., by virtue of an execution 
 issued upon a judgment before then recovered there against B. 
 in favor of citizens of F. By the laws of Vermont, a mortgage of 
 personal property, unaccompanied by possession, is fraudulent and 
 void as against creditors. In a suit by A. against the constable for 
 the value of the property, the jury having found that the mort- 
 gage was not fraudulent, it was held that the nature, construc- 
 tion, and obligation and effect of the mortgage must be deter- 
 mined by the laws of this State, and that the plaintiff was en- 
 titled to judgment. Martin v. Hall, 12 Barb. 631. This deter- 
 mines the principle that, where a lien is valid in this State, and 
 the property is temporarily removed to another State, a creditor 
 cannot defeat the interest acquired under the same by proceedings 
 in invitum in another State. Ih. In this State it is held that, 
 where a contract in regard to personal property is made in another 
 State, the laws of such State, as to its validity and effect, is to 
 govern here, and if valid there it is to be considered equally valid 
 and can be enforced here. Nichols v. Mase, 94 N. Y. 160; 
 ^tna Ins. Co. v. Aldrich, 26 N. Y. 96; Edgerly v. Bush, 16 
 Hun, 80, 85 ; Whitman v. Cormer, 8 Jones & Sp. 339. 
 
 When a chattel mortgage is given to secure a surety, or in- 
 dorser, and the note is duly paid by the mortgagor, or the surety 
 or indorser is legally discharged in consequence of an agreement 
 with the holder of the note to extend the time of payment of the 
 note, the surety or indorser is not entitled to retain the mortgaged 
 property after such payment, or the discharge from liability on 
 such note; and if such surety or indorser refuses to deliver the 
 
CHATTEL MORTGAGES. S3 
 
 mortgaged property to the mortgagor, on his demand, he may 
 maintain an action of replevin to recover siich possession. New- 
 sam V. Finch, 25 Barb. 175. 
 
 When personal property has been mortgaged by a chattel mort- 
 gage, and the title has become absolute in the mortgagee, in con- 
 sequence of the default of the mortgagor, the property may be 
 levied on by an execution issued against the mortgagee, although 
 the property remains in the hands of the mortgagor. Ferguson v. 
 Lee, 9 Wend. 258. 
 
 Where a chattel mortgage contained a provision that, upon 
 default of payment of the mortgage debt at the time agreed on, 
 the mortgagee might sell the property at auction or private sale, 
 and pay the debt and expenses out of the avails, it was held that 
 the mortgagee's title became absolute at law upon default in pay- 
 ment without any sale heing made. Burdich v. McVanner, 2 
 ^Denio, 170; Dane v. Mallory, 16 Barb. 46. 
 
 A chattel mortgage was executed by P. in the usual form to 
 K., transferring to the mortgagee the legal title to the property. 
 By the first clause of the condition, this title was made defeasible 
 'iipon the payment of the mortgage debt according to the terms 
 of the condition. By another clause, it was provided that, if de- 
 fault should be made in such payment, or if K. should, at any 
 time, deem himself in danger of losing his debt by delaying the 
 collection thereof until it became due, he might take possession 
 of the property at any time before or after the time limited for 
 the payment of such debt, and sell the same, or so miich thereof as 
 should be necessary to satisfy the debt, etc. It was held that this 
 latter clause did not, by implication, give to the mortgagor the 
 right to retain the possession of the property until the happening 
 of the contingency, but that the power given to the mortgagee by 
 that stipulation was intended as a cumulative remedy, merely, 
 and did not qualify his right, as the legal owner, to the possession 
 of the property at all times, before the performance of the condi- 
 tion which was to defeat his title. Rich v. Milk, 20 Barb. 616. 
 And the same case also held that an assignee of the mortgage had 
 'a right to take possession of the property and to retain it as against 
 the mortgagor, and all claiming under him. before the mortgage 
 debt became due and payable. 
 
 Where a chattel mortgage contains a power which authorizes the 
 mortgagee, in case of default in payment, to take the mortgaged 
 property and sell the same and apply the avails in payment of the 
 debt ; and where it also contains a clause that the mortgagee may, 
 
84 CHATTEL MORTGAGES. 
 
 at any time when he shall feel unsafe, even before the day of pay- 
 ment, take possession of the property, and " sell the same at public 
 or private sale," this is sufficient, after a default, to authorize a 
 sale by the mortgagee at private sale, without any notice to the 
 mortgagor ; and if the sale is fair and bona fide, it will effectually 
 bar the mortgagor's right of redemption. Such a sale operates 
 as a foreclosure of the mortgage, and bars any action for a re- 
 demption of the property. Chamberlain v. Martin, 43 Barb. 607 ; 
 Ballon V. Cunningliam, 60 Barb. 425. 
 
 A mortgagor has an equity of redemption even after forfeiture, 
 which remains until the right is foreclosed. West v. Grary, 47 
 ]Sr. Y. 423 ; Farmers' Bank v. Cowan, 2 Keyes, 218 ; Porter v. 
 JParmley, 52 N. Y. 185. This right he may transfer to a pur- 
 chaser, and, if in possession of the property, may transfer the 
 possession with the right. But this will not affect the title or 
 rights of the mortgagee. Farmers' Bank v. Cowan, 2 Keyes, 218. 
 This right of redemption, as has been shown, can be cut off by a 
 sale, public or private, fairly made. If made at a private sale, the 
 mortgagee could probably be compelled to account for the value of 
 the property if he sold it for less ; if made at a public sale, after 
 notice to the mortgagor, he could be made to accotmt only for what 
 the property brought at such sale. Coe v. Cassidy, 72 IST. Y. 133 ; 
 Stoddard v. Denison, 2 Sweeny, 54; 38 How. 296; Talmam, v. 
 Smith, 39 Barb. 390; Chamberlain v. Martin, 43 Barb. 607; 
 Ballon V. Cnnningham, 60 Barb. 425 ; Charter v. Stevens, 3 
 Denio, 33 ; Olcott v. Tioga B. R. Co., 27 jST. Y. 546, 566. A 
 surety for the mortgage debt may call the mortgagee to account 
 for the proceeds of the mortgaged property, and hold him re- 
 sponsible for the property. Coe v. Cassidy, 72 'N. Y. 133. 
 
 The remedy by sale is not the only mode of cutting off the right 
 or eqiiity of redemption. It is, however, a speedy and effectual 
 remedy, and has, to a great extent, superseded a resort to an ac- 
 tion of foreclosure. But an action in equity to foreclose a chattel 
 mortgage may still be maintained. Briggs v. OliA)er, 68 X. Y. 
 336. 
 
 If a mortgagee of personal property assigns the debt to secure 
 the payment of which the mortgage is given, whether the same be 
 done before or after forfeiture, the interest of the mortgagee passes 
 to the assignee, and if the property is taken by a stranger the 
 action must be brought in the name of the assignee, and not in 
 the name of the assignor. Langdon v. Biiel, 9 Wend. 80; Code 
 of Civil Pro., 449. 
 
CHATTEL MOETGAGES. 85 
 
 When a surety for the payment of rent reserved in a lease 
 takes from the lessee a chattel mortgage to secure him from loss 
 by reason of his liability as surety, and he is subsequently obliged 
 to pay the rent due upon the lease, this divests the mortgagor of 
 all legal property or interest in the chattels mortgaged, and the 
 mortgagee becomes the absolute owner thereof. And, if the 
 mortgaged goods are levied on by virtue of an execution against 
 the mortgagor an action of replevin for the recovery of the pos- 
 session of such goods, may be maintained by the mortgagee or 
 his assignee. Swift v. Hart, 12 Barb. 530. 
 
 The transfer by assignment of an overdue chattel mortgage 
 transfers to the assignee the property itself, although the note 
 ■which the mortgage is given to secure was not .embraced in the 
 assignment. Campbell v. Birch, 60 N. Y. 214. 
 
 Where a mortgage of personal property is given to several 
 persons to secure the payment of several debts owing by the 
 mortgagor, and by the express terms of the instrument the whole 
 is to become forfeited by a single default, when a default occurs, 
 in the payment of either of the debts, the property becomes for- 
 feited to the holders of the mortgage, jointly, and they become 
 tenants in common of the whole property. And neither of the 
 mortgagees, upon his debt becoming due, has any sole and several 
 right to the mortgaged property, which will authorize him to 
 appropriate it to his own use. Tyler v. Taylor, 8 Barb. 585. 
 And where one of the mortgagees assumed to sell the whole 
 interest in a horse which was thus mortgaged to the several 
 mortgagees, and such purchaser brought an action against the 
 remaining mortgagees for refusing to deliver the horse to him, it 
 was held that the action would not lie; because, under such cir- 
 cumstances, the plaintiff got merely the title of his assignor, who 
 was a tenant in common with the other mortgagees, and a refusal 
 by the latter to deliver the property to the plaintiff was not a con- 
 version of the property. Ih. 
 
 In an action by a mortgagee of chattels, for their seizure upon 
 an execution against the mortgagor, it is not competent for the 
 defendant, with a view to impeach the validity of the mortgage, 
 to prove that subsequent to its execution the mortgagor, while in 
 possession of the property, but without the knowledge or privity 
 of the mortgagee, executed other incumbrances upon it which 
 were fraudulent. Ford v. Williams, 13 N. Y. 577. A creditor 
 who takes a chattel mortgage upon personal property from his 
 debtor to secure his debt, in good faith, and without any notice 
 
SQ CHATTEL MOETGAGES. 
 
 cf an improper design on the part of a mortgagor in executing 
 the same, will be protected, although the object and design of 
 the mortgagor, in executing the same, was to delay, hinder or 
 defraud his other creditors. Hall v. Arnold, 15 Barb. 599 ; 
 Dudley v. Danforth, 61 IST. Y. 626. 
 
 Where, in a chattel mortgage, a party acknowledges his indebt- 
 edness to an other in a sum certain, and declares that for the pur- 
 pose of securing the payment thereof, he transfers the property 
 specified in the instrument, the creditor, in default of payment, 
 may bring his action, and is not bound in the first instance to 
 resort for satisfaction to the property. Elder v. Rouse, 15 Wend. 
 218. 
 
 But an action will not lie upon a chattel m'ortgage to recover 
 the sum of money secured thereby, unless the instrument contains 
 an express agreement to pay the sum, or a distinct acknowledg- 
 ment of an existing debt. Culver v. Sisson, 3 N. Y. 264. 
 In a chattel mortgage executed to the plaintiff under seal, there 
 was no express covenant to pay the money, nor' any acknowledg- 
 ment except that the instrument was declared to be executed for 
 the purpose of securing the payment of a certain sum. There was 
 a proviso that the instrument should cease and be void on pay- 
 ment of the sum ; and in case of default the plaintiff was author^ 
 ized to sell the goods and apply the proceeds in payment, rendering 
 the overplus to the defendant; it was held that an action would 
 not lie upon the instrument. lb. Weed. v. Covill, 14 Barb. 242. 
 A covenant in a chattel mortgage, that the mortgagor will warrant 
 and defend the property, is merely a warranty of title; not that 
 the mortgagor will forever keep the property, or protect it. Weed 
 V. Covill, 14 Barb. 242. 
 
 If the mortgagee takes possession of the property, and sells 
 it upon a fair sale, and it does not bring a sum sufficient to pay 
 the debt, interest and costs, the mortgagor is liable for the defi- 
 ciency. Case V. Boughton, 21 Wend. 106. But, of course, the 
 mortgage must be such that an action will lie upon it as shown 
 in the cases which have just been cited. Where several different 
 chattel mortgages are given, at different times, to different credit- 
 ors, but iipon the same property, and to secure antecedent debts, 
 where neither of such mortgages is filed in the proper town 
 clerk's office, a preference will be given to the mortgage first in 
 time. Tiffany v. Warren, 37 Barb. 571. 
 
 Although a second mortgagee of chattels takes his mortgage 
 without notice of a prior unfiled mortgage on the same property, 
 
CHATTEL MOKTGAGES. 87 
 
 he is not, therefore, a bona fide mortgagee if the consideration of 
 his mortgage is merely a precedent debt owing to him by the 
 mortgagor. lb. Nor can any one who purchases the mortgaged 
 property from the second mortgagee with full knowledge of the 
 prior mortgage, and of the claim to a preference made by the 
 holders thereof, hold the property, as against such prior mort- 
 gagees, lb. If, after the forfeiture of a chattel mortgage, the 
 mortgagee sells the property to a third person, with the consent 
 of the mortgagor, this will be equivalent to a formal foreclosure of 
 the equity of redemption ; and the title of the purchaser on such 
 a sale, cannot be assailed by creditors of the mortgagor, if they 
 had no lien upon the mortgaged property at the time of his pur- 
 chase. Talman v. Smith, 39 Barb. 390. 
 
 A person who purchases property from a naortgagee in a chat- 
 tel mortgage, and who takes possession of the property after a 
 forfeiture, of the condition of the mortgage, and at a time when 
 there was no creditor in a situation to object to the sale or to 
 impeach it, and afterwards continues in possession thereof, is 
 to be deemed prima facie, the absolute owner, and he is not 
 bound, in the first instance, to go further and account for the 
 possession of the mortgagor diiring the existence of the mort- 
 gage, lb. ISTo presumption of fraud in the purchase exists by 
 reason of the previous possession of the mortgagor; and a credi- 
 tor of the mortgagor who asserts such fraud holds the affirma- 
 tive, and is bound to establish it by proof. lb. 
 
 The mortgagee may purchase at the sale of the mortgaged prop- 
 erty and such purchase will not render the sale void. Casserly v. 
 Witherbee, 119 I^. Y. 522 ; Edmiston v. Brucker, 40 Hun, 256 ; 
 King v. Walbridge, 48 Hun, 470; Olcott v. Tioga B. R. Co., 27 
 N. T. 546. And where the mortgagee of chattels assumes to sell 
 all the mortgaged property under the power of sale contained in 
 the mortgage, though more than sufficient to pay the mortgage 
 debt, and on such sale bids in the property, and takes possession, 
 claiming title under the purchase, the mortgagor may elect to 
 treat the entire sale as valid, and to regard the amount for which 
 the property sold in excess of the mortgage debt, as unpaid pur- 
 chase-money in the hands of the mortgagee. Davenport v. 
 McChesney, 86 K Y. 242. 
 
 For the protection of mortgages it is now provided by statute 
 that a person who, having theretofore executed a mortgage of per- 
 sonal property, or any instrument intended to operate as such, 
 sells, assigns, exchanges, secretes or otherwise disposes of any part 
 
88 CHATTEL MOKTGAGES. 
 
 of tlie property, upon wluch the mortgage or other instrument is 
 at the time a lien, with intent thereby to defraud the mortgagee, 
 or a purchaser thereof, is gtiilty of a misdemeanor. Penal Code, 
 § 571. 
 
 § 6. Rights of Creditors. 
 
 The law favors creditors in all fair attempts to collect or secure 
 their just demands. And one principal object in requiring chattel 
 mortgages to be filed is to enable all persons to know whether there 
 are liens upon the personal property of the person with whom they 
 are dealing. And to render this provision as to filing effectual, 
 it is provided that " every mortgage or conveyance intended to 
 operate as a mortgage of goods and chattels, or of any canal boat, 
 steam tug, scow or other craft, or the appurtenances thereto, navi- 
 gating the canals of the State, which i& not accompanied by an 
 immediate delivery, and followed by an actual and continued 
 change of possession of the things mortgaged, is absolutely void 
 as against the creditors of the mortgagor, and as against subse- 
 quent purchasers and mortgagees in good faith, unless the mort- 
 gage. Of a true copy thereof is filed as directed in this article." 
 Laws of 1897, ch. 418, § 90; General Laws, ch. 49, § 90; Wild 
 7. Porter, 50 App. Div. 350. 
 
 The word " creditors " as used in this statute, inckides credi- 
 tors whose debts antedate the execution of the mortgage as well 
 as those whose debts were subsequently contracted. And a simple 
 contract creditor is as much within the protection of the statute 
 as a creditor whose debt has been merged in a judgment. Karst 
 V. Gane, 136 K Y. 316; Thompson v. Van YecUen, 27 K Y. 
 568 ; Southard v. Banner, 72 N. Y. 424. But the mortgage can- 
 not be questioned by the creditor until he clothes himself with 
 a judgment and execution, or some other legal process against the 
 property. The creditor who can avail himself of the omission to 
 file the mortgage is he who has a judgment, and proceeds upon 
 that and obtains a lien. A creditor-at-large cannot. Ih.; Shel- 
 don V. Wiclcham, 161 N. Y. 500; Jones v. Graham, 77 K Y. 
 628 ; Kitchen v. Lowery, 127 IST. Y. 53 ; Stephens v. Meriden 
 Britannia Co., 160 IST. Y. 178; Volchers v. Sturke, 18 Misc. 457; 
 42 K Y. Supp. 87 ; Bullard v. Kenyan, 49 St. Eep. 132 ; Button 
 V. Rathhone, Sard & Co., 126 IST. Y. 187; Castleman v. Mayer, 
 55 App. Div. 515, 519. A judgment by confession and execution 
 thereon are sufficient. Wild v. Porter, 59 App. Div. 250. 
 
 When a creditor has a valid judgment and execution, and a levy 
 upon the personal property mortgaged, sold or assigned, this will 
 
CHATTEL MOKTGAGES. 89 
 
 be a sufficient lien to enable tbe creditor to attack the validity 
 of such mortgage or sale. So an attachment issued in an action 
 in the supreme court is, when duly levied upon personal property, 
 a sufficient lien to enable the attaching creditor to attack the val- 
 idity of a chattel mortgage upon the saijpe property, on the ground 
 that it is fraudulent and void as to creditors, or for any other 
 reason which will destroy its validity. Rinchey v. Stryher, 26 
 How. 75, 80 ; 28 K Y. 45. 
 
 A regular and valid attachment issued by a justice of the peace 
 is also a sufficient lien to enable the attaching creditor to attack 
 the validity of a sale, mortgage or assignment of personal property. 
 If the attachment "is irregularly issued and is void, that fact will 
 be sufficient to prevent any lien from being obtained by its levy. 
 And where an attachment was issued by a justice of the peace in 
 favor of a creditor, and the attachment was levied upon the mort- 
 gaged property, but the affidavit upon which the attachnlent was 
 issued was so defective as not to confer jurisdiction to issue it, 
 it was held that such creditor had not such a lien upon the mort- 
 gaged property as to enable him to attack or impeach the validity 
 of the mortgage on the ground that there was no change of the 
 possession of the mortgaged property. Halsey v. Christie, 21 
 Wend. 9. When proper legal affidavits are furnished, they will 
 authorize the issuing of an attachment, but if it is important to 
 attack the validity of a mortgage or sale, etc., the attaching credi- 
 tor must prove on the trial, that he was a creditor such as is 
 specified in the statute, and the affidavits on which the attach- 
 ment was issued will not be evidence upon that point. Clute v. 
 Fitch, 25 Barb. 428. In the two cases last cited it was assumed 
 that the attachment would have been a sufficient lien if the proofs 
 furnished had been regular, full and legal. The first action failed 
 because the original affidavits were so defective as not to confer 
 jurisdiction to issue the process. And the latter action failed 
 because at the trial there was no proof that the plaintiif was a 
 creditor such as the law atithorizes to impeach such sales or 
 mortgages of property. And see Carpenter v. Town, Hill & 
 Denio, 72. 
 
 Where a sheriff is sued for seizing goods by virtue of an attach- 
 ment issued by a justice of the supreme court, under the pro- 
 visions of the Code, he may defend and justify the seizure on the 
 groimd that the sale to the plaintiff was fraudulent as against the 
 creditors who were plaintiffs in the attachment action. Hall v. 
 Stryher, 27 IST. Y. 596 ; reversing 8. C, 29 Barb. 105 ; and 9 Abb. 
 
100 CHATTEL MOETGAGES. 
 
 342. And see Kelly v. Lane, 28 How. 128. A creditor, by attach- 
 ing property in the possession of his debtor, acquires a specific 
 lien upon his interest, and is entitled, like a judgment creditor, 
 to impeach the colorable title of a fraudulent mortgagee. Foster 
 v. Mott, 34 IST. Y. 253 ; Cla-p'p v. Mott, id. 
 
 Where a sheriff has an execution against a mortgagor of chattels, 
 and he levies upon such chattels and sells them, the sale will 
 merely operate to transfer the mortgagor's equity of redemption of 
 the chattels to the purchaser, under such execution sale. Car- 
 penter V. Simmons, 28 How. 12. 
 
 There are several cases in which it has been declared in general 
 terms, that no one but a creditor who has a judgment and a lien 
 by a levy upon an execution issued thereon, could impeach the 
 validity of a mortgage, or a sale or assignment. Hastings v. Bel- 
 knap, 1 Denio, 191 ; Neustadt v. Joel, 2 Duer, 530 ; Reubens v. 
 Joel, 13 ]Sr. Y. 488 ; Crippen v. Hudson, id. 161 ; Peckham v. 
 Leary, 6 Duer, 495; Andrews v. Durant, 18 ]S". Y. 496; Tiffany 
 V. Warren, 37 Barb. 571. But, notwithstanding this general lan- 
 guage, it is clearly settled that an attachment is as valid a lien 
 as that of a judgment and execution, and the facts in the cases 
 cited did not call for any decision which is opposed to this view 
 of the question. An attachment issued in an action in the su- 
 preme court will reach choses in action and equitable interests of 
 the debtor which cannot be levied upon by an execution, whether 
 issued from a justice's court or the supreme court. But an at- 
 tachment issued by a justice of the peace has not the same force 
 and effect as to the nature of the property which may be taken 
 by it. On such an attachment the same personal property may be 
 taken that may be levied upon on an execution, but it will not 
 reach mere equitable interests of the debtor. If a mortgagor has 
 an interest in the mortgaged property, as when, by the terms of 
 the mortgage, he is entitled to retain the possession of the mort- 
 gaged property for a definite period, that interest may be taken 
 either by execution or by justice's attachment. That it may be 
 taken on execution is conclusively settled. Hull v. Camley, 11 
 ]Sr. Y. 501 ; Hull v. Garnley, 17 IST. Y. 202 ; Bailey v. Burton, 8 
 "Wend. 339 ; Goulct v. Asseler, 22 K Y. 225. 
 
 If the mortgage has become due, and the property forfeited at 
 law thereby, an execution against the mortgagee may be levied 
 Tipon such mortgaged property, which may be sold as the prop- 
 erty of the mortgagee. Ferguson v. Lee, 9 Wend. 258. 
 
 If an assignment of a contract is intended to operate as a 
 
CHATTEL MOKTGAGES: 91 
 
 mortgage, it is necessary to its validity, in respect to the property 
 sought to be covered by it, as against the creditors of the as- 
 signor, that it should be accompanied by an immediate delivery, 
 and be followed by an actual and continued change of possession, 
 or that it shall be filed as a chattel mortgage. Tyler v. Strang, 21 
 Barb. 198, 202. Actual notice to the previous creditors of the 
 assignor, of tbe claims made by the assignee, under such an as- 
 signment, is not equivalent to filing the assignment as a mortgage, 
 as against the creditors of such assignor. Ih. But the rule is 
 different in relation to subsequent purchasers and mortgagees, 
 who, in order to be protected, must take their conveyances in good 
 faith ; and there cannot be that good faith which the law requires 
 if the purchaser or mortgagee has actual knowledge of the exist- 
 ence of an antecedent mortgage. Farmers' Loan, &c., Co. v. 
 Ilendriclcson, 25 Barb. 484. The statute relative to chattel mort- 
 gages having provided that these instruments, unless filed in the 
 proper clerk's ofiice, shall be absolutely void as against the credi- 
 tors of the mortgagor, the mere knowledge, by a creditor, of the 
 existence of a chattel mortgage, executed by his debtor, which has 
 not been duly filed, will not preclude him from availing himself 
 of the objection that it is for that reason void. Ih. Notice to 
 a judgment creditor, or knowledge by him of the existence of an. 
 unfiled chattel mortgage, at the time of recovering his judgment 
 is no answer to his objection that such mortgage has not been filed, 
 and is therefore void as to him. Stevens v. Buffalo & New York 
 City R. R. Co., 31 Barb. 590. 
 
 In all eases in which the property of the judgment debtor has 
 been fraudulently sold or assigned, the creditor may have the 
 property so sold or assigned taken upon an execution in his favor, 
 if he was a creditor at the time of the malting of such fraudulent 
 sale or assignment. Williston v. Jones, 6 Diier, 504. But a credi- 
 tor who seeks to impeach a chattel mortgage upon the ground of 
 a continuance of the mortgaged property JB, the hands of the 
 mortgagor, is bound to show that he was a creditor during the 
 time that such possession continued. Ih. In the case last cited, 
 the mortgage was given on the 24th day of November, 1854, and 
 filed on the same or the next day. The mortgagee took posses- 
 sion of the property on the 2d day of December, 1854. On the 
 7th day of December, 1854, a creditor obtained a judgment aud 
 issued an execution thereon, which was levied upon the mort- 
 gaged property, which was subsequently sold on such execution. 
 The mortgagee sued the judgment creditor for taking the prop- 
 
92 CHATTEL MOETGAGES. 
 
 erty, and the defendant set up his judgment and execution for 
 the purpose of justifying as a creditor, etc., on the ground that 
 the mortgage was fraudulent and void as to creditors. The court 
 held that the facts showed that the defendant was not a creditor 
 during the time that the mortgagor continued in possession, be- 
 cause the mortgagee took actual possession on the 2d day of De- 
 cember, 1854, and the judgment and execution were not obtained 
 till the Yth day of the same month. So it is to be observed that 
 the case did not show for what demand the judgment was obtained, 
 nor that the debt existed at any time while the mortgagor remained 
 in possession, and, therefore, he did not show himself to be a 
 creditor who is authorized to impeach such transactions. Where 
 a chattel mortgage has been duly filed, the mere fact that the 
 mortgagor is permitted to remain in possession of the mortgaged 
 property, with the assent of the mortgagee, after forfeiture, does 
 not enable such mortgagor to transfer a good title to a third 
 person, in the absence of any authority to sell it. Dudley v. Haiu- 
 ley, 40 Barb. 397. Nor does such a transaction make the mort- 
 gagee guilty of that species of negligence or misconduct which 
 will afterwards estop him from asserting his title, as against a 
 third person, who voluntarily, but in ignorance of the true title 
 assist the mortgagor in a conversion of the property. Ih., and 
 the cases cited. 
 
 To render the interest of a mortgagor of chattels liable to sale 
 upon an execution issued against him, there must be an absolute 
 right of possession of the property for a certain or definite period, 
 which right must exist at the time when the levy is made; and 
 if the time is uncertain or contingent, it cannot be certain or 
 absolute; and if it is contingent and liable to be defeated at any 
 moment, it is not for a definite period. Farrell v. Hildreth, 38 
 Barb. 178. When there is a provision in a chattel mortgage 
 which allows the mortgagee, in case he shall feel insecure, to take 
 possession of the mortgaged property and sell it at a time previous 
 to that fixed for the payment of the debt, this will destroy the 
 mortgagor's implied right to retain the possession for a moment, 
 provided the mortgagee shall deem himself insecure, and this fact 
 renders him a mere tenant at sufferance. Ih. And in such a 
 case, if a sheriff, with notice of the mortgage, and after a demand 
 of the property by the mortgagee, proceeds to sell it on an execu- 
 tion against the mortgagor, he will render himself liable to an 
 action in favor of such mortgagee. Ih. 
 
CHATTEL MOETGAGES. 93 
 
 §, 7. Rights of Purchasers in Good Faith. 
 
 The right of a bona fide purchaser of goods to test the validity- 
 of a prior mortgage on the ground of continuance of possession 
 in the mortgagor, is one which is entirely personal to the pur- 
 chaser; and he cannot be obliged by the mortgagor to avail him- 
 self of such a defense. Accordingly, where one having mortgaged 
 certain goods, afterwards sold them, fraudulently concealing the 
 existence of the mortgage, and the purchaser voluntarily surren- 
 dered the goods to the mortgagee on his demanding them, it was 
 held, in an action by the purchaser against the mortgagor for 
 the fraud, that, though the purchaser might have successfully 
 contended against the mortgagee's claim by reason of the pos- 
 session remaining in the mortgagor, the omission to do so was no 
 defense in the action against the mortgagor. Bust v. Morse, 2 
 Hill, 655. 
 
 The statute does not require that hills of sale should be filed j 
 that section applies only to chattel mortgages, or instruments 
 which are intended to operate as such. But, if there is not a 
 proper reason shown why the possession was not changed, the 
 bill of sale will be void as to creditors, and hona fide subsequent 
 purchasers or mortgagors. Prentiss v. Slack, 1 Hill, 468. 
 
 The various statutes enacted from time to time, declaring un- 
 filed chattel mortgages void as against subsequent purchasers and 
 mortgagees in good faith, has been construed in analogy with the 
 rule that has prevailed in this State in regard to negotiable paper 
 and conveyances of real estate under the recording act. When the 
 act respecting the filing of chattel mortgages was passed, the term 
 hona fide purchaser had acquired a settled meaning, which did 
 not include a person whose purchase was on account of an existing 
 debt, and who parted with no property or right to obtain his con- 
 veyance. Van Heusen v. Badcliff, 17 IT. T. 580 ; Jones v. Ora- 
 ham, 77 N. Y. 628; Thompson v. Van VecUen, 27 K Y. 568; 
 Stevens v. Brennan, 79 IST. Y. 254; Weaver v. Barden, 49 jST. Y. 
 286 ; Doig v. Haverly, 92 Hun, 176 ; Button v. Bathbone, Sard & 
 Co., 126 K Y. 187; Harder v. Plass, 57 Hun, 540. A purchaser 
 of personal property, with notice of the existence of a mortgage 
 covering it, cannot avail himself of the facts that the mortgage was 
 unaccompanied by a delivery of the possession of the property, 
 and that the mortgage had not been filed in the proper office ; be- 
 cause a purchaser with notice cannot claim to be a purchaser in 
 good faith within the statute. Sanger v. Eastivood, 19 Wend. 514 ; 
 Hill V. Beehe, 13 1^^. Y. 556, 561; Gregory v. Thomas, 20 Wend. 
 
04 CHATTEL MOETGAGES. 
 
 17; Made v. Phelan, 92 X. Y. 20; Goodwin v. Bayerle, 18 Misc. 
 62. A person who accepts a chattel mortgage, knowing that it 
 was executed with intent to hinder, delay and defraud creditors, 
 but without knowledge that the mortgaged property had been pur- 
 chased by the mortgagor with intent not to pay for it, is not a 
 hona fide purchaser. Mayer v. Bloomingdale, 38 App. Div. 227. 
 And one who obtains the possession of personal property by con- 
 version, and afterwards acquires title thereto by the payment of 
 a judgment recorded against him for such conversion, is not a 
 purchaser within the meaning of the statute. The intent of the 
 law is to protect creditors and honest dealers with the property 
 against unknown liens, and not to guard wrong-doers. Marsden 
 V. Cornell, 62 IST. Y. 215. 
 
 It is subsequent purchasers in good faith that are protected by 
 the statute, and not such as obtain title by a purchase prior to the 
 conveyance in question. A bill of sale of personal property was 
 made and delivered the 15th day of August, 1836 ; but the prop- 
 erty sold was left in the possession of the vendor until after the 
 same property was mortgaged to a hona fide mortgagee, on the 
 24th day of August, 1836; but the mortgagee did not take posses- 
 sion of the property under his mortgage. The property remained 
 in the possession of the vendor and mortgagor until in October, 
 1836, when the purchaser, under the bill of sale, took it, and the 
 mortgagee brought an action against him for a conversion of the 
 property ; and it was held, that the mortgagee was to be regarded 
 as a subsequent purchaser, and if he took his mortgage in good 
 faith, he was entitled to a preference over the purchaser under 
 the bill of sale, because the mortgagee was not required to take 
 possession of the property, except as against subsequent pur- 
 chasers, or mortgagees ; and the purchase under the bill of sale 
 was prior to the mortgage. Bennett v. Earl, 21 Wend. 117. 
 
 A purchase of property, at an auction sale, made by the owner 
 of it, at his residence, is not necessarily fraudulent and void, as 
 against a subsequent bona fide purchaser of such property from 
 the same owner, merely because the first purchaser did not take 
 an immediate delivery of it, and retain a continued and actual 
 change of possession. The question, in such a case, is one of 
 actual intent. And if a jury find, upon sufficient evidence, that 
 the first sale and purchase were made in good faith, and without 
 any intent to hinder, delay or defraud the creditors of the ven- 
 dor, or those subsequently purchasi"na; from him, the verdict will 
 not be disturbed. Brown v. Wilmerding, 5 Duer, 220; Prentiss 
 
CHATTEL MORTGAGES. 95 
 
 V. Slack, 1 Hill, 468. If the property remains in the possession 
 of the vendor for a long time, as, for instance, for twenty-one 
 months, and no explanation is given, the transaction will be held 
 fraudulent as a matter of law, as against a judgment creditor. 
 Fonda v. Gross, 15 Wend. 628 ; Murray v. Burtis, 15 Wend. 212 ; 
 Stevens v. Fisher, 19 Wend. 181. 
 
 But whenever there is any legal evidence upon the question 
 of intent, it must be submitted to the jury as a question of fact, 
 to be decided on the evidence. Murray v. Burtis, 15 Wend. 212 ; 
 Prentiss v. Slack, 1 Hill, 46Y; Hanford v. Archer, 4 Hill, 271, 
 278 ; Thompson v. Blanchard, 4 IST. Y. 303, 306 ; Hall v. Tuttle, 
 8 Wend. 375. 
 
 § 8. Form and Bequisites of a Idortgage. 
 
 It has already been seen that the law does not prescribe any 
 particular form for a chattel mortgage. Ante, p. 63. 
 
 There must always be a consideration for a mortgage, even 
 when it is sealed, and as between the parties to it, unless the prop- 
 erty is actually delivered as a gift, because the seal is merely pre- 
 sumptive evidence of a consideration, which may be rebutted. 
 Ante^ p. 7. 
 
 And as against creditors, bona fide purchasers and mortgagees, 
 a legal consideration is always absolutely indispensable. 
 
 The consideration may be a past one, a present one, or one for 
 future advances. A valid mortgage may be given by a lessee to 
 secure against loss a person who has become surety for the pay- 
 ment of the rent reserved in the lease ; and if the surety is after- 
 wards compelled to pay the rent the mortgagor will thereupon 
 be divested of all legal property or interest in the chattels mort- 
 gaged. Swift V. Hart, 12 Barb. 530. 
 
 A chattel mortgage which is given to secure an existing debt 
 is a very common kind of mortgage, and it is valid as between 
 the parties, and as against creditors or bona fide purchasers, or 
 mortgagees, if it is properly filed, etc. But where a party takes 
 a mortgage upon personal property, to secure a pre-existing debt, 
 without parting with any new consideration, or relinquishing any 
 security, or incurring any liability upon the faith of the mort- 
 gage, he will not be considered a bona fide mortgagee, as against 
 the true ovmer of the property, from whom the mortgagor had 
 fraudulently obtained the goods. Woodbum v. Chamberlin, 17 
 Barb. 446. But a bona fide purchaser or mortgagee of goods, for 
 a valuable consideration, from a person in possession, who ob- 
 
96 CHATTEL MOETGAGES. 
 
 tained them from the owner by false pretenses, amounting, under 
 our statute, to a felony, will hold them against the first vendor; 
 provided, such vendor voluntarily parted with the possession, and 
 intended to part with the title. Malcom v. Loveridge, 13 Barb. 
 372 ; Keyset v. Harheck, 3 Duer, 373 ; Caldwell v. Bartlett, id. 
 341; Kingsford v. Merry, 11 Exch. 577; Fassett v. Smith, 23 
 ]Sr. Y. 252 ; Benedict v. Williams, 48 Hun, 123. 
 
 A mortgage to secure future advances is always valid between 
 the parties to it. And a mortgage which is given to secure future 
 advances is valid as against subsequent purchasers or mortgagees 
 who have notice of the object or purpose of the prior mortgage. 
 Truscott V. King, 6 IST. Y. 147, 157; Brown v. Kiefer, 71 N. Y. 
 610. 
 
 Where a mortgage upon chattels is given to secure a debt 
 actually due to the mortgagor, the fact that it is intended also to 
 secure future advances upon sales by him to the mortgagor upon 
 credit, will not render it void ; but it is valid to the extent of any 
 advances so made in good faith, before a creditor or other third 
 party acquires a subsequent title to, or lien upon, the goods. 
 Carpenter v. Blote, 1 E. D. Smith, 491 ; Fairbanks v. Bloomfield, 
 5 Duer, 434; Wescott v. Gunn, 4 Duer, 107. 
 
 Where a chattel mortgage is given to secure an existing indebted- 
 ness, and also to secure future advances, and these facts appear 
 on the face of the mortgage, it is not important that the sum 
 stated as the consideration should agree with the amotmt of the 
 indebtedness existing at the time it was given; and, though the 
 sum stated as the consideration is double the amount of such in- 
 debtedness, this fact will not render the mortgage fraudulent as a 
 matter of law, as it contains a notice to other creditors that the 
 mortgage will stand as a security for whatever amount of in- 
 debtedness may be incurred under such mortgage. Miller v. Lock- 
 wood, 32 ISr. Y. 293. The rule is the same in relation to mort- 
 gages of real estate. Robinson v. Williams, 22 'N. Y. 380. 
 
 Whether the mortgage should show on its face that it was 
 intended to secure future advances, or whether it may be by a 
 verbal agTcement, is a question upon which there is a conflict in 
 the authorities. But if such an agreement is not contained in 
 the mortgage, the filing of the mortgage would not inform a sub- 
 sequent creditor, or purchaser, or mortgagee, of the extent of the 
 lien of the mortgage. And, as against such persons who have 
 acted in good faith, and without notice of the intended lien for 
 future advances, they would clearly be protected, in preference 
 to the prior mortgagee. 
 
CHATTEL MORTGAGES. 97 
 
 The proper practice is, to express upon the face of the mort- 
 gage the entire agreement of the parties in relation to the extent 
 of the lien intended. Divver v. McLaughlin, 2 Wend. 596 ; Wes- 
 cott V. Gunn, 4 Duer, 107; Monnot v. Ihert, 33 Barb. 24, 27, 
 28, 29. 
 
 When the sum intended to be secured as a future advance, has 
 been once advanced and again repaid, the mortgage will not be 
 valid for other advances, as against creditors or subsequent pur- 
 chasers or mortgagees. Monnot v. Ihert, 33 Barb. 24; Truscott 
 V. King, 6 N. Y. 147, 157. 
 
 Where no time of payment is expressed in a chattel mortgage, 
 it is payable immediately, and no demand of payment is neces- 
 sary before proceeding upon it. Howland v. Willett, 3 Sandf. 
 607 ; Cornell v. Moulton, 3 Denio, 12. 
 
 A chattel mortgage payable one day after date is not payable on 
 demand so as to require demand before suit. Brochman v. Buell, 
 30 St. Eep. 856. And no demand is necessary before foreclosing 
 a mortgage absolute in its terms. Budweiser Brewing Co. v. 
 Capparelli, 16 Misc. 502. 
 
 A mortgage which is made payable at a time anterior to its 
 date, fixes an impossible time of payment, and, therefore it is due 
 immediately; and, as between the parties, oral evidence is inad- 
 missible to vary its operation. Fuller v. AcJcer, 1 Hill, 473. 
 
 Where a mortgage is payable on demand, it is necessary to 
 make a demand before there will be a forfeiture of the mortgaged 
 property. In no case does the law dispense with a demand, where 
 a forfeiture will be incurred, or a right lost, upon an agreement 
 like the one in question. Until a demand is made, the mortgagor 
 has a right to redeem or discharge the mortgage by payment. 
 Ely V. Camly, 19 K Y. 496, 498; Livor v. Orser, 5 Duer, 501; 
 Newsam v. Finch. 25 Barb. 175; Carpenter v. Town, Hill & 
 Denio, 72 ; Van Hassell v. Borden, 1 Hilt. 128 ; Hogeboom v. 
 Hall, 24 Wend. 146. This demand relates to a transaction be- 
 tween the parties, or one who has obtained the rights of the 
 mortgagor as a ptirchaser or a mortgagee ; but as against a wrong- 
 doer, who takes the property from the mortgagor, no demand is 
 necessary before the mortgagee has a right of action against such 
 wrongdoer. But if the mortgagor has absconded, no demand need 
 be made, and the mortgagee may take the property without de- 
 mand. Mattison v. Baucus, 1 N". Y. 295. 
 
 When the articles mortgaged are very numerous, it is not neces- 
 sary to describe each article. A mortgage of all the property of 
 7 
 
98 CHATTEL MORTGAGES. 
 
 a particular description in a certain store is sufficient. Gardner 
 V. McEwen, 19 JST. Y. 123, 125. So, a mortgage of all the furni- 
 ture, goods and chattels, upon certain described premises is 
 enough. Yan Heusen v. Radcliff, 17 N. Y. 580. So, a descrip- 
 tion in a mortgage that includes all the ashes then in the ashery 
 of the mortgagor, is sufficient withoiit saying how many bushels. 
 Dunning v. Stearns, 9 Barb. 630. But when the articles are not 
 very numerous it is best to describe them brieily in the mortgage ; 
 or in a separate schedule when they are too numerous to be con- 
 veniently inserted in the body of the mortgage. A careful mort- 
 gagee will always see that the property mortgaged to him is so 
 described that his title to the property claimed cannot be well 
 disputed on account of a want of identification. A definite de- 
 scription is important, too, in relation to filing chattel mortgages. 
 The object of filing is to give notice to creditors and bona fide 
 subsequent purchasers, or mortgagees, that certain property is 
 already mortgaged; and if the description in the mortgage is so 
 vague as not to give fiill information as to the particular property 
 mortgaged, one great object of filing mortgages will be defeated. 
 Dunning v. Stearns, 9 Barb. 633. 
 
 Where the articles mortgaged by a chattel mortgage describes 
 them as " all the dry goods, boots and shoes, millinery goods, and 
 gentlemen's furnishing goods and stock in trade, then in the store 
 occupied by M. & D.," the mortgagors, this description, although 
 general, may be rendered sufficiently definite by evidence showing 
 what goods there were in the store at the time of executing the 
 mortgage and it will convey all goods which answer the descrip- 
 tion. ConMing v. Shelleij, 28 IST. Y. 360 
 
 When a mortgage refers to a schedule which is annexed to it, 
 the schedule forms a part of the mortgage. Edgell v. Hart, 9 
 ]^. Y. 213, 216. And a schedule, if annexed to the mortgage, 
 will form a part of the instrument, though no reference is made 
 to the schedule in the mortgage itself. Roberts v. Chenango Co. 
 Mut. Ins. Co., 3 Hill, 501 ; Murdoch v. Chenango, &c., Ins. Co., 
 2 K Y. 210. 
 
 The mortgage and the schedule must be read together, and the 
 general words of the mortgage are to be limited to the articles 
 named in the schedule. Broadhead v. Smith, 55 Hun, 499. 
 
 When a chattel mortgage is given upon the goods and chattels 
 in a certain described building, or* upon certain premises, " an 
 inventory whereof is to be made and annexed," the mortgage 
 will be valid as to the property in the building, or on the premises. 
 
CHATTEL MORTGAGES. 99 
 
 at the time of making the mortgage, although no schedule or in- 
 ventory is annexed. Van Heusen v. Radcliff, 17 N. Y. 580. 
 
 Where there was a provision in a chattel mortgage, that the 
 mortgagor should remain in possession until default in payment 
 unless he or some other person should attempt to sell, assign, 
 remove or otherwise dispose of the property, it was held that the 
 seizure of the property before default on a distress warrant for 
 rent due from the mortgagor, entitled the mortgagee to the imme- 
 diate possession, and that after a demand and refusal replevin 
 would lie against the bailiff for the wrongful detention. Conkey 
 V. Eart, 14 E". Y. 22. 
 
 So, when a mortgage of personal property, given to secure pur- 
 chase-money, contains a clause that the property shall remain in 
 the possession of the mortgagor until default in payment of the 
 purchase-money; but that, on the happening of such default, or 
 in case the mortgagor attempts to remove or dispose of the prop- 
 erty, the mortgagee shall have the right to take possession of, and 
 sell it, the mortgagee is authorized, iipon the mortgagor's removing 
 the property from the county where the parties reside, to bring 
 replevin to obtain possession thereof, although the time of pay- 
 ment of the mortgage moneys has not yet arrived. Russell v. 
 Butterfield, 21 Wend. 300. 
 
 It Avas expressly provided in a chattel mortgage that, until 
 default in payment of the debt, the mortgagor, 'N., should have 
 the possession of the property, unless F., the mortgagee, should 
 sooner demand the same. F. took possession of the property, with- 
 out the knowledge or consent of IST., before any default had oc- 
 curred, and without any demand of possession being made; and 
 it was held that an action would lie by IST., the mortgagor, against 
 F., the mortgagee, to recover the possession of the mortgaged prop- 
 erty. Newsam v. Finch, 25 Barb. 175. 
 
 P. gave a chattel mortgage to C. to secure the payment of two 
 promissory notes, one past due, and the other not due, retaining 
 possession of the goods mortgaged. A condition of the mortgage 
 was that, if P. should pay, according to the terms of the notes, 
 whenever payment on said notes should be demanded, the mort- 
 gage was to be void ; but if default should be made in the payment 
 at the time above limited it should be lawful for the mortgagee to 
 take possession, etc. T. attached the property while in the posses- 
 sion of the mortgagor. The mortgagee, who had never demanded 
 payment of the notes, brought an action of replevin against T. for 
 a wrongful taking of the mortgaged property, but it was held that 
 
100 CHATTEL MOETGAGES. 
 
 the action could not be maintained for the reason that, although 
 one of the notes was due, the mortgage showed that the parties 
 contemplated a further extension of credit ; and that the plaintifE 
 was not aided by a clause in the mortgage that, if the mortgagor 
 sold or, in any way, disposed of the goods, the mortgagee might 
 take possession of them and retain them until default in payment, 
 as the attaching of the goods by T., without any connivance on the 
 part of the mortgagor, was not a sale or disposal of them within 
 that clause. Carpenter v. Town, Hill & Denio, 72. 
 
 The holder of a mortgage upon personal property, payable on 
 demand, may maintain an action against a person wrongfully 
 taking the property and disposing thereof, without proving a de- 
 mand of the debt due on the mortgage. Brown v. Cook, 3 E. D. 
 Smith, 120 ; Rowland v. Willett, 3 Sandf. 607 ; Mattison v. Bau- 
 cus, 1 jST. Y. 295. The interest of a mortgagor of personal prop- 
 erty, even before forfeiture, where he has not the right of posses- 
 sion for a definite period, is but a right of redemption merely, 
 which is not the subject of levy and sale upon execution. Mat- 
 tison V. Baucus, 1 X. Y. 295. 
 
 The refiling of a mortgage, by the mortgagee, whether before 
 or after a default, does not operate as an extension of credit, nor 
 does it give the mortgagor any additional right to the possession. 
 Fuller V. Acher, 1 Hill, 473. 
 
 The filing of the statement in the to^^Ti clerk's office, by way 
 of a renewal of a chattel mortgage, as required by the statute, is 
 not an extension of credit ; and will not prevent the mortgagee 
 from insisting on a forfeiture. Dane v. Mallory, 16 Barb. 46. 
 
 When a chattel mortgage is once fully paid, the lien of the 
 mortgage is at an end. And even after a forfeiture of the mort- 
 gage, so that the title of the mortgage becomes absolute at law, 
 yet, if a tender of the whole mortgage money, with interest, etc., 
 is made, and it is accepted by the mortgagee, the forfeiture will 
 be waived, and the title to the property be reinvested in the mort- 
 gagor. Charter v. Stevens, 3 Denio, 33 ; Patchin v. Pierce, 12 
 Wend. 61. If the mortgagee refuses to receive the money, he can 
 be compelled, by suit, to accept it and restore the property. 
 Porter v. Parmley, 52 IST. Y. 185. 
 
 A tender and acceptance of a part of the money after forfeit- 
 ure will not reinvest the mortgagor's title to the property. 
 Patchin v. Pierce, 12 Wend. 61. 
 
 Where a mortgagor, after the delivery of the mortgage, gives 
 his promissory note for the debt, the acceptance of such notes 
 
CHATTEL MOETGAGES. 101 
 
 by the mortgagee is not a waiver of the mortgage security. A 
 creditor has a right to take as many securities as his debtor is 
 willing to give. M^escott v. Gunn, 4 Duer, 107 ; Hill v. Beehe, 13 
 ]Sr. Y. 556. Nor is a chattel mortgage extinguished by a second 
 mortgage on the same property to secure the debt mentioned in 
 the first one. Hill v. Beebe, 13 K Y. 556. 
 
 And where the first mortgage was given to secure a debt evi- 
 denced by the note of the mortgagor, and after default the note 
 was surrendered and a new note given for its amount and some 
 additional indebtedness, and a second mortgage was executed to 
 secure the amoxmt, it was held that the first mortgage was not 
 extinguished. Hill v. Beebe, 13 K Y. 556; Gregory v. Thomas, 
 20 Wend. 17. A judgment confessed by the mortgagor to the 
 mortgagee, for the same debt secured by a personal mortgage, 
 does not merge or extinguish the mortgage, where, by agreement, 
 the judgment is taken as collateral merely. Butler v. Miller, 1 
 X. Y. 496. 
 
 A chattel mortgage given to secure the payment of a note, re- 
 mains as security for notes given in renewal of the original note. 
 Commercial Bank v. Davy, 81 Hun, 200. 
 
 Although it is well settled that a chattel mortgage may be given 
 to secure a mortgagee for future advances to be made to, and re- 
 sponsibilities incurred for the benefit of the mortgagor, yet where 
 a mortgage is given by a partnership for that purpose, it cannot 
 be made effectual to protect advances made to, or liabilities in- 
 ciirred for, their successors, after a dissolution of the firm. Mon- 
 not V. Ihert, 33 Barb. 24. If the debts and liabilities of the mort- 
 gagors, or the balance of aecoimt against them, which the mort- 
 gage was given to secure, are paid at any time, that satisfies and 
 extinguishes the mortgage, and the security cannot receive any 
 fresh sustenance from dealings between the mortgagee and the firm 
 which succeeds the mortgagors. Ih. 
 
 Where a chattel mortgage is given to secure a surety and the 
 indorser of a note made by the mortgagor, and such note, after 
 being protested for non-payment, is paid otit of the proceeds of a 
 new note, made by the mortgagor and indorsed by the mortgagees 
 for that purpose, the mortgage is not discharged by the payment 
 of the original note, but continues in force as a security to the mort- 
 gagees for the amount of the second note ; and in such a case, it is 
 proper to show that the payment of the original note with the pro- 
 ceeds of the second one, was not designed to extinguish the mort- 
 gage. Chapman v. Jenkins, 31 Barb. 164. 
 
102 CHATTEL MOKTGAGES. 
 
 In an action upon a sealed note which was given for the pur- 
 chase price of a horse, the defendant set up in the answer, that 
 upon the sale of the horse, the vendor took a mortgage upon it, and 
 that when the mortgage became forfeited for non-payment when 
 due, the vendor took possession of it, and that he might have dis- 
 posed of it and out of the avails retained the amount due ; it was 
 held, on demurrer to this answer, that it was a good defense to the 
 action. Case v. Boughton, 11 Wend. 106. Taking possession of 
 the chattels, after a failure to perform the condition of the mort- 
 gage, is a satisfaction of the debt, provided the chattels are of 
 sufficient value for that purpose; if they are taken possession of, 
 and upon a fair sale, less than the amount of the debt is realized, 
 the balance may be demanded of the mortgagor. Ih. But this is 
 not so in all cases. 
 
 Upon the forfeiture of a chattel mortgage, the title of the 
 mortgagor is gone at law; but, if commenced within a 
 reasonable time, and before a sale of the property upon the mort- 
 gage, an action may be maintained in equity for the redemption 
 of the property. Patchin v. Pierce, 12 Wend. 61 ; Charter v. 
 Stevens, 3 Denio, 33 ; Pratt v. Stiles, 9 Abb. 150. But a justice 
 has no jurisdiction of such an action ; and, therefore, if the value 
 of the property mortgaged does not exceed fifty dollars, such 
 a remedy would not be very valuable. If the mortgagor 
 should convert the property to his OAvn use, or if he should refuse 
 to deliver it on demand, and the mortgagee should sue for a con- 
 version of the property, the amount of the mortgagee's recovery 
 may be limited to the amount due on his mortgage. Himman v. 
 Judson, 13 Barb. 628 ; Parish v. Wheeler, 22 E". Y. 494. 
 
 It has been seen, a^ite, p. 63, that parol evidence may be given 
 for the purpose of showing that an absolute bill of sale was in- 
 tended as a mortgage. But when it is once shown that the instru- 
 ment is a mortgage, it is no more liable to be varied or contra- 
 dicted by parol evidence than any other written instrument. And, 
 therefore, where a mortgage was dated the 11th day of March, 
 1837, and payable by " the tenth day of March, eighteen hundred 
 and thiHy," which was an impossible time, and, therefore, in legal 
 effect, payable immediately, it was held, that as between the par- 
 ties, parol evidence was not admissible to show that the mortgage 
 was intended to be made payable on the tenth day of March, 1838 ; 
 and that the word " eight " was inadvertently omitted. Fuller v. 
 Acher, 1 Hill, 473. It would be otherwise as between the mort- 
 gagee and a judgment creditor assailing the mortgage as fraudii- 
 
CHATTEL MORTGAGES. 103 
 
 lent. The mortgagee for the purpose of repelling the fraud, may- 
 show the day of payment intended, and that the error occurred 
 through the inadvertence of the draftsman. lb. 
 
 Parol evidence that the sum specified in the condition of the 
 mortgage exceeds the amount of the debt justly due to the mort- 
 gagee, is inadmissible ; if a larger sum than is really due has been 
 inserted, the mistake can be corrected only in equity. Patchin v. 
 Pierce, 12 Wend. 61. 
 
 An assignment of a mortgage, absolute in its terms, cannot be 
 contradicted by parol evidence showing that it was given and 
 executed with the intention of merely discharging the mortgage 
 from the lien which the assignors had on the property mentioned 
 therein. Tyler v. Taylor, 8 Barb. 585. The principle authorizing 
 strangers to give parol evidence for the purpose of varying the 
 terms of an instrument, cannot be applied to such a case, without 
 also offering to show that the assignment was, by fraud, mads to 
 read differently from the actual agreement between the parties, to 
 accomplish some covert purpose. lb. 
 
 Parol proof of extrinsic circumstances may be given to apply 
 a description to its .subject-matter ; and if it appears that the de- 
 scription is in some respects erroneous, those facts may be rejected, 
 and what is left, if sufficient of itself, alone be regarded. Dodge 
 V. Potter, 18 Barb. 193. A chattel mortgage recited an indebted- 
 ness of the mortgagor to the mortgagee in the sum of $2,809.41, 
 the amount of two promissory notes made by the mortgagor and 
 indorsed by the mortgagee, which the latter had taken up and paid, 
 and for the indorsement of another note to K. for $1,000 ; it was 
 held that parol evidence might be received to show that another 
 note, for $600, made by the mortgagor, was one of the notes re- 
 _feEE©d' to in, and secured by the mortgage, although such note was 
 not indorsed by the mortgagee; it appearing that the note was 
 payable to the order of one B., who indorsed the sam.e, and that it 
 was discounted by the mortgagee. lb. It was also held, that a 
 paper, upon which a computation of the amount of these notes was 
 made, at the time of executing the mortgage, was one of the ex- 
 trinsic circumstances admissible upon the question of identity. lb. 
 
 When a chattel mortgage described, among other property mort- 
 gaged, " one four-horse post coach called ' Steuben,' and another 
 called ' Mayday,' at H., employed in staging," it appearing that 
 the mortgagor, at the time the mortgage was executed, owned and 
 possessed only two four-horse post coaches, one called " Conhoc- 
 ton," and the other called " Mayday," and that there was no coach 
 
lO-t CHATTEL MORTGAGES. 
 
 called " Steuben " at H., or employed in staging there, it was held 
 that parol evidence was admissible, to show that the coach named 
 " Conhocton " was intended to be included in the mortgage, in- 
 stead of the " Steuben." Dodge v. Potter, 18 Barb. 194. 
 
 § 9. Validity of Chattel Mortgages. 
 
 There is seldom any question between the parties to a mortgage as 
 to its validity; because the cases are not very numerous in which 
 the transaction between the parties is such that either of them 
 can question its validity. If the consideration is absolutely il- 
 legal at common law, or if it is made illegal by statute, as in 
 cases of usury, the mortgagor may raise the question of the valid- 
 ity of a mortgage which is founded upon such a consideration. 
 
 A mortgage may have been executed for the purpose of hinder- 
 ing, delaying or defrauding creditors, and it will be void as to 
 them, yet it will be binding upon the parties. Jachson v. Garnsey, 
 16 Johns. 189 ; Jachson v. Caldwelt, 1 Cow. 623. 
 
 It is provided by the general laws of this State that "An ex- 
 ecutor, administrator, receiver, assignee, or trustee, may, for the 
 benefit of creditors or others interested in personal property held 
 in trust, disaffirm, treat as void and resist any act done, or trans- 
 fer or agreement made in fraud of the rights of any creditor, 
 including himself, interested in such estate or property, and a 
 person who fraudulently receives, takes or in any manner inter- 
 feres with the personal property of a deceased person, or an in- 
 solvent corporation, association, partnership or individual is liable 
 to such executor, administrator, receiver or trustee for the same 
 or the value thereof, and for all damages caused by such act to 
 the trust estate. A creditor of a deceased insolvent debtor having a 
 claim against the estate of such debtor, exceeding in amount the sum 
 of one hundred dollars, may, without obtaining a judgment on such 
 claim, in like manner, for the benefit of himself and other 
 creditors interested in said estate, disafiirm, treat a& void, and 
 resist any act done or conveyance, transfer or agreement made 
 in fraud of creditors or maintain an action to set aside such 
 act, conveyance, transfer or agreement. Such claim if disputed 
 may be established in such action. The judgment in such action 
 may provide for the sale of the property involved, when a con- 
 veyance or transfer thereof is set aside, and that the proceeds 
 thereof be brought into court or paid into the proper surrogate's 
 court to be administered according to law." General Laws, ch. 
 47, § 7. The above act is substantially the same as a prior 
 
CHATTEL MORTGAGES. 105 
 
 act passed in 1858. See Laws of 1858, ch. 314, § 1, as amended 
 by Laws of 1894, ch. 740, § 1. It was held that the statute of 
 1858 Avas independent of the act requiring the filing of chattel 
 mortgages, and that an assignee for the benefit of creditors could 
 not imder- the act of 1858 take advantage of the failure to file a 
 chattel mortgage. Ball v. Shafter, 26 Hun, 353 ; Niagara County 
 Nat. Banh v. Lord, 33 Hun, 557; Crisfield v. Bogardus, 18 Abb. 
 N. C. 334; Dorthy v. Servis, 46 Hun, 628; Sheldon v. WicJc- 
 ham, 161 IST. Y. 500. But he may assail the validity of the mort- 
 gage upon other grounds. 
 
 Mortgages will be fratidulent as to creditors whenever the mort- 
 gage was made with intent to hinder, delay or defraud them of 
 their rights. General Laws, ch. 47, § 24; Laws of 1897, ch. 417, 
 § 24. And whenever a mortgage is made for that purpose, it 
 will be void as against creditors, no matter how regular the pro- 
 ceedings may appear to be upon their face. Eor, if the mort- 
 gagee should advance the value of the mortgaged property, in 
 money, and then take a mortgage upon such property for the 
 purpose of covering it up from creditors, it would still be a 
 fraudulent transaction, and void as to creditors. And the filing 
 of such a mortgage would not add anything to its validity, be- 
 cause it is the nature of the transaction which renders it void,, 
 and filing the mortgage would not change its original character. 
 
 But, besides that, the statute does not require mortgages to be 
 filed for the purpose of making them valid ; it is done merely for 
 the purpose of giving notice to all persons interested that a valid 
 mortgage exists. 
 
 And, for the purpose of protecting creditors, subsequent bona 
 fide purchasers, or mortgagees, the statute requires that a mort- 
 gagee shall either duly file his mortgage, or that he shall take an 
 actual, and retain a continued, possession of the mortgaged prop- 
 erty. Laws of 1897, ch. 418, § 90. It is not necessary to dis- 
 cuss at length in this connection the fraudulent character of trans- 
 fers of personal property, not constituting a mortgage nor in- 
 tended to operate as a mortgage, when not accompanied by an 
 immediate delivery followed by an actual and continued change 
 of possession. The statute declaring the effect of such transfers 
 will be briefly noticed. The statute provides as follows : " Every 
 sale of goods and chattels in the possession or under the control 
 of the vendor, and every assignment of goods and chattels by way 
 of security or on any condition, but not constituting a mortgage 
 nor intended to operate as a mortgage, unless accompanied by an 
 
106 CHATTEL MOETGAGES. 
 
 immediate delivery followed by actual. and continued change of 
 possession, is presumed to be fraudulent and void as against all 
 persons who are creditors of the vendor or person making the 
 sale or assignment, including all persons who are creditors at 
 any time while such goods or chattels remain in his possession 
 or under his control, or subsequent purchasers of such goods and 
 chattels in good faith; and is conclusive evidence of such fraud, 
 unless it appears on the part of the person claiming under the 
 sale or assignment that it was made in good faith and without 
 intent to defraud such creditors or purchasers." Laws of 1897, 
 ch. 417, § 25 ; General Laws, eh. 47, § 25. This section is .a 
 substitute for the sections of the Revised Statutes, now repealed, 
 which provided as follows: 
 
 " Every sale made by a vendor, of goods and chattels in his 
 possession or under his control, and every assignment of goods 
 and chattels by way of mortgage or security, or upon any condi- 
 tion whatever, unless the same be accompanied by an immediate 
 delivery, and be followed by an actual and continued change of 
 possession of the things sold, mortgaged or assigned, shall be pre- 
 sumed to be fraudulent and void as against the creditors of the 
 vendor, or the creditors of the person making such assignment, 
 or subsequent purchasers in good faith, and shall be conclusive 
 evidence of fraud, unless it shall be made to appear on the part 
 of the persons claiming under such sale or assignment, that the 
 same was made in good faith and without any intent to defraud 
 such creditors or purchasers." 3 E. S., 222, § 5, 5th ed. " The 
 term ' creditors ' as used in the last section, shall be construed to 
 include all persons who shall be creditors of the vendor or assignor 
 at any time whilst such goods and chattels shall remain in his 
 possession or under his control." Id., § 6. 
 
 It will be noticed that the repealed section included in its pro- 
 visions instruments operating by way of mortgage, while the pre- 
 sent section excludes from its provisions instruments constituting 
 a mortgage or intended to operate as a mortgage. 
 
 The statute requiring the filing of chattel mortgages is to be 
 found in another chapter of the General Laws and provides as 
 follows : 
 
 " Every mortgage or conveyance intended to operate as a mort- 
 gage of goods and chattels, or of any canal boat, steam tug, scow 
 or other craft, or the appurtenances thereto, navigating the canals 
 of the State, which is not accompanied by an immediate delivery 
 and followed by an actual and continued possession of the things 
 
CHATTEL MORTGAGES. lOT 
 
 mortgaged, is absolutely void as against the creditors of the mort- 
 gagor, and as against subsequent purchasers and mortgagees in 
 good faith, unless the mortgage, or a true copy thereof, is filed as 
 directed in this article." Laws of 1897, ch. 418, § 90 ; General 
 Laws, ch. 49, § 90. 
 
 It will be observed that under the statute relating to the filing 
 of chattel mortgages, such an instrmuent may be void without 
 being tainted with any inherent vice. Where there has been no 
 delivery followed by an actual and continued possession of the 
 things mortgaged it is declared to be void simply because it is not 
 filed. See Stephens v. Meriden Britannia Co., 160 N. Y. 178; 
 Stephens v. Perrine, 143 'E. Y. 476 ; Jones v. Graham, 77 N. Y. 
 628 ; Sullivan v. Miller, 106 If. Y. 635. On the other hand, a 
 chattel mortgage, though filed in strict compliance with the statute, 
 may be actually fraudulent and therefore void. Chemung Canal 
 Bank v. Payne, 22 App. Div. 353 ; 164 ]S". Y. 252. It. is evident 
 from a reading of the statute that a chattel mortgage may be valid 
 though unfiled where there has been an immediate delivery of the 
 mortgaged chattels followed by actual and continued possession, 
 or where such delivery and possession is wanting if the mortgage 
 is pro'perly filed. 
 
 •It was held, under the former statutes, that the act of 1833, 
 regarding the filing of chattel mortgages did not repeal the statute 
 concerning fraudulent conveyances; and that it only added an- 
 other to the grounds on which a mortgage of chattels will be 
 declared void; that the object of the act was to create an addi- 
 tional ofiicial guard against fraud or collusion; that the filing of 
 the mortgage does not rebut the presumption of fraud arising from 
 the non-delivery of the property, or excuse the party who claims 
 under it from affirmatively showing, where there is no change of 
 possession, that the mortgage was made in good faith and without 
 any intent to defraud creditors or purchasers ; and that the only 
 effect of the act is to require the party, in addition to such proof, 
 to show that the mortgage, or a copy thereof, has been filed. Otis 
 V. Sill, 8 Barb. 102. See Brown v. Wilmerding, 5 Duer, 220. 
 It was also held that iipon the question of good faith in the 
 purchaser or the mortgagee there is no difference as to the evidence 
 required, whether the case relates to a bill of sale or a chattel 
 mortgage. Doane v. Eddy, 16 Wend. 523 ; Randall v. Cooh, 17 
 Wend. 53 ; Prentiss v. Slack, 1 Hill, 467. While both chattel 
 mort^ao-es and bills of sale were embraced in the same section 
 relating to fraudulent conveyances, the above cases, and the 
 
108 CHATTEL MOETGAGES. 
 
 many others of a similar tenor were undoubtedly properly de- 
 cided ; but it is extremely doubtful if such decisions would have 
 been rendered imder the existing statutes. 
 
 A few of the cases under the former statutes will be given, 
 illustrating the holdings under it. 
 
 The language of the statute is that the delivery must be imme- 
 diate. But the fact that delivery was delayed a short time, does 
 not defeat the force of it. Brown v. Piatt, 8 Bosw. 324 ; Niagara 
 County Nat. Bank v. Lord, 33 Hun, 557, 563. And see Prentiss 
 V. Slack, 1 Hill, 467. 
 
 The statute requires an actual change of possession of the prop- 
 erty. Where the change of possession is not actual and physical, 
 but merely legal or constructive, whatever the understanding be- 
 tween the parties, and whatever their good faith, it is unavailing. 
 The possession by the mortgagee must be actual, open and public. 
 Steele v. Benham, 84 jST. Y. 634 ; Topping v. Lynch, 2 Bob. 484 ; 
 Crandall v. Brown, 18 Hun, 461 ; Hale v. Siueet, 40 N. Y. 97 ; 
 Tedesco v. Oppenheimer, 15 Misc. 522. Where a mortgage of 
 personal property was not filed pursuant to 3 E. S. 222, § 9, 5th 
 ed., and the mortgagor was suffered to remain in possession of 
 the property for the purpose of managing it as the agent of the 
 mortgagee ; it was held, that this was not an actual change of 
 possession within the meaning of the above statute, and that, 
 therefore, the mortgage was absolutely void as against creditors. 
 Camp V. Camp, 2 Hill, 628. In this case the mortgagee neither 
 filed the mortgage, nor attempted to explain why there was not a 
 change of possession. The court said, page 629, "Actual change 
 of possession imports, at least, something more than a mere legal 
 or fictitious change to be worked by the operation of the mortgage 
 itself. Upon any other construction the statute means nothing. 
 Nor can the parties agree that the mortgagor shall continue in 
 actual possession, and call this the possession of the mortgagee." 
 Otis V. Sill, 8 Barb. 103, 122, 123, is to the same effect. 
 
 Where the purchaser of a stock of goods in a retail store exe- 
 cuted to the vendor a mortgage upon the entire stock, by schedule, 
 the mortgage including also in its terms all articles of a like 
 nature which might be in the store at the time of default in the 
 condition, the mortgagor to continue in possession, but being for- 
 bidden by a clause in the mortgage from selling on credit, it was 
 held, that the mortgage was in its terms fraudulent as against 
 creditors, and that there was no question to be submitted to a 
 jury in regard to it. Edgell v. Hart, 9 N. Y. 213. 
 
CHATTEL MOETGAGES. 109 
 
 Where the mortgagor of a stock of goods is allowed by the 
 mortgagee to retain and sell them at retail, at his discretion and 
 for his o-^vn benefit, the mortgage is fraudulent as against credi- 
 tors. Ford V. Williams, 13 ]Sr. Y. 577. It has been seen that a 
 mortgage may contain a clause authorizing the mortgagor to re- 
 tain possession of the mortgaged property until a default in the 
 condition of the mortgage. Ante, p. 72. 
 
 In a mortgage of goods and chattels, where the things mort- 
 gaged are in the actual possession of a third person, who claims 
 to own them as a purchaser from the mortgagor, it is not neces- 
 sary to the validity of the mortgage, that there should be an actual 
 and immediate delivery of the property, nor that it should be 
 delivered at all, because the property is not in the actual posses- 
 sion nor under the control of the mortgagor, and it is in those 
 cases only that such delivery, etc., is required. Nash v. Ely, 19 
 Wend. 523 ; Goodwin v. Kelly, 42 Barb. 194. And see Clute v. 
 Pitch, 25 Barb. 429. The present statute contains no such ex- 
 ception. Laws of 1897, ch. 418, § 90 ; General Laws, ch. 49, 
 § 90. 
 
 When no evidence whatever is introduced in relation to the 
 good faith of the mortgagee, etc., nor to show that there was no 
 intent to defraud creditors, the presumption of fraud is made 
 conclusive by the statute, and there is no question to submit to 
 the jury. Murray v. Burtis, 15 Wend. 212 ; Steveiis v. Fisher, 19 
 Wend. 181 ; Allen v. Cowan, 28 Barb. 100 ; Tifft v. Barton, 4 
 Denio, 171 ; Griswold v. Sheldon, 4 I^. Y. 582. 
 
 When proper evidence in explanation of the transaction is 
 given, it is in all cases a question for a jury. Thompson v. 
 Blanchard, 4 JST. Y. 303 ; Gardner v. McEiven, 19 E". Y. 123 ; 
 Hall V. Tuttle, 8 Wend. 375 ; Hanford v. Archer, 4 Hill, 272 ; 
 Smith V. Acker, 23 Wend. 653 ; Allen v. Cowan, 23 K Y. 502. 
 
 Where a sleigh was sold, in June or July, it being then several 
 miles distant from the place of sale, and, owing to the difficulty 
 of removing it at that season of the year, it was agreed between 
 the parties that it might remain where it was, in the vendor's 
 barn, until the ensuing winter, it Avas held that the omission by 
 the purchaser to take possession of the property, at the time, was 
 sufficiently accounted for. Clute v. Fitch, 25 Barb. 429. 
 
 Where there is proper evidence given, and the jury decide upon 
 it, their verdict will be as conclusive as upon any other question 
 of fact which is submitted to them. Butter v. Miller, 1 N". Y. 
 496 ; Prentiss v. Slach, 1 Hill, 467 ; Stewart v. Slater, 6 Duer, 
 83; Swift V. Hart, 12 Barb. 530. 
 
110 CHATTEL MORTGAGES. 
 
 One of the most perplexing questions which arises under this 
 statute is, what proof should be given in order to show that the 
 mortgage is valid '( Some of the older cases held that some ex- 
 cuse must be shown for not removing the property. But the 
 authority of all that class of cases is overthrown, and the law is- 
 now conclusively settled to be, that when a mortgage of chattels 
 is presumed to be fraudulent, on the ground that it was not 
 accompanied or followed by an immediate change of possession 
 of the property mortgaged, an inquiry into the motives, reasons 
 or causes for not changing the possession is irrelevant, so far a& 
 it is designed to raise any distinct question for the determination 
 of either the court or the jury. The true and sole inquiry is, 
 whether the presumption of fraud which the statute raises is 
 repelled by the evidence, and whether the mortgage was made 
 in good faith, and without any intention to defraud creditors or 
 purchasers. The question of fraudulent intent in this, as in all 
 other cases arising under the statute, where it depends upon 
 extrinsic proof, is clearly a question of fact which belongs to a 
 jury alone, or to a justice sitting in their place; and the verdict 
 of a jury, or the decision of the justice, is final, if founded upon 
 sufiicient and pertinent evidence. The true construction of the 
 statute is, that its only effect, when the execution of a mortgage 
 is not followed by an immediate delivery of the possession, is to 
 throw the burden upon the mortgagee of proving that the trans- 
 action was fair and honest ; and when the mortgage has been 
 duly filed, it matters not how long, or for w^hat reasons, the mort- 
 gagor was permitted to retain the possession. 
 
 What, then, is the proof which, in such cases, the mortgagee is 
 required to give to rebut the presumption of fraud ? It is this, 
 and only this : He is bound to show that the debt mentioned in 
 the mortgage was actiially due, and that to secure its payment 
 was the sole object of the parties. Stewart v. Slater, 6 Duer, 96, 
 97, per Duer, J.; Prentiss v. Slack, 1 Hill, 467; Hanford v. 
 Archer, 4 Hill, 271 ; Thompson v. Blanchard, 4 IST. Y. 303, 306, 
 307. The earlier cases holding the necessity of explaining the 
 continued possession of the vendor or mortgagor, in addition to 
 the establishment of the fact that the sale w^as made in good faith 
 and without any intent to defraud, have been overruled. Mitchell 
 V. West, 55 ]Sr. Y. 107; Niagara County Nat. Bank v. Lord, 33 
 Hun, 557. 
 
 It is not enough to show that the mortgage was given for a 
 good and valid consideration. It is equally necessary to show 
 that there was an absence of a fraudulent intent. 
 
CHATTEL MOETGAGES. Ill 
 
 But where it is admitted by the parties, or where it is estab- 
 lished by the evidence, that the mortgage was executed and given 
 for a good and valid consideration, it is proper to submit the 
 question to the jury, or to the justice in their place, whether it 
 was not also executed without £lny intent to hinder, delay or de- 
 fraud creditors. Groat v. Eees, 20 Barb. 26. And see Randall v. 
 Parker, 3 Sandf. 69. If there is no evidence that the mortgagor 
 was indebted to any other person than the mortgagee, and there 
 is nothing in the case to show that the mortgage was executed for 
 any o"ther purpose than to secure a hona fide debt, the jury will 
 be justified in finding in favor of the validity of the miortgage. 
 lb. If there is no evidence to show that there were any other 
 creditors than the mortgagee at the time the mortgage was given, 
 the mortgage will not be presumed to be fraudulent, because the 
 statute does not render it presumptively fraudulent unless there 
 are creditors to be defrauded, which, of course, is a matter of 
 proof. Stanbro v. Hopkins, 28 Barb. 266. A creditor who seeks 
 to impeach a mortgage on the ground of a want of change of pos- 
 session, is bound to prove that he was a creditor during the time 
 the possession remained in the mortgagor. Williston v. Jones, 6 
 Duer, 504. 
 
 The recital of the consideration mentioned in a mortgage is 
 not sufficient proof that there was a valid consideration for it, as 
 against creditors. For, although as between the parties, this 
 recital may be sufficient; yet, as against creditors, or subsequent 
 bona fide purchasers, or mortgagees, there must be proof of a good 
 and valid consideration, independent of such recital in the mort- 
 gage. Allen V. Cowan, 28 Barb. 100; Baskins v. Shannon, 3 N. 
 Y. 310 ; Tifft v. Barton, 4 Denio, 174, 175. 
 
 If there is no evidence of such consideration given, the mort- 
 gage will be declared fraudulent as a matter of law, and without 
 submitting that question to a jury. lb. It is in those cases only, 
 in which there is evidence of good faith, such as a valid debt, etc., 
 that there is any question of fact to be decided. But when a 
 valid consideration is sho-wn, and there are no circumstances 
 proved which would authorize an inference of an intent to defraud 
 creditors, the question must be submitted to the jury as a question 
 of fact. Allen v. Cowan, 28 Barb. 100; Croat v. Rees, 20 Barb. 
 26 ; Stanbro v. Hopkins, 28 Barb. 266 ; Prentiss v. Slack, 1 Hill, 
 467 ; Bisliop v. Cook, 13 Barb. 326. 
 
 When the law requires an actual change of possession, it must 
 be a continued change, or it will be as void, as to creditors, or 
 
112 CHATTEL MORTGAGES. 
 
 subsequent bona fide purchasers, or mortgagees, as though no 
 change had ever taken place. But if a change of property has 
 once taken place, and it is afterwards returned to the mortgagor, 
 a creditor must show that he was such while the possession con- 
 tinued in the mortgagor. And the same rule applies to subse- 
 quent purchasers or mortgagees. 
 
 It has been already seen in what eases the want of a change of 
 possession will be sufficiently explained. Ante, p. 109. The 
 point to establish is, that the mortgagee acted in good faith. 
 
 If he can prove that he acted in good faith, and without any 
 intent to defraud the creditors of the mortgagor, that will be 
 sufficient, however fraudulent the intention of the mortgagor may 
 have been. Hall v. Arnold, 15 Barb. 599. So he will be pro- 
 tected against the fraudulent acts of the mortgagor, which are 
 done subsequent to the time of executing the mortgage, and with- 
 out the knowledge or privity of such mortgagee. Ford v. Williams, 
 13 N. Y. 577. 
 
 § 10. Filings Chattel Mortgages. 
 
 When a mortgage is invalid, unless filed. — The statute requiring 
 the filing of chattel mortgages, and conveyances intended to 
 operate as such, has been quoted in the preceding section. See 
 ante, p. 88. 
 
 When there is an immediate delivery of the mortgaged prop- 
 erty, and it is followed by an actual and a continued change of 
 possession of it, there is no necessity for filing the mortgage. 
 When there is no delivery of the property, the statute requires 
 that the mortgage shall be filed, and the object is, to give notice 
 to parties interested, that the property is subject to a lien, so that 
 innocent ptirchasers or mortgagees, or creditors need not be de- 
 ceived. There are several other cases, than that just mentioned, 
 in which no filing of the mortgage is required. As between the 
 parties to the mortgage, no filing is necessary. Wescott v. Gunn, 
 4 Duer, 107 ; Braehelecr v. Scliwaheland, 86 Hun, 143 ; Hayman 
 V. Jones, 7 Hun, 238 ; Pancoast v. American Heating & Power 
 Co., 60 How. 49 ; Jones v. Graham, 11 IST. T. 628. A purchaser, 
 with notice of the existence of a prior mortgage, which is not filed, 
 cannot hold it as against the prior mortgagee. Sanger v. East- 
 wood, 19 Wend. 514; Gregory v. Thomas, 20 Wend. 17; Hill v. 
 Beehe, 13 IST. Y. 556 ; Goodwin v. Bayerle, 18 Misc. 62 ; MacJc v. 
 Phelan, 92 IST. Y. 20. And see Eastern Brewing Co. v. Feist, 21 
 Misc. 681. When chattels have been mortgaged, and a party pur- 
 
CHATTEL MOETGAGES. 113 
 
 chases them with actual knowledge of the existence of the prior 
 mortgage, he is not a bona fide purchaser, and, therefore, cannot 
 raise the objection that by its own limitation the mortgage had 
 ceased to be a lien, and that it had not been legally renewed. 
 Lewis V. Palmer, 28 IST. Y. 272 ; McGonnich v. Yenahle, 34 St. 
 Kep. 717; 12 N. Y. Supp. 152; Gildersleeve v. Landon, 73 N. 
 Y. 609 ; Farmers' Loan & Trust Co. v. Eendrickson, 25 Barb. 
 484. 
 
 Where property was sold by a bill of sale, and the purchaser did 
 not take possession of the property, and the vendor subsequently 
 gave a mortgage upon the same property to a person who took 
 the mortgage in good faith ; it was held, that the mortgagee could 
 hold the property in preference to the purchaser under the bill of 
 sale. Bennett v. Earl, 21 Wend. 117. 
 
 In such a case, no filing of the mortgage is necessary; because 
 the filing required by the statute, relates to those persons who 
 purchase in good faith subsequently to the giving of the mortgage, 
 and not to those purchasing at a time prior to the execution of 
 the mortgage. 
 
 The filing of a mortgage is not necessary in those cases in which 
 the defendant wrongfully took the property out of the possession 
 of the mortgagor, and the mortgagee may recover against such 
 wrongdoer, although the mortgage was not filed. The statute re- 
 lates to bona fide purchasers and mortgagees, and not to wrong- 
 doers. Moses V. Walker, 2 Hilt. 536. See Marsden v. Cornell, 62 
 ]^. Y. 215. Although a mortgage need not be filed as against 
 prior purchasers and mortgagees, yet it must be filed as against 
 creditors existing at the time the mortgage was given. Tyler v. 
 Strang, 21 Barb. 198 ; Farmers' Loan Co. v. Hendrickson, 25 
 Barb. 484 ; Benedict v. Smith, 10 Paige, 126. 
 
 A vsritten contract for the leasing of chattels for a specified term, 
 at an agreed rent for the use of them, with an agreement to give a 
 good bill of sale of them to the lessees at the expiration of the term, 
 if they punctually pay the rent, is not a sale in prwsenti, but a mere 
 bailment, nor is the contract a chattel mortgage by the lessee ; and 
 therefore the contract need not be filed as a chattel mortgage. 
 Neidig v. Eifler, 18 Abb. 353. 
 
 A written transfer of a chattel mortgage as a mere coUateraK 
 security for the payment of a debt, is a pledge, and not a mortgage, | 
 and therefore it need not be recorded. HasMiis v. Kelly, 1 Abb. 
 IS. S. 63. And see Harrison v. Burlingame, 48 Hun, 212. So 
 where a bill of sale has been filed, a subsequent agreement giving 
 8 
 
114 CHATTEL MOETGAGES. 
 
 it the effect of a chattel mortgage need not be filed. Preston v. 
 Bouthwick, 115 K Y. 139. 
 
 Mortgages creating a lien upon real and personal property, 
 executed by a corporation as security for the payment of bonds is- 
 sued by such corporation, or by any telegraph, telephone or electric 
 light corporation, and recorded as a mortgage of real property in 
 each county where such property is located or through which the 
 line of such telegraph, telephone or electric light corporation runs, 
 need not be filed or refiled as chattel mortgages. Laws of 1897,1 
 ch. 418, § 91 ; General Laws, ch. 49, § 91. 
 
 A chattel mortgage, though unfiled, is valid as against a judg- 
 ment that is fraudulent and void, and which was entered pursuant 
 to a fraudulent scheme to cheat the creditors of the judgment 
 debtor and secure for the latter some benefit out of the property 
 seized and sold upon an execution issued upon such judgment. 
 Braekeleer v. Schwab eland j 86 Hun, 143. 
 
 When filed — The statute contains no directions as to the time 
 when the mortgage shall be filed, and in the absence of any such 
 provision the courts have no power to supply the deficiency, or 
 to declare a mortgage void, because it was not filed at the time it 
 was executed, yet, if creditors, or iona fide purchasers or mort- 
 gagees, should acquire rights in the property mortgaged before 
 the filing of the mortgage, the lien of the mortgage will be post- 
 poned to such rights. Hicks v. Williams, 17 Barb. 523 ; Wescott v. 
 Gunn, 4: Duer, 107. And see Swift v. Hart, 12 Barb. 531 ; Thomp- 
 son V. Van Yechten, 27 IST. Y. 568. The persons who may claim 
 the protection of the statute as creditors, or purchasers or mort- 
 gagees in good faith, have been pointed out in a preceding section. 
 See ante, p. 93. If a chattel mortgage is not filed until an execu- 
 tion has been issued to the sheriff, it is void as against him, al- 
 though actually filed before a levy is made. Hale v. Sweet, 40 
 If. Y. 97. So it will be void as to the judgment creditor, even 
 though he had actual notice of its existence before the entry of 
 judgment. Dunham v. Silverstein, 32 Misc. 642. 
 
 The law allows a reasonable time in which to file a chattel mort- 
 gage and what is a reasonable time is a question for the jury. 
 Vreeland v. Pratt, 42 St. Eep. 582. A mortgage executed and de- 
 livered on the 20th of ISTovember, and not filed until the 14th of 
 June following, is void as to creditors of the mortgagor, who have 
 secured a lien upon the mortgaged property by warrants of at- 
 tachment issued and levied the day prior to the filing. Ledoux v. 
 Bank of America, 24 App. Div. 123. See Karst v. Gane, 136 
 
 &' 
 
CHATTEL MOKTGAGES. 115 
 
 IN". Y. 316; Merry v. Wilcox, 92 Hun, 210; Field r. Ingraham, 
 15 Misc. 529 ; 74 St Kep. 306 ; 37 K Y. Supp. 1135. 
 
 The cases cited serve to show what the courts have deemed an 
 "Vinreasonable delay in filing rather than what is a reasonable 
 time. No ironclad rule can be established which will govern all 
 cases. While the statute does not in terms require an immediate 
 filing of a mortgage in order to make it valid against creditors 
 or subsequent mortgagees or purchasers, the purpose of the act can 
 only be satisfied by prompt and diligent action on the part of the 
 mortgagee in filing his mortgage. Karst v. Gane, 136 IST. Y. 316. 
 A chattel mortgage which is not filed within a reasonable time is 
 void, not only as to creditors whose debts accrue during the time 
 it is withheld from record, but also as to those whose debts accrue 
 before its execution and remain unpaid thereafter. Vreeland v. 
 Pratt, 43 St. Rep. 582. But such a mortgage is not absolutely 
 void, for it is good as between the parties thereto, and as against 
 creditors at large. It is void only as to judgment creditors, or 
 creditors armed with some legal process authorizing the seizure 
 of the property. It is valid as to all the world until attacked by a 
 creditor standing upon an attachment or judgment. Stephens v. 
 Meriden Britannia Co., 160 N. Y. 178. And see Sheldon v. 
 Wickham, 161 IST. Y. 500, 503. 
 
 Where filed. — " An instrument, or a true copy thereof, if in- 
 tended to operate as a mortgage of a canal boat, steam tug, scow 
 or other craft, or of the appurtenances thereto, navigating the 
 canals of this State, must be filed in the office of the comptroller \ 
 and need not be filed elsewhere. Every, other chattel mortgage, 
 or an instrument intended to operate as such, or a true copy 
 thereof, must be filed in the town, or city, where the mortgagor, if 
 a resident of the State, resides at the time of the execution thereof, 
 and if not a resident, in the city or town where the property mort- 
 gaged is at the time of the execution of the mortgage. If there is 
 more than one mortgagor, the mortgage or a certified copy thereof, 
 must be filed in each city or town within the State where each 
 mortgagor resides at the time of the execution thereof. In the 
 city of New York, such instrument must be filed as follows, 
 namely : in the borough of Brooklyn in said city, such instrument 
 shall be filed in the office of the register of the county of Kings ; 
 in the borough of Queens in said city, in the office of the clerk of 
 Queens county; in the borough of Richmond, in said city, in the 
 office of the clerk of the county of Richmond ; and in the borough 
 of Manhattan and the borough of the Bronx in said city, in the 
 
116 CHATTEL MOETGAGES. 
 
 office of the register of the city and county of New York. In. 
 every other city or town of the State, in the office of the city or 
 town clerk, unless there is a county clerk's office in such city or 
 town, in which case it must be filed therein. If the chattels mort- 
 gaged are in the city of New York at the time of the execution of 
 the mortgage, the mortgage or a true copy thereof must be filed in 
 the county where the mortgagor alleges to reside at the time of the 
 execution of the mortgage, and in the county where the property 
 is situated." General Laws, ch. 49, § 92. 
 I If the mortgage is upon partnership property, it must be filed in 
 the county where each of the partners resides. Bueh v. Geraty, 28 
 Misc. 134; 59 'S. Y. Supp. 249. If the mortgage is executed 
 by a joint-stock association, it should be filed in the office of the 
 town clerk of the town where the principal office of the company 
 is located or its business principally conducted. Nelson v. Neilj 
 15 Hun, 383. This is of course subject to the qualification that 
 there is no county clerk's office in such town. 
 
 If a chattel mortgage is filed in the clerk's office of the town 
 in which the mortgagor resided at the time of its execution, that 
 is sufficient-; and it is of no consequence whether the mortgagor is 
 a resident of that town at the time of filing the mortgage. Hicks 
 V. Williams, 17 Barb. 523. In one case, one Dickinson gave a 
 chattel mortgage to one Baker, and the mortgage described the 
 parties as both of them being residents of the town of Mexico, 
 Oswego county, and dated Sept. 22, 1841. The mortgage was 
 given to secure the payment of $535, for work done upon a canal 
 boat. This mortgage was assigned to one Chandler, on the 4th 
 day of October, 1841, and filed in the clerk's office of the town 
 of Oswego, on the 4th day of October, 1841. Bunn, as sheriff of 
 Montgomery county, levied upon the boat as it passed through 
 the county, upon an execution in favor of Shaw & Herrington, 
 against Dickinson, the mortgagor. Chandler, the assignee of 
 Baker, the mortgagee, then brought an action against the sheriff, 
 Bunn, for a conversion of the property. 
 
 To show that the mortgage was properly filed, the plaintiff 
 offered to prove that, at the time of the execution of the mortgage, 
 Dickinson in fact resided in the town of Oswego, notwithstanding 
 the recital in the mortgage ; and it was held that this evidence was 
 competent and proper. Chandler v. Bunn, Hill & Denio, 167. 
 
 How filed — The statute makes it the duty of the clerk or 
 register to file every such instrument presented for that purpose 
 and to endorse thereon its number and the time of its receipt. 
 
CHATTEL MOETGAGES. 117 
 
 The clerk or register must enter in a book provided for that pur- 
 pose, in separate columns, the names of all the parties to each 
 mortgage so filed, arranged in alphabetical order, under the head 
 of " mortgagors " and " mortgagees," the number of such mortgage 
 or copy, and the date of the filing thereof; and, if the mortgage 
 is upon a craft navigating the canals, and filed in the oifice of the 
 comptroller, the name of the craft must also be inserted. General 
 Laws, ch. 49, § 93 : Laws of 189Y, ch. 418, § 93, as amended by- 
 Laws of 1900, ch. 248, § 3. 
 
 The mortgagee is not bound to do anything more than to de- 
 liver the mortgage at the proper office, and to the proper officer, 
 or to any person of proper age who has charge of the office. In 
 one case, the office of town clerk was vacant, but there was a per- 
 son who had charge of the office, and he received a chattel mort- 
 gage, which was brought to the office to be filed, and indorsed on 
 it, " Filed Oct. 20, 1845," and placed it among the chattel mort- 
 gages in the office; and this was -held to be a valid filing of the 
 mortgage, within the meaning of the statute. Bishop v. CooTc, 
 13 Barb. 326. 
 
 So, where the town clerk was absent, and a clerk in the store 
 of the town clerk, who had charge of the town clerk's office, re- 
 ceived and filed a chattel mortgage in the absence of the town 
 clerk, this was held valid. Dodge v. Potter, 18 Barb. 194. 
 
 If the mortgage is properly delivered at the proper town clerk's 
 office, the mortgagee has performed all the duty which the statute 
 requires of him ; and if the clerk omits to file the mortgage prop- 
 erly, or to enter it in a book, as required by law, these omissions 
 of the clerk will not prejudice the rights of the mortgagee. Dodge 
 V. Potter, 18 Barb. 194, 202 ; Neele v. BerryUU, 4 How. 16. 
 
 But merely going to the clerk's office with the mortgage and leav- 
 ing it on the clerk's desk at 7:30 p. M.^.when no one is present, is 
 not a filing within the statute, although several ineffectual at- 
 tempts had been made on the same day to obtain admittance to 
 the office during office hours. Crounse v. Johnson, 47 St. Kep. 
 559. See Hathaway v. Howell, 54 JST. Y. 97. 
 
 After a mortgage has been filed, the advantage of such filing 
 may be lost by taking the mortgage from the files of the clerk's 
 office. Such removal will suspend its validity so far as filing is 
 necessary to make it valid; but a refiling will have the same 
 effect as an original filing, except so far as intervening liens or 
 rights may have attached while it was off the files. Swift v. Hart, 
 12 Barb. 581, 534, 535 ; Fox v. Burns, id. 677, 679, 680. But 
 
118 CHATTEL MOETGAGES. 
 
 doubtless this rule is limited to cases where there has been a 
 vohmtary withdrawal of the mortgage from the files with the in- 
 tention of suspending the lien, and will not be applied where the 
 mortgage is removed from the files in obedience to a subpoena 
 duces tecum, and by inadvertence the mortgage is not returned to 
 the clerk's office for three or four days. See Rogers v. Dwight, 71 
 Hun, 547. 
 
 The clerk or register to ^whom a chattel mortgage is presented to 
 be filed, is entitled to Receive as fees, for filing, six cents ; for 
 entering the same in the IproMr book, six cents ; for searching for 
 each paper, six cents ; and fpr making a copy or certified copy, 
 the same fees as are allowed by la^ to clerks of counties for copies 
 and certificates of records kept bA them. The comptroller is en- 
 titled to receive as fees, for the use\of the State, for the filing and 
 entry, twenty-five cents ; for searchi!^ for each paper, twenty-five 
 cents ; and the like fees for copies or'^certified copies as he is al- 
 lowed by law to charge for copies or certified copies of records 
 kept in his office. ■ ISTo officer is required to file or enter the mort- 
 gage or furnish a copy until his fees are paid. General Laws, 
 ch. 49, § 94; Laws of 1897, ch. 418, § 94. 
 
 § 11. Refiling Chattel Mortgages. 
 
 A mortgage may be ever so properly filed, but that will make 
 it valid for one year only from the date of such filing. And if it 
 is desired to continue the lien for a longer time than that, the 
 mortgage must be refiled. 
 
 '' A chattel mortgage, except as otherwise provided in this 
 article, shall be invalid as against creditors of the mortgagor, and 
 against subsequent purchasers or mortgagees in good faith, after 
 the expiration of the first or any succeeding term of one year, 
 reckoning from the time of the first filing, unless, 
 
 " 1. Within thirty days next preceding the expiration of each 
 such term, a statement containing a description of such mortgage, 
 the names of the parties, the time when and the place where filed, 
 the interest of the mortgagee or of any person who has succeeded 
 to his interest in the property claimed by virtue thereof, or 
 
 " 2. A copy of such mortgage and its indorsements, together 
 with a statement attached thereto or indorsed thereon, showing the 
 interest of the mortgagee or of any person who has succeeded to 
 his interest in the mortgage, is filed in the proper office in the 
 city or town where the mortgagor then resided, if he is then a 
 resident of the town or city where the mortgage or a copy thereof 
 
CHATTEL MOETGAGES. 119 
 
 or such statement was last filed; if not such resident, tut a 
 resident of the State, a true copy of such mortgage, together with 
 such statement, shall be filed in the proper office of the town or 
 city where he then resides; and if not a resident of the State, 
 then in the proper office of the city or town where the property 
 so mortgaged was at the time of the execution of the mortgage. 
 Where the chattels mortgaged were located in the city of New 
 York, at the time of the execution of the mortgage, a copy of such 
 mortgage and its indorsements, together with a statement attached 
 thereto or indorsed thereon, showing the interest of the mort- 
 gagee or of any person who has succeeded to his interest in the 
 mortgage must be filed in the same office where the original mort- 
 gage or a copy, thereof was filed at the time of the execution of 
 the same." General Laws, ch. 49, § 95. 
 
 The exception in the section last cited, is in favor of mortgages 
 upon canal boats or other craft navigating the canals of this State, 
 which have been duly filed with the comptroller. Such mort- 
 gages are valid as against the creditors of the mortgagor and 
 against subsequent purchasers or mortgagees in good faith, as long 
 as the debt which the m.ortgage secures, is enforceable. From the 
 time of filing, every such mortgage has preference and priority 
 over all other claims and liens, not existing at the time of such 
 filing. Id., § 96. 
 
 The mortgagee, instead of protesting his lien, in the manner 
 prescribed by the statute, may take a new mortgage and file the 
 same. The giving of a new mortgage, instead of renewing and 
 refiling the original, will not affect the lien of the mortgagee, or 
 render it invalid except that the mortgagee runs the risk of a 
 levy upon an execution after the first mortgage ceases to be a 
 lien, and before the new one is filed. The second mortgage will 
 not extinguish the debt. It will be valid except as against a levy 
 upon an execution issued upon a judgment or a lien by virtue of 
 such execution. Walker v. Henry, 85 'E. Y. 130. See Lee v. 
 Huntoon, 1 Hoff. Oh. 447 ; Osborn v. Alexander, 40 Hun, 323. 
 But all experiments in the line of substituting some other mode of 
 procedure in lieu of that prescribed by statute, are fraught with 
 danger, and the party indulging in the experiment is liable to 
 meet with a surprise in the happening of the unexpected. 
 
 The omission to refile a chattel mortgage does not render it 
 invalid as against purchasers or mortgagees intermediate the 
 original filing and the omission to refile. The term subsequent, 
 in the statute, means after the time for refiling has elapsed. 
 
120 CHATTEL MORTGAGES. 
 
 Meech v. PatcJiin, 14 IST. Y. 71 ; Latimer v. Wheeler, 30 Barb. 
 485 ; Woljf V. Rausch, 22 Misc. 108 ; Dillingham v. Ladue, 35 
 Barb. 38 ; Thompson v. Van Vechten, 27 1^. Y. 568, 582. It has 
 been accordingly held that a mortgage executed and filed in No- 
 vember, 1846, and never refiled, was valid as against a mortgage 
 executed and filed in January, 1847, and annually refiled until 
 1850, the chattels remaining in the meantime in the possession 
 of the mortgagor. Meech v. Patchin, 14 jST. Y. 71. The term 
 purchaser, as used in the statute, applies not only to a purchaser 
 directly from the mortgagor, but also to a purchaser remote from 
 the mortgagor. Dillingham v. Bolt, 37 N. Y. 198. The failure 
 of the mortgagee to refile a chattel mortgage adds nothing to the 
 title of one who purchased the mortgaged property between the 
 original filing and the time to refile. Such property is subject 
 still to the lien of the mortgage. But a purchaser, in good faith, 
 from such purchaser after the default of the mortgagee in re- 
 filing the mortgage, acquires an absolute and unincumbered title 
 to the property, although that of the prior purchaser was subject 
 to the mortgage. Beskin v. Fiegenspan, 32 App. Div. 29. 
 
 The statute protects such purchasers and mortgagors only as 
 became such in good faith. Therefore it is held that the omission 
 to refile a mortgage is of no consequence, if the subsequent pur- 
 chaser or mortgagee has notice of the prior mortgage, since he 
 would not then be a bona fide purchaser or mortgagee. Hill v. 
 Beehc, 13 N. Y. 556; Sanger v. Eastwood, 19 Wend. 515; 
 Gregory v. Thomas, 20 Wend. 17. Nor does the irregular refiling 
 of a chattel mortgage invalidate the mortgage as against a mort- 
 gagee of the same property who took his mortgage with full notice 
 of and subject to the mortgage thus irregularly refiled. McCrea 
 V. Hopper, 35 App. Div. 572. So the failure to refile a chattel 
 mortgage in no way affects its validity as between the parties 
 thereto. Commercial Bank v. Davy, 81 Hun, 200. 
 
 'Creditors are more favored under the statute than purchasers 
 or mortgagors. If a creditor has obtained a lien upon the mort- 
 gaged property by a levy under an execution in his favor against 
 the mortgagor, before a refiling of the mortgage, the lien of the 
 mortgage is lost as against such execution. Farmers' Loan, etc., 
 Co. V. Hendrickson, 25 Barb. 484; Ely v. Carnly, 19 K Y. 496; 
 Thompson v. Van Vechten, 6 Bosw. 373 ; 27 IST. Y. 568 ; Newell 
 V. Warner, 44 Barb. 258. While the omission to refile a chattel 
 mortgage does not render it invalid as between the parties to the 
 instrument, it is void as to the creditors of the mortgagor. But 
 
CHATTEL MOETGAGES. 121 
 
 the statute confers no title to the property npon the creditors, nor 
 do they, by virtue of the act, obtain any interest in it. The effect 
 of the statute is simply that, as between the creditors and the 
 mortgagor, the mortgage has no force or operation whatever and 
 is to be treated as if it had never existed. The creditors, there- 
 fore, cannot touch the mortgaged property until they come with 
 an execution. But as between the creditors and the mortgagor the 
 latter has as much right to treat the mortgage invalid and as non- 
 existent as has the former; and, therefore, before the creditors 
 obtain a lien on the property by virtue of their executions; the 
 mortgagor may sell it and convey an absolute title, subject to any 
 rights the mortgagee has, or he can deliver the property to the 
 mortgagee in payment of the debt secured by the mortgage, and 
 the mortgagee can release the debt, with or without payment, and 
 in either case the creditors will have no legal ground for com- 
 plaint. Tremaine v. Mortimer, 128 JST. Y. 1 ; Bowdish v. Page, 
 81 Hun, 170; 153 K Y. 104; Karst v. Gane, 136 IST. Y. 316; 
 Mandeville v. Avery, 124 JST. Y. 376. The failure to refile a 
 chattel mortgage does not aid a general creditor who is without a 
 judgment, attachment, or possessory lien. Robinson v. Kaplan, 
 21 Misc. 686. But where the creditor has the possession of the 
 property and the right to retain it under a lien, as, for example, 
 for storage, with the right to sell the property in discharge of his 
 lien, he does not occupy the position of a general creditor, but one 
 similar to that of a judgment creditor in respect to his right to 
 enforce his claim against the mortgaged property. State Trust 
 Co. V. Casino Co., 5 App. Div. 381. In case the mortgagee has 
 not taken possession of the property under his mortgage upon 
 default, or the mortgagor has not delivered the property to him 
 in payment of his debt, the mortgagee, although his title has be- 
 come absolute by the default, must refile the mortgage within the 
 time limited by the statute to protect his interest as against 
 creditors, or a levy on execution in their favor will take priority 
 over the mortgage. Ely v. Carnly, 19 IST. Y. 496. 
 
 The refiling of a chattel mortgage, after the expiration of a 
 year from the time of first filing it, is effectual to protect the mort- 
 gagee and his assigns, as against an execution creditor whose 
 execution is not levied until after the second filing, but is levied 
 within a year from and after that time. Bivift v. Hart, 12 Barb. 
 •531; Nixon v. Stanley, 33 Hun, 247; Newell v. Warner, 44 
 Barb. 258. 
 
 It may be stated as a general rule, that an omission to refile a 
 mortgage will be of no consequence in those cases, and as to those 
 
122 CHATTEL MOKTGAGES. 
 
 persons as to wkom the original filing was not necessary. Ante, 
 p. 88. 
 
 When to refile. — The lien of the mortgage is valid for one year 
 from the time of filing it. But if the mortgagee desiresi to con- 
 tinue the lien for a longer time than one year, he must refile the 
 mortgage. This refiling may be done at any time within thirty 
 days before the expiration of the year. The statute thus gives 
 a whole month, during which the mortgage may, at any time in 
 the month, be refiled. 
 
 This refiling must be done within one year from the time of 
 the original filing; and, if the last day of such year is Sunday, 
 the mortgage must be refiled as early as the Saturday preceding. 
 
 A mortgage was filed June 22, 1846; it was refiled properly 
 -Tune 18, 1847, at fifty minutes past 10 a. m. ; and again refiled 
 June 19, 1848, at forty minutes past 2 o'clock p. m. ; the 18th of 
 June, 1848, was on Sunday, so that a year had elapsed before the 
 refiling, if Sunday is to be counted. A creditor had the property 
 levied on by an execution, June 19, 1848, at half past 12 o'clock, 
 and before the last refiling. It was held, that the mortgage was 
 to be considered as a new mortgage at each new filing, although 
 the existing lien of the mortgage was retained ; that the year ex- 
 pired on the 18th June, 1848, at fifty minutes past 10 o'clock, 
 A. M.^ as that was one year from the last refiling ; that the lien of 
 the execution was to be preferred to that of the mortgage; and 
 that the mortgage ought to have been refiled as early as Saturday, 
 June 17, 1848, in order to retain its preference, because Sunday 
 was counted like any other day in the computation of the time 
 from the refiling. Nitchie v. Townsend, 2 Sandf. 299. 
 
 It is not material whether the mortgage debt is due or not, 
 because the refiling is to take place within thirty days preceding 
 the expiration of one year from the previous filing, and not from 
 the time when the debt is due. Ely v. Carnly, 19 IST. Y. 496. 
 And if the debt is due and unpaid, so that there is a default in 
 the mortgage, and the title to the mortgaged property is absolute 
 in the mortgagee, the mortgage must still be properly refiled as 
 against the creditors of the mortgagor ; or they will be preferred 
 to the mortgagee, if they obtain a lien on the mortgaged property, 
 by a levy on execution before such refiling. lb. 
 
 Where to refile — It is not always proper to refile the mortgage 
 in the same toviTi or city in which the original mortgage was filed. 
 If the residence of the mortgagor remains unchanged, then the 
 refiling must be in the same town in which the mortgage was filed. 
 
CHATTEL MOKTGAGES. 123 
 
 But if the mortgagor has changed his residence, before the ex- 
 piration of the year, then the refiling must be made in the city or 
 town in which the mortgagor may reside at the time of such 
 refiling. See ante, p. 118. It is not enough that the mortgage be 
 refiled in the proper town or city ; it must be refiled in the proper 
 ofiice in such town or city. The proper office has been pointed out 
 on a preceding page. 
 
 How to refile — There are two modes prescribed by statute by 
 which the refiling of a chattel mortgage may be effected. One is 
 by the filing of a statement containing a description of the mort- 
 gage, the names of the parties, the time when and place where 
 filed, and the interest of the mortgagee or of any person who has 
 succeeded to his interest in the property claimed by virtue of the 
 mortgage. 
 
 The other mode is by filing a copy of the mortgage and its 
 indorsements, together with a statement attached thereto or in- 
 dorsed thereon, showing the interest of the mortgagee or of any 
 person who has succeeded to his interest in the mortgage. 
 
 In either case the filing should be in the proper ofiice and 
 within thirty days next preceding the expiration of the term of 
 one year from the time of the original filing or any succeeding 
 term of one year thereafter. General Laws, ch. 49, § 95. 
 
 The filing of a copy of the mortgage and its indorsements, in 
 the second mode of procedure above pointed out, takes the place 
 of a description of the mortgage, the names of the parties, and the 
 time when and place where filed, required by the first-mentioned 
 mode of refiling. But in either case there must be a statement of 
 the interest of the mortgagee or of the person who has succeeded 
 to his interest. 
 
 The section of the present statute in respect to the refiling of 
 chattel mortgages seems to be a modified combination of section 
 3 of chapter 279 of the act of 1833, and of section 1 of chapter 
 354 of the act of 1895, amending section 3 of the first-mentioned 
 act. The act of 1833 had also been amended by other statutes. 
 See Laws of 1873, ch. 501; Laws of 1879, ch. 418. For this 
 reason the former decisions as to what constitutes a sufficient re- 
 filing or the reverse, are not in all respects authoritative imder the 
 present statute. The earlier decisions do, however, throw some 
 light upon the meaning of portions of the present statute and are 
 here cited for that purpose. 
 
 The act of 1833 required the filing of a true copy of the mort- 
 gage, and it was, therefore, held that a clerical error in the copy 
 
124 CHATTEL MORTGAGES. 
 
 of a chattel mortgage and the accompanying statement of the 
 amount claimed, by which such amount is overstated, $100, is 
 fatal, and its validity against creditors ceases vidth the year after 
 the filing of an accurate copy. Ely v. Camly, 19 'S. Y. 496 ; 
 8. C, 3 E. D. Smith, 489. 
 
 A mortgage was duly filed and the mortgagee within thirty days 
 prior to the expiration of one year from such filing, procured an 
 indorsement to be made on the original mortgage as follows: 
 " Refiled and renewed the 6th day of Eebruary, 1844, S. B. At- 
 water, town clerk." This was held not to be a sufficient statement 
 of " the interest of the mortgagee in the property," within the 
 meaning of the statute, and that the mortgage became invalid at 
 the end of the year, as against creditors who levied upon the prop- 
 erty upon execution. Fitch v. Humphrey, 1 Denio, 163. 
 
 § 12. Certified Copies as Evidence. 
 
 The statute provides as follows : "A copy of any such original in- 
 strument, or of a copy thereof, including any statement relating 
 thereto, certified by the officer with whom the same is filed, may 
 be received in evidence, but only of the fact that such instrument, 
 or copy, or statement, was received and filed according to the 
 indorsement thereon; and the original indorsement upon such 
 instrument or copy may be received in evidence only of the facts 
 stated in such indorsement." General Laws, ch. 49, § 97. 
 
 The certificate of a town clerk, in whose office a chattel mort- 
 gage is filed, is only evidence of the fact that such mortgage, or 
 copy and statement were received and filed in the manner stated in 
 the certificate. But such certificate is no proof of the existence 
 of the mortgage, or that the paper purporting to be a copy of the 
 mortgage is a copy of it ; and if the execution of the mortgage is 
 to be proved, it must be done in the usual manner by producing it 
 and proving its due execution, or if it is lost, by showing its loss, 
 and then making the usual proof required in case of lost instriT- 
 ments. Bissell v. Pearce, 28 N. Y. 252 ; Maxwell v. Inman, 42 
 Hun, 265 ; Sunderlin v. Wyman, 10 Hun, 493 ; Fellows v. Hyring, 
 23 How. 230 ; Mills v. Miller, 4 St. Eep. T87. 
 
 When a chattel mortgage has become forfeited by the non-pay- 
 ment of the naoney, the mortgagee or his agent may take the prop- 
 erty and sell it; and if the mortgagee places in the hands of his 
 agent, what purports to be a true copy of the mortgage, but which 
 is not a true copy on account of an unimportant variance, that 
 will not effect the validity of the taking of the agent. The au- 
 
CHATTEL MOETGAGES. 125 
 
 thority to sell the property is by virtue of the original mortgage 
 and not that of the copy, so that the taking and sale would be 
 valid without any copy whatever. Dane v. Mallory, 16 Barb. 46. 
 But if any copy were necessary, it would be sufficient if it were 
 substantially a correct copy, since the object of the statute would 
 be fully attained. Ih. 
 
 § 13. Discharge of Chattel Mortgages. 
 
 Upon the payment or discharge of a chattel mortgage, the 
 mortgagee, his assignee or legal representative, upon the request 
 of the mortgagor or of any person interested in the mortgaged 
 property, must sign and acknowledge a certificate setting forth 
 such payment or satisfaction. The officer with whom the mort- 
 gage, or a copy thereof is filed, must, on the receipt of such cer- 
 tificate, file the same in his office, and write the word " dis- 
 charged " in the book where the mortgage is entered, opposite the 
 entry thereof, and the mortgage is thereby discharged. General 
 Laws, ch. 49, § 98. 
 
126 SPECIAL CONTKACTS TO LABOR 
 
 CHAPTER IV. 
 SPECIAL CONTRACTS TO LABOR. 
 
 § 1. Complete Performance, as a Condition Precedent. 
 
 The rules of law are very similar in many respects, whether 
 the contract is sealed or unsealed, written or oral. And for this 
 reason it is not convenient to arrange all the cases which relate 
 to the manner of making the contract in one place or connection. 
 Sealed contracts have been already noticed, although many of 
 the rules there stated' are equally applicable to written unsealed 
 agreements. And, again, the rules which are applicable to sealed 
 contracts, or to those which are written but unsealed, are equally 
 applicable to oral contracts. In this connection, however, some of 
 those cases will be noticed which are usually or frequently reduced 
 to writing, and those which some statute requires to be in writing 
 in order to make them valid. 
 
 Special contracts in relation to the performance of personal 
 services are of quite frequent occurrence. A person may agree to 
 labor for a specified time, for a stipulated sum, and it may be a 
 part of the agreement that no payments shall be due until the ser- 
 vices are fully performed. In such cases the contract must be 
 fully and entirely performed by the laborer before he can sue for 
 and recover his wages. There are some exceptions to this rule, 
 which will be hereafter noticed. The recovery of the wages de- 
 pends upon the performance of the labor, which is a condition 
 precedent to the right of recovery. 
 
 Where it is agreed that a certain sum of money shall be paid 
 to a mariner as soon as he proceeds to sea, agreeably to the shipping 
 articles, he must perform the conditions before he can claim the 
 money ; and if he leaves the vessel while she is temporarily stayed 
 in the harbor by accident, head winds, or the like, and before the 
 vessel reaches the main ocean, he has not proceeded to sea in the 
 sense that will entitle him to the money promised, and he cannot 
 recover by action. James v. Hagar, 1 Daly, 517. 
 
 Where, by the terms of an agreement between the plaintiff (an 
 actor), and the defendant (a theatrical manager), it was agreed 
 that the plaintiff should, between October 9, 1854, and June 
 1, 1855, perform as an actor for the defendant during four 
 terms of four weeks each, and that there should be one interval 
 
SPECIAL CONTRACTS TO LABOR. 127 
 
 of four weeks between the terms, the commencement of each term 
 to be appointed by the defendant, and notice thereof given to the 
 plaintiff; and where the parties subsequently agreed that the 
 plaintiff should not perform in January or February, 1855 ; and 
 where, after that new arrangement, and before the 9th day of 
 October, 1854, the plaintiff commenced playing about the 9th of 
 October, 1854, and before the end of the second week, it was 
 agreed, at his request, that such first term of four weeks should 
 be divided into periods of two weeks each, the plaintiff to discon- 
 tinue playing at the end of said first two weeks, then leave, and re- 
 turn and play the other two weeks so as to complete the same on or 
 about the 1st of January 1855 ; and the plaintiff left at the end 
 of the first two weeks, and did not return again, or offer to return, 
 and was not requested to return ; it was held that the plaintiff was 
 bound by the agreement as modified, to return and play, or offer 
 to play, said remaining two weeks, without any notice or request 
 from the defendant to do so, and that the plaintiff's failure to do 
 so was a breach of the agreement on his part, and that he was liable 
 to the defendant for the damages resulting therefrom. And it 
 was also held, that after such a breach of the agreement by the 
 plaintiff on his part, the defendant was under no obligation to 
 employ the plaintiff further, and that no action would lie against 
 the defendant for not having notified the plaintiff of the time of 
 commencing other terms of four weeks each, and for not furnish- 
 ing him employment for such terms, although plaintiff might have 
 been ready and willing to perform on being so notified. Placide 
 V. Burton, 4 Bosw. 512. 
 
 Where the defendant covenanted to pay the plaintiff for doing 
 the carpenter's work of certain houses, when he should receive 
 from the architect his certificate that the work was fully and 
 completely finished according to the specification annexed to the 
 contract, it was held that the giving of the certificate by the archi- 
 tect was a condition precedent, the performance of which must 
 be averred in the complaint, in an action brought to recover pay- 
 ment for the work; and where a certificate was furnished by the 
 architect, in AVhieh he stated th'at the houses were finished in such 
 a manner that he would accept them if he were the owner, and 
 that he was satisfied as to the work and materials, this was held 
 not to be a performance of the condition. Smith v. Briggs, 3 
 Denio 73. Where a building contract makes an architect's certifi- 
 cate of fulfillment a condition precedent to payment, if the archi- 
 tect unreasonably and in bad faith refuses the certificate, the 
 
128 SPECIAL CONTEACTS TO LABOE. 
 
 builder may recover upon giving other proof of performance. 
 Thomas v. Fleury, 26 N. Y. 26 ; MacEmgM Flintic Stone Co. v. 
 Mayor, 160 JST. Y. 72; Nolan v. Whitney, 88 N. Y. 648; Doll v. 
 Noble, 116 N. Y. 230, 233 ; Wychoff v. Meyers, 44 IsT. Y. 145 ; 
 Bowery National Banh v. Mayor, 63 1^. Y. 336. But in such case 
 the plaintiff should allege and prove that the conditions precedent 
 had been performed, or, if the plaintiff relies upon a matter ex- 
 cusing him from procuring the certificate, the facts should be 
 stated in the complaint. Weeks v. O'Brien, 141 N. Y. 199. 
 
 Where a contract is made for doing the mason vi^ork of a build- 
 ing, and it is stipulated that payment therefor is to be made 
 " when all the works are completely finished and certified by the 
 architect to that effect," a certificate of the architect that the 
 contractors " have completed the mason work to your building " 
 is sufficient, and entitles the contractor to recover the contract 
 price. Stewart v. Keteltas, 9 Bosw. 261. 
 
 Full performance is a condition precedent to the right to any 
 payment upon a contract to erect a house, without any agreement 
 in respect to the sum to be paid or the terms of payment, except 
 that the labor was to be done " by day's work." Cunningham v. 
 Jones, 20 IST. Y. 486. A. agreed to work for B. ten and a half 
 months, at spinning yarn, for which he was to receive three cents 
 per run; and after spinning eight hundred and forty-five runs of 
 yarn, which took ten or eleven weeks, he left the service of B. 
 without any legal excuse, and then brought an action against B. 
 to recover for spinning the eight hundred and forty-five 
 runs of yam, at three cents per run; it was held that the con- 
 tract was an entire one to spin for the ten and a half months, and 
 that, therefore, the plaintiff could not recover anything, because 
 the performance of the work was a condition precedent to a right 
 to recover. McMillen v. Vanderlip, 12 Johns. 165. 
 
 L. agreed to work for P. for one year at ten dollars a month; 
 he worked ten months and a half, and then left work on Satur- 
 day, saying that he would not work any longer for P. There was 
 no sufficient cause for leaving the service of P., and on the Mon- 
 day following, L. returned and offered to resume his work, but P. 
 then refused to receive him, or to employ him any longer ; it was 
 held that L. could not recover anything of P. for the services al- 
 ready rendered. Lantry v. Paries, 8 Cow. 63 ; Beah v. Moor, 19 
 Johns. 337. 
 
 The plaintiff agreed, on the 1st of July, to log up, bum and 
 clear, fit for sowing, ten acres of land for the defendant, which 
 
SPECIAL CONTKACTS TO LABOR. 129 
 
 was to be done in a good farmer-like ma:nner, by the 20th of Sep- 
 tember then following, and to fence the said ten acres with a good 
 rail fence by the 1st of October following, for which the defendant 
 was to pay eight dollars an acre. The plaintiff partly cleared the 
 land, but did not make any of the fence, and he then quit the 
 work of his own accord, without any default on the part of the 
 defendant; it was held that the plaintiff could not recover any- 
 thing for the labor performed. Jennings v. Camp, 13 Johns. 94. 
 The plaintiff, a broker, being promised a specified commission for 
 effecting a sale of cigars, procured an offer of $3.50 per thousand 
 on a credit of six months, or $3.00 per thousand, cash, which he 
 communicated to his principals. They refused to sell under $3.80 
 per thousand, cash. He then procured an offer of $3.50 per thou- 
 sand, cash, but before he had communicated it to his principals, an- 
 other broker had procured an offer from the same purchasers, of 
 $3.37, cash, and they had accepted it; it was held that the plain- 
 tiff had not earned his commissions ; that when the price or limit 
 of $3.80 per thousand was fixed, it was equivalent to contracting 
 to pay the plaintiff the commissions agreed on, when he effected 
 a sale at that price; and that the contract being special, unless a 
 sale was effected according to its terms, no action could be main- 
 tained upon it. Jdcobs v. Kolff, 2 Hilt. 133. 
 
 If logs are delivered at a saw mill, under a contract with the 
 miller that he shall saw them into boards within a specified time, 
 and that each party shall have one-half of the boards; the trans- 
 action enures as a bailment merely, and the bailor retains his 
 general property in the logs till they are all manufactured pur- 
 suant to the contract. The contract in such a case is entire ; and, 
 as between the bailor and the bailee, the latter can acquire no 
 interest in any of the boards manufactured, by a mere part per- 
 formance within the time. Accordingly, where logs were thus 
 delivered to a miller who, after sawing a part of them into boards 
 within the time, failed to perform as to the rest and converted 
 both the boards and the logs to his own use; it was held, that 
 the bailor might recover in trover for the whole, and that the 
 miller was not entitled to any deduction on account of what had 
 been actually sawed. Pierce v. Schench, 3 Hill, 28. Had the logs 
 been delivered under a contract that the miller should return 
 boards generally, instead of the identical boards manufactured 
 from the logs, trover could not have been maintained, as the 
 transaction would then have amounted to a sale. Ih. 
 
 The plaintiff agreed with the defendants that he would keep 
 
130 SPECIAL COISTTEACTS TO LABOR 
 
 up and support in good order a building belonging to the defend- 
 ants; and that he would have the building well supported, for 
 which the defendants agreed to pay him $200. The plaintiff en- 
 tered upon the performance of the contract, and performed labor, 
 and furnished materials, to the amount of $400, as' estimated by 
 one of the plaintiff's witnesses. But the plaintiff abandoned the 
 job when it was about half completed, without any fault or con- 
 sent on the part of the defendants ; and it was held, that the agree- 
 ment, by its legal construction, required the plaintiff to furnish 
 the materials, as well as to perform the labor, and that, having 
 abandoned the performance of the work before its completion, 
 he could not recover anything for the labor done, or the materials 
 furnished. Cobh v. West, 4 Duer, 38. 
 
 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 is used by the vendee. 
 And where, in such a case, after the day had passed, the parties 
 agreed that the contract should be considered as performed on 
 the delivery of another specified quantity of lumber at a still 
 future day, and a portion of the lumber specified in such new 
 contract was delivered and used by the vendee, but it was not 
 all delivered ; it was held, that there could not he a recovery for 
 the lumber delivered under either contract. Paige v. Ott, 5 Denio, 
 406. 
 
 The foregoing cases show with what strictness the law enforces 
 the performance of a contract, when it is entire, and when the 
 performance of a condition precedent is necessary to a recovery 
 by the plaintiff. But there are many cases, in which the contract 
 itself does not require an entire performance before there may be 
 a partial recovery, for what is done in pursuance of it. 
 
 § 2. When Partial Performance Gives a Right of Action. 
 
 A contract to work for one year at ten dollars a month, and 
 the wages to be paid monthly at the end of each, month, will 
 enable the laborer to recover each month's wages as it becomes 
 due, notwithstanding he may have refused to perform the entire 
 contract. But the employer may deduct from such wages due, 
 such amount as will compensate in damages for the breach of the 
 contract by the laborer. 
 
 So, if grain or other property is sold, and it is to be paid for 
 as each load, or other quantity is delivered, the vendor may re- 
 
SPECIAL CONTEACTS TO LABOR 131 
 
 cover for each load delivered, although the whole quantity is not 
 delivered ; but such recovery may be . diminished to the extent of 
 the damages v^hich the purchasers may suffer, if the vendor re- 
 fuses to complete the contract on his part. 
 
 And where the contract made, is such that the terms of it are 
 independent on both sides; or where the plaintiff is not bound 
 to perform a condition precedent to his right of recovery, an 
 action may be maintained by him without a performance on his 
 part before the action is brought. 
 
 But it will be remembered, that such special contracts are 
 binding on both parties. And a breach of them does not in every 
 case occur on the part of the laborer, or of the person who has 
 sold and is to deliver property, etc. The employer, or the pur- 
 chaser, frequently refuses to perform the contract on his part, 
 and in such cases, he is also liable to such damages as may result 
 from such breach. 
 
 Where one contracts to employ another for a certain time at a 
 specified compensation, and discharges him without cause be- 
 fore the expiration of the time, the employer is in general bound 
 to pay the full amount of wages for the whole time; and, where 
 the plaintiff was employed as superintendent of a railroad for 
 one year at a salary of $1,500, was dismissed without cause after 
 performing the services for two months, and remained without em- 
 ployment during the whole period subseqiient to his discharge, al- 
 though he gave the company notice that he was ready to per- 
 form the contract on his part, it was held, that the plaintiff was 
 entitled to recover the whole $1,500, deducting therefrom, any 
 payments which had been made. Costigan v. MoTiawTe, &c., B. R. 
 Co., 2 Denio, 609. In such a case, the defendant may show in 
 mitigation of damages, that the plaintiff was engaged in other 
 business ; or it may be shown that he was offered similar employ- 
 ment which he had refused ; but the plaintiff is under no obliga- 
 tion to engage in a business different from that which he agreed 
 to perform for the defendant ; nor to go to a distant place to per- 
 form similar services. Ih. The employee discharged is bound 
 only to reasonable diligence in seeking other employment and is 
 not bound to show affirmatively that such' employment was sought 
 for and could not be found. Howard v. Daly, 61 IST. Y. 362; 
 Bassett v. French, 10 Misc. 672 ; Gillis v. Space, 63 Barb. 177. 
 When a servant is wrongfully discharged he has but two rem- 
 edies growing out of the wrongful act. 1. He may treat the con- 
 tract of hiring as continuing, though broken by the master, and 
 
132 SPECIAL COJSTTEACTS TO LABOR 
 
 may recover damages for the breach. 2. He may rescind the con- 
 tract ; in which case he can sue on a quantum meruit, for services 
 actually rendered. These remedies are independent of and ad- 
 ditional to his right to sue for wages actually due and earned 
 hy the terms of the contract. Howard v. Daly, 61 IST. Y. 362. 
 The fiction of a constructive service under which a servant dis- 
 charged without cause was allowed to recover wages, has been 
 discarded in the latter decisions. Ih. But the employee wrong- 
 fully discharged cannot pursue all these remedies in separate ac- 
 tions. An action upon one of them, and a judgment upon it is a 
 bar to any further action. Thus, if a person employed for a year 
 at a weekly salary, is wrongfully discharged at the end of the 
 first quarter, and brings an action for the breach of contract, in 
 which he recovers his damages up to the time of the commence- 
 ment of the action, the judgment will be a bar to the recovery of 
 other damages for the breach of the contract of employment in 
 any action subsequently brought. Waldron v. Hendrickson, 40 
 App. Div. 1. And see Colburn v. Woodworth, 30 Barb. 381. 
 
 The defendants, as shipping masters, agreed with P. to pro- 
 cure him employment on board a certain vessel, as carpenter for 
 the voyage, at $23 a month, and to notify him of the sailing of 
 the vessel in time to enable him to get on board. They failed 
 to give him timely notice, and the vessel sailed without him. In 
 an action for a breach of the agreement, it appeared that the 
 plaintiff was unable to obtain other employment, and it was held 
 that he was entitled to the same damages as though he had com- 
 menced work on the vessel, and had been improperly discharged ; 
 and also, that since the action was brought before the expiration 
 of the term of employment, the plaintiff could not recover damages 
 extending beyond the time of the trial. Maguire v. Woodside, 
 2 Hilt. 59. And see Hochster v. De La Tour, 2 Ell. & Blackb. 
 678. 
 
 The defendant delivered several paintings to the plaintiff to 
 clean and repair, at certain prices each. They were delivered 
 upon two occasions. The first parcel delivered was paid for. 
 After the plaintiff had commenced work on the second parcel, the 
 defendant desired the plaintiff not to go on with the work, as he 
 had concluded not to have it done. But the plaintiff, notwith- 
 standing, finished the cleaning and repairing of the pictures, and 
 then claimed to recover the contract price for the work. It was 
 held that the defendant was liable to an action for a breach of 
 the contract, and that the plaintiff might recover for the labor 
 
SPECIAL CONTRACTS TO LABOE. 133 
 
 done, and for svich materials as were furnished before the breach 
 of the contract by the defendant ; and also such damages as might 
 be legally assessed for the breach ; but it was also held, that the 
 plaintiff could not recover the contract price agreed on, because the 
 plaintiff had no right to go on with the work after such counter- 
 mand. Clarlc V. Marsiglia, 1 Denio, 317. 
 
 K. employed G. to shore up a wall of a building in a particular 
 manner, and at a specified price ; btit before the work had been 
 half performed, K. was not satisfied with the manner in which 
 the work was being done, and he notified G. not to proceed fur- 
 ther with it. C, notwithstanding this direction, completed the 
 shoring up, and then sued upon the contract, to recover the price 
 agreed on ; but it was held that the giving of the notice put an 
 end to the liability of K. upon the contract, for any work subse- 
 quently performed under it ; and that G. coidd recover only for 
 the value of the work done previous to the notice, with such dam- 
 ages as arose from the refusal of K. to fulfill his agreement. 
 Goodwin v. Kirher, 2 Hilt. 401. Where one party to a contract 
 terminates it by refusing to fulfill it, and gives notice to that 
 effect, the remedy of the other party is by an action to recover 
 the value of the work already done, with such damages in addi- 
 tion as may be shown to have resulted from the breach of the 
 agreement. Ih. 
 
 Where a party sues for work and labor done and performed, if 
 there is a special contract between him and the defendant, which 
 is not completed or executed according to its terms, the plaintiff 
 should state it, or refer to it in his complaint. If he fails to do 
 so, the defendant may set it up and urge it in his defense. And 
 in an action for work and labor generally, if it appears that there 
 was a special contract which has not been completed or executed 
 by the plaintiff, he cannot recover for the work comprised within 
 such special agreement. Atkinson v. Collins, 30 Barb. 430. In 
 such a case, if a part of the money is due under the agreement, 
 the plaintiff should set out the special agreement and allege a 
 partial performance, so as to show that a part of the money was 
 due. Ih. 
 
 Where one contracts with an infant to pay him for personal 
 services, he is not at liberty, after the services have been rendered 
 and after the infant has become of age, to refuse to pay him, be- 
 cause he was, at the time of contracting, an infant without a 
 guardian, when it appears that there was no one entitled to receive 
 bis wages. Gates v. Davenport, 29 Barb. 160. 
 
134 SPECIAL CONTEACTS TO LABOK. 
 
 In an action by an infant to recover for work and labor, it is 
 neither a defense to the action, nor a ground for reducing the 
 amount of the recovery, that the work was done under a contract 
 by the infant to labor for the defendant for a fixed period of time, 
 which he violated by leaving the defendant's employ, without 
 cause, before the time had expired. In such an action, the infant 
 is entitled to recover such sum for his services as he would be 
 entitled to if there had been no express contract made. Whit- 
 marsh v. Hall, 3 Denio, 375. 
 
 Where, under a contract of hiring for a specified period at a 
 fixed salary, the person employed continues to render services 
 beyond that period, he will be entitled to compensation at the 
 same rate for the additional time. A continuance in the employ- 
 ment of the hirer, with the consent of the latter, after the expi- 
 ration of the time specified in the agreement, is equivalent to a 
 new hiring upon the same terms, and the fact that the employer 
 does not continue to carry on his business during a portion of the 
 time, and that during that interval there is nothing for the em- 
 ployee to do in one of the capacities in which he is employed, will 
 not affect the construction of the contract or the liabilities of the 
 parties. Vail v. Jersey &c.. Manufacturing Co., 32 Barb. 564. 
 
 The law in relation to the performance of contracts will be dis- 
 cussed in another place. 
 
 , In has been seen in what cases sickness or death will excuse a 
 party for the non-performance of a contract to render personal 
 services. Ante, p. 41. 
 
 § 3. Contracts Conditioned upon " Satisfaction," etc. 
 
 Where a party agrees to work for another for a month, and if 
 the parties are suited with each other, that he will work during 
 the season, or six or seven months, he is bound to determine and 
 make his election at the end of the month, whether to quit, or to 
 stay during the season; and if he continues to work after the 
 expiration of the month, this is presumptive evidence that he 
 determined to stay through the season ; and he cannot afterwards 
 leave the employer's service before the end of the season, except 
 for a cause that would be a justification for abandoning or re- 
 scinding the contract. Peters v. Whitney, 23 Barb. 24. 
 
 Where the plainiff contracted to work for the defendant for a 
 certain period, at certain wages per month, and it was a part of 
 the agreement that if either party became dissatisfied he might 
 abandon, the contract, and the plaintiff quit before the time ex- 
 
SPECIAL CONTRACTS TO LABOR 135 
 
 pired, -without alleging any dissatisfaction, but on the pretense 
 that he had other business to attend to, it was held that he could 
 not recover for what he had done. Monell v. Bums, 4 Denio, 
 121. 
 
 Where there is a provision in the contract that the employee 
 may leave in case of a disagreement, the fact of a bona fide dis- 
 agreement is all that is necessary to entitle him to put an end to 
 the contract. Gates v. Davenport, 29 Barb. 160. 
 
 Where a writer entered into a contract with a newspaper cor- 
 poration to write two cohimns weekly, at a specified salary, upon 
 the progress of the world and other appropriate subjects, and in 
 the line of the policy of the paper, the contract to continue for 
 two years, provided the services of the writer should be satisfac- 
 tory to the publishers, and in case they were not that he should 
 have a week's notice, it was held that the publishers had the right 
 to terminate the employment at any time they might elect, if for 
 any reason the services of the writer were unsatisfactory. Craw- 
 ford V. Mail & Express Publishing Co., 163 N. Y. 404. In the 
 case cited, the writer did not agree to satisfy the court or jury, 
 but undertook to satisfy the publishers. It was their taste, their 
 fancy, their interest and their judgment that were to be satisfied, 
 and it, therefore, came within the line of cases involving taste, 
 fancy, interest, personal satisfaction and judgment. See also 
 Spring v. Ansonia Clock Co., 24 Hun, 1Y5 ; Tyler v. Ames, 6 
 Lans. 280 ; Hart v. Hart, 22 Barb. 606. 
 
 There is another line of cases in which the rule is applied that 
 " that which the law will say a contracting party ought' in reason 
 to be satisfied with, that the law will say that he is satisfied with." 
 City of BrooUyn v. BrooUyn City R. B. Co., 47 N. Y. 475 ; 
 Miesell v. Globe Mutual Life In^. Co., 76 IST. Y. 115, 119 ; Fol- 
 liard v. Wallace, 2 Johns. 395. Thus, if one party contracts to 
 do mechanical work in the best workmanlike manner, and to the 
 entire satisfaction of the other, and the work is done in the best 
 workmanlike manner, the employer cannot defeat a recovery by 
 arbitrarily and unreasonably declaring that it was not done to 
 his satisfaction. Doll v. Noble, 116 IST. Y. 230. And see Duplex 
 Safety Boiler Co. v. Garden, 101 IST. Y. 387. So, if the contract 
 provides for the discharge of the employee if the employer shall, 
 " in good faith," feel satisfied that the employee is incompetent, 
 etc., it must be shown that the employer acted in good faith in 
 dismissing the employee in order to defeat an action to recover 
 damages for a wrongful discharge. Smith v. Bobson, 148 IST. Y. 
 252 ; Grinnell v. Ki/ralfy, 55 Hun, 422. 
 
136 SPECIAL CONTRACTS TO LABOR 
 
 § 4. Deviations from the Original Contract. 
 
 There may be a special contract which is unperformed, and yet 
 the parties may so deal in relation to it, that the party who has 
 not fully performed, may nevertheless recover a portion of his 
 wages. 
 
 The plaintiff agreed to work for the defendants one year in 
 their manufactory, at the rate of one dollar a day ; it was also 
 agreed that the parties should settle at the end of every three or 
 four months ; at the expiration of about three months from the 
 time of making the agreement, a settlement took place, and the 
 defendants gave their note to the plaintiff for the amotmt of the 
 services rendered at the rate agreed on; the plaintiff shortly 
 afterwards quit the service of the defendants without their con- 
 sent, and sued them upon the note, and it was held that he wag 
 entitled to recover, because the giving of the note was so far a 
 modification of the original contract, as to prevent the defend- 
 ants from setting it up against their own note. Thorp v. White, 
 13 Johns. 53 ; Hoar v. Clute, 15 Johns. 224. But, although the 
 special contract does not prevent a recovery in such a case the 
 defendants would be entitled to recoup such damages as arose 
 from the breach of the agreement in not remaining the entire 
 time. Ante, pp. 40, 41. 
 
 There are cases in which an employer may dismiss a person 
 who is employed to perform personal services, if he is guilty of 
 such conduct as will justify his dismissal ; and so, the person 
 employed may leave for proper cause. Where one person con- 
 tracts to serve another for a specific time, a compliance with the 
 agreement is generally a condition precedent to the right to re- 
 cover for the service. But in such a case the servant may leave 
 his employer before the expiration of the time agreed, if suffi- 
 cient cause exists to justify such leaving, and he will, in that 
 event, be permitted to recover for the time he actually served 
 the other ; and in some cases beyond that. Gates v. Davenport, 29 
 Barb. 160. But where an employer turns a servant away, he 
 ought to be careful that he has good cause for doing so. 
 
 And where the defendant wrongfully dismissed a clerk on the 
 alleged ground that he had wrongfully and improperly misappro- 
 priated money remitted, and the jury found that the clerk had 
 not been guilty of the charges alleged as the ground of dismissal, 
 it was held that the jury were justified in awarding damages equal 
 to one year's salary, although the clerk had performed but about 
 three months' service under a contract of hiring for two years. 
 Smith V. Thompson, 8 Man., Grang. & Scott, 44. 
 
SPECIAL CONTRACTS TO LABOR. 137 
 
 Where parties deviate from the terms of a special contract to 
 perform work and labor, in an action for the work done, the con- 
 tract price will, so far as applicable, generally be the rule of 
 damages. But where the contract is terminated by the employer 
 against the will of the contractor, the latter is not confined to the 
 contract-price for the work done, but may bring his action for a 
 breach of the agreement, and recover as damages the profits he 
 would have made if allowed to complete the work, or he may 
 waive the contract, and bring his action on the common counts 
 for work and labor generally, and recover what the work is actu- 
 ally worth. But where the contractor elects to consider the con- 
 tract as rescinded, and brings his action for work and labor gen- 
 erally, he cannot recover for profits upon the unexecuted part of 
 the work. In such a case, the rule of damages is the actual value 
 of what has been done under the contract. Clark v. Mayor of 
 New Yorh, 4 E". Y. 338. 
 
 Where work done under a special contract is not completed 
 within the time limited for its performance, but is progressed 
 with after the day when it ought to have been done, with the 
 assent of the party for whom the work is done, a recovery may 
 be had under the common counts for the work done ; but the 
 plaintiff is confined to the rate of compensation fixed by the con- 
 tract, whether one party or the other be the innocent cause of 
 the delay, where there is no intimation during the progress of the 
 work of an intention to demand a different rate of compensation. 
 Merrill v. Ithaca, &c., B. B., 16 Wend. 586. But where the 
 delay is caused by the willful acts or omissions of the party for 
 whom the work is done, originating in a premeditated design to 
 embarrass and throw obstacles in the way of performance by the 
 other party, who, notwithstanding, proceeds and bestows his time 
 and labor in attempting the completion of the job, until in de- 
 spair he finally abandons the work, the rule that the special con- 
 tract must control as to the rate of compensation no longer pre- 
 vails, and the party is entitled to recover what his work is 
 reasonably worth. Ih. Allamon v. Mayor, &c., of Albany, 43 
 Barb. 33. And see Simmons v. Ocean Causeway, 21 App. Div. 
 30; LydecTcer v. Village of Nyach, 6 App. Div. 90. Where a 
 party contracted to do a given job of work by a stipulated time, 
 and in the contract there was a provision that a portion of the 
 work should not be done until directions were given by the other 
 party; it was held, that the power to suspend the doing of the 
 work, did not continue so long as to prevent the completion of the 
 
i;js SPECIAL CONTRACTS TO LABOR. 
 
 work within the time agreed on. Dubois v. Delaware, &c., Co., 
 4 Wend. 285. And where a party was prevented from perform- 
 ance within the stipulated time by the omission of the other, and 
 subsequently performed the work agreed upon, but at an enhanced 
 expense, it was also held, that he was not obliged to sue upon the 
 contract, but might recover what his work was reasonably worth. 
 Ih. But where there is a deviation from the special agreement, 
 it must be done by the agreement of the parties, or it must be 
 because the party for whom the work is to be done is in fault, or 
 causes the necessity for such deviation. If a party prevents the 
 performance of a contract, or renders it necessary to deviate from 
 it, he will not be permitted to take advantage of his own wrong- 
 ful acts or omissions. 
 
 If, however, there is no agreement to modify the contract, nor 
 any fault chargeable to the party for whom it is to be done, the' 
 work must be performed as agreed. 
 
 Where a person engages to build a house for another in a 
 good, skillful and workmanlike manner, at a price to be paid 
 when the work shall be completed, but he does it in a negligent, 
 unskillful and unworkmanlike manner, he cannot recover the 
 price agreed to be paid, nor any thing for the work done, when 
 the person for whom it was done has neither accepted the work 
 nor waived a faithful performance of the contract. Pullman v. 
 Coming, 9 JST. Y. 93 ; S. C, 14 Barb. 174. The plaintiff, by a 
 written agreement, executed on the 9th of October, 1849, agreed 
 to do the mason work, and furnish the materials for erecting a 
 building for the defendant, which was to be completed, except a 
 portion of the plastering, on or before the 20th of ISTovember then 
 next, which time was subsequently extended ten days. The build- 
 ing was to be three stories in height, the defendant reserving the 
 right to put on a fourth story, by paying a specified sum per 
 thousand for the brick used in the walls; it was held that the 
 defendant's right of election, in regard to the fourth story, could 
 only be exercised while a reasonable time remained for adding 
 another story and finishing the work, with the addition, by the 
 time specified in the contract, or as extended ; and that unless the 
 defendant exercised his right of election within that time he lost 
 it; and it was also held, that if, within that time, the defendant 
 elected to have a fourth story, the plaintiff was bound to construct 
 it, and perform all the work (except the plastering), by the 30th 
 of November ; and that the time for completing the job was fixed 
 in reference to all the work, including the foTirth story, if that 
 should be determined on. Lauer v. Brown, 30 Barb. 416. 
 
SPECIAL CONTRACTS TO LABOR 139 
 
 In the execution of a contract, it is not every circumstantial 
 variation from its terms v?hicli will deprive the contractor of the 
 equivalent which he was to receive. For instance, if a particular 
 amount or quantity is not of the essence of the contract, an ex- 
 cessive amount or quantity would not vitiate the performance; 
 as, if one should agree to deliver one hundred bushels of wheat 
 and should deliver one hundred and five bushels, it would be ab- 
 surd to say that he could not recover for the quantity mentioned 
 in the contract. So, if one should contract to construct a stone 
 wall five feet high, intended to inclose a field, and for that object 
 alone, and should build it of the height of six feet, the excessive 
 height ought not to prevent the recovering of the contract-price. 
 If, however, an excess in the amount or dimensions of the article 
 to be furnished would render it essentially a different thing, or if 
 the court could see, or it should be shown, that it would not as 
 well answer the purpose which the party contracting for it had 
 in view, the contract could not be considered as performed if the 
 amount or dimensions were exceeded. Turner v. Haight, 16 
 N. Y. 466, 467, per Denio, Ch. J. 
 
140 LANDLOED AINB TENANT. 
 
 CHAPTER V. 
 
 LANDLORD AND TENANT. 
 
 § 1. What Constitutes a Lease. 
 
 A lease or contract for the letting and hiring of real estate is 
 a contract whereby the temporary use and possession of a house 
 or land is granted by the owner to the hirer for a stipulated or 
 implied rem,uneration. Gilmore v. Ontario Iron Co., 22 Hun, 
 391; Coyne v. Peiner, 41 St. Rep. 93. He who grants the pos- 
 session and use of the property to be employed for hire, is called 
 the lessor, or landlord ; and he who has the enjoyment of it, pay- 
 ing the rent or hire, is called the lessee, or tenant. 
 
 It is a rule of law, that whatever words are sufficient to explain 
 the intent of the parties, that the one shall divest himself of the 
 possession and profits of the lands, and that the other shall come 
 into and occupy them for some determinate time, for a certain 
 hire or rent, such words, whether they run in the form of an 
 assignment, or of a license, covenant, or agreement, are of them- 
 selves sufficient, and will in construction of law amount to a lease 
 for years, as effectually as though the most proper and pertinent 
 words had been made use of for that purpose. 
 
 Leases may be oral, or in writing; but no lease for a longer 
 time than for one year will be binding unless it is reduced to 
 writing, and signed by the party to be charged, as required by 
 the statute of frauds, or now, by the Eeal Property Law. See 
 General Laws, ch. 46, § 224, Laws of 1896, ch. 547, § 224; Laugli- 
 ran v. Smith, 75 IST. Y. 205 ; Griffin v. Batist, 26 App. Div. 553. 
 The last-mentioned statute provides as follows : "A contract for 
 the leasing for a longer period than one year, or for the sale of 
 any real property, or an interest therein, is void, unless the con- 
 tract, or some note or memorandum thereof, expressing the con- 
 sideration, is in writing, subscribed by the lessor or grantor, or 
 by his lawfully authorized agent." Section 224 of the Real Prop- 
 erty Law is a substantial re-enactment of two corresponding sec- 
 tions of the former statute relating to fraudulent conveyances 
 and contracts relative to lands, forming a part of what was com- 
 monly knowa as the statute of frauds, and decisions made under 
 the one statute are equally applicable to cases under the other. 
 It is well to remember, however, that all of the provisions of the 
 Revised Statutes relating to fraudulent conveyances and contracts 
 
LANDLOKD AND TENANT. 141 
 
 relative to lands (K. S., j)art 2, ch. Y, title 1), were repealed by 
 Article 10 of the Keal Property Law. See Laws of 1896, vol. 1, 
 p. 623. 
 
 Where there is a written lease of premises for the term of five 
 years, an oral agreement by the tenant to relet a portion of the 
 premises to his landlord for the same term is void by the statute of 
 frauds, as a lease for the entire term, but it operates, under such 
 statute, as a lease from year to year during the time it is occupied. 
 Lounsbery v. Snyder, 31 K Y. 514. See Thomas v. Nelson, 69 
 N. Y. 118 ; Reeder v. Sayre, 6 Hun, 562 ; TO N. Y. 180 ; Dorr v. 
 Barney, 12 Hun, 259. 
 
 It is frequently a question whether an instrument is a lease 
 of itself, or merely an agreement to make a lease at a future 
 time; and whether, if a lease, it is to commence immediately, or 
 at a future time; or whether the term is to extend for several 
 years, or from year to year, or quarterly, or monthly, or at will, 
 or upon sufferance. 
 
 A memorandum for a lease, by which one of the parties agrees 
 to let, or lease, to the other for a specified term at a specified rent, 
 certain described premises, and which states the time of payment 
 and the covenants to be kept and performed by the other, and also 
 contains an agreement on the part of the latter to take the premises 
 on such terms and conditions, is a lease and not an agreement for 
 a lease. Hallett v. Wylie, 3 Johns. 44. And see Whitney v. 
 Allaire, 1 N. Y. 305. 
 
 An instrument in writing between the owner of lands and a 
 person to whom he had by parol agreed to let them for a term 
 of years, and who had been in possession under the parol agree- 
 ment, for some months, antedated to the time when the tenancy 
 commenced by which the owner of the premises " agrees to lease 
 and rent " them to the other at certain specified rents and upon 
 certain conditions, and the latter " agrees to rent the said prem- 
 ises on the terms, and conditions above expressed," is a present 
 demise and not a contract to give a lease. Averill v. Taylor, 8 
 ]Sr. Y. 44. Where the terms of an oral agreement for the renting 
 of premises for one year are all agreed upon and nothing remains 
 to be done except to reduce them to writing, the contract is com- 
 plete although the writing is never drawn. Wilbur v. Collin, 4 
 App. Div. 417; William Wicke Co. v. Kaldenberg Mfg. Co., 21 
 Misc. 79 ; 46 N. Y. Supp. 937. And see Sanders v. P. B. F. Co., 
 144 K Y. 209 ; 7ourgensen v. Traitel, 47 St. Eep. 413. And 
 generally speaking, where a paper is produced containing all the 
 
142 LANDLOKD AND TENANT. 
 
 terms and conditions necessary to a lease, effect will be given to 
 it as a lease and not as a mere agreement for a lease. Marcus v. 
 Collins Building & Construction Co., 2Y Misc. 784; 57 N. Y. 
 Supp. 737. See Coyne v. Feiner, 41 St. Kep. 93 ; 16 JST. T. Supp. 
 203. And a written lease is valid between a lessor and a lessee 
 who lias occupied under the lease although, signed by the lessee 
 only. Evans v. Conhlin, 71 Hun, 536 ; Laughran v. Smith, 11 
 Hun, 311. 
 
 If a witness testifies, that he, as agent for the plaintiff, leased 
 certain premises to the defendant for one year, at $50 a year, 
 payable quarterly, reserving the right to sell, and that the defend- 
 ant accepted the premises on those terms, and went on and occu- 
 pied them; this is sufficient evidence of a lease upon the terms 
 mentioned. Frost v. Benedict, 21 Barb. 247. 
 
 Where the owner of land agTees, in writing, that his creditor 
 may occupy a dwelling house belonging to him " for the term of 
 one year, and until he should pay money on a certain mortgage 
 which the creditor held against him," the relation of landlord and 
 tenant exists between the parties, and on payment of the money, 
 after the first year, and a refusal of the creditor tO' yield up the 
 possession, the owner may institute proceedings against the cred- 
 itor under the statute authorizing summary proceedings to obtain 
 possession of land. It is in the election of the owner to put an 
 end to the term at any time after the first year, by paying the 
 mortgage, although the money is not due, according to the terms 
 of the mortgage, under four years. Hunt v. Comstock, 15 Wend. 
 665. A written formal lease was executed, which leased certain 
 premises for one year ending May 1, 1845, at a yearly rent of 
 $550; on the back of this lease an indorsement was made, ex- 
 tending the lease to May 1, 1846, at a rent of $600, which in- 
 crease of rent was to be the only alteration of the original lease; 
 and on the 18th of February, 1846, a second agreement was in- 
 dorsed on the original lease, " The within lease hereby extended 
 for the further period of one year, 1st day of May, 1S46, with- 
 out any alteration," it was held that this last agreement included 
 the original lease, and also the memorandum which increased the 
 rent, and that the tenant was bound to pay a rent of $600 a year, 
 for the last year. Cram v. Dresser, 3 Sandf. 120. Where a lease 
 and a counterpart are each executed by both parties, both are 
 originals. Lewis v. Payn, 8 Cow. 71. 
 
 What is not a lease — Whether an instrument shall be consid- 
 ered a lease, or only an agreement for a lease, depends upon the in- 
 
LANDLORD Al^D TENANT. 143 
 
 tention of the parties, to be collected from the whole instrument ; 
 the law will rather do violence to some of the words, than break 
 through the intent of the parties, by construing it to be a lease, 
 when the intent is manifestly otherwise. An instrimaent com- 
 menced with a recital that it had been agreed between the parties 
 that the premises should be improved by the defendant, and let 
 to the plaintiff upon a certain rent, " which lease the said U. B. 
 (plaintiff's lessor) hath on his part agreed to take from the said 
 J. D. (the defendant) when the premises shall he so altered and 
 improved." The instrument specified the alterations and im- 
 provements which were to be made, and then followed a formal 
 lease of the premises to hold from the time the improvements were 
 made. It was found impossible to make the improvement in the 
 old building, and it was therefore taken down and a new one 
 built in its place. The instrument contained a clause that the 
 plaintiff should have the premises, " from the day that the said 
 store and cellar shall he altered and improved in the mMuner above 
 mentioned/' it was held, that on the whole instrument, this was 
 an agreement for a lease, and not a lease or present demise. 
 Jackson v. Delacroix, 2 Wend. 433. 
 
 Where there is no express agreement, between landlord and 
 tenant, as to the price to be paid by the latter for the use and 
 occupation of the premises, the landlord ought to be allowed 
 what the use of the premises is reasonably worth; and the fact 
 that a conversation had taken place between the parties, in which 
 both parties supposed an agreement had been made as to the 
 amount of rent to be paid, will not prevent the landlord from 
 recovering upon an implied agreement, where it appears that the 
 parties differed in their understanding as to the amount which 
 was to be paid. Scranton v. Booth, 29 Barb. 171. But there can- 
 not be a recovery upon an implied promise, when there is an 
 express agreement. Harris v. Story, 2 E. D. Smith, 364; Wood 
 V. Edwards, 19 Johns, 205. Where one goes into the possession 
 of lands under a contract to purchase them, and not as tenant, 
 and in consequence of the vendor's failing to perform the con- 
 tract, the purchaser abandons the premises, he will not be liable 
 either for rent, or for use and occupation. Sylvester v. Ralston, 31 
 Barb. 286. And so where there is a contract for the purchase 
 of land, under which the purchaser enters into possession, but he 
 afterwards refiises to complete the purchase, the vendor cannot 
 maintain an action against him to recover for the use and occu- 
 pation, because the relation of landlord and tenant was not 
 
144 LANDLOED AND TENA]N"T. 
 
 created by the contract. Smith v. Stewart, 6 Johns. 46 ; Jackson 
 V. Walker, 7 Cow. 637; DoUttle v. Eddy, 7 Barb. 75; Thompson 
 V. Bower, 60 Barb. 463. And see Harris v. Frink, 49 IST. Y. 24. 
 
 The vendor, howeyer, is not remediless, for he may sue for the 
 breach of the agreement in not paying the purchase-money; or, 
 if the purchaser is in default, and refuses to complete the pur- 
 chase, the vendor may turn him out by an action of ejectment, 
 and then recover damages by way of the mesne profits, etc. Smith 
 V. Stewart, 6 Johns. 46; Jackson v. Walker, 7 Cow. 637. The 
 vendor may also re-enter and take possession peaceably. DoUttle 
 V. Eddy, 7 Barb. 75. An agreement to sow different kinds of 
 grain upon a farm, and to yield a certain proportion of each kind 
 of crop to the owner of the land, is an agreement to work the land 
 on shares, and not a lease of such land; and therefore no action 
 will lie by the owner of the land to recover rent for the use of the 
 land. Caswell v. Districh, 15 Wend. 379 ; Harrower v. Heath, 
 19 Barb. 331; Putnam v. Wise, 1 Hill, 23'4; Tripp v. Biley, 15 
 Barb. 333 ; Dinehart v. Wilson, 15 Barb. 595. 
 
 A contract was entered into between H., the owner of a farm, 
 and one M., by which the latter agreed that he and his wife would 
 work for H. one year ; M. was to labor on the farm, and his wife 
 to perform the duties of housekeeper. The price for the year's 
 services was to be $160. ]VI., with his wife, accordingly moved 
 into a house on the farm, carrying with them their household 
 furniture, and entered upon the performance of the contract. 
 Subsequently, H. having become dissatisfied with M.'s conduct, 
 ordered him to quit his service, and to leave the house, which M. 
 declined to do ; whereupon, H. entered the house and put the 
 furniture out of it ; M. then sued H. in trespass ; but it was held, 
 that the agreement between the parties did not constitute the 
 relation of landlord and tenant, but merely that of master and 
 servant, and that consequently the action, if any, should have 
 been for the breach of the contract to employ him a year. Hay- 
 wood V. Miller, 3 Hill, 90. And see People v. Annis, 45 Barb. 
 304; Kerrains v. People, 60 IST. Y. 221. In the ease of Haywood 
 v. Miller, above cited, the court said, " True, it is assumed by 
 the contract that the defendant below should furnish a house, 
 and so does every master agree to furnish a house, or house room, 
 which is the same thing, for his domestic servants. It does not 
 follow, that when he becomes dissatisfied and gives his servant 
 warning to depart, and the latter refuses, that the master may 
 not turn the servant away and remove his goods. To be sure, 
 
LANDLOED AND TENANT. 145 
 
 llie master does this under peril of paying damages for a breach 
 of the contract with his servant, if he cannot show good grounds 
 for dismissing him. Eut he is not a trespasser, whether he have 
 good cause or not." 
 
 But there may be cases in which the servant agrees to work for 
 a year for a stipulated sum, and in which he hires a house of his 
 employer for a year at a given price, and in such cases, the rela- 
 tion of landlord and tenant would exist by the express agreement 
 of the parties. And unless the agreement gives the employer 
 some right to turn the tenant out of the house, for quitting his 
 service or for some other specified cause, he would not be justified 
 in turning the tenant out, as was done in Haywood v. Miller; 
 because, in that case, it was expressly decided that the relation 
 of landlord and tenant did not exist. 
 
 To create a letting there must be words of present demise ; and 
 an allegation that the landlord promised and agreed to let, and the 
 tenant promised and agreed to take the premises for another year, 
 does not show a lease for such year but an agreement for a lease. 
 Salomon v. Weisberg, 29 Misc. 650. 
 
 Lease by estoppel — - When a man grants a lease under seal, he 
 is not permitted to avoid his own grant by proving that he had 
 no interest in the demised premises, unless he is a public trustee 
 acting under some public authority, etc. And if one leases lands 
 when he is not owner of them, but he subsequently acquires title 
 to them, he will be estopped from denying the validity of the lease. 
 Bac. Ab. Leases, A. Where, in an action for rent, the lease is 
 admitted by the defendant to have been made with the plaintiff 
 as his landlord, the defendant cannot deny his landlord's title, 
 and resist a recovery on the ground that a third person is the 
 real owner. Jackson v. Whedon, 1 E. D, Smith, 141. And see 
 Ingraham v. Baldwin, 12 Barb. 9 ; 9 N. Y. 45 ; People v. Stiner, 
 45 Barb. 56 ; 30 How. 129 ; Doherty v. Matsell, 16 St. Kep. 593 ; 
 17 St. Eep. 747; 56 Super. Ct. 76. The tenant is estopped from 
 claiming any interest adverse to his landlord, at least so long as 
 the tenancy continues. Lambert v. Ruber, 22 Misc. 462 ; 50 N. 
 Y. Supp. 793. The result is the same although it appears upon 
 the face of the lease that the landlord had no legal estate. Tilyou 
 V. Reynolds, 108 N. Y. 658 ; Bohn v. Hatch, 39 St. Eep. 404. 
 
 Where a person acknowledges the right of another to premises, 
 
 and makes an agreement with him for the occupation thereof by 
 
 himself as tenant, for a limited period, he cannot dispute his 
 
 landlord's title by setting up an outstanding claim held by himself 
 
 10 
 
146 LANDLOKD AND TENANT. 
 
 from a different party, when the landlord had no notice of such 
 claim at the time he leased the premises. People v. Stiner, 45 
 Barb. 56; 8. C, ;30 How. 129. 
 
 The principle that a tenant may not dispute the title of his 
 lessor who has put him in possession of the premises, is not un- 
 qualified. The rule is, that a tenant miay not accept possession 
 from a lessor, hold and enjoy under the demise, and then refuse 
 to pay the rent, or refuse to yield the possession to his lessor at 
 the termination of his lease, and justify his refusal in either 
 case, by alleging or proving that the lessor, under whom he has 
 had such enjoyment, had in fact no title. But an eviction under 
 a paramount title is a defense, whether such title was in the evictor 
 before the lease, or was acquired by him after the lease was ex- 
 ecuted. Moffat V. Strong, 9 Bosw. 57. A tenant who has been 
 evicted and put out of possession by one having a title paramount 
 to that of the landlord, may defend an action brought by the 
 latter for rent, although the ouster was not by virtue of a judgment, 
 decree, or any other legal process ; though the burden will be upon 
 the tenant to show that he acted in good faith, and that such 
 title was in fact paramount. Ih. If the eviction is from a part 
 of the premises only, it entitles the tenant to an apportionment 
 of the rent, and an abatement according to the relative value of 
 the part from which he is evicted. Ih. The implied covenant 
 for quiet enjoyment which arises in a lease for a term not exceed- 
 ing three years, is broken by an expulsion from the premises by 
 one having paramount title, even though such eviction was not 
 authorized by any judgment or decree. Ih. 
 
 Although a tenant when called upon to pay rent cannot deny 
 the title of the landlord under which he entered, it is competent 
 for him to show that it has terminated, either by its original lim- 
 itation, or by conveyance, or by the judgment and operation of 
 law. Jackson v. Rowland, 6 Wend. 666 ; Jackson ex dem. Van 
 ScJiaick V. Davis, 5 Cow. 135 ; II(;>ag v. Hoag, 35 IST. Y. 469 ; 
 Lodge v. Martin, 31 App. Div. 13 ; Van Etten v. Van Etten, 69 
 Hun, 499; Lane v. Young, 66 Hun, 563. Thus, where a tenant 
 is sued for rent it is competent for him to show that the title of 
 his landlord was divested in condemnation proceedings, and that 
 the rent sued for accrxied subsequent thereto. Lodge v. Martin, 
 31 App. Div. 13. 
 
 In an early case, the plaintiff being the owner of the residue 
 of a term of three years by assignment from the original lessee, 
 gave notice to the defendant, who was a sub-tenant holding under 
 
LANDLOED AND TENANT. 147 
 
 such original lessee, and whose term was then expiring, that in 
 case such sub-tenant should hold over, the plaintiff would con- 
 sider the premises as taken by him for the term of one year, at the 
 rent of $1,500, per annum, payable quarterly, at the samie time 
 giving him notice of his title as assignee of the lease. The de- 
 fendant made no reply, but held over and continued to occupy 
 the premises, and it was held : 1. That this was a virtual assent 
 to the terms prescribed in the notice, and created a privity of 
 contract between the parties; 2. That the defendant, if liable 
 at all, was liable under the contract, and that evidence tending 
 to show that the premises were worth less than $1,500 a year 
 was immaterial, and properly excluded at the trial ; and, 3. That 
 the defendant was at liberty to show that the assignment to the 
 plaintiff, by the original lessee of his term, was made for the 
 purpose of securing a debt, and that such debt had been fully 
 paid at the time when the notice was served on the defendant by 
 the plaintiff. Despard v. Walhridge, 15 IST. Y. 374. 
 
 This defense is not a violation of the rule that a tenant cannot 
 deny the title of his landlord ; because in this case, the tenant 
 did not obtain the possession of the premises by a contract with 
 the plaintiff; and again, it was an offer to show that the land- 
 lord's title, if he had any, had expired or was extinguished. lb. 
 And see Jackson v. Rowland, 6 Wend. 666. 
 
 Description or identity of premises. — Any general description 
 of the premises is sufficient if it is such that the premises may 
 be distinguished and identified by it. And if the description is 
 ambiguous, the real intent may be shown by parol evidence so 
 far as it relates to the description or identity of the property. 
 Spencer v. Babcoch, 22 Barb. 326. 
 
 Where a party leases to others his " farm and farm house 
 thereon" this does not operate as a restriction, so as to exclude the 
 lessees from the right to the possession of other houses on the farm. 
 The whole farm being let to the lessees, without any exception or 
 reservation of houses, the mere omission to specify two houses 
 thereon, occupied by others, will not amount to a positive exclu- 
 sion of the lessees from them. A lease of a farm, consisting of 
 a specified number of acres, embraces all the buildings upon the 
 land, whether specified or not. Hay v. Cumberland, 25 Barb. 594. 
 
 When a landlord leases premises to a tenant, he gives or grants 
 with the premises all such appurtenances and accompaniments as 
 properly belonged to them, with all such rights of way as are 
 necessary to enable the tenant to have the use and enjoyment 
 
148 LANDLOKD AOT) TENANT. 
 
 of the premises demised, for whicli the rent is agreed to be paid. 
 Anything necessary to the use and enjoyment of the demised 
 premises for the purposes intended by the parties must be implied, 
 where it is not expressed in the lease. Kelsey v. Durlcee, 33 Barb. 
 410. And where a lease stated that the premises were demised 
 to be used as a soda, saleratus and drug factory, with a right to 
 use a steam engine and furnace therein; it was held, that this 
 clause was designed to enable the tenants to introduce their engine, 
 and the necessary vessels and apparatus into the building, and 
 involved the right to make an opening in the wall, for that pur- 
 pose, if necessary. Ih. 
 
 When the lease is in writing, and it describes the premises 
 leased with clearness and certainty, parol evidence is not admis- 
 sible to explain or contradict such description. But if no descrip- 
 tion is given, then parol evidence is admissible for the purpose 
 of applying the lease to its proper subject-matter and identity of 
 premises. Thus, where a landlord executed a valid lease of certain 
 premises for the term of three years, and the lease described the 
 jDremises as " Nos. 162 and 164 Seventh avenue," it was held that 
 parol evidence was admissible to show that a particular rear yard 
 or lot passed with the demise of the two houses. Cary v. Thomp- 
 son^ 1 Daly, 35. So if a lease purports to lease a farm, or a house 
 and lot, without any practical description of it, and the landlord 
 has several farms, or houses and lots, parol evidence will be ad- 
 missible for determining which farm, or which house and lot was 
 intended. So, again, if the description is contradictory, or is par- 
 tially correct and partially incorrect, parol evidence is admissible 
 to show which is the true description. Lush v. Druse, 4 Wend. 
 313. 
 
 Buration of term. — It is sometimes the case that parties differ 
 in relation to the time when the term of a lease commences, and 
 when the payments become due under the lease. Leases are 
 sometimes drawn in such a manner that no reasonable dispute 
 can occur. But, in other cases, the language is ambiguous or 
 indefinite, and resort must then be had to some method of set- 
 tling the question. If the lease is limited to commence " from 
 the date," or " from the day of the date," the words are either 
 inclusive or exclusive, according to the context and subject-matter 
 of the written instrument, and the apparent intention of the con- 
 tracting parties. 
 
 An agreement for the occupation of real property in the city 
 of New York, which does not particularly specify the duration of 
 
LANDLOED AND TENANT. 149 
 
 the occupation, must be deemed to continue until the first day 
 of May next after the possession commences under the agreement, 
 and rent thereunder is payable at the usual quarter days for the 
 payment of rent in that city, unless otherwise expressed in the 
 agreement. General Laws, ch. 46, § 202 ; Laws of 1896, ch. 547, 
 § 202. But this is merely a local statutory rule, which has no 
 general application. 
 
 When a lease is executed before the time when the term is to 
 commence, and it declares that the premises describing them 
 are leased to the lessee for a specified term, as for one year, from 
 the first day of May next ensuing, it is a general rule that the 
 first day of May is included, unless there is some clause in the 
 lease to modify that construction. The case of Wilcox v. Wood, 
 9 Wend. 346, 348, does not conflict with this' statement. The 
 court said : " If it is from the first day of May, or from the day 
 of the date, and the lease is dated the first day of May, then, ac- 
 cording to the rule in England, as at present understood, the 
 first day is included. I know of no decision in this State settling 
 that precise point." 
 
 B., the defendant, leased certain premises to M., who assigned 
 his interest to D., the plaintiff; the lease was dated January 25th, 
 1853, and the premises were declared to be leased " from the 
 first day of April next, for and during and until the full end and 
 term of five years," thence next ensuing, etc., yielding and paying 
 therefor unto the lessor, yearly and every year, the yearly rent 
 or sum of $4,000, " in equal quarterly payments, to wit., on the 
 first days of April, July, October and January, in each and every 
 year during the said term." The premises were leased for the 
 manufacture of brick, and the lease contained a covenant on the 
 part of the lessee, to the effect that he would, at all times, have 
 and leave upon the said yard, brick enough to secure one quar- 
 ter's rent, and in case of default in the payment of such rent, 
 the lessor was authorized either to re-enter and take possession of 
 the premises, or to enter upon said yard and take therefrom, and 
 sell at fair market prices, brick enough to pay the rent so in ar- 
 rear and unpaid ; it was held, that the term commenced on the 
 first day of April, 1853, and included that day; and that the first 
 quarter's rent was payable on that day, in advance ; and it was 
 also held, that the rent for the quarter commencing October 1, 
 1854, and ending January 1, 1855, was payable, by the terms 
 of the lease, on the 1st day of October, in advance ; and that, upon 
 its remaining unpaid, the lessor was justified in entering upon 
 
150 LANDLOKD AND TENANT. 
 
 the premises and selling brick enough, to satisfy such rent. Deyo 
 V. Bleahley, 24 Barb. 9. A lease may also contain expressions 
 ■which will exclude the first day named, because the intention will 
 always prevail, if it can be ascertained. Ordinarily, it is not ex- 
 pected that rent will be paid in advance, unless, as in the last 
 case, the contract evidently shows that to be the intention of the 
 parties. But, generally, the rent is payable at the end of the 
 term of the year, when it is a yearly hiring. 
 
 The rent is the return or compensation which the lessor re- 
 ceives, and which the lessee pays, for the use of the land; and, 
 in the absence of any agreement to the contrary, it is but reason- 
 able that the tenant should have the use of the land before he is 
 required to pay for it. See Thornton v. Payne, 5 Johns. 74, 76. 
 
 A. executed to D. a lease of certain premises for one year ; and 
 the lease also contained a clause in these words, " D. to have the 
 privilege to have the premises for one year, one month and twenty 
 days longer, but if he leaves, he is to give four months' notice 
 before the expiration of this lease ; " it was held, that the lease 
 created a term for the full period of two years, one month and 
 twenty days, defeasible at the election of the tenant, after one 
 year, by giving notice of his intention to leave the premises, four 
 months previous to the end of the year. Chretien v. Doney, 1 
 N. Y. 419, 422. The court said, " The lease from Chretien to 
 Doney was a lease for one year ; or for two years, one month and 
 twenty days, at the option of Doney. Doney's election to give 
 up the premises at the end of the first year, was to be signified 
 by a notice of at least four months before the expiration of that 
 year. If he failed to give the notice the contract became a lease 
 for the longer time." A lease was executed for a term commenc- 
 ing the 1st day of July, 1853, and ending the 1st day of July, 
 1855, "with the privilege of two years more, if desired," one 
 month before the expiration of the period specified, at a certain 
 yearly rent, to be paid monthly during the time, with a clause 
 expressing that the lessees had hired and taken the premises 
 " for the term and at the rent aforesaid," and that they agreed to 
 pay the rent ; it was held, that it was not contemplated by the 
 parties, that, in case the lessees should desire the premises for 
 the additional two years, that a new lease should be made, em- 
 bracing the further time ; but that it was intended that the pres- 
 ent lease, on notice being given, should cover the whole period; 
 and that the agreement to pay rent was co-extensive with the 
 entire term of the lease, not only as it was originally fixed, but as 
 
LANDLOKD AISTD TENANT. 151 
 
 it should be extended according to the provisions of the lease. 
 House V. Burr, 24c Barb. 525. 
 
 Where premises are leased " for the term of one year and an 
 indefinite period thereafter," at an annual rent which the lessee 
 agrees to pay, and he enters and occupies several years, he is the 
 owner of the estate as tenant from year to year, arising out of 
 the original demise. Pugsley v. Aihin, 11 IST. Y. 494. 
 
 Where a lease contains a claiise giving the lessee the privilege 
 of keeping and occupying the demised premises for such further 
 time after the expiration of the term fixed by the instrument as 
 the lessee shall choose or elect, yielding and paying therefor the 
 same rent, the most that is created by the clause is a tenancy from 
 year to year after the termination of the term, determinable at 
 the pleasure of the lessee, or at the pleasure of the owner of the 
 reversion, upon giving the requisite notice. Weste7-n Transporta- 
 tion Co. V. Lansing, 49 IST. Y. 499. 
 
 A covenant to give a new lease, or to renew or extend the time 
 of the original lease, may be so drawn as to bind the lessor only, 
 and leave it optional with the lessee whether he will accept a new 
 lease or not. The construction of the covenant depends upon the 
 context and the intention of the parties as gathered from the 
 whole instrument. Bruce v. Fulton Nat. Bank, Y9 N. Y. 154. 
 
 § 2. Holding Over by the Tenant. 
 
 A tenant may hold over in possession of premises in either of 
 two ways : 1. By wrongfully or willfully holding over against 
 the will of the landlord ; or, 2. By remaining with the implied 
 assent of the landlord. 
 
 Where the tenant, for one or more years, holds over after the 
 expiration of his term, the landlord has the option to treat him 
 as a trespasser or as a tenant for another year, upon the terms 
 of the prior lease, so far as applicable. The law, from, the con- 
 tinuance of the possession, implies a contract on the part of the 
 tenant, to renew the tenancy for another year, on the terms of 
 the original holding. Schuyler v. Smith, 51 N. Y. 309 ; Laugh- 
 ran V. Smith, 75 ISr. Y. 205; Haynes v. Aldrich, 133 N. Y. 287; 
 Achley v. WesterveU, 86 IST. Y. 448; Sullivan v. Bingler & Co., 
 59 App. Div. 184. If the tenant holds over without objection 
 being made by the landlord, it will be presumed that both parties 
 are willing to continue the tenancy on the terms of the prior 
 lease. Abeel v. Eadcliff, 15 Johns. 505; Evertson v. Sawyer, 2 
 Wend. 507. But the option to so regard it is with the landlord 
 
152 LANDLOED AND TENANT. 
 
 and not with the tenant, and if he holds over the term it is at his 
 peril. The act of a tenant in holding over gives the landlord the 
 legal right to treat him as a tenant, and it is not in his power to 
 throw oS that character, however, onerous it may be. The fact 
 that the tenant has notified his landlord that he has rented other 
 premises, and did not intend to stay another year, does not pre- 
 vent the presumption, arising from the fact of holding over, from 
 determining the legal rights and relations of the parties. Con- 
 way V. Starkweather^ 1 Denio, 114; Haynes v. Aldrich, 133 
 N. Y. 287 ; Schuyler v. Smith, 51 N. Y. 309 ; Adams v. City of 
 Cohoes, 127 JST. Y. 175, 182. But the rule is not an arbitrary 
 one, and it is not so rigid that it cannot be made to bend in ex- 
 ceptional and peculiar cases. Where the holding over is wrongful 
 or voluntary, and not unavoidable in the strictest sense, the rule 
 must be permitted to have full application. But where a tenant 
 is obliged to retain a portion of the demised premises for a brief 
 period, after the expiration of his term, in order to avoid the peril 
 of exposing a member of his family to danger and death, it cannot 
 be said that he is holding over within the meaning of the law, 
 and the rule ought not to be applied. Herter v. Mullen, 159 
 N. Y. 28. So, where a possible holding over beyond the term 
 specified in the lease was in the minds of the parties when the 
 lease was executed, and was provided for therein, the rule will 
 not be applied. Pickett v. Bartlett, 107 N. Y. 277. Thus, where 
 a person leases premises for one year, and agrees to surrender the 
 possession at the end of the term and to pay rent for the term, 
 " and for such further time " as he may hold the premises, a 
 holding for a period less than a year beyond the term specified 
 in the lease will not enable the landlord to treat the tenant as a 
 wrongdoer, or to hold him for the rent for the full year. Ih. So, 
 where premises owned by tenants in common are leased to a firm 
 of which one of the tenants in common is a member, and such 
 tenant in common consents that the firm may hold over for a time 
 at a pro rata rent, for convenience in moving, the rule does not . 
 apply. Valentine v. Healey, 158 IST. Y. 369. 
 
 Where a tenant agrees to pay a certain sum in gross for the 
 rent of premises for a term less than a year, and then holds over 
 after the expiration of his term, it seems that the sum agreed to 
 be paid for the term specified in the contract is not to control in 
 fixing the value of the use of the premises under the subsequent 
 holding; and that the rule applicable to cases where there has 
 been a tenancy at a specified annual rent will not furnish the 
 
LANDLORD AND TENANT. 153 
 
 proper measure of damages. In an action against such tenant 
 for the use and occupation of the premises, proof of actual value 
 is proper. Evertson v. Sawyer, 2 Wend. 507. And where it is 
 not clear whether a tenant has not continued in the occupation 
 of premises after the expiration of his term, with the con- 
 sent of his landlord, pending negotiations for a new lease, with 
 the understanding that, in case no new lease should be made, the 
 tenant should surrender the premises and not be liable for 
 rent thereafter, the question whether there was a holding over 
 should be determined as a question of fact. Smith v. Allt, 7 Daly, 
 492 ; 4 Abb. New Cas. 205. 
 
 Where the landlord elects to treat the holding over as wrong- 
 ful, he may have his remedy by action of ejectment, or the more 
 speedy remedy for the recovery of the possession of the property 
 furnished by the Code, known as a summary proceeding. See 
 Code of Civil Pro., § 2231. 
 
 Where a lease for a term of years contains a covenant on the 
 part of the landlord, that, at the expiration of the term, the ten- 
 ant shall be paid the appraised value of a dwelling-house to be 
 erected by him on the premises, or that a new lease for the same 
 term of years, at an appraised rent (excluding from the appraise- 
 ment the value of the dwelling-house), shall be granted to him; 
 the tenant, at the expiration of the term, is entitled to retain the 
 possession until the covenant shall be performed by the landlord 
 or his representatives. But the tenant so retaining the possession 
 is not discharged from the payment of rent, but is subject to the 
 general rule, that a tenant . holding over after the expiration of 
 his lease, with the consent of the landlord, becomes a tenant from 
 year to year, subject to all the terms and conditions of the origi- 
 nal lease. The landlord, however, is equally bound by the same 
 rule, and, therefore,, in an action for use and occupation, can 
 recover no more than the rent originally reserved. He is not en- 
 titled to the increased value of the premises. Holsman v. Abrams, 
 2 Duer, 435. 
 
 Where premises have been let for a term of years, and a 
 siib-lessee of the tenant holds over after the expiration of the term 
 fixed by the principal lease, the tenant is liable to his landlord for 
 rent accruing while the siib-lessee remains in possession, notwith- 
 standing a declaration made to the collector of rents, at the expi- 
 ration of the term, that he would not be responsible for anything 
 thereafter. Manheim v. Seitz, 21 App. Div. 16 ; Haynes v. Ald- 
 rich, 133 N. Y. 287; Sullivan v. Ringler & Go., 59 App. Div. 
 
154 LANDLOED AND TENANT. 
 
 184. If the lease was for a term of years, the landlord has his 
 election to treat the tenant as a trespasser or as a tenant for an- 
 other year from the expiration of the original lease. But, if the 
 landlord relets the premises to another tenant after the premises 
 become vacant, this is an election not to hold the original tenant 
 as a tenant for the year, and defeats an action against him for 
 any rent accruing after the premises were vacated. Coleman v. 
 Fitzgerald Brothers Brewing Co., 29 Misc. 349 ; Goldberg v. Mitt- 
 ler, 23 Misc. 116. JSTo landlord can have two tenants for the same 
 premises at the same time under conflicting claims. Ih. 
 
 Where the tenant allows all the property of an incorporated 
 association which had occupied the premises to remain thereon 
 after the expiration of the term, this, as a matter of law, is a 
 holding over; and an agreement between the landlord and tenant 
 that the tenant is to be released after a certain date will not dis- 
 charge the tenant from liability for rent if he continues to occupy 
 the premises after such date. The law will imply from such 
 occupation a new agreement to pay. Voshurgh v. Corn, 23 App. 
 Div. 147. 
 
 There is a class of cases which hold that the question as to 
 whether there has been a holding over by the tenant may become 
 a question of fact. Such a question is presented where there has 
 been a clear intent to surrender possession, accompanied by nego- 
 tiations to that end, and the great bulk of the property of the 
 tenant has been removed from the premises, or where that left 
 upon the premises consists of fixtures and articles of small value 
 which the tenant intends to abandon. See Frost v. AJcron Iron 
 Co., 1 App. Div. 449 ; Excelsior Steam Power Co., 5 App. Div. 
 124; Rorhach v. Crossett, 19 N. Y. Supp. 450; McCdbe v. Evers, 
 9 N. Y. Supp. 541 ; Manly v. Clemens, 14 N. Y. Supp. 366. 
 
 It is provided by statute that if a tenant gives notice of his in- 
 tention to quit the premises held by him, and does not accord- 
 ingly deliver up the possession thereof, at the time specified in 
 such notice, he or his personal representatives must, so long as he 
 continues in possession, pay to the landlord, his heirs or assigns, 
 double the rent which he should otherwise have paid, to be recov- 
 ered at the same time and in the same manner as single rent. 
 General Laws, ch. 46, § 199; Laws of 1896, ch. 547, § 199. 
 This statute applies only where the term of the tenancy is indefi- 
 nite, and the tenant has the right and seeks by notice to termi- 
 nate the tenancy. Regan v. Fosdick, 19 Misc. 489. If the land- 
 lord brings his action imder the statute under a complaint framed 
 
LANDLOED AND TENANT. 155 
 
 to enforce the statutory liability, and is defeated because the ten- 
 ant was detained on the premises by order of the board of health, 
 he cannot recover thereunder for the use and occupation of the 
 premises for the time of the tenant's remaining. Began v. Fos- 
 dicTc, 23 Misc. 623 ; 52 N. Y. Supp. 122. 
 
 § 3. Occupation under a Void Lease. 
 
 The rules of law in respect to the rights and liabilities of the 
 parties to a valid lease are applicable, to a limited extent, to the 
 parties to a lease void under what was known as the statute of 
 frauds, or under the present real property law. 
 
 A parol lease of lands for a period longer than a year is abso- 
 lutely void, and can be legally repudiated by either party as soon 
 as made. Reeder v. Sayre, 70 N. Y. 180; Laughran v. Smith, 
 75 N. Y. 205. Such lease is ineffectual to vest any term whatever 
 in the lessee, and when he goes into possession under it, with the 
 consent of the lessor, without any further agreement, he is a 
 tenant at will merely, subject to liability to pay rent as for use 
 and occupation. Talamo v. Spitzmiller, 120 N. Y. 37. The lease 
 is not valid for one year or for a single hour, and the party enter- 
 ing under it cannot be compelled, by virtue of the lease, to pay 
 for a longer period than he has actually occupied. Thomas v. 
 Nelson, 69 N. Y. 118 ; Laughran v. Smith, 75 N. Y. 205, 209 ; 
 Talamo v. Spitzmiller, 120 N. Y. 37. But the landlord may re- 
 cover a reasonable compensation for the use and occupation of 
 real property, by any person, under an agreement not made by 
 deed; and a parol lease or other agreement may be used as evi- 
 dence of the amount to which he is entitled. General Laws, ch. 
 46, § 190; Laws of 1896, ch. 547, § 190. To authorize such a 
 recovery, the conventional relation of landlord and tenant must 
 be established. Preston v. Hawley, 139 N. Y. 296. The ten- 
 ancy at will created by a void lease may be converted into a yearly 
 tenancy by a new contract, which may be implied from circum- 
 stances where they permit it. While the mere entry with consent 
 will not alone jtistify it, a promise to pay and a purpose mani- 
 fested to accept a portion of the actual rent provided for by the 
 agreement may, as evidence, go in support of such new contract. 
 Talamo v. Spitzmiller, 120 N. Y. 37. 
 
 While the cases in this State are not entirely in harmony on 
 the subject, the doctrine now is that tenants going into possession 
 of premises and paying rent under a lease void because for a 
 longer term than one year and not in writing, become tenants 
 
156 LANDLOKD AISTD TENANT. 
 
 from year to year, and in case of the continued occupancy of the 
 premises into the second year, are chargeable with rent until its 
 close. They can then terminate their tenancy only at the end 
 of the second year, and the void lease may be resorted to to deter- 
 mine their rights and duties in all things consistent with and 
 not inapplicable to a yearly tenancy, such as the amount of rent 
 to be paid, the time of the year when the tenant could be com- 
 pelled by the landlord to quit, and any covenants adapted to a 
 letting for a year. See Beeder v. Bayer, 70 N. Y. 180 ; Laugh- 
 run V. Smith, 15 K Y. 209 ; Coudert v. Cohn, 118 N. Y. 309, 
 311. 
 
 Where the tenant is in possession under an agreement void by 
 the statute and has occupied for a year, paying the rent, monthly, 
 this creates a tenancy from month to month, which can only be 
 terminated by a month's notice to quit, expiring with the end 
 of some month, reckoning from the beginning of the tenancy. 
 People v. Darling, 47 N. Y. '666. 
 
 If the lessor of premises knows and intends that they will or 
 may be used for unlawful purposes, the lease is void and the 
 obligations of the parties will receive no aid from the courts for 
 their enforcement. In such a case it is competent to show that 
 knowledge and intent by circumstantial evidence. All that is 
 reqtiired is that the evidence adduced shall be fairly susceptible 
 of the inference that the agreement was in furtherance of an 
 unlawful purpose. Ernst v. Crosby, 140 N. Y. 364. But a 
 lease valid upon its face is not to be condemned as unlawful and, 
 therefore, as an unenforceable contract, because the purpose for 
 which the demised premises were to be used might, under cer- 
 tain circumstances, be within the prohibition of a statute. When 
 the operation of the prohibition depends upon the proof, and that 
 is inconclusive upon the subject, then the obligations of the par- 
 ties remain unaffected. The presumption of a lawful intention 
 must always prevail, and the burden of overthrowing it is not 
 met by him who asserts it by proof which is quite consistent with 
 a lawful purpose, however demonstrating that if effectuated in a 
 certain way it would contravene the law. Shedlinshy v. Bud- 
 weiser Brewing Co., 163 IST. Y. 437. 
 
 Where parties have entered into a verbal agreement by which 
 one is to occupy a part of a farm for five years, each is to do cer- 
 tain work and furnish certain specified things, and the receipts 
 of the sales of the products of the land are to be equally divided, 
 the agreement is void because not to be performed within a year : 
 
LANDLORD AND TENANT. 157 
 
 and occupancy under the agreement will not create a tenancy from 
 year to year, though continued for over two years, and the rela- 
 tion of landlord and tenant in any form will not be created either 
 by the agreement or in consequence of any occupation under it. 
 Unglish v. Marvin, 128 N. Y. 380. 
 
 § 4. Notice to Quit. 
 
 A tenancy at will or by sufferance, however created, may be 
 terminated by a written notice of not less than thirty days given 
 in behalf of the landlord to the tenant requiring him to remove 
 from the premises ; which notice must be served, either by deliver- 
 ing to the tenant or to a person of suitable age and discretion, 
 residing upon the premises, or if neither the tenant nor such a 
 person can be found, by affixing it upon a conspicuous part of 
 the premises where it may be conveniently read. At the expiration 
 of thirty days after the service of such notice, the landlord may 
 re-enter, maintain ejectment, or precede, in the manner prescribed 
 by law, to remove the tenant, without further or other notice to 
 quit. General Laws, ch. 46, § 198; Laws of 1896, ch. 547, § 
 198. 
 
 Where on the termination of an estate for life, or for years, 
 the person entitled to the possession demands the same, and serves, 
 in the same manner as for the termination of a tenancy at will, a 
 written notice to quit, if the tenant, or any person in possession 
 under him, or by colliision with him, willfully holds over, after 
 the expiration of thirty days from such service, he must pay to 
 the person so kept out of possession, or his representatives, at 
 the rate of double the yearly value of the property detained, for 
 the time while he so detains the same, together with all damages 
 incurred by the person so kept out by reason of such detention. 
 There is no equitable defense or relief against a demand accrued, 
 or a recovery had under this section. Id., § 200. 
 
 The statute authorizing summary proceedings to recover the 
 possession of real property makes the serving of a notice upon the 
 tenant a prerequisite to resort to the remedy in certain cases. See 
 Code of Civil Procedure, §§ 2231, 2236. Where the person to be 
 removed is a tenant at will or at sufferance, the petition upon 
 which the proceeding is based must state facts showing that the 
 tenancy has been terminated by giving notice as required by law. 
 Id., § 2236. The notice required by law in such case is one 
 month's notice in writing. Burns v. Bryant, 31 N. Y. 453; 
 Lamed v. Hudson, 60 N. Y. 102. The statute does not define 
 
158 LANDLOED AWD TE]SrA:SFT. 
 
 ■what shall constitute a tenancy at will but leaves that question 
 to be determined by the rules of the common law. If the tenant 
 was placed upon the land as a mere occupier, without any term 
 prescribed or rent reserved, he is strictly a tenant at will. Jack- 
 son V. Bradt, 2 Cai. 169; Post v. Post, 14 Barb. 253; Burns v. 
 Bryant, 31 ]^. Y. 453. Where the landlord seeks to remove a 
 tenant for default in the payment of rent, he must allege and 
 prove a demand of the rent due, or the service of a written 
 notice of at least three days requiring in the alternative, the pay- 
 ment of the rent or the possession of the premises. Code of Civil 
 Pro., § 221, subd. 2 ; Tolman v. Heading, 11 App. Div. 264. If 
 the tenant holds over and continues in the possession of the de- 
 mised premises or any portion thereof after default in the pay- 
 ment, for sixty days after they shall be payable, of any taxes or 
 assessments levied on such demised premises which he has agreed 
 in writing to pay, pursuant to the agreement under which the 
 demised premises are held, the landlord must allege in his peti- 
 tion and show either that a demand for the payment of such taxes 
 or assessments has been made, or the due service of at least three 
 days' notice in writing, requiring in the alternative, the payment 
 thereof and of any interest and penalty thereon, or the possession 
 of the premises. Code of Civil Pro., § 2231, subd. 3. If the 
 premises were rented for an indefinite term, the rent to be paid 
 monthly, the tenant is entitled to a month's notice to quit. 
 Hungerford v. Wagoner, 5 App. Div. 590. And see Hoffman 
 V. Van Allen, 3 Misc. 99. If the tenant is in possession under a 
 parol agreement' void under the statute of frauds, or now under 
 the Heal Property Law, and has occupied for a year, paying the 
 rent monthly, this creates a tenancy from month to month, which 
 can be terminated only by a month's notice to quit, expiring with 
 the end of some month, reckoning from the beginning of the 
 tenancy. People ex rel. Botsford v. Darling, 47 jST. Y. 666. 
 Where it is stipulated in the lease that the tenant shall quit on 
 ten days' notice, such notice must be precise and definite as to 
 the time when the surrender must be made. People v. Gedney, 
 15 Hun, 475. But in case of a tenancy at will, the notice need 
 not specify the time within which the premises must be surren- 
 dered. It is sufficient that the tenant has thirty days' notice of 
 the intention of the landlord to terminate the tenancy. Burns 
 V. Bryamt, 31 J^. Y. 453. The notice given under the statute 
 must be given as the statute requires or it will be of no avail. 
 The authorities uniformly hold that no notice is necessary to a 
 
LANDLORD AND TENANT. 159 
 
 tenant whose term is to end at a certain time, for in that case both 
 parties are apprised of their rights and duties. Oox v. Sammis, 
 57 App. Div. 1Y3; Adams v. City of Gohoes, 127 N. Y. 175. 
 In an action of ejectment, a tenant at will waives his right to 
 the statutory notice to quit by not raising the objection at the 
 trial and resting his defense upon the defect in the plaintiff's 
 title. Wissell v. Ott, 34 App. Div. 159. 
 
 § 5. Rights and Obligations of the Parties. 
 
 In all leases there is an implied agreement that the lessor will 
 give the lessee possession of the premises at the time agreed upon 
 for the commencement of the term; and in every written lease 
 under seal for a term not exceeding three years, there is an implied 
 covenant by the lessor for quiet enjoyment by the lessee, which is 
 not affected by the statute declaring that no covenants shall be 
 implied in conveyances of real estate. Moffat v. Strong^ 9 Bosw. 
 57; Mayor of N. Y. v. Mabie, 13 N. Y. 151; Mach v. Patchin, 
 29 How. 20; 42 N. Y. 167 ; Boreel v. Laivton, 90 N. Y. 293. An 
 action lies against the lessor for a breach of the implied agreement, 
 and for a breach of the implied covenant, and where a tenant is 
 evicted through the fault of the lessor, he may recover for a 
 breach of the implied covenant for quiet enjoyment the value of 
 the unexpired term less the rent reserved. Ih. See Johnson v. 
 Oppenheim, 43 How. 433 ; 12 Abb. N. S. 449 ; 2 Jones & Sp. 
 416 ; 55 N. Y. 280. And in an action by a lessee against a lessor, 
 to recover damages for a refusal to give possession of the demised 
 premises, the plaintiff may recover the damages arising from ex- 
 penses incurred in preparing to remove to and occupy the prem- 
 ises, together with the difference between the real value of the 
 rent and the sum agreed to be paid. But he is not entitled to re- 
 cover the profits which he might have made in his business, had he 
 occupied the premises. Oiles v. O'Toole, 4 Barb. 261. 
 
 But the usual covenants of title and for quiet enjoyment in a 
 lease, import no more than that the lessor has at the time such a 
 title to the demised premises as enables him to give the lessee 
 a legal right of entry and enjoyment during the term. Such cov- 
 enants, however, import no warranty, express or implied, as 
 respects the acts of strangers ; and hence, if the lessee be prevented 
 from entering into possession of the demised premises by a former 
 tenant whose term has expired, the remedy is to be sought against 
 the latter, and not against the lessor. Gardner v. Keteltas, 3 
 Hill, 330; Mechanics', &c., Co. v. Scott, 2 Hilt. 550. And see 
 
160 LANDLOED AXD TENANT. 
 
 La Farge v. Mansfield, 31 Barb. 345 ; McKinney v. Holt, 8 Hun, 
 336. But see Harris v. Greenberger, 50 App. Div. 439. 
 
 But if the premises, or any material portion of them, are in the 
 actual occupation of a third person at the time when the lease is 
 made, and such third person claim.s title to the part of the premises 
 so held by him adversely to the lessor, and he retains such pos- 
 session of the premises, the landlord cannot recover any rent of 
 the lessee, vs^ho may abandon the premises and refuse to occupy 
 a portion of them, or to pay any rent for any part thereof. Hay 
 V. Cumberland, 25 Barb. 594; Mechanics' , &c., Co. v. Scott, 2 
 Hilt. 550 ; Gardner v. Keteltas, 3 Hill, 330. And if the premises ( 
 are occupied by one who has a title superior to that of the lessor, | 
 so that the lessee cannot obtain possession, the lessor will be liable I 
 to an action for a breach of his agreement. lb. 
 
 A landlord who lets premises knovnng that they are infected 
 by a contagious disease, without notifying the tenant thereof, is 
 liable to the latter for the damages sustained in case the disease 
 is communicated. Cesar v. Karutz, 60 N. Y. 229. And see 
 Snyder v. Gorden, 46 Hun, 538. And if the landlord fraudu- 
 lently conceals the fact that the demised premises had previously 
 been used as a house of prostitution, this will be a defense to 
 a tenant, when sued for rent, if he has been deceived thereby to 
 his damage. Rhinelander v. Seaman, 13 Abb. l^T. C. 445, n. But 
 see Meehs v. Bowerman, 1 Daly, 99. But the tenant cannot 
 successfully urge this defense where he enters and remains in 
 possession without repudiating the contract of letting. Carhart 
 V. Ryder, 11 Daly, 101 ; ConUin v. White, 3 How. N. S. 507. 
 
 The tenant of a farm is bound, without express covenants, to 
 manage and cultivate it in such manner as may be required by 
 good husbandry and the usual course of management of such 
 farms in that vicinity. Where a farm is taken by a tenant for 
 agricultural purposes, the manure made upon it belongs to the 
 farm and not to the tenant ; and at the expiration of his term, the 
 tenant has no right to remove or dispose of it. Middlebrooh v. 
 Corwin, 15 Wend. 169. But where a farm is let on shares for 
 cultivation, and wheat is raised thereon by the tenant, the straw 
 is a part of the crop, and belongs to each of the parties as tenants 
 in common, according to his proportion of interest in it, unless 
 there is some stipulation or custom to the contrary. It does not 
 necessarily belong to the farm, nor is there any general usage 
 requiring it to be used as manure upon the land where it grew. 
 Fobes V. Shattuch, 22 Barb. 568. 
 
LANDLORD AND TENANT. 161 
 
 The same rule would apply to a ease of landlord and tenant, 
 because the tenant would not be bound to leave the straw as 
 manure, unless there was some agreement to that effect. But the 
 rule itself is applicable in those cases only in which the manure 
 was made upon the farm in the ordinary course of husbandry; 
 and therefore, a tenant of a livery stable may remove the manure 
 which has been made on the premises during his term. The 
 reason which requires manure to be left upon a farm by a tenant, 
 does not apply in such a case, because the manure is not made 
 from the products of the land as in the case of a farm, and the 
 mantire is not necessary to keep the premises in condition. Car- 
 roll V. Newton, 17 How. Pr. 189 ; Mlddlehrook v. Corwin, 15 
 Wend. 169 ; Daniels v. Pond, 21 Pick. 367. 
 
 When an ordinary house and lot is leased in a village, or else- 
 where, the tenant may remove the manure, because the reason 
 which requires it to be left on a farm does not apply to an ordi- 
 nary tenancy of a house and lot. There are many things which 
 a tenant may remove, although they would ordinarily be con- 
 sidered fixtures. The cases will be considered under the title 
 " Fixtures." 
 
 The tenant must use the premises for the piirposes for which 
 they were leased, and if he uses them otherwise, to the injury of 
 the lessor, an action will lie to recover the damages which result 
 therefrom. De Forest v. Byrne, 1 Hilt. 43. So an action will lie, 
 if a tenant makes material alterations in the premises without the 
 consent of the lessor. Engle v. Owen, 3 Duer, 15. 
 
 The first story, with the basement and sub-cellar of a four-story 
 store, was leased to the plaintiffs, and the three upper stories to 
 the defendant, at the same time, each with the appurtenances. 
 The entrance to the upper stories was from the front, over a short 
 entry leading to a staircase. This entry was separated from the 
 residue of the first floor by three folding doors, with bolts to fasten 
 on each side. There was a hatchway in the floor of the same 
 entry, leading to the basement and cellar, over which hatch a 
 tackle and fall were placed, for elevating or lowering goods, the 
 wheel of which was in the attic, and it was worked by ropes 
 passing down through the respective floors. The keeping open 
 of the folding doors, during business hours, was a great advan- 
 tage to the occupant of the first floor. The opening of the hatch 
 in that floor obstructed the passage to the upper stories, unless 
 persons passed through the folding doors. In a contest as to the 
 rights of the respective tenants, it was held : 1. That the tenant 
 11 
 
162 LANDLOED AND TEXANT. 
 
 of the first and sub-stories had the right to use the hatchway in 
 the entry, and the tackle and fall, for depositing goods in th& 
 basement and cellar, and for elevating them therefrom, making 
 use of them in good faith, and not keeping the hatch open 
 unnecessarily; 2. That the tenant of the first floor had the right 
 to keep the folding doors open, during business hours in the day 
 time, free from the control of the tenants of the lofts, and that 
 each had the right to close and fasten them at night ; 3. That the 
 tenant of the lofts might pass in and out through the folding 
 doors, when the hatchway was in use by the tenant of the first 
 floor. Browning v. Dalesme, 3 Sandf. 13. 
 
 Where there are several tenants who occupy the same build- 
 ing, and each of them has the privilege of using the water-pipes, 
 water-closets, etc., which each has separately under his own right 
 of use and occupation, no action can be maintained against either 
 of them for the damages which result from negligence in the use 
 of such pipes, etc., unless it is proved that the injury arose from 
 the negligence of the person sued. Moore v. Goedel, 7 Bosw. 591, 
 598. Where two or more persons have the use of such fixtures, 
 in common, under a right of use or occupation held by them 
 jointly, so that the use and control of the premises is joint, the 
 responsibility for the proper use and proper care of the fixtures, 
 may be joint; so that the liability attaches prima facie to each, 
 on proof that negligence has occurred and damage has ensued. 
 Ih. But where the right is several, each is responsible only on 
 proof of negligence on his own part; and neither is responsible 
 for the negligence of the other. Ih. In such a case, the tenant 
 of a ground floor may find some difiiculty in recovering damages 
 where there are several tenants above him, each of whom has the 
 privilege of using water in his closet; but he is merely in the 
 situation of all plaintiffs ; he must prove a cause of action, and 
 that the defendant is the party liable. Ih. An overflow of water 
 on premises in the exclusive possession of the tenant of the prem- 
 ises is sufficient prima facie to establish his liability for the dam- 
 ages thereby caused to another tenant on the floor below. Simon- 
 Riegel Cigar Co. v. Oordon-Burnham Battery Co., 20 Misc. 598 ; 
 46 ]Sr. Y. Supp. 416. The landlord of an apartment house is: 
 bound to keep whatever pipes are used in common by his tenants 
 in repair and is liable for damages resulting from his failure to 
 do so. See Fitch v. Armour, 39 St. Eep. 246 ; 14 IST. Y. Supp. 
 319. The landlord and a tenant of the upper floor of the demised 
 premises may both be responsible to the tenant upon a lower 
 
LANDLOKD AND TENANT. 163 
 
 floor for damages resulting from an overflow of water. The land- 
 lord will be responsible if be maintains upon the premises a 
 fixture improperly constructed and wanting the necessary appli- 
 ances for controling the flow of water, and the tenant of the 
 upper floor may be responsible for the negligent management of 
 the fixtures. Citron v. Bayley, 36 App. Div. 130. 
 
 " Where any building, which is leased or occupied, is destroyed ; 
 or so injured by the elements, or any other cause as to be un-l 
 tenantable, and unfit for occupancy, and no express agreement 
 to the contrary has been made in writing, the lessee or occupant 
 may, if the destruction or injury occurred without his fault orj 
 neglect, quit and surrender possession of the leasehold premises, I 
 and of the land so leased or occupied ; and he is not liable to pay 
 to the lessor or owner, rent for the time subsequent to the sur- 
 render." Laws of 1896, ch. 547, § 197. This section is a sub- 
 stantial re-enactment of chapter 345 of the Laws of 1860. Under 
 it a tenant who has expressly covenanted to make all inside and 
 outside repairs cannot be relieved from liability for rent by reason 
 of the collapse of the roof of a part of the premises from the 
 weight of snow thereon. May v. Oillis, 53 App. Div. 393. 
 
 The statute does not apply to a case where the defect existed 
 when the lease was made, and no fraud or misrepresentation is 
 shown on the part of the landlord, or when it results from the 
 neglect of the tenant to make ordinary repairs, or from deteriora- 
 tion due to the ordinary use by the tenant. Suydam v. Jackson, 
 54 N. T. 450; FranUin v. Broivn, 118 N. Y. 110; Daly. v. Wise, 
 132 N. Y. 306. But it does apply in a case where it appears that 
 by the action of the elements, or other cause occurring during the 
 demised term, the premises became untenantable, or unfit for 
 occupancy. Sully v. Schmitt, 147 N. Y. 248 ; Tollman v. 
 Murphy, 120 N. Y. 345 ; Vam,n v. Bouse, 94 N. Y. 401 ; Mese- 
 role V. Hoyt, 161 N. Y. 59, affirming Meserole v. Sinn, 34 App. 
 Div. 33. 
 
 Before the enactment of the statute of 1860, it was held that 
 the tenant was bound to pay the rent, even though the building 
 had been burned, if there was a covenant on his part to pay the 
 rent. Hallett v. Wylie, 3 Johns. 44; Kingsbury v. Westfall, 61 
 N. Y. 356. But if the building was burned between the time of 
 making the lease and the commencement of the term, and before 
 the tenant had gone into possession, it was held that this dis- 
 charged the tenant from the payment of the rent. Wood v. Hub- 
 hell, 5 Barb. 601. And when a tenant merely hired a room or a 
 
164 LANDLOED Al^D TEIyTAJSTT. 
 
 portion of the building, and it was destroyed by fire during the 
 tenancy, the tenant was held to be discharged from the payment 
 of rent after the destruction of the building. Graves v. Berdan, 
 29 Barb. 100 ; 26 JST. Y. 498 ; Kerr v. Merchants' Exchange Co., 
 3 Edw. 315. So, where the plaintiff and the defendants entered 
 into a written agreement by which the former leased to the latter 
 a quantity of household furniture then being in a certain hotel, 
 for the term of one year at a specified rent; it was held that the 
 defendants were bailees for hire of the furniture, and were re- 
 sponsible upon principles applicable to that species of bailment. 
 That they therefore had a right to show, as an excuse for not 
 returning the property, that it was destroyed by fire while in the 
 hotel mentioned in the agreement, without any fault on their 
 part. And that a provision in the agreement, that the defendants 
 were " to surrender the property in as good condition as reason- 
 able use and wear thereof would permit," was not to be con- 
 sidered as creating and imposing a duty or charge upon them in 
 addition to that which the law would imply from the relation of 
 the parties, nor to be construed in such a way as to make them 
 insurers of the goods. Hyland v. Paul, 33 Barb. 241. 
 
 The non-performance by the landlord within the time specified, 
 of an independent agreement indorsed upon the lease to make 
 certain improvements in the demised premises, does not discharge 
 the whole contract, so as to relieve the tenant from liability for 
 rent ; nor does it release the surety. In case of the failure of the 
 landlord to perform his agreement to repair, the tenant may leave 
 the demised premises and sue for and recover the damages he has 
 sustained by reason of such failure, or he may himself make the 
 repairs which the landlord had agreed to make, and when sued 
 for rent, set up as a counterclaim the amount expended for re- 
 pairs, and also the damages he had siistained by reason of the fail- 
 ure to repair. See Ellis v. McCormick, 1 Hilt. 313 ; Tihbits v. 
 Percy, 24 Barb. 39 ; Bauth v. Davenport, 60 Hun, 70 ; Ely v. 
 Fahy, 79 Hun, 65 ; GooJc v. Soule, 50 N. Y. 420. Under the old 
 practice the deduction from the- rent of the cost of repairs, made 
 by the tenant, was held to be in the nature of. a recoupment rather 
 than by way of set-off. Barber v. Rose, 5 Hill, 76 ; Batterman 
 V. Pierce, 3 Hill, 171 ; Tuttle v. TompMns, 2 Wend. 407. 
 
 A lease of a saw mill contained a stipulation that the lessor, in 
 case of a sale by him of the demised property, might at any time 
 terminate the lease by notice ; and that, in case of such sale, the 
 lessee should have two months' notice to enable him to " saw out " 
 
LANDLOED AND TENANT. 165 
 
 the logs then on hand, and then if any logs remained over, the 
 lessee should have the privilege to continue in possession, if the 
 lessor so elected at the same rate of rent, until the logs " on hand " 
 were sawed; or, that he should be allowed the extra expense of 
 teaming the logs to another mill and getting them sawed there; 
 and it was held that a subsequent sale of the mill by the lessor, 
 and a demand of the possession thereof by him, determined his 
 right of election under the agreement, and that he was liable to 
 pay the expense of removing the logs left over, and of getting 
 them sawed at another mill. Crouch v. Parher, 40 Barb. 94. It 
 was also held that the stipulation must be construed to include 
 all logs which the lessee had procured for manufacturing at that 
 mill, whether they were lying in the mill yard or in the basin 
 where logs for that purpose were usually kept, or were in the 
 cotirse of transportation to said mill yard or basin ; provided they 
 had been procured before the giving of the notice, in the usual 
 course of business of the lessee, and belonged to him, and were 
 in the mill yard or the basin at the expiration of the two months. 
 Ih. And also that the lessee was entitled to recover of the lessor 
 the expense of removing the logs so left over, and of sawing them 
 elsewhere, without waiting until such expense had been actually 
 incurred by him. Ih. And it was further held that the lessee 
 naight maintain his action, and recover the entire difference be- 
 tween the cost of manufacturing the logs on the demised prem- 
 ises, and that of getting them removed and sawed elsewhere, even 
 though he had taken another person into partnership in the busi- 
 ness and the logs had become partnership property before making 
 a new contract for their manufacture, and such new contract was 
 made in the name of the partnership, it not appearing that the 
 lessee's claim for damages had been assigned. Ih. 
 
 Underletting and assignment. — The general rule is, that a ten- 
 ant may underlet the premises or any portion of them ; or he may 
 assign his whole interest therein, if he chooses, in the absence of 
 an express agreement not to underlet or assign. But there are 
 sometimes express covenants inserted in the lease, that the tenant 
 will not underlet or assign his interest without the permission of 
 the lessor ; and such a clause is valid ; consequently an action will 
 lie for a breach of it on the part of the tenant. 
 
 "Where a lease provides that the tenant shall not sublet or assign 
 the premises without the written consent of the lessor, such stipu- 
 •lation does not apply to the case of p. mere change in the business 
 of the lessees; and if such lessees are partners and there is a 
 
166 LANDLOKD AND TENAZS^T. 
 
 change in the members of the firm, this will not be a violation of 
 the agreement not to sublet or assign. Roosevelt v. Hopkins, 33 
 ]Sr. Y. 81. Where a lease, as originally drawn, contained a clause 
 prohibiting the tenant from underletting or assigning the prem- 
 ises or any portion of them without the written consent of the 
 lessor, but the latter words, as to underletting or assigning a por- 
 tion of the premises, were struck out before the execution of the 
 lease by the tenants, and on their objection, it was held that the 
 underletting of a portion of the premises did not violate the ten- 
 ant's agreement. Ih. 
 
 Where a tenant covenants not to assign the demised premises 
 without the written consent of the landlord, and the lease contains 
 a clause authorizing the landlord to re-enter in case of a breach 
 of the covenant, a general assignment by the tenant of all his 
 property for the benefit of his creditors, is a breach of the cove- 
 nant and renders the lease void, so that the landlord may re-enter 
 npon the premises, and may maintain an action for that purpose. 
 Holland v. Cole, 1 Hurlst. & Colt. 67. 
 
 There is a material difference between an underletting and an 
 assignment, by the tenant, which is important to the underten- 
 ant or the assignee. An assignment by the tenant is a transfer 
 of his entire interest, and the assignee, if he accepts the assign- 
 ment, will be bound to perform all the covenants in the lease 
 which run with the land. It is said that the distinction between 
 an assignment and a lease depends solely upon the quantity of 
 interest that passes, and not upon the extent of the premises 
 transferred. An assignment creates no new estate, but transfers 
 an existing estate into new hands ; while an under-lease creates a 
 perfectly new estate. But, although a lessee makes an instrument 
 which, by its terms, conveys the whole of his interest in the prem- 
 ises, yet, if he reserves to himself a reversion of some part of the 
 term, it is an under-lease and not an assignment. It has accord- 
 ingly been held that, although the instrument disposes of the 
 whole unexpired term, if it contains a covenant to surrender the 
 premises on the last day of the term, it is an under-lease and not 
 an assignment. Post v. Kearney, 2 IN". Y. 394. So, if there is a 
 right reserved to the lessor to re-enter on breach of conditions, 
 this makes a sublease. Doe ex dent. v. Bateman, 2 Barn. & Aid. 
 168. So it has been held that a reservation of a new rent makes 
 the instrument a sublease. Piggot v. Ma^on, 1 Paige, 412. Ap- 
 plying these principles, it is held that, where a lessee of premises 
 executes an instrument in writing conveying the whole of his un- 
 
LANDLOED AND TENANT. 167 
 
 iexpired term, but reserving rent at a rate and time of payment 
 differing from that of' the original lease, with a right of re-entry 
 on non-payment and breach of other conditions, and also pro- 
 Tiding for a surrender of the premises to him on the expiration 
 <:f the term, the instrument is a sublease and not an assignment. 
 Collins V. Hashrouch, 56 N. Y. 157; Oamon v. Tift, 71 N. Y. 
 48. Where a lessee, by a written instrument, transfers to an- 
 other, either with or without condition, all of his interest in a 
 portion of the demised premises, and there is no reservation of a 
 right to re-enter on a breach of any of the conditions or for a 
 surrender of the premises at the expiration of the term, the in- 
 strument is not a sublease, but an assignment pro tanto. Wood- 
 hull V. Rosenthal, 61 N. Y. 383. If the tenant transfers his 
 whole interest in a part of the premises, this will be an assign- 
 ment of that part of the premises, and the assignee will be liable' 
 to the original lessor for such a portion of the rent as that part 
 of the premises is liable to pay. Van Rensselaer, &c. v. Oallup, 
 5 Denio, 454 ; Childs v. Clark, 3 Barb. Ch. 52. 
 
 Between the lessor and the undertenant of the original lessee 
 there is neither privity of estate nor privity of contract, and 
 therefore the lessor cannot sue the undertenant upon the lessee's 
 covenant to pay rent. McFarlan v. Watson, 3 N. Y. 286 ; Jen- 
 nings V. Alexander, 1 Hilt. 154. But where a lease was executed 
 for a year at a quarterly rent, and the defendant, who entered 
 under the lessee at the commencement of the term, and occupied 
 for the whole year, paid the first three quarters' rent to the agent 
 of the lessor, and took receipts from him as such agent, it was 
 held that a jury might infer an agreement to pay the rent to the 
 lessor, so as to sustain an action in his name for use and occupa- 
 tion during the last quarter of the term. McFarlan v. Watson, 
 3 N. Y. 286. 
 
 " The rules relating to the effect of an assignment of a lease 
 are so well settled that it is hardly necessary to do more than 
 refer to them. Where a lessee assigns his whole estate, without 
 reserving any reversion therein to himself, a privity of estate is 
 at once created between his assignee and the original lessor, and 
 the latter has a right of action directly against the assignee on 
 the covenant to pay rent dr any other covenant in the lease which 
 runs with the land ; but if the lessee sublets the premises, reserv- 
 ing or retaining any such reversion, however small, the privity 
 of estate is not established and the original landlord has no right 
 of action against the sub-lessee, there being neither privity of 
 
168 LANDLOED AND TENANT. 
 
 contract nor of estate between them. Where a lessee of land 
 leases the same to a third party, the question has often arisen 
 whether the second lease is in legal effect an assignment of the 
 original lease or a mere sub-lease. The question has frequently, 
 and probably most generally, arisen between the lessee and his 
 transferree, and much confusion will be avoided by observing 
 the distinction between those cases and the case where the ques- 
 tion has been between the transferree and the original landlord. 
 In the latter class of cases the rule is well settled that if the 
 lessee parts with his whole term or interest as lessee, or makes a 
 lease for a period exceeding his whole term, it will, as to the 
 landlord, amount to an assignment of the lease, and the essence 
 of the instrument as an assignment, so far as the original lessor 
 is concerned, will not be destroyed by his reserving a new rent to 
 •the assignor with a power of re-entering for non-payment, nor by 
 its assuming by the use of the word demise or otherwise, the char- 
 acter of a sublease; and the assignee, so long as he continues to 
 hold the estate, is liable directly to the original lessor on all the 
 covenants in the original lease which run with the land, includ- 
 ing the covenant to pay rent. But as between the original lessee 
 and his lessee or transferee, even though the original lessee de- 
 mises his whole term, if the parties intend a lease, the relation of 
 landlord and tenant, as to all but strict reversionary rights, will 
 arise between them." Eapallo, J., in Stewart v. Long Island 
 B. R. Co., 102 N. Y. 601, 607, 608. 
 
 In an action to recover rent reserved in a lease, against a party 
 in possession of the demised premises, a prima facie case to re- 
 cover is established by showing him to have been in actual pos- 
 session at the time the rent became due. Kain v. Hoxie, 2 Hilt. 
 311; Williams v. Woodard, 2 Wend. 487; Provost v. Colder, 2 
 Wend. 517. In such a case, the presumption of law is, that he 
 occupied as assignee of the original lessee. Coit v. Palmer, 7 
 Kob. 413; 51 N. T. 647; Dey v. Greenehaum, 82 Hun, 533; 
 Bedford v. Terhune, 30 N. Y. 453 ; Franh v. N. Y., L. E. & W. 
 B. R. Co., 122 N. Y. 197; Foster v. Oldham, 8 Misc. 331; 59 
 St. Rep. 239. 
 
 This presumption may, however, be rebutted, and the party 
 exonerated from liability to the lessor, by showing that he was not 
 assignee in fact, and had no interest in the lease, but occupied by 
 permission of the lessee as undertenant or otherwise. Kain v. 
 Hoxie, 2 Hilt. 311; QuacTcenhoss v. Clarice, 12 Wend. 555; Bu- 
 rando v. Wyman, 2 Sandf. 597; Dey v. Oreenehaum, 82 Hun, 533. 
 
LANDLOED AND TENANT. 169 
 
 And when it appears that 'the party thus in possession did not 
 possess the entire estate of the original lessee in the term demised^ 
 no recovery can be had. Kam v. Hoxie, 2 Hilt. 311 ; Williams v. 
 Woodard, 2 Wend. 48Y ; Provost v. Colder, 2 Wend. 517 ; Quach- 
 enhoss v. Clarice, 12 Wend. 555 ; Durando v. Wyman, 2 Sandf. 
 597. 
 
 A general assignment for the benefit of creditors, which does 
 not specifically mention the lease, does not, of itself, make the 
 assignee liable as assignee of the lease. His entry upon and 
 occupation of the demised premises are sufiicient prima facie to 
 charge him with the rent as assignee; but he may rebut the pre- 
 sumption arising from such occupation, and prove that he refused 
 to take an assignment of the lease. Bagley v. Freeman, 1 Hilt. 
 196, and see the cases last cited. 
 
 Where an assignee, under a voluntary general assignment for 
 the benefit of creditors, which conveys all the assignor's property, 
 enters immediately into the occupation of all the property which 
 had been demised to the assignor, except such portions as were 
 in the possession of subtenants of the assignor, and where he, as 
 assignee, continues to occupy the premises until within a few 
 days of the expiration of the lease, and he, in the mean time, col- 
 lects the rents of the subtenants for the whole of the last quarter, 
 and it does not appear that his occupation was not longer than 
 was reasonably necessary for the removal of the assigned goods, 
 nor that he gave notice to the landlord that he did not intend to 
 accept the premises or the term, as assignee, and there is no ex- 
 planation why he collected the rents, he will be liable to the land- 
 lord for rent, as assignee of the lease. Jones v. Hatismann, 10 
 Bosw. 168. 
 
 But where a general assignment is made for the benefit of cred- 
 itors, and the assignor is the tenant of an unexpired term, but the 
 assignment does not disclose the existence of the lease, and the as- 
 signee, at the time of accepting the assignment is not aware that 
 the assignor owned such a lease, and he does not accept the lease 
 or enter upon the premises, he is not rendered liable for the rent 
 subsequently accruing upon the lease, merely because he has col- 
 lected from the subtenants of a small portion of the demised prem- 
 ises, moneys which were specified in the assignment and schedules 
 as due from them upon an open account, but which were in fact 
 due as rent for such portion of the premises, and which rent had 
 not accrued at the time when the assignment was made. Dermis- 
 toun V. Huhhell, 10 Bosw. 155. And see Bagley v. Freeman, 1 
 Hilt. 196 ; Joumeay v. BracJcley, id. 447. 
 
170 LAKDLOED AiN'D TENANT. 
 
 A lease for a term exceeding one year cannot be assigned unless 
 by act or operation of law or by a deed or conveyance in writing, 
 subscribed by the assignor, or his lawful agent thereunto author- 
 ized by writing. Laws of 1896, ch. 547, § 207 ; General Laws, 
 ch. 46, § 207. 
 
 It is provided by statute that " The grantee of leased real prop- 
 erty, or of a reversion thereof, or of any rent, the devisee or as- 
 signee of the lessor of such a lease, or the heir or personal repre- 
 sentative of either of them, has the same remedies, by entry, ac- 
 tion or otherwise, for the non-performance of any agreement con- 
 tained in the assigned lease, for the recovery of rent, for the doing 
 of any waste, or for other cause of forfeiture, as his grantor or 
 lessor had, or would have had, if the reversion had remained in 
 him. A lessee of real property, his assignee or personal repre- 
 sentative, has the same remedy against the lessor, his grantee or 
 assignee, or the representative of either, for the breach of an agree- 
 ment contained in the lease, that the lessee might have had against 
 his immediate lessor, except a covenant against incumbrances or 
 relating to the title or possession of the premises leased. This 
 section applies as well to a grant or lease in fee, reserving rent, 
 as to a lease for life or for years ; but not to a deed of conveyance 
 in fee, made before the ninth day of April, eighteen hundred and 
 tfive, or after the fourteenth day of April, eighteen hundred and 
 srsty." Laws of 1896, ch. 547, § 193; General Laws, ch. 46, 
 § 193. 
 
 When a person takes an assignment of a lease, he enters into 
 the place of the lessee and takes the premises subject to the ac- 
 cruing rent. This is the legal effect of the written contract ; and 
 any proof to show that the lessee and assignor agreed to pay the 
 rent which should thereafter become due, would contradict the 
 written contract; and, therefore, parol evidence for that purpose 
 is inadmissible. Graves v. Porter, 11 Barb. 592. An assignee is 
 liable only for rents accruing, or covenants broken while he is 
 assignee. Armstrong v. Wheeler, 9 Cow. 88 ; Childs v. Clarh, 3 
 Barb. Ch. 52 ; Day v. Swachhammer, 2 Hilt, 4 ; Steam v. Florence 
 Sewing Machine Co., 53 How. 478 ; Siefhe v. Koch, 31 How. 383 ; 
 Wolf V. Gluch, 24 Misc. 763. But the assignees of a lease by 
 way of mortgage does not become liable for rent unless he takes 
 possession of the leased premises. Tallman v. Bresler, 65 Barb. 
 369; Levy v. Long Island Brewing Co., 26 Misc. 410. 
 
 An assignee of a lease who does not take subject to the cov- 
 enants thereof, is liable for such breaches as occur during the time 
 
LA'JDLOED AND TENANT. 171 
 
 he is owner of the term, and for taxes and rates, which hy the terms 
 of the lease are made payable by the lessee, which fall due during 
 that time, though in part prior thereto. But he is not liable for 
 any, the payment of which is not due until after he has himself as- 
 signed the lease. McEeon v. Wendelken, 25 Misc. Til. The 
 fact that a lease contains a provision that the lessee should not as- 
 sign or sublet without the consent of the lessor, or that the land- 
 lord refused to recognize the assignee as a tenant lest he should 
 release his lessee, does not affect the liability of the tenant in 
 possession for the rent accruing during such possession. Sayles 
 V. Eerr, 4 App. Div. 150. 
 
 An assignee may assign his interest, and his liability to the 
 lessor ceases from the time such assignment is made, and his as- 
 signee enters into possession under it. Siefhe v. Eoch, 31 How. 
 383 ; Astor v. L'Amoreaux, 4 Sandf. 524. 
 
 A mere consent on the part of the lessor that the lessee may 
 assign his interest in the lease, does not discharge the lessee from 
 liability for the rent which may accrue while the premises are 
 occupied by his assignee. The landlord may recover rent of either 
 the lessee or his assignee. Hoiise v. Burr^ 24 Barb. 525 ; Damb v. 
 Hoffman, 3 E. D. Smith, 361. If, however, there is a valid sur- 
 render of the term by the lessee, which is accepted by the lessor, 
 and the latter then leases the premises to the assignee of the lessee, 
 this will discharge the lessee from liability for rent accruing 
 after such surrender. lb.; Whitney v. Meyers, 1 Duer, 266. But 
 the acceptance by the lessor of rent from the assignee will not 
 have that effect, and a surrender will not be inferred merely from 
 such acceptance. Ranger v. Bacon, 3 Misc. 95 ; Gerhen v. Smith, 
 34 St. Kep. 59; 11 N. Y. Supp. 685. 
 
 Where it appears, in an action by a lessor for rent, against a 
 person alleged to be an assignee of. the lessee, that the defendant 
 is in possession under the lease and with the assent of the lessee, 
 and that he has all the benefits of an actual assignee, he will be 
 estopped from setting up that he is assignee by a parol agree- 
 ment only, and not by a valid written instrument. But if the 
 defendant is in possession as an undertenant only, he may show 
 that fact. Carter v. Hammett, 12 Barb. 253. The original lessee 
 -will remain liable on his covenants to pay rent, for any breach 
 during the term, notwithstanding he may have assigned his in- 
 terest therein, unless the lessor accepts a surrender of the lease, 
 or does some act equivalent to a new letting of the premises to 
 the assignee of the lessee. Damb v. Hoffman, 3 E. D. Smith, 361 ; 
 
172 LANDLOED AND TENANT. 
 
 House V. Burr, 24 Barb. 525 ; Jackson v. Brownson, 7 Johns. 
 227. And this liability extends to a breach of any other covenant, 
 as well as to that in relation to the payment of rent. Ih. 
 
 Where a tenant of lands, under a lease containing a right of re- 
 entry for default in paying rent, sublets a part thereof, the sub- 
 tenant, in order to protect his possession, may pay his rent to the 
 original lessor. The right of the landlord to an action for the 
 rent, or to re-enter, is sufficient to render the payment compul- 
 sory, and to render it a valid payment to and for the use of the 
 lessor of the subtenant. Peek v. Ingersoll, 7 N. Y. 528. It is not 
 necessary, to protect him in so doing, that the original lessor 
 should threaten a suit or even demand the money. Ih. 
 
 Rent cannot be reserved out of chattels personal; and if such 
 chattels are demised with land, at an entire rent for both, the rent 
 issues out of the land only, and no separate rent can be recovered 
 for the use of the chattels. Fay v. Halloran, 35 Barb. 295. 
 Where a lessor dies before the rent becomes due, the rent goes to 
 the heir, as incident to the reversion, and the executor cannot 
 maintain an action to recover it. Ih.; Marshall v. Moseley, 21 
 N. T. 280. In such a case, there is no apportionment of rent be- 
 tween the executor of the lessor owning the fee and the remainder- 
 man, for the latter, when he succeeds to the reversion, is entitled 
 to the whole rent as an entire sum due to him. Ih. 
 
 Where tenants in common of land subject to a rent charge, 
 make a partition of such land and interchange conveyances of the 
 respective parcels, subject, in terms, to the claims of the lessor, 
 and the lessor concurs in this arrangement, this operates as an 
 apportionment of the rent. Yan Rensselaer v. Cliadwick, 22 
 N. Y. 32. And in such a ease, a subsequent release by the lessor 
 to one of the tenants, of the parcel partitioned to him extinguishes 
 the rent as to that parcel only which is so released, leaving tiie 
 other parcel liable to pay its due proportion. Ih. 
 
 § 6. Surrender of the Term. 
 
 The relation of landlord and tenant may be terminated by a 
 surrender of the term created by the lease. A surrender is the 
 restoring and yielding up of an estate or interest in lands to one 
 who has an immediate estate of reversion or remainder. Coe v. 
 Hohhy, 72 N. Y. 141. The manner in which a surrender may be 
 lawfully made, depends upon the mode in which the lease itself 
 is executed. A term exceeding one year can be surrendered only 
 by act or operation of law, or by a deed or conveyance in writing, 
 
LANDLOED AND TENANT. 173 
 
 subscribed by the person surrendering the same, or by his lawful 
 agent, thereunto authorized by writing. General Laws, ch. 46, 
 § 207 ; Laws of 1896, ch. 547, § 207. This was the law under 
 the former statute of frauds, and now made a part of the Real 
 Property Law. A surrender of a lease for a term of years is not 
 good .within the statute of frauds, unless it be by deed or note in 
 writing, signed by the party; and the canceling and destroying 
 of the lease by the agreement of the parties will not operate to 
 divest the interest of the lessee. Rowan v. Lytle, 11 Wend. 617. 
 
 A parol agreement between a landlord and a tenant of a term 
 for six years, that the tenant shall surrender his interest in the 
 demised premises, and that the landlord shall execute a new lease 
 for eight years to third persons, does not operate as a surrender 
 by operation of law, unless such new lease is executed and passes 
 an interest according to the contract and the intention of the 
 parties, although the tenant quits the premises, the third persons 
 enter, remain in possession for the space of a year, and pay rent 
 to the landlord; and consequently, the original lease remains in 
 force, and the landlord may maintain an action upon the covenant 
 in it for the payment of rent against the original tenant for the 
 rent which subsequently accrued. Schieffelin v. Carpenter, 15 
 Wend. 400 ; Coe v. Hobby, 72 N. y. 141. 
 
 A surrender is implied and effected by operation of law, within 
 the meaning of the statute of frauds, and consequently within 
 the meaning of the present statute, when another estate is created 
 by the reversioner or remainderman with the assent of the termor, 
 incompatible with the existing estate or term. In the case of a 
 term for years, or for life, it may be by the acceptance by the 
 lessee or termor of an estate incompatible with the term, or by 
 the taking of a new lease by the lessee. Coe v. Hobby, 72 IST. Y. 
 141. In order to effect a surrender by act or operation of law, 
 there must be a mutual agreement between the lessor and the 
 original lessee that the lease shall terminate ; and this agreement 
 may be express or it may be inferred from the conduct of the 
 parties. Bedford v. Terhune, 30 IST. Y. 453 ; Wallace v. Dinning, 
 11 Misc. 317. But the facts mtist establish an acceptance of the 
 surrender by the landlord, or an intention on his part to terminate 
 the tenancy. Requa v. Domestic Pub. Co., 11 Misc. 322. 
 
 A surrender exists by operation of law when the parties, with- 
 out any express surrender, do somie act so inconsistent with the 
 subsisting relation of landlord and tenant as to imply that they 
 have both agreed to consider the surrender as made. Such an im- 
 
174 LAXDLOED AKD TENANT. 
 
 plication arises where the relation of vendor and vendee is 
 created between the parties, the vendor has received a part of the 
 purchase monej', agreed to execute a warranty deed on payment 
 of the balance, and has not since the execution of the contract of 
 sale demanded payment of rent. Lewis v. Angermiller, 89 Hun,. 
 65 ; Burnett v. Scribner, 16 Barb. 621. 
 
 A new lease of premises, whether by parol or not, will, if valid,^ 
 operate in law as a surrender of the former lease. But the second 
 lease, to operate as an effectual surrender of the first, must itself 
 be effectual to vest in the lessee the term it professes to convey, 
 and must bind him to a performance of its conditions, on his 
 part. Smith v. Niver, 2 Barb. 180. A lessor who has consented 
 to a change of tenancy, and has permitted a change of occupation, 
 and received rent from the new tenant as an original and not as a 
 subtenant, cannot afterwards charge the original tenant for rent 
 accruing during the occupation of the new tenant. Page v. Ells- 
 luorth, 44 Barb. 636; Yandehar v. Beeves, 40 Hun, 430; James 
 V. Coe, 31 Misc. 653 ; Smith v. Niver, 2 Barb. 180. If a lessor 
 in fact consents that the lessee shall cease to be liable, and accepts 
 a substituted tenant, the first tenant must be held to be discharged. 
 Ih. In the case last cited, the plaintiff, by a written lease, leased 
 the premises to ISTiver and Rockefeller for three years ; at the end 
 of the second year, the parties, by mutual agreement, surrendered 
 the lease by parol, and the plaintiff then verbally leased the prem- 
 ises to Kockef eller alone for one year ; this was held to be a valid 
 canceling of the original lease for three years, and a valid lease 
 for one year to Kockefeller alone; and consequently, the defend- 
 ant Smith was discharged from liability for the third year's rent. 
 In the case of Schieffelin v. Carpenter, above cited, the verbal 
 lease to the new tenants for eight or ten years was void "by the 
 sitatute of frauds, and the invalidity of that lease prevented it 
 from operating as a discharge of the original lease, as in this case 
 of Smith V. Niver. 
 
 It is not every case of reletting by the landlord that vsrill operate 
 as a surrender of the prior term. If the landlord has refused to 
 accept a surrender, and has notified the tenant that if he vacated 
 the premises he should relet them on his account and hold him 
 for the rent, a reletting in pursuance of such notice and under 
 such circumstances will not operate as an acceptance of a sur- 
 render or relieve the tenant from liability for rent. Underhill v. 
 Collins, 132 'S. Y. 269. See Gray v. Kaufman Dairy, &c., Co.,. 
 89 Hun, 144 ; James v. Eubino, 30 Misc. 452. 
 
LANDLOED AND TENANT. 1Y5 
 
 Where the original lease is under seal, it may be surrendered 
 by a written instrument not under seal ; and where the lease was 
 under seal, and the tenant agreed, by a subsequent unsealed agree- 
 ment, to relinquish the premises upon his failure to perform 
 certain stipulations, this may be invalid as a defeasance, but it 
 will be valid as a contingent surrender, and if the stipulations are 
 not performed, the lease will be deemed canceled. Allen v. 
 Jaquish, 21 Wend. 628. A surrender by operation of law, of a 
 written lease, may be derived from the acts of the parties. After 
 a lessee had underlet the whole of the demised premises, by twa 
 written subleases, the landlord called on the undertenants, pro- 
 duced the subleases, demanded of them the rent reserved, forbade 
 their paying any more rent to the original lessee, said he was the 
 rightful landlord, and had taken the place off the lessee's hands, 
 and afterwards collected all the rent which was ever collected of 
 the subtenants, it was held that this was a surrender of the origi- 
 nal lease by operation of law. Bailey v. Delaplaine, 1 Sandf. 5. 
 A surrender of a written lease cannot be made by parol. It must 
 be by writing or by operation of law. Ogden v. Sanderson^ 3 E. 
 D. Smith, 166. This is the rule where the lease is for a term 
 longer than one year. But a written lease under seal for a term 
 less than one year may be discharged by a parol agreement. 
 Sherman v. Engel, 18 Misc. 484. See Tollman v. Earle, 37 St.. 
 Rep. 271. An assignment by the lessee to the lessor, of all the- 
 right, title and interest of the lessee in a lease, as a collateral 
 security for the payment of notes to mature before the expiration f 
 of the term, and also for the payment of any demands which the ' 
 lessor may, after such assignment, have against the lessee for j 
 merchandise or otherwise, is not a surrender of the lease and a| 
 merger of the term, working a dissolution of the relation of land- 
 lord and tenant. S^ch an assignment, being not an absolute but! 
 a conditional transfer, subject to be defeated, before the expira-f 
 tion of the term, by the performance of the condition, is a mortf 
 gage. Breese v. Bangs, 2 E. D. Smith, 474. 
 
 The mere acceptance by the landlord, of the key of the demise^ 
 premises, from a tenant who quits possession during the term, is 
 not an acceptance of the surrender of the premises, where the 
 landlord states that he receives the key but not the premises. 
 Townsend v. Albcrs, 3 E. D. Smith, 560. So, where the keys 
 are sent to the landlord by mail, or are left at his house, or are 
 handed to a person not authorized to receive them, this will not 
 operate as a surrender, although the keys are not returned to the 
 
176 LANDLOED AND TENANT. 
 
 tenant. Thomas v. Nelson, 69 N. Y. 118 ; Barhley v. McCue, 25 
 Misc. 738 ; Johnson v. Doll, 11 Misc. 345 ; Ryan v. Jones, 3 
 Misc. 65 ; Sully v. Schmitt, 31 St. Eep. 443 ; Spies v. Voss, 30 
 St. Eep. 549 ; Arras v. Richardson, 5 N. Y. Supp. 755 ; Long v. 
 Stafford, 103 N. Y. 274. Where a tenant, having determined to 
 remove in consequence of disturbance of the premises, by excava- 
 tions upon the adjoining lot, which rendered the demised prem- 
 ises unsafe, and such tenant removed and then sent the key of the 
 premises to the landlord, who expressed a willingness to take the 
 premises, and resumed possession thereof for the purpose of re- 
 letting them, posted the usual notice " To let," and then de- 
 livered the key to a person who was employed to relet, etc. ; these 
 acts and declarations were held to form a rescission of the lease 
 and to terminate the tenancy. Hegeman v. McArthur, 1 E. D. 
 Smith, 147. 
 
 In March, 1851, the plaintiff leased to Mrs. Shave, the defend- 
 ant, a house in the, city of New York, for the term of one year 
 from the first of May following, at a rent of $750, payable 
 quarterly. In April, the defendant being desirous to give up her 
 lease, made known her wishes to the plaintiff, who then entered 
 into a new agreement, in writing, with a Mrs. K., by which the 
 latter assumed the lease, bound herself to perform all the cove- 
 nants, and to pay the rent reserved monthly in advance. Mrs. 
 K. entered into possession under this agreement, and paid the 
 accruing rent to the plaintiff, with the exception of the last quar- 
 ter. To recover this balance, the plaintiff brought his action 
 against the defendant, claiming that she was liable to pay it 
 under the original lease; but it was held, that the new agree- 
 ment between the plaintiff and Mrs. K. operated in law to dis- 
 charge the defendant from the covenants in her lease, and was a 
 virtual acceptance by him of the surrender which she then offered 
 to make. Murray v. Shave, 2 Duer, 182. Where a term is sur- 
 rendered before the expiration of the period for which rent 
 accrues, the rent of the whole of such period, not then due, is 
 extinguished, and cannot be collected by action. Gurtiss v. Mil- 
 ler, 17 Barb. 477. And see Wood v. Walbridge, 19 Barb. 136. 
 
 When the lease is a verbal one, and is for a single year, a ver- 
 bal surrender will be good, because the agreement to surrender 
 will be as valid as the original lease, so far as the statiite of 
 frauds is concerned. By a parol agreement between the plaintiff 
 and H. and C, the former rented to the latter a farm, for one 
 year, H. and C. agreeing to pay one-half of the products of the 
 
LANDLOED AND TENANT. 177 
 
 farm by way of rent. After the crops were put in, C. and one G. 
 applied to the plaintiff for his consent that G. should buy O.'s 
 interest in the crops, and take his place under the lease, and work 
 the land. The plaintiff consented to the substitution of G. for C, 
 and subsequently, in various ways, recognized and ratified the 
 arrangement ; this was held to be valid, and binding upon all the 
 parties, and that it released C. from all liability on the original 
 lease. Harrower v. Heath, 19 Barb. 331. 
 
 The plaintiff demised to the defendant by lease, under seal, 
 signed by both parties, dated February 3, 1849, certain premises 
 for one year thereafter, at a rent of $700 per annum, payable 
 quarterly in advance. An action was brought for the last quar- 
 ter's rent. The defense was, a surrender by operation of law 
 prior to the first day of February, 1850, and also an eviction dur- 
 ing the last quarter in March, 1850, by summary proceedings at 
 the instance of the plaintiff ; and it was held, that an absolute and 
 unconditional lease by the plaintiff by parol, during the term, of 
 the whole premises, to a new tenant, an occupation and payment 
 of rent by such new tenant pursuant thereto, would work a sur- 
 render by operation of law, where the lease to such new tenant 
 was but for one year, which would be valid within the statute of 
 frauds ; and also, that where rent is payable quarterly in advance, 
 an eviction during the quarter, but after the rent becomes due, 
 does not bar an action for the rent. The most that the evicted 
 tenant can claim, is a deduction for so much of the quarter as 
 elapses after his eviction. Whitney v. Meyers, 1 Duer, 266. 
 
 It will be observed that in all the cases in which a written lease 
 has been held to be surrendered by reason of a new lease having 
 been given by the landlord, such new lease was a valid one; as 
 for instance, a parol lease for a single year ; and that in all cases 
 in which an agreement was made for such new lease which was 
 invalid, or where the agreement for a valid lease was never con- 
 summated, the old lease has been held to be in force and not 
 surrendered. Where the statute requires a written lease for the 
 purpose of transferring an interest in real estate by way of lease, 
 the statute also requires a written surrender of that interest, un- 
 less in those cases in which the surrender is by operation of law. 
 And when a written lease is executed which creates a term for 
 several years, if the landlord with the consent of the original 
 tenant makes a new lease with a new tenant, and such new lease 
 is valid for the term which is demised to such new tenant, as for 
 instance, a written lease, or a verbal lease for one year, and such 
 12 
 
178 LAISTDLOED AND TENANT. 
 
 new tenant goes into possession of the premises under such new 
 lease, by the consent of all parties, the original lease will be sur- 
 rendered by operation of law. The cases which have been cited 
 as to surrendering leases will abundantly illustrate this principle. 
 
 But where the tenant underlets the premises, or where he assigns 
 his interest in them with the consent of the landlord, that will not 
 operate as a surrender of the original lease, unless there is a new 
 letting by the landlord to such undertenant or assignee, and the 
 original tenant will continue liable on the lease. House v. Burr, 
 24 Barb. 525. 
 
 Where a tenant abandons the demised premises, and the land- 
 lord relets them at the request of a surety for the rent and for his 
 benefit, this is not a surrender of the premises, nor does it dis- 
 charge the surety from further liability. McKensie v. Farrell, 4 
 Bosw. 192. 
 
 Where there is a written lease for a term of three years, and 
 one year of the term is unexpired, there miay be a valid parol 
 surrender of the balance of the term. Smith v. Devlin, 23 N. Y. 
 363 ; 8. C, 6 Bosw. 1, under title of Allen v. Devlin. 
 
 " The surrender of an under-lease is not requisite to the 
 validity of the surrender of the original lease, where a new lease 
 is given by the chief landlord. Such a surrender and renewal 
 do not impair any right or interest of the chief landlord, his 
 lessee, or the holder of an under-lease, under the original lease j 
 including the chief landlord's remedy by entry, for the rent or 
 duties secured by the new lease, not exceeding the rent and duties 
 reserved in the original lease surrendered." Laws of 1896, ch. 
 547, § 196 ; General Laws, ch. 46, § 196. The right of the tenant 
 to surrender the premises in case of their destruction has been 
 noticed. See ante, p. 163. 
 
 § 7. Forfeiture of the Lease. 
 
 A forfeiture of a lease relates to some termination of it before 
 the expiration of the term. A forfeiture may arise from some 
 act of omission, or by some act of commission. In some of the 
 instances in which there is a forfeiture of the lease, it is because 
 some provision of the lease has been violated; in others, it is 
 because of some act of the tenant which the law adjudges suffi- 
 cient to forfeit the rights of the tenant under the lease. The law 
 does not favor forfeitures, and, therefore, there must be a clear 
 case before a forfeiture will be decreed and enforced by the 
 courts. Academy of Music v. Hackett, 2 Hilt. 218. 
 
> I (' 
 '/ 1. 1- 
 
 LANDLOED AND TENANT/^ 1Y9 
 
 A condition in a lease for years, that upon the neglect of the' 
 lessee to pay rent, or upon any other failure to perform on his 
 part, the lease shall cease and determine, or become null and void, 
 does not render the lease absolutely void upon a default in per- 
 forming the condition, but voidable only, at the election of the 
 lessor , if he elects to waive the forfeiture, the lessee is bound as 
 though no breach of the condition had occurred. Clarh v. Jones, 
 1 Denio, 516. The conditions in a lease do not become severed 
 by a severance in the occupation of the demised premises, and in 
 the payment of rent to the lessor by the respective occupants for 
 the portion occupied by each; hence, if either a lessee, or an 
 assig-nee of the lease, as to a portion of the demised premises, com- 
 mits any act which, by the terms of the lease, creates a forfeiture 
 of the estate, the forfeiture attaches to the whole of the premises 
 embraced in the lease. Clarke v. Cummings, 5 Barb. 339. 
 
 The denial, orally, by a tenant for life or years, of his landlord's 
 title, and the assertion that he owns the lands in fee, and owes no 
 rent for them, does not work a forfeiture of the term, or authorize 
 the landlord to maintain ejectment for the lands demised. De 
 Lancey v. Oanong, 9 IST. Y. 9 ; S. C, 12 Barb. 120. Mere words 
 can never work a forfeiture of an estate for life or years. lb. 
 After a forfeiture has been incurred, if the lessor accepts rent 
 which accrued after such forfeiture, and with full knowledge of 
 the facts, that will be a waiver of the forfeiture. Clarhe v. Cum- 
 mings, 5 Barb. 339 ; Bleecker v. Smith, 13 Wend. 530 ; Koehler 
 & Co. V. Brady, 78 Hun, 443; Murray v. Harway, 56 E". Y. 
 337; Michel v. O'Brien, 9 Misc. 408. But if the lessor is 
 ignorant that a forfeiture has been incurred, the acceptance of 
 rent is not a waiver of it. Jackson v. Brownson, 7 Johns. 227. 
 ]^or is the receipt of rent a waiver of a forfeiture, unless the I 
 rent accrued after the forfeiture. Jackson v. Allen, 3 Cow. 220. ' 
 
 § 8. Eviction. 
 
 An eviction of a tenant is an interference with the beneficial 
 use of the demised premises, or of some part thereof, by or with 
 the consent of the landlord, whereby the tenant is deprived of the 
 use without his assent. Ogden v. Sanderson, 3 E. D. Smith, 166. 
 Or, it has been defined as an obstruction to the beneficial enjoy- 
 ment of the premises, and a diminution of the consideration of the 
 contract by the act of the landlord. McAdam on Landl. & Ten. 
 478, 479 ; Tallrmn v. Murphy, 120 N. Y. 345, 351. The eviction 
 may be actual or constructive, and for that reason it is not always 
 
180 LANDLOED AND TENANT. 
 
 entirely clear, -whether there has been an eviction by the landlord. 
 If he has actually turned the tenant out of possession of the 
 premises, without any lawful right to do so, that would be clearly 
 an eviction. But there are also other cases in which the law will 
 treat the unlawful and wrongful acts of the landlord as equivalent 
 to an eviction. Where the landlord was habitually guilty of 
 bringing lewd women under the same roof with the demised 
 premises, through an apartment not demised, by which nocturnal 
 noise and disturbance was made; and in consequence, the tenant 
 quitted the premises and remained away, with his family; this 
 was held to be evidence to go to a jury under an answer of evic- 
 tion, in an action for rent, and if the jury find the answer true, 
 to be a bar to the action. Dyett v. Pendleton, 8 Cow. 727 
 
 The case last cited established the law in this State, that if the 
 landlord creates a nuisance in the vicinity of the demised prem- 
 ises or commits acts which deprive the tenant of the beneficial 
 enjoyment of the property, in consequence of which the tenant 
 abandons possession before rent is due, the lessor's action for rent 
 is barred. Tallman v. Murphy, 120 N. Y. 345 ; Home Life Ins. 
 Co. V. Sherman, 46 N. T. 370 ; Edgerton v. Page, 20 N. Y. 281. 
 
 But there can be no constructive eviction without an abandon- 
 ment of the demised premises. There must be an actual expul- 
 sion from the demised premises or an abandonment of them by the 
 tenant before he can claim an eviction. The law does not permit 
 the tenant to remain in possession, and when sued for the rent, to 
 sustain the plea of eviction by proof that there were circum- 
 stances which would have justified him in leaving the premises. 
 Edgerton v. Page, 20 K Y. 281; Edwards v. Candy, 14 Hun, 
 596 ; Home Life Ins. Co. v. Sherman, 46 N. Y. 370 ; Mortimer v. 
 Brunner, 6 Bosw. 653 ; Boreel v. Lawton, 90 N. Y. 293 ; WycJcoff 
 V. Frommer, 12 Misc. 149; Cable v. Bonnell, 9 Misc. 154; Mc- 
 Kenzie v. Hatton, 70 Hun, 142 ; Reynolds v. Meldrum, 33 St. 
 Eep. 664. Not only must the tenant quit possession of the de- 
 mised premises, but he must quit in consequence of the interfer- 
 ence impairing the beneficial enjoyment of the premises. Dyett 
 V. Pendleton, 8 Cow. 727 ; Home Life Ins. Co. v. Sherman, 46 
 N. Y. 370. The tenant must exercise his option to quit possession 
 within a reasonable timie after discovery of the untenantable con- 
 dition of the premises. Stein v. Bice, 23 Misc. 348. The tenant 
 cannot justify an abandonment of the premises upon the ground 
 that at some time during the period of his occupancy he was de- 
 prived of the beneficial enjoyment of the premises by the wrong- 
 
LANDLOED AND TENANT. 181 
 
 ful act of the landlord. It must appear that the deprivation of 
 the beneficial enjoyment of the premises continued at the time of 
 the abandonment. Ryan v. Jones, 2 Misc. 65 ; Adams v. Burr, 13 
 Misc. 247. The fact that the tenant remained in possession of 
 the premises, paying rent, after he had full knowledge of the 
 existence of a nuisance that would justify an abandonment of 
 the premises, is not a waiver of his rights where the continued oc- 
 cupation was induced by the promise of the landlord that the evil 
 would be remedied. The waiver, at most, goes only as to condi- 
 tions existing at the time of the payment of rent ; and if such con- 
 ditions subsequently become intolerable, the tenant may abandon 
 the premises without liability for after-accruing rent. Marks v. 
 Dellaglio, 56 App. Div. 299. 
 
 Where there has been an actual eviction of the tenant from a 
 part of the demised premises, he is not compelled to quit posses- 
 sion of the residue in order to place himself in a position to de- 
 fend an action for any part of the rent. Christopher v. Austin, 
 11 K Y. 216 ; Carter v. Byron, 49 Him, 299. So long as such 
 partial eviction continues the tenant cannot be evicted in summary 
 proceedings for non-payment of rent. People ex rel. Murphy v. 
 Oedney, 10 Hun, 151. 
 
 It is not necessary that there should be a physical eviction or 
 expulsion by the landlord, to operate as a suspension of the ten- 
 ant's liability to pay rent. It is sufficient that there is a habitual 
 interference with, or a disturbance of the tenant's beneficial en- 
 joyment of the demised premises, if the acts are intentionally 
 committed by the landlord, or by his family. If the landlord 
 commits or suffers acts to be committed which make it necessary 
 for the tenant to remove, this is equivalent to expulsion. Dyett v. 
 Pendleton, 8 Cow. 728 ; Edgerton v. Page, 20 N. Y. 283 ; Tall- 
 man v. Murphy, 120 K Y. 345 ; Boreel v. Lawton, 90 N. Y. 293 ; 
 Bully V. Schmidt, 147 N. Y. 248 ; Cohen v. Dupont, 1 Sandf. 260. 
 
 A dentist hired rooms for his family and for the purpose of 
 carrying on his business as a dentist. While he was thus in occu- 
 pation of the premises the landlord muffled the door bell, notwith- 
 standing the frequent remonstrance of the tenant ; the landlord's 
 family littered the stair carpet with nut-shells, dirt, and sweepings 
 from the story above, spilled water on the stair carpet, and then 
 by a placard called attention to the filthy condition of the tenants' 
 stairs; addressed impertinent and insulting language to persons 
 visiting the tenant on business, and disturbed them by loud sing- 
 ing and noises on the stairway; and used insulting and abusive 
 
182 LANDLORD AND TENANT. 
 
 language to the tenant's wife, sister, and mother, and made obscene 
 noises at the door, etc. These acts were continued during the en- 
 tire tenancy; and in an action for the last quarter's rent it was 
 held that the landlord was chargeable with the wrongful acts of 
 his family ; and that the tenant was not liable for the rent, for the 
 reason that the acts done were equivalent to an eviction. Cohen 
 V. Dupont, 1 Sandf. 260. 
 
 An interruption of the enjoyment of a privilege conferred by 
 a lease, by judicial means adopted by the landlord, constitutes an 
 eviction, and suspends the rent of the demised premises, and the 
 remedy of the lessor, for the recovery of the possession ; accord- 
 ingly, where" the use of a railroad, together with a rolling mill, 
 furnace, etc., was leased to the defendant; such use being neces- 
 sary to the full enjoyment of the premises; and rent was to be 
 paid for such railroad, as an appurtenance of the other demised 
 premises; and after the defendant had taken possession thereof, 
 the lessor tore up the rails of the railroad; it was held, that this 
 amounted to an eviction of the tenant which barred an action for 
 the recovery of the premises on the ground of non-payment of rent. 
 Peck V. Hiler, 24 Barb. 178. And where a lessor is guilty of a 
 material interference with the beneficial use of the demised prem- 
 ises, even though it does not amount to a technical eviction, this 
 will give the tenant a right to abandon the premises, and to stop 
 paying rent. Rogers v. Ostrom, 35 Barb. 523. Tearing down a 
 partition which separated the entrance to the tenant's room from a 
 low grogshop, so as to compel him; to pass through the latter, in 
 order to reach his own room, is such an interference as justifies 
 the tenant in leaving the premises. Ih. Where a tenant left the 
 demised premises in the middle of a quarter, to allow the repair 
 of damages catised by a fire, the lease providing that in such case 
 the rent should cease until the reparation was completed; it was 
 held, that a subsequent occtipation of the premises, with the land- 
 lord's assent, by a third person as tenant, terminating before the 
 completion of the repairs, could not be deemed an eviction of 
 the tenant, he having been present at a negotiation between the 
 landlord and such third person for reletting to the latter, and at 
 the same time proposing to surrender his lease. Ogden v. Sander- 
 son, 3 E. D. Smith, 166. A wrongful act of the landlord, causing 
 great inconvenience and trouble to the tenant's family, and keep- 
 ing the demised tenement in confusion and disorder for a long 
 period, cannot be set wp as an eviction, where the tenant has con- 
 tinued in possession for a year after the injury ceased. Cram v. 
 
LAISTDLOED AND TEN^ANT. 183 
 
 Dresser, 2 Sandf. 120. A landlord who owns land adjoining the 
 demised premises, has a right to build on such land, though he 
 may thereby obstruct and darken the windows in the tenement de- 
 mised. Such an act exercised on land not embraced in the demise, 
 cannot operate as an eviction, even if it were a ground of dam- 
 ages. Palmer v. Wetmore, 2 Sandf. 316. When a landlord com- 
 mits acts which are injurious to the tenant, and which are calcu- 
 lated to prevent the tenant from underletting the premises, as by 
 the landlord's oflFering to lease them and advertising for that pur- 
 pose, this is not an eviction, and will not bar an action for rent. 
 Ogilvie v. Hull, 5 Hill, 52. 
 
 Where a tenant .by lease under seal, abandons the demised prem- 
 ises, and resists the payment of rent subsequently accruing, on 
 the ground that other apartments in the same building, adjoining 
 or below his, are occupied as a place of riot and prostitution, he 
 must show that his landlord created the nuisance by leasing such 
 apartments for that purpose, or that it existed by his connivance 
 and consent; and in an action upon such sealed lease, to recover 
 a quarter's rent payable in advance, and becoming due after the 
 tenant had abandoned the premises, it appeared that before the 
 expiration of the lease, the landlord had let the lower apartments 
 of the building to another person whose name was not shown. 
 These apartments were occupied as a place of prostitution, drink- 
 ing, etc., whereby great noise and disturbance were made; but 
 it was not shown that the landlord had leased them for any such 
 purpos-e, or that they were so occupied with his connivance and 
 consent, nor was there affirmative evidence to show that the per- 
 son so occupying held under the landlord. The defendant, after 
 quitting the premises and before the quarter's rent in question 
 fell due, gave notice to the landlord of the existence of the nui- 
 sance, but the landlord took no steps in the matter. Judgment was 
 given for the plaintiff for the rent, and it was affirmed by the court 
 of appeals. Gilhooley v. Wasliingion,, 4 IST. Y. 217. Where there 
 is no eviction of a lessee, nor any actual interference with his en- 
 joyment of the demised premises, and he continues to enjoy the 
 whole premises, he cannot be excused from the payment of rent, 
 merely on the ground that other parts of a building containing 
 the demised premises, are so iised by a lessee thereof as to affect 
 indirectly and injuriously the business prosecuted by the lessee in 
 such demised premises. Mortimer v. Brunner, 6 Bosw. 653. In the 
 equitable action for use and occupation; the tenant is not answer- 
 able, unless he has had a beneficial enjoyment of the property; 
 
184 LANDLOED AND TENANT. 
 
 but the action of covenant upon a sealed lease, for the non-pay- 
 ment of rent, does not depend upon the occupation or enjoyment 
 of the premises demised. Ih. 
 
 An interference by the owner or chief landlord with the posses- 
 sion of a subtenant is a trespass, for which an action is main- 
 tainable against him by the subtenant but for which the inter- 
 mediate landlord is not responsible. Such interference does not, 
 as between the lessee and the subtenant, operate as an eviction; 
 and accordingly it was held, that the act of an owner in consenting 
 to the removal of a wall standing upon his land, and being es- 
 sential to the use of a part of the demised premises, could not sus- 
 pend the right of the original lessee, who did not participate in 
 such removal, to collect the rent from a subtenant. Luckey v. 
 Frantzhee, 1 E. D. Smith, 47. It seems that if the subtenant had 
 left the premises in consequence of the interference with his pos- 
 session by the chief landlord, the latter could not have recovered 
 rent of his lessee. Ih. 
 
 An eviction is something more than a mere ordinary trespass 
 (Peek V. Hiler, 31 Barb. 117, 120), but it is not essential that 
 the acts of the landlord should be committed with intent to com- 
 pel the tenant to leave the property or to deprive him of the bene- 
 ficial enjoyment thereof. Tallman v. Murphy, 120 N. Y. 345. 
 If they are calculated to and do make it necessary for the tenant 
 to move, they constitute an eviction. So a failure to perform the 
 duty which the landlord owes to the tenant, and without the due 
 performance of which the leasehold premises are not tenantable, 
 would constitute an eviction. Ih.; O'Gormcm v. Harhy, 18 Misc. 
 228 ; Tallman v. Earle, 3 Misc. 76 ; Thalheimer v. Lempert, 17 
 St. Eep. 346 ; Dujf v. Hart, 40 St. Kep. 676. 
 
 Premises were demised by an agreement not under seal, for 
 a year, at the rent of two hundred dollars, payable quarterly, 
 and after the tenant had entered into possession of the whole 
 premises, but before any rent became due and payable, the land- 
 lord wrongfully entered and evicted the tenant from a part of the 
 premises, but the tenant voluntarily occupied the residue to the 
 end of the term. The landlord brought an action for use and 
 occupation, but he was not permitted to recover. Christopher v. 
 Austin, 11 N. Y. 216 ; 8. C, 2 E. D. Smith, 203. A wrongful 
 eviction of the tenant by the landlord from a part of the demised 
 premises, suspends the rent until the possession is restored. Ih. 
 The landlord cannot recover a portion of the rent on the agree- 
 ment to pay rent, nor for any part of the premises occupied by 
 
LANDLOKD AND TENANT. 185 
 
 the tenant while such eviction continues. lb. See ante, p. 181. If 
 the lessor cannot, and does not put the tenant in possession of all 
 the land which he leased to him, the tenant is under no obliga- 
 tion to accept a part, and he will be justified in abandoning the 
 premises. Hay v. Cumberland, 25 Barb. 594. 
 
 But where a lessee is not permitted to enter into possession of 
 the whole of the demised premises, but he nevertheless enters into 
 possession of the residue, and occupies and enjoys such residue, 
 and pays full rent for two quarters without claiming a deduction, 
 and is sued for the third quarter's rent, he cannot set up the 
 fact that he at no time had possession of the whole, as a bar to 
 the action. Such a withholding of a part is not an eviction, nor 
 a matter of equivalent effect. And he must pay for the part he 
 has enjoyed upon the principle of a quantum meruit. Hurlbut 
 v. Post, 1 Bosw. 28. This case is distinguishable from Christo- 
 pher V. Austin, in two points : in this case there never was a full 
 possession given to the tenant, and in that case there was ; and 
 again, the payment of two quarters' rent without objection may 
 be considered a modification of the original agreement. See Ethe- 
 ridge v. Osbom, 12 Wend. 529 ; Lawrence v. French, 25 Wend 
 443 ; Whitbech v. Skinner, 7 Hill, 53. 
 
 Where rent is payable in advance, the right of the landlord to 
 recover for the period of the tenant's actual occupation after rent 
 becomes payable, is not defeated by the summary dispossession 
 of the tenant under the statute, in the middle of the quarter. 
 Davison v. Donadi, 2 E. D. Smith, 121. And see McNulty v. 
 Duffy, 59 N. Y. Supp. 592. Though a tenant be removed from 
 the demised premises for non-payment of rent, by summary pro- 
 ceedings under the statute, the landlord may nevertheless recover 
 the same rent by action. The lease in such case is not annulled 
 from its date, but only from the date of issuing the warrant to 
 remove the tenant. Hinsdale v. White, 6 Hill, 50Y. 
 
 Where a tenant is evicted before the expiration of his lease, he 
 is thereby absolved from all liability to pay rent from the com- 
 mencement of the quarter in which the eviction occurred. Chat- 
 ierton v. Fox, 5 Duer, 64. He may also recover the difference 
 between the value of the lease for the unexpired term and the 
 stipulated rent. Ih. 
 
 If evicted at a season of the year when the expense of removing 
 is greater than it would have been at the expiration of the term, 
 he may recover such extra expense. lb. But he cannot recover, 
 as a matter of course, any increased rent which he may be com- 
 
18G LAISTDLOED AJSTD TENANT. 
 
 pelled to pay for other premises which he may hire, for the pur- 
 pose of carrying on the business for which he was using the prem- 
 ises from which he was evicted. Ih.; Noyes v. Anderson, 1 Duer, 
 342, 352, 353. 
 
 A wrongful eviction of a tenant only suspends the rent or ex- 
 cuses the tenant from the payment of rent thereafter accruing, 
 but does not prevent the collection of that which had already ac- 
 crued and become payable. La Farge v. Halsey, 1 Bosw. 171. 
 In an action against the tenant for the recovery of such rent, the 
 only use which the defendant could make of a subsequent evic- 
 tion, would be by way of recoupment of the damages he had sus- 
 tained therefrom. The sureties of a tenant, in an action against 
 them for the recovery of rent accrued, cannot avail themselves of 
 a defense that would only be available to the tenant, by way of 
 recoupment or counterclaim. Ih. And see Gillespie v. Torrance, 
 4 Bosw. 36. 
 
 Where the lessee in a lease in perpetuity has been evicted from 
 a portion of the premises or privileges granted by the lease, by 
 a paramount title in a stranger, he is discharged from the rent 
 pro tanio, and is entitled to an apportionment, by which rent, shall 
 be paid in respect to the residue only. Carter v. Burr, 39 Barb. 
 59. But, in an action for rent, the lessee is not entitled to recoup 
 the value of the lease over and above the rent, nor for the rents 
 he might have realized, or for special damages incurred, by reason 
 of being evicted from a portion of the privileges granted. lb. 
 
 § 9. The Obligation to Repair. 
 
 In the absence of any agreement to the contrary, a landlord is 
 not bound to make any repairs whatever to the demised premises. 
 Mumford v. Brown, 6 Cow. 475 ; Witty v. Matthews, 52 N. Y. 
 512 ; Ely v. Fahy, 79 Hun, 65 ; FranMin v. Brown, 118 N". Y. 
 110; Browner v. Walter, 15 App. Div. 295; Lavrd v. McGeorge, 
 16 Misc. 70. The only exception to this rule is to be found in some 
 statute casting upon the landlord the duty of making some particu- 
 lar line of repairs, as for example, the repair of the fire-escapes 
 upon tenement-houses. See McAlpme v. Poiuell, 70 IST. Y. 126. 
 Where the several floors or suites of rooms of a flat, tenement or 
 apartment house are separately rented for use by several families, 
 and certain portions of the building, such as the halls and stair- 
 ways, are not rented to any particular tenant, but are provided 
 by the landlord for the common use of all his tenants, it is the 
 duty of the landlord to use reasonable care in keeping such por- 
 
LANDLOED AND TENANT. 187 
 
 tions of the building in suitable condition and repair, so that they 
 may be used with safety by the tenants for the purposes designed. 
 Donohue v. Kendall, 18 Jones & Sp. 386 ; 98 N. Y. 633 ; Palmer 
 V. Bearing, 93 N. T. 7 ; Peil v. Reinhart, 127 N. Y. 381 ; Bollard 
 V. Roberts, 130 N. Y. 269 ; Rouillon v. Wilson, 29 App. Div. 
 307. But these cases are not exceptions to the rule exempting the 
 landlord from the duty to keep the demised premises in repair, as 
 they do not profess to decide as to the duty to keep in repair any 
 portion of the premises actually demised. Most of them are ac- 
 tions for tort for the negligence of the landlord in leaving a dan- 
 gerous thing or place in his building, known, or which should have 
 been known, to him to be dangerous, by reason whereof the tenant 
 or third persons are injured. The law of such cases is entirely 
 different from that applicable to actions for breach of an express 
 or implied contract to repair. So, too, in many cases, the duties 
 and liabilities of landlords of tenement and apartment-houses in 
 the direction mentioned are regulated, defined or imposed by local 
 statutes, and to that extent are not within the ordinary rules of law 
 applicable to the relation of landlord and tenant. 
 
 There is no implied covenant or warranty on the part of the 
 lessor of a dwelling-house that the premises are tenantable. Cleves 
 V. Willoughhy, 7 Hill 83 ; Mayer v. M oiler, 1 Hilt. 491 ; Keates 
 V. Oadogan, 1 J. Scott, 591 ; Bonner v. Ogilvie, 49 Hun, 229 ; 
 Jaife V. Earteau, 56 N. Y. 398 ; O'Brien v. Capwell, 59 Barb. 
 497; McClashan v. Tallmadge, 37 Barb. 313. It is universally 
 held in this State that the lessee of real property must run the 
 risk of its condition unless he has an express agreement on the part 
 of the lessor covering that subject. The tenant hires at his peril, 
 and a rule similar to that of caveat emptor applies and throws on 
 the lessee the responsibility of examining as to the existence of 
 defects in the premises, and of providing against their ill effects. 
 Watson V. Almirall, 61 App. Div. 429 ; Franklin v. Brown, 118 
 N. Y. 110. 
 
 Where there is no agreement on the part of the lessor to repair, 
 the lessee cannot, when sued for the stipulated rent, set up the 
 want of repairs either as a defense or in reduction of the claim. 
 Moffatt V. Smith, 4 N. Y. 127. In the absence of any fraudu- 
 lent representations or concealment by the lessor, as to the state 
 and condition of the premises let, and their fitness for the pur- 
 poses for which they are hired, it is no defense to an action for 
 the rent, that the premises were, and that they continued to be, 
 -unhealthy, noisome and offensive, and unsuitable as a dwelling. 
 McGlashan v. Tallmadge, 37 Barb. 313, and cases there cited. 
 
188 LANDLORD A:N^D TENANT. 
 
 When the lease is in writing, and there are no covenants on 
 the part of the lessor to repair, no action can be maintained against 
 him by the tenant because the premises are untenantable. And if 
 the lessor verbally promises, at the time and before the making of 
 the lease, that he will make certain repairs, that will not affect the 
 rule, because the lease is conclusive upon that question, and parol 
 evidence is not admissible for the purpose of showing such verbal 
 promises. Speckels v. Sax, 1 E. D. Smith, 253 ; Titbits v. Percys 
 24 Barb. 39 ; Wilson v. Dean, 14: N. Y. 531 ; Ely v. Fahy, Y9 
 Hun, 65 ; Gary v. Kreizer, 26 Misc. 755. A subsequent parol 
 agreement to repair where there is no new consideration therefor, 
 is not binding on the lessor; and the continuance of the tenant in 
 the occupation of the premises, in such a case, is not a sufficient 
 consideration. Ih.; Fox v. Abbott, 16 Week. Dig. 159. 
 
 Not only does the law assume that the parties to a written 
 lease have made express provision for every case in which a land- 
 lord should be held to repair, but it also assumes that the parties 
 have fully stated the extent of the obligation in any covenant for 
 repairs therein contained, and will not permit those covenants to 
 be enlarged by construction. Witty v. Matthews, 52 N. Y. 512. 
 
 Although it is not competent for a tenant to prove by parol 
 that the landlord, at the time a written agreement for the letting 
 and hiring was entered into, also agreed to repair the premises; 
 yet a subsequent parol agreement by the landlord to repair, made 
 upon a new and sufficient consideration moving him thereto, may 
 be proved, and the tenant may recover for the breach of such 
 parol agreement. Post v. Yetter, 2 E. D. Smith, 248. There is 
 no implied covenant in a lease that the premises will continue 
 tenantable, even if they are so when leased; and if there is no 
 express agreement to that effect, the landlord will not be bound 
 to repair such subsequent defects in the condition of the premises. 
 lb. 
 
 A landlord is, in no case, bound to repair, unless by force of an 
 express covenant or contract ; and even when a building is let for 
 a special purpose, and its use or occupation for any other purpose 
 is, in terms, prohibited, there is no implied contract or warranty, 
 on the part of the landlord, that the building shall be or continue 
 fit for the purpose for which it is demised. Howard v. Doolittle, 
 3 Duer, 464. 
 
 But where the defendants were erecting a building, and before 
 its completion, they agreed with the plaintiff to lease it to him, 
 and also agreed to finish it in the same manner that another 
 
LANDLOED Ai^TD TENANT. 189 
 
 specified building was finished; but it was not so finished, and 
 owing to the bad construction of the roof, the water therefrom 
 fell down upon the goods of the plaintiff and injured them, the 
 defendants in such a case were held liable for the damages. Tul- 
 ler V. Davis, 4 Duer, 187. Where a landlord is bound by his 
 covenant or his agreement with his tenant to make repairs, or to 
 keep the premises in good repair, and he neglects or refuses to 
 make the repairs, the tenant has his option whether to make such 
 repairs, and then recover the expense incurred from the landlord ; 
 or to omit making such repairs and restoration himself, and seek 
 his remedy by an action for the damages. Douglas v. Chese- 
 hrough Building Co., 56 App. Div. 403 ; Schick v. Fleischauer, 
 26 App. Div. 210; Myers v. Bums, 35 IST. Y. 269; S. 0., 33 
 Barb. 401. If the tenant elects to make the repairs, he is not 
 bound to use precisely the same kind of materials which were 
 originally used. He is not bound to ignore and reject all im- 
 provements and new methods and materials, and adhere to old 
 and obsolete customs. If he employs a competent mechanic, who 
 uses suitable materials, and the work is seasonably and properly 
 accomplished, he is entitled to be reimbursed for what he has ex- 
 pended. Ih. 
 
 In an action by the landlord for the recovery of the rent due on 
 the lease for the use of the premises, the tenant may recoup such 
 sums as he may have properly and legally expended -in making 
 such repairs. Ih. And in a lease for a term of years, a covenant 
 to repair is a covenant which runs with the land, and binds the 
 assignee of the covenantor, so that the same defense is equally 
 available in an action brought by him for the rent. Ih. Where a 
 monthly tenant occupies rooms of a landlord, under an agreement 
 to pay the rent in advance, and he leaves the premises in the lat- 
 ter part of a month, he is not liable to pay the rent which accrues 
 in a succeeding month, which was not due at the time he left the 
 premises. Fash v. Kavaimgh, 24 How. 347. And where it ap- 
 peared that the filth from a privy either on the premises, or on 
 those adjoining, flowed over the apartments occupied by the ten- 
 ant, without any fault, procurement, or neglect on his part, and 
 rendered them unfit to occupy, it was held, that the tenant was 
 justified in abandoning them under the provisions of the " act in 
 relation to the rights and liabilities of owners and lessors, and 
 of lessees and occupants of buildings," passed April 13, 1860. 
 lb. The injury to the premises which is contemplated by this 
 statute, must be of a physical nature, such as if done by the land- 
 
190 LANDLOED AND TENANT. 
 
 lord would amount to an eviction of the tenant, from the whole or 
 of a part of the premises, or it will not justify the tenant in 
 abandoning the premises. lb. 
 
 The occupant of apartments in a tenement-house, is not bound 
 to see to the erection of a proper sink or privy upon the premises, 
 or to cause it to be emptied to prevent an overilow. lb. But this 
 rule does not extend to the ordinary case of a letting of a house 
 by a landlord. In that case it is the duty of the tenant to attend 
 to the emptying of the sinks and cesspools attached to the prem- 
 ises. But where, under the system of modern improvements in 
 tenement-houses, the tenant occupies a single room which is rented 
 directly by the landlord for a short and uncertain term, as from 
 month to month, it is his duty to attend to the cleaning of the 
 sinks and cesspools. lb. 
 
 Where a lease contains a covenant on the part of the lessees to 
 surrender up the possession of the premises, at the expiration of 
 the lease, in the same condition that they are in at the date of the 
 lease, natural wear and tear excepted, but there is no covenant 
 to repair or rebuild, and the buildings are destroyed by fire dur- 
 ing the continuance of the term, the tenants are not bound to 
 put up new buildings in. the place of those destroyed. Warner 
 V. Hitcliins, 5 Barb. 666. 
 
 Where there is no provision in an agreement for letting prem- 
 ises that the landlord shall make repairs, the tenant takes the 
 premises for better or for worse, and must pay the agreed rent for 
 the term demised, since the landlord is under no legal obligation 
 to repair them. Bloomer v. Merrill, 29 How. 259 ; 8. C, 1 Daly, 
 485. 
 
 A tenant from month to month is under no obligation to make 
 substantial repairs. Johnson v. Dixon, 1 Daly, 1Y8. And there 
 are cases in which the landlord is bound to make such repairs as 
 are necessary to render the premises secure and safe for the pur- 
 poses for which they are rented; and if the insecurity is known 
 to him, it is negligence in him to neglect to make proper repairs. 
 lb. If the premises become dangerous or uninhabitable in conse- 
 quence of the wrongful act or default of the landlord, the rule 
 that the tenant takes the premises at his own risk does not apply. 
 lb. Where a stall was leased for the purpose of keeping a horse, 
 and the tenant informed the landlord that there was a defect in 
 the floor, and the landlord gave an explanation of it, and said he 
 would attend to it, and, through a reliance upon such explanation 
 and promise, the horse was kept in the stable, and in consequence 
 
LANDLOKD AND TENANT. 191 
 
 of the insecurity of the floor it was injured, it was held that the 
 landlord was chargeable with negligence, and that he was liable 
 to the tenant for the injury. lb. 
 
 ^Notwithstanding the general rule that there is no implied war- 
 ranty that a house is fit for human habitation, there are cases in 
 which the fraud of the landlord will absolve the tenant from any 
 obligation to retain the premises and pay rent ; and where a land- 
 lord knows that a cause exists which renders the house unfit for 
 occupation, it is a wrongful act on his part to rent it without 
 disclosing the fact to the tenant; and where the tenant, on dis- 
 covering such unfitness, leaves the premises within a reasonable 
 time thereafter, he cannot be compelled to pay rent. Wallace v. 
 Lent, 29 How. 289 ; S. C, 1 Daly, 481. ' This last case was one 
 in which a landlord rented a dwelling-house to a tenant without 
 disclosing the fact, of which he was aware, that there was a dele- 
 terious stench in the house proceeding from some unknown cause,, 
 which rendered it unfit for habitation. The tenant, ignorant of 
 the circumstances, went into possession with his family, and in a 
 very short time all the inmates of the house experienced the in- 
 jurious effects of the stench. It was not merely offensive to the 
 senses, but it produced sickness at the stomach, vomiting, loss of 
 appetite, etc. The tenant did everything in his power to abate 
 the nuisance, but without effect, and after continuing in the house 
 for about a month, and after several consultations with the family 
 physician, who was of the opinion that the family could not live 
 in the house without all becoming sick, he left, and it was held 
 that the concealment by the landlord was a fraud which justified 
 the tenant in leaving, and that no action would lie against him for 
 the rent. Ih. 
 
 Where a landlord leases premises to another, with a covenant 
 to keep the building in repair, and he neglects to make proper 
 repairs, and in consequence whereof a shed, which is one of the 
 braidings falls, and draws .down with it a building of an adjoin- 
 ing proprietor, and injures the property of the latter which is 
 within the building at the time, an action will lie in favor of the 
 latter against the landlord to recover the damages, sustained. 
 Benson v. Suarez, 43 Barb. 408 ; 8. C, 28 How. 511 ; 19 Abb. 61. 
 
 § 10. Covenants to Pay Taxe^| Kenew, etc. 
 
 " Ordinary and yearly taxes," stipulated in a lease to be paid 
 by the tenant, do not constitute in law any portion of the " rent " 
 reserved by such lease. Garner v. Hannah, 6 Duer, 262. And 
 
192 LANDLORD ANT) TENANT. 
 
 where a lease, executed in 1843, six years before the establishment 
 of the " Croton Department " under the Croton water acts, but 
 after the passage of the act for supplying the city of New York 
 with pure and wholesome water (1834), contained a provision 
 that the lessee should pay " the ordinary and yearly taxes ;" it 
 was held, that the annual water rent charged on the premises, 
 according to the rates established by the Croton Department, was 
 within the meaning of the covenant, and properly to be considered 
 as embraced within that description of " taxes." Ih. And see 
 Manice v. Millen, 26 Barb. 41 ; Jackson v. Harrison, 17 Johns. 
 66. By covenanting to pay the Croton water tax assessed on the 
 premises, the lessee of the front building on a lot does not become 
 liable for the water rents on the entire premises embracing other 
 buildings. Steinhardt v. Burt, 27 Misc. 782. 
 
 Where a lessee covenants to pay " all assessments for which 
 the premises shall be liable," he is bound to pay an assessment 
 subsequently imposed for opening a street, although it was not 
 authorized by any law existing at the time the lease was executed. 
 Post V. Kearney, 2 N. Y. 394. The lessee's covenant to pay 
 assessments runs with the land and binds the assignee of the term. 
 lb. A covenant by the lessor giving the lessee the privilege and 
 option of a renewal of the lease on the expiration of the term upon 
 giving the lessor notice before the expiration of the lease, is not 
 personal and may be enforced after the death of the lessee by a 
 person succeeding to his interest under the lease. Kolashy v. 
 Michels, 120 N. Y. 635. 
 
 The acceptance of a lease of land, " with all the privileges 
 belonging thereto, as enjoyed by S. H.," an outgoing tenant, does 
 not subject the lessee to the obligation of a covenant of S. H., 
 to leave all buildings which he might erect during his tenancy. 
 Ornbony v. Jones, 19 N. Y. 234 ; S. C, 21 Barb. 520. 
 
 A covenant in a lease that the lessee shall have " the refusal 
 of the premises at the expiration of the lease " for a specified 
 term, is a covenant to renew the lease at the same rent for such 
 term. It is violated by the lessor if he refuses to give a new lease 
 except at an increased rent, and the acceptance by the lessee of 
 a new lease at the increased rent after such violation, he at the 
 time protesting against the right to exact of him the increased 
 rent, and claiming to reserve his right of action for the breach of 
 covenant, is not a waiver of the covenant. The lessee in such 
 lease is not compelled to wait until the actual termination of the 
 lease before he makes his election to have the lease renewed. The 
 
LANDLOED AND TENANT. 193 
 
 lessor is bound to renew when the lessee makes his election, and 
 demands the renewal. Tracy v. Albany Exchange Co., 7 N. Y. 
 
 472. 
 
 But a covenant to renew a lease under the same covenants 
 contained in the original lease, is satisfied hj a renewal of the 
 lease omitting the covenant to renew. Carr v. Ellison, 20 Wend. 
 178. 
 
 Where rent is due to a landlord, he may assign it. in the same 
 manner that any other chose in action is assigned, and the assignee 
 may sue in his own name, to recover the rent due. 
 
 And so a landlord may assign his interest in a lease, and his 
 assignee will be entitled to the rents which accure after such 
 assignment. Willard v. Tillman, 2 Hill, 274 ; Moffatt v. Smith, 
 4 N. Y. 126 ; Peckham v. Leary, 6 Duer, 494; Main v. Feathers, 
 21 Barb. 646. 
 
 After an agreement by a lessor to repair is broken, it becomes 
 a chose in action in the lessee's favor, upon which he can main- 
 tain an action against the lessor. Mirick v. Bash ford, 38 Barb.. 
 191. And if a grantee of the lessor refuses to recognize any 
 liability to repair, and the lessee with notice of such refusal, at- 
 torns to him and pays him rent, the grantee is not liable on the 
 lessor's contract to repair, if such contract was broken, and the 
 lessee's liability for the breach was complete, before the grantee 
 had acquired any legal estate in the premises. lb. 
 
 And if the grantee of the lessor has repudiated the lessor's cove- 
 nant to repair, and refused to perform it, the lessee avowing his 
 intention to hold the lessor upon his covenant, continues in pos- 
 session of the premises, attorning to the grantee, by the payment 
 of rent without objection, as it becomes due, this will be held to 
 be evidence, prima facie at least, of a waiver by the lessee of any 
 claim upon the grantee, on the lessor's covenant to repair. lb. 
 
 § 11. Emblements. 
 
 A tenant whose estate is terminated by an uncertain event 
 which he could neither foresee nor control, is entitled to the annual 
 crop which he sowed or planted while his estate continued, by the 
 name of emblements. Pfanner v. Sturmer, 40 How. 401; Ma- 
 honey V. Farley, 17 Week. Dig. 277. But a tenant for years or 
 any other time certain, knows when his estate will determine, and 
 it is his folly to sow or plant when he knows that he cannot reap 
 the harvest. Whitmarsh v. Cutting, 10 Johns. 360; Bain v. 
 Clarh, 10 Johns. 424; Beeder v. Sayre, 70 N. Y. 180. 
 13 
 
194 LANDLORD AND TENANT. 
 
 It is a perfectly well settled rule, that a tenant has no right 
 to emblements when his lease is terminated by a param)ount title 
 wholly subverting his own. Sampson v. Rose, 65 N. Y. 411. For 
 example, where lands are mortgaged by the landlord before the 
 lease is executed, and the lands are subsequently sold under a 
 foreclosure sale of such mortgage, the crops on the land at the 
 time of the sale will pass to the purchaser under the mortgage 
 sale, and the tenant will lose all right to them, because his lease 
 is subject to be defeated by any sale which, divests hie landlord of 
 the title to the land. Lane v. King, 8 Wend. 584; Shepard v. 
 Philbrick, 2 Denio, 1Y4; Gilleti v. Balcom, 6 Barb. 370. 
 
 iBut if in such a case, the mortgagee of the lands agrees that 
 the tenant may take off any crops which he may raise on the lands, 
 and the tenant subsequently raises crops in good faith, he will 
 hold them in preference to the mortgagee, or a purchaser at the 
 mortgage foreclosure sale. Congden v. Sanford, Hill & Denio, 
 196. The law in relation to the recovery of rent for use and 
 occupation will be discussed elsewhere. 
 
PKINCIPAL AND AGENT. 195 
 
 CHAPTER VI. 
 
 THE LAW OF AGENCY, OR PRINCIPAL AND AQENT. 
 
 § 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. 
 
 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 negli- 
 gence. Married women may act as agents for third persons, and 
 so they may act as agents for their husbands, and if a husband 
 permits her to act in any particular business, he adopts and is 
 bound by her acts and admissions in reference to such business. 
 Biley v. Suydam, 4 Barb. 222 ; HopMns v. Mollinieux, 4 Wend. 
 465 ; Gates v. Brower, 9 N. T. 205 ; Edgerton v. Thomas, 9 N. 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 ; Hashrouch v. Weaver, 10 Johns. 247. But where the 
 husband is bound to deliver up certain property, upon a demand 
 made upon him, the wife is not such an agent, from the mere rela- 
 tion of wife, as will constitute a refusal by the wife to deliver 
 such property a refusal by the husband. Livingston v. Stoessel, 
 3 Bosw. 19. 
 
196 PEINCIPAL AND AGENT. 
 
 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 
 and ordinary scope of the business in which he was employed, not- 
 withstanding 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 authority. Munn v. Commission Co., 15 Johns. 44; 
 Jeffrey v. Bigelow, 13 Wend. 518 ; National Union Bank of Water- 
 town V. Landon, 66 Barb. 189 ; 45 K 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. The 
 principal is not bound by the acts of a special agent, if he exceeds 
 the limits of his authority. 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. 
 Martim, v. Famsworth, 49 !N". T. 555 ; 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. StruUer, 25 Misc. 173. 
 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 au- 
 thority can be implied where the property is of a description 
 not usually sold with a warranty. Smith v. Tracy, 36 IS. Y. 79. 
 And there are no cases going to the extent of holding that an agent 
 i:o 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 
 
PEINCIPAL AND AGENT. 197 
 
 principal may sell to the same purchaser. Wait v. Borne, 123 
 N. Y. 592. 
 
 An authority given by a father to his son to accept, in 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 JST. 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 aiTthority 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, purchased only 
 one hundred shares, it was held that A. was not bound to refund 
 to B. the money which he had advanced for the purchase of such 
 one hundred shares. Olyphant v. McNair, 41 Barb. 446 
 
 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 ; Higgins v. Moore, 34 IST. Y. 417. A person employed to sell 
 a mortgage and apply the proceeds has no authority to foreclose 
 the mortgage. Martin v. Moore, 3 App. Div. 416. An implied 
 authority to receive payment does not include authority to compro- 
 mise the claim. Sier v. Bache, 7 Misc. 165. And authority to re- 
 ceive payment of an obligation does not authorize the agent to re- 
 ceive it before it is due. Schermerhom v. Farley, 58 Hun, 66 ; 
 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. 
 
 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 ; 
 Orane v. Oruenwald, 120 N. Y. 274. And see Central Trust Co. 
 V. Folsom, 38 App. Div. 295. This rule comprises two elements: 
 Pirst, possession of the securities by the attorney with the consent 
 of the mortgagee; arid, second, knowledge of such possession on 
 
198 PKINCIPAL AND AGENT. 
 
 the part of the mortgagor. The mere possession of the securities 
 by the attorney is not sufficient. Crane v. Gruenwald, 120 N. Y. 
 274. And see Doubleday v. Kress, 50 N. 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 en- 
 trusted with the security. Smith v. Kidd, 68 N. 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 tipon 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 IST. Y. 130 ; Crane v. Gruen- 
 wald, 120 N. Y. 274; Brewster v. Games, 103 N. 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. 
 
 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 ; Rossiter v. Rossiter, 8 Wend. 494 ; Davenport v. 
 BucMand, Hill & Denio, 75 ; Batty v. Carswell, 2 Johns. 48 ; 
 Colem.an\. Garrigues, IS 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. Where the owner of 
 a horse employed a person to sell him, or to exchange him for an- 
 other horse suitable for staging, and the agent exchanged the horse 
 for a span of ponies not suitable for staging, at the same time 
 warranting the horse exchanged by him, it was held, in an action 
 against the principal, upon the warranty, that he was not liable. 
 Scott V. McGrath, 7 Barb. 53. 
 
PRINCIPAL AND AGENT. 199 
 
 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 
 had no authority as agent at the time the act was done. 
 
 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. Munn, 
 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. Baney v. Weed, 3 Sandf. 5Y7. 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. 
 lb. 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. Ih., 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. Ih. 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 plaintiff in the 
 execution and the publisher of the newspaper, as to render the 
 former personally responsible for the publisher's bill for adver- 
 tising, lb. 
 
200 PRINCIPAL AND AGENT. 
 
 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 grante^^ will 
 render the agents their own. Bailey v. Mayor of N. Y., SyiHill, 
 531. A merchant, about to leave the city of New Yorjs' for 
 Europe, executed a power of attorney to his clerk, erapo^^ring 
 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, will be construed as extending only to notes issued in the 
 business of the principal or for his benefit. North River Bank v. 
 Aymar, 3 Hill, 262. If the intent be that the attorney may issue 
 notes for his own benefit, or for the benefit of a third person, 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 authority, and 
 the person with whom he deals has notice of this, sufficient to put 
 him upon inquiry, he cannot charge the principal. Ih.; North, 
 River Bank v. Aymar, 3 Hill, 262, 263. And see Mechanics' 
 Bank v. N. Y., &c., R. R., 13 N. Y. 599, 632, 633 ; Farmers, 
 &c.. Bank V. Butchers', &c., Bank, 14 N. Y. 631, 632 ; 16 N. Y. 
 137, 13S, 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- 
 ally had ; but what authority the person who dealt with such 
 professed agent had a right to suppose he had from the repre- 
 sentation or acts of such professed principal. Johnson v. Jones, 
 4 Barb. 369. If a person authorizes another to assume the appa- 
 
PKINCIPAL AND AGENT. 201 
 
 rent right of disposing of property in the ordinary course of trade, 
 It must be presumed that the apparent authority is the real au- 
 thority; and the agent may bind his principal within the limits 
 of the authority with which he has been apparently clothed. 
 Bridendecker v. Lowell 32 Barb. 9. 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 conferred, 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 repre- 
 sentations, 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 y. Dooley, 120 IST. Y. 540, 
 551 ; Conant v. American Rubber Tire Co.j 48 App. Div. 32T; 
 Figueira v. Lemer, 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 approval 
 of the principal. Medbury v. N. Y. & Erie B. 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 president, it 
 was held, that this restriction shotild be construed as meaning, 
 subject to the approval of the president, if he, on any 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 author- 
 ity from the company, were in the habit of agreeing upon a price 
 by a submission to arbitrators, and the awards in such oases were 
 
202 PKINCIPAL AND AGENT. 
 
 paid by the company's financial officers, under a general resolu- 
 tion to pay the amount they directed; it was held, that the of- 
 ficers had power to submit the question of price to arbitrators, 
 and that their award was binding upon the company. Wood v. 
 Auburn, &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. Ih. 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 obtained and executions issued against him in suits on such 
 forged indorsements, never disavowed such acts until the person 
 committing the forgeries had absconded and fled 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 ad- 
 missible 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. Cavpenter, 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. F., 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 beai 
 appointed by the society to take charge of and deliver such ar- 
 ticles as were labelled and directed as specified, if sent in time, 
 by any of the usual public modes of transportation, and notice was 
 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. P. to transport such articles from 
 the railroad depot to the place of exhibition. O'Neil v. iV. 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 
 
PKINCIPAL AND AGENT. 203 
 
 ■of the road, everything connected with the running of the road 
 being under his supervision and control, and that he paid money 
 to drivers, conductors, and other persons employed by 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- j 
 ligence ; and that therefore the superintendent had no authority ' 
 to bind the corporation to pay a physician or svirgeon for his 
 attendance upon a person who had been run over by a car and 
 severely injured. Stephenson v. iV^. Y. £■ Harlem B. B., 2 Duer, 
 341. The existence of an agency cannot be established by proof 
 that one person is reputed to be the agent of another. Perkins v. 
 Stehhins, 29 Barb. 523. An agency to do some particular acts in 
 relation to the discharge of the duties of an agent, Avill sometimes 
 be inferred from the nature of the employment of the agent. 
 Where the authority of an agent was general in respect to a par- 
 ticular 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. Hearne v. Keene, 5 Bosw. 579. 
 
 The defendant owned a steamboat, and his regular business 
 was the transportation of goods and merchandise thereon; the 
 plaintiff delivered to one A., who was the captain of such steam- 
 boat, and while he was in charge thereof, a trunk containing 
 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 shoAvn that the captain was 
 not the general agent of the defendant for receiving freights, etc., 
 and that there was an agent in Albany whose business it was to 
 anake 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. Withech v. 
 Schuyler, 44 Barb. 469 ; S. C, 31 How. 97. 
 
204 PEINCIPAL AND AGENT. 
 
 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 suiEcient 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 
 which 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 comisany responsible for the agent's misrepresenta- 
 tions as to the ownership of stock. Kenning v. New York & New 
 Haven R. R. Co., 9 Bosw. 283. Nor does mere permission given 
 by the agent to enter upon such books a transfer of reputed stock, 
 where no new certificate is given, amount to a representation by 
 him that the person making the transfer was the owner of any 
 genuine stock. Ih. 
 
 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 Beats 
 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 
 
PEINCIPAL AND AGENT. 205 
 
 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 attor-l 
 ney to execute an appeal bond in the name of his client. Ex parte 
 Holbrooh, 5 Cow. 35 ; People v. Judges, &c., 5 Cow. 34. An 
 agent who has a discretionary power to sell goods and collect the 
 price, has an implied authority to make any deduction from the 
 original price that could have been made by the principal. Tay- 
 lor V. Nussbaum, 2 Duer, 302. Money borrowed for a public pur- 
 pose and on the credit of the county, by the agent of a board of 
 supervisors, under its resolution, passed without any legal author- 
 ity, but not in violation of public policy or of positive statute, may 
 be recovered' by the board, of siich agent or his sureties. 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 sureties are 
 not liable therefor to the county, although the board of super- 
 visors afterwards voluntarily pay to the lenders the sums borrowed 
 from them without authority. The lenders were bound to ascer- 
 tain, at their peril, when the authority of the agent was exhausted ; 
 and the supervisors could not, by repaying to them money which 
 had 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 JST. Y. 242. The agents of a State, j 
 authorized to borrow money upon a sale of its stocks, cannot sell 
 on credit, unless a special authority to that effect has been con- 
 
206 PEINCIPAL AND AGENT. 
 
 ferred on them. An unauthorized contract entered into by State 
 agents, acting under limited powers, conferred by statute, cannot 
 ' be ratified 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 presump- 
 tive 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 quasi corporation, and they have power, as the 
 agents of the district, to employ teachers, and to give promissory 
 notes in payment of such teachers' wages, which notes may be 
 enforced against their successors in office in their official capacity. 
 Horton v. Garrison, 23 Barb. 176 ; and see Fister v. La Rue, 15 
 Barb. 323. A transfer of property by an agent, who exceeds his 
 authority in a material point, passes no title to the thing deliv- 
 ered, and it may therefore be reclaimed by the principal. Robert- 
 son V. Ketchum, 11 Barb. 652. And this is especially the case 
 where the person dealing with the agent knows that he is exceed- 
 ing his authority, and both he and the agent attempt to conceal 
 the facts from the principal. Ih. And see Exchange Bank y-. 
 Monteatli, 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 Banh, &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 Jietween 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 business 
 intrusted to his care, and are not narrowed by limitations not 
 communicated to the person with whom he deals. An insurance 
 company, establishing a local agency, must be held responsible to 
 the parties with whom they transact business for the acts and dec- 
 larations of the agent within the scope of his employment, as if 
 
PEINCIPAL AND AGENT. 20T 
 
 they proceeded from the principal. Insurance Go. v. WilMnson, 
 13 Wall. 222. And where a foreign insurance company appoints 
 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 subagents. 
 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. Mui. Ins. Co. of Albany, 1 N. Y. 290. A person seeking em- 
 ployment from a corporation has the right to assume that a person 
 at the office, who assumes to employ laborers, has authority to 
 act in that capacity; and a jury may presume the authority in 
 such a case from an act openly done in the usual course of business 
 at the office of the company, without evidence of actual knowledge 
 on the part of the company or its directors, or of express ratifica- 
 tion. Cox V. Albany Brewing Co., 56 Hun, 489. 
 
 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 Bue, 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 au- 
 thorized to contract. lb. But when the contract is still execu- 
 tory, and nothing has been done under it, and the action is to re- 
 cover damages merely for the non-performance, it is for the plain- 
 tiff to show a legal contract, binding upon the corporation. 76.! 
 When a person is employed for a corporation, by one assuming to 
 act in its behalf, and she renders services according to the agree- 
 ment, with the knowledge of its officers, and without objection on 
 their part, or 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 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. Instruc- 
 tions from a principal to his agent, which operate as private re- 
 strictions 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 Bank v, Astor, 11 Wend. 87. Where a prin- 
 
208 PKINCIPAL AND AGENT. 
 
 cipal, 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 pur- 
 chase 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 assented to the purchase and to have 
 ratified it. lb. The law will infer authority in an agent, as well 
 from the general character of 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 benefit 
 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. Wyckojf, 10 IST. T. 213 ; Baldwin v. Burroius, 47 IST. Y. 
 199; Adair v. Brimmer, 74 IST. Y. 554; Whitney v. Martine, 88 
 Z\T. Y. 535, 540 King v. MacKellar, 109 IST. Y. 215 ; Smith v. 
 Bradhurst, 18 Misc. 546 ; Munroe v. Judson, 82 Hun, 215 ; Trus- 
 fees v. Bowman, 136 'N. Y. 521 ; WhiilocTc 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. The ratification by a 
 principal of a previously 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 v. Warren, 15 'N. Y. 577. But a ratification of the unau- 
 
PEINCIPAL AND AGENT. 209 
 
 thorized act of an agent, or of a stranger who claims to act as 
 .such, if it exists, must be found in the intention of the principal, 
 either express or implied. If that intention cannot be shown, no / 
 ratification can be held to be established. Merritt v. Bissell, 155 ^ 
 N. 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. Cairnes 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 under siich circumstances as in- * 
 dicate an intention to do so. Merritt v. Bissell, 155 IST. Y. 396. 
 The acceptance of the benefits flowing from an unauthorized 
 act of an agent may amount to a conclusive ratification of the un- 
 authorized act. Where an agent, without authority from his prin- 
 cipal, 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 fimds 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 rati- 
 fication of the usurious contract and equivalent to a prior author- 
 ity to make it. Bliven v. Lyndecher, 130 E". Y. 102. So, where 
 a compromise has been effected and a release obtained from cred- 
 itors, the debtor cannot have the benefits thereof, where such com- 
 promise and release were effected by his agent's negotiations with 
 the creditors, without adopting all the representations made by 
 the agent in negotiating the compromise. Crans v. Hunter, 28 
 ISr. Y. 380. So, an agent authorized to sell property must be pre- 
 sumed to possess authority to make such representations in regard 
 to quality and condition as usually accompany such transactions, 
 and if the agent has been guilty of making false representations 
 in effecting the sale, the principal, by receiving the fruits of the 
 14 
 
210 PEINCIPAL AND AGENT. 
 
 bargain, adopts and is bound by the false representations of his 
 agent, although ignorant thereof and intending no fraud. Mayer 
 V. Dean, 115 K 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.. Go. v. Walworth, 1 N. Y. 433 ; 
 Folder v. N. Y. Gold Exchange Bank, 67 N. Y. 138 ; Corning v. 
 Southland, 3 Hill, 552. But a ratification of one act of an unau- 
 thorized agent, which was beneficial to the principal for whom he 
 professed to act, does not amount to a ratification of the subsequent 
 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 prin- 
 cipal. 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 afiirm 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 Shiras 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 plain- 
 tiff, by receiving the money, ratified the act of his agent in deliv- 
 ering the receipt. Palmerton v. Huxford, 4 Denio, 166 ; Arm- 
 strong V. Gilchrist, 2 Johns. Cas. 424. 
 
 An alteration of a sealed instrument, given to secure the pay- 
 ment of a sum of 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 
 charter. Contracts based upon such acts are void, and a subse' 
 
PEINCIPAL AND AGENT. 211 
 
 quent ratification by the directors will not render tliem valid. 
 McCullough v. Moss, 5 Denio, 567; Hodges v. City of Buffalo^ 
 2 Denio, 110; Smith v. City of Newhurgh, 11 N. Y. 130; Cowen 
 V. Village of West Troy, 43 Barb. 48 ; DicMnson v. City of Pough- 
 heepsie, 75 N. Y. 65, 74. There are some cases in which the 
 authority of an agent mvist 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 N. Y. 229. A subse- 
 quent parol ratification of an instriiment 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 R. R. 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 diflferent 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 insurer, 
 and is liable for the loss of the goods. Johnson v. New York Cen- 
 tral R. R. Co., 33 N. Y. 610. See Isaacson v. N. Y. C. & H. 
 R. R. R. Co., 94 N. Y. 278; Hinchley v. N. Y. C. & H. R. 
 R. R. Co., 56 N. Y. 429 ; Maghee v. Camden & Amboy R. R. Co., 
 45 N. Y. 514 ; Wilts v. Morrell, 66 Barb. 511 ; Goodrich v. Thomp- 
 son, 44 N. Y. 324. 
 
 Where a principal consigns property to his factor, with instruc- 
 tions to sell it upon its arrival, the latter is bound to follow the 
 
212 PEIXCIPAL AND AGENT. 
 
 instructions and sell for the price it will command, and if he does 
 not he "will become liable for the damages which his principal 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 disposed of at 
 reduced rates. Evans v. Boot, 7 N. Y. 186. 
 
 Where a qviantity 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 York; 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. Rogers, 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, 1 Cow. 
 456. And the rule is the same where specific instructions are given 
 at the time of consigning the goods. Ih. Letters of instruction 
 from a merchant to his consignee and factor, not expressly men- 
 tioning a price below which goods consigned for sale shall not 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 large 
 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. Wychojf, 10 N. Y. 213. And where the consignor 
 
PKIXCIPAL AND AGENT. 213 
 
 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. Ih. 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 
 possible, and although the principal may not be a loser in conse- 
 quence. A general authority to do one act, or to perform several 
 acts, always carries with it an implied authority to do whatever 
 may be necessary to carry the authority into effect. An author- 
 ity 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. Nusshaum, 2 Duer, 302. An authority to settle an account, 
 implies the right to allow payments already made. An agent 
 employed 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. PuttocJc v. Warr, 3 Hurlst. & Norm. 979. 
 
 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 \ 
 latter, unless the money was actually paid over to him, or unless \ 
 he employed or authorized such agent to receive payment in his 1 
 behalf. Bonnell v. Briggs, 45 Barb. 470. 
 
214 PRINCIPAL AND AGENT. 
 
 An agent must be diligent in the discharge of his duties. He 
 is not bound to exercise the utmost possible care, but he must 
 exercise all the care that a reasonable man would do under simi- 
 lar circumstances in attending to his own affairs. And when a 
 •creditor receives from his debtor the note of a third person for col- 
 lection, and the proceeds are to be applied upon the debtor's debt, 
 he is to be deemed to have assumed the obligation of an attor- 
 ney or agent for the collection of the demand, and, as such, he is 
 responsible for ordinary neglect. Buckingham v. Payne, 36 
 Barb. 81. Negligence, in such a case, is a question of fact, and 
 the creditor will not be held liable for the amount of the note, un- 
 less it is found that the loss of the sum due upon it was owing to 
 his negligence, or consequent upon it. lb. 
 
 Collection agents are liable to their principals for the loss 
 occasioned by the acts of attorneys employed by them in compro- 
 mising claims and receiving less than the face value thereof with- 
 out 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, 77 N. 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 occasioned by his negligence. Tor instance, if an agent re- 
 ceives 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 unless 
 immediately 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, notwithstanding that the drawer would be charged if 
 the draft was not presented until the next day. Ih. 
 
 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 whomi he knows to be 
 incompetent to conduct his business properly, it is his own folly 
 and he must bear the loss. Wakeman v. Hazleton, 3 Barb. Ch. 
 148. This branch of the law will be more fully noticed under 
 title " Bailments." 
 
PKINCIPAL AND AGENT. 215 
 
 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 N. Y. 27 ; Van Cott v. Hull, 11 App. Div. 89. So 
 an agent emloyed 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 N. Y. 
 378. If no instructions are given to an agent, or if mere partial 
 instructions are given, or if those given are vagtie and indis- 
 tinct, the duty of the agent will be to follow such instructions 
 as are clear and distinct, and beyond that he may follow his 
 best discretion, unless there is a general usage in relation to that 
 kind of business; 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 directions 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 soiith, it was held that the judge 
 was not authorized to instruct the. jury that the agent was bound 
 to sell in New York and 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. Simpson, 21 Wend. 610. 
 
 When a person receivesr goods, as an agent or factor, to sell \ 
 for another, without any special instructions to sell for cash and I 
 not on credit, he may sell on credit for the period usual in the f 
 market ; and in case he sells on credit in the usual manner, and ! 
 uses due diligence to ascertain the solvency of the purchaser, he 
 will not be responsible, should the vendee afterwards prove in- 
 solvent. Van Alen v. Vanderpool, 6 Johns. 69 ; Bobertson v. 
 Livingston, 5 Cow. 473 ; Leland v. Douglass, 1 Wend. 490. 
 
 It is the duty of an agent to act in matters touching the agency 
 
216 PEINCIPAL ANT) AGENT. 
 
 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 belief of the agent that a sale was for the 
 best interest of his principal 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 prin- 
 cipal. Frice v. Keyes, 62 IST. Y. 378. If the agent acts in hostil- 
 ity to his principal's interest and for his own advantage, he will 
 be liable to his principal for the money lost through his mal- 
 feasance. 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 convey- 
 ance in his own name, equity will treat him as holding it in 
 trust for his principal. Ahell v. Bradner, 11 St. Hep. 246. 
 
 Duty to act in person and not by substitute. — The general prin- 
 ciple is, that an agent cannot delegate his authority to another. 
 An agent holds nothing but a delegated power, and he 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 
 integrity 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 employ- 
 ing such assistance as he may need in executing the duties of his 
 trust. It is the integrity and the intelligence of the agent em- 
 ployed by the principal which the law requires to be exercised by 
 
PEINCIPAL Al^D AGENT. 217 
 
 the agent himself. An agent cannot delegate any portion of his 
 power requiring the exercise of discretion or judgment ; but it is 
 otherwise, however, as to powers or duties which are merely me- 
 chanical in their nature. See Orinnell v. Buchanan, 1 Daly, 
 539. See also People v. Bank of North America, 75 JST. Y. 
 5-i7. Hence, if an agent is empowered to bind his principal 
 by an accommodation acceptance, 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 exercising the power. Commercial Bank, 
 &c. V. Norton, 1 Hill, 501. A principal may employ an agent 
 and give him authority to substitute another in his place, and 
 if the authority is exercised by the substitution of such subagent, 
 he will then be an agent for the principal, who will be liable for 
 his acts as much as though personally employed by the prin- 
 cipal himself. AYright 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 busi- 
 ness. Ih. If the principal authorizes a substitution or the em- 
 ployment of an underagent, and gives instructions as to the man- 
 ner 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. Foster v. Pres- 
 ton, 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 
 services rendered; and he may do so, although he knows that 
 the 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 cannot, look to the original principal for payment ; 
 he must look to the agent, as his principal, to recover compensa- 
 tion. 
 
 § 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 
 
218 PRIiq^CIPAL AND AGENT. 
 
 liable upon contracts made by him on behalf of the government; 
 imless 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.; Walker 
 V. Swartwout, 12 Johns. 444 ; Branson v. Woolsey, 17 Johns. 46 ; 
 Olney v. Wiches, 18 Johns. 121 ; Belknap v. Reinhart, 2 "Wend. 
 375; Osborn v. Kerr, 12 Wend. 179; Fox v. Drake, 8 Cow. 
 191. A public officer may render himself personally liable if he 
 expressly 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 physi- 
 cian is to look to some other person or source for his payment. 
 Van Hoevenburgh v. Hasbrouck, 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 re- 
 quires much stronger evidence to rebut this presumption where the 
 contracting party is a public agent, than where the contract and 
 agency is of a private nature. Hall v. Lauderdale, 46 N. Y. 70. 
 
 Where it is not shown that the commissioners of emigration 
 in the city of New York are in any way interested in the trans- 
 portation or care of immigrants or of their baggage, or that it 
 ever came into their possession, or that they had any agents en- 
 gaged in that business, they will not be responsible for the loss of 
 baggage delivered by an emigrant on board of a ship in New York 
 harbor, to the crew of a tug boat, to be transported to Castle 
 Garden. Murphy v. Commissioners of Emigration, 28 N. Y. 
 134. The mere fact that such commissioners have granted licenses 
 to the owners or captains of steamiboats, etc., permitting them 
 to receive and land passengers and their baggage, or have licensed 
 other persons to solicit emigrant passengers and their baggage 
 for boarding-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. 
 
PEINCIPAL AND AGENT. 219 
 
 The act for the protection of bona 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 hona 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 
 interest-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 officer, of any of the civil or municipal 
 divisions 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, malfeas- 
 ance or negligence of such public officer." Laws of 1895, ch. 
 792, § 1. 
 
 "Any municipal corporation within this State, or any civil 
 division 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, 
 because of the misfeasance, malfeasance 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 officer in any court of competent jurisdiction and recover 
 the amount so paid with interest from the time of such payment." 
 Id., § 2. 
 
 § 4. 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. 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 appar ent ow nership of it. A broker is 
 merely employed in negotiating in relation to the sale of it, or 
 making contracts in relation to it. He is not trusted with the 
 possession of the property, and does not act in his own name. 
 
220 PEINCIPAL AXD AGEXT. 
 
 Generally speaking, 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 ; Higgiiis v. Moore, 34 N. Y. 
 417 ; Harrison v. Ross, 12 Jones & Sp. 230 ; Dunn v. Wright, 
 51 Barb. 244. The compensation to both i& usually a commis- 
 sion ; and when the agent guarantees the payment of the price for 
 which he has sold the goods of his principal, then the commis- 
 sion is larger, as it includes a compensation for this risk. In such 
 a case, he is said to act under 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 merchants. Whether they charge a larger 
 commission for guaranteeing the sales made depends upon the 
 agreement between the parties. The business which is done by 
 this class of agents is so extensive and so important that statutory 
 enactments have been deemed necessary. 3 E. S. 76, §.§ 1 to 8, 
 5th ed. ; Laws 1830, ch. 179. The third section of the act relative 
 to principals and factors or agents, which declares that one in- 
 trusted with the possession of the goods of another, for the pur- 
 poses of sale, shall be deemed the true owner, so far as to give 
 validity to a disposition thereof for money advanced, does not 
 protect a party who has made advances on goods to a factor, with 
 a knowledge that he was not the owner of the goods. Stevens v. 
 Wilson, 3 Denio, 472 ; 8. C, 6 Hill, 512. The object of the 1 
 statute was to protect innocent persons who deal in reliance upon l 
 apparent ownership, resting upon possession either of the merchan- 
 dise itself, or documentary evidence of ownership. Cartwright 
 V. Wilmerding, 24 N. Y. 521 ; Pegram v. Carson, 10 Bosw. 505 ; 
 Rowland v. Woodruff, 16 Abb. N. S. 411; 60 'N. Y. 73; New 
 York Security & Trv^t Co. v. Lipman., 157 ~S. 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 cannot be said to be intrusted with their possession for the 
 purpose of sale. Soltau v. Gerdau, 119 IST. Y. 380. See Collins 
 V. Ralli, 20 Hun, 246; 85 K Y. 637; Hentz v. Miller, 94 JST. Y. 
 64. It has no application to a case where the property has been 
 wrongfully taken from the possession of the owner and then 
 fraudulently appropriated or where the protection of the act 
 would secure to a wrongdoer the fruits of fraud. Kinsey v. Leg- 
 gett, 71 ISr. Y. 387 ; Dorrance v. Dean, 106 IST. 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 
 
PRINCIPAL AND AGENT. 221 
 
 the principal, although no money is advanced, or negotiable in- 
 strunxent 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 v^hile it remained unrescinded ; 
 and subsequent indorsements of promissory notes, in antici- 
 pation of which the property was transferred, gives effect to the 
 contract. Jennings v. Merrill, 20 Wend. 9. To protect a con- 
 signor 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 X. Y. 374; 8. 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 pro- 
 tects the right of a person who makes advances upon the faith of 
 the documentary evidence of title which is furnished by a ware- 
 house-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 the factor, in such 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 
 thereto 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. Gartwright v. Wil- 
 merding, 24 N. 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- 
 
222 PKINCIPAL AND AGENT. 
 
 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 IST. Y. 283. 
 
 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 commission merchant has such an interest in the 
 goods consigned to him for sale, that he may insure them to their 
 full value, in his own name. But it is not his duty to insiire the 
 goods for the benefit of his principal, without some express or im- 
 plied directions from the latter to that effect. And if the goods, 
 being stored in the usual place, are destroyed by fire, the com- 
 mission merchant will not be responsible to his principal for the 
 loss. Brishan v. Boyd, 4 Paige, 17 ; De Forest v. Fulton Fire 
 Insurance Company, 1 Hall, 84. 
 
 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 
 important 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 tipon 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 debtoy 
 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. 
 Bohertson v. Livingston, 5 Cow. 473. So, where a factor sold on 
 
PEINCIPAL AND AGENT. 223 
 
 credit, and took the purchaser's note, and subsequently exchanged 
 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. Guy v. Oahly, 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 owner for the factor. 
 This was so held when the advances were to the full value of the 
 goods. HoTbrooh 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 author- 
 ized to remit, he is answerable only for good faith and due dili- 
 gence. 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. lb. But when, by the agree- 
 ment of the parties, the factor is entitled to charge a guaranty 
 commission iipon exchange remitted, he cannot discharge himself 
 from his liability by omitting to charge the commission. lb. 
 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, therefore, made 
 at his own risk. lb. 
 
224: PRINCIPAL AND AGENT. 
 
 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 
 by parol. Sherwood v. Stone, 14 N. Y. 26Y ; Wolff v. Koppel, 2 
 Denio, 368 ; S. 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 
 agent, provided the agent acts in the name of the principal. The 
 party so dealing wih 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. Mackay, 39 Barb. 561 ; Jessup v. Steurer, 75 N. T. 613 ; 
 Mason Stable Co. v. Lewis, 14 Misc. 656; 70 St. Rep. 889; Kay- 
 ton V. Barnett, 116 N. Y. 625 ; Coleman v. First Nat. Bank of 
 Elmira, 53 N. Y. 388 ; Meeker 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 
 the latter described himself as agent or not. Ludwig v. Gillespie, 
 105 N. Y. 653 ; Considerant v. Brisbane, 22 N. Y. 389 ; Schaefer 
 V. Henkel, 75 N. Y. 378; Nicoll v. Burke, 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 
 upon the supposition that he was the real principal. Tavntor 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- 
 cipal, may require payment of him, although he instructed the 
 agent not to purchase on credit, unless the principal shows that this 
 would change the state of accounts between himself and his agent 
 to his prejudice. Rowan v. Buttman, 1 Daly, 412. If, however, 
 the seller, at the time of the sale, knows who the real principal is, 
 but he prefers to sell to the agent and trust to his responsibility, 
 and he makes the sale accordingly, he has made his election, and 
 he cannot afterward recover the price of the principal. Ih. 
 
PKINCIPAL AND AGENT. 225 
 
 Where goods are purchased on credit by a known agent for the 
 use of his principal, the presumption is that the credit was given 
 to the principal, and he can escape liability only by showing that 
 it was given exclusively to the agent, in which event the agent alone 
 is responsible. Butler v. Evening Mail Association, 61 N. Y. 634 ; 
 Meeker v. Claghom, 44 N. Y. 349. If the purchaser is an un- 
 disclosed agent, his principal not being known to be such, and 
 credit is given to the agent, the vendor can hold responsible either 
 the principal or the agent at his election. Ih. The fact that the 
 vendor has charged the goods upon his books to the agent is strong 
 though not conclusive evidence, that the credit was given exclu- 
 sively to him. Ih.; Foster v. Persch, 68 IST. Y. 400. The princi- 
 pal whose name was not disclosed at the time of making the con- 
 tract, is liable whenever his name is discovered, as much as though 
 his name had been employed in making the agreement. Beebe v. 
 Rvbert, 12 Wend. 413 ; Pentz v. Stanton, 10 Wend. 272. 
 
 To entitle a person to sue upon a contract, it must be clearly 
 shovsTi that he himself made it, or that it was made on his behalf 
 by an agent authorized to act for him at the time, or whose act has 
 been subsequently ratified and adopted by him; and the person 
 for whom the agent professes to act must be a person capable of 
 being ascertained at the time. Watson v. Swann, 11 J. Scott, 
 N. S. 756. S., an insurance broker at Hull, being instructed to 
 effect an open policy for five thousand pounds, for the plaintiff, 
 against jettison only, " subject to declaration thereafter," and 
 being unable to do so, declared certain deck cargo shipped for 
 Ostend on board of one of the plaintiff's vessels, on the back of a 
 general policy which he had previously effected for himself " upon 
 any kind of goods or merchandise, as interest might appear," and 
 got it initialed by the underwriters. A loss having happened, it 
 was held that the plaintiff could not maintain an action against 
 the underwriters upon this policy, because the contract was not 
 made by him or on his behalf at the time. Ih. 
 
 Where a factor sells the goods of his principal without disclosing 
 his agency, and takes the note of the purchaser, payable to him- 
 self or bearer at a future day, and before maturity transfers the 
 note to his principal, payment by the purchaser to the factor, after 
 such transfer and before the note falls due, is no bar to a recovery 
 in an action by the principal as indorsee against the purchaser as 
 maker of the note. Mitchell v. Bristol, 10 Wend. 492. If an 
 agent appropriates the money of his principal to the payment of 
 the debt of a third person, without any authority for so doing, and 
 
 15 
 
226 PRINCIPAL AXD AGENT. 
 
 these facts are known to the payee at the time of receiving the 
 money, it may be recovered of the latter by the principal in an 
 action for money had and received. Amidon v. Wheeler, 3 Hill, 
 137. If a man deals v^ith another's agent, and by mistake gives 
 the agent a receipt for a sum of money, which the agent had a 
 right to pay, and on the faith of that receipt, the principal settles 
 with the agent, and pays him money, the party giving the receipt 
 is concluded or estopped from looking to the principal, for he 
 should have given him notice of the mistake in the first instance ^ 
 and his only remedy is against the agent. Cheever v. Smith, 15 
 Johns. 276. An agent or bailee may insure the property instrusted 
 to him, and he may modify or abandon it at his pleasure, if there 
 is no contract or usage requiring him to keep the property insured, 
 and the principal has not adopted or ratified the act. And where 
 a manufacturer of clothing effected an insurance upon his own 
 goods and upon goods held by him in trust, and a loss occurred 
 of his own goods to a greater value than the whole amount of 
 insurance; it was held, that the owner of the materials, which 
 were in the hands of the manufacturer to be worked up, and who 
 had in no way intervened in respect to an insurance, and had no 
 knowledge of its existence until after the manufacturer had 
 claimed the whole amount for himself, was not entitled to par- 
 ticipate therein. Stillwell v. Staples, 19 'N. Y. 401. Where 
 money belonging to a husband was delivered by his wife to the 
 defendant, to be applied by the latter to a special purpose, viz. : 
 the payment of the interest due upon a bond and m.ortgage given 
 by the husband to the State and receipts were given by the de- 
 fendant, acknowledging that he had received the money of the 
 wife for the purpose named ; it was held, that an action could 
 not be maintained by the wife for the recovery of the money from 
 the agent, but that the action must be brought in the name of 
 the husband. Brouer v. Vandenburgh, 31 Barb. 648. No one 
 can enforce a contract which his agent has fraudulently obtained, 
 although he neither authorized the fraud, nor had notice of it, 
 prior to the execution and delivery of the contract. And where 
 such agent was a broker, and he induced the defendant to employ 
 him as such broker to negotiate the contract, and he made repre- 
 sentations calculated and designed to induce the defendant to 
 enter into it, and the defendant entered into it relying upon such 
 representations and the advice of the broker, believing the latter 
 to be in his own exclusive interest ; and such broker was at the 
 time the secret and fraudulent agent of the plaintiff to obtain 
 
PEINCIPAL AND AGENT. 22T 
 
 such contract; it was held, that no action could be maintained 
 by the plaintiff against the defendant for a breach of it. Cassard 
 V. Hinman, 6 Bosw. 8. So where the principal employs a broker 
 to negotiate a contract, and the broker employs an agent to do 
 the business, the fraudulent representations of such agent of the 
 broker will preclude the principal from maintaining any action 
 upon a contract fraudulently obtained by such agent. Elwell v. 
 Chamherlam, 2 Bosw. 230. 
 
 Where the maker of a note places it in the hands of a broker to 
 be sold by him, without imposing any restrictions as to the man- 
 ner in which the sale is to be made, he is bound by the representa- 
 tions made by the broker to a hona, fide purchaser, to the effect 
 that the note is good and valid business paper ; and he cannot main- 
 tain an action to have the note cancelled on the ground that it 
 never had any legal inception until it came into the hands of the 
 purchaser, and that the latter reserved a greater rate of discount 
 than is allowed by law. Ahem v. Ooodspeed, 9 Hun, 263 ; 12 
 ]Sr. T. 108. 
 
 By the common law, a factor, to whom goods are consigned for 
 sale, has no authority to pledge them. Bonito v. Mosquera, 2 
 Bosw. 401 ; Urquhart v. Mclver, 4 Johns. 103 ; Kennedy v. 
 Strong, 14 Johns. 128 ; Buckley v. Packard, 20 Johns. 421. But/ 
 the Factor's Act has made important changes in the common-lawj 
 rule. See Laws of 1830, ch. 179 ; Pegram v. Carson, 10 Bosw. 
 505 ; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283. 
 
 The relation between a commission agent for the sale of goods 
 and his principal is j&duciary. The title to the goods, until sold, 
 remains in the principal, and when sold, the proceeds, whether in 
 the form of money, or notes, or other securities, belong to him, 
 subject to the lien of the commission agent for advances and other 
 charges. The agent holds the goods and the proceeds upon an 
 implied trust to dispose of the goods according to the directions 
 of the principal, and to account for, and pay over to him the 
 proceeds from the sales. The relation of the parties in respect 
 to the proceeds of sales is not that of debtor and creditor simply. 
 The money and securities are specifically the property of the 
 principal and he may follow and reclaim them, so long as their 
 identity is not lost, subject to the rights of a bona fide purchaser 
 for value. In case of the bankruptcy of the agent, neither the 
 goods nor their proceeds would pass to his assignee in bankruptcy 
 for general administration, but would be subject to the paramount 
 claim of the principal. The relation, however, between a prin- 
 
228 PRINCIPAL AND AGENT. 
 
 f 
 
 cipal and a consignee for sale, is subject to modification by express 
 agreement, or by agreement implied from the course of business 
 or dealing between them. The parties may so deal that the con- 
 signee becomes a mere debtor of the consignor for the proceeds of 
 sales, having the right to appropriate the specific proceeds to his 
 own use. Baker v. New York Nat. Exch. Bank, 100 N. Y. 31. 
 The rule that the consignor of goods to be sold on commission does> 
 not part with his title by the consignment, but continues to be > 
 the true owner of the consigned property until sold by the con- 
 signee, is the same whether the consignee is a del credere factor, 
 or is under advances for the principal, or is simply an agent for 
 sale, assuming no responsibility except that usually appertaining J 
 to the position of an agent. Commercial Nat. Bank of Penn. v./ 
 Heilbronner, 108 N. Y. 439. But a factor under advances for 
 his principal, or who guarantees the sale, has a lien on the goojfs 
 and their proceeds for his advances, and an interest in the debts,, 
 arising upon sales, to protect his guaranty. He is entitled to re- 
 tain 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 ad- 
 vances, 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. Ih. ; Buckley v. Packard, 
 20 Johns. 421. A factor, although under advances to his prin- 
 cipal, 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 reim- 
 hursement. Commercial Nat. Bank of Penn. v. Heilbronner, 108 
 N. Y. 439 ; Marfield v. Goodhue, 3 N. Y. 62 ; Hilton v. Vander- 
 bilt, 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. Hep. 88. 
 
 Where a principal consigns goods to his agent to sell under an 
 
PEINCIPAL AND AGENT. 229 
 
 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 be 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 K 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. 
 10-3. 
 
 Where a commercial correspondent, however set in motion, by 
 a principal for whom he acts, advances his own money or credit 
 for 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. Y. 568; Moors v. Kidder, 106 N. 
 Y. 32. 
 
 § 5. Agent Cannot Act for Himself and for Principal 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.; 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. Ih. And where the defendant was intrusted with 
 a commission to ptirchase 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. Gonkey v. Bond, 34 Barb. 276. In such a case, with- 
 
230 PEIlSrCIPAL AND AGENT. 
 
 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 with 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 ; Darby v. Pettee, 2 Duer, 109 ; Gonhey 
 V. Bond, 36 ~S. Y. 427; Taussig v. Hart, 58 N. Y. 425; Mayo v. 
 Knowlton, 31 St. Kep. 558. 
 
 A partner may sell the firm property to a third party and give 
 a good title, but he cannot sell to himself. Comstoch v. Buchanan, 
 57 Barb. 127. 
 
 One cannot act for himself as vendor, and as agent for another 
 as purchaser, in transferring secTirities. 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 ig-norance of the real facts will 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. Ih. 
 
 And an agent \Vho 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 shown 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 oivn account or for his own benefit. Ahdl 
 V. Bradner, 11 St. Hep. 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. 
 
 It is an old doctrine, from which there has never been any 
 
PEINCIPAL AND AGENT. 231 
 
 departure, that an agent cannot bind his principal, even in mat- 
 ters touching his agency, where he is known to be acting for him-' 
 self, or to have an adverse interest. Stone v. Hayes, 3 Denio, 
 575 ; Manhattan Life Ins. Co. v. Forty-second Street & Grand 
 Street Ferry R. B. Co., 139 IST. 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 
 N. Y. Siipp. 591. 
 
 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 ; IT K Y. 421. 
 
 Where an agent of an insurance company is authorized to 
 effect insurances upon vessels and their cargoes, and to procure 
 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. Bitt 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 E". Y. 85. 
 A person cannot be agent for both purchaser and seller and earni 
 a compensation from each, unless by a distinct arrangementt 
 between all who are concerned. 
 
 The duties imposed by an employment to sell for the best price, 
 are inconsistent with those created by an undertaking to buy 
 upon 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, 
 
232 PKINCIPAL AND AGENT. 
 
 he cannot afterwards claim compensation from the buyer. Dun- 
 lop V. Richards, 2 E. D. Smith, 181 ; Vanderpoel v. Eeams, 
 id.^ 170; 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 dra\\Ti 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 hona fide holder. Clafiin v. Farmers 
 & Citizens' Bank, 25 N. Y. 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. Y. 559 ; Clafiin v. Farmers & Citizens' 
 Bank, 25 N". Y. 293 ; Pratt v. D. E. M. F. Ins. Co., 130 N. Y. 
 206, 216 ; Neuendorff v. World Mut. Life Ins. Co., 69 IST. Y. 389 ; 
 Aldridge v. Husted, 24 Misc. 177. 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 IST. Y. 598. 
 
 The principal 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 
 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. ¥., L. E. & W. R. R. Co., 125 N. Y. 2.63 ; 
 Barnes v. Brown, 80 ~S. Y. 527. Hence, all arrangements by 
 directors of a railroad company to secure an undue advantage tO' 
 
PEINCIPAL AND AGENT. 233 
 
 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 un- 
 lawful 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 
 consideration. Wardell v. Union Pacific R. R. 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 confidential and fiduciary character and cannot, in pur- 
 chasing property for the club, reserve a benefit to himself or to a 
 firm of which he is a member. Redhead v. Parkway Driving 
 Club, 148 ;N^. Y. 471. But there is no principle of law prohibit-j 
 ing a director of a corporation from selling his own property toj 
 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 cor-j 
 poration. Gamble v. Queens County Water Co., 123 N. 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 v. Spring, 54 Barb. 375; Conkey v. Bond, 34 
 Barb. 276; 36 N. Y. 427. It is irregular for the same person 
 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 tr, that 
 of his employer. Moore v. Moore, 5 N. Y. 256. There is no 
 distinction in this respect between private and judicial sales, 
 
234 PKINCIPAL AND AGENT. 
 
 wliere the agent controls the judicial sale, and the ofiBcer acta 
 under his instructions. Ih. 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. Wanier, 5 Paige, 
 650; Bank of Orleans v. Torrey, 7 Hill, 260; S. C, 9 Paige, 
 649. 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 ad- 
 vantage. Ih. See ante, p. 229. 
 
 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, without 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 
 use his best efforts to promote the 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 
 
PEINCIPAL AND AGENT. 235 
 
 •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 N. Y. 621. 
 
 § 7. Duty of Agent to Account. 
 
 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 accoimts is not enough, 
 ^^'hen 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. Vanderbilt, 39 Barb. 
 141. He has no right to refuse payment of it to his principal, on I 
 the ground that the principal had not a legal claim or title to the J 
 money paid. lb. An agent has no right to dispute the title of 
 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 the 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 IST. Y. 668. 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. LilKe 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. lb. 
 
 No demand is necessary before commencing an action against 
 a pm-chasing agent, acting under a yearly employment, for breach 
 
236 PKINCIPAL AND AGENT. 
 
 of contract in failing to properly perform his duty of accounting 
 justly and honestly to his principal. Carr v. Thompson, 8Y 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 himj 
 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. 
 Middleton v. Twomhly, 125 IST. Y. 520. Where goods are 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 General Laws provide as follows: "Any person doing business 
 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, show- 
 ing 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." Laws of 1896, ch. 376, § 39 ; General Laws, ch. 34, 
 § 39. 
 
 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,2Q Barb. 477; 8. C, 15 N. Y. 471. 
 
PKINOIPAL AND AGENT. 237 
 
 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 rules does not require a 
 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 crederei 
 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 I 
 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 IST. Y. 267; Cartwright 
 V. Oreene, 47 Barb. 9. 
 
 An action will not lie against a factor or agent to whom goods 
 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, \inless 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. Brink v. Dolsen, 8 Barb. 337. The tvIg 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 instrtictions, which must be 
 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 N. 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 B. R. v. Coleman, 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- 
 
238 PEINCIPAL AND AGENT. 
 
 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 ; 8. C, 
 7 Hill, 128. If a loss occurs in stich 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 
 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 autliority 
 to pledge the goods for his own account, the defendants 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 accotmt arising from the transac- 
 tions between them and the master. Bucldey v. Paclcard, 20 
 Johns. 422 ; Boniio 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. 376. 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 
 brought. 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 
 
PKINCIPAL AND AGENT. 239 
 
 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 Baby, 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 with, and advice thereof 
 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. 
 
 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, provides as follows: "No person shall directly or indi- 
 rectly, take or receive more than fifty cents for a brokerage, solicit- 
 ing, 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 bondj 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. § 2. This statute ap- 
 plies to those cases only in which a loan of money is in- 
 volved. In other cases the parties may agree upon such a commis- 
 sion 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 Caines, 349. 
 
 There is no provision in the statute cited rendering an agree- 
 
240 PEINCIPAL AND AGENT. 
 
 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 compensa- 
 tion. Buchanan v. Tilden, 18 App. Div. 123. The broker can- 
 not charge more than one-half of one per cent, for negotiating or 
 procuring a loan, whatever may be 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 soliciting 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 occi^pation, 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. 
 
 Where a broker has found a lender able and willing to loan the 
 required amoimt 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. So a broker or agent employed to sell property for a speci- 
 fied commission, 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 
 the negotiations have fallen through by reason of defect of title. 
 Knapp V. Wallace, 41 JST. Y. 477; Kalley v. Baher, 132 IST. Y. 1. 
 
 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. 
 McGovem, 65 N. Y. 574 ; Wylie v. Marine Nat. Bank, 61 N. Y. 
 415 ; Sussdorff v. Schmidt, 55 IST. Y. 319 ; Ware v. Dos Passos, 
 162 ]Sr. Y. 281; Fowler v. Hoschhe, 53 App. Div. 327. 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 compensation. An 
 owner is not obliged to refuse a possible customer because services 
 
PEINCIPAL AND AGENT. 241 
 
 ■which he has not requested have been obtruded upon him, nor can 
 he be held liable for commissions by reason of an alleged accept- 
 ance 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. HoscKke, 53 
 App. Div. 32Y ; Campbell Printing Press Co. v. Yorkston, 11 Misc. 
 340, 344. 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. Sibhald v. Bethlehem Iron Co., 83 IST. Y. 378. 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. Siissdorff v. 
 Schmidt, 55 IST. T. 320. 
 
 The phrase, " procuring catise 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 
 which it is used. But whatever may be the terms employed by the 
 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. He is not entitled to commissions for unsuccess- 
 ful efforts to effect a sale unless the failure is caused by the fault 
 of the principal. Sibhald 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 brokers 
 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 
 efiicient agent in or the procuring cause of the contract. McClave 
 V. Paine, 49 N. Y. 561; Sussdorff v. Schmidt, 55 N. Y. 320; 
 Colwell V. Tompkins, 6 App. Div. 93 ; Lloyd v. Mathews, 51 E". Y. 
 124; Lyon v. Mitchell, 36 IST. Y. 285; Briggs v. Rowe, 4 Keyes, 
 424. 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. 
 16 
 
242 PRINCIPAL AND AGENT. 
 
 Chilton V. Butler, 1 E. D. Smith, 150 ; Lloyd v. Mathews, 51 N. T.. 
 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 
 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. Sihhald v. Bethlehem Iron Co., 83 
 ]Sr. Y. 378. This is the rule where no time is fixed during which 
 the agency is to continue. Ih. But if the broker, by the terms 
 of his employment, has an exclusive right to sell the property for a 
 specified time, and produces within that time a purchaser, able and 
 willing to purchase at the price fixed, he is entitled to the com- 
 mission agreed upon, although the owner had previously sold the 
 property, and the broker had been informed of the fact before he 
 secured a purchaser. Schultz v. Griffin, 5 Misc. 499. See Van- 
 derveer v. Suydam, 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- 
 thwaite v. Vreeland, 3 Hun, 152. The broker is not entitled 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. Wychoff, 63 N. Y. 445 ; 
 Moses V. Bierling, 31 N. Y. 462. When he has produced such 
 a purchaser he is entitled to his commissions. Friend v. Jetter, 
 19 Misc. 101 ; Duclos v. Cunningham, 102 N. Y. 678. If, how- 
 ever, the authority of the broker was limited to a sale to a par- 
 ticular person, and a sale to him is not effected, his com- 
 missions 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 en- 
 titled 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. Hashin, 141 N. Y., 514. 
 
 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. 
 
PEINCIPAL AND AGENT. 243 
 
 will defeat his claim for commissions. Martin v. Bliss, 57 Hun^ 
 15Y. 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 compensa- 
 tion. Boston Carpet Co. v. Journeaij, 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 difference between the sales act- 
 ually 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. Ih. So bad faith on the part of the principal by which 
 the broker was prevented from complete performance of his un- 
 dertaking may excuse such performance and entitle the broker to 
 commissions as for complete performance. Carroll v. Fettit, 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 entitled 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. Ih. 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. Kearns, 2 E. D. Smith, 170. The general 
 rule is, that a factor or a broker, etc., is not entitled to his com- 
 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 has done, since that will excuse a complete 
 performance. Wolfe v. Howes, 24 Barb. 174 ; 8. C, 20 N. T. 
 197 ; Fahy v. North, 19 Barb. 341 ; ante, p. 41. 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 
 
244 PEIXCIPxiL AIS^D AGENT. 
 
 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 reimbursed 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 cases 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 ; Holbrooh v. Wight, 24 Wend. 169 ; 
 Oorlies v. Cumming, 6 Cow. 181 ; Myer v. Jacobs, 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 
 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 in the course 
 of his business by the factor, and th'e lien may be enforced as well 
 by a purchasing faptor as by a selling factor. Bryce v. BrooJes, 
 
PEINCIPAL AE^D AGENT. 245 
 
 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 
 m 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 tinless it was actually separated from 
 the mass by a delivery or by some mark or designation by which 
 it could be specifically known. Oardiner v. Suydam, 7 E". Y. 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 IST. Y. 288. They 
 acquire no^en 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 existence 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 Orosvenor 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 
 subseqiiently consigned for expenses paid on acooimt thereof, 
 unless such expenses exceed the amount of such indebtedness. 
 Enoch V. Wehrkamp, 3 Bosw. 398. The lien of an agent and 
 factor on the goods of his principal for specific expenses does not 
 exist when the general balance of account is against him. 
 Ih. 
 
 A factor's lien on merchandise consigned to him is expressly v 
 recognized by statute. "A person, in whose name any merchan- 1 
 dise shall be shipped, is deemed the true ovraer 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 
 
246 PKINCIPAL AND AGENT. 
 
 such consignee, to or for the use of the person in whose name 
 such 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 bona fide owner thereof." 
 Laws of 1897, ch. 418, § 72 ; General Laws, ch. 49, § 72. 
 
 § 10. Notice to the Agent, when Notice to Ms 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. JSTotice given to an agent relating to the business which 
 he 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 ; Banh of U. S. 
 V. Davis, 2 Hill, 452 ; Bennett v. Buchan, 76 N. Y. 386 ; Hyatt 
 V. Clarh, 118 K Y. 563 ; Adams v. Mills, 60 N. Y. 533, 539 ; 
 Myers v. Mutual Life Ins. Co., 99 IsT. Y. 1, 11 ; Brinkerhoff v. 
 Sartwell, 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. 
 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., 
 Co. V. Phoenix Banh, 3 IST. Y. 156. And see Holden v. New York 
 & Erie Bank, 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 
 
PEINOIPAL AND AGE:N^T. 247 
 
 time connected with the subject-matter of the agency. 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 transaotioni 
 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 Bank, 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 Crazie v. Hod- 
 ley, 99 I>[. Y. 131. But information not communicated to the 
 agent of the bank as its officer, and not acquired by him 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 ; Gasco Nat. 
 Bank v. Clark, 139 F. Y. 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 IS. Y. 68 ; Welsh v. German-American Bank, 73 IST. 
 Y. 424. 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, i 
 Constant v. University of Rochester, 111 E". Y. 604. 
 
 The general rule that notice to the agent, while acting within 
 
248 PKINCIPAL AND AGENT. 
 
 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 N. Y. 1 ; Benedict v. Arnoux, 154 N. Y. 715 ; Nat. Life Ins. 
 Go. V. Minch, 53 N. Y. 144 ; Mayor v. Tenth Nat. Bank, HI N. 
 Y. 446. When an agent abandons the object of his agency and\ 
 acts for himself by committing a fraud for his own exclusive j 
 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. Banh of New York, 126 jST. Y. 318, 331 ; Welsh v. 
 German-American Banh, 73 N. Y. 424 ; Bienstock v. Ammidown, 
 155 N. Y. 47, 60. 
 
 The rule of constructive notice to a principal has no operatioii 
 in a case where the agent himself has not received actual notice] 
 Wheatland v. Pryor, 133 N. Y. 97. 
 
 In partnerships each member 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 N. 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. Eoberts, 35 Barb. 463 ; Standard Oil Go. v. Triumph 
 Ins. Go., 64 N. Y. 85 ; Witbeck v. Schuyler, 44 Barb. 469 ; 31 
 How. 97. But while the principal is bound by his agent's acts 
 
PKINCIPAL AND AGENT. 24& 
 
 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. For 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. Lerner, 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 
 the principal. Walsli v. Hartford Fire Ins. Co., 73 N. Y. 6. 
 Apparent authority operates only by 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. Y. 
 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 ap- 
 parent 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. Hart- 
 ford Fire Ins. Co., 73 N. Y. 5. As a general rule, he who em- 
 ploys an agent shall lose by his fraudulent, negligent or illegal 
 act, rather than an innocent person. The appropriation by an 
 agent- to his own iise, of money borrowed by him for his principal, 
 does not exonerate such principal 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 debtor 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 
 
250 PEIJSTCIPAL AND AGENT. 
 
 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 Bank 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 occasioned by the fraud of its own clerk and 
 servant, in the performance of his duties in the bank. Ih. The 
 defendants 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 ho 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 
 
PKINCIPAL AND AGENT. 251 
 
 authority, the principal will be bound by his acts, and he must 
 lose in preference to such third person. Dunning y. Rolerts, 35 
 Barb. 463 ; Cooh v. Adams, 1 Bosw. 497 ; North River Bank v. 
 Aymar, 3 Hill, 263; Farmers , &c.. Bank r. Butchers', &c.,B(mk, 
 14 N". Y. 623 ; 16 N. 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 company, 
 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 
 act. Marine Bank, &c. 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 E". Y. 599. A person dealing with the! 
 officers or agents of a corporation is bound to know 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 IST. 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 shown 
 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' 
 
252 PRINCIPAL AND AGENT. 
 
 Bank v. N. Y., &c., B. R., 13 N. Y. 632. And see Munn v. Comr- 
 mission Co., 15 Joihiis. 44; Beats v. Allen, 18 id. 363. If the act 
 upon which common carriers are 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 
 must be proved, either expressly, or impliedly from his conduct as 
 sanctioned by his principal. lb. 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 characteristic designation 
 of the agent, or the sanctioning of his conduct, implying the 
 nature of his authority. lb. 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 
 attorney and his client. Hoard v. Garner, 10 N. Y. 261. 
 
 A bona 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 sufiicient 
 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.. Bank, 16 N. Y. 125, 138. In such a 
 case the bank gives authority to its agent to certify cheeks, 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 
 
PKINCIPAL AND AGENT. 253 
 
 •check in good faith, and for value. Meads v. Merchants' Bank, 
 25 N. Y. 143. And if a check is drawn by a hank 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 sufiicient to put any person upon inquiry; and if 
 the certificate is false, no one can recover against the bank as a 
 bona fide holder. Claflin 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. 497. 
 
 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 contrary* 
 appears ; and this, whether the agency be general or special. Nel-\ 
 son V. Cowing, 6 Hill, 336; Milburn v. Belloni, 34 Barb. 607; 
 Scott V. McGrath, 7 Barb. 53 ; Andrews v. Kneeland, 6 Gow. 354; 
 Boorman v. Johnston, 12 Wend. 566. See ante, p. 196. 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 hy 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, ISr. 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 do-wn 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 unknovm as well 
 
254 PEIjSTCIPAL AND AGENT. 
 
 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 
 in our opinion create it." Where a principal is carrying on any 
 kind of public business, and he 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. R. Co., 
 34 Barb. 249. 
 
 One R., 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 R.'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. Cliapman v. New York Central Railroad 
 Co., 31 Barb. 399 ; S. C. affirmed, 33 N. 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 biTsiness 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 
 
PKINCIPAL AND AGENT. 255 
 
 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. Aaron, 11 J. 
 Scott, N. S. 889. 
 
 As has already been noticed, where an agent abandons the obA 
 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 N. Y. 1 ; Shipman v. Bank of N. Y., 126 IST. Y. 
 318; Welsh v. GermanrAm. Bank, 73 N. Y. 424; Bicnstock v. 
 Ammidown, 155 IST. 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. 
 Oarvey v. Dun^, 30 How. 315. 
 
 A principal, who neither authorizes nor ratifies a willful tres- 
 pass committed by his agent, is not liable therefor. Vanderhilt 
 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. Vanderhilt v. Richmond Turnpike 
 Co., 2 ]Sr. 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. II. A passenger carrier is, by law, under an obligation 
 
256 PRINCIPAL AND AGENT. 
 
 to provide for the safe conveyance of the passengers, as far as 
 human care and foresight can secure that result. Beed v. Panama 
 R. R.J, 5 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- 
 ment and authority. Ib.j Weed v. Panama R. R., 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 JST. 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. Banlc 
 of U. S. 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, 23 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, 
 although 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. Fifth Avenue Banh of N. Y. v. Forty-second St. 
 & Grand Street Ferry R. R. Co., 137 K Y. 231 ; Udell v. Ather- 
 ton, 7 Hurlst. & Norm. 172 ; Trankla v. McLean, 18 Misc. 221 ; 
 
PEINCIPAL AisTD AGENT. 257 
 
 Fishkill Savings Inst'n v. National Bank, 80 IST. 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 
 act was authorized or adopted by its board of directors. Ih. A 
 principal cannot take any benefit from a fraudulent act of his 
 agent, since the fraud will render the contract made by him 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 owner, 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 
 which the purchaser was induced to deliver it. Krumm v. Beach, 
 96 K Y. 398 ; Fairchild v. McMahon, 139 IST. Y. 398. See also 
 mwell 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; Oreen 
 V. Miller, 6 Johns. 39 ; Perry v. Tynen, 22 Barb. 137 ; Hawley 
 v. Keeler, 62 Barb. 231 ; 53 K Y. 114. But in the case of a 
 delegation of a public authority to three or more persons, the au- 
 thority may be exercised by a majority of the whole number. 
 Perry v. Tynen, 22 Barb. 137 ; Horton v. Oarrison, 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 necessarilv follows that 
 nothing can be done without the consent of both. lb. 
 
 The proper mode of executing an authority by an agent is to 
 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 
 17 
 
258 PKINCIPAL AND AGENT. 
 
 C. D. is agent, the agent should execute the paper by sig-aing it 
 A. B., by C. J)., his agent. 
 
 A sealed instrument, when executed by one acting as an attor- 
 ney, must be execiited in the 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 0., 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. Toiunsend v. Hubbard, 
 4 Hill, 351 ; Spencer v. Field, 10 Wend. 8Y ; Townsend v. Com- 
 ing, 23 Wend. 435 ; Evans v. Wells, 22 Wend. 324 ; Dean v. Roes'- 
 ler, 1 Hilt. 420. See Schaefer v. Henlel, 75 N. Y. 378. 
 
 This rule is inflexible as to all eases 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 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. Grandell, 21 Wend. 101. If the contract would be 
 valid, though not under seal, and an agent executes the contract 
 imder 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 
 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 
 
PEIITCIPAL AND AGENT. 259 
 
 ■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. 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 in- 
 tention to bind the defendant ; and that such a note did not pur- 
 port to be the note of " The Churchman," but of H. ; and that 
 the words "Agent for The Churchman," were mere words of de- 
 scription. De Witt V. Walton, 9 W. Y. 571. A bill was drawn 
 on and accepted by " J. E. L., President of the Rosendale Manu- 
 facturing Co." That company was a corporation and J". R. 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 plaintiif, 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 action on the acceptance was properly brought against 
 J. E. L. individually, instead of against the corporation. Moss 
 v. Livingston, 4 IST. Y. 208. An officer of a corporation, to whose 
 order, as stich, 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 
 indorser. 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, 
 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 N. 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 committe of management, such desig- 
 nation will be regarded as a mere description of the persons. 
 
260 PEmciPAL AND AGENT. 
 
 Rowland v. Phalen, 1 Bosw. 43; Brockmay v. Allen, 17 Wend. 
 40; Taft v. Brewster, 9 Johns. 334; Bandell v. Fc^n. Vechten, 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 the plaintiff, or the person whom he 
 represents, knew these facts at the time of making the contract, 
 which will constitute a defense. lb. 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. Haight 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. B. B., 22 Barb. 
 239 ; Ford v. Sherman, 13 N. 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, 
 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. R. B., 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. Hubbard, 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 ; BossUer v. Bossiter, 8 Wend. 494. But the court, in giving 
 a construction, will apply the principle that all instruments must 
 
PRINCIPAL AND AGENT. 261 
 
 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 niade 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. Burke, Y8 N. Y. 580; 
 Woodhouse v. Duncan, 106 N. Y. 527 ; Hill v. Miller, 76 N. 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 as agent, and not the seal of the principal, the agent only 
 can maintain an action on the same. ' Schaefer v. Henkel, 75 
 N. Y. 378 ; Melcher v. Ereiser, 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 N. Y. 357; Tuthill v. Wilson, 90 
 N". Y. 423. But where an authorized agent executes a contract 
 under seal, in which he represents himself as agent, and discloses 
 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 N. Y. 145. 
 
 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 N. Y. 571. 
 
262 PEI^TQipAL AND AGEisT. 
 
 § 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. So, too, where the 
 relation is formed by express contract, either written or by parol, 
 the duty or obligation of the agent may be no greater, for the 
 written or parol agreement may be 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 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 y. Hellman, 83 IST. 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. 
 
 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 
 
PRINCIPAL AND AGENT. 263 
 
 for presentment to the drawee, siich 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. Walker v. Bank of State of N. Y., 
 9 E". T. 582; Montgomery County Bank v. Albany City Bank, 
 7 K Y. 459; Commercial Bank v. Union Bank, 11 N. T. 204; 
 Allen V. Suydam, 20 Wend. 321. But when an agent has ren- 
 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 ; Corning v. Southland, 3 Hill, 552. A factor 
 ■who has made sales of the separate property of several princi- 
 pals, 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 o-mi by such act. Corlies v. Cumming, 6 
 Cow. 181 ; Rich v. Monroe, 14 Barb. 602. An agent employed 
 to obtain orders for the construction of machinery by his princi- 
 pal, 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 1 
 ■comply with the order. Edmonston v. HartsJiorne, 19 N. Y. 9. 
 And in an action by such agent for the balance of his salary, the 
 principal may recoup 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 N. 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 absence of any demand for the moneys represented by 
 ■the check, establish a ease of conversion against the agent. Na- 
 iional Life Association v. Thompson, 38 App. Div. 445. 
 
 A collecting agent is liable to his principal for the act of an 
 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 N. T. 150. 
 
264 PKINCIPAL AND AGENT. 
 
 An agent is liable for the price of goods intrusted 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. Rep. 185. 
 And if an agent, instead of purchasing stock for his principal 
 from a third person, turns over stock of his ovra, 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. 
 Knowlton, 31 St. Hep. 558. If the agent acts in hostility to the 
 interests of his principal, and for his own 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 own 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 N. Y. 237 ; Hollingsworth v. Moulton, 53 Hun, 91 ; 
 Coffin V. President, etc., G. R. H. Co., 136 N. Y. 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. Grinnell v. Schmidt, 2 
 Sandf. 706 ; S. C, 3 Code Pep. 19. And the same rule applies, 
 to auctioneers. Boggart v. O'Reagan, 1 E. D. Smith, 590 ; Mim,- 
 turn V. Main, 7 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 upon 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 
 
PKINCIPAL AND AGENT. 265 
 
 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- 
 ficially interested. And this w.as the rule before the Code as well 
 as since. Hicks 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. See ante, p. 261. 
 
 § 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 coiirse 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 
 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- 
 burgh, 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 
 
266 PEIls^CIPAL AND AGENT. 
 
 principal in good faitli, with the knowledge and tacit assent of 
 the latter, he may recover the fair value of such use. Eider 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 he can recover against the consignor personally. 
 Gihon V. Stanton, 9 IST. T. 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 paymen*. of tne price and had transferred 
 or offered to such principal the stocks he had purchased. Merwin 
 V. Hamilton, 6 Duer, 244. A sale of the stocks by the agent be- 
 fore demanding payment would deprive him of any right of action 
 against the principal. lb. 
 
 The right of brokers to commissions has been discussed in 
 another section. See ante, p. 239. 
 
 § 16. Liability of Agent to Third Persons. 
 
 It may be laid do^vn 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- 
 ally liable, though he is the person who makes the contract. 
 Meeker v. Claghorn, 4:4: 'N. Y. 349 ; Butler v. Evening Mail 
 Ass'n, 61 K Y. 634; Hall v. Lauderdale, 46 N. Y. TO; Morris 
 V. Murray, 20 Misc. 7 ; Boer v. Bonynge, 72 Hun, 33. 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 disclosed principal, and had authority to 
 make the contract on behalf of his principal. Whitford v. Laid- 
 ler, 94 N. Y. 145. And it is imonaterial whether the agent acted 
 
PEIisTCIPAL AND AGEIsTT. 267 
 
 for an individual or the government. Rathbon v. Budlong, 15 
 Johns. 1. 
 
 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. 
 Delaware, &c., 4 Wend. 285. 
 
 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. 
 Hunt, 17 Wend. 333 ; Morrison v. Currie, 4 Duer, 79 ; Cobb v. 
 Knapp, 71 N. Y. 348; Ludwig v. Gillespie, 105 K Y. 653; 
 Jemison v. Citizens' Savings Bank, 44 Hun, 412 ; Argensinger 
 V. Macnaughton, 114 N. Y. 535; Artman v. Hare, 27 Misc. 777; 
 De Hierapolis v. Webber, 27 Misc. 789 ; Whiting v. Saunders, 23 
 Misc. 332 ; Ashner v. Abenheim, 19 Misc. 282 ; Boyd v. L. H. 
 Quinn Co., 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 E". Y. 348; Nelson v. AndrewsTT^ 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 be 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. Currie,A 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 other special circumstances attending 
 the transaction, proving that it would be inequitable, as between 
 the parties, to hold him responsible." Id. 85. A defendant can- 
 not avail himself of the defense that he acted as agent in making 
 
268 PEIiN^CIPAL AND AGENT. 
 
 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. Blakeman 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 discloses 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 
 make the alleged contract, the burden of proof is on the plain- 
 tiff to show that the agent had, in fact, no authority; and he 
 cannot recover without proving that the agent acted without 
 authority. Plumb 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 IST. 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 Avarranty of his authority to make it, and the remedy is 
 by an action for its breach. White v. Madison, 26 N. 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 de6m.ed 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 knovsdngly 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. Midler, 19 Misc. 189 ; Noe v. Gregory, 7 Daly, 283 ; White 
 V. Madison, 26 N. Y. 117. 
 
 There is a class of early cases holding that where a person 
 
PRINCIPAL AND AGENT. 269 
 
 ■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- 
 tract. Dusenhury v. Ellis, 3 Johns. Gas. 70 ; White v. Shinner, 13 
 Johns. 307; Bandall v. Van VecUen, 19 Johns. 60; Meech v. 
 Bmith, 7 Wend. 315; Palmer v. Stephens, 1 Denio, 471. See 
 Walker v. Bank of State of New York, 13 Barb. 636 ; 9 N. Y. 
 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, I 
 but not that his principal has the capacity to contract. Hall v. I 
 Lauderdale, 46 N. Y. 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 without 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 N. Y. 467 ; 
 Dung V. Parker, 52 N. Y. 494. Thus, if the contract was void 
 because within the statute of frauds, the assumed agent incurs 
 no liability. lb. 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 N. 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. Bowland 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. P., as presi- 
 dent of an insurance company, promises to pay a sum certain, is 
 
270 PEIjN'CIPAL AXD AGENT. 
 
 not the note of the company but of the maker alone. Barker v. 
 Mechanics' Insurance Co., 3 Wend. 94. Where one enters into 
 a covenant, though he describes himself as agent of another, and 
 covenants as such agent, but signs and seals in his own name, he 
 is liable personally. Stone v. Wood, 7 Cow. 453 ; Ouyon v. Lewis, 
 7 Wend. 26 ; Spencer v. Field, 10 Wend. 88 ; Kersted v. Orange 
 (& Alexandria B. R. Co., 69 IST. Y. 343 ; Briggs v. Partridge, 
 64 K Y. 357. See ante, p. 258. There is a well-defined dis- 
 tinction between the liabilities of principal and agent, re- 
 spectively, upon contracts under seal and upon those not un- 
 der 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 in- 
 fluence in determining the liability of the parties upon them. Ih. 
 In respect to the liability of the principal, on vwitten 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 itnder seal. Ih. Where an agent has 
 authority to enter into a written contract not under 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. Duhois v. Delaivare, &c. Co., 4 Weiid. 285 ; Law- 
 rence V. Taylor, 5 Hill, 107; Haight v. Saliler, 30 Barb. 218; 
 Sherman v. N. Y. Cent. R. R., 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 
 
PRINCIPAL AND AGENT. 271 
 
 compulsion obtained by an agent, the payment over of the money 
 to his principal will not protect him from liability. Frye v. Lock- 
 wood, 4 Cow. 454; Edmonds v. Aleel, 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, T 
 Johns. 179. See Carter v. Storh, 4:4: St. Eep. 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 tmtil 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. Babcoch v. Beman,. 
 11 N. Y. 200 ; 8. C, 1 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. Cochroft, 
 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 aflFect the question. Palmer v. 
 
272 PRIi^CIPAL AND 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 N. Y. 117, 123 ; Dung v. Parker, 
 52 jST. Y. 494,, 499. The later decisions are to the effect that thel 
 liability of the agent is founded upon a breach of an implied war-| 
 ranty of authority or fraxid. See ante, p. 268. 
 
 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 an action for the price, by showing that he was acting as agent 
 for another person, and not on his own account. Chap-pell 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 enforce- 
 able as such. M^illiams 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; 8. C, 5 Denio 639. And see Colvvn 
 V. Holbrooh, 2 E". Y. 126 ; Hall v. Lauderdale, 46 N. 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. Weier v. 
 Bridgman, 113 N. Y. 600 ; Farmers' Loan & Trust Co. v. Wilson, 
 139 N. 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 
 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 
 
PRINCIPAL AND AGENT. 273 
 
 puts an end to the agency in the case of an agency coupled with 
 an interest. Hess v. Ran, 95 N. Y. 359 ; Hunt v. Rousmanier, 
 8 Wheat. 174; Grapel v. Hodges, 112 N. Y. 419. There is an- 
 other exception to the rule in the case of a partnership as princi- 
 pal, and the death of one only of the memhers of the firm. Banh 
 V. Vanderhorst, 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. Houghtaling v. Marvin, 7 Barb. 412 ; 
 Hunt V. Rousmanier, 8 Wheat. 204 ; Farmers' Loan & Trust Co. 
 V. Wilson, 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 f 
 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 N. 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. 
 
 There would seem to be an incongruity in the law of agency 
 writh respect to the effect of a revocation of the agent's powers by 
 the act of the principal himself and a revocation produced by 
 18 
 
274 PEINCIPAL AND AGENT. ' 
 
 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- 
 Tieim, 66 N. 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-j 
 formed, that the authority continues, and when the dealing con-/ 
 tinues after the authority is revoked, the principal is? neverthey 
 less bound, unless notice of the revocation is brought home to the 
 other party. McNeilly v. Continental Life Ins. Co., 66 N. Y. 
 23, 28; Stevens v. Scliroeder, 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 Vlech, 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 purchased 
 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. LigMhody 
 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-j 
 lished by an inquisition or otherwise. Wallis v. Manhattan Co., 
 2 Hall, 495. When the agent has fully performed the duties for 
 which 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. 
 
COEPOKATIONS. 275 
 
 CHAPTER VII.. 
 
 CORPORATIONS. 
 
 § 1. Classification and Definitions. 
 
 Actions might 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. Full 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. Cor- 
 porations are frequently called " compamies," instead of corpora- 
 tions. 
 
 It would be difficult to enumerate all the kinds of business 
 which 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 modem 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 
 1892, ch. 687 ; General Laws, ch. 35, § 2. 
 
 A corporation is either a municipal corporation, a stock cor- 
 poration, or non-stock corporation, or a mixed corporation. A 
 stock corporation is either a moneyed corporatioii, a transportation 
 
276 COEPOEATIOJSTS. 
 
 corporation or a business corporation. A non-stock corporation is 
 either a religious corporation, or a membership corporation. A 
 mixed corporation is either a cemetery corporation, a library cor- 
 poration, a co-operative corporation, a board of trade corporation, 
 or an agricultural and horticultural corporation. A transporta- 
 tion corporation is either a railroad corporation or a transportation 
 corporation other than a railroad corporation. A membership 
 corporation includes benevolent orders and fire and soldiers' monu- 
 ment corporations. Id. 
 
 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 mixed corporation is one which may or may not have capital 
 stock at its option. 
 
 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. 
 
 The term, directors, when used in relation to corporations in- 
 cludes trustees or other persons, by whatever name knoviTi, duly 
 appointed or designated to manage the affairs of the corporation. 
 
 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, ofiiee of a corporation, means its principal ofiice 
 within the State, or principal place of business within the State, 
 if it has no principal office therein. The office of a stock cor- 
 poration must be in the county, town or city in which its business 
 is principally carried on. 
 
 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. Id. § 3. 
 
COEPOKATIONS. 277 
 
 These statutory definition 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 volume 3 of Heydecker's General Laws and Revised Statutes, 
 and can only be referred to incidentally in the limited discus- 
 sion of the subject of corporations permissible in a work of this 
 character. 
 
 § 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. 
 
 There may be an agreement to form a corporation and sub- 
 scribe to its stock. Such an agreement is not valid and binding 
 v^hen made, as there is then in existence no party representing 
 the company who is capable of contracting But when the agree- 
 ment is unconditional and absolute to form the corporation and 
 take the stock, and the contract contemplates no further act upon 
 the part of the person 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 
 & Jamestown, R. R. Co. v. Clark, 22 Hun, 359; S. C. sub-nom. 
 Buffalo & Jamestown R. R. Co. v. Gifford, 87 N. Y. 294 ; Yon^ 
 hers Gazette Co. v. Taylor, 30 App. Div. 334; Non-Electric Fibre 
 Mfg. Go. V. Peabody, 21 App. Div. 247. 
 
 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 
 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. Co. v. Curtiss, 80 
 ]Sr. T. 219; Yonhers Gazette Co. v. Taylor, 30 App. Div. 334. 
 See Dorris v. Sweeney, 64 Barb. 636; 60 N. Y. 463. 
 
278 COEPOEATIONS. 
 
 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." General Laws, ch. 36, § 41 ; Laws of 1892, ch. 688, § 
 41. A subscription for stock of an incorporated company on . 
 which no payment is made is not an enforcible contract. South ' 
 Buffalo Natural Gas Co. v. Bain, 9 Misc. 425 ; N. Y. & Oswego 
 M. R. E. Co. V. Van Horn, 57 IST. Y. 473 ; Blach River & Utica 
 B. R. Co. V. Clarke, 25 JST. Y. 208 ; Excelsior Grain Binder Co. 
 V. Stayner, 25 Hun, 91. "Where the subscription is made before 
 the organization of the corporation the payment of ten per centum 
 upon the amoimt subscribed is not required. Yonhers 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 cor- 
 poration accepted him as such. Glenn v. Garth, 133 N. Y. 31 ; 
 Powers V. Knapp, 71 Hun, 371, 374. 
 
 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. R. Co. v. Curtiss, 80 N. Y. 219; 
 New York Exchange Co. v. De Wolf, 31 :N'. 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 Road Co. y. -Payne, 15 K Y. 583. If the 
 agreement, by reason of the condition therein contained, is against 
 public policy, it is wholly void and cannot be enforced. Ih.; 
 Butternuts & Oxford Turnpike Co. v. North, 1 Hill, 518 ; Ma- 
 csdon & Bristol Plankroad Co, v, Snediker, 18 Barb. 317; Dix 
 
COEPOKATIONS. 279 
 
 V. Shaver, 14 Hun, 392. But a secret collateral contract between 
 a corporation and a subscriber 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 whicli 
 substantially varies its ostensible terms, is void and leaves the 
 subscription unaffected. White Mts. B. B. Co. v. Eastman, 34 
 ^. H. 124; Armstrong v. Danahy, 75 Hun, 405 ; Yonhers Gazette 
 Co. V. Jones, 30 App. Div. 316. And see Meyer v. Blair, 109 
 K Y. 600, 605. 
 
 A person may be liable on his subscription for stock in a cor-S 
 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. C. B. B. Co. v. Dudley, 14 N". Y. 336; Kohl- 
 metz V. Calkins, 16 App. Div. 518 ; Beals v. Buffalo Construc- 
 tion Co., 49 App. Div. 589. 
 
 A subscription to articles of incorporation, with 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. Kilpatrick, 5 Daly, 524; 63 N. 
 Y. 604; Phcenix Warehouse Co. v. Badger, 6 Hun, 293; 67 N. 
 Y. 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 eases 
 are based upon the construction of statutes since repealed, and 
 their citation here would answer no ^ood 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; 
 Williamson 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 tban 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 or such book, it was held that the creditor could 
 not for that cause rescind the exchange, but that his remedy was 
 
280 COKPOEATIONS. 
 
 in an action foi* damages. Loliman v. New York & Erie R. R.^ 
 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. Rumsey, 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 DriscoU v. West Brad- 
 ley & C. M. Co., 59 N. Y. 96, 107; McNeil v. Tenth Nat. Banh, 
 46 iT. Y. 325, 335. But a corporation has no power to make a 
 by-law regulating the transfer of its stock except such as is given 
 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. Driscol v. West Bradley & C. M. Co., 
 59 IT. Y. 96 ; Banh of Utica v. Manufacturers & Traders' Banh, 
 20 jSr. Y. 501 ; Reynolds v. Banh of Mt. 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 1892, ch. 688, 
 § 40 ; General Laws, ch. 36, § 40. " If a stockholder shall be in- 
 debted 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 certificate of 
 stock." Id. § 26. Therefore, if the directors of a corporation 
 desire to make its stock non-transferable without their consent, so 
 long as the stockholder shall be indebted to the corporation, they 
 may do so by causing to be vsTitten 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 & K. 
 P. Land Co. v. Raymond, 4 App. Div. 600; 158 K Y. 576; 
 Reynolds v. N. Y. Building-Loan B. Co., 158 ]^. Y. 694. ISTever- 
 fhelegs, it has been held that where the certificate of stock 
 
CORPOEATIONS. 281 
 
 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 whona 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. Co. v. ThM Nat. Bank, 29 App. 
 Div. 137. See Oihls v. Long Island Bank, 83 Hun, 92. 
 
 When, by the terms of the charter of a bank, 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-j 
 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. li.; Commercial Bank of Buffalo v. Kortright, 
 22 Wend. 348. A transfer by a stockholder of his stock in an 
 incorporated or joint-stock com,pany 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 TJtica 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 N. 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 
 
282 COEPORATIOl^S. 
 
 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. Bwmwm, 
 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., 13 N. Y. 600 ; New York and N. H. B. 
 B. V. Schuyler, 17 IST. Y. 592. 
 
 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. Jermain v. 
 Lake Shore & Mich. So. By. Co., 91 N. Y. 483 ; Jones v. Terre 
 Haute & Bichmond B. B. Co., 57 ]^. Y. 196; Boardman v. Lake 
 Shore & Mich. So. By. Co., 84 IST. Y. 157 ; Matter of Kernochan, 
 104 K 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 E". Y. 530. And 
 where the stock is transferred after a dividend has been declared, 
 the transfer of the stock does not transfer the dividend. Ih.; 
 Jermain v. Lake Shore & Mich. So. By. Co., 91 K 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 
 gift. Bichardson v. Emmett, 61 App. Div. 205 ; Jackson v. 
 Twenty-third Street By. Co., 88 N. Y. 520; Matter of Crawford, 
 113 K 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 corpora- 
 tion may contain any provision for the regulation of the business 
 
COEPOEATIONS. 283 
 
 and the conduct of the affairs, 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 hy law." 
 General Laws, ch. 35, § 10. 
 
 " 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 seal, 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 purposes of the corpo- 
 ration shall require, subject to such limitations as may be pre- 
 sgcribed by law. 
 
 4. To appoint such ofiicers 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 m'eeting 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 tmless 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. ch. 36, § 2) ; banks (id. ch. 37, § 43) ; 
 trust companies (id. § 156) ; building and loan corporations (id. 
 § 171) ; railroad corporations (id. ch. 39, §§ 4, ^8) ; ferry corpo- 
 rations (id. ch. 40, § 4) ; stage coach corporations (id. § 22) ; 
 tramway corporations (id. § 31) ; water-works corporations (id. 
 § 82), 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 
 
284 COEPOEATIONS. 
 
 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 powers expressly 
 granted. People v. Vtica Ins. Co., 15 Johns. 358 ; New York 
 Firemen's Ins. Co. v. Ely, 2 Cow. 678. 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, re- 
 ceive deposits, or loan money. lb. The general corporation law 
 expressly prohibits the exercise of banking powers by any cor- 
 poration not formed under or subject to the banking laws. Laws 
 of 1892, ch. 687, § 19 ; Chapman v. Lynch, 156 N. 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 ; Mott v. Hicks, 1 Cow. 513 ; State of Indiana v. Woram, 6 
 Hill, 33. By the Statutory Construction Law, the term person is ; 
 made to include a corporation and a joint-stock association. Laws \ 
 of 1892, ch. 677, § 5 ; General Laws, ch. 1, § 5. The right to pur- 
 chase property, and to do other acts relating to the corporate 
 business, necessarily implies a -right to create debts in the trans- 
 action of the affairs of the company. And all debts created for 
 such purposes are valid, and may be enforced against the corpo- 
 ration, or the stockholders, in the manner provided by law. 
 Hosack V. College of Physicians, &c., 5 Wend. 547. 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; S. 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 
 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 
 
COEPORATIONS. 285 
 
 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 N. Y. 166, 
 172. 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 manu- 
 facture, to complete its stock and sell in connection with its own 
 manufactured products, but such purchase and sale of goods manu- 
 factiired by other parties cannot be said to be essential to its busi- 
 ness as a manufacturing corporation. Ih. 
 
 The trustees or agents of a corporation may enter into contracts 
 Tinder the corporate seal, for the payment of money, in further- 
 ance of the business of the corporation. It is not necessary that 
 they should subscribe their individiial names to the contracts, but 
 their doing so will not vitiate the corporate act. Clark v. Far- 
 mers' Woollen, &c., Co., 15 Wend. 256. A note under seal, given i 
 by them for a corporate debt, is valid but not negotiable. Ih. I 
 Where a statute prescribes a mode in which a corporation must 
 perform acts, that mode must be adopted, or the acts will not be 
 valid. Beatty v. Marine Ins. Co., 2 Johns. 109. 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. Patcliin Bank, 13 IST. Y. 309 ; Morford v. Farmers' Bank, 
 26 Barb. 568. But a corporation which owns paper may indorse 
 it and procure it to be discounted for its own use. Ih. And 
 V7hen 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 incorporated company cannot borrow 
 money in the name of the company and pledge its responsibility, 
 unless authorized by the charter of the company, or by a resolution 
 or by-law of the directors. Life and Fire Ins. Co. v. Mechanics' 
 
286 COEPOKATIO]STS. 
 
 Fire Ins. Co., 7 Wend. 31. A corporation has incidental author- 
 ity, when not specifically restricted, to borrow money for any of 
 its lawful purposes. Partridge v. Badger, 25 Barb. 146. Bank- 
 ing associations possess no authority to carry on the business of 
 banking, except in the manner 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, except when received as a security for a 
 loan, or taken in payment of a loan or debt. Talmage v. Pell, 7 
 'N. Y. 328. An agreement by a plankroad company, to purchase 
 its own stock, is against public policy, and the directors have no 
 powei to make such a purchase and then mortgage the road for 
 it, and if they do so, that will not make the stockholders person- 
 aijy liable. Barton v. Port Jackson, &c., P. R., 17 Barb. 397. 
 
 The corporation of the city of iSTew 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 bo7ia 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 Yorh, 5 Barb. 218 ; 8. C, 
 3 ]Sr. Y. 430. ISTo 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 may 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. Sacketts 
 Harbor Bank v. Lewis Co. Bank, 11 Barb. 213. 
 
 When it is a simple question of capacity to contract, arising 
 either on a question of regularity of 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 'N. Y. 62 ; Bushnell v. Chautau- 
 qua Co. Nat. Bank, 10 Hun, 378 ; Bath Oas Light Co. v. Claffy, 
 151 K 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 
 
COEPOKATIONS. 28T 
 
 legally exists. Danforth v. Schoharie Tump. Co., 12 Johns. 227 ^ 
 New York and Harlem B. R. 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 Yorh, 17 IST. T. 
 449 ; Hoyt v. Thompson, .19 N. T. 208 ; Partridge v. Badger, 2& 
 Barb. 147. 
 
 But this rule must be understood with the qualification, that 
 no act of the corporation can ratify an act of such 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 
 York, 17 ]Sr. Y. 454 ; Smith v. City of Newhurgh, 77 N. Y. 130 ; 
 Cowen V. Village of West Troy, 43 Barb. 48 ; Brown v. Mayor, 
 63 ]Sr. Y. 239, 244; McDonald v. Mayor, 68 K 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 national capacity. Kent 
 V. Quicksilver Mining Co., 78 N. Y. 159; Sheldon Hat Blocking 
 Co. V. Eickemeyer Hat Blocking Machine Co., 90 'N. Y. 607. 
 
 The power to purchase property for corporate purposes implies, 
 the power to sell or mortgage it for corporate purposes. Jackson 
 V. Brown, 5 Wend. 590 ; Sacketts Harhor Bank v. Lewis County 
 Bank, 11 Barb. 213. By the ancient and technical rules of the 
 common 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. 
 Farmers', &c.. Bank v. Haight, 3 Hill, 493 ; Bank of Rochester v. 
 Gray, 2 Hill, 227. But 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 
 
288 COKPORATIONS. 
 
 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. General Laws, ch. 1, § 13. 
 
 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 al, 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." General Laws, ch. 
 35, § 29. 
 
 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 
 the ordinary business of the corporation may be transacted by a 
 quorum of five directors, the whole number being twenty-three, is- a 
 valid regtilation. Hoyt v. Thompson, 19 IST. Y. 20Y, 215, 216 ; 8. 
 C, 3 Bosw. 26Y. See Burden v. Burden, 8 App. Div. 160. One of 
 the general powers conferred upon every corporation, though not 
 
COEPOEATIONS. 289 
 
 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. General Laws, ch. 35, § 11. Un- 
 der 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 be- 
 tween the meetings of the board, and such committee may dele- 
 gate to one of its num,ber 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. Bank, 127 K Y. 51Y. 
 
 The authority to make by-laws must be construed to relate to 
 the power of the corporation in making by-laws which shall 
 govern its o-^vn agents and officers in the management of the cor- 
 porate affairs ; and not to affect the public at large, or the rights 
 and interests of third persons. Seneca County Bank v. Lamb, 
 26 Barb. 595 ; Mechanics' and Farmers' Bank v. Smith, 19 Johns. 
 115. And no by-laAv 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. 
 
 Section 47 of chapter 43 of the General Laws, provides that the 
 directors of a cemetery association may make reasonable 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 
 Tecoverable by the corporation in a civil action." Under this au- 
 thority the association has the power to make rules and regulations 
 that are binding upon those who voluntarily become 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 As- 
 sociation v. Parker, 45 App. Div. 55. And it has been ques- 
 tioned 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, 
 Tvhich may be enforced in an action for debt. Monroe Dairy As- 
 sociation V. Webb, 40 App. Div. 49. It is held that the passage of 
 19 
 
290 COEPOKATIONS. 
 
 a rule and regulation, and the imposition of a penalty for its vio- 
 lation, 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 ]^. Y. 483 ; Johnstown Cemeterij 
 Association v. Parker, 45 App. Div. 55. There is an apparent 
 exception made to this in the case of municipal corporations, or 
 corporations vested with any of the political powers of the State, 
 and exercising go'Viernmental functions as one of the agencies of 
 the State. Tanner v. Trustees of the Village of Albion, 5 Hill, 
 121. And a by-law of such a corporation or board of officers, 
 enacted under express authority of an act of the legislature, and 
 being in conformity to the power conferred, has the same force as 
 though it were enacted by the legislature. McDermott 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. 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. 
 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 were 
 liable for the injuries thus done. Hay v. Cohoes Co., 2 "N. Y. 
 159; Tremain v. Cohoes Co., 2 1^. 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. Vanderbilt v. Richmond Tump. 
 Co., 2 'N, Y. 4Y9. And where the plaintiff's steamboat was run 
 
COKPOEATIONS. 291 
 
 into and damaged by the willful act of the captain of the de- 
 fendant's heat, which act was sanctioned by the president of the 
 defendant's corporation, who was also its general agent, it was 
 held, that the corporation was not liable. Ih.; 8. 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 ; Hibhard v. New York & Erie R. R. Co., 
 15 ]Sr. Y. 455 ; Wright v. Wilcox, 19 Wend. 343. But these inti- 
 mations are subject to the material qualification 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 !N". Y. 543 ; JacJcson v. Second Ave. R. 
 Co., 47 K Y. 274 ; Lynch v. Metropolitan El. R. Co., 90 N. Y. 
 77; Poucher v. Blanchard, 86 IST. Y. 256; Ochsenbein v. Shapley, 
 85 jST. Y. 214; Craven v. Bloomingdale, 54 App. Div. 266; Pal- 
 meri v. Manhattan R. Co., 133 N. 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 iN". Y. 
 543 ; Mars v. Del. & H. Canal Co., 54 Hun, 625 ; Rounds v. Del, 
 Lack. & W. R. R. Co., 64 'B. Y. 129 ; Isaacs v. Third Ave. R. R. 
 Co., 47 ]Sr. 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 IST. Y. 162. 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 qualifica- 
 tion and limitation. See Lubricating Oil Co. v. Standard Oil Co., 
 42 Him, 153. 
 
 An action of trover for the conversion of goods by an agent of 
 a corporation is maintainable. Beach v. Fulton Bank, 7 Cow. 
 485 ; Yarborough v. Bank of England, 16 East, 6 ; Duncan v. Sur- 
 rey Canal Co., 3 Stark. N. 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 
 
292 COKPOEATIONS. 
 
 of the agent under the seal of the corporation. Mound v. Mon- 
 mouthshire Canal Co., 1 Car. & Marsh. ]^. P. 606 ; 8. C, 4 Man. 
 & Grang. 452 ; Smith v. Birmingham, (&c.. Gas Light Co., 1 Ad. & 
 Ellis, 526 ; Dater v. Troy Tump, and R. R., 2 Hill, 629. 
 
 And a jury may infer the agency from an adoption of the act 
 hy 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, 
 ante, p. 290. And so an action will lie for negligence, in permitting 
 the walls of a building to remain standing after a fire, when in 
 consequence of such neglect, the walls fell upon a person passing 
 along a street by the ruins. Church of the Ascension v. Buchhart, 
 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 
 where 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 IS. Y. 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 N. 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 
 company, the road is rendered unsafe, and a traveler, exercising 
 ordinary care, sustains damage, the company is responsible. Ire- 
 land V. Oswego, &c., P. R., 13 E". Y. 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 
 
CORPOEATIONS. 293 
 
 and individuals. She v. Bloom, 5 Johns. Ch. 366; 8. C, 19 
 Johns. 456; People v. Manhattan Co., 9 Wend. 351; Bank 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 prestime, 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. Ahin 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. American Linen Thread Co., 21 IST. Y. 
 124. And see Smith v. Law, id. 296. The power to affix 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, he 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. McSpedon v. Mayor, &c., of New York, 7 Bosw, 601, 609, 
 610 ; 8. C, 20 How. 395. And when the legislative power from 
 which a corporation derives its power to act prescribes a particu- 
 lar mode in which the act shall be performed, the corporation can- 
 not 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 oiScers 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. Fister v. La Rue, 15 Barb. 323. 
 
294 COEPOEATIOII^S. 
 
 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 Olass 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. Perhins v. Wash- 
 ington Ins. Co. J, i 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. BrooMyn Fire Ins. Co., 19 IST. Y. 305 ; 28 N. Y. 153. 
 The declarations, or the acts of a director in a corporation, will 
 not bind, nor in any manner aifect 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 Rochester 
 R. R., 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 Dressing 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 
 is to be used for corporate purposes, the corporation is liable. Ih. 
 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 R. 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. Ih. 
 
 So where money is deposited in a bank by a corporation, the 
 officers of the corporation may transfer or assign the money or 
 
CORPOEATIONS. 295 
 
 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, v?here 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. Vanderbilt, 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. E'otice given by a director 
 to the board at a regular meeting of the board is notice to the 
 corporation. Notice given to a director, is not, ordinarily, notice 
 to the corporation ; but Avhere 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 Banh v. Benedict, 1 Hall, 480 ; 
 Fulton Bank v. N. Y. and Sharon Canal Co., 4 Paige, 12Y; 
 National Banh v. Norton, 1 Hill, 572 ; North Biver Bank v. 
 Aymar, 3 Hill, 262 ; Bank of U. 8. v. Davis, 2 Hill, 451 ; New 
 Hope and Delaware Bridge v. Phmnix Banh, 3 IST. Y. 166 ; Ver- 
 non V. Manhattan Bank, 22 Wend. 183 ; 8. C, 17 "Wend. 524; La 
 Farge Fire Ins. Co. v. Bell, 22 Barb. 54 ; Miller v. Illinois Central 
 R. B., 24 Barb. 312. See ante, p. 246. 
 
 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 
 
296 COEPOEATIONS. 
 
 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 accoi".nt 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. !N"o per- 
 son holding stock in any corporation as collateral security, or as 
 executor, administrator, guardian or trustee, unless he shall have 
 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. General Laws, ch. 36, § 54. 
 
 I3"o action shall be brought against a stockholder for any debt 
 
COEPOEATIONS. 29T 
 
 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. No 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 a stockholder. Id. § 55. 
 
298 PAETITEKSHIP. 
 
 CHAPTER VIII. 
 PARTNERSHIP. 
 
 § 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 1897, ch. 420, § 2 ; General 
 Laws, ch. 51, § 2. 
 
 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. Id. § 4. The statute 
 prescribes the manner in which a limited partnership may be 
 formed. Id. § 30. A partnership formed in any other manner 
 is a general partnership. Id. § 3. 
 
 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 IsT. Y. 374; Elmtra Iron & Steel Boiling 
 Mill Co. V. Harris, 124 IST. Y. 280 ; National Bank of Salem v. 
 Thomas, 47 JST. Y. 15, 19 ; Bouker Contracting Co. v. Scribner, 
 62 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 
 may not, which will be determined by the agreement of the par- 
 ties or the nature of the particular partnership. It is possible 
 
PAETNERSHIP. 299 
 
 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. 
 Blach, 9 Bosw. 310. A partnership in profits may exist, without 
 including title to the stock out of which such profits arise, if such 
 be the agreement 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. Ellingwood, 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 purchase 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. 
 McClure, 15 Wend. 187; Irvine v. Forhes, 11 Barb. 587. The 
 mere fact that a father has bequeathed to his sons certain real 
 estate, the businesg 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 eqiially between them, this will constitute a co- 
 . partnership in fact and in law, as completely as if written articles 
 of copartnership had been signed. lb. 
 
 In every partnership there is a community of interest, but 
 it is not every community of interest that creates a partnership. 
 Coope V. Eyre, 1 H. Bla. 37; Hoare v. Dawes, 1 Doug. 373. 
 
 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 
 
300 PAETNEESHIP. 
 
 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 Barn. & Cress. 
 142 ; Bourne v. Freetli, 9 Barn. & Cress. 640 ; Howell v. Brodie, 6 
 Bing. iST. C. 44. If the proposed partnership contemplated the 
 execution of written articles of copartnership, no partnership inter 
 sese 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, under 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, 
 4:1 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 
 will be a good defense, so far as he is concerned, if he pleads it. 
 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 gives 
 notice of his disafiirmance 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- 
 
PAETNERSHIP. 301 
 
 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- 
 vantages of profits, if the partnership business is advantageous. 
 And, since he 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- 
 vantages 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 
 equity to partnership transactions. King v. Barnes, 109 1^. Y. 
 267 ; Hollister v. Simonson, 18 App. Div. 73 ; Wilcox v. Pratt, 
 52 Hun, 340; 125 N. T. 688. See Thornton v. Barber, 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, 
 
302 PAKTKEKSHIP. 
 
 or some pecuniary responsibility, which some or all of the part- 
 ners do not possess in an equal degree, or to an extent which 
 Avould be sufEeient to make a separate business as desirable as a 
 partnership. ]S[o 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, imless 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 account 
 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. Whithread, 2 J. Scott, 
 ]Sr. S., 506; 11 C. 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- 
 itors were not partners, nor liable for the debts incurred by trus- 
 tees in carrying on such business. Wheatcroft v. Hickman^ 9 
 J. Scott, 1ST. 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. Ante, p. 30. 
 
 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. Heye v. Tilford, 2 App. Div. 346 ; Wilcox v. Williams, 
 19 App. Div. 438 ; Evans v. Warner, 20 App. Div. 230; Salter v. 
 Bam, 31 K Y. 321 ; Matter of Hoagland, 51 App. Div. 347 ; 
 
PAETNEESHIP. 30? 
 
 Wilcox V. Williams, 92 Hun, 250; People v. Wiman, 85 Hun, 
 320. 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 JST. Y. 424, 428 ; Eayward v. 
 Barron, 46 St. Kep. 665 ; Heye v. Til ford, 2 App. Div. 346. The 
 law will give effect to the contract of the parties according to its 
 legal effect, and the intention of the parties. When parties agree 
 to join together their money, goods, labor or skill for the pur- 
 pose of engaging in trade, commerce or business, and to divide the 
 profits and losses, the general rule is, that this will constitute 
 them partners as between themselves. To constitute a partner- 
 ship, there must be a joint undertaking to share in the profit and 
 loss. Pattison v. Blanchard, 5 N. Y. 186. This is the rule as 
 between the parties to the contract. But to constitute one a part- 
 ner 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 suffi- 
 cient. The reason is, that sharing in the profits deprives creditors 
 of part of the means of payment. Manhattan Brass & Manufac- 
 turing Co. V. Sears, 45 N. Y. 797; Leggett v. Hyde, 58 IST. Y. 
 272 ; Hawkins v. Campbell, 48 App. Div. 43 ; First Nat. Bank 
 V. Gallaudet, 122 N. Y. 655 ; Johnson v. Alexander, 46 App. 
 Div. 6 ; Hackett v. Stanley, 115 IsT. 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 compen- 
 sation for services rendered or money advanced. In that case 
 he is not a partner. Merchants' Nat. Bank v. Barnes, 32 App. 
 Div. 92 ; Cassidy v. Hallj 97 N. Y. 159 ; Richardson v. Hughitt, 
 76 K Y. 55 ; Smith v. Bodine, 74 IST. Y. 30; Hull v. BaHh, 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 proprie- 
 tary interest in the profits before division as principal trader. 
 Leggett v. Hyde, 58 jST. Y. 272 ; Merchants' Nat. Bank v. Barnes, 
 32 App. Div. 92 ; Burnett v. Snyder, 81 K Y. 550. A contract 
 between 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. 
 
304 PAKT]S"EESHIP. 
 
 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 parties to settle 
 monthly, and the fare so received to be divided between them in 
 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. Patti- 
 son V. Blanchard, 5 IST. 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, 
 afterwards 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. aiid B. on the 
 Toad. 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, and 
 that is in relation to the liabilities which may be created in favor 
 
PAETNERSHIP. 305 
 
 of third persons. If several persons are actually partners in any 
 business, all tke members of the firm are liable for the lawful acts 
 or contracts of any of the partners, within the scope of the part- 
 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. If 
 a person advances money to carry on any enterprise under an 
 agreement that he is to receive back the same amount and one-i 
 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. Roat, 16 Hun, 526 ; 26 Hun, 632 ; 
 Manhattan Brass & Mfg. Co. v. Sears, 45 IS. Y. 797 ; Ontario 
 Bank v. Hennessey, 48 E". T. 545 ; Leggett v. Hyde, 58 N. Y. 
 272; Greenwood v. Brink, 1 Hun, 227; Mason v. Partridge, 4 
 Hun, 621 ; 66 K Y. 633 ; Magovem v. Robertson, 116 IST. Y. 61 ; 
 Hackett v. Stanley, 115 E". 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. Magovem v. 
 Robertson, 116 IST. 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. 
 See ante, p. 303. 
 
 Where three separate railroad companies owning distinct por- 
 tions of a continuous railroad between two terrmni, 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 IST. 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- 
 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- 
 20 
 
306 PAKTNEESHIP. 
 
 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. Oushman 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. Oas. 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. Bums 
 V. Rowland, 40 Barb. 368 ; Conhlin 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. 8ecor, 61 IST. Y. 456. See also 
 Williams v. Oillies, 13 Hun, 422; Ontario Bank v. Hennessey, 
 48 N". Y. 545. And one may also be liable though his name is 
 not used in the business of the firm, if he holds himself out as 
 a member -of the firm, or permits others to do so with his knowl- 
 edge and consent. Parker v. Barker, 1 Brod. & Bing. 9 ; Bu Bois 
 
PAETNEESHIP. 307 
 
 V. Lamson, 18 Week. Dig. 490; Swift v. MacNamara, 25 Misc. 
 789; 54 N. Y. Supp. 569; Moss v. Jerome, 10 Bosw. 220. 
 
 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. Dichinson v. Valpy, 10 
 Barn. & Cress. 128, 140; Shott v. Strealfield, 1 Mood. & Eob. 8. 
 And see note to Waugh 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 affirm,atively 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. Irvm v. ConJcUn, 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 represention 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. 
 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. lb.; Pringle 
 V. Leverich, 48 Super. Ct. 90; Broohryian v. Stetson, 13 Misc. 
 132 ; 68 St. Kep. 77 ; Bives v. Michaels, 1 6 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. But if such third persons have notice of any private ar- 
 rangement 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. Wandas, 1 Johns. 
 Cas. 171. 
 
308 PAETNEESHIP. 
 
 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 parsons. Heimstreet 
 V. Howlandj 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, 
 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 JST. Y. 93. When three disr 
 tinct sets of passenger carriers, one on the Atlantic ocean, one on 
 the Isithmus 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 
 ISTew 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. Vanderhilt, 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. Rail, 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 ; 
 
PAETNEESHIP. 309 
 
 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- 
 eral 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, 
 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. 
 Echhart, 1 Denio, 337; 8. C, 3 K Y. 132; Merchants' Nat. 
 Bank v. Barnes, 32 App. Div. 92 ; Conhlin v. Barton, 43 Barb. 
 435 ; Smith v. Bodine, T4 N. Y. 30 ; Winne v. Brwndage, 40 
 ]Sr. Y. Supp. 225 ; Richardson v. Hughitt, 76 N. Y. 55 ; Lans- 
 burgh v. Walsh, 12 Misc. 124; Hayward v. Barron, 46 St. Rep. 
 665 ; First National Bank v. Staples, 34 St. Eep. 503 ; De Cor- 
 dova V. Pow'ter, 8 St. E,ep. 431. A mercantile house engaged in 
 general business, 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 compensation for his services, one-fourth of the profits aris- 
 ing 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. Burchle v. Eckhart, 1 Denio, 337; 3 N. Y. 
 132; Brockway v. Burnap, 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; Boss v. Drinker, 2 Hall, 415. 
 
 § 4. What is a Tenancy in Common Instead of a Partnership. 
 
 There are numerous instances in which there may be a joint 
 employment of capital and labor, and yet be no partnership be- 
 
310 PAETNEKSHIP. 
 
 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, while 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- 
 nam V. Wise, 1 Hill, 234; Tripp v. Biley, 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. Ambler v. Bradley, 6 Vt. Rep. 119; 
 Rich V. Penfield, 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. Hills, 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- 
 ment is made, is not that of copartners, but of tenants in com- 
 mon. Baldwin v. Burrows, 47 1^. 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, 54 !N^. Y. 1 ; Traphagen v. Burt, 67 
 'N. Y. 30 ; Bissell v. Harrington, 18 Hun, 81. See Williams v. 
 Oillies, 75 N^. 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. Wahl v. Bamum, 116 E". Y. 87. 
 
 It is most advantageous to the parties, however, to reduce the 
 agreement to writing, especially if it is intended that the partner- 
 ship shall exist for any length of time, or if the amount invested 
 
PAETNERSHIP. 311 
 
 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. Bank v. Gallaudet, 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 Code, 
 § 363. But this section does not apply to any case where it is 
 specially prescribed by statute that a partnership name may be 
 continued in use by a successor, survivor, or other person. Ih. 
 The statutes authorize such continued use on certain conditions 
 only. See Laws of 1897, ch. 420, § 20; General Laws, ch. 51; 
 and Caswell v. Hazard, 121 N. Y. 484. See also Kilpatrick v. 
 Villaume, 6 Misc. 33; 56 St. Eep. 615; 25 E". Y. Supp. 1008; 
 Wood v. Erie R. B. Co., 72 N. Y. 196. 
 
 The section of the Penal Code 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. 
 Oay v. Seihold, 97 IST. Y. 472. See also Donlon v. English, 89 
 Hun, 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. Rep. 
 380. If the parties, for the purpose of avoiding the penalties of 
 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 
 
312 PAETNERSHIP. 
 
 respective interests in the firm property or business. Maddock 
 T. 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, to be 
 known as section 3636. • 
 
 " 1. No person or persons 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 du.ly 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 
 prescribed. 
 
 3. The several county clerks of this State shall keep an alpha- 
 betical index of all persons 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 ofiice 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, 
 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 on, conducting or transact- 
 
PARTNERSHIP. 313 
 
 ing business as aforesaid, who shall fail to comply with the pro- 
 visions 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 E". 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 ab'out 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 Avith 
 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. 
 Andrewes v. Garstin, 10 J. Scott, N. S. 444. 
 
 § 6. To What Business Partnership Extends. 
 
 The transactions of a partnership may extend to every kind of 
 lawful business. An agreement to form a partnership for engag- 
 ing in any illegal business is void, and confers no rights on either 
 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. 
 
314 PAETNEESHIP. 
 
 Chester v. Dickerson, 54 N. Y. 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. Kirriberly, 9 
 Johns. 470, 496; Bipley v. Colhy, 3 Foster (E". H.) 408. 
 
 § 7. Division of Profits and Losses. 
 
 As to the proportionate share which each partner has in the 
 husiness, 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. Gould, 6 Wend. 263 ; Ryder v. Gilbert, 16 
 Hun, 163; Evans v. Warner, 20 App. Div. 230; Van Name v. 
 Van Name, 38 App. Div. 451 ; Ex parte Owen, 4 De G. & S. 351 ; 
 Peacoch v. Peacoch, 16 Ves. 56; Meriden Nat. Bank v. Gallau- 
 det, 120 K 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 
 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 vsrrit- 
 ten articles of copartnership, by which they agreed to transact 
 business as partners, at Keokuk, Iowa, as merchants in the whole- 
 
PAKTNEKSHIP. 315 
 
 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 business, 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 fourth 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 should be borne equally. Ih.; Hodgman 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 
 parties may agree that the profits shall be equally divided, and 
 the losses equally borne. And if the parties so stipulate, one per- 
 son may be 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. 357. 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 mutual interest in the profit. The interest must be 
 
316 PAKTNERSHIP. 
 
 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. Kimherly, 9 Johns. 470 ; 
 Holmes v. Urdted 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 ships, 
 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 I^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 unknown. Both secrecy and inactivity are implied by the 
 word. National BanJc of Salem v. Thomas^ 47 !N. Y. 15, 19 ; 
 Elmira Iron & Steel Rolling Mill Co. v. Harris, 124 'S. Y. 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 
 
PAKTNERSHIP. G17 
 
 business, stands in the position of an undisclosed 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. Banh of 
 Rochester v. Monteath, 1 Denio, 402; Palmer v. Stephens, 1 
 Denio, 472 ; Rogers v. Coit, 6 Hill, 322 ; South Carolina Banh 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. Gallaudet, 120 
 N. T. 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 IST. T. 471. 
 
 Although partners cannot, by any agreement among them- 
 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, by 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. Putnam, 32 N. T. 501; affirming 
 ;Sf. 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- 
 
318 PARTNEKSHIP. 
 
 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. 
 
 Ey permitting his name to be used as a partner, he induces 
 other persons to give credit to the firm, which they would not do 
 were it known that he was not a member of it. And under such 
 circumstances he ought to be bound to pay a debt which was in- 
 curred on the faith that he was liable for its payment. 
 
 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. 
 Eetcham v. Clark, 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. Hurlburt, 5 Cow. 534; Davis v. Allen, 3 
 K T. 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, 5Y2 ; Buffalo City Bank v. Howard, 35 
 E". Y. 500 ; Bank of Monongahela Valley v. Weston, 159 IST. Y. 
 201. 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 Brooklyn v. McChesney, 20 'S. Y. 240 ; Austin v. 
 Holland, 69 IST. Y. 571 ; National Shoe & Leather Bank v. Herz, 
 89 ISr. Y. 629 ; Blmira Iron & Steel Rolling Mill Co. v. Harris, 
 124 ISr. Y. 280; Bank of Monongahela Valley v. Weston, 159 
 IST. Y. 201. Proof of the mailing of the notice raises a presump- 
 tion 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 
 
"PAETNEESHIP. 319 
 
 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. Beed & Barton v. Ashe, !%■ 
 App. Div. 501 ; Savage v. Butnam, 32 IST. T. 501 ; Morss v. Glea- 
 son, 64 K T. 204; Colgrove v. Tallman, 67 N. Y. 95. And when 
 such an arrangement is fairly and fully brought to the knowledge 
 of a creditor of the firm, he is bound to respect the rights of the 
 debtor, who thus becomes a surety and acquires the right to pro- 
 tection as such. B aimer v. Burdy, 83 IST. Y. 144; Grow v. Oar- 
 lock, 97 ISr. Y. 81 ; U. 8. N. Bank v. Underwood, 2 App. Div. 342. 
 If a creditor of st partnership, after the dissolution thereof, takes 
 the individual negotiable note of the partner remaining 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 partner- 
 ship debts, he thereby cancels his debt against the firm and dis- 
 charges the retiring partner. Arnold v. Camp, 12 Johns. 409 ; 
 Waydel v. Luer, 3 Denio, 410; Millerd v. Thorn, 56 N. Y. 402; 
 Beed & 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 time of payment, 
 this will discharge the retiring partner as surety for the debt. 
 lb. J 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. Bieber, 41 App. Div. 561. 
 When a partner retires from the firm, and 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. Eirby 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 known 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 N. Y. 168. As 
 to other notice necessary in case of dissolution of the firm, the 
 subject will be discussed hereafter. 
 
320, PAETNEESHIP. 
 
 § 9. Survivorship. 
 
 Partners are joint tenants in their stock in trade; but witliGut 
 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. WUtwell, 52 ]Sr. Y. 146, 158 ; Atkins v. Saxton, TY ISI". 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- 
 ing more. Murray v. Mumford, 6 Cow. 441 ; Case v. Aheel, 1 
 Paige, 393 ; Evans v. Evans, 9 Paige, 178. 
 
 Upon the death of one partner the survivor becomes the legal 
 ovTner 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 ]Sr. Y. 333 ; Preston v. Fitch, 137 N. Y. 41, 56. • But 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. McCall, 141 IST. Y. 437; Williams v. Whedon, 109 
 ISr. Y. 333. The time, manner and mode of paying the debts of 
 the firm, is under the exclusive control of the survivor. If the 
 firm was insolvent, the surviving partner may make a general as- 
 signment of its assets for the benefit of its creditors without the 
 assent of the representatives of the deceased partner. Ib.j Haynes 
 V. Brooks, 42 Hun, 528. So a surviving partner, if acting in 
 good faith, may transfer the whole assets of the firm to a firm 
 creditor in payment of his debt, without the assent of the repre- 
 sentatives of the deceased partner. Loeschigh v. Hatfield, 5 Robt. 
 26; 51 ISr. 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 
 
PARTNEESHIP, 321 
 
 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. For his services in collecting the assets and winding 
 up the business of the firm, the law allows him no remuneration 
 unless specially provided for by the copartnership agreement. 
 Ames v. Downvng, 1 Brad. 321 ; Johnson v. Hwrtshome, 52 N. Y. 
 173 ; Burgess v. Badger, 82 Hun, 488. 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 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. Y. 41. The representatives 
 of the decedent partner have certain rights as against the survivor, 
 and among them is the right to call him to account with reference 
 to his conduct or administration of the assets of the late firm ; the 
 right to compel their application to the payment of the debts of 
 the firm ; and to summon him to an accounting and to the pay- 
 ment to them of any balance that may be due the estate. 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. Staats V. Howlett, 4 Denio, 559. Tf the survivors carry 
 on business in the name of the old firm or otherwise, 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. Shidmore 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 purp^jses, 
 including the adjustment of the partnership debts, the claims of 
 21 
 
322 PAETNERSHIP. 
 
 the partners inter se, and the determination of the succession as 
 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. Darrow v. Calkins, 6 App. 
 Div. 28 ; 154 IST. Y. 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, eflFect vsdll 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 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- 
 ner for a failure to perform this duty. Hutchinson v. Campbell, 
 13 Misc. 152, 
 
PAETNEESHIP. 323 
 
 § 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 all 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 f^m. 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 m,ay be special part- 
 ners who are not liable beyond the amount of capital which they 
 put into the business. Laws of 1897, ch. 420, §§ 7, 36 ; General 
 Laws, ch. 51, §§ 7, 36. 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 
 itjby 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 oflSce. So there must be an affidavit of one of 
 the general partners, showing 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 
 of the firm must be conducted under a firm name, which 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 
 
324 PAETNERSHIP. 
 
 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 aSidavit 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. ISTo 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 dtiring the continu- 
 ance of the partnership, if thereby the original capital would be 
 reduced. ISTor can there be any fraudulent transfer of the prop- 
 erty of the partnership or partner. Laws of 1897, ch. 420, art. 
 3 ; General Laws, ch. 51, art. 3. 
 
 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 IST. 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. Chace, 39 Barb. 283. 
 These are some of the general features of the act, and for a more 
 accurate view of the statute, it must be examined as well as the 
 adjudged cases unon the construction of its provisions. 
 
 § 11. Joint-Stock Companies. 
 
 There is one kind of partnership which is quite common in 
 practice, and it sometimes involves important interests of the 
 
PAETNEESHIP. 325 
 
 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. Gates, 18 Barb. 
 554 ; Cross v. Jackson, 5 Hill, 478, 480 ; Townsend v. Goewey, 
 19 Wend. 424, 425; Witherhead v. Allen, 28 Barb. 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 asso- 
 ciation than are required for the formation of an ordinary partner- 
 ship. National Bank v. Van Derwerker, 74 IST. T. 234. And 
 while a joint-stock association has some of the attributes of a corpo- 
 ration it has others which distinguish it, such as the common-law 
 liability of its members upon the obligations legitimately created 
 or assumed through the acts of its officers and agents. So when 
 the affairs of the association call for its dissolution, an action for 
 that purpose may be brought by one or more of its members, 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 corporation. 
 Snyder v. Lindsey, 92 Hun, 432. But where the association is 
 organized for moral, benevolent, social or political objects, it will 
 
326 PAKTNEESHIP. 
 
 not be dissolved by the courts for slight causes. Such an associa- 
 tion, where there is no power to compel the payment 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 N. Y. 507. So 
 the individual liability of the members of such an association on 
 contracts made by it, its officers and committees, 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 business or promote the ob- 
 ject for which the association was formed, except where the debt 
 contracted is necessary for its preservation. No liability of in- 
 dividual members can be implied from the mere fact of associa- 
 tion. In this respect there is a plain distinction between associa- 
 tions formed for the purpose of pecuniary profit and those formed 
 for other objects. McCahe v. Goodfellow, 133 IST. 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 notwithstanding such 
 trustees are members of the association, and, therefore, partners 
 with the persons sued. Townsend v. Goewey, 19 Wend. 424. So 
 a member 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 association differs from a 
 partnership. Westcott v. Fargo, 61 E". 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 associa- 
 tion ; 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 affairs not inconsistent 
 with law. General Laws, ch. 45, § 3 ; Laws of 1894, eh. 235, § 3. 
 The statute cited is known 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, secre- 
 tary, treasurer and the like, for the transaction of business, and 
 the Code provides, in substance, that an action may be brought 
 by or against the president or treasurer with the same effect as 
 
PAETNEESHIP. 327 
 
 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 own 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 Tibhetts 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, is 
 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 interests 
 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 will 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. Leiber, 1 Paige, 483 ; Franklin v. Robin- 
 son, 1 Johns. Ch. 157, 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 ovra duties and 
 
328 PAETNEKSHIP. 
 
 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. 
 Eut, 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. 
 lb.; Hasbrouck v. Ohilds, 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. 
 Echford, 2 Sandf. Ch. 116; Rowe 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 
 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. 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. HaulenbecTc 
 Advertising Agency v. November, 27 Misc. 836. So, on the other 
 hand, the entire firm will be bound by the acts or the 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 
 
PAETNERSHIP. 329 
 
 to do whatever is necessary to carry on such business in the 
 ordinary manner. General Laws,, ch. 51, § 5 ; Laws of 1897, 
 ch. 420, § 5. Where the business of the partnership is the buy- 
 ing 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. OoUy. 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 
 sufiicient to bind the firm. Bank of North America v. Embury, 
 33 Barb. 323. And where an agent has been 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 
 firm, 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 Bam. 
 & 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 
 
330 PAETNEKSHIP. 
 
 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. Butler v. Stocking, 8 IST. Y. 408. And such 
 knowledge may be shown 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 had. Mechanics' Bank v. Livingston, 33 
 Barb. 458. A partner in a mercantile or trading firm may draw,~ 
 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 ^nade 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 N. 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. Underhill, 102 
 ISr. Y. 336; Atlantic State Bank v. Savery, 82 N. Y. 291, 299, 
 300; Lyon v. Fitch, 46 St. Rep. 541; Houchin v. Vacher, 24 
 Week. Dig. 196; Green 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. Green 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 
 
PARTNEKSHIP. 331 
 
 faith in advancing the money, or in taking such bill or note. 
 Wells V. Evans, 20 Wend. 251 ; Vallett v. Parker, 6 Wend. 615. 
 ISo 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 makersi 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 
 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 seeuxity 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. lb. 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 JST. Y. 244. 
 
 W^here 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. Lans, 13 
 J. Scott, ^. S. 2T8. 
 
 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 
 
332 PAKTNEESHIP. 
 
 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, 
 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, 44 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 th& 
 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 N. Y. 
 462 ; King v. Sarria, 69 IST. 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. Rumsey 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. ~S. S. 316. And 
 this is the rule, notwithstanding the note was given for a debt 
 which was due from the firm. Ih. j Dickinson v. Valpy, 10 Barn. 
 & Cress. 138 ; Oreenslade v. Dower, 7 Barn. & Cress. 635, 639,, 
 
 HOLEOYD, J. 
 
PAETNEESHIP. 333 
 
 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- 
 inarlc, 4 Hill, 259; Kittel v. Callahan, 46 St. Eep. 404; Golly, 
 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 
 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 drava drafts in the business of the firm, but not 
 for the accommodation of other parties, makes a draft in the firm 
 name for the accormnodation 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, 
 the 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. Bradner, 44 N. Y. 
 680. 
 
 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 IS. Y. 202. Such a transaction is within the 
 general authority of the financial partner of the firm to provide 
 funds to meet its liabilities. Ih. 
 
 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 
 
334 PARTNERSHIP. 
 
 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; Bulhley r. Dayton, 14 Johns. 
 387. One partner may sign a composition deed, and release a 
 part 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. Hutchins, 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, 
 without 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 N. 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 imtil sued as indorsers. lb. 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 that 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 IST. Y. 144 ; though it has been seen that either 
 partner may release a claim due to the firm. One of sefveral 
 
PARTNEESHIP. 335 
 
 partners may assign a chose in action belonging tb the firm, and 
 the assignment will be valid and operative though under seal. 
 Radt V. Rosenfeld, 20 Misc. 312. 
 
 "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 until 
 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 
 thereof." Code of Civil Pro., § 1942. See Marx v. Jones, 36 
 Hun, 290 ; Harbeck v. Pupin, 123 JST. Y. 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. Wilhins v. Pearce, 
 5 Denio, 541. 
 
 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. Higham, 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. Ih. 
 
 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 pro-vides 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 
 
336 PAETNEKSHIR 
 
 Civil Pro., § 1278. See Harbeck v. Pupin, 123 :N'. 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 to 
 take the case out of the general rule. Welles v. March, 30 N. Y. 
 344 ; Palmer v. Myers, 29 How. 8 ; 43 Barb. 509 ; Elumpp v. 
 Gardner, 114 JST. 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. lb. 
 
 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 K Y. 344; Klumpp v. Gardner, 114 K Y. 153; Hooper v. 
 Baillie, 118 K Y. 413 ; Martine v. Robinson, 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 E". 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. Boyer Wheel Co. v. Fielding, 101 
 K Y. 504; Crooh v. Eindskopf, 105 IST. Y. 476. But if he 
 undertakes to do this by assignment he 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 
 property, the assignment may be held to be void as to firm 
 
PARTNERSHIP. 33Y 
 
 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 
 N. Y. 536 ; Wilson v. Marion, 147 N. Y. 589 ; Wilson v. Robert- 
 son, 21 ]Sr. Y. 58Y. 
 
 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. Mabbett v. 
 White, 12 K Y. 443 ; Bulger v. Rosa, 119 IST. Y. 459 ; Schwarz- 
 schild & Sulzberger Co. v. Mathews, 39 App. Div. 477; ^an 
 Brunt V. Applegaie, 44 N. Y. 544. 
 
 A partner having the legal title to an imdivided 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, 44 IST. 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 N. 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 Barn. & Cress. 867; Raba v. Ryland, Gow E". 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 N. Y. 315; Mabbett v. White, 12 K Y. 442; Mc- 
 Clelland V. Remsen, 36 Barb. 623. So a pledge, by one 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. lb. 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 
 
 22 
 
338 PAETNEESHIP. 
 
 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. General Laws, eh. 51, § 6 ; Laws of 1897, ch. 420, § 6. 
 
 Usually, the act of one partner in creating debts, etc., is con- 
 fined 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 Barn. & 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. Hawking v. Appleby, 2 Sandf. 421 ; Bapp v. 
 Latham, 2 Barn. & Aid. 795 ; Stone v. Marsh, 6 Barn. & Cress. 
 551 ; Hume v. Bollard, Eyan & M. 371 ; Willett v. Chambers, 
 Cowp. 814 ; Chester v. Dickerson, 54 E". Y. 1 ; Bradner v. Strang, 
 23 Hun, 445 ; 89 N. Y. 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. Gashell, 42 Hun, 451 ; Stroher v. Elting, 97 
 ]Sr. Y. 102. 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 the 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. W. P. 227. 
 
 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. Boberts v. Johnson, 58 N. Y. 613. 
 
 So all of the members of a firm are liable on a warrajity 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 
 
PAETNERSHIP. 339 
 
 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 sufficient 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- 
 dence," title Admissions. After the existence of the partnership 
 is established the admissions of any of the partners may be proved 
 as evidence against them all, in relation to such matters as those 
 where the acts of either of them would bind all. The property 
 and choses in action which belong to a partnership are the fund 
 which a creditor may claim should be applied to the payment 
 of his demands. And partnership property must be applied to- 
 wards the payment of partnership debts before any portion of it 
 can be taken to satisfy the debts of the individual partners. But 
 any partner may sell or mortgage his individual property for the 
 purpose of paying the partnership debts, and this will be valid 
 as against the creditors of such individual partner. Stewart v. 
 Slater, 6 Duer, 83. 
 
 § 13. Dissolution of Partnership. 
 
 A partnership may be dissolved in several ways, which will 
 hereafter be pointed out. If a partnership is formed for a limited 
 term, by the express agreement of the partners, the partnership 
 will terminate at the expiration of the time specified. So, if a 
 partnership is limited to a single transaction, it will terminate as 
 soon as the business is completed. 
 
 If no time has been limited for the dissolution of a general 
 trading partnership, it is a partnership at will, and may be dis- 
 solved at any time at the pleasure of any one or more of the part- 
 ners. Qansevoort v. Kennedy, 30 Barb. 279 ; Shinner v. Tinker, 
 34 Barb. 333 ; Briggs v. Weidmann Cooperage Co., 24 St. Rep. 
 300; Ca&tle v. Marks, 50 App. Div. 320. The partnership will 
 
340 PAKTNERSHIP. 
 
 continue until it is dissolved by the act of one or both of the par- 
 ties. The dissolution of a partnership at will may be implied 
 from circumstances. But when not the result of mutual agreement 
 there must be notice by the party desiring the dissolution to his 
 copartner of his election to terminate the partnership, or his elec- 
 tion must be manifested by unequivocal acts or circumstances 
 brought to the knowledge of the other party, which signify the 
 exercise of the will of the former that the partnership be dissolved. 
 Spears v. Willis, 151 K Y. 443. 
 
 Any partner may dissolve the partnership, although the part- 
 nership articles provide that the term shall be for several years, 
 which time has not expired at the time of the dissolution. But 
 the partner who dissolves a partnership under such circumstances 
 will be liable to an action in behalf of the other partners to re- 
 cover such damages as may result from the breach of the part- 
 nership articles. Bagley v. Smith, 10 IST. Y. 489 ; 8. C, 19 How. 
 Pr. 1. Such action is maintainable before the expiration of the 
 period for which the partnership was to continue. Ih. 
 
 The dissolution ought to be made by some act which is of the 
 nature of the original agreement. If the agreement is a verbal 
 one, a verbal notice is sufficient. If the partnership articles are 
 in writing, the notice ought to be in writing, and, if under seal, 
 the notice ought to be sealed. 
 
 The dissolution cannot have a retrospective effect, so as to 
 affect the rights of the partners as to circumstances existing at 
 the time of the dissolution. But it will defeat any right to trans- 
 act any new partnership acts, except such as relate to a settle- 
 ment of the partnership business. But partnerships may be dis- 
 solved by causes other than the voluntary acts of the parties or 
 the expiration of the term limited. The law declares that certain 
 acts or events dissolve a partnership. The death of any partner 
 is of itself a dissolution of the partnership, not merely as to the 
 deceased partner, but as to all the other members of the firm, how- 
 ever numerous they may be. Ames v. Downing, 1 Brad. 321, 
 328; Scholefield v. Eichelberger, 7 Peters, 586, 594; Grcdz v. 
 Bayard, 11 Serg. & E. 41 ; Washburn v. Goodman, 17 Pick. 519. 
 When one partner dies, the partnership property goes to the sur- 
 vivors for the purpose of settling up the partnership business, 
 and they have all the power necessary for that purpose, but noth- 
 ing more. The rights and liabilities of the surviving partner, and 
 "his relations towards the representatives of the deceased partner, 
 lave been already noticed. See ante, p, 820. 
 
PARTNERSHIP. 341 
 
 When the members of a firm reside in different countries, be- 
 tween -which a war breaks out, this will dissolve the partnership. 
 Oriswold v. Waddington, 15 Johns. 57; 8. C, 16 Johns. 438. 
 Whether the insanity of one of the partners operates of itself as a 
 dissolution of the partnership, does not seem to be entirely settled ; 
 though it is clear that it is a good ground for a decree of dissolu- 
 tion. See Oriswold v. Waddington, 15 Johns. 57, 82; 8. C, 
 16 Johns. 438. When a court decrees a dissolution on the ground 
 of insanity, the decree is not retrospective so as to take effect 
 before the time of making the decree. Besch v. Frolich, 1 Phillips 
 Ch. 172 ; 8ander v. Sander, 2 CoUyer Ch. 276. 
 
 When the articles of partnership provide that the partnership 
 may be dissolved on notice, such notice will be valid,, although the 
 partner notified is insane at the time the notice is given. Robert- 
 son V. LocJcie, 15 Simons Ch. 285. 
 
 Bankruptcy of the whole firm, or of one or more of the partners, 
 dissolves a partnership. But mere insolvency will not have that 
 effect until a decree or judgment declaring it, or until some legal 
 proceedings are taken to seize the interest of the insolvent debtor 
 in the partnership property, such as taking it upon an attachment 
 or selling it upon an execution or the like. 
 
 The bankruptcy of one member of a firm works a dissolution 
 of the partnership only to the extent of disabling it from entering 
 into any new engagements or incurring new obligations, except 
 those required to complete its unfinished business and wind up 
 its affairs. The bankrupt still remains liable upon all existing 
 contracts, and his interest in the partnership as well as his indi- 
 vidual estate may be resorted to for the enforcement of such lia- 
 bilities. The assignee of the bankrtipt partner becomes a tenant 
 in common with the solvent partners of the firm assets, and is 
 entitled to an accounting and to receive the bankrupt's share, what- 
 ever it may be, after the payment of the partnership liabilities 
 and a settlement of their accounts. He has no right to the posses- 
 sion of the assets, or to interfere in the conduct of the business by 
 the surviving partners in winding up the copartnership affairs. 
 King v. LeigUon, 100 K Y. 386. 
 
 A sale of all his interest in the property on execution would 
 work a dissolution of the partnership, and the purchaser at the 
 sale would become a tenant in common of the property with the 
 other partners, but he would not be a partner with them. 
 
 An assignment made for the benefit of creditors of all the prop- 
 erty of one partner, will work a dissolution of a partnership, and 
 
343 PAETNEKSHIP. 
 
 the assignee will be a tenant in common, but not a partner with 
 the other members of the firm. The assignment will not transfer 
 the corpus of the partnership property but only the share of the 
 assignor of what remains after the debts are paid, and the solvent 
 partners, and not the assignee or his assignor, have the right 
 to manage the closing up of the firm affairs. Ogden v. Amot, 29 
 Hun, 146. 
 
 There are numerous cases in which a court of equity may decree 
 a dissolution, but the discussion of such a subject is foreign to 
 the nature and scope of this work. 
 
 Partnerships are founded upon the principle that each partner 
 is to do something which is conducive to the common good; and 
 whenever any partner becomes unable to perform his part and 
 proper duties to the firm, it will be a ground of dissolution. The 
 causes of inability are so various that no attempt will be 
 made to describe or to enumerate them. Some of them have 
 been already mentioned, such as insanity, bankruptcy, and similar 
 cases. 
 
 When a partnership is actually terminated in a legal manner, 
 neither of the partners has a right to use the partnership property 
 for any other purpose than that of winding up the affairs of the 
 firm. And the power of any partner to bind the firm by acts or 
 agreements ceases immediately on its dissolution ; though there 
 are cases in which a notice is necessary to be given to those who 
 have previously dealt with the firm. The necessity of such notice, 
 and the mode in which it must be given, have been noticed else- 
 where. See ante, p. 317. 
 
 After dissolution the partners become tenants in common in 
 the partnership property and effects. ISTeither of them can give 
 notes or accept bills so as to bind the other partners, even when 
 it is done for the purpose of providing for a debt due from the 
 former firm. National Banlc v. Norton, 1 Hill, 572 ; Lansing v. 
 Gaine, 2 Johns. 300 ; Sanford v. MicJdes, 4 Johns. 224 ; Hachley 
 V. Patrick, 3 Johns. 537 ; Walden v. Sherburne, 15 Johns. 409 ; 
 Mitchell V. Ostrom, 2 Hill, 520 ; Lush v. Smith, 8 Barb. 570. Nor 
 can one partner, who continues to occupy the premises used by 
 the former firm, renew the lease, nor can he by his occupation 
 render the other partners liable for the rent. James v. Pope, 19 
 W. Y. 324. 
 
 The rights of a purchaser on a sale on an execution of a part- 
 ner's interest in the partnership property, and the proper manner 
 of selling it will be treated of under the title Execution. The 
 
PAETNEESHIP. 343 
 
 surviving partners are the only persons to be sued for the part- 
 nership debts; and they alone are authorized to sue for and to 
 collect the debts due to the firm, ante, p. 320. 
 
 In order to exonerate the members of a firm from liability upon 
 a promissory note, made in its name after its dissolution by one 
 of the partners for the accommodation of a third person, and 
 taken in good faith and for value by one not a dealer with the 
 firm but having knowledge of its prior existence and not of its 
 dissolution, it is necessary that notice should have been published 
 by advertisement in a newspaper. City Bank of Brooklyn v. Mc- 
 Chesney, 20 IST. Y. 240. It is necessary that actual notice of 
 the retirement of one of the members of a copartnership should 
 be given to those who have given credit to the firm, to protect 
 the retiring party from liability to such persons as to subsequent 
 transactions with the other members in the name of the firm. 
 Clapp V. Rogers, 12 N". Y. 283 ; Wardwell v. HaigU, 2 Barb. 549 ; 
 Mechanics' Bank v. Livingston, 33 Barb. 458 ; Bank of Monon- 
 gahela Valley v. Weston, 159 E". Y. 201. And see eases cited, 
 ante, p. 318. But where the name of a partner is not used in the 
 firm, or he is a secret partner, and he retires from the firm, he 
 will not be liable for debts subsequently contracted by the remain- 
 ing members of the firm, if the debt is made to persons who did 
 not know that such retiring member was a partner until after the 
 debt was contracted. Davis v. Allen, 3 N". Y. 168, 172 ; Clapp v. 
 Rogers, 12 K Y. 283. 
 
 When a limited partnership is dissolved by the agreement of 
 the parties before the period fixed for its termination by the orig- 
 inal certificate, it continues as to persons crediting the firm with- 
 out actual notice of such dissolution until the notice required by 
 the statute has been filed, recorded, and published for four weeks 
 as therein prescribed. Beers v. Reynolds, 11 N. Y. 97. See Laws 
 of 1897, ch. 420, § 42 ; General Laws, ch. 51, § 42. 
 
 The dissolution of a firm does not discharge any of the part- 
 ners from their liability to pay the firm debts. A firm was com- 
 posed of Van Pelt & IST. E. Smith, and this firm purchased goods 
 of Heroy; the firm was, subsequently, and before the goods were 
 paid for, dissolved; Van Pelt then entered into partnership with 
 one J. B. Smith, and they retained the old firm name. Van Pelt 
 ■& Smith. Subsequently, Van Pelt gave a note to Heroy, in the 
 name of Van Pelt & Smith, for the goods purchased by the old 
 firm, but Heroy did not know of any change in the firm at the 
 time he accepted the note ; this note was not paid when due, and 
 
344 PAKTNEESHIP. 
 
 it was held that Heroy was entitled to recover the value of the 
 goods sold from Van Pelt & N. E. Smith, to whom they were sold 
 Heroy v. Van Pelt, 4 Bosw. 60. The action was brought for 
 goods sold and delivered, and not upon the note. No action 
 would lie upon a note given by one partner after dissolution. Ante, 
 }D. 342. And the giving of the note by the new firm did not bar 
 the action against the old firm for goods sold, etc., because there 
 was no intention by the creditor to accept a note from the new 
 firm, as he did not know of the change in the partners. Heroy v. 
 Van Pelt, 4 Bosw. 60. If the note of the new firm had been 
 accepted in payment of the debt of the old firm, that would have 
 defeated the action as against IST. E. Smith. Waydell v. Luer, 3 
 Denio, 410. 
 
 Where no special agreement as to liquidation is made, the part- 
 nership, although dissolved, continues for the purpose of wind- 
 ing up its affairs, and each of its members has an equal right to 
 the possession of its assets, and are under an equal duty to apply 
 those assets to the discharge of the partnership debts. Roihins v. 
 Fuller, 24 IST. Y. 570; Gray v. Green, 142 N. T. 316. Each 
 member has the same right and authority to collect, compound and 
 release the debts due to the firm that he had before such dissolu- 
 tion. Huntington v. Potter, 32 Barb. 300. 
 
 But where a debt against a firm is barred by the statute of 
 limitations, neither partner has power, after dissolution, to revive 
 the debt by an acknowledgment and promise to pay it. Van 
 Keuren v. Parmelee, 2 IST. Y. 523 ; Bloodgood v. Bruen, 8 IST. Y. 
 362. 
 
 Actions for the recovery of demands due to the firm, must be 
 brought in the names of all the partners, although the partner- 
 ship may have been dissolved. But, in case the dissolution is 
 caused by the death of one of the partners, the action must be 
 brought in the name of the survivors. Buchnam v. Brett, 22 How. 
 Pr. E. 230. 
 
 So, all actions against the firm must be brought against the 
 survivors. Tracey v. Suydam, 30 Barb. 110. 
 
 § 14. Actions by Partners Against Each Other. 
 
 As a general rule, one partner cannot sue a copartner in an 
 action at law in respect to any matter growing out of the trans- 
 actions of the partnership, and involving an examination of the 
 partnership accounts. And this is the -rule whether the action is 
 brought before or after a dissolution of the partnership, unless 
 
PARTNERSHIP. 345 
 
 there has been a balance struck, and an express promise made to 
 pay it. Case v. Brush, 2 Caines, 293 ; Niven v. SpicJcerman, 12 
 Johns. 401; Murray v. Bogert, 14 Johns. 318; Halstead v. 
 8chmelzel, 17 Johns. 80; Westerlo v. Evertson., 1 Wend. 532 ; Att- 
 water v. Fowler, 1 Hall, 180; Ives v. Miller, 19 Barb. 196 Patti- 
 son V. Blanchard, 6 Barb. 537; 5 N. Y. 186; Bloss v. Chittenden, 
 2 T. & C. 11 ; Buell v. Cole, 54 Barb. 335 ; Belanger v. Dana, 
 52 Hun, 39 ; Arnold v. 4rnoM, 90 IST. Y. 580, 583. 
 
 If a partner pays a demand against the firm, he cannot main- 
 tain an action at law against his copartners to recover back the 
 ■whole or any part of the money. His action in such a case being 
 upon an implied promise, would require an account to be taken 
 in order to ascertain whether he had paid more than his propor- 
 tion, and this cannot be done in an action at law. Oridley v. Dole, 
 
 4 N. Y. 486. But if one partner gives to the other his indi- 
 vidual note or acceptance for value received on the partnership 
 account, an action will lie upon the note or bill. Ih.; Breston v. 
 Strutton, 1 Anst. 50. '"^ -_r..' 
 
 So, no action will lie by one partner against the other for labo/ '' " 
 done for the firm, or for money advanced, tmless there has been a 
 balance struck or a promise to pay, or a note given. See the cases 
 above cited, and also Goddard v. Hodges, 1 Cr. & M. 37 ; Holmes 
 V. Higgins, 1 Barn. & Ci-ess. 74; MiTbum v. Codd, 7 Barn. & 
 Cress. 419 ; Fromont v. Coupland, 2 Bing. 170 ; Sadler v. Nixon, 
 
 5 Barn. & Ad. 936 ; Pearson v. Slelton, 1 M. & W. 504. 
 
 But where an account is closed between partners, one partner 
 may maintain an action against the other for the balance diie 
 him. Coffee v. Brian, 3 Bing. 54; Brierly v. Cripps, 7 Carr. & 
 Payne, 709. 
 
 " There is no rule forbidding one partner to sue another at law, 
 in respect of a debt arising out of a partnership transaction, if the 
 obligation or contract, though relating to the partnership business, 
 is separate and distinct from all other matters in question between 
 the partners and can be determined without going into the part- 
 nership accounts." Crater v. Bininger, 45 !N". Y. 545 ; Barheau 
 V. Picotte, 35 St. Rep. 785 ; 13 K Y. Supp. 132 ; Howard v. 
 France, 43 IST. Y. 593 ; Ferguson v. Baher, 116 IST. Y. 257. It is 
 sometimes said that an action will not lie by one member of a part- 
 nership against another upon an implied promise. But this state- 
 ment requires qualification. The cases in which an express prom- 
 ise to pay has been required are those in which no implied promise 
 to pay could arise upon the facts excepting a promise to pay the 
 
346 PARTNERSHIP. 
 
 amount that might be found due after an accounting and balance 
 struck. Thus, if one partner advances money to the firm to pay 
 partnership liabilities without taking any express obligation for 
 repayment, or pays demands against the firm, he cannot recover 
 back the whole or any part of the money in an action against his 
 copartners, because the action would be upon an implied promise, 
 ■and that implied promise would be only that the other partners 
 would pay what was due him after an accounting had been taken 
 to ascertain the state of the partnership matters, and the balance, 
 if any, that might be due him as before stated. But if a firm has 
 loaned money to one of its members, without taking any express 
 obligation for repayment, and without fixing any time for repay- 
 ment, the law implies a promise on the part of the borrower to 
 pay on demand without an accounting the identical sum loaned, 
 and upon this promise an action may be maintained against the 
 borrowing partner as effectually as if there had been an express 
 promise to repay the loan upon a time specified. Bank of British 
 North America v. Delafield, 126 IST. Y. 410. 
 
 Where one partner has given another his note to be discounted 
 by the other and the proceeds to be used in the purchase of prop- 
 erty for the partnership, the partner receiving and procuring the 
 discount of the note cannot recover its amount of the maker, where 
 there has been no adjustment of the partnership affairs. Sheldon 
 V. Stevens, 32 Misc. 314. 
 
 It is held that a partner cannot maintain an action against a 
 copartner who is still engaged in the settlement of the partnership 
 affairs for the conversion of firm assets after the dissolution. 
 Belanger v. Darm, 52 Hun, 39. 
 
 If one partner, upon a dissolution of his firm, assigns to his 
 copartners, all his interest in all the property and assets of the 
 firm, and covenants not to interfere with the collection of debts 
 owing to the firm; and, subsequently, for a valuable considera- 
 tion received by himself, settles and receipts as paid to him, one 
 of the debts so assigned, an action will lie against him, at the 
 suit of his copartners, to recover the amount of such debt. Boss 
 V. West, 2 Bosw. 360. It is no answer to such an action, that 
 the original debtor might, notwithstanding such settlement, be 
 sued by his copartners to recover such debt, on the ground that 
 no money was paid or property delivered on such settlement, but 
 that the defendant receipted the debt, as paid to him, on receiving 
 from such debtors a receipt that he had paid to them, in full, a 
 debt of equal amount, which he, individually, owed to them. lb. 
 
PARTNEKSHIP. 347 
 
 So, where a partnership was dissolved, and an agreement was 
 made by the partners that a distribution of the assets should 
 be made to each of them in severalty, by transferring to each of 
 them certain notes and accounts, and one partner collected cer- 
 tain accounts alloted to the other, it was held that the latter 
 might maintain an action against his former partner to recover 
 the amount so collected. Crosby v. Nichols, 3 Bosw. 450. 
 
 Where a partnership has been dissolved by mutual consent, the 
 assets divided between the partners, and an agreement entered into 
 that all partnership liabilities outstanding should at maturity be 
 borne and paid equally by all the members of the firm, and there 
 are no outstanding claims of the firm to be or that can be col- 
 lected, a partner who has paid all of the outstanding debts of the 
 firm may maintain an action against his copartners to recover the 
 amount paid in excess of his proportionate share, as the judgment 
 in such action will be a final settlement between the partners. 
 Esdaile v. Wuytach, 25 Abb. E". C. 474. 
 
 Where there is a settlement between partners, and a promise by 
 one to pay to the other a balance struck, an action at law may 
 be maintained, although by accident or otherwise, some trifling 
 debts owing by the firm remain unadjusted. Clark v. Dibble, 16 
 Wend. 601. An action will lie by one partner against another 
 for a breach of the copartnership agreement, whether the act to 
 be done or omitted relates to the organization of the partnership 
 or to some act to be done or omitted after the partnership is in 
 operation; and this is so, notwithstanding there may be accounts 
 between the parties which require unraveling in equity. Glover v. 
 Tuch, 24 Wend. 153 ; Bagley v. Smith, 10 JST. Y. 489 ; 8. C, 19 
 How. Pr. 1. So, an express promise by one partner to pay the 
 other a certain share out of his portion of the profits for extra 
 services rendered for the firm, will sustain an action in favor of 
 the person to whom the promise is made, and who renders such 
 services. Paine v. Thatcher, 25 Wend. 450. And see Hasbrouck 
 V. Childs, 3 Bosw. 105. It is a general rule that one person can- 
 not be both plaintiff and defendant in an action. Trustees, &c., in 
 Pultney v. Stewart, 27 Barb. 553. And where one person is a 
 member of two different firms, an action cannot be maintained 
 by one of the firms against the other. Bosanquet v. Wray, 6 
 Taunt. 597 ; Mainwaring v. Newman, 2 Bos. & Pul. 120 ; Neale 
 V. Turton, 4 Bing. 149 ; Teague v. Hubbard, 8 Barn. & Cress. 345. 
 But after the decease of the partner who is a member of both 
 firms, the surviving partners of the one house may sue the sur- 
 
348 PAETNERSHIP. 
 
 viving partners of the other house, upon transactions subsequent 
 to the decease of the common partner. Bosanquet v. Wray, 6 
 Taunt. 597. So there may be cases in which an action may be 
 maintained, even during the lifetime of such a common partner. 
 Two firms, in which A. was a partner, stated an account of their 
 mutual dealings. The partners in the creditor firm, with the 
 exception of A., who declined to be a plaintiff, and was made a 
 defendant, brought their action against the members of the debtor 
 firm; and it was held, that upon proof of these facts, the plain- 
 tiffs were entitled to judgment for the balance thus ascertained. 
 Cole V. Reynolds, 18 ]Sr. Y. 74. Evidence of general reputa- 
 tion is not competent for the purpose of showing that certain 
 persons are partners in business. Smith v. Griffith, 3 Hill, 333 ; 
 McGuire v. O'Hallaran, Hill & Denio, 85 ; Halliday v. McDougall, 
 20 Wend. 81. So an admission by one person that another, who 
 is not present, is his partner, is not evidence as against the latter. 
 Pretzf elder v. Strohel, 17 Misc. 152 ; Rives v. Michaels, 16 Misc. 
 57 ; Eirhy v. Hewitt, 26 Barb. 607. 
 
BAILMENT. 349 
 
 CHAPTER IX. 
 
 BAILMENT. 
 
 § 1. General Definitions. 
 
 The word bailment has been variously defined, though not al- 
 ways with entire accuracy. 
 
 In commercial communities there will always be a practice of 
 borrowing, lending, hiring and of keeping chattels, or carrying or 
 working upon them for another. All such acts are included in 
 the term bailment. 
 
 Whatever is delivered by the owner to another person, in any 
 of the ways or for any of the purposes above mentioned, is bailed 
 of him, and the law which determines the rights and duties of the 
 parties, in relation to the property and to each other, is the law 
 of bailments. A iailor is the party who delivers chattels to an- 
 other for some purpose, and upon a contract express or implied. 
 A bailee is a party to whom chattels are delivered for some pur- 
 pose, and upon a contract express or implied. A bailee is always 
 responsible for the property delivered to him; but the degree and 
 measure of his responsibility are to be determined by the nature 
 of the contract, and the law applicable to the agreement made; 
 or, if no express agreement is made, then to such as ik implied 
 by law, from the circumstances of the case. 
 
 The practical question which so frequently arises is, what degree 
 of care is a bailee bound to take of the property bailed to him? 
 This question cannot be determined with entire precision ; though 
 the law recognizes three kinds or degrees of care as standards: 
 First, there is slight care, which is that degree of care which every 
 man of common sense, though very absent and inattentive, ap- 
 plies to his own affairs; Secondly, there is ordinary care, which 
 is that degree of care which every person of common and ordinary 
 prudence takes of his own concerns; and. Third, there is great 
 care, which is that degree of care that a man remarkably exact and 
 thoughtful gives to the securing of his own property. 
 
 That degree of care which the law requires measures the degree 
 of negligence which makes the bailee responsible for the loss of 
 the thing bailed, or for an injury done to it. There are three de- 
 grees of care, and three corresponding degrees of negligence. The 
 absence of slight care constitutes gross negligence; the absence 
 
350 BAILMENT. 
 
 of ordinary care constitutes ordinary negligence; and the absence 
 of great care constitutes slight negligence. Whenever a thing 
 bailed has been injured or lost, the law relating to bailments de- 
 termines what degree of care the bailee was bound to exercise, 
 and of what degree of negligence, if any, he has been guilty. 
 
 Bailees are usually distributed into three general classes. The 
 first of these is, when the bailment is for the benefit of the bailor 
 alone. In this class but slight care is required of the bailee, and 
 he is not responsible except for gross negligence. The second is, 
 where the bailment is for the benefit of the bailee alone. In this 
 class the greatest care is required of the bailee, and he is respon- 
 sible for slight negligence. The third is, where the bailment is 
 for the benefit of both bailor and bailee. In this class, ordinary 
 care is required of the bailee, and he is responsible for ordinary 
 negligence. There are also bailees of whom the utmost possible 
 care is required, and who are responsible for the slightest possible 
 negligence; and there are also others who are responsible though 
 guilty of no negligence whatever. 
 
 There have been several different classifications of the kinds- 
 of bailments ; but the more usual mode is to classify them into 
 five sorts or classes. 
 
 First. Depositum or deposit, which is a simple deposit or de- 
 livery of goods to a bailee to be kept and returned by him without 
 any recompense. ^ 
 
 Second. Mandatum or gratuitous commission, by which the 
 mandatary or bailee receives goods or chattels, and agrees to do 
 some act about them, or to carry them without any reward. 
 
 Third. CoMMODATtTM Or gratuitous loan, as where a chattel ig 
 lent to a bailee for his use without compensation, and the identi- 
 cal chattel is to be returned. 
 
 Fourth. PiGNus or pledge, as where property or chattels are de- 
 livered or deposited as a collateral security for the payment of 
 a debt. 
 
 Fifth. LocATio or hiring, as where a contract is made for some 
 act to be done for a compensation. Contracts of hire are of sev- 
 eral kinds, and each branch will be noticed hereafter. 
 
 § 2. Depositum. 
 
 A deposit or simple bailment is a mere delivery or bailment of 
 goods or chattels in trust to be kept for the bailor by the bailee, 
 and redelivered on demand. It is of the very essence of a deposit 
 that it be gratuitous, for if anything is to be paid for the care and 
 
BAILMENT. 351 
 
 custody of the article, it immediately becomes a contract for the 
 letting and hiring of labor, and services and care to be employed 
 upon the chattel, and belongs to another class or kind of bailment 
 
 In the absence of an express agreement between the parties, 
 the nature of the bailment must be determined by the nature 
 of the thing bailed, and upon what is required to be done for its 
 preservation and safe-keeping. When passive custody in some 
 secure place of deposit is alone required, as in the case of most 
 bailments of inanimate chattels, the bailment is a naked deposit 
 or simple bailment, while, if work and labor, services and skill 
 are necessarily required for its preservation, as in the case of 
 bailments of living animals or perishable chattels, then the bail- 
 ment becomes a mandate. To constitute a deposit, the subject- 
 matter of the bailment must be either actually or constructively 
 delivered to the bailee, or it must be in his possession or under 
 his control at the time he undertakes the charge of it. A mere 
 promise to take charge of a thing, which has never, either actually 
 or constructively, come into possession of the promisor, cannot 
 of course constitute a deposit. But a delivery to a servant of the 
 promisor, or to a person whom he has appointed to receive the 
 chattel, and who has consented to hold it on his behalf, or any 
 acts on the part of the promisor manifesting a clear intention 
 to take charge of a thing which is not capable of a manual de- 
 livery, but which has been nlaced at the disposal and under the 
 control of the promisor, will constitute the latter a depositary in 
 contemplation of law. 
 
 It is to be remembered, however, that nothing but personal 
 chattels, or movable things which are capable of being delivered, 
 c^n be the subject of deposit or bailment of any kind. 
 
 If a creditor holding chattels in pledge, receives payment of 
 his debt, but continues to hold the articles pledged, he becomes 
 a depositary thereof for his former debtor. If a tradesman sells 
 any specific chattel, but neglects to deliver it, he becomes the 
 depositary of the purchaser. But a man cannot be made a de- 
 positary without his knowledge and consent; he cannot have the 
 possession of another man's property with its accompanying duties 
 and resposibilities forced upon him against his will. First Nat. 
 Bank V. Ocean Nat. Bank, 60 'S. T. 278, 285. Thus, if a trades- 
 man who is anxious to sell his wares and merchandise, sends them 
 to my house without any previous communication with me, and 
 without having obtained my previous consent, and they are taken 
 in by my servant and in my absence, or without my knowledge, 
 
352 BAILMENT. 
 
 I do not by reason thereof become the depositary of the goods 
 and clothe or charge myself with the care of them. Lethbridge v. 
 Phillips, 2 Stark. 544. A servant left in charge of my house has 
 authority to receive for me whatever I have directed to be sent 
 home, or to be delivered into my possession, but not things that 
 may be left by mistake, or without my sanction or authority. If 
 a man brings goods to a house without the warrant of the master, 
 under circumstances naturally leading to the conclusion that they 
 have been ordered to be left by the latter, this is a fraud upon the 
 servant who takes them in, and the acceptance of them under such 
 circumstances does not impose either upon the servant or the mas- 
 ter the duties and responsibilities of a depositary. 
 
 A depositary is, in general, bound to take the same care of 
 things accepted by him to keep, that he has ordinarily taken 
 of his property. He will be liable to make compensation to the 
 owner, if the goods are stolen, damaged or lost by reason of gross' 
 negligence in keeping of them, but he is not responsible for com- 
 mon neglect or ordinary casualties. Edson v. Weston, 7 Cow. 
 278. He is not answerable if the goods are stolen without any 
 fault on his part, nor will a common neglect make him liable ; 
 but to render him chargeable, he must be guilty of some gross 
 neglect. First Nat. Bank v. Ocean Nat. Banh, 60 IST. Y. 278; 
 OnderUrh v. Central Nat. Bank, 119 IST. Y. 263. Any willful 
 abuse of the thing deposited, or such a degree of neglect or want 
 of care as appears to be incompatible with ordinary good faith 
 between man and man, will amount to gross negligence. Thus, 
 if a man takes charge of money, and leaves it upon a shelf, or 
 in an open drawer in a place of public resort, when he might 
 have placed it under lock and key, this is a want of care incon- 
 sistent with good faith, and amounts consequently to gross negli- 
 gence. The nature and degree of care which ought to be exercised 
 in the selection of a safe place of deposit for a particular chattel 
 or article is usually regulated by the degree of danger of loss. A 
 man might leave a ton of coal or a load of hay, unguarded and 
 unwatched, on a public wharf, without any imputation of gross 
 negligence, or of any neglect at all ; but if he were to do the same 
 thing with a quantity of silks or other valuables, easily removable, 
 he would be guilty of gross neglect. The nature and value of the . 
 article is a necessary ingredient in the consideration of every ques- , 
 tion of negligence. First Nat. BanTc v. Ocean Nat. Bank, 60 
 N. Y. 278, 295. A man would not be expected to take the same 
 care of a box of ninepins as of a box of diamonds; of a bag of 
 
BAILMENT. 353 
 
 marbles as of a bag of eagles ; or the same care of a common sign 
 board as of a rare painting; what might be care and diligence in 
 keeping one thing would be gross negligence in the care and cus- 
 tody of another. So, too, what would be a proper degree of care 
 in a sparsely-peopled country place, might be culpable negligence 
 in a thickly-inhabited city. Doorman v. Jenkins, 2 Ad. & E. 256. 
 Whether there has been negligence in a given case, is a question 
 for a jury, whose finding will generally be conclusive. Ih. If a 
 package or a box, sealed or locked, be deposited, and the deposi- 
 tary is not made acquainted with the contents, he is bound only 
 to take that care of the article which its general appearance seems 
 to require ; and in case it should be lost or destroyed through gross 
 neglect, he will only be liable to the extent of the apparent value 
 of the article, without reference to the contents ; but if he is made 
 acquainted with the contents, as if he is told that the box contains 
 gold or jewels, glass or china of great value, he is then bound to 
 exercise a degree of care proportionate to the proper keeping of 
 such articles, and if he then exposes the box in unsafe places, or 
 subjects it to rough or improper treatment, and the contents are 
 damaged or destroyed, he must make compensation to the owner to 
 the full extent of the injury sustained. The degree of care which 
 a depositary is bound to take in the selection of a safe place of 
 deposit, is that degree of care which he has been in the habit of 
 extending to his own property. 
 
 It has been thought by some, that if the depositary loses his 
 own goods at the same time that he loses the deposit, he would 
 not be answerable, because he has taken as much care of the 
 latter as of his own property. The question of liability, how- 
 ever, is not to be determined by what the depositary may have 
 done in the particular instance, but by his general habits and 
 character, his mode of life, and the degree of care he has ordina- 
 rily bestowed upon his own property. If he has been guilty of 
 gross neglect, he cannot excuse himself from liability by showing 
 that he has lost his own goods at the same time that he lost his 
 neighbor's. Pattison v. Syracuse Nat. Bank, 80 N. T. 82 ; Onder- 
 hirTe v. Central Nat. Bank, 119 N. Y. 263, 2Y1. Thus, where 
 a coffee-house keeper took charge of a sum of money, and put it 
 with a larger sum of money of his own into his cash box, which 
 he left in the public tap-room of his coffee-house, from whence it 
 was stolen, it was held that the circumstance of his having lost his 
 own money, together with the deposit, would not exculpate him 
 from the charge of gross negligence. Doorman v. Jenkins, 2 Ad. 
 23 
 
354 BAILMENT. 
 
 & E. 256, 258. The law, however, expects the depositor to exer- 
 cise a reasonable amount of vigilance in the protection of his own 
 interests, and if he will hlindly and without making previous in- 
 quiry deposit goods in the hands of a person of weak intellect, 
 or a child, or a minor, without experience, or a notoriously idle 
 and careless, or drunken fellow, he cannot expect the same care 
 from them as from a prudent and cautious housekeeper; and if 
 the goods are injured or lost by the gross negligence of such de- 
 positaries, he must bear the consequence of his own rashness and 
 folly, and put up with the loss. Having been guilty of gross negli- 
 gence in the first instance, by intrusting property to a person of 
 whom he knew nothing, and into whose previous habits and char- 
 acter he did not trouble himself to inquire, he has no groimd, 
 either in the court of conscience or in point of law, to charge the 
 bailee with the loss. If a depositary is guilty of a breach of trust 
 and wastes or sells the deposit, the depositor may maintain an 
 action of trover against the purchaser for the recovery of the value 
 of the deposit, if the latter refuses to surrender it on a proper 
 demand. Cooper v. Willomatt, 1 C. B. 672 ; Fenn v. Bittleston, 7 
 Exch. 159 ; White v. Spettigue, 13 Mees. & Wels. 603. 
 
 If goods are bailed by A. to B., to be kept by the latter, and 
 B. bails them to C, who uses and wastes the goods, C. is liable 
 to an action, at the suit of A., for the recovery of compensation 
 for the damage sustained. Loeschman v. MacMn, 2 Stark. 311. 
 A depositary has no right, as a general rule, to make use of the 
 deposit for his own benefit and advantage ; if he does so, and the 
 thing is lost or injured, or deteriorated in value through such 
 use, the depositary must make good the loss. If, however, the 
 subject-matter of the bailment be a living animal, such as a hound 
 or a horse, which requires air or exercise, the bailee has an im- 
 plied authority from the owner to use it to a reasonable extent; 
 and is under an implied engagement to give it proper air and 
 exercise. 
 
 If a sum of money is bailed by one man to another, under cir- 
 cumstances fairly leading to the presumption that the bailee had 
 authority from the bailor to use it or not as he may think fit, the 
 bailee will stand in the position of a mere depositary, or he will 
 be clothed with the increased duties and liabilities of a borrower, 
 according as he may or may not have thought fit to avail himself 
 of the privilege of user impliedly accorded to him. If he puts 
 the money into a coffer or bag, and refrains from using it, and 
 so preserves its identity, with the intention of restoring the identi- 
 
BAILMENT. 355 
 
 cal articles to the bailor, he undertakes the duty of a mere de- 
 positary, and he is bound to take the same care only of the de- 
 posit that he was in the habit of bestowing upon his own money, 
 and he would not be responsible for loss by robbery, fire, or any 
 other casualty. But if he were to mix the sum deposited with 
 his own money with the intention of restoring an equivalent, and 
 so destroy the identity and individuality of the subject-matter 
 of the bailment, this would be a user of the money which would 
 at once alter the nature and character of the bailment, convert- 
 ing it into a loan for use and consumption with its increased 
 duties and responsibilities. Matter of Stafford^ 11 Barb. 353. 
 
 A sheriff or a constable who levies upon goods, must use due 
 diligence in keeping them safely to satisfy the execution. But 
 he is not, like a common carrier, an insurer, nor is he liable for a 
 loss of the goods by fire, if he has exercised proper care in rela- 
 tion to the custody of the property. Moore v. Westervelt, 21 'N. Y. 
 234. When such an officer has levied upon and taken possession 
 of personal property, and he delivers it to a third person, who 
 gives a receipt therefor, which promises to return the property 
 when called for, the receiptor assumes the liability of a mere 
 naked bailee, and he is bound to produce the property on demand 
 at the place specified in the receipt. Until a proper demand is 
 made, no action will lie, because a demand is made a part of the 
 contract. Brown v. CooJc, 9 Johns. 361. The receiptor is a mere 
 depositary, and he is liable for gross negligence only, because he 
 gives nothing for the use of the property, and he receives nothing 
 for taking care of it. Edson v. Weston, 7 Cow. 2*78. A deposi- 
 tary is bound to deliver up the deposit to the true owner, although 
 the latter may be an entire stranger to him. And where a chaise 
 was bailed to a workman to be painted, and the latter deposited it 
 in the hands of a party who refused to deliver it up to the owner 
 unless the latter either produced the person who deposited the 
 chaise in his hands or an order from him for its delivery, it was 
 held that the ovmer was entitled to the possession of his property 
 without doing either. Baxter v. Baughan, 6 Oarr. & Payne, 674. 
 This case, however, carries the rule rather beyond our decisions, 
 for trover will not lie for a refusal to deliver property to a stranger, I 
 until there is a reasonable time given to examine whether the | 
 claimant is its owner. See Ball v. Liney, 48 N. T. 6 ; McEntee 
 V. New Jersey Steamboat Co., 45 'N. T. 34. 
 
 If the deposit has been made by two persons jointly, it cannot 
 be revoked, and the thing deposited be demanded back by one 
 
356 BAILMENT. 
 
 of them alone. And, if property is deposited by several deposit- 
 ors, neither of them can legally demand a return of the property 
 without the authority of all the depositors. If some of the de- 
 positors ask the bailee to return the property, and the others 
 desire him to keep it, the bailee is not liable to an action at the 
 suit of those who require him to return it. Atwood v. Ernest, 13 
 C. B. (4 J. Scott), 881. 
 
 But when the deposit is not a joint deposit founded on a joint 
 contract, but is made by one of several joint owners, the depositor 
 may sue alone, and whenever several joint owners allow one of 
 their number to deal with their property, and place it in the hands 
 of a bailee, the latter is accountable to the owner with whom he 
 deals. Walshe v. Provan, 8 Exch. 852 ; Broadbent v. Ledward, 
 11 Ad. & E. 211. 
 
 When there are no adverse claimants, the depositary is bound 
 to return the deposit on demand, and if he neglects or refuses to 
 do so, he is responsible for the subsequent loss or destruction of 
 the article, and for all injuries that may afterwards happen to it 
 by whatever means occasioned. He must restore it, moreover, 
 with all its increase and profits. Thus, he who has taken charge 
 of a flock of sheep, must restore the wool shorn from their backs 
 and the lambs they have produced, together with the sheep them- 
 selves, and if the profits, produce and increase, are of a perish- 
 able nature, such as milk, eggs and butter, and have been neces- 
 sarily sold, the proceeds of the sale must be paid to the depositor. 
 The depositary, moreover, cannot be called upon to deliver up 
 the accessory without the principal. If the depositor turns out to 
 be a thief and to have stolen the things deposited, and the true 
 owner appears, the depositary must restore them to the latter. 
 And when the true owner of the property reclaims it, or if the 
 property is taken by virtiie of legal process issued against the 
 depositor, this will excuse the depositary for his omission to re- 
 turn it. Edson v. Weston, 7 Cow. 278 ; Bliven v. Hudson Biver 
 B. B., 35 Barb. 188. In such a case the bailee must assure him- 
 self, and show to the court that the proceedings are regular and 
 valid, but he is not bound to litigate for his bailor, or to show 
 that the judgment or decision of the tribunal issuing the process 
 or seizing the goods, was correct in law or in fact. Ih. 
 
 If the goods are delivered under a written contract, which pro- 
 vides that they shall be returned at a particular place, the bailor 
 cannot sue and recover for them until he has properly demanded 
 them according to the terms of the contract, nor can he require 
 
BAILMENT. 357 
 
 their delivery at any other place than that specified. If no place 
 is specified for their delivery, they are deliverable at the place of 
 deposit, and the bailee cannot be required to produce them at any 
 other place, unless he has voluntarily stipulated to do so. Brown 
 v. Cook, 9 Johns. 361. So when a bailee is bound to deliver 
 goods on demand, he discharges his obligation by delivering or 
 tendering them where they are, or at his own residence or place 
 of business. Slingerland v. Morse, 8 Johns. 474. But the de- 
 mand of the depositor may be made at another place than that 
 specified as the place of delivery, and if the depositary denies 
 the owner's right to the property, he will be liable to an action. 
 Dunla-p V. Hunting, 2 Denio, 643. 
 
 § 3. Mandatum. 
 
 If the bailee or depositary expressly or impliedly undertakes 
 to do something more than merely to assume the passive custody 
 of the thing bailed, the bailment advances from a mere naked 
 deposit or simple bailment to a mandate, and the bailee becomes 
 clothed with the duties and the implied engagements of a manda- 
 tary, in addition to those of a mere depositary for taking care and 
 custody. If money is bailed to a man upon the faith of a promise 
 made by him to take and deliver it to a banker, or to invest it in 
 the public funds, or lay it out in the purchase of lands, this is an 
 express mandate. An implied mandate arises when the bailee 
 takes charge of living animals or perishable chattels, for whose 
 preservation and safe keeping a certain amount of work and labor, 
 skill and attention is necessarily requisite, and which the bailee, 
 by accepting the trust, impliedly undertakes to furnish. It is 
 essential to the existence of a mandate that it be gratuitous, for if 
 anything is to be paid for what is expressly or impliedly agreed 
 to be done, the contract immediately becomes a contract of letting 
 and hiring of skill and labor, to be exercised and performed upon 
 the thing bailed. 
 
 In the common law the term mandate is generally restricted to 
 express or implied promises, made on bailments of chattels, that 
 something shall be done with them gratuitously for the benefit of 
 the bailor. 
 
 The bailor who makes the request and gives the directions as 
 to the disposal of the chattel is called the mandator, and the 
 bailee who receives the chattel upon the terms, express or implied, 
 and assents to the directions, and undertakes the trust to be per- 
 formed, is called the mandatary. So long as there has been no 
 
358 BAILMENT. 
 
 actual bailment by the delivery and acceptance of the chattel, 
 there is no binding contract of mandate. A promise to do some- 
 thing with a thing that has never been put into the actual or 
 constructive possession of the promisor is a mere nudum pactum, 
 which may be revoked; but when the bailment has been made 
 upon the faith of the promise, and the promisor has obtained pos- 
 session of the chattel in execution of the mandate, the contract 
 is complete, and he is bound faithfully to discharge the trust he 
 has undertaken. 
 
 It has been said, in reference to gratuitous undertakings to 
 perform work, that if the promisor does not proceed with the 
 work, no action will lie against him for the nonfeasance; but if 
 he proceeds on the employment, he makes himself liable for any 
 misfeasance in the course of that work. But where a man prom- 
 ises to perform work upon the chattel of another, or to do some- 
 thing with it, and the chattel is bailed to him for the purpose 
 expressed, his acceptance of the possession of the chattel in exe- 
 cution of his engagement is an entering on the work and employ- 
 ment, and if, after having accepted such possession, and having 
 taken the chattel away with him, he neglects to do that which 
 he promised to perform, this neglect is a misfeasance for which 
 he will be held responsible. The common law leaves him to act 
 or not to act, as he may think fit; he may, therefore, refuse to 
 accept the chattel when it is tendered to him, and no action can 
 be maintained against him for so doing. But if he takes it and 
 carries it away, he then acts, he has commenced the work, and 
 he is responsible for any subsequent misfeasance. Coggs v. 
 Bernard, 2 Ld. Kaym. 919, 920; Elsee v. Gatward, 5 Term E. 
 149; Balfe v. West, 13 C. B. (4 J. Sbott), 466; Shillibeer v. 
 Glyn, 2 Mees. & Wels. 143 ; Whitehead v. Greetham, 2 Bing. 464. 
 He may indeed revoke his promise and return the chattel, if he 
 -does it without delay, and before his acceptance of the trust and 
 the omission to perform it have occasioned loss or damage to the 
 mandator, but he cannot lawfully withdraw such promise, and 
 refuse to execute the trust, if the revocation will place the man- 
 dator in a worse position than he was in at the time the mandate 
 was accepted and the promise made. When a sum of money was 
 bailed to a party upon the faith of an undertaking made by him 
 to cause the sum to be paid to the bailor or his order at a distant 
 place, it was held that the bailment of the money was a sufficient 
 ■consideration for the undertaking, and that the mandatary was 
 responsible for the nonfulfillment of his engagement. Shillibeer 
 
BAILMENT. 359 
 
 V. Glyiij 2 Mees. & Wels. 143. So, where certain iron boilers 
 were delivered to a man upon the faith of an undertaking made 
 by him to weigh them gratuitously and return them to the bailor 
 in as perfect and complete a condition as they were in at the 
 time of making the bailment and the promise, and the mandatary 
 took the boilers to pieces in order to weigh them, but refused to 
 put them together again ; it was held that he was responsible for 
 his breach of contract, and that he must make good the damage 
 which had been sustained by the mandator. Bfdnbridge v. Firm- 
 stone, 8 Ad. & E. 743. 
 
 As regards the mere custody of the thing bailed to him, the 
 mandatary stands in the position and is clothed only with the ordi- 
 nary liabilities of a naked depositary. Beardslee v. Richwrdson, 
 11 Wend. 25. A bailee who has undertaken gratuitously to con- 
 vey money or goods from one place to another, and has entered 
 upon the trust by accepting possession of the money or the goods, 
 is bound to exercise the same care and diligence in the execution 
 of the task, that a person of ordinary care and prudence might 
 be expected to exercise in the conveyance of his own property. 
 Ih. If by negligence and mismanagement in the accomplishment 
 of his undertaking, the money or the goods are lost or stolen, 
 injured or spoiled, he will be responsible for the loss. Ih. But he 
 is not responsible for the loss of the money if he is forcibly robbed 
 without any default on his part. Walker v. British Guarantee 
 Association, 18 Ad. & Ell. N. S. 277. Where a man undertook 
 to remove several hogsheads of brandy from one cellar to another, 
 and there lay them down safely, and in the course of the removal 
 one of the casks was staved and the brandy spilt through negli- 
 gence and want of care, it was held that he was responsible for 
 the loss, although it did not appear that he was to have anything 
 for his pains. " It is objected," observes Holt, Ch. J., in his 
 celebrated judgment in that case, " that there is no consideration 
 to ground this promise upon, and, therefore, the undertaking is 
 but a nudum pactum. But to this I answer, that the owners trust- 
 ing him with the goods is a sufBcient consideration to oblige him to 
 a careful management. Indeed if the agreement had been exec- 
 utory to carry those brandies from one place to the other on 
 such a day, the defendant had not been bound to carry them. 
 But this is a different case, for assumpsit does not only signify 
 a future agreement, but in such a case as this, signifies an actual 
 entry upon the thing and taking the trust upon himself. And if a 
 man will do that, and miscarries in the performance of his trust, 
 
360 bailme:>tt. 
 
 an action will lie against Him for that, though nobody could have 
 compelled him to do the thing." Coggs v. Bernard, 2 Ld. Raym. 
 919. When a bailee has undertaken to carry money or goods and 
 chattels gratuitously to a distant part, it is no answer to an action 
 brought against him for a breach of his engagement, to say that he 
 lost the articles in a brothel or a lodging-house, or by the way- 
 side, without giving any satisfactory or excusable account of the 
 loss. The loss itself unexplained, affords the strongest pre- 
 sumption of negligence, and the mandatary must rebut this 
 presumption by showing that he was forcibly robbed, or that the 
 property was stolen without any gross neglect or willful default 
 on his part, or that his vehicle broke down or was overturned, 
 and that the articles were lost during the hurry, confusion and 
 fright of an undoubted accident. Beardslee v. Richardson, 11 
 Wend. 25 ; Parry v. Boherts, 3 Ad. & Ell. 120 ; Doorman v. Jen- 
 Mns, 2 Ad. & Ell. 256. 
 
 If a chattel is bailed to a workman or artificer in some par- 
 ticular art, craft or profession, upon the faith of' an undertaking 
 by the bailee to mend, repair, or improve it gratuitously for the 
 benefit of the mandator, the mandatary must complete the work 
 within a reasonable period, and must be especially mindful that 
 the article is not injured in his hands during the performance of 
 his work through a want of that knowledge and skill which every 
 workman and artificer in that particular art or craft is bound to 
 possess. The situation and prpfession of the artisan in such a 
 case naturally imply that he is possessed of competent skill and 
 he is responsible for injuries resulting from his neglect to use it, 
 whether he is or is not to be paid for his labor and pains. The 
 foundation of this increased liability is the increased confidence 
 reposed in him, which induced the mandator to trust him with 
 the chattels when he would not have trusted them to an unskillful 
 person. But if a person known to be unskilled in the particular 
 work or employment he gratuitously undertakes, does the work, at 
 the solicitation of a friend, with such ability as he possesses, he 
 stands excused, although it is tmskillfuUy done ; for it is the 
 mandator's own folly to trust him, and the party engages for no 
 more than a reasonable exertion of his capacity. 
 
 If money is bailed to a man upon the faith of a promise or 
 assurance made by him to place it out at interest or purchase an 
 annuity with it for the benefit of the bailor, the mandatary who 
 accepts the money and enters upon the execution of the trust 
 impliedly promises to use due and sufficient care in the fulfill- 
 
BAILMENT. 361 
 
 ment of his undertaking, and if the money is lost by his miscar- 
 riage and neglect to exercise common and ordinary care in the 
 selection of a safe investment, an action will lie against him for 
 the loss. Whitehead v. Oreetham, 2 Bing. 464. 
 
 But if the depositary does not exercise any trade or profession 
 which denotes or implies that he has skill in money matters, and 
 that he has more than ordinary knowledge of investments and 
 securities for money, he is not responsible for the exercise of more 
 than ordinary care and caution, and he is not liable for the failure 
 of the investments, if he has used such skill and knowledge as he 
 possessed, and has acted with uprightness and honesty of purpose 
 in the transaction of the business confided to him. 
 
 But an attorney, whose profession and employment naturally 
 leads him to have some knowledge of security for money and pecu- 
 niary investments, is responsible for the exercise of a reasonable 
 amount of professional knowledge and skill in the selection of 
 a safe investment, although he acts gratviitously, making no charge 
 and receiving nothing from the owner of the money for his 
 services. His office, profession, and employment imply skill and 
 invite confidence, and an omission to use that skill, or an absence 
 of its possession, is imputable to him as gross negligence. Shiells 
 V. JBlackburne, 1 H. Bla. 159 ; Moore v. Mourgue, Cowp. 479. 
 
 If the subject-matter of the bailment consists of living animals, 
 such as horses, oxen, or sheep, the mandatary is bound to furnish 
 them with suitable food and nourishment, to give them a proper 
 and reasonable amount of exercise and fresh air, and generally 
 to provide them with all such things as are essential to the 
 preservation of their health, and his neglect so to do will amount 
 to a positive fraud and breach of trust. If a man takes charge of 
 cattle or sheep, and afterwards takes no heed of them, but lets 
 them stray away on a common, and get drowned or lost, this is a 
 breach of trust, and he is responsible for the loss. So if he gra- 
 tuitously takes charge of a horse, and he then turns it out after 
 dark into a dangerous pasture, and the horse falls into a pit or a 
 well, or into the shaft of a mine, this is a gross neglect and breach 
 of trust, and he is responsible for the loss. If he places a horse 
 in a pasture surrounded by rotten and very defective fences, and 
 the horse, by reason thereof, strays away and is lost, this also is a 
 breach of trust, for which he shall be answerable, but if the horse 
 is a wild ungovernable animal and gets away through its own 
 recklessness and impatience of restraint as much as by reason of 
 the defective fences, the bailor will not be responsible for the loss. 
 
362 BAILMENT. 
 
 Where a lady enters a store for the purpose of purchasing a 
 cloak, removes the one she is wearing for the purpose of trying on 
 another, and lays it down on a counter before a clerk in attendance 
 there, no place being provided for the keeping of garments in such 
 cases and no directions being given her by anyone in attendance, 
 if the garment is lost or stolen the proprietor of the store must 
 make good the loss. The owner of the place of business is under 
 an implied contract in such case to exercise some care in the safe 
 keeping of the property of his customer, and in the absence of any 
 care, is liable for the loss resulting therefrom. Bunnell v. Stern, 
 122 ISr. Y. 539. So the keeper of a restaurant in whose custody 
 wraps and other wearing apparel have been temporarily left for 
 safe keeping is liable as a bailee. Buttman v. Dennett, 9 Misc. 
 462. So the proprietor of a bathing establishment who receives 
 pay from a customer becomes the custodian of the clothing which 
 the customer has left in the disrobing-room while bathing, and is 
 liable for any loss or theft which he could have prevented by the 
 exercise of due care. Bird v. Everard, 4 Misc. 104. On the other 
 hand it was held that where the occupant of a box at a theater 
 hung his overcoat on a hook in the rear of the box provided for 
 that purpose, the manager of the theater was not liable for the 
 loss of the coat by theft, in the absence of proof of negligence or 
 misconduct of his employees. Pattison v. Hammerstein, 17 Misc. 
 375. 
 
 What is, and what is not, gross negligence, amounting to a 
 breach of trust is often a mixed question of law and fact, but 
 more generally a pure question of fact, to be determined by a 
 jury. It must be judged of by the actual state of society, the 
 general usages of life and the damages peculiar to the times as 
 well as by the apparent nature and value of the subject-matter of 
 the bailment and the degree of care it seems to require. It is im- 
 possible to lay down any exact rule which will be applicable to all 
 times and all circumstances, for the same acts which in one country 
 or in one age may be deemed negligent acts, may at another time 
 or in another country be justly deemed an exercise of ordinary 
 diligence. 
 
 A mandatary who undertakes an office of skill, is bound to 
 exercise such an amount of skill as he actually possesses, or such 
 an amount of skill as, by his conduct and actions and ordinary 
 course of employment, he holds himself out to the world to pos- 
 sess. Thus, where a man who was proved to be conversant with 
 horses, and skilled in their use, was commissioned to ride a horse 
 
BAILMENT. 363 
 
 to a neighboring village for the purpose of showing it for sale, 
 and on his arrival he rode the horse into a race ground, which 
 was wet and slippery, where the horse slipped and fell several 
 times, and at last fell and broke one of its knees, it was held, 
 that the bailee had been guilty of a culpable neglect and breach 
 of trust, and was answerable for the damage. Wilson v. Brett, 11 
 Mees. & Wels. 113; Carpenter v. Branch, 13 Yerm. 161. If a 
 farrier, physician or surgeon, undertakes to treat a living animal 
 or a patient for some injury or disease gratuitously, he is, never- 
 theless, bound to exercise the ordinary knowledge and skill of his 
 art or profession in the course of his treatment, and he will be 
 responsible for injuries or damages resulting from his neglect 
 to do so. 
 
 If the subject-matter of the bailment is a perishable commodity, 
 the bailee is bound to bestow such an amount of labor and vigi- 
 lance for its preseryation as would ordinarily be bestowed by a 
 prudent owner. If the mandatary of a valuable painting takes 
 no heed for its preservation, but lets it lie on the damp ground, 
 or places it in a kitchen, or against a damp wall in a room where 
 there is no fire, when he might have placed it in a dry situation 
 and in perfect security, this is an act of gross negligence, and if 
 the picture is seriously injured, from damp and dirt, he must 
 make good the loss, unless he can show that the mandators knew 
 where it was placed, and assented to its being kept there. Mytton 
 v. CocJc, 2 Strange, 1099. 
 
 § 4. Commodatuin or Gratuitous Loan. 
 
 If the bailee is to have the use and enjoyment of the subject- 
 matter of the bailment for his own benefit and advantage, with- 
 out payment of hire or reward to the bailor, then the bailment 
 becomes a gratuitous loan, and the bailee is clothed with the 
 duties, responsibilities and implied engagements of a borrower 
 for use in addition to those of a mere depositary and mandatary. 
 
 There are in the civil law two kinds of gratuitous loans, the 
 one called a mutuum, which is a loan for use and consumption, 
 because the thing is bailed to be consumed, and an equivalent in 
 kind is to be subsequently returned or given ; the other is called 
 a commodatum, which is a loan of a specific chattel which is to be 
 used by the bailee and the identical article is then to be returned. 
 In the loan by way of mutuum, the bailor is called the creditor 
 by reason of the credit given by him to the promise of the bailee, 
 and the latter is called the debtor because he owes an equivalent 
 
364 BAILMENT. 
 
 which is to be paid back. In the loan, by way of commodatum 
 the parties are known in law by the ordinary appellation o£ 
 borrower and lender. In the former, the borrower is obliged to 
 return the same individual thing with which he had been accom- 
 modated for the temporary supply of his wants; in the latter, it 
 is destined for his iise and consumption and he discharges this 
 mutual engagement by substituting the same specific value ac- 
 cording to a just estimation of number, of weight, and of meas- 
 ure. If com or potatoes, wine or brandy, coal or oil, be bor- 
 rowed, they are borrowed to be consumed, the corn being eaten, 
 the wine drank, and the coal or oil burned and consumed ; a loan 
 of this description, therefore, is necessarily a mutuum, for the 
 identical thing lent cannot be returned, but an equivalent in kind 
 must be rendered back. If the money is lent to be used, the money 
 is necessarily mixed with other coin of a similar denomination or 
 nature; it passes into other hands; its identity and individuality 
 are destroyed or rendered impracticable, and the specific pieces 
 of coin cannot be rendered back. A loan of money, therefore, 
 is a mutuum, the borrower being bound to restore, not the iden- 
 tical money lent, but an equivalent in the shape of money of the 
 same denomination and value. But if a horse or a book be lent 
 for use, the identity and individuality of the chattel are not 
 destroyed or in any way affected by the use ; the same horse and 
 the same book remain, though the one may have been ridden, 
 and the other read, the loan, therefore, is a commodatum, ; and the 
 borrower does not fulfill his engagement by rendering an equiva- 
 lent in the shape of a different horse, or a different book of equal 
 value, but is bound to return the identical thing lent. It is of 
 the very essence of a commodatum that the subject-matter of the 
 bailment be granted to be used free of reward, for if anything 
 be paid for the use of the chattel, the contract is a contract of 
 letting and hiring, and belongs to another class of bailments. 
 In a bailment by way of mutuum, the chattel bailed becomes the 
 absolute property of the bailee to do what he pleases with it, and 
 to use it in any way that he thinks fit ; but in a bailment by way 
 of comm^odatum,, the temporary right of possession and user only 
 are transferred, the right of property remaining in the lender, 
 and the borrower, consequently, is obliged to render back the 
 identical thing lent in as good a condition as it was in when bor- 
 rowed, subject only to the deterioration resulting from inherent 
 defects, or produced by ordinary wear and tear, and the reason- 
 able use of it for the purpose for which it was known to be- 
 
BAILMENT. 365 
 
 required. The law requires the utmost good faith on the part 
 of a borrower, and it makes him responsible for the slightest 
 breach of trust. He is bound to the strictest care and diligence 
 to keep the goods in such a manner as to restore them back to 
 the lender, because a-s bailee he has a benefit from the use of them ; 
 and if the bailee is guilty of the least neglect he will be answer- 
 able, as if a man should lend a horse to go a journey to the west- 
 ward, and the bailee should go on a journey to the northward, in 
 such a ease, if any accident happens to the horse on the journey 
 northward the bailee will be responsible, because he made use of 
 the horse contrary to the triist under which he was lent; and 
 it may be that if the horse had not been used otherwise than as 
 he was lent, the accident would not have happened to him. Coggs 
 V. Bernard, 2 Ld. Rajin. 915. 
 
 A borrower is bound to use extraordinary diligence in the care 
 of the property loaned to him, and is responsible for the slightest 
 neglect. He must exercise all the care and diligence which the 
 most careful persons are accustomed to apply to their own affairs. 
 Scranton v. Baxter, 4 Sandf. 5, 8. The measure of care and dili- 
 gence to be exercised for the protection and preservation of a 
 thing bailed by way of commodatum, whilst it remains in the 
 possession of the borrower, is that amount of care, prudence, 
 and foresight, which the most vigilant and careful of men exer- 
 cise for the preservation and protection of their own property. 
 The foundation of this increased liability on the part of the bor- 
 rower, in comparison with the hirer of a chattel, is the increased 
 trust and confidence reposed in him. The lender himself derives 
 no benefit from the contract. In making the bailment he per- 
 forms a gratuitous act of kindness dictated by his confidence in 
 the bailee; the law, therefore, exacts from the latter a corre- 
 sponding return, and requires from him the greatest amount of 
 -care that is ever bestowed by the most cautious of men in the\ 
 protection and preservation of property of the description bailed. 
 The borrower cannot, of course, be made responsible for inevita- 
 l)le accidents, or casualties which could not have been foreseen, 
 and which no human prudence could have guarded against; but 
 if, by the exercise of proper forethought and care, he might have 
 saved the thing bailed to him from an accident which has occurred, 
 and he has not done so, his own neglect is the occasion of such 
 accident, and he is responsible therefor. If the borrower puts a 
 I)orrowed horse into a ruinous building which is likely to fall, and 
 the building is blown down during a tempest, and falls upon the 
 
3G6 BAILMEISTT. 
 
 horse and kills it, the borrower is responsible, for if the building- 
 had been strong, and in good repair, the disaster might not have 
 occurred; and it cannot, therefore, be taken as a chance but as 
 the default of him who had the horse delivered to him. But 
 if the building were strong, and by common presumption in no 
 danger of falling, but it fell notwithstanding by sudden tempest, 
 then it shall be taken as a chance, and he that had the horse in 
 keeping shall be discharged. If a horse is lent for an ordinary 
 ride along the high road, and the borrower takes the horse off 
 the high road and rides him into wet and slippery ground, and the 
 horse slips and breaks his knees, or is otherwise injured, the bor- 
 rower must make good the loss. If the borrower is a person 
 conversant with horses, he is bound to use such skill and care in 
 the riding of the horse, as a person conversant with horses may 
 reasonably be expected to use. If, therefore, he throws the horse 
 down and injures it by injudicious riding or unskillful horseman- 
 ship, he is answerable for the damage. It has been said that 
 every lender of a horse for riding impliedly bargains, at the time 
 he makes the loan, for the exercise on the part of the borrower 
 of competent skill in riding and the management of a horse, and 
 that if the horse receives any injury or damage from the want of 
 such skill, the borrower is responsible, as he ought to have con- 
 sidered his own capacity before taking upon himself the care and 
 management of the animal, and must be considered at the time 
 he sought the loan to have impliedly represented himself to be 
 skilled in riding. Wilson v. Brett, 11 Mees. & Wels. 115. 
 
 But if the bailor chooses, without making any previous inquiry, 
 to intrust a fiery and high-spirited horse to a stranger, of whose 
 skill in horsemanship he knows nothing, he has no right to expect 
 the management and dexterity of an experienced rider. Neither 
 if he lends valuable property to a notorious drunkard or a no- 
 toriously wild and reckless character, has he any right to expect 
 the care and attention of a very vigilant and painstaking person. 
 The loan of the use, moreover, is strictly personal to the borrower^ 
 founded on confidence in him, and does not in general warrant a 
 user by the servants of the latter. Bringloe v. Morrice, 1 Mod. 
 210. 
 
 In the case of a loan by way of mutuum, the borrower is bound 
 to restore, at the time agreed upon, or within a reasonable period 
 after request, an article of the same kind and quality as the one 
 originally lent to him. But an action will not lie until after a 
 demand, and when one manufacturer of ironware borrowed cer- 
 
BAILMENT. 367 
 
 tain articles of another manufacturer, upon an order in these 
 words, " Will you lend me until my furnace gets in blast, and let 
 me pay you in the same ware, the following articles," which were 
 named, it was held that no action would lie to recover the value 
 of the ware lent, until after a demand for a return of the articles 
 lent. Gilbert v. Manchester Iron Manuf. Co., 11 Wend. 625. 
 
 It is of the essence of a mutuum that a chattel of the same 
 character, description and quality as that of the one lent should 
 be given in return, for if by the agreement of the parties an article 
 of a different character is to be returned, the contract is not a 
 mutuum, but an exchange or sale. As the right of property in 
 the thing bailed is transferred to the bailee by a bailment by way 
 of mutuum, so also is the risk of loss. If, therefore, the bailee is 
 robbed before he reaches home, or the thing bailed is destroyed 
 by wreck, fire or inevitable accident before it can be used, the 
 bailee must, nevertheless, pay the equivalent which he owes to 
 the bailor at the time appointed. 
 
 When the loan is made by way of commodaium, the borrower 
 must return the specific thing lent within a reasonable time after 
 request, and if he neglects or refuses to do so, he is responsible 
 for all accidents that afterwards happen to it. He has no right, 
 either by the civil or the common law, to detain the thing bor- 
 rowed for any antecedent debt due to him. The plain reason is 
 that it would be a departure from the tacit obligations of the con- 
 tract. No intention to give a lien for a debt can be implied from 
 the grant of a mere favor. Neither can the borrower set up a 
 right to detain the chattel for the payment of necessary expenses 
 incurred by him in keeping and preserving it. If the borrower 
 neglects to return the chattel after demand made, the owner may 
 maintain an action for the recovery of damages, and if it has 
 been wrongfully taken from the borrower by a sheriff or constable 
 under an execution, or by any other party, the owner may fol- 
 low it, and may, after demand, maintain an action against the 
 party who is in possession, and who refuses to deliver it up. Tur- 
 ner v. Ford, 15 Mees. & Wels. 212. 
 
 In ordinary cases of deposits of money with bankers, the trans- 
 action amounts to a mutuum or loan for use and consumption, it 
 being understood that the banker is to have the use of the money 
 in return for his consent to take charge of it. The customer does 
 not bail the money to be kept with reasonable diligence and to 
 have the identical money returned. But the customer lends the 
 money to the banker, and the banker promises to repay that money, 
 
368 BAILMENT. 
 
 and while indebted to pay the whole or any part of the debt to 
 any person to whom his creditor, the customer, in the ordinary 
 way requires him to pay it. Alderson B. Bobarts v. Tucker, 16 
 Ad. & E. ]Sr. S. 575 ; Pott v. Clegg, 16 Mees. & Wels. 321. There 
 is no fiduciary character existing on the part of a banker towards 
 his customer. Money paid into a bank ceases altogether to be 
 the money of the depositor ; it is then the money of the banker, 
 who is bound to return an equivalent by paying a sum similar to 
 that deposited with him when he is asked for it or ordered to pay 
 it. It is the banker's money; he deals with it as his own; he 
 makes what profit he can of it, which profit he retains to himself, 
 paying back only the principal sum, according to the custom of 
 bankers in some places, or the principal and a small rate of in- 
 terest, according to the custom of bankers in other places. The 
 money, therefore, being his own, he is not guilty of any breach 
 of trust in employing it. He is not answerable to his principal 
 if he puts it in jeopardy by engaging in hazardous speculations, 
 but he is of course answerable for an equivalent amount to be 
 paid to his customer when demanded. 
 
 It is the duty of the banker to pay the debt due to the cus- 
 tomer pursuant to the order, check or draft of the latter. The cus- 
 tomer may order the debt to be paid to himself or anybody else, 
 or he may order it to be carried over or transferred from his own 
 account to the account of any other person he pleases. He may 
 do so by written instrument or verbal direction, but the banker 
 is entitled to require some written evidence of the order for the 
 transfer. Watts v. Christie, 11 Beav. 546. The banker is bound 
 by law to honor the checks and drafts of his customers, provided 
 they are presented within banking hours, and he has in his hands 
 sufiicient funds for the purpose belonging to the customer, and if 
 he refuses he is liable to an action by the customer, for substan- 
 tial damages without proof of actual damages, for it is a discredit 
 to the customer to have his check refused payment. Marzetti v. 
 Williams, 1 Barn. & Ad. 415 ; Rolin v. Steward, 14 C. B. 595 ; 
 Boyd V. Emmerson, 2 Ad. & E. 184, 202 ; Whitaker v. Bank of 
 England, 1 Cromp., Mees. & Eos. 744. 
 
 § 5. Pledges or Pawns. 
 
 The distinction between a pledge and a chattel mortgage has 
 been pointed out in the chapter upon chattel mortgages. A con- 
 tract of pledge is a bailment or delivery of goods or chattels by 
 one man to another, to be held as a security for the payment of 
 
BAILMENT. 369 
 
 a debt or the performance of an engagement, and upon the ex- 
 press or implied understanding that the thing deposited is to be 
 restored as soon as the debt is discharged or the engagement has 
 been fulfilled. 
 
 The thing deposited is called a pawn or pledge ; the party mak- 
 ing the deposit is the pawnor or pledgor, and the person who re- 
 ceives it into his possession is the pawnee or pledgee. 
 
 The contract is to be distinguished from the contract of hypothe- 
 cation, by the transfer of the possession or the actual tradition 
 or delivery of the thing intended to be charged to the creditor, 
 and from the contract of mortgage by the absence of a transfer 
 of the ownership or right of property thereof to the pawnee dur- 
 ing the continuance of the trust. A written memorandum of de- 
 posit or pledge, therefore, does not require a mortgage stamp, but 
 it will in general require an agreement stamp. Harris v. Birch, 
 9 Mees. & Wels. 593. If the thing intended to be burdened with 
 the debt or charge, remains in the possession, order and disposi- 
 tion of the owner, there is no pledge. By a pledge, therefore, of 
 goods and chattels, the right of possession is altered, but not the 
 right of property. The pavniee, during the continuance of the 
 contract, is the lawful possessor, and has a special property in 
 the chattel as a bailee, but the general right of property and 
 ownership still continue in the pawnor. Ratcliff v. Ddvies, Cro. 
 Jac. 244; Ryall v. RoTle, 1 Atk. 167. By the common law, all 
 kinds of goods and chattels, title deeds and securities of money, 
 ^omissory notes and bills of exchange, letters of allotment and 
 scrip, certificates of shares, and even money itself when marked 
 ■ov inclosed in a bag, purse or parcel, so as to be capable of identifi- 
 cation may be pledged. Isaach v. Clarh, 2 Bulst. 306; Ross v. 
 Moses, 1 C. B. 232 ; MarTcham v. Jaudon, 41 E". Y. 235, 241. 
 
 A mortgage of real property, together with the bond accompany- 
 ing it, may be pledged, because it is a mere security and chattel 
 interest, and it may, therefore, be pledged like other chattels and 
 things in action. Campbell v. Parker, 9 Bosw. 322. ISTo valid ; 
 pledge can be made to secure a debt for liquor sold on credit to be 
 drunk on the premises. Laws of 1896, ch. 112, § 32. 
 
 One man cannot, as a general rule, convey to another, a power 
 or right over property which he does not himself possess. If a 
 servant takes his master's jewels and pledges them, the pledge 
 cannot alter or affect the ownership of them, or give the pledgee 
 any right to detain them as against the owner. But if a man ob- 
 tains goods under color of a contract intended to transfer the 
 24 
 
370 BAILMEI^T. 
 
 property in the goods to him, and then pledges them, the pledgee 
 will have a lien upon the goods to the amount of his advances. 
 If, for example, a man purchases and obtains possession of a 
 specific chattel, and pays for it by a fictitious bill of exchange, 
 or by a check on a banker vyhere he has no funds, and then pledges 
 the article with a party who advances money upon it without any 
 knowledge of the fraud, the pledgee will have a lien for his ad- 
 vances against the vendor who has been defrauded; but if the 
 article has been stolen and then pledged, the pledgee will have 
 no lien upon it as against the owner. Parker v. Patrick, 5 Term 
 R. 175 ; White v. Garden, 10 C. B. 926 ; Malcom v. Loveridge, 
 13 Barb. 372 ; Kingsford v. Merry, 11 Exch. 577. If the pawnor 
 has only a limited interest in the subject-matter of the pledge, he 
 can only pawn to the extent of such interest, and when that ex- 
 pires, the pawnee must surrender the pledge to the party who 
 succeeds to the legal ownership. Therefore, where a quantity 
 of plate was settled upon a widow for life, and she went and 
 pawned it and then died, it was held that the pawaee had no right 
 to detain the pledge as against the remainderman, although he 
 had no notice of the widow's limited interest at the time he ad- 
 vanced the money. Hoare v. Parker, 2 Term B. 376. The right 
 of a factor to pledge or sell the goods of his principal has been 
 noticed elsewhere. Ante, p. 244. 
 
 One who is in possession of a chattel as a loan, but with the 
 privilege of purchasing, has no power to pledge the chattel with- 
 out the consent of the owner, and cannot by a pledge of the saj^ 
 confer any title on the pledgee as against the owner. La Fetra 
 V. Glover, 10 Misc. 70 ; Smith v. Clems, 114 IST. Y. 190. 
 
 Every person who pledges goods and chattels and personal prop- 
 erty, impliedly undertakes that the property pledged is his own, 
 and if it turns out not to be so, the pledgee may restore it to the 
 lawful owner and set up the right of such third person in answer 
 to an action by the pledgor for the recovery of the pledge. Ghees- 
 man V. Exall, 6 Exch. 341, 344. And see Bliven v. Hudson 
 River R. R., 35 Barb. 188. Every person, on the other hand, 
 who receives goods and chattels into his possession, by way of 
 pawn or pledge, impliedly undertakes to return them to the pavraor 
 as soon as the object of the pledge has been accomplished, unless 
 it is shown that the pledgor had no right to pledge them, and the 
 true owner has intervened and claimed them. If the pledge has 
 been i-eceived as a security for the due payment of a debt or the 
 performance of a contract, it must be returned by the pawnee as 
 
BAILMENT. 371' 
 
 soon as the debt is discharged, or the contract has been fulfilled, 
 unless it has been lost or destroyed by accident, without any de- 
 fault or misconduct, or want of proper care on the part of such 
 pawnee. A thing may be pledged for a certain period, or it may 
 be pledged indefinitely, no time being fixed for its redemption, 
 or for the happening of the event which is to give the pledgor a 
 right to have it back. In the first case, the pledgee cannot demand 
 payment of the debt, nor can the pledgor lawfully demand the res- 
 toration of the pledge until the time appointed has expired. In 
 the second case, the pledgor is entitled to redeem at any time, by 
 tendering to the pledgee the amotint due to him, and the pledgee 
 may compel the pledgor to redeem, or be foreclosed, and lose his 
 right of redemption altogether. Steams v. Marsh, 4 Denio, 22Y ; 
 Cortelyou v. Lansing, 2 Caine's Cas. 200. See WycJcojf v. Anr 
 thony, 90 K Y. 442. 
 
 If the debtor pays the debt due, or tenders it to the creditor, 
 and demands the pledge, and the creditor refuses to deliver it 
 up, the debtor may maintain an action of replevin or trover for 
 its recovery, unless his right to redeem has been barred by a 
 judgment of foreclosure, or has been forfeited under an express 
 clause of forfeiture inserted in the original contract, or the pledge 
 has been sold by the creditor pursuant to a power of sale reserved 
 to him. See Hope v. Lawrence, 1 Hun, 317. 
 
 Where personal property is specifically assigned as collateral, 
 or pledged for a particular debt or loan, in the absence of a spe- 
 ciatl agreement to that effect, it cannot be held by the assignee or 
 pledgee for any other debt or advance. Duncan v. Brennan, 83 
 ]Sr. Y. 487; C. N. Banh v. Bell, 125 IST. Y. 38; Armstrong v. Mc- 
 Lean, 153 ISr. Y. 490. Where securities are pledged to a banker 
 or broker for the payment of a particular loan or debt, he has no 
 lien upon such securities for a general balance, or for the payment 
 of other claims. In re Medewe's Trust, 26 Bea. 588 ; Yanderzee 
 V. Willis, 3 Bro. Ch. 21 ; Lane v. Bailey, 47 Barb. 395 ; Wychoff 
 V. Anthony, 90 N. Y. 442. If, in such a case, the pledgor tenders 
 the amount of the debt or loan for which the securities are pledged, 
 and demands the return of the securities, the pledgee, by refusing 
 to accept the tender or deliver the securities, claiming to hold them 
 as seciirity for another debt, will be liable for a conversion of the 
 securities. Wychof v, Anthony, 9 Daly, 417 ; 90 IST. Y. 442. 
 
 Where a mortgagor of chattels borrows money to buy in the 
 mortgage, and procures an assignment of it to the lender as a 
 security for repayment of the loan, the mortgage becomes, in the 
 
372 BAILMENT. 
 
 hands of the latter, a mere pledge for the security of the loan, and 
 upon a tender of the amount loaned, the lien of the pledgee is 
 discharged. Hashms v. Kelly, 1 Abb. N. S. 63. 
 
 Where chattels have been duly mortgaged to secure a debt, the 
 mortgagor cannot afterward pledge the property to a third person 
 in such a manner as to prejudice the mortgagee's rights. Bissell 
 V. Pearce, 28 K Y. 252. 
 
 The title to property pledged does not pass to the pledgee, even 
 after default on the part of the pledgor, but remains in the pledgor 
 until a sale upon notice or a judicial proceeding. Bowman v. 
 Hoffman, 47 St. Eep. 487 ; Marhham v. Jaudon, 41 IST. Y. 235 ; 
 Brownell v. Hawkins, 4 Barb. 491 ; Stearns v. Marsh, 4 Denio, 
 230. As the general ownership and right of property in the pledge 
 remain vested in the pledgor, the latter may sell the pledge subject 
 to the lien of the pledgee, and substitute the purchaser in his 
 place, so as to entitle him to redeem. Franklin v. Neate, 13 
 Mees. & Wels. 486. So, too, the interest of the pledgor is liable 
 to be taken and sold on execution, and the purchaser at such sale 
 will be entitled to redeem in the same manner that the pledgor 
 would, had no such sale taken place. 8tief v. Hart, 1 IST. Y. 20 ; 
 Bakewell v. Ellsworth, 6 Hill, 484. 
 
 It would appear to be an implied term of every contract of 
 pledge, that the thing deposited shall be made available for the 
 liquidation of the debt it was intended to secure, in case the 
 pledgor is unable or unwilling to pay such debt. The law will 
 Tiot condemn the pledge to remain useless in the hands of the 
 creditor or suffer it to perish, but will enable the latter, after due 
 notice given to the debtor, and every fair opportunity afforded 
 him to redeem, to sell the pledge and appropriate the proceeds 
 of the sale in liquidation and discharge of the debt, paying over 
 the surplus that may remain to the debtor ; or, if the value of the 
 pledge does not exceed the amount of the debt due upon it, and 
 the costs and expenses of a sale, to appropriate the pledge to his 
 own use, and hold it as his own property, discharged of all claim 
 of ovmership or right of redemption on the part of the debtor. In 
 order to make himself the owner of the pledge, the pledgee must 
 bar the pledgor's right to redemption by a decree of foreclosure, 
 •or by a sale after due notice to the pledgor. Wayne v. Hanham, 
 '9 Hare, 62. A mere right of lien gives no right to sell the goods, 
 but if it is reasonably to be inferred, from the nature of the trans- 
 raction between the parties, that the contract was to this effect: 
 ''' If I, the borrower and pledgor, repay the money, you, the lender 
 
BAILMENT. 37S 
 
 and pledgee, must re-deliver the goods, but if I fail to repay it, 
 you may use the security I have left in your hands to repay your- 
 self ; " the pledgee will then be entitled to sell, after notice to the 
 pledgor of his intention to sell, and satisfy the debt out of the 
 proceeds of such sale. Pothonier v. Dawson, Holt, 385 ; Smart 
 V. Bandars, 3 C. B. 401 ; 5 id. 915 ; Stearns v. Marsh, 4 Denio. 
 227. 
 
 If due notice is given to the pledgor that the pledge vi^ill be 
 sold at public auction, and the proceeds of the sale applied in 
 liquidation of the debt, unless the debt is paid and the pledge re- 
 deemed by a given day, which is a reasonable time for such re- 
 demption, and the pledgor neglects to redeem and pays no atten- 
 tion to the notice, and the sale then takes place in a fair and 
 public manner, the pledgor may fairly be deemed to have au- 
 thorised the sale, or to be an assenting party thereto, and if so, 
 he cannot afterwards charge the pledgee with a tortious conver- 
 sion of the property. Tucker v. Wilson, 1 Peere Wms. 260. 
 
 The contract of bailment, whereby personal property is depos- 
 ited or pledged as security for a debt, creates duties and relations 
 peculiar to itself. These duties and relations are governed more 
 by the general maxims of equity than by the strict rules of the 
 common law. Toplitz v. Bauer, 161 ]^. Y. 325. It has been said 
 that the pledgee occupies the position of a trustee for the owner, 
 to pay the debt first, and then the surplus over to the pledgor. He 
 is not permitted to deal with the trust property in such a way as 
 to destroy or impair its value. Oillet v. Bank of America, 160 
 IST. Y. 549, 560. Originally the property pledged could not be 
 disposed of without notice, and the pledgee was disabled from be- 
 coming the purchaser. See Bryan v. Baldwin, 52 'N. Y. 232, 235. 
 In recent times, the right of parties to enter into a contract pro- 
 viding for the sale or disposition of property pledged, without 
 notice, has been recognized, and the disability of the pledgee to 
 become the purchaser may now be removed by express stipulation. 
 Toplitz V. Bauer, 34 App. Div. 526; 161 K Y. 325; Franklin 
 Nat. Bank v. Newcomhe, 1 App. Div. 294. The parties to a 
 pledge may, by contract, provide for any manner of disposing of 
 a pledge to satisfy the claim secured by it, provided that the man- 
 ner agreed upon is neither in contravention of a statute, nor 
 fraudulent, nor against public policy. Baker v. Drake, 66 N. Y. 
 518 ; WTieeler v. Newbould, 19 E". Y. 392 ; Milliken v. Dehon,. 
 27 ISr. Y. 364; Stenton v. Jerome, 54 N. Y. 480. In the absence 
 of any agreement upon the subject, a pledgee of chattels or choses 
 
oT-i eail:\iext. 
 
 in action cannot sell the pledged property without due notice to 
 the pledgor of the time and place of sale ; and where such notice 
 has been given the sale must be public, and at the time and place 
 specified in the notice. Strong v. National Mechanics' Banking 
 Association, 45 K Y. T18 ; Qenet v. Rowland, 45 Barb. 560; 30 
 How. 360; Campbell v. Parker, 9 Bosw. 322; JaroslausJci v. San- 
 derson, 1 Daly, 232. Under ordinary circumstances, before the 
 collateral security can be resorted to, notice of sale is necessary. 
 The right to redeem the pledge at common law was one that could 
 be cut off in no other way. The effect of a default in payment of 
 the debt would give to the pledgee the right to sell, but the for- 
 feiture could not accrue without notice of sale. PatcJiin v. Pierce, 
 12 "Wend. 61 ; Bryan v. Baldivin, 52 IST. T. 232 ; Stearns v. Marsh, 
 4 Denio 227 ; Milliken v. Dehon, 10 Bosw. 325 ; Nelson v. Ed- 
 wards, 40 Barb. 284; Toplitz v. Bauer, 34 App. Div. 525. A 
 sale of the property without such notice is a conversion. But 
 if there is an agreement that the pledgee may sell the goods, chat- 
 tels or property pledged, without any notice of the time and place 
 of sale, such agreement will be valid and will justify the pledgee 
 in selling the property without such notice. Milliken v. Dehon, 
 27 N. Y. 364; Genet v. Howland, 45 Barb. 560; 30 How. 360. 
 A sale under such circumstances does not render the pledgee liable 
 as for a conversion of the property pledged. Williams v. United 
 States Trust Co., 133 N. Y. 660. Where the time for the pay- 
 ment of the debt secured by the pledge is expressly fixed by the 
 terms of the contract between the parties, the property pledged 
 may be sold without first demanding of the pledgor the payment 
 of the debt. Franklin National Bank v. Newcomhe, 1 App. Div. 
 294. But where no time is fixed for the redemption of the pledge, 
 or where the time has been fixed, but has been rendered indefinite 
 by a subsequent agreement of the parties, it is not competent for 
 the pledgee to sell the pledge without a proper demand and no- 
 tice. Pigot V. Cuhley, 15 0. B. CN. S.) 701; Wilson v. Little, 
 2 ]Sr. Y. 448 ; Toplitz v. Bauer, 34 App. Div. 526 ; Franklin Na- 
 tional Bank v. Newcomhe, 1 App. Div. 294; Genet v. Howland, 
 45 Barb. 560; 30 How. 360. A sale under such circumstances 
 without a demand is a conversion of the property pledged. The 
 inability of the pledgee to make a demand and give notice of the 
 time and place of sale will not entitle him sell without demand or 
 notice and without judicial proceedings. Strong v. Nat. Mer- 
 chants' Banking Assn., 45 'N. Y. 718. The pledgee, acting within 
 the terms of his contract, may enforce his legal rights in a legal 
 
BAILMENT. 3Y5 
 
 way at any time, and is under no obligation to wait for a favor- 
 able condition of the market before making the sale. The pledgor 
 having notice of the sale, can protect the securities pledged if he 
 so desires. Franklin National Bank v. Newcombe, 1 App. Div. 
 294. 
 
 The pledgee has the right to exact strict performance of the 
 contract of bailment according to its terms, and upon default in 
 the payment of the debt at the time stipulated, may dispose of the 
 pledge. But if he waives the right to strict performance by any 
 agreement, declaration or course of conduct that leads the pledgor 
 to believe that a forfeiture will not be insisted upon without an 
 opportunity given him to redeem, he will not be allowed to recall 
 the waiver and insist upon a forfeiture for non-payment when 
 the other party is unprepared to redeem. If, after such waiver, 
 he sells the property without notice and a reasonable time for the 
 pledgor to redeem, he will be guilty of a conversion, although, 
 under the original contract, he had the right to sell on default 
 without notice. Toplitz v. Bauer, 34 App. Div. 526 ; 161 N.Y. 325. 
 
 Where the pledgee puts up the property pledged at public sale 
 without demand of payment or notice of sale, and, in the absence 
 of other bidders, the property is struck off to him, such sale is 
 not void, but voidable at the election of the pledgor. If he elects 
 to treat the purchase by the pledgee as illegal, that avoids the sale, 
 and that being avoided by the pledgor, the parties are remitted to 
 their rights as though no sale had been attempted ; the pledgor is 
 liable for his debt, and the creditor holds the property as pledgee. 
 There is no conversion, as there is no sale. Bryan v. Baldwin, 52 
 ]Sr. T. 328. 
 
 It is not a fixed inflexible condition annexed to every pledge, 
 that the creditor may resort to a sale in all cases where there is 
 a pledge because the manner in which he is to reimburse himself 
 may depend upon the terms of the contract or be inferred from 
 the character and condition of the property pledged. When the 
 subject of the pledge consists of goods and merchandise, or chat- 
 tels of any kind, there is no other way in which they can be ap- 
 plied to the payment of the debt, unless they are first converted 
 into money which can be done only by a sale. But where choses 
 in action for the payment of money, notes, bills, bonds and mort- 
 gages are the subject of the pledge the case is widely different. 
 Unless the stipulations of the contract require a sale, the creditor 
 instead of selling such securities should collect the money on them 
 as it becomes due and payable and apply it to the satisfactiau of 
 
376 BAILMENT. 
 
 his debt, or resort to his ordinary remedy against the debtor for 
 the collection of the demand when due. Wheeler v. Newbould, 
 16 K Y. 392. 
 
 Whenever the pledge has been sold by the pledgee, he is liable 
 to be called upon to account for the proceeds of the sale; and he 
 will be liable to pay over to the pledgor any surplus that may be 
 found to exist after deducting the debt, interest if any, and the 
 costs and expenses necessarily incurred in selling to the best 
 advantage. If the pledge is a pledge of things bearing an increase 
 and fruits and profits, such as horses, cows, sheep or other cattle, 
 the pledgee must account for all such profits, if it appears to have 
 been the intention of the parties that they should be received and 
 applied in keeping down the interest on the loan, or in extinguish- 
 ment of the principal. If the debt is due, the possession of the 
 pledge does not suspend the right of the pledgee to proceed per- 
 sonally against the pledgor by action for the recovery of the debt 
 in respect of which the pledge was taken, for it is only a collateral 
 security. Lwwton v. Newland, 2 Stark. 72 ; South Sea Co. v. Dun- 
 comb, 2 Strange, 919; Scott v. Parker, 1 Q. B. 809; Wheeler v. 
 Newbould, 16 ISF. Y. 392. 
 
 The rules and principals of the common law, regulating and 
 defining the amount of care to be taken of the pawn or pledge 
 form part of the general law of bailments. 
 
 The general rule is, that every person who receives goods and 
 chattels or securities into his possession by way of pawn or pledge, 
 impliedly undertakes to take the same care of them that a pru- 
 dent and cautious man ordinarily takes of his own property. 
 His liability in this respect, is analogous to that of the hirer of 
 chattels for use, the contract being like the contract of letting 
 and hiring, a contract for the mutual benefit of both parties, and 
 not a contract for the sole and separate advantage of one of them, 
 to the exclusion of the other, like the contract of deposit or the 
 contract of borrowing and lending. 
 
 The pawnee or pledgee consequently is not responsible for the 
 loss of the goods by robbery or by accident, if he has taken ordi- 
 nary and reasonable care of them; and he may, notwithstanding 
 the loss and his consequent inability to return the deposit, sue 
 for the recovery of his debt. But if the goods have been stolen 
 under circumstances manifesting a want of ordinary and reason- 
 able care for their safety, he will of course be responsible for the 
 loss. And it is not enough for the pawnee to say that the goods 
 have been lost by robbery or by accident, he must prove the fact 
 
BAILMENT. 3YY 
 
 and show that he was free from blame. Doorman v. Jenkins, 2 
 Ad. & E. 256. If the pledge is stolen the pledgee is not absolutely 
 liable nor absolutely excusable. If the theft is occasioned by his 
 negligence, he is responsible, if without any negligence he is 
 discharged, being bound for ordinary care and answerable for 
 ordinary neglect. Petty v. Overall, 42 Ala. 145; Abbett v. 
 Frederick, 56 How. 68; Arent v. Squires, 1 Daly; 347. 
 
 Ordinarily in the absence of any agreement or assent by 
 the pledgor, the pledgee would have no right to use the thing 
 pledged, and the use of it would be illegal. But under special 
 circumstances, depending somewhat upon the nature of the pledge, 
 and in all cases, with the assent of the pledgor, express or implied, 
 the property pledged may be used by the pledgee in any way con- 
 sistent with the general ownership and the ultimate rights of the 
 pledgor. Lawrence v. Maxwell, 53 E". Y. 19. 
 
 If the pawn or pledge be something that will be the worse for 
 use or wear, as clothes or similar articles, the pawnee or pledgee 
 cannot lawfully use it ; but if it will not be the worse for use or 
 wear, as a watch or jewels, the pawnee may use them, but then 
 it will be at his peril, for if he is robbed while wearing them, he 
 will be answerable. So If the pawn be of such a nature that the 
 keeping is a charge to the pawnee, as if it be a cow or horse, the 
 the pawnee may milk the cow or ride the horse, and this will be 
 in recompense of the keeping. If the money for which the goods 
 were pawned is due, and it is tendered by the pawnor to the 
 pawnee before they are lost, then the pawnee will be answerable 
 for them in all events; because the pawnee, by detaining them 
 after the tender of the money, is a wrongdoer, and it is a wrongful 
 detention of the goods; and a man who keeps goods by wrong 
 must be answerable for them at all events. The right to use, as 
 well as the right to retain the pledge ceases the instant the lien 
 is discharged by the tender or payment of the debt or the per- 
 formance of the covenant or engagement for which the security 
 is given. Lawrence v. Maxwell, 53 N. Y. 19. 
 
 As the right of property in the pledge remains in the pledgor 
 until foreclosure, forfeiture or sale, the pledgor may maintain an 
 action against a stranger who unlawfully possesses himself of the 
 goods ; but if there is an injury or conversion by a stranger, for 
 which an action will lie on the part of both the pledgor and the 
 pledgee, a recovery by one ousts or debars the other of his right 
 to recover, for there cannot be a double satisfaction. Booth v. 
 Wilson, 1 Earn. & Aid. 59 ; Flewellin v. Bave, 1 Bulst. 68. If 
 
378 BAILMENT. 
 
 the pledgor has sold his interest in the pawn to a third party, the 
 latter will be the proper person to sue for the damages resulting 
 from an injury to the pawn from the default or negligence of the 
 pawnee, the owner for the time being the proper plaintiff. Frank- 
 lin V. Neate, 13 Mees. & Wels. 486. 
 
 But the right of action for the tort is assignable in this State, 
 as is elsewhere explained. The pledgee can maintain an action 
 of replevin to recover the possession, or an action of trover to 
 recover the full value of the property against a third party who 
 has wrongfully taken it from him, because he is responsible over 
 to the pledgor ; but in an action against one who derived his title 
 from the pledgor, the pledgee can recover only the amount of his 
 debt. Brownell v. Hawkins^ 4 Barb. 491 ; Harher v. Dement, 9 
 Gill, 7 ; Booth v. Wilson, 1 Barn. & Aid. 59. 
 
 § 6. Letting and Hiring of Personal Chattels, etc. 
 
 If a man lets out a chattel upon an express or an implied un- 
 derstanding that it is to be put into a serviceable state and made 
 ready for immediate use by the hirer, there is no implied warranty 
 or undertaking on the part of the owner that the chattel is in any 
 particular state or condition, or that it is fit for any particular 
 purpose. But if he expressly, or impliedly, represents it to be fit 
 for immediate use, or to be applicable to any particular purpose, 
 he impliedly warrants that it is fit for the use for which he 
 receives the hire. If a man, for example, lets out the naked hull 
 or the mere fabric of a vessel, upon the terms that the hirer is to 
 man and equip her and get her ready for sea, there is no implied 
 warranty or undertaking on the part of the shipowner that the 
 vessel is in any particular state or condition at the time of mak- 
 ing the contract. But if he mans, provisions, and equips the 
 vessel himself, and holds her out as fit for immediate use, there 
 is an implied promise or undertaking on his part that she is sea- 
 worthy and fit for use, and properly found and provided with 
 stores and provisions, seamen and officers, and all things needful 
 for the due prosecution of the voyage. Lyon v. Mells, 5 East, 437. 
 So if a man lets out the mere fabric of a coach or carriage upon 
 the understanding that the hirer is to provide the horses, harness, 
 servants and equipments, and prepare the vehicle for use, there is 
 no implied warranty or undertaking on his part that the chattel 
 is in any particular state or condition at the time he parts with 
 the possession of it, but if he gets it ready for the road, he 
 impliedly warrants the vehicle to be roadworthy and fit for the 
 
BAILMENT. 379 
 
 performance of the journey for which it is known to be required, 
 and this implied "warranty extends to the coachman, horses, har- 
 ness, and all the other necessary equipments for the journey. If 
 a man lets out furniture for immediate use, there is an implied 
 warranty on his part that it is fit for use, and free from all defects 
 inconsistent with the reasonable and beneficial enjoyment of it. 
 Sutton V. Temple, 12 Mees. & Wels. 60 If he lets out a horse 
 bridled and saddled, and prepared for immediate use by an eques- 
 train, he impliedly warrants the equipments to be roadworthy 
 and fit for use, and the horse itself to be well shod, and free from 
 such vices and defects as render it dangerous and unfit to ride. 
 The implied warranty does not extend to such defects as merely 
 render the use of the chattel less convenient, and do not deprive 
 the bailee of the substantial enjoyment of it. Thus, if a horse 
 hired for a journey is blind only of one eye, or only a little restive, 
 or slightly weak in the legs, the implied warranty does not extend 
 to these defects, because they are not inconsistent with the use 
 of the animal for the purpose required ; but if the horse is totally 
 blind, or so restive or unsound that he cannot be ridden with 
 safety, or is incapable of performing the journey specified, then 
 the letter is responsible for the breach of the implied warranty. 
 When the owner merely grants or lets the use of the chattel, 
 but retains the possession of it through the medium of his own 
 servants and agents, he is bound to keep the chattel in good 
 order and repair ; but if the possession of the thing as well as the 
 use of it is transferred to the hirer, this duty falls in the first 
 instance upon the latter. If a coach proprietor, for example, lets 
 his coach and horses for a journey, and the coach is driven by the 
 coachman, and is under the direction and management of the 
 servants of the owner, the letter is bound to keep the horses 
 properly shod, and the carriage in good traveling order; but if 
 the possession thereof is transferred to the hirer, and the carriage 
 is driven by the hirer's servant, this duty then falls upon the 
 hirer, although the owner or letter of the chattel may, under 
 certain circumstances, be obliged, as we shall presently see, to 
 repay to the hirer the money expended by him. Thus, for ex- 
 ample, if a horse hired for a journey, and delivered into the charge 
 and possession of the hirer, is taken sick on the road without any 
 fault or neglect on his part, the expense of the care and of the 
 nourishment of the horse during the continuance of the malady, 
 will fall upon the owner. 
 
 It may be laid down as a general rule, that whenever a chattel 
 
380 BAILMENT. 
 
 bailed or delivered to a hirer to be used for hire, has sustained 
 a partial injury through an inherent defect in the article itself, or 
 by reason of some inevitable accident which threatens its total 
 and immediate destruction, and the effects of such partial injury 
 may be obviated and the chattel preserved for future use by 
 repairs and remedies promptly applied or provided, there is an 
 implied authority from the owner to the hirer to undertake the 
 necessary repairs and apply the remedies, and incur all such 
 expenses as a prudent man would, under the circumstances, incur 
 for the . preservation of his own property, and the money s& 
 expended would be money paid by the hirer for the use of the 
 owner at his implied request, for the recovery of which the hirer 
 might maintain an action against the owner for money paid. 
 
 Every hirer of a chattel is bound to use the thing in a proper 
 and reasonable manner, to take the same care of it that a pru- 
 dent and cautious man ordinarily takes of his own property, and 
 to return it to the bailor or owner at the time appointed for its 
 return, or within a reasonable period after request, if no such time 
 has been agreed upon, in as good condition as it was at the 
 time of the bailment, subject only to the deterioration produced by 
 ordinary wear and tear and reasonable use, and injuries caused 
 by accidents which have happened without any fault or neglect 
 on the part of the hirer. Millon v. Salisbury, 13 Johns. 211; 
 Harrington v. Snyder, 3 Barb. 380. The owner or letter must 
 bear the loss which results from all ordinary risks to which the 
 chattel is naturally liable, but not to risks occasioned by negli- 
 gence or want of ordinary caution on the part of the hirer. 76. 
 If a carriage is let to hire, and it breaks down on an ordinary 
 public thoroughfare, through the badness of the roads, or is in- 
 jured by a flood or inundation, the owner must bear the loss,, 
 although the hirer furnishes both driver and horses for using the 
 carriage. But if a hirer goes out of his way to meet danger, as 
 when he goes by unusual or difficult roads, or crosses a plain sub- 
 ject to floods, when he might have kept the high ground and been 
 safe, he must make good the loss that has been occasioned thereby. 
 
 If the owner sends his own coachman or driver to drive the car- 
 riage, the hirer is discharged from all attention to the horses and 
 the risks of the road, unless he officiously interferes and gives 
 orders, and takes the management and direction of the vehicle into 
 his own hands. If a horse is hired as a saddle horse, the hirer has 
 no right to use it before a wagon or cart, or as a beast of burden 
 except for the purposes of riding it. 
 
BAILMENT. 381 
 
 The hirer cannot use the property hired for any purpose other 
 than that for which it was hired; and if he appropriates it to 
 another use, and it is injured while so used, the hirer is liable 
 for whatever damages are sustained by it, and he may be liable 
 also for a conversion of it. Buchanan v. Smith, 10 Hun, 474. 
 If a person hires a yoke of oxen to plow up a hedge, and uses 
 them not only for this purpose but also to draw large stone and 
 to load them upon a stone-boat, the hirer will be liable to the 
 owner of the oxen for injuries occasioned by the unauthorized use. 
 lb. 
 
 If a horse is hired to go to one particular place, the hirer has 
 no right to go with it to another and different place, either by 
 ^oing beyond the intended place, or by going to another place 
 in a different direction, and if he does go to such other or differ- 
 ent place, and a loss occurs during such misuser, the hirer will be 
 responsible in all events. If a horse is hired for a journey, and it 
 falls on the road and is lamed or injured, or if it is destroyed by 
 an accidental fire, or is stolen from a stable into which it has been 
 placed, the owner must bear the loss. Biit if the hirer, by riding 
 immoderately, or at unseasonable hours, and traveling by dan- 
 gerous and unusual roads, or by leaving the horse by the road- 
 side when he might have put it into a stable under lock and key, 
 has inlprudently courted danger and invited robbery, he must 
 himself bear the loss and make full compensation to the owner. 
 If the horse is taken ill on the journey, and the hirer calls in a 
 farrier, he will not be responsible if the horse dies, although the 
 death may have been occasioned by the injudicious treatment of 
 the latter; but if the hirer neglects to avail himself of proper 
 advice and assistance, or if he chooses ignorantly to make a pre- 
 scription himself, and from unskillfullness he gives the horse 
 improper medicine, and the horse dies, he is liable to the owner 
 for the loss. Dean v. Keate, 3 Camp. 4. It is, of course, the pri- 
 mary duty of the hirer, in the absence of an express stipulation 
 to the contrary, to supply an animal hired by him with suitable 
 food during the time it is intrusted to him for use, and if a hired 
 horse is exhausted or becomes ill and refuses its feed, and the 
 hirer notwithstanding pursues his journey, and by so doing injures 
 or kills the horse, he will be responsible therefor to the owner. 
 Bray v. Mayne, 1 Grow. 1 ; Handford v. Palmer, 2 Brod. & Bing. 
 359. In an action by the owner or letter of a horse against the 
 hirer, for carelessness, negligence or mismanagement of the horse 
 while in the hirer's use, the burden of proof is on the owner to 
 
382 BAILMENT. 
 
 establish the carelessness, negligence or mismanagement, and that 
 the injury was caused by the hirer's fault. Harrington v. Snyder,. 
 3 Barb. 380 ; Newton v. Pope, 1 Cow. 109 ; Cooper v. Barton, 
 3 Camp. 5, note. This is the general rule. But where property 
 in the exclusive possession of the hirer is injured in a way that 
 does not ordinarily occwr without negligence, the burden of proof 
 is on the hirer to show that the injury was not caused by his neg- 
 ligence. See Collins v. Bermett, 46 N. Y. 490 ; Buchanan v. 
 Smith, 10 Hun, 474. 
 
 If chattels have been bailed or let to hire for a certain term, 
 and the bailee does an act which is equivalent to the destruction 
 of the chattels, or which is entirely inconsistent with the terms 
 of the bailment, as when he sells or attempts to sell the chattels, 
 or dispose of them in such a manner as to put it out of his power 
 to return them, the act operates like a disclaimer of a tenancy, 
 the bailment is at an end, the possessory title reverts to the bailor, 
 and entitles him to maintain an action for the value of the chat- 
 tels. Fenn v. Bittleston, 7 Exch. 152, 159 ; Bryant v. WoA-dell, 
 2 Exch. 479. 
 
 Whether the hirer of a chattel has injured it in a degree in- 
 consistent with the use for which it was hired, may depend upon 
 the construction of the contract of bailment. If a person hires a 
 barge under a contract containing a stipulation that fair wear 
 and tear shall be allowed by the owner, and that when delivered 
 up the barge shall be in good working order with all her rigging, 
 gear and implements complete, such contract is not to be con- 
 strued as an engagement that the barge should be delivered up in 
 absolutely good working order, but that it is to be in good working 
 order regard being had to the thing the parties were contracting; 
 about, and its condition at the .commencement of the hiring. 
 Schroder v. Ward, 13 J. Scott, N. S. 410. 
 
 The hirer of personal property is a simple bailee. He can 
 acquire no rights other than those conferred by the terms of the 
 bailment. If' he retains possession after the period stipulated 
 by his contract, he holds the property as bailee subject to the 
 demand and disposal of the owner; and after a demand and re- 
 fusal trover or replevin will lie againsit him. Zule v. Zule, 24 
 Wend. 76, 81 ; Chamberlain v. Pratt, 33 IST. Y. 47. In the matter 
 of returning property hired, in the absence of any stipulation on 
 that point, the obligation as to delivery is ordinarily regulated 
 by the customs and usages of business at the place of hiring. 
 Gleason v. Morrison, 20 Misc. 320. 
 
BAILMENT. 383 
 
 § 7. Locatio, or Letting and Hiring of Work. 
 
 Contracts are sometimes made for the letting out and hiring 
 of work by the job, or lump, or gross, or taskwork, for a stipulated 
 or an implied remuneration, such as a contract to build a house, 
 or dig a well, or make a canal, or construct a ship, or a carriage, 
 out of materials to be furnished by the employer. 
 
 There is considerable analogy between this contract and the 
 contract of sale, especially in those cases in which the workman 
 agrees to furnish the materials for the work as well as the work 
 itself, in which case it is strictly a contract of sale, while, on the 
 other hand, if the employer has furnished the materials, and the 
 person who agrees to perform the work merely furnishes or con- 
 tributes his labor, the contract will be a contract of letting and 
 hiring of labor. If the groundwork of the labor, or the principal 
 materials entering into its composition, has been provided by the 
 employer, it will be a contract for the letting and hiring of work, 
 although the person performing the labor may have furnished the 
 accessorial materials for its completion. If, for instance, a man 
 sends his own cloth to a tailor, to be made into a coat, and the 
 tailor furnishes the buttons, the thread, and the trimmings, the 
 contract is nevertheless a letting and hiring of work, and not a 
 contract of buying and selling. 
 
 One distinction between a sale and a bailment is this: When 
 the identical thing delivered, though in an altered form, is to be\ 
 restored, the contract is one of bailment, and the title to the prop- i 
 erty is not changed. But when there is no obligation to restore } 
 the specific article, and the receiver is at liberty to return another : 
 thing of equal value, he becomes a debtor to make the return, the 
 title to the property is changed and the transaction is a sale. ' 
 Mallory v. Willis, 4 N. Y. 76 ; Foster v. Pettihone, 7 IST. Y. 433 ; 
 Powder Co. v. Burhhardt, 97 U. S. 110 ; Marsh v. Titus, 3 Hun, 
 550 ; Pierce v. Schenck, 3 Hill, 28 ; Norton v. Woodruff, 2 IsT. Y. 
 153 ; Battler v. Ealloch, 160 N. Y. 291, 298. 
 
 There are, however, other principles applicable to the qiiestion. 
 Thus, when property in an immanufactured state is delivered by 
 one person to another, upon an agreement that it should be manu- 
 factured or improved by his labor and skill, and when thus im- 
 proved in value should be divided in certain proportions between 
 the respective parties, it constitutes a bailment, and the original 
 owner retains his exclusive title to the property until the contract 
 is completely executed, although the labor to be performed by 
 
384 BAILMENT. 
 
 the bailee may be equal or even greater in value than that of the 
 property when received by him. Gregory v. Strylcer, 2 Denio, 
 €31. 
 
 Again, the relation is that of bailor and bailee, where the prop- 
 erty is thus delivered to be manufactured or improved, and after- 
 wards there is to be a sale and return or a division of the pro- 
 ceeds. Stewart v. Stone, 127 N. Y. 500. 
 
 In an early case, there was a written agreement between the 
 plaintiffs and one Osborne in relation to the tanning of a quan- 
 tity of hides. The hides were to be furnished by the plaintiffs 
 on a commission of five per cent, for selling the leather. Osborne 
 was to take the hides to his tannery, manufacture them into hem- 
 lock sole leather, and return it to the plaintiffs, who were to sell 
 it in their discretion. When sold, the account was to be made up, 
 and the net proceeds of the sales, after deducting the cost of 
 hides, commissions, interest, insurance and other expenses, were 
 to be the profit or loss to accrue to Osborne in full for tanning 
 the hides, and it was held that this was not a contract of sale, 
 but of bailment, and that the title remained in the plaintiffs. 
 Ryde v. CooTcsori; 21 Barb. 92. 
 
 In another case, logs were delivered at a saw mill under a con- 
 tract with the person running the mill that he would saw them 
 into boards, and each party should have one-half. It was held 
 that the transaction was a bailment ; that the bailor retained his 
 general property in the logs until they were all manufactured in 
 pursuance of the contract, and that, as between the parties, the, 
 bailee acquired no interest in any of the boards manufactured by 
 mere part performance within the time. Pierce v. ScJiencTc, 3 
 Hill, 28. 
 
 In another case, the plaintiffs agreed to deliver merchantable 
 wheat at a flour mill carried on by the defendant, to be manufac- 
 tured into flour. The defendant agreed to deliver one hundred 
 and ninety-six pounds of superfine flour, packed in barrels to 
 be furnished by the plaintiffs, for every four bushels and fifteen 
 pounds of wheat. He was to be paid sixteen cents per barrel, 
 and two cents extra in case the plaintiffs made one shilling net 
 profit on each barrel of flour. The defendant was to guarantee 
 the inspection. The plaintiffs were to have the offals or feed which 
 the defendant was to store until sold. It was held that the con- 
 tract imported a bailment and not a sale. Mallory v. Willis, 4 
 N. Y. T6. 
 
BAILMENT. 385 
 
 In a recent case, the parties entered into a contract by which 
 "the plaintiflE agreed to manufacture for the defendant one thou- 
 sand pairs of pruning shears, to be in all respects like the sample 
 furnished, the defendant to furnish the rough castings for the 
 handles and the plaintiff to furnish the blades. It was held that 
 the contract was one of bailment and not of purchase and sale, 
 so that the title to the shears manufactured was at all times in the 
 <iefendant. Mach v. Snell, 140 N. Y. 193. 
 
 In a still more recent case, a contract between certain farmers 
 and a business firm provided that the farmers were to furnish 
 and deliver at a factory owned by them, specified amounts of 
 farm produce, to be received jointly by a representative of the 
 farmers and the firm, and to be manufactured into pickles by the 
 firm, it furnishing the labor, utensils and additional materials, 
 the products to be sold as the products of a Farmers' Company 
 subsequently organized, and the net profits divided in specified 
 proportions between the farmers and the firm. It was held that 
 this contract imported a bailment and not a sale, especially when 
 practically so construed by the parties through selling the manu- 
 factured products in the name of the Farmers' Company by the 
 firm as agents, and that the original owners of the produce deliv- 
 ered by them under such contract retained exclusive title thereto 
 until the contract was fully executed. Battler v. Halloch, 15 
 App. Div. 500 ; 160 N. Y. 291. 
 
 A person who employs another by the piece, or job, or who leta 
 out taskwork to be done for an express or an implied remuneration, 
 is bound to do everything that is necessary to be done on his part 
 to enable the performer of the work to execute his engagement 
 and earn the hire or reward. 
 
 The employer impliedly undertakes not to resort to any mis- 
 representation or concealment which is calculated to mislead the 
 servant or undertaker of the work, nor to give him a false esti- 
 mate of the nature and extent of it, and also that he will accept 
 the work when completed, and pay the customary or usual hire 
 or reward paid, in case no specific rate of remuneration has been 
 agreed upon. Where there is an absolute and unqualified refusal 
 on the part of the employer to permit the workman to perform 
 his task, or where the employer does an act absolutely incapaci- 
 tating himself from the performance of his part of the engage- 
 ment, the workman has a right, if he has done anything under 
 the contract, to sue immediately for remuneration on a quantum 
 meruit, and also for such special damages as he may have sus- 
 25 
 
386 BAILMENT. » 
 
 tained by reason of having been prevented from earning the stipu- 
 lated hire. Planche v. Colburn, 8 Bing. 14; Doughty v. O'Dorir 
 nell, 4 Daly, 60. 
 
 Where a workman or an artist is employed to perform a specific 
 task, such as cleaning and repairing a painting, and the employer 
 subsequently countermands the order for the work, the artist can- 
 not persist in doing the work and in claiming the specified price 
 agreed upon; but he may maintain an action for the breach of 
 the contract by the employer, and recover such damages as may 
 have resulted from the breach. Clark v. Marsiglia, 1 Denio, 317 ; 
 Goodwin, V. Kirher, 2 Hilt. 401. 
 
 Time is sometimes of the essence of the contract so far as it re- 
 lates to the commencement of the work, but not so in regard to its 
 completion. If it is made a positive term of the contract that the 
 work shall be commenced on a day named, the employer may 
 refuse the services of the workman, and decline to employ him, 
 if he does not tender his services or commence the work at the 
 appointed period; but when the work has been commenced, the 
 completion of it by a day named will not, in general, be a condi- 
 tion precedent to the workman's right to the stipulated hire oc 
 price. 
 
 Where, for example, the materials for the work have been fur- 
 nished by the employer, and the produce of the labor becomes, 
 consequently, the property of the latter as the work proceeds, the 
 non-performance of the work by the appointed time does not re- 
 lease the employer from making any payment. He may recoup 
 any damages which he may have sustained by reason of non-per- 
 formance of the contract within the time mentioned, in case of an 
 action by the workman for the contract price ; so, too, he may pay 
 the stipulated price and then sue the workman for the damages 
 sustained. A contract may be so framed that the work must be 
 completed by a specified day, and that in default thereof, the 
 workman is not to receive any compensation. Maryon v. Carter, 
 4 Carr. & Payne, 295; Littler v. Holland, 3 Term E. 590; 
 Wells V. Smith, 2 Edw. Ch. 78. But the law does not favor such 
 contracts, which are in the nature of forfeitures, and therefore 
 the contract must provide clearly and expressly that the time of 
 the performance shall be so material as to deprive the workman 
 of his compensation in case of the non-performance of the work at 
 the time specified, or no such effect will be given to it by the law. 
 I:P the workman's right to remuneration or compensation is to 
 depend entirely upon the completion of the work by the day ap- 
 
BAILMENT. 38r 
 
 pointed, and he is to forfeit all claim to payment if the condition 
 as to time is not strictly complied with, performance at the hour 
 or by the day appointed must then be alleged in the complaint, and 
 must be proved as alleged. Littler v. Holland, 3 Term E. 590; 
 Maryon v. Carter, 4 Carr. & Payne, 295. But if the performance 
 or completion of the work by the day fixed is not of the essence 
 of the contract, it will be sufiicient to allege and prove that it 
 was done within a reasonable time. Kingdom v. Cox, 2 C. B. 
 661. 
 
 The law in relation to the necessity of performing contracts for 
 labor and service according to the terms and conditions of the 
 agreement, has been fully explained elsewhere. Ante, p. 126. 
 
 If the contract is entire for the performance of a specific work 
 for a specified sum, so that the performance of the whole work 
 bargained for and agreed to be done is a condition precedent to 
 the right of payment for any part of it, the workman will be de- 
 prived of all legal right to remuneration if the work is destroyed 
 by accident before it has been completed; but if the workman 
 is entitled to payment from time to time as the work proceeds, 
 the destruction of the work before its completion will not deprive 
 the workman of his hire if the loss has not been occasioned by 
 any negligence or want of care or skill on his part. If a laborer 
 is employed to dig potatoes at so much per acre or to cut wood 
 at so much per load, or to make excavations of earthwork at so 
 much per cubic foot, and the produce of his labor and the results 
 of his toil are destroyed by tempest or inundation, or by accidents 
 which have happened without any default on his part, the em- 
 ployer must, nevertheless, pay him the stipulated remuneration ' 
 for every acre of potatoes dug, load of wood cut, or cubic foot of 
 earth excavated, but he would not be obliged to pay him pro rata 
 for a proportionate part of an acre, load, or foot, in the absence 
 of circumstances showing it to have been the intention of the 
 parties that he should be so paid; unless, indeed, there should 
 have been only a partial destruction of the produce of the labor, 
 and the employer should have derived some benefit from the work, 
 in which case he would be liable to pay its fair value upon a 
 quantum meruit. 
 
 If the workman furnishes the materials for the manufacture of 
 a chattel, as well as his own labor and skill, the contract is a 
 contract of sale, and if the thing perishes or is destroyed by ac- 
 cident before it is delivered, the loss will fall either upon the 
 vendor or the purchaser according as the right of property in 
 
388 BAILMENT. 
 
 the chattel may or may not have passed to the latter. Merritt v. 
 Johnson, Y Johns. 473 ; Gregory v. Stryker, 2 Denio, 628 ; An- 
 drews V. Durant, 11 IST. Y. 35 ; Brown v. Morgan, 2 Bosw. 485. 
 Where a manufacturer or a mechanic agrees to construct a particu- 
 lar article out of his own materials, or out of materials the prin- 
 cipal part of which is his own, the property in the article, until 
 its completion and delivery, is in him and not in the person for 
 whom it was intended to be made. lb. And the rule is the same 
 when the contract provides that certain portions of the purchase- 
 price are to be paid to the mechanic or manufacturer at specified 
 stages of the work, and where an agent of the person for whom 
 the article is to be made is to superintend and approve of the 
 materials and the work. lb. But where, on the other hand, the 
 employer furnishes all the materials, or the principal part of 
 them, and the workman or mechanic merely contributes his labor 
 and skill, the title to the property is in the employer, and the 
 contract is a contract for work and labor simply, and the right of 
 the workman to demand payment for his work in case of the de- 
 struction of the chattel by inevitable accident before it has been 
 delivered back to the employer depends upon the nature of the 
 contract and of the work, and also upon custom and usage. Where 
 the contract is entire and indivisible for the manufacture of a 
 particular article, out of materials furnished by the employer, 
 for a specified price for the labor, which is to be paid on the 
 completion and delivery of the chattel to the employer, and the 
 chattel is destroyed by inevitable accident, whilst it remains un- 
 finished in the hands of the workman, the employer must bear 
 the loss of the materials, and the workman the loss of the price 
 and value of his labor. Higgins v. Murray, 73 N. Y. 252, 254. 
 If, for example, a tailor is employed to make a coat out of cloth 
 furnished by the employer, and he is to be paid for the exercise of 
 his labor and skill on the completion and delivery of the coat, and 
 before the coat is finished, the cloth is destroyed in the hands of 
 the tailor by an accidental fire, the tailor has no claim against 
 the employer for the payment of the work actually done. So, 
 if a printer is employed to print a book at so much per sheet, the 
 price and value of the printing to be paid for on the completion 
 of the work, and before the whole impression is worked off and 
 made ready for delivery, and accidental fire breaks out upon the 
 printer's premises and consumes the work, the employer must 
 stand the loss of his paper, and the printer that of the loss of the 
 price and value of his labor and skill. Gillett v. Mawman, 1 
 
BAILMENT. 389 
 
 Taunt. 140. But if the work has been completed, and the copies 
 have been printed and made ready for delivery, and placed at the 
 disposal of the employer, they remain at his risk, as the right of 
 property in the printed work has then passed to him, and if an 
 accidental fire then breaks out and consumes them, he must stand 
 the loss, and pay the printer the amount of his hire or wages. 
 J Allard v. Booth, 7 Carr. & Payne, 108. See Higgins v. Murray, 
 \73 N. Y. 252, 255. 
 
 If a chattel of the employer has been delivered to a workman 
 or mechanic to be repaired, and the accessorial materials are to 
 be furnished by the workman, such materials become a part of 
 the chattel repaired, and are the property of the employer, and 
 if the completion of the work is not made either by agreement or 
 by custom, a condition precedent to the payment, the loss of such 
 materials, as well as of the value of the work and labor employed 
 upon them, is the loss of the employer and not of the workman, 
 and the employer, consequently, must pay the price or value of 
 the labor, although he can reap no benefit from what has been 
 done. In such a case the loss falls upon the person who owns 
 the property or materials at the time the loss occurs. In the case 
 of building contracts the principle is the same; and where the 
 employer owns or furnishes the land upon which a house or build- 
 ing is to be erected, if the contract is an entire and indivisible 
 contract for the building of the house for a specific sum, which 
 is to be paid on its completion, and the edifice is destroyed by 
 fire, by lightning, or overthrown by a whirlwind during the prog- 
 ress of the work and before its completion, the contractor or 
 workman must stand the loss, and be himself at the expense of 
 repairing the damages or of rebuilding the house. Johnson v. 
 Hunt, 11 Wend. 135 ; Tompkins v. Dudley, 25 N. Y. 272. 
 
 Whenever the work contracted to be done is a work of art and 
 skill, and the workman, mechanic or artist who undertakes and 
 agrees to perform the mere work and labor, executes it so negli- 
 gently and unskillfully as to render it utterly useless to the em- 
 ployer, he cannot call upon the latter for any payment for such 
 worthless services. In such cases it is always open to the de- 
 fendant to show that the work was done in such a manner as to 
 be of no value or service to him. BaMen v. Butter, 7 East, 479. 
 The public profession of an art is a representation and under- 
 taking to all the world that the professor possesses the requisite 
 skill and ability; and where a skilled laborer, artisan or artist is 
 employed there is on his part an implied warranty that he has 
 
390 BAILMENT. 
 
 siich skill as is reasonably adequate or competent to the task he 
 undertakes ; and if he is utterly incompetent to perform the kind 
 of work he engaged to do, his employer may dismiss him from 
 service. Harmer v. Cotyielius, 5 J. Scott, 'N. S. 236. 
 
 Every person -who has entered into a contract for the perform- 
 ance of a particular task or job, is bound to enter upon his em- 
 ployment without delay, and be active, industrious, careful and 
 diligent in the performance of the work, to do it according to 
 orders given and assented to, to complete it within a reasonable 
 period, if no precise time has been agreed upon for its ftilfillment, 
 and to exercise a reasonable amount of care and skill in its exe- 
 cution. If the work is to be performed under the direction of a 
 surveyor or agent who is to be appointed by the employer, the 
 appointment of such surveyor is a condition precedent to the lia- 
 bility of the workman to commence his task; and if the surveyor 
 is not appointed within a reasonable period, the undertaker of 
 the work is released from his engagement to do the work. Coombe 
 V. Greene, 11 Mees. & Wels. 483. On the other hand, if a per- 
 son has contracted to deliver a certain manufactured article within 
 a specified time, he cannot postpone performance to the last min- 
 ute and then excuse non-performance upon the plea of accident. 
 Booth V. Spuyten Duyvil Boiling Mill Co., 60 IST. T. 487. 
 
 But, while it is true that where an absolute executory contract 
 is made the contractor is not excused by inability to execute it, 
 caused by unforseen accident or misfortune, but must perform 
 or pay damages unless he has protected himself against such con- 
 tingency by stipulation in the contract, yet there may be, in the 
 nature of a contract, an implied condition by which he will be 
 relieved from such unqualified obligation; and when, in such 
 •case, without his fault, performance is rendered impossible, it 
 may be excused. See Stewart v. Stone, 127 N. Y. 500. 
 
 In ordinary cases, the workman may accomplish the work 
 through the medium of inferior agents and workmen; but if the 
 work is a work of art or genius and the contract is founded upon 
 the personal talent and capacity of the artist, he impliedly under- 
 takes to perform the work himself and not intrust it to an inferior 
 agent of less skill and reputation. If a portrait painter, for 
 example, is employed to paint a portrait, or an artist to design a 
 ceiling, he cannot, without the consent of the employer, intrust 
 the execution of the work to a third party. Francois v. Ochs, 2 
 E. D. Smith, 417. And when an artist is employed to paint a 
 portrait the employer is not bound to accept or pay for a painting 
 
BAILMENT. 391 
 
 or picture which is not a good likeness of the person designed to 
 be represented. lb. 
 
 Every workman, mechanic, or artist undertakes to do his work 
 well and in a workmanlike manner, and according to the rules 
 and principles of his trade or art. When a person is employed 
 in a work of skill, the employer buys both his labor and his judg- 
 ment; he ought not to undertake the work if he cannot succeed, 
 and he should know whether he will or not. Duncan v. Blundell, 
 3 Stark. 7. 
 
 The degree of skill and diligence which is required from the 
 workman rises in proportion to the value, the delicacy, and the 
 beauty of the work, and the fragility and brittleness of the mate- 
 rials. The Roman law required the exercise of greater skill and 
 diligence from workmen who undertook the delicate work of rais- 
 ing or removing pillars of granite and porphyry than from those 
 who were employed upon common materials, and greater care 
 from a person who undertook to remove a column than from a 
 man who was employed in the transport of a rude block of stone. 
 So, in our own law, if I hire the labor and services of ship- 
 builders, clockmakers, or any other artificers or handicraftmen, 
 they are severally bound to exercise in their respective callings 
 superior skill and knowledge, for it is their own fault if they 
 undertake a work of skill without being possessed of sufficient 
 skill, or if they apply less than the occasion requires. If I hire 
 the labor, and services and skill of a coachman or driver- of a 
 carriage, of a surgeon, physician, apothecary, farrier, attorney, 
 or any other professional person, he impliedly undertakes, for the 
 possession and exercise of ordinary skill and knowledge in the 
 practice of his art or profession, and he is responsible for any 
 injury which I may sustain from his want of such knowledge or 
 skill, or from his neglect to exercise it. 8eare v. Prentice, 8 East, 
 352; Slater v. Baker, 2 Wils. 359. Every person who enters into 
 a learned profession undertakes to bring to the exercise of it a 
 reasonable degree of care and skill. He does not undertake, if 
 he is an attorney, that at all events you shall gain your cause, 
 nor does a surgeon impliedly undertake that he will perform a 
 cure, nor does he undertake to use the highest possible degree of 
 skill, but he undertakes to bring a fair, reasonable and competent 
 degree of skill. Lanphier v. Phipos, 8 Carr. & Payne, 479; 
 Hancke v. Hooper, 7 Carr. & Payne, 84; Shilcock v. Passman, 
 id. 289. Every attorney is responsible for gross ignorance, or 
 gross negligence, but not for erroneous advice and mistakes not 
 
392 BAILMENT. 
 
 amounting to evidence of positive incompetency for the discharge 
 of his professional duties. Pitt v. Yalden, 4 Burr. 2060 ; Purvis 
 V. Landell, 12 CI. & Fin. 98. The employer himself is bound to 
 exercise ordinary caution and discrimination in the choice and 
 selection of the party he employs. If he selects a common quack 
 or an unauthorized practitioner, the latter is only responsible for 
 a reasonable and bona fide exertion of his capacity. He is bound 
 to exercise such skill as he actually possesses, and if he has done 
 his best and failed, he cannot be made responsible for a want of 
 skill, for it was the employer's own fault to trust an unlearned 
 and unskillful person, known not to be regularly and properly 
 qualified. If the employer voluntarily employs in one art a man 
 who openly exercises another, his folly has no claim to indulgence, 
 and unless the latter makes false pretensions or a special under- 
 taking, no more can be fairly demanded of him than the best of 
 his ability. The case which Sadi relates with eloquence and 
 humor in his Gulistan, or Rose Garden, is not inapplicable to 
 the present subject. "A man who had a disorder in his eyes 
 called on a farrier for a remedy, and he applied to him a medicine 
 commonly used for his patients; the man lost his sight, and 
 brought an action for damages, but the judge said, ' No action| 
 lies, for if the complainant had not himself been an ass, he would 
 never have employed a farrier.' " 
 
 In this class of contracts, in which the employer furnishes mate- 
 rials upon which the workman is to besto.v his labor and skiU, 
 the person who furnishes the materials or delivers the chattels for 
 the purposes of the contract, is called the bailor, and the party 
 who receives it the bailee. If the bailor, before the work is done, 
 countermands the order for it, he has a right to the im^mediate 
 return of the materials or chattel, although by countermanding 
 the order, he may render himself liable to an action for a breach 
 of the contract. Lilley v. Bamsley, 1 Carr. & Kir. 344 ; Clark v. 
 Marsiglia, 1 Denio, 317 ; Goodwin v. KirTcer, 2 Hilt. 401. But in 
 such a case, the employer must, at the time of demanding the 
 return of the property, tender a sum equal to the value of the 
 labor already performed, or neither an action of trover or of 
 replevin will lie, because the workman has a lien for the labor 
 which was done before the bailment was terminated. Ih. If the 
 bailee, by mistake or in obedience to a forged order, delivers the 
 chattel to the wrong person, and the article is lost, he is respon- 
 sible for the loss. Lubhock v. Inglis, 1 Stark. 104; Wilson v. 
 Powis, 3 Bing. 633. Where several joint owners of a chattel de- 
 
BAILMENT. 393 
 
 liver it to a third person, to be repaired or to have work done upon 
 it, the bailee may retain it until all the joint owners require him 
 to return it. Atwood v. Ernest, 13 C. B. 889. But if one of sev- 
 eral joint owners is allowed to have the possession and manage- 
 ment of the joint property, and he places it in the hands of a 
 bailee, the latter is accountable to the owner with whom he deals. 
 Walshe v. Provan, 8 Exch. 851. Every workman or artificer to 
 whom chattels have been bailed or delivered to be worked tipon, is 
 responsible for all injuries that may result to the chattel from the 
 negligent or unskillful execution of the work. Thus, if cloth be 
 bailed to a tailor to be made into a coat, and the cloth is spoiled 
 by him or his servants or workman in cutting or making it up, 
 the tailor must make good the loss. The bailee of chattels to be 
 manufactured or repaired for hire, is bound to take the same care 
 of them while they remain in his possession, that a prudent and 
 cautious man ordinarily takes of his own property. He is boimd 
 to exercise all reasonable and ordinary forethought and precau- 
 tion for their protection and preservation, and if a loss has 
 occurred from robbery, or by fire, or inundation or from waste 
 and decay, he must show that he had taken all such precautions 
 as are ordinarily taken by prudent men to guard against the 
 mischief. If the bailee, with the knowledge and privity of the 
 owner, employs another person to aid him in accomplishing the 
 stipulated work, and the latter by his unskillful conduct causes 
 injury to the owner, he is liable to the party injured. Baird v. 
 Daly,?>11Si.Y. 236. 
 
 All persons to whom goods and chattels are delivered to be 
 kept for hire and reward, and who are paid expressly and spe- 
 cifically for the exercise of their labor and care in keeping them, 
 and not merely for the finding of a place of deposit, are bound to 
 exercise that amount of care and vigilance for their preservation 
 which the most prudent and careful men exercise for the protec- 
 tion of their own property. A man who merely undertakes to 
 find a place of deposit, ought certainly to be responsible for no 
 more than that ordinary watchfulness which may be requisite to 
 secure his warehouses from ordinary and extraordinary hazards. 
 But when the thing is delivered into his hands to keep, and he is 
 paid for his care and labor in keeping and preserving it, he ought 
 to be clothed with a greater liability, and held to exercise more 
 care than a mere gratuitous bailee, who receives no reward for 
 his services, and who is bound to take the same amount of care 
 of things intrusted to him to keep as he has ordinarily taken of 
 
394 BAILMENT. 
 
 his own property. Piatt v. Hibbard, 7 Cow. 497 ; Smith v. 
 Simms, 51 How. 305; Foote v. Storrs, 2 Barb. 326; Knapp v. 
 Curtis, 9 Wend. 60; Schmidt v. 5Zood, 9 Wend. 268. 
 
 In an action against a wharfinger or a warehouseman for the, 
 loss of goods, the plaintiff must prove more than the mere loss of 
 goods ; he must go further and show by some evidence that there 
 was negligence or some want of care on the part of the bailee or ' 
 his servants. lb. See Fairfax v. N. Y. C, &c., B. B. Co., 67 E". 
 Y. 11; Claflin v. Meyer, 75 IST. Y. 260; Heinemann y. Heard, 
 62 ]Sr. Y. 448 ; Blunt v. Barrett, 124 N. Y. 117 ; Stewart v. Stone, 
 127 ISr. Y. 500; Lamb v. Camden & Amboy B. B. Co., 46 E". Y. 
 271 ; Coleman v. Livingston, 4 Jones & Sp. 32 ; 56 N. Y. 658. 
 The duties and responsibilities of a wharfinger in respect to the 
 safe keeping of the goods intrusted to him to be dealt with in the 
 way of his trade, are analogous to those of a warehouseman. 
 
 An agister of cattle is a bailee for hire, and as such is bound 
 to use ordinary diligence properly to care for and protect the 
 cattle placed in his charge and is responsible for loss occasioned 
 by his negligence. He is bound to furnish a pasture secure against 
 ordinary accidents, incident to the cattle to be pastured. The 
 field must be propely fenced and be free from dangerous places 
 or obstacles. A failure in these respects will render him liable 
 for damages occasioned thereby. Gibbs v. Coykendall, 39 Hun, 
 140 ; Mosely v. Fossett, 1 RoUe Abr. 4. But he is not an insurer 
 of the property, and unless he is guilty of negligence he is not 
 liable for injuries that may be suffered through other causes over 
 which he has no control. He is bound to use ordinary care ; that 
 care which an ordinarily prudent person would exercise over his 
 own property of like character. Gibbs v. Coykendall, 39 Hun, 
 140. A keeper of cattle yards, who has received cattle to be fed 
 and kept over night, is not liable for the loss of cattle drowned 
 during a violent storm causing the yards to be overflowed, although 
 the yards had previously been overflowed though not to such an 
 extent as to endanger the lives of cattle. Morgan v. Crocker, 62 
 IST. Y. 626. So if cattle pastured upon a farm, contract disease 
 from dejections of Texan cattle previously pastured upon the 
 same farm, the person receiving the cattle to pasture is not liable 
 for the damages, if ignorant of the fact that there was a liability 
 of communicating the disease in that manner. Gibbs v. Coyken- 
 dall, 39 Hun, 140. But if an agister of sheep turns them into a 
 field separated by an insufficient fence from an adjoining field in 
 which are diseased sheep, he will be liable for damages sustained 
 
BAILMENT. 395 
 
 by the owner of the flock by reason of the escape of the sheep 
 through the defective fence and thus contracting disease by con- 
 tact with the others. Sargeant v. Slach, 47 Vt. 674 ; 19 Am. K. 
 136. So an agister of cattle may be held responsible, for injuries 
 to a horse intrusted to his care, caused by a bull in an adjoining 
 field, if he knew that the division fence was insecure, and the 
 bull accustomed to break through even though he did not know 
 that the bull was vicious. Smith v. Cook, L. K., 1 Q. B. Div. 79 ; 
 15 Eng. Eep. 194. 
 
 A livery-stable keeper to whom a horse is bailed to be kept for 
 hire, impliedly undertakes to provide a stable reasonably wind 
 and water tight, also that there shall be a proper quantity of 
 wholesome food for the animal, and a hostler who has a reasonable 
 knowledge of horses, and is reasonably fit for his situation. 
 
 Factors to whom goods have been bailed to be sold for the 
 OAvner, and who receive a commission or a percentage upon the 
 price, by way of hire or reward for the exercise of their skill and 
 labor in the commission intrusted to them, are bound to employ 
 the same care in the custody and safe keeping of the goods as an 
 ordinary hirer of chattels for use, or a bailee to whom chattels 
 have been bailed to be worked upon, repaired, or manufactured. 
 He is not bound to take the greatest amount of care that is ever 
 taken of property of the description bailed to him, as he is not 
 paid particularly and especially for his safe custody of the goods, 
 but for his labor and services in selling them. It is sufficient, 
 therefore, if he does all that a man of average prudence isi accus- 
 tomed to do in the care of his own goods. 
 
 § 8. Innkeepers. 
 
 Before a person can become subject to the extraordinary liabili- 
 ties which the law imposes upon inkeepers, it is essential that 
 he should become a common innkeeper; that is to say, he should 
 exercise the calling or business of entertaining travelers or tran- 
 sient persons, either together with, or without their horses, and 
 should thereby become bound to receive and entertain all travel- 
 ers demanding hospitality, unless there be a good excuse for re- 
 fusing. Every person who makes it his business to entertain 
 travelers and passengers, and provide lodging and necessaries for 
 them and their horses and attendants, is a common innkeeper; 
 and it is in no way material whether he has any sign before his 
 door or not. If a man merely opens a house for the sale of 
 provisions and refreshments, and does not profess to furnish beds 
 
396 BAILMENT. 
 
 and lodging for the night, he is not a common innkeeper. Doe v. 
 Laming, 4 Camp. 77. A mere restaurant or eating-house for 
 meals cannot be considered an inn, nor can the liabilities attach- 
 ing to innkeepers be extended to the proprietors of such establish- 
 ments. Carpenter v. Taylor, 1 Hilt. 193 ; People v. Jones, 54 
 Barb. 311 ; Matter of Kelly v. Excise Commissioners, 54 How. 
 327. And see Cromwell v. Stephens, 2 Daly, 15 ; 3 Abb. N. S. 
 26. But a house of entertainment in which the guest pays a 
 specified sum per day for his room, and takes his meals in a 
 restaurant connected with the house, and under the same manage- 
 ment, paying for each meal as he takes it, or going outside for 
 his meals as he thinks proper, is an inn. Matter of Kelly v. 
 Excise Commissioners, 54 How. 327 ; Hancock v. Rand, 17 Hun, 
 279 ; 94 IST. T. 1. So a house which is kept for the reception and 
 entertainment of all comers, though more especially for that class 
 of persons known as emigrants, is an inn. Willard v. Rheinhardt, 
 2 E. D. Smith, 148. The keeper of an emigrant lodging-house is 
 not given by statute the lien accorded to the keeper of a hotel; 
 inn, boarding-house or lodging-house. Laws of 1897, ch. 418, 
 § 71 ; General Laws, ch. 49, § 71. 
 
 The distinction between an inn and a boarding-house is this ; in 
 a boarding-house the guest is under an express contract, at a certain 
 rate, for a certain period of time; but in an inn there is no ex- 
 press agreement and the guest being on his way, is entertained 
 from day to day, according to his business, upon an implied con- 
 tract. Willard v. Rheinhardt, 2 E. D. Smith, 148. See Cady 
 V. McDoivell, 1 Lans. 484; Krohn v. Sweeney, 2 Daly, 200; 
 Cromwell v. Stephens, 2 Daly, 15 ; 3 Abb. W. S. 26 ; Hancock v. 
 Rand, 17 Hun, 279, 285; Cochrane v. Schryver, 12 Daly, 71. 
 One who is not strictly an innkeeper, but who, for the purpose of 
 obtaining a liquor license, has made an affidavit that he is the 
 keeper of an inn, may be held subject to the liabilities of an inn- 
 keeper for the loss of the goods of a guest. Kopper v. Willis, 
 9 Daly, 460. 
 
 A lodging-house is but another name for a boarding-house. 
 An inn is a house the owner of which holds out that he will 
 receive all travelers and sojourners who are willing to pay a 
 price adequate to the sort of accommodation provided, and who 
 come in a condition in which they are fit to be received ; a lodg- 
 ing-house keeper, on the other hand, makes a contract with every 
 man that comes, whereas an innkeeper is bound, without making 
 any special contract, to provide lodging and entertainment for 
 
BAILMENT. 39Y 
 
 -all, at a reasonable price. Thompson v. Lacy, 3 Barn. & Aid. 283 ; 
 Holder v. Soulby, 8 J. Scott, N. S. 254. The law imposes no 
 obligation upon a lodging-kouse keeper to take care of the goods 
 of his lodgers, and therefore where certain property of a lodger, 
 who was about to quit the house, had been stolen by a stranger 
 who, in his absence, was permitted by the occupier of the house 
 to enter the rooms for the purpose of viewing them, it was held 
 that the lodging-house keeper was not responsible for the loss. 
 lb. And see Dansey v. Richardson, 3 Ell. k, Bla. 144. 
 
 In order to charge a person as an innkeeper it is not necessary 
 to prove that it was only for the reception of travelers that his 
 house was kept open. It is sufficient to prove that all who came 
 to his house Avere received as guests, without any previous agree- 
 ment as to the duration of their stay or the terms of their enter- 
 tainment. Wintermute v. Clarice, 5 Sandf . 242. But the liability 
 of the innkeeper, as such, continues no longer than the continu- 
 ance of the relation between him and the guest ; and that relation 
 ceases when the guest pays his bill and leaves the house with 
 the declared intention of not returning. 76. In such a case the 
 guest leaves his baggage or other property behind him at his own 
 peril, except that the innkeeper is liable as an ordinary bailee. 
 lb. 
 
 Every man who opens a public inn, and professes to exercise the 
 business and employment of a common innkeeper, is bound by 
 law to afford such shelter and accommodations as he possesses 
 to all travelers who apply, and who tender or are able and ready 
 to pay the customary hire or price, if they are not drunk or dis- 
 orderly, or laboring under contagious or infectious diseases. And 
 if he neglects or refuses to do so, he is liable to an action on the 
 case for the recovery of any damages that may have been sus- 
 tained by reason of such refusal, and also to an indictment at 
 the common law. Hawthorn v. Hammond, 1 Carr. & Kir. 404; 
 Howell V. Jachson, 6 Carr. & Payne, Y25 ; Bex v. Ivens, Y Carr. 
 & Payne, 219. He cannot deny any person the full and equal 
 enjoyment of the accommodations, advantages, facilities and privi- 
 leges of his inn because of race, creed or color, and if he does, 
 he may be punished for a misdemeanor. Laws of 1881, ch. 400. 
 He is not bound, however, to receive the goods of a person who 
 proposes merely to make use of the inn as a place of deposit, and 
 not to lodge therein as a guest, nor is he bound to furnish accom- 
 modations to enable a person to carry on a trade or business. 
 launders v. Plummer, Oil. Bridg. 22Y; Toub v. Schmidt^ 60 
 
398 BAILMENT. 
 
 Hun, 409 ; Mowers v. Fethers, 61 N. Y. 34. Neither is he bound 
 to provide for his guest the precise room which the latter may 
 choose to select, nor to provide him with a bedroom if he declares- 
 it to be his intention to sit up all night. All that he is required 
 to do is to find reasonable and proper accommodations for his 
 guest; and if he tenders such accommodations, and the guest re- 
 fuses them, he may compel the latter to quit the inn and seek for 
 accommodation and lodging elsewhere. Fell v. Knight, 8 Mees. 
 & Wels. 276. 
 
 Before an innkeeper can be held to the strict liability which is 
 imposed by law, it is necessary that the traveler or other person 
 should have become, in point of law, his guest. Mowers v. Feth- 
 ers, 61 N. Y. 34 ; Toub v. Schmidt, 60 Hun, 409 ; McDonald v. 
 Edgerton, 5 Barb. 560. The obligation to respond for injury to 
 property depends upon his duty to receive and entertain as an 
 innkeeper, and they must stand or fall together. Grennell v. 
 Cooh, 3 Hill, 485 ; Ingalshee v. Wood, 36 Barb. 452 ; 33 N. Y. 
 577; Hulett v. Swift, 33 W. Y. 571 ; Mowers v. Fethers, 61 N. Y. 
 34. He is doubtless bound to receive and entertain a strolling ped- 
 dler and securely guard his pack of trinkets, if brought within the 
 inn, so long as he remains a mere guest, but if the peddler merely 
 leaves his pack at the inn, with the consent of the innkeeper, but 
 without engaging a room or obtaining food or drink, the relation 
 of innkeeper and guest is not created, and the innkeeper is not 
 liable as such for the goods, if lost. Toub v. Schmidt, 60 Hun, 
 409. So, the innkeeper would be bound to receive a wayfarer 
 incumbered with a stallion, but would be under no obligation as 
 an innkeeper to allow his curtilage to be turned into an asylum 
 for the breeding of horses, nor will he be liable as an innkeeper if 
 the stallion kept there for that purpose is destroyed by fire. Mow- 
 ers V. Fethers, 61 N. Y. 34. So, where a person leaves his horse 
 at an inn, without asking for or receiving any accommodation or 
 entertainment for himself, merely desiring to have the horse kept 
 for the night while he visits a neighboring house, the relation of 
 innkeeper and guest is not created, and if the horse is lost to the 
 owner in any way the innkeeper will not be liable as such, but 
 may be liable upon sufficient proof as a bailee for hire. Ingalshee 
 V. Wood, 36 Barb. 452; 33 K Y. 577. 
 
 To constitute one a guest, it is not necessary that he be at the 
 inn in person. It is enough that his property is there in charge 
 of his wife, or servant, or agent, who is there in his employment, 
 or as a member of his family. But the circumstances must be 
 
BAILMENT. 399 
 
 such that the law will imply that the property while there is in 
 his possession and not in the possession of the person who is there 
 with it, as bailee. In the latter case, it is the bailee, and not the 
 owner of the property, who is the guest. Coyhendall v. Eaton, 37 
 How. 438 ; 40 How. 266. 
 
 One who has neither been at an inn nor intends going there 
 in person or otherwise, cannot be regarded as a guest, although 
 he may have sent his goods to be cared for by the innkeeper. Grin- 
 nell V. Cook, 3 Hill, 485. And one who goes to an inn, saying 
 that he only wants a room to change his dress before going to a 
 friend's, and, after occupying the room for a few minutes, goes 
 to the friend's house, where he remains for the night, cannot 
 charge the innkeeper, as such, for the loss of goods left there, as 
 he ceased to be a guest when he had dressed and departed. Lynar 
 V. Mossop, 36 Up. Can. Q. B. 231. But if a traveler comes to 
 an inn and becomes its guest, and leaves his property there, and 
 goes out for a time, with the intention of returning, the innkeeper 
 will be liable for such goods of the guest as are lost during his ab- 
 sence. McDonald v. Edgerton, 5 Barb. 560. It is not necessary 
 for the guest to prove that he placed his goods in the special keep- 
 ing of the innkeeper in order to make him liable for the loss ; if 
 the owner is a guest, and his goods are within the inn, that is 
 sufficient to charge the innkeeper. lb. Purchasing liquor at the 
 bar of the inn for the party himself and to treat some friends 
 is sufficient to constitute the purchaser a guest. lb. A servant 
 having been sent with goods to market, and being unable to sell 
 them, went to an inn and asked if he could leave the goods there 
 until the next market day. The innkeeper's wife said they were 
 very full of parcels, and declined to take charge of them. The 
 servant then sat down in the inn, ordered something to drink, and 
 put the goods on the floor immediately behind him ; when he got 
 up again the goods were gone, and were never afterwards seen 
 or heard of; and it was held that the innkeeper was responsible 
 for the loss. Bennett v. Mellor, 5 Term K.. 2Y3, 276. 
 
 But if a person comes to a common innkeeper for the purpose 
 of stopping there, and the latter informs him that his house is 
 full of guests, and does not admit him as such, and the party says 
 he will shift for himself among the other guests, and he is there 
 robbed of his goods, the innkeeper will not be responsible for the 
 loss. White's case. Dyer, 158, b. So, if an innkeeper requires his 
 guest to put his goods in a particular chamber under lock and 
 key, and that he will then warrant them safe, but not otherwise, 
 
400 BAILMENT. 
 
 and the guest lets them lie in an open court, from whence they 
 are taken, the innkeeper is not liable, for the fault is in the guest 
 himself. Sanders v. Spencer, Dyer, 266, a. So, if the guest 
 takes upon himself the exclusive charge of the goods which he 
 brings to the inn, the innkeeper will not be liable for any subse- 
 quent loss. Farnworth v. Pachwood, 1 Stark. 249. 
 
 An innkeeper is bound, at his peril, to keep safely the goods of 
 his guest. He must, at the common law, guard them against the 
 incendiary, the burglar and the thief ; and he is equally bound to 
 respond for their loss, whether caused by his own negligence or 
 by the depredations of knaves and marauders within or without the 
 curtilage. Hulett v. Swift, 42 Barb. 230 ; 33 IST. Y. 571. He is, at 
 common law, an insurer of the property of his guest received into 
 his care, whether clothing, money, jewelry, horses, wheat, butter 
 or other articles of bulk. Wilhins v. Earle, 44 IN". Y. 172 
 
 The common-law liability of innkeepers has been somewhat 
 modified by statute in this State. " Whenever the proprietor or 
 m^anager of any hotel, inn or steamboat shall provide a safe in the 
 office of such hotel or steamboat, or other safe place for the keep- 
 ing of any money, jewels or ornaments belonging to the guests of 
 or travelers in such hotel, inn or steamboat, and shall notify the 
 guests or travelers thereof by posting a notice stating the fact 
 that such safe is provided, in which such money, jewels or orna- 
 ments may be deposited, in a public and conspicuous place and 
 manner in the office and public rooms, and in the public parlors 
 of such hotel or inn, or saloon of such or steamboat; and if 
 such guest or traveler shall neglect to deliver such money, jewels 
 or ornaments to the person in charge of such office for deposit in 
 such safe, the proprietor or manager of such hotel or steamboat 
 shall not be liable for any loss of such money, jewels or orna- 
 ments, sustained by such guest or traveler by theft or otherwise; 
 but no hotel or steamboat proprietor, manager or lessee shall be 
 obliged to receive property on deposit for safe-keeping exceed- 
 ing five hundred dollars in value ; and if stich guest or traveler 
 shall deliver such money, jewels or ornaments to the person in 
 charge of such office, for deposit in such safe, said proprietor, 
 manager or lessee shall not be liable for any loss thereof sustained 
 by such guest or traveler by theft or otherwise in any sum exceed- 
 ing the sum of two hundred and fifty dollars unless by special 
 agreement in writing with such proprietor, manager or lessee." 
 Laws of 1855, ch. 421, as amended by Laws of 1892, ch. 284, and 
 Laws of 1897, ch. 305. 
 
BAILMENT. 401 
 
 This statute was enacted for the protection of proprietors of 
 hotels and steamboats, and they may waive its benefits. If the 
 guest of a hotel, at the suggestion of the manager, leaves jewelry 
 in her trunk in her room, and the keys of the trunk and room 
 in the custody of the manager, under his assurance that he would 
 look after them and that the jewels would be safe, the proprietor 
 of the hotel will be liable for their loss through negligence. 
 Fnedman v. Breslin, 51 App. Div. 268. See Bendetson v. 
 French, 46 IST. Y. 266, 270. 
 
 It has been held under this statute, that the posting of the 
 notice required is not indispensable to a discharge of the hotel 
 proprietor or the innkeeper from liability. For, if the innkeeper 
 or hotel keeper, or his clerk or servant, informs a guest on his 
 arrival and occupancy of a room, that there is a safe for the de- 
 posit of the valuables of guests of the house, this will be a suflS- 
 cient notice to exonerate the innkeeper from liability, if such 
 valuables are not placed in the safe, but are afterwards stolen. 
 Purvis v. Coleman, 21 N. Y. Ill; S. C, 1 Bosw. 321. The 
 object of the law requiring a notice to be posted is to give the 
 guest information that a safe is kept for the deposit of his valu- 
 ables, and if he has actual notice, the object of the statute is ac- 
 complished. Ih. And after such actual notice, if a guest leaves 
 a large sum of money, for instance, $2,000 in gold, in a trunk in 
 his room in the hotel, with no person therein, in a city like New 
 York, this is such negligence on his part as will exonerate the 
 innkeeper, independently of the statute. Ih. 
 
 The common-law liability of an innkeeper has been further 
 limited by a statute providing as follows: 
 
 No innkeeper shall be liable for the loss or destruction by fire 
 of property received by him from a guest, stored or being with 
 the knowledge of such guest in a barn or other outbuilding, where 
 it shall appear that such loss or destruction was the work of an 
 incendiary, and occurred without the fault or negligence of such 
 innkeeper. 
 
 No animal belonging to a guest and destroyed by fire while on 
 the premises of any innkeeper, shall be deemed of greater value 
 than three hundred dollars, unless an agreement shall be proved 
 between such guest and innkeeper that a higher estimate shall be 
 made of the same. Laws of 1866, ch. 658, §§ 1, 2. 
 
 Except as modified by these statutes, innkeepers are still in- 
 surers of the safety of the property of their guests. Wilkins v. 
 Earle, 44 N. Y. 172 ; Bamaley v. Leland, 43 N. Y. 539. The 
 26 
 
402 BAILMENT. 
 
 statute permits a proprietor of a hotel to relieve himself from his 
 strict common-law liability in respect to monej^^ jewels or orna- 
 ments belonging to his guests, upon compliance with the prescribed 
 conditions. But the exemption is limited to the particular species 
 of property named, and, being in derogation of the common law, 
 cannot be extended in its operation and effect by doubtful impli- 
 cation, so as to include property not fairly within the terms of 
 the act. Bendetson v. French, 46 N. Y. 266 ; Bamaley v. Leland, 
 43 N. Y. 539. A watch is neither money, jewel nor ornament, 
 and is not within the statute. Ih. 
 
 The statute has no reference to losses at an inn occurring before 
 the guest has had an opportunity to make a deposit in the safe of 
 the inn, or to losses occurring after he had packed his trunk, locked 
 his room, delivered up the key to the clerk, given notice of immedi- 
 ate departure, and requested to have his trunk brought down. 
 Bendetson v. French, 46 IST." Y. 266. 
 
 An innkeeper's liability for the baggage of his guest is not\ 
 terminated the instant the guest pays his bill and leaves the hotel, i 
 but continues for such a reasonable time thereafter as may be \ 
 necessary for him to secure its removal; or if the innkeeper, in I 
 the ordinary course of his business, undertakes its removal to a| 
 railroad, or to some other common carrier, until he has made per-' 
 formance. Maxwell v. Gerard, 84 Hun, 537. 
 
 When a traveler has entered an inn, and deposited his baggage 
 and effects into the hands of the master of the inn or his servants, 
 or in a room or other place in the inn assigned to such traveler 
 as a lodging, the innkeeper impliedly undertakes to be answer- 
 able for their safety and security from larceny or robbery. When 
 a guest laid a reticule containing money on her bed, and after- 
 wards went into her sitting-room, the door of which was opposite 
 the bedroom, and remained there about five minutes, and then 
 sent her companion for the reticule, which was then missing, and 
 could not afterwards be found, it was held that the innkeeper . 
 was bound to make good the loss. Kent v. Shuchard, 2 Barn. & 
 Ad. 803. But if the guest is guilty of gross negligence in leav- 
 ing a box containing money or bank notes in the commercial 
 room after having opened it and exposed its contents to the by- 
 standers, he cannot, if the money is afterwards stolen, charge the 
 innkeeper with the loss. Richmond v. Smith, 8 Barn. & 
 Cress. 9. 
 
 If a traveler carries a large sum of money in a valise, and he 
 conceals the fact that it contains money, and treats it as mere 
 
BAILMENT. 403 
 
 ordinary baggage, this is such gross negligence as will exonerate 
 an innkeeper from liability to refund the money in case the valise 
 is stolen. Fowler v. Dorlon, 24 Barb. 384. If the guest's ser- 
 vant, or his companion who comes with him, or one whom he de- 
 sires to have lodge with him, steals or carries away his goods, the 
 innkeeper will not be chargeable, for in such a case it is the fault 
 of the guest that he had such a servant or companion. But the 
 mere fact that a guest brings a companion to lodge with him, 
 will not exonerate the innkeeper from his liability to pay for 
 stolen goods, if they were not taken by such companion. And 
 where a boarder at a ptiblic boarding-house took a friend of his 
 there, who stayed all night with him in his room, and the evi- 
 dence showed that the guest and his friend left the room together 
 in the morning, that the goods were then there, that the guest 
 locked the door of his room, and then left the key with the bar- 
 keeper of the house, that the guest and his friend were together all 
 day, and that on their return at night to the house, it was found 
 that the guest's clothes had been stolen from his room during his 
 absence, it was held that the guest was not prevented by these 
 facts from recovering the value of the clothes in an action against 
 the hotel keeper. Buddenburg v. Benner, 1 Hilt. 84. 
 
 It is held in Wisconsin that if a man takes a woman to a hotel 
 for the purpose of prostitution he does not thereby acquire the 
 rights of a guest. Curtis v. Murphy, 63 Wis. 4. But, apart from 
 this authority, it is clear, under the general rule, that if a guest, 
 while occupying a room with a strumpet whom he has taken to 
 the hotel, is robbed by her, the loss is the result of his own neg- 
 ligence and misconduct, and the landlord is not liable therefor. 
 If, however, the loss occurs after the strumpet's departure, the 
 landlord is liable, notwithstanding the previous immorality of 
 the guest. Lucia v. Omel, 46 App. Div. 200. 
 
 If a guest at an inn asks for a private room for the purpose 
 of exhibiting goods for sale, and he receives customers and invites 
 the admission of strangers into the inn, upon whose ingress and 
 egress the innkeeper has no check, the latter is not responsible 
 for the safety of the goods in the room so used. Burgess v. Cle- 
 ment, 1 Stark. 251, n. ; 8. C, 4 Maule & Selw. 306 ; Farn- 
 worth V. Pachwood, id. 249. An innkeeper, however, is liable 
 for a loss which occurs by larceny while he is sick and incapable 
 of attending to his affairs in person, for in such a case he is bound 
 to retain and employ trusty servants to secure the goods of his 
 euest. Cross v. Andrews, Cro. Eliz. 622. 
 
404 BAILMENT. 
 
 If a guest at an inn puts a sleigh or wagon loaded with grain 
 into a closed outhouse appurtenant to the inn, and where loads 
 of that kind were usually received, but without specially com- 
 mitting it to the innkeeper, this will be sufficient to render the 
 innkeeper liable for the loss of the grain if it is stolen during the 
 night. Clute v. Wiggins, 14 Johns. 1Y5. So if a guest leaves his 
 wagon containing his goods in an uninclosed shed near the inn, 
 by the direction of the hostler and servant of the innkeeper, the 
 latter is liable for such goods as are stolen from the wagon during 
 the night. Piper v. Manny, 21 Wend. 282. 
 
 If the proprietor of a hotel is in the habit of receiving packages 
 which are sent to guests at his house, and this is an established 
 practice, not an exceptional case, and a book is kept for the reg- 
 istry of such packages which are entered by the defendant's clerk, 
 this is sufficient to render the innkeeper liable for such packages 
 as are thus received and afterwards lost or stolen. Needles v. 
 Howard, 1 E. D. Smith, 54. An innkeeper may refuse to receive 
 such packages of goods from third persons, and thus become re- 
 sponsible for their custody, but if he does receive them for the 
 accommodation of his guests, he receives them in the character of 
 an innkeeper, and subject to the responsibilities of that relation. 
 lb. 
 
 If goods, not the property of a guest, are left with the clerk 
 at the inn for safe-keeping imtil called for, and the clerk had no 
 authority to receive goods under such circumstances, the innkeeper 
 will not be liable to the owner of the goods for their loss. The 
 liability, if any, is not that of an innkeeper but as a bailee, and 
 the person liable is the clerk who, on his own authority, agreed 
 to safely keep the goods, and not the innkeeper. See Coyhendall 
 V. Eaton, 37 How. 438 ; 40 id. 266. 
 
 Money in a trunk not exceeding the amount reasonably re- 
 quired by the traveler to defray the expenses of the journey which 
 lie has undertaken, is a part of his baggage, for the loss of which 
 the innkeeper is liable. Taylor v. Monnot, 4 Duer, 116 ; Stanton 
 V. Leland, 4 E. D. Smith, 88 ; Van Wyck v. Howard, 12 How. 
 147. A watch and chain and a gold pen and pencil case, and a 
 reasonable sum for traveling expenses, are not such articles as a 
 guest is bound to deposit in a safe provided by an innkeeper 
 under the act of 1855, and he will be liable for the loss of such 
 articles from his guest's room, notwithstanding his notice that a 
 safe had been provided. Gile v. Libby, 36 Barb. 70. An inn- 
 ieeper is responsible to one guest for the dishonesty of another 
 
BAILMENT. 405 
 
 guest whom he puts into the same room with the former. Ih. 
 In an action against an innkeeper to recover the value of property 
 lost by a guest, proof of the loss or larceny of the goods from the 
 room in which he lodged, is sufficient proof of carelessness on 
 the part of the innkeeper. Ih. 
 
 When the goods of a guest are actually stolen cr lost, no de- 
 mand is necessary before suit brought. McDonald v. Edgerton, 
 5 Barb. 560; Willard v. Rheinhardt, 2 E. D. Smith, 148. 
 
 § 9. Common Carriers. 
 
 Every person who undertakes, with a carriage by land or a 
 boat or vessel by water, to transport passengers, or the goods of 
 such persons as may choose to employ him, from place to place, 
 for hire, is a common carrier. Jackson Architectural Iron Works 
 V. Hulburt, 158 N. T. 34; Bank of Orange v. Brown, 3 Wend, 
 158 ; Allen v. Sackrider, 37 JST. Y. 341. The class of persons 
 who are treated as common carriers is quite extensive. It 
 includes railroad companies, who profess to carry passengers, par- 
 cels, and merchandise; express companies, stage coach and stage 
 wagon proprietors, lightermen, hoymen, barge and canal boat 
 owners, and the owners and masters of ships or steamboats em- 
 ployed as general ships or vessels for the transportation of all per- 
 sons offering themselves or their goods to be conveyed for hire to 
 the port of destination. Carmen, truckmen and porters, and the 
 like, whose business is to carry goods from one part of a city to 
 the other, or wagoners or teamsters, who carry goods from one 
 city or village to another, are common carriers. Bobertson v. 
 Kennedy, 2 Dana, 430 ; Ingate v. Christie, 3 Oarr. & Kir. 61 ; 
 Jackson Agricultural Iron Works v. Hurlbut, 158 N. T. 34. It is 
 not necessary that the exclusive business of the person should be 
 carrying in order to make him a common carrier. Where a per- 
 son whose principal pursuit is farming, solicits goods to be carried 
 to the market tovsna in his wagon on certain occasions, he makes 
 himself a common carrier for those who employ him. And where 
 persons advertise themselves as general truckmen, their particular 
 specialty being the moving of heavy machinery, and keep and 
 maintain for this purpose a large number of trucks and horses, 
 and the necessary help for the prosecution of this business, the 
 fact that they have no regular tariff of charges for their work, 
 but that a special price is fixed in each case by agreement, will 
 not divest them of the rights and liabilities of common carriers. li. 
 
406 BAILMEA'T. 
 
 A messenger company, which furnishes messengers to any who 
 may desire them, is a common carrier. Sandford v. American 
 District Telegraph Co., 31 Abb. N. C. 147; 6 Misc. 534; 58 St. 
 Eep. 16; 27 E". Y. Supp. 142. One who makes it a business to 
 solicit from the public the transportation of trunks and packages 
 is liable as a common carrier. Boiinson v. Cornish, 34 St. Eep. 
 695. 
 
 Proprietors of stages are not necessarily common carriers of 
 goods ; but if they usually carry other goods than those of passen- 
 gers, for hire, and hold themselves out as carriers for all who 
 choose to employ them, they are liable as common carriers. Clark 
 V. Faxton, 21 Wend. 153. Express companies, and individuals 
 whose business is, and is represented by them to the public to be, 
 to receive, convey and deliver the goods, packages, money or bank 
 bills, of those who choose to employ them, for a compensation, are 
 common carriers. Bussell v. Livingston, 19 Barb. 346 ; Place v. 
 Union Express Co., 2 Hilt. 19 ; Sherman v. Wells, 28 Barb. 403 ; 
 Neivstadt v. Adams, 5 Duer, 43 ; Sweet v. Barney, 23 IST. Y. 335, 
 337. A city express company whose business it is to carry the 
 parcels, packages, trunks and Baggage of travelers and passengers 
 to the various railroad depots, are common carriers, and subject 
 to their responsibilities. Bichards v. Westcott, 2 Bosw. 589. A 
 person who merely receives goods and forwards them, and takes 
 upon himself all the expenses of the transportation, for which he 
 receives a compensation from the owner of the goods, but who 
 has no interest in the vessels in which they are forwarded, nor in 
 the freight, is not a common carrier. Boberts v. Turner, 12 Johns. 
 232. But if forwarders so act and conduct their business as to 
 lead the public to regard them as carriers, and to employ them 
 as such, without any intimation of their true character, the lia- 
 bilities of a carrier will attach to them. Teall v. Sears, 9 Barb. 
 317, 324. 
 
 The owners and masters of canal boats are common carriers, 
 and they have no legal right or authority to sell the goods intrusted 
 to their care, unless it is given by the owner. Arnold v. Halen- 
 hake, 5 Wend. 33 ; Parsons v. Hardy, 14 Wend. 215 ; De Mott 
 V. Laraway, id. 225. The same rule is applicable to boatmen 
 on rivers. Gordon v. Buchanan, 5 Yerg. 71 ; Turney v. Wilson, 
 1 id. 341. Ferrymen are not necessarily common carriers of 
 good-6, though they generally become such by usage. Smith v. 
 Seward, 3 Penn. St. 342 ; Fisher v. Clisbee, 12 111. 344. The 
 owners of a steamboat which is merely employed in the business 
 
BAILMENT. 407 
 
 of towing other boats for hire are not common carriers. Caton 
 V. Bumney, 13 Wend. 387 ; Alexander v. Greene, 3 Hill, 9 ; Wells 
 V. Steam Navigation Co., 2 N. Y. 204. 
 
 A person who has followed the business of a common carrier, 
 but abandoned it, and who subsequently enters into a special 
 contract to carry certain goods for a third person, is not liable as 
 a common carrier to another person whose goods were carried 
 by the servant of the owner of the team in violation of his in- 
 structions, even if such servant stole them on the way. Satterlee 
 V. Oroat, 1 "Wend. 272. And see Lygo v. Newbald, 9 Wels., 
 Hurlst. & Gord. 302. 
 
 Steamboats upon inland lakes, and upon navigable rivers are 
 among the most common kinds of carriers of goods, as well as 
 of passengers. They may limit their business and their liability 
 to a particular kind of goods, or merely to the carriage of passen- 
 gers. And when such a restricted business is done, which is 
 known by the party dealing with the owner or master of the 
 vessel, the liability will be limited accordingly. Citizens' Bank v. 
 Nantucket Steamboat Co., 2 Story, 16. See Sherman v. Inman 
 Steamship Co., 26 Hun, 107, 111. Eailroad companies are al- 
 most invariably conamon carriers of goods, and their liabilities 
 are similar to those of any other common carrier. Beers v. Housa- 
 tonic B. B. Co., 19 Conn. 566; Thomas v. Boston & P. B. B. Co., 
 10 Mete. 472 ; Pichford v. Grand Junction B. B. Co., 8 Mees. & 
 Wels. 372 ; Norway Plains Co. v. B. & M. B. B. Co., 1 Gray, 263 ; 
 People V. iV. Y., L. E. & W. B. B. Co., 22 Hun, 533, 537. The 
 statutes of this State declare that every railroad doing business in 
 this State shall be a common carrier. Laws of 1890, ch. 565, § 
 48; General Laws, ch. 39, § 48. 
 
 A private carrier may carry or refuse to carry goods for another 
 as he may prefer. But every common carrier is bound Jo accept 
 and carry all such things as he publicly professes to carry, for all 
 persons who are ready and willing to pay him his customary hire, 
 provided he has room in his boats, cars, coaches, carts or carriages, 
 for their conveyance, and he intends to set out on his accustomed 
 journey. Pickford v. Grand Junction B. B. Co., 8 Mees. & Wels. 
 372 ; Johnson v. Midland B. B. Co., 4 Exch. 367 ; Lane v. Cotton, 
 12 Mod. 472, 484; Allen v. Sackrider, 37 K Y. 341; People v. 
 N. Y., L. E. d- W. B. B. Co., 22 Hun, 533, 537. 
 
 If a carrier refuses to carry goods without a legal excuse there- 
 for, he is liable to an action for his refusal. Ih. The ovmer of 
 the goods may tender him the freight money; or, if the money 
 
408 BAILMENT. 
 
 is not demanded by the carrier, he may aver and prove that he 
 was ready and willing to pay the freight money, and this will be 
 equivalent to a tender. Parker v. Oreat Western B. R. Co., 7 
 Man. & Grang. 253 ; Edwards v. Great Western B. B. Co., 11 C. 
 B. 588 ; CroMcA v. London B. B. Co., 2 Carr. & Kir. 789 ; Parker 
 v. Bristol & E. B. B. Co., 6 Exch. 184, 702. 
 
 The duty of railroad companies to carry freight or passengers 
 and to provide suitable and sufficient accommodations therefor, is 
 declared by general laws in this State. " Every railroad corpora- 
 tion shall start and run its cars for the transportation of pas- 
 sengers and property at regular times, to be fixed by public notice, 
 and shall furnish sufficient accommodations for the transportation 
 of all passengers and property which shall be offered for trans- 
 portation at the place of starting, within a reasonable time 
 previously thereto, and at the junctions of other railroads, and at 
 the usual stopping places established for receiving and discharg- 
 ing way passengers and freight for that train; and shall take, 
 transport and discharge such passengers and property at, from and 
 to, such places, on the due payment of the fare or freight legally 
 authorized therefor. No station established by any railroad cor- 
 poration for the reception or delivery of passengers or property, 
 or both, shall be discontinued without the consent of the railroad 
 commissioners first had and obtained. No preference for the 
 transaction of the business of a common carrier upon its cars, or 
 in its depots or buildings, or upon its grounds, shall be granted 
 by any railroad corporation to any one of two or more persons, 
 associations or corporations competing in the same business, or 
 in the business of transporting property for themselves or others. 
 Any such station in an incorporated village shall have the same 
 name as the village; if any road shall have more than one such 
 station in any such village, the station nearest the geographical 
 center thereof shall have such name. General Laws, ch. 39, § 34. 
 See People v. N. Y., L. E. & W. B. B. Co., 22 Hun, 533 ; Lough 
 V. Outerbridge, 143 N. Y. 271 ; Boot v. Long Island B. B. Co., 
 114 N. Y. 300. * 
 
 It is ordinarily the duty of a carrier to carry goods in the order 
 in which they were received. Keeney v. Grand Trunk B. B. Co., 
 47 N. Y. 525. But if two kinds of property, the one perishable 
 and the other not, are delivered to the carrier at the same time, 
 by different owners, for transportation, he may and must give 
 preference to that which is perishable. Marshall v. N. Y. Cent. 
 B. B. Co., 45 Barb. 502 ; 48 N. Y. 660. The same rule applies 
 
BAILMENT. 409 
 
 to a carrier in whose hands freight has so accumulated that he 
 must give priority to one kind over another. Tierney v. N. Y. C. 
 & H. R. B. B. Co., 76 N. Y. 305. Perishable freight should be 
 forwarded immediately. Cartwright v. Borne, W. & 0. B. B. 
 Co., 85 Hun, 517. A common carrier may make such a contract 
 as he pleases in relation to his compensation, though a tender of 
 his usual compensation, or of a reasonable sum, will oblige him 
 to carry; and in the absence of a special agreement, this is all 
 that he can recover. Harris v. Packwood, 3 Taunt. 264. He is 
 bound to carry goods to and from such places as he professes to 
 carry them, although one of those places may be out of the realm 
 or State ; though he is not bound to carry such articles as he does 
 not publicly profess to carry. Crouch v. Lond. & North Western 
 B. B. Co., 14 C. B. 290 ; Johnson v. Midland B. B. Co., 4 Exch. 
 373. A carrier who has a lien for advances which he has made 
 upon goods consigned to him for further transportation, has a 
 special property therein sufficient to maintain an action for the 
 recovery of their possession against any person who does not claim 
 them under a right from the owner. Fitzhugh v. Wiman, 9 N. 
 T. 559. A carrier is not permitted to dispute the title of those 
 who are recognized by his contract as owners of the property. 
 McOaw V. Adams, 14 How. 461. 
 
 A vendor who had agreed to sell certain goods, shipped them 
 by order of the purchaser, and took receipts which entitled him 
 to the bill of lading; the sale was not consummated, and the 
 vendor reclaimed the goods, though in the meantime the pur- 
 chaser had secured the bill of lading, which he had no right to do, 
 and the carrier then refused to redeliver the goods to the vendor ; 
 it was held that in an action by the latter against the carrier to 
 recover the possession of .the goods, the carrier could not demand, 
 by way of counterclaim, freight, damages for breach of any freight 
 contract, for delaying the vessel, or for the reasonable expenses to 
 which he was subjected by the plaintiff in recovering possession 
 of the goods. Blossom v. Champion^ 37 Barb. 554, 570. And see 
 ,S^. C, 28 Barb. 217. 
 
 The rule as to the responsibility of the carrier is laid down in 
 varying phraseology in a variety of cases, as follows : To render a 
 common carrier liable for goods to be carried by him, the fact 
 that the goods were actually delivered to him, or to some person 
 authorized to act in his behalf, must be established. His liability 
 attaches only from the time he- accepts the goods to be carried. 
 To complete the delivery of the goods to the carrier it is essential 
 
410 BAILMENT. 
 
 that tke property be placed in a position to be cared for, and 
 under the control of the carrier or his agent, with his knowledge 
 and consent. The liability of a railroad company as a common 
 carrier of goods delivered to it attaches only when the duty of 
 immediate transportation arises. So long as the shipment is de- 
 layed for further orders as to destination of the goods, or for the 
 convenience of the owners, the liability of the company is that of 
 a warehouseman. The liability of a common carrier for goods 
 , received by him begins as soon as they are delivered to him, his 
 agents or servants, at the place appointed or provided for their 
 (reception when they are in a fit and proper condition and ready 
 jfor immediate transportation. If a common carrier receives 
 Jgoods into his own warehouse for the accommodation of himself 
 and his customers, so that the deposit there is a mere accessory to 
 the carriage, and for the purpose of facilitating it, his liability 
 as a carrier will commence with the receipt of the goods. But 
 on the contrary, if the goods, when so deposited, are not ready for 
 immediate transportation, and the carrier cannot make arrange- 
 ments for their carriage to the place of destination until some- 
 thing further is done or some further direction is given or com- 
 munication is made concerning them by the owner, or consignor, 
 the deposit must be considered to be in the meantime for his con- 
 venience and accommodation, and the receiver, until some change 
 takes place, will be responsible only as a warehouseman. The 
 party bringing the goods must first do whatever is essential to 
 enable the carrier to commence, or to make needful preparations 
 for commencing, the service required of him, before he can be 
 made liable or subjected to liability in that capacity. The duties 
 and obligations of the common carrier with respect to the goods 
 commence with their delivery to him, and this delivery must be 
 complete, so as to put upon him the exclusive duty of seeing to 
 their safety. The law will not divide the duty or the obligation 
 between the carrier and the owner of the goods. It must rest 
 entirely upon the one or the other, and until it has become im- 
 posed upon the carrier by a delivery and acceptance, he cannot be 
 held responsible for them. See London & Lancashire Fire Ins. 
 Co. V. Borne, W. & 0. B. B. Co., 144 N. Y. 200, 205, and cases 
 cited. 
 
 Before an express company can be made liable for the loss of 
 money intended to be sent by it, there must have been a delivery 
 of the money to some duly authorized officer or agent of the com- 
 pany ; and where a package of money was delivered by the plain- 
 
BAILMENT. 411 
 
 tiff to a clerk of the agent of the company, at a place outside of 
 the office of such agent, it was held that this was not such a de- 
 livery of the money as rendered the company liable for a loss 
 thereof, which accrued while it was in the hands of such clerk, 
 and before it came into actual possession of the agent. Cronk- 
 ite V. Wells, 32 N. Y. 247. In such a case, it will not make 
 any difference in the rule, if it is shown that the former agents 
 of the company were accustomed to receive such packages from the 
 plaintiff outside of the office, nor to show that the clerk of such 
 agent was accustomed to receive such packages in the office, and 
 to receipt them there. Ih. 
 
 To charge a common carrier there must be a special acceptance 
 of the property, or a delivery of it, according to the established 
 usage of the carrier's business; and where, by such usage, there 
 is a person appointed to receive and take charge of a particular 
 kind of property, the delivery must be to him, and not to one 
 engaged in the discharge of other duties. Ball v. New Jersey 
 Steamboat Co., 1 Daly, 491. Where a common carrier has an 
 agent on his boat to receive and take charge of baggage and to 
 cheek it, it is not a good delivery to leave it upon the boat with- 
 out obtaining a check or calling attention to it. Ih. A cartman 
 took the plaintiff's trunk to the defendant's wharf, and was there 
 -directed by a baggagemaster, having charge of a different class 
 of goods, to take it on board the boat ; and the cartman, there- 
 upon, deposited the trunk with other trunks at the baggage door 
 on the boat, but without obtaining a check for it, or calling to it 
 the attention of the baggagemaster having charge of that class of 
 baggage, and it was held that this was not such a delivery or 
 acceptance as to render the defendant liable for the loss of the 
 trunk. Ih. 
 
 Aa a general rule, a carrier cannot defend an action brought by 
 his bailor for the property delivered to him by setting up the 
 right of a third person thereto as a defense for himself. Dixon 
 V. Hammond, 2 Barn. & Aid. 310; Roberts v. Ogilby, 9 Price, 
 269 ; Hardman v. Willcock, 9 Bing. 382, note a; Bates v. Stanton, 
 1 Duer, 79. 'No obligation of the carrier is more rigorously 
 enforced than that which requires delivery to the proper person, 
 and the law will allow, in fact, of no excuse for a wrong delivery, 
 except the fault of the shipper himself. Furman v. Union Pacific 
 B. B. Co., 106 ]Sr. Y. 579. If the carrier is in doubt as to the 
 proper person to make delivery, and it can be determined by docu- 
 mentary evidence, its production should be required. Ih. It is 
 
412 BAILMENT. 
 
 the duty of a carrier to ascertain whether a bill of lading was 
 delivered to the shipper, and if so, he should retain the property 
 until demanded by one claiming under that title. City Bank v. 
 Borne, W. £ 0. B. B. Co., 44 K Y. 136 ; Howard v. Shepard, 
 0. B., 9 M. Gr. & Scott, 297 ; Tindall v. Taylor, 4 El. & Bl. 219. 
 If a common carrier delivers goods to the wrong person, although 
 by his own innocent mistake, or by his being imposed upon, he 
 is liable to the true owner for the value. The carrier delivers at 
 his peril. He is responsible as an insurer. And a wrongful de- 
 livery by him is treated at common law as a conversion of the 
 property. Scheu v. Erie By. Co., 10 Hun, 498 ; McEntee v. Neio 
 Jersey Steamboat Co., 45 JST. Y. 34; Clement v. iV. Y. Central, 
 etc., B. B. Co., 30 St. Eep. 713 ; HawUns v. Hoffman, 6 Hill, 
 586; Powell v. Myers, 26 Wend. 290; Devereux v. Barclay, 2 B. 
 & Aid. 702 ; Quillaume v. Hamburg & Am. Packet Co., 42 K Y. 
 212. The possession by a stranger of a notice sent by the carrier 
 to the consignee that the goods had arrived and stating " return 
 this notice when you call to pay charges," does not excuse the 
 wrongful delivery of such goods by the carrier to such stranger. 
 Sinsheimer v. N. Y. Central, etc., B. B. Co., 21 Misc. 45. A 
 carrier upon whom a requisition in replevin is made by the con- 
 signor of goods shipped, should not surrender them to the sheriff 
 without notice to the holder of the bill of lading, and is liable for 
 the value of the goods, if he does so surrender them, to the pledgee 
 of the bill of lading who received it from the consignee. Spiegel 
 V. Pacific Mail Steamship Co., 26 Misc. 414. See Boberts v. S. 
 S. D. Co., 123 N. Y. 57. On the other hand, if the carrier de- 
 livers the goods to a third party, and it can be shown in an action 
 against him that this third party was the actual and lawful owner, 
 and that the plaintiff, who delivered the goods to the carrier, had 
 no right whatever to them, this is clearly a sufficient defense. 
 King v. Bichards, 6 A¥hart. 418 ; Bates v. Stanton, 1 Duer, 79. 
 If a third person has a valid legal title to the goods, and he de- 
 mands them from the carrier, who refuses to deliver them on 
 such demand, an action will lie against the latter for such refusal. 
 Wilson y. Anderton, 1 Barn. & Ad. 450. 
 
 The liability of a common carrier does not rest on his contract, 
 but is a liability imposed by law, and it exists independently of 
 his contract, having its foundation in the policy of the law, and it 
 is upon this legal obligation that he is charged as carrier for the 
 loss of property intrusted to him. Merritt v. Earle, 29 IST. Y. 115. 
 The law adjudges a common carrier responsible, irrespective of 
 
BAILMENT. 413 
 
 any question of negligence or fault on his part, if the loss does not 
 occur by the act of God or the public enemies; with these ex- 
 ceptions the carrier is an insurer against all losses. Ih. The 
 " act of God " and " inevitable accident " have sometimes been 
 used in a similar sense and as equivalent terms; but there is a 
 distinction, for that may be an " inevitable accident " which no 
 foresight or precaution of the carrier could prevent ; but the phrase 
 ■' act of God " denotes natural accidents that could not happen 
 by the intervention of man, such as storms, lightning and tempest. 
 Ih. The expression " act of God " excludes all human agency. 
 lb.; Michaels v. New Yorh Central R. R. Co., 30 ¥. Y. 564. 
 
 The price, hire, compensation or reward for the carriage of the 
 passenger or of goods is of the essence of the carrier's contract, 
 for he is not a common carrier unless he carries for all persons 
 indiscriminately, for hire or reward. Satterlee v. Oroat, 1 Wend. 
 272 ; Blanchard v. Isaacs, 3 Barb. 388 ; Lygo v. Neivhold, 9 Wels., 
 Ilurlst. & Gord. 302. It is not, however, necessary that the hire 
 or reward should be for a fixed sum; it is sufficient if the com- 
 pensation is to be what is a reasonable and just smn for the 
 service to be paid to the carrier. Allen v. Bewail, 2 Wend. 327. 
 
 There need not be any express contract to pay a compensation, 
 for the character of the carrier is such that the law implies a 
 promise to pay him a reasonable sum for the carriage of all goods 
 that are tendered or delivered to him for carriage. Ih. And 
 although a carrier is bound to receive and carry all goods tendered 
 to him, if they are such as he usually carries, he still has a right 
 to demand prepayment of his hire or compensation as soon as the 
 goods are delivered to him. Pickford v. Grand Junction R. R. 
 Co., 8 Mees. & Wels. 372 ; Wyld v. Pickford, 8 Mees. & Wels. 
 443. But if a carrier receives goods for carriage without demand- 
 ing prepayment, he cannot maintain an action to recover the 
 price of carriage until he delivers the goods at their place of 
 destination. Barnes v. Marshall, 18 Ad. & E. N. S. 785. Where 
 the contract of the carrier is to transport the goods and to deliver 
 them to the consignee, he must make complete delivery before he 
 will become entitled to freight. The delivery in such case is as 
 essential to performance as transportation, and is a substantial 
 part of the contract. Western Transportation Co. v. Hoyt, 69 
 JSr. Y. 230 ; N. Y. C. & H. R. R. R. Co. v. Standard Oil Co., 87 
 N. Y. 486. And see Richmond v. Union Steamboat Co., 87 N. 
 Y. 240. If freight is paid in advance and in consequence of the 
 capture or shipwreck of the vessel, or other cause bey^pnd the con- 
 
414 BAILMENT. 
 
 trol of the master or owners, the goods are not carried to the 
 place of destination, the freight is not earned, and may be re- 
 covered back unless a special agreement is made to the contrary. 
 Emery v. Dunbar, 1 Daly, 408. So if a carrier by water is com- 
 pelled to throw overboard a portion of the cargo, he cannot re- 
 cover freight for more goods than he delivers. Price v. Harts- 
 horn, 44 Barb. 655 ; 44 N. Y. 94. So if the contract requires 
 the carrier to transport the goods to the warehouse of the ovtmer, 
 and the owner to pay for carriage on delivery of the goods, the 
 carrier cannot recover freight on goods destroyed by fire before 
 actual delivery at the warehouse, although the, owner, by his con 
 tract, assiimes all risk of loss of his property by fire while in 
 charge or custody of the carrier. N. Y. C. & H. R. B. E. Co. v. 
 Standard Oil Co., 20 Hun, 39; 87 N. Y. 486. Back charges,, 
 which the last carrier had agreed to pay to a co-contractor, cannot 
 be recovered under such circumstances. Ih. 
 
 Where, by the terms of a bill of lading, the cargo is to be de- 
 livered to the consignee, on the payment of the freight to the 
 carrier, the latter has a right to refuse to deliver the goods until 
 the payment of the freight. Clarhson v. Edes, 4 Cow. 470. The 
 right to retain goods for the freight grows out of the usage of 
 trade, and it will be waived or surrendered by an agreement to 
 accept payment of the freight at a time subsequent to that agreed 
 upon for the delivery of the goods, for such an agreement is an 
 express renunciation of the right to demand the payment of 
 freight before the delivery of the goods. Chandler v. Belden, 18 
 Johns. 157. 
 
 !No principle is more firmly established than that a common 
 carrier has a lien upon the goods which he has carried ; and that 
 he need not deliver them until his just claims for freight or car- 
 riage are paid or tendered to him. N. Y., L. E. & W. R. B. Co. 
 V. N. S. Co., 137 'N. Y. 23, 25; Clark v. Masters, 1 Bosw. 177. 
 And while he holds them to secure his right of lien, he does not 
 hold them as a common carrier, but merely as any other person 
 holds property as a security for debt. 
 
 A carrier may waive or lose his lien by a delivery of the prop- 
 erty to the owner or the consignee, for such a relinquishment of 
 the possession of the goods will be construed as an intention to 
 trust to the personal responsibility of the person who is liable to 
 pay the freight. Bigelow v. lieaton, 4 Denio, 496. But if the 
 delivery is procured by fraiid, the lien continues and the carrier 
 may recover possession by an action of replevin. Ih.; 8. C, 6- 
 
BAILMENT. 415 
 
 Hill, 43. So if, through, the default of the consignee, the carrier 
 is obliged to store the goods subject to his lien, he does not forfeit 
 his lien. Western Transp. Co. y. Barber, 56 IST. Y. 544. 
 
 Where, without inquiry as to the value of a package delivered 
 for transportation, and in the absence of any misrepresentation, 
 deceit or artifice on the part of the shipper, or notice on the part 
 of the carrier of a limited liability, based upon value, the carrier 
 agrees to carry the package for a stipulated sum, he is bound by 
 his contract and cannot claim additional compensation for trans- 
 portation or risk incurred, although the package was of greater 
 value than he supposed. If the carrier refuses to deliver the 
 package without payment of increased charges, which is paid ac- 
 cordingly, the consignee may recover back such extra charge as 
 paid under duress of goods. Baldwin v. Liverpool & O. W. 8. S. 
 Co., 11 Hun, 496 ; 74 N. Y. 125. ,.,^ 
 
 In an action for freight, the defendant may counterclaim for 
 damages arising from a breach of the carrier's contract. Oleadell 
 V. Thomson, 56 N. Y. 194. 
 
 When a carrier cannot find the consignee, or if he learns that 
 he is a swindler, and would cheat the consignor, he is bound to 
 protect the owner and consignor, and for that purpose to hold 
 the goods, or to bestow them in some proper manner and place for 
 his use. Stephenson v. Hart, 4 Bing. 4Y6 ; Duff v. Budd, 3 Brod. 
 & Bing. 177. And the rule is the same where the consignee re- 
 fuses to receive the goods. Crouch v. Great Western B. B. Co., 
 2 Hurlst. & Norm. 491. Where goods have been tendered by a 
 carrier to a consignee and refused by him, there is no rule of 
 law that the carrier must give notice of such refusal to the con- 
 signor; he is only bound to do what is reasonable, and what is 
 reasonable is a question of fact under all the circumstances of the 
 case Hudson v. Baxendale, 2 Hurlst. & Norm. 575. See Weed 
 V. Barney, 45 N. Y. 344; Manhattan Shoe Co. v. C, B. & Q. B. 
 B. Co., 9 App. Div. 172. 
 
 A carrier may be a factor to sell the goods for the owner, and 
 his authority may be by express appointment, or it may arise 
 from the usages of trade. Williams v. Nichols, 13 Wend. 58. 
 The ordinary principles relating to agencies apply to a carrier 
 as well as to other persons ; and he is liable for the acts or omis- 
 sions of those whom he employs in his business, if the act or 
 omission would render the principal liable if he did the acts in 
 person. 
 
 There are cases, however, in which the acts of the agent or 
 
416 BAILMENT. 
 
 servant will not bind the carrier as principal. If a stage pro- 
 prietor is accustomed to carry passengers and their baggage, but 
 no other goods, such proprietor will not be liable for the loss of 
 goods which are intrusted to the stage driver by a person who is 
 not a passenger. Bewail v. Allen, 6 Wend. 335 ; Blanchard v. 
 Isaacs, 3 Barb. 388 ; King v. Lenox, 19 Johns. 235. If stage 
 drivers, conductors of cars, or other agents on public conveyances, 
 are in the habit of carrying goods, packages and parcels for money 
 paid to themselves and not accounted for by them to their employ- 
 ers, and a person delivers goods to them to carry, with a knowl- 
 edge of sii ch facts , such person cannot hold the carrier or employer 
 of^uch servant liable for the loss of any such goods. Ih. But a 
 person may so contract with his servants or agents as to render 
 himself liable for their acts. If a stage proprietor should hire 
 a stage driver at a specified sum per month as wages, with the 
 right to carry small parcels on the stage and to receive the com- 
 pensation to himself, this will render the proprietor liable for the 
 loss of such a parcel or for its non-delivery, unless the arrange- 
 ment between driver and proprietor was known to the person 
 sending the package, and he contracted with the driver as prin- 
 cipal. Bean v. Sturtevant, 8 N. H. 146 ; Allen v. Bewail, 2 Wend. 
 327 ; S. C, 6 Wend. 335 ; Hosea v. McCrory, 12 Ala. 349 ; Whit- 
 man V. Steamboat Carolina, 20 id. 513. 
 
 As soon as the goods are delivered and received, they are at 
 the risk of the carrier. This reception of them may be specific or 
 general, and according to the usage of his business, and it may 
 be actual or constructive. But in order to charge the carrier 
 with the goods, there must be a delivery of them into his custody, 
 either to the carrier personally, or to his agent or servant, or to 
 some one acting in his behalf and authorized to receive them. 
 And, since it is the carrier's possession of the goods which creates 
 his duty to answer for their custody and carriage, so it is in all 
 cases necessary to show that the goods came into his possession 
 for transportation. See CronTcite v. Wells, 32 W. Y. 247 ; Nelson 
 V. Hudson River R. R. Co., 48 IST. Y. 498 ; Grosvenor v. N. Y. 
 C. B. R. Co., 39 ISr. Y. 34; 5 Abb. N. S. 345; Sunderland v. 
 Westcott, 40 How. 468 ; O'Neill v. N. Y. C. & H. R. R. R. Co., 
 60 K Y. 138 ■,L.&L. F. Ins. Go. v. R., W. & 0. R. R. Co., 144 
 ]Sr. Y. 200 ; ante, p. 409. If goods are left for a carrier for trans- 
 portation at an inn-yard or a warehouse, at which other carriers 
 also stop, this will not be considered a delivery, so as to charge 
 the carrier unless he has special notice that they are so delivered. 
 
BAILMENT. 4l1 
 
 -or he has received some previous instructions to that effect. Where, 
 according to the usual custom and understanding of parties, a 
 delivery on a dock near the boat, is a good delivery so as to cjiarge 
 the carrier, it must always be accompanied by an express -notice, 
 or he will not be responsible. Packard v. Getman, 6 Cow. 757. 
 
 When goods were delivered to a railroad corporation by merely 
 depositing them on a stoop or platform of the freight house at a 
 depot, when there was no agent of the company there at the time, 
 but the cartman who delivered the goods subsequently informed 
 the freight agent that the owner of the goods would call and 
 order where they should go, but this was not done, it was held 
 that the company were not in default, and could not be made 
 liable for not transporting the goods. Spade v. Hudson River B. 
 R. Co. J 16 Barb. 383. If goods are marked for a particular 
 destination, and are thus delivered to a carrier with no directions 
 as to their transportation and delivery, except such as may be 
 inferred from the marks, the carrier is merely bound to trans- 
 port and deliver the goods according to the established usage of 
 the business in which he is engaged, whether the consignor knew 
 of the usage or not. Van Santvoord v. 8t. John, 6 Hill, 157; 
 Hempstead v. N. Y. Central R. R. Co., 28 Barb. 485. If a com- 
 mon carrier receives goods for transportation, and gives a bill of 
 lading therefor, which specifies the name of the consignee to 
 whom such goods are to be delivered, and which contains a copy 
 of the mark upon them, he will not be excused from answering 
 for their loss merely because the goods were not sufficiently marked. 
 Kreuder v. Woolcott, 1 Hilt, 223. 
 
 If a traveler intends to take passage as a passenger on the next 
 boat that leaves, and he delivers his baggage to the agent of the 
 carriers at their office, where they are in the habit of thus receiv- 
 ing baggage in advance for the boat, and the agent receives it with 
 a knowledge of the purpose of its delivery, this will be sufficient 
 to render the boatowners liable as common carriers, and for the 
 safekeeping of the property. Camden R. R. and 8. Co. v. Bel- 
 knap, 21 Wend. 354. 
 
 The liability of a common carrier commences as soon as he re- 
 ceives the goods for carriage, notwithstanding he has not given 
 bills of lading nor commenced his journey. Lakeman v. Grinnell, 
 5 Bosw. 625. A contract made by a steamboat company for the 
 transportation of property as a common carrier, is not void merely 
 because it was entered into on Sunday, nor because the voyage 
 ■of the boat is to commence, and actually does commence on Sun- 
 
 27 
 
418 BAILMENT. 
 
 day evening. Merritt v. Earle, 31 Barb. 38 ; 29 N". Y. 115. To 
 render such a contract void under the statute, it must relate to 
 servile labor which is to be performed expressly and exclusively 
 on that day. Ih. 
 
 It has been long and firmly established, that a common carrier 
 intrusted with goods for carriage, is responsible for their safety 
 in all events and from every injury which arises in any other way 
 than by the act of God, or of public enemies. Merritt v. Earle, 
 29 N. Y. 115; Price v. Hartshorn, 44 Barb. 655; 44 N. Y, 94; 
 Read v. Spaulding, 30 N". Y. 630 ; Heyl v. Inman Steamship Co., 
 14 Hun, 564. He will be liable though he should be robbed by 
 force committed by a great multitude. The policy of the law in 
 enforcing so strict a rule against carriers, is the prevention of any 
 combination between them and thieves, robbers, or others who 
 might otherwise act in concert yet in a clandestine manner, for 
 such thefts or robberies at times and in places as would render 
 discovery difficult if not impossible. If the carrier were not 
 responsible for the loss, innocent persons might be injured or 
 ruined with impunity. The enforcement of this rule furnishes a 
 strong safeguard for the security of the property of those persons 
 whose business necessities compelk them to intrust their property 
 to the care and custody of such carriers. 
 
 If the danger or the accident, though unavoidable, has been 
 occasioned by the act of man, the carrier cannot avail himself of 
 it as an excuse for the non-delivery of the goods. Thus, where an 
 action was brought against a common carrier for not delivering 
 a quantity of hops, and it appeared that a fire broke out in a 
 building adjoining a booth under which the carrier had placed 
 the hops, and burned with unextinguishable violence, and ex- 
 tended itself to the hops, and consumed them, without any neg- 
 lect or default on the part of the carrier himself, it was held that 
 inasmuch as the fire had not been occasioned by lightning, but 
 by the act of man, the occurrence of the disaster constituted no 
 defense to the action. Forward v. Pittard, 1 Term E,. 33 ; Hyde 
 V. Trent Nav. Co., 5 Term R. 399. ^ When goods were delivered 
 to a steam.boat company for transportation, and after the boat 
 with the goods had arrived at the place of its destination, but 
 while the goods were still in the carrier's custody, a fire broke out 
 in the city, and extended to and burned and destroyed the boat 
 and the goods, it was held that the carrier was liable for the value 
 of the goods; because a loss which arises from an accidental fire, 
 or the conflagration of a city, without any default whatever on 
 
BAILMENT. 419 
 
 the part of the carrier, does not furnish him with any excuse, nor 
 fall -within the exception as an act of God. Miller v. Steam 
 Navigation Co., 10 JST. Y. 431 ; affirming 8. C, 13 Barb. 361 ; 
 Ooold V. Chapin, 10 Barb. 612. 
 
 The rule of the common law making a common carrier respon- 
 sible for the safe carriage and delivery of property intrusted to 
 his care unless prevented by the act of God or the public enemy, 
 is not applied to its full extent to the carriage of live stock. Clarke 
 V. Rochester & Syracuse B. B. Co., 14 K T. 570 ; Perm v. Buffalo 
 & Erie B. B. Co., 49 N. Y. 204 ; Cragin v. N. Y. C. B. B. Co., 
 51 E". Y. 61. In the transportation of such stock, in the ab- 
 sence of negligence, the carrier is relieved from responsibility 
 for such injuries as occur in consequence of the vitality of the 
 freight. He does not absolutely warrant live freight against the 
 consequences of its own vitality. Animals may injure or destroy 
 themselves or each other ; they may die from fright or starvation, 
 because they refuse to eat, or they may die from heat or cold. In 
 all such cases the carrier is relieved from responsibility, if he can 
 show that he has provided all suitable means of transportation, and 
 exercised that degree of care which the nature of the property 
 requires. lb. Subject to this exception, and in the absence of 
 any special contract, the carrier is an insurer against loss of the 
 stock carried. Giblin v. Nat. Steamship Co., 8 Misc. 22. If the 
 carriage is under a special agreement his liability is to be deter- 
 mined by the agreement. Penrv v. Buffalo & Erie B. B. Co., 49 
 N. Y. 204. If live stock is shipped in a defective car and owing 
 to the defect the stock is lost or killed, the carrier is liable. Boot 
 V. New York & New England B. B. Co., 83 Hun, 111. 
 
 If the articles to be carried are liable to be injured or destroyed 
 by reason of an unusual intensity of cold, this is not such an event 
 as will excuse the carrier from liability for the loss in case the 
 articles are frozen, if the accident might have been prevented by 
 the exercise of due care and diligence on his part; and merely 
 doing what is usual in such cases will not exempt him from the 
 charge of negligence ; he must show that he has done what was nec- 
 essary to be done under all the circumstances of the case. Wing 
 V. N. Y. and Erie B. B. Co., 1 Hilt. 235. But see Tucker v. Penn. 
 B. B. Co., 11 Misc. 366. A carrier of goods is not responsible for 
 any deterioration in the value of such goods which results from 
 the negligence or want of care in the owner or the consignor, 
 such as defective packing, nor for losses occasioned by an inher- 
 ent defect in the article causing its destruction. If, however, the 
 
420 BAILMENT. 
 
 defective packing is open and visible, and easily remedied, and 
 he accepts the goods for conveyance, he is bound to take all rea- 
 sonable means to provide against the defect and secure their safety. 
 Stuart V. Crawley, 2 Stark. 324. If a cargo or load of goods 
 weighing a certain weight, be delivered to a common carrier to be 
 carried for hire, and the cargo or load on its arrival at its place 
 of destination is deficient in weight, there is a reasonable pre- 
 sumption of negligence on the part of the carrier which he must 
 rebut by showing that the deficiency of weight arose from causes 
 over which he had no control. TIawkes v. Smith, 1 Carr. & Marsh. 
 
 If goods delivered to be carried are lost or stolen by the way, 
 and the conduct of the bailor or consignor himself has in any 
 way conduced to the loss, he has no ground for seeking compen- 
 sation at the hands of the common carrier. If the owner is 
 guilty of any fraud or imposition, as by concealing the value or 
 nature of the goods, and either does or says anything which 
 tends to mislead the carrier in respect thereto, or puts him off his 
 guard by creating the impression that the goods are of less value 
 than in truth they are, or otherwise prevents him from exercising 
 proper precautions in view of the importance of the hazard, the 
 carrier will not be responsible. Richards v. Westcott, 2 Bosw. 
 589, 604. And therefore, where a common carrier was employed 
 to carry a traveler's trunk which contained his wearing apparel 
 and equipments, and it also contained a box of jewelry packed 
 up in it, which belonged to a third person, of which fact the car- 
 rier had no notice, and the trunk was broken open and the box 
 of jewelry stolen, it was held that the carrier was not liable to 
 such third person for the value of the jewelry. Ih. So, if a man 
 sends his own goods by a common carrier, to be carried as ordinary 
 merchandise, or as of ordinary value, but the owner has secretly 
 put other valuable articles in the package, and they are after- 
 wards stolen while in the custody of the carrier, he will not be 
 liable for such valuables. Thus, where one consignor concealed 
 nearly $500 amongst some hay in an old nail bag, which he de- 
 livered to the common carrier to be carried (Gibbon v. Paynton, 
 4 Burr. 2301) ; and another sent a quantity of guineas in an ordi- 
 nary brown paper parcel, tied with a string (Clay v. Willan, 1 
 PI. Bla. 298) ; and a third sent two hundred sovereigns concealed 
 in six pounds of tea (Bradley v. Waterhouse, 3 Carr. & Payne, 
 318) ; and the money so sent was lost by the way, it was held that 
 the carrier was not responsible for the loss. 
 
BAILMENT. 421 
 
 Again, if glass, or china, or any other brittle or perishable com- 
 modity, requiring great care for its safe conveyance, is bailed to 
 a common carrier inclosed in boxes and cases, and no notice is 
 given to him of the peculiar nature of the contents of such boxes 
 or cases, and of the increased care requisite for their safe carriage, 
 the carrier is bound to take only that ordinary care of the thing 
 which its general character and appearance seems to require ; and 
 if it is broken or injured, without any gross negligence on his 
 part or that of his servants, he is not responsible for the damages, 
 as the consignor has himself been the cause of the loss or injury 
 by concealing the peculiar nature of the articles and the increased 
 risk, and so preventing the common carrier from providing addi- 
 tional assistance and care and safe means of conveyance, and 
 also of obtaining a higher rate of remuneration proportioned to 
 the augmented danger of loss. 
 
 A shipper may become chargeable with fraud upon a carrier, 
 through imposition and deception, as well when he is silent as 
 when he speaks that which is untrue. A neglect to disclose the 
 real value of a package and the nature of its contents, if its form, 
 dimensions and general appearance is designed or calculated to 
 throw the carrier off his guard, will amount to such fraud. The 
 intention to impose upon the carrier is not material ; it is enough 
 if such is the practical effect of the conduct of the shipper. Far- 
 dee V. Drew, 25 Wend. 459 ; Magnise v. Adams Express Co., 50 
 How. 454; 62 E". T. 35. But when there is no special contract 
 limiting the common-law liability of the carrier, nor any notice so 
 specially brought home to the notice of the shipper as to have that 
 effect, the shipper is not bound to disclose the value of the goods 
 unless he is asked thereof by the carrier. The carrier has the 
 right to make inquiry and to receive a true answer, and, if he 
 is deceived by a false answer, will not be responsible for any loss. 
 If, however, he makes no inquiry, and no artifice is used to mislead 
 him, he is responsible for loss however great may be the value. 
 
 lb. 
 
 The peculiar quality and nature of a common carrier's con- 
 tract is that he will safely carry and deliver the goods intrusted 
 to his care. And for this reason he ought to be careful to carry 
 them in the manner expressly agreed upon, if such an agreement 
 has been made, or according to the instructions given, if any 
 there were, and in the absence of an express agreement, or of 
 specific instructions, then in such manner as the law requires a 
 common carrier to carry and deliver goods. A carrier must carry 
 
422 BAILMENT. 
 
 goods in the manner directed on the box, package or otherwise, 
 ■or show that the loss did not occur in consequence of a disregard 
 of such instructions; and where a box which contained a glass 
 bottle filled with the oil of cloves was delivered to a common 
 carrier, and was marked, " Glass, with care, this side up," it was 
 held that this was a sufficient notice of the value and nature of 
 the contents to charge him for the loss of the oil, which resulted 
 from his disregard of the instructions. Hastings v. Pepper, 11 
 Pick. 41. So, where a carrier of goods on the lakes agrees to 
 forward them by a steam vessel, and goods are marked to be thus 
 carried, if the carrier neglects or refuses to send them as marked, 
 but on the contrary sends them by a sailing vessel, and they are 
 lost in a gale, he will be liable for their value. Wilcox v. Parme- 
 lee, 3 Sandf. 610. 
 
 As the liability of a common carrier commences when the goods 
 are delivered to him, so it continues until he fully performs his 
 contract by safely delivering the goods received by him. De Mott 
 V. Laraway, 14 Wend. 225. For he is legally bound, not merely 
 to carry them to their destined place, biit also to deliver them there 
 to the bailor, or to such person as the bailor may direct. Golden 
 v. Manning, 3 Wils. 429 ; Hyde v. Trent and M. Nav. Co., 5 
 Term R. 389 ; Gibson v. Culver, 17 Wend. 305 ; Fisk v. Newton, 
 1 Denio, 45 ; Ostrander v. Brown, 15 Johns. 39. And this he 
 must do within what is a reasonable time, taking into account all 
 the circumstances of the case. Ward v. N. Y. Central B. B. Co., 
 47 IST. Y. 29 ; Sherman v. Hudson Biver B. B. Co., 64 N. T. 254. 
 In addition to this the carrier must deliver the goods within proper 
 business hours when the goods can be received and properly stored. 
 Hand v. Baynes, 4 Whart. 204 ; Favor v. PTiilbrick, 5 N. H. 358 ; 
 Wallace v. Vigus, 4 Blackf. 260 ; Baphael v. Pichford, 6 Scott 
 ISr. R. 478 ; Fagle v. White, 6 Whart. 505 ; Merwin v. Butler, 17 
 Conn. 138. As a general rule, the carrier must deliver the goods 
 to the owner, or to the consignee himself, or to his agent, or they 
 must be carried to his residence, or to his place of business, if 
 that is a more appropriate place of delivery. If the goods are 
 delivered in accordance with the instructions upon the labels, or 
 marks upon the parcel or boxes, this will be sufficient. Bristol v. 
 Bens, and Sar. B. B. Co., 9 Barb. 158. A carrier by express 
 must deliver his freight to the consignee or his agent personally. 
 Tf the consignee occupies an upper story in a building, the car- 
 rier's duty is not fulfilled by leaving the freight on the ground 
 :floor, and notifying the consignee, unless such delivery was ac- 
 
BAILMENT. 423 
 
 cepted by the latter, or unless he induced the carrier to believe that 
 he would so accept it. Haslam v. Adams Express Co., 6 Bosw. 
 235. But delivery to the janitress of a building in accordance 
 with a notice on the door of the office to which it is addressed, is 
 sufficient to relieve him from responsibility. Bujfin v. Buggiero, 
 10 Misc. Y38. Where goods are intrusted to a common carrier, 
 accompanied with a bill and instructions not to deliver. the goods 
 unless they are paid for by the consignee, he will be liable to the 
 consignor if he makes a delivery without requiring payment. 
 Tooker v. Oormer, 2 Hilt. 71. By thus assuming to act with the 
 goods as though they were his own, he is answerable for their value, 
 but he may discharge himself from liability by procuring their re- 
 turn. Ih. Where goods are conveyed to the place of destination, 
 and the consignee is dead, absent, or is not known, and cannot -after 
 due effort be found, or if he refuses to receive them, the carrier 
 discharges himself from all further responsibility by placing them 
 in store with some responsible third person in that biisiness at the 
 place of delivery for and on account of the owner. Fish v. New- 
 ton, 1 Denio, 45 ; Williams v. Holland, 22 How. 137. A due 
 effort to find an unknown consignee is a condition precedent to a 
 right to warehouse the goods. Zinn v. New Jersey Steamboat Co., 
 49 E". Y. 442 ; Sherman v. Hudson Biver B. B. Co., 5 Daly, 521 ; 
 64 E". Y. 254. But the rule that the carrier must store the prop- 
 erty, when the consignee refuses to receive it, is not applicable in 
 those cases in which the carrier continues to act under the direc- 
 tion of the shipper. Ide v. Sadler, 18 Barb. 32. If a common 
 carrier of money has no notice of the ownership thereof, except 
 what is to be implied from the address written upon the package, 
 he is authorized to treat the consignee as entitled to control the 
 manner of its delivery. Sweet v. Barney, 23 IST. Y. 335. And 
 any delivery of the package which discharges the carrier, as 
 between him and the consignee is also good, as against the con- 
 signor, lb. If, by the custom of a place, notice must be given to 
 a consignee of the arrival of goods, the carrier will not be exone- 
 rated from liability until the consignee has had a reasonable time 
 to remove the goods, after the notice given. Price v. Powell, 3 
 N. Y. 322 ; Faulkner v. Hart, 82 N. Y. 413, 417 ; Bedmond v. 
 Uverpool, N. Y. & PUla. S. Co., 46 N. Y. 578. After the ex- 
 piration of a reasonable time for the removal of the goods, the lia- 
 bility of the carrier, as such, ceases, and his responsibility, if any, 
 thereafter is that of a warehouseman. Wynantskill Knitting Co. 
 V. Murray, 90 Hun, 554. 
 
424 BAILMENT. 
 
 A carrier is not bound to deliver to a consignee, or a party to a 
 bill of lading, any more goods or property than he received; and 
 as between the parties to the bill of lading, it is a mere receipt 
 and is open to explanation as to the condition or the quantity of 
 the goods shipped. Meyer v. Pech, 33 Barb. 532 ; Wolfe v. Myers, 
 3 Sandf. 7 ; Bates v. Todd, 1 Mood. & Bob. 106 ; Ellis v. Willard, 
 9 Is^; Y. 529 ; Meyer v. Peck, 28 N. Y. 590. It is the duty of a 
 carrier to seek the person to whom a delivery of goods is to be 
 made, and make a tender of it; and from this duty he cannot be 
 discharged unless by a special contract, or by proof of an oppo- 
 site usage. Schroeder v. Hudson River R. R. Co., 5 Duer, 55. 
 ISTo freight can be claimed by a carrier until the goods have been 
 unladen and a delivery has been made or tendered. Clark v. Mas- 
 ters, 1 Bosw. 177. And a notice given by the carrier to the con- 
 signee of the arrival of the goods is not equivalent to a personal 
 delivery of them, so as to entitle him to demand an immediate 
 payment of the freight. lb. Though a carrier is prima facie 
 bound to deliver the goods to the consignee personally; still he 
 may prove, if he can, that there was an established usage by him 
 to leave goods at a particular place, where the consignees called 
 for them, without notice to them, and that the plaintiff knew of 
 that usage, or that it was of so long continuance, uniformity and 
 notoriety that a jury would be justifiable in saying he knew it. 
 Gibson v. Culver, 17 Wend. 305. When a carrier has arrived 
 with the goods at the place of destination, and he tenders a de- 
 livery of them to the consignee, who is not ready to receive them, 
 and the carrier is obliged to retain possession of them against 
 his will and without any neglect or default on his part, he will 
 be discharged from liability for any injury or destruction of the 
 goods at a subsequent time, by reason of a freshet which carries 
 away and capsizes a vessel, and loses the cargo overboard. Clen- 
 daniel v. Tuckerman, 17 Barb. 184; Goold v. Chapin, 10 Barb. 
 613. If goods are injured by reason of the negligence of the 
 carrier, a subsequent acceptance of the injured property by the 
 consignee will not bar the right of action, though it will be evi- 
 dence in mitigation of damages. Such a cause of action cannot 
 be discharged by any act of the plaintiff short of a release, or an 
 acceptance of something in satisfaction. Bowman v. Teall, 23 
 Wend. 306. 
 
 Carriers by land, except railroad corporations, usually deliver 
 the goods they carry to the owner, or to such other person, or in 
 such place as he may direct. Railroads, however, cannot con- 
 
BAILMENT. 425 
 
 veniently do this, since the freight ears can only go where the rails 
 go, and these ordinarily terminate in the freight depot or station 
 house. Any further carriage of the goods must be done by means 
 of other vehicles, such as carts, trucks, wagons or other convey- 
 ances. And since it is usual for the consignor to send a notice to- 
 the consignee, of the consignment, together with the receipt or a 
 copy of it, it is generally customary for the consignee to take the 
 goods from the freight depot. Thomas v. Boston and Providence 
 B. B. Co., 10 Mete. 4Y2 ; Smith v. Nashua and Lowell B. B. Co., 
 7 Foster's IST. H. 86 ; Bichards v. London B. Co., 7 C. B. 839 ; 
 Butcher v. London and Southwestern B. B. Co., 16 C. B. 13 ; 
 Fenner v. Bujfalo & State Line B. B. Co., 44 N. Y. 505, 510. 
 So, carriers by water ca^ot usually deliver goods at the residences 
 of the consignees without Tand~earriage, and the greatest amount 
 of goods carried by water is consigned to persons whose warehouses 
 or stores are adapted to the reception of such goods by being near 
 the water, and generally on the wharves on which they may be 
 landed. For this reason a very general usage prevails, in the de- 
 livery of such goods, of landing them on a wharf, and giving im- 
 m.ediate notice to the consignees. See Zinn v. New Jersey Steam- 
 boat Co., 49 ]Sr. Y. 442, 444. This notice ought to be clear and 
 distinct in its terms, and it must be promptly given. As a carrier 
 is bound to deliver the goods, so the owner is bound to receive 
 and remove them, and pay the freight due on them. If the freight 
 is not paid, and the carrier retains the goods therefor, they are 
 not at his risk as a carrier, but merely as a warehouseman or a 
 gratuitous bailee. Storr v. Crowly, McClel. & Y. 129. 
 
 In respect to the time of delivery, common carriers are respon- 
 sible only for the exertion of due diligence. In this respect they 
 stand on the same ground as other bailees. They may excuse 
 delay in the delivery by accident or misfortune, although it was 
 not inevitable or produced by the act of God. Parsons v. Hardy, 
 14 Wend. 215 ; Conger v. Hudson Biver B. B. Co., 6 Duer, 375 ; 
 Geismer v. L. S. & M. S. B. Co., 102 N. Y. 563. When the goods 
 are actually delivered at the place of destination, and the only 
 complaint is that of a late delivery, the question is simply one of 
 reasonable diligence, and accident or misfortune will excuse him 
 unless he has contracted expressly to deliver the goods within a 
 limited time. Ih.; Wihert v. N. Y. and Erie B. B. Co., 12 N. Y. 
 245. If the accident which caused the delay happened through the 
 fault of another company, and without any concurring fault or 
 neglect on the part of the defendants, then, as to them, the acci- 
 
42 G BAILMENT. 
 
 dent was inevitable in the sense that it will excuse the delay, and 
 if the defendants have not stipulated by their contract to deliver 
 the goods within any limited time, they will not be responsible 
 for the damages resulting from such delay. Conger v. Hudson 
 River R. R. Co., 6 Duer, 375. But if a common carrier enters 
 into a special contract to deliver goods within a stipulated or speci- 
 fied time, he will be liable for damages resulting from the delay 
 although it was caused by inevitable accident. Harmony v. Bing- 
 ham, 1 Duer, 209 ; S. C, 12 IST. T. 99. A mere omission on the 
 part of a common carrier to transport and deliver property to the 
 consignee within a reasonable time, is not a conversion of it, nor 
 equivalent to it. And, though he is liable for the damages which 
 result from such omission, the owner cannot, on the sole ground 
 of unreasonable delay in the conveyance and delivery of the prop- 
 erty, refuse to receive it and recover as for a conversion of it. 
 Scovill V. Griffith, 2 Kern. 509. 
 
 A railroad corporation is liable as a common carrier for the 
 damages caused by the delay in delivering goods, although such 
 delay was caused solely by the acts of the employees of the com- 
 pany; and where one hundred and forty out of one hundred and 
 sixty-eight engineers in the employ of a railroad company, sud- 
 denly and by concert abandoned their engines, on a strike, it was 
 held that the corporation was liable. Blackstoch v. N. Y. and Erie 
 R. R. Co., 1 Bosw. YY ; 20 N. Y. 48. But if the strikers not only 
 abandon their employment, but also willfully array themselves 
 in positive hostility against the company, intimidating and de- 
 feating the efforts of employees who were willing to serve it, be- 
 coming a mob of vicious law-breakers, and preventing by mob 
 violence the efforts of the company and its servants to manage its 
 trains and perform its contracts, the delay so caused will be held 
 excused. Geismer v. L. S. & M. 8. R. Co., 102 K Y. 563. See 
 Little V. Fargo, 43 Hun, 233. 
 
 Though the freezing of a canal or a river will excuse delay in 
 the delivery of goods by a carrier by water, he is still bound to 
 exercise at least ordinary forecast in anticipating the obstruction, 
 to exert proper means for overcoming it, and to use due diligence 
 in accomplishing the transportation as soon as it ceases to operate ; 
 and, in the meantime, he must not be guilty of negligence by 
 omitting to take care of the article detained. Bowman v. Teall, 
 23 Wond 306. 
 
 A carrier of passengers is not an insurer of their safety. Read- 
 head V. Midland Railwuy Co., L. K., Q. B. 412; Stierle v. Union 
 
BAILMENT. 427 
 
 Railway Co., 156 K Y. 70 ; Palmer v. D. & H. C. Co., 120 N. Y. 
 170 ; Leyh v. Newburgh Electric B. Co., 41 App. Div. 218. He 
 is required to exercise a degree of care in providing for the safety 
 of his passengers commensurate with the danger which might rea- 
 sonably be apprehended. The degree of care which the law re- 
 quires of the carrier is not the same in all cases and in all situa- 
 tions. The care required of a railroad company operating its road 
 by horse power is not the same as that required by a company 
 operating its road by the more powerful agency of steam, linger 
 V. Forty-second St., etc., B. B. Co., 51 IST. Y. 497 ; Siierle v. Union 
 Bail-way Co., 156 N. Y. 70. The care required in guarding 
 against defects in the platforms and approaches to its stations and 
 in the mere furniture and minor fittings of its cars or conveyances 
 is not the same as is exacted in respect to the running gear, ma- 
 chinery, track and roadbed. See Kelly v. Manhattan B. Co., 112 
 jST. Y. 443 ; Lafflin v. Bujfalo & Southwestern B. B. Co., 106 K Y. 
 146 ; Morris v. New Yorh Cent. & H. Biver B. B. Co., 106 K Y. 
 678; Loftus v. Union Ferry Co., 84 IST. Y. 455; Leyh v. New- 
 burgh Electric B. Co., 41 App. Div. 218; McGrell v. Buffalo 
 Office Bldg. Co., 153 K Y. 265, 271; Zimmer v. Third Ave. 
 B. B. Co., 36 App. Div. 265, 269. In respect to the condition 
 of the machinery, appliances, cars, boats, or other vehicles of trans- 
 portation, carriers of passengers are required to exercise the ut- 
 most human skill, care, vigilance and foresight for the protection of 
 its passengers. Bartnik v. Erie B. B. Co., 36 App. Div. 246 ; 
 Hegeman v. Western Bailroad Corporation, 13 N. Y. 9 ; Bowen 
 V. New Yorh Central B. B. Co., 18 IT. Y. 408 ; Brown v. N. Y. G. 
 B. Co., 34 IST. Y. 404 ; Caldwell v. New Jersey Steamboat Co., 47 
 ]Sr. Y. 282 ; Palmer v. D. & H. C. Co., 120 K Y. 170 ; Alden v. 
 New Yorh Central B. B. Co., 26 IST. Y. 102. This obligation of 
 carriers of passengers exists with respect only to those results 
 which are naturally to be apprehended from unsafe roadbeds, de- 
 fective machinery, imperfect cars and other conditions endanger- 
 ing the success of the undertaking. Stierle v. Union Bailway Co., 
 156 N. Y. 70; id. 684. In every case the degree of care to be 
 exercised is dependent upon the circumstances, and, if the acci- 
 dent is attributable to the existence of defects in the road, or in 
 the mechanical appliances used in operating the road, by reason 
 of which there was a possibility of loss of life or limb to the 
 traveling public, the strict rule requiring the highest degree of 
 care and of human skill is applicable. lb.; Bartnih v. Erie B. B. 
 Co., 36 App. Div. 246. But under this rule, a common carrier 
 
428 BAILMENT. 
 
 by rail is not held to an absolute warranty that passengers shall 
 not be injured, nor ■will it be held liable for injuries caused by 
 the breaking of a sound rail through extreme cold which could 
 not have been anticipated or avoided by any human foresight. 
 McPadden v. New York Cent. B. B. Co., 44 N. Y. 478. The car- 
 rier does not undertake that the vessel or vehicle, or the machinery 
 he employs is absolutely free from defects. He is simply held 
 to the exercise of the utmost skill and care in the construction 
 and management of both. Carroll v. Staten Island B. B. Co., 58. 
 KJ?. 126. 
 
 The law also requires that the carrier shall carry the passenger 
 without unreasonable delay, and holds him liable for the damages 
 arising from a breach of this duty. Van Buskirlc v. Boherts, 31 
 K Y. 661. See Taylor v. Nassau Electric B. B. Co., 32 App.. 
 Div. 486. 
 
 A common carrier is bound, so far as practicable, to protect his 
 passengers, while being conveyed, from violence committed by 
 strangers and co-passengers, and he undertakes absolutely to pro- 
 tect them against the misconduct of his own servants engaged in 
 executing the contract. Stewart v. Brooklyn & Crosstown B. B. 
 Co., 90 ]Sr. Y. 588. But there is also a responsibility on the part 
 of the passenger. He is bound to conduct himself in an orderly 
 and decent manner, and if he forgets his obligations, and, by his 
 indecent behavior and by the use of language which is morally 
 certain to bring on an encounter with a servant of the carrier, 
 he succeeds in his efforts to bring about such a result, the carrier 
 is not bound to protect the passenger from the natural and probable 
 results of his own act. In such case there can be no recovery by 
 the passenger for an assault. Scott v. Central Park, etc., B. B. 
 Co., 53 Hun, 414. But see Weher v. Brooklyn, A. C. & 8. B. B. 
 Co., 47 App. Div. 306. 
 
 A common carrier of passengers, either by land or by water, 
 is regarded as an insurer of the baggage of his passengers, and 
 he is responsible for any loss which is not occasioned by inevit- 
 able accident or the enemies of the country. Hollister v. Nowlen, 
 19 Wend. 234; Cole v. Goodwin, id. 251; Camden B. B. and T. 
 Co. V. Burke, 13 Wend. 611, 629 ; Same v. Belknap, 21 id. 354. 
 To render them liable for the loss of baggage it is not necessary 
 that anything should be paid specifically for baggage, because the 
 payment of the passenger's fare includes the carriage of his bag- 
 gage. Powell V. Myers, 26 Wend. 591 ; Isaacson v. N. Y. C. £■ 
 H. B. B. Co., 94 ISr. Y 278 ; General Laws, ch. 39, § 37. And 
 
BAILMENT. 429 
 
 when a passenger is received on board he is entitled to have his 
 baggage safely kept, although he has not paid his fare. Van Horn 
 V. Kermit, i E. D. Smith, 453. And see Flaherty v. Greenman, 
 7 Daly, 481 ; Fairfax v. N. Y. C. & H. R. B. B. Co., 73 N. Y. 
 167. 
 
 " The obligation of a railroad company undoubtedly is to take 
 whatever is delivered and received as baggage from a passenger, 
 in the baggage car of a passenger train in which the passenger 
 takes his passage, and takes it along with the passenger, and 
 deliver it to him at the place of destination, in the usual manner 
 of transporting and delivering baggage. And in this respect the 
 obligation is the same, whether the baggage is within the quan- 
 tity allowed to a passenger to be carried without any charge, 
 other than the ordinary fare of the passenger, or whether it is an 
 extra quantity, for which an additional charge is made. If it is 
 taken as the baggage of the passenger, whether ordinary or extra, 
 it is to be carried with the passenger, unless there is some agree- 
 ment to the contrary. Any other rule would be productive of great 
 inconvenience and hardship, if not loss, and would frequently sub- 
 ject travelers to intolerable delays and annoyances." Per John- 
 son, J. Olasco V. N. Y. Ce7itral B. B. Co., 36 Barb. 557, 562. 
 
 A carrier of passengers is liable for such baggage as his pas- 
 sengers carry on their journey for their own personal convenience, 
 and within reasonable limits. Nevins v. Bay State Steamboat 
 Co., 4 Bosw. 225. But he is not liable for such articles as the 
 passenger intends to present to his friends. Ih.j Dexter v. Syra- 
 cuse, Binghamton & N. Y. B. B. Co., 42 K T. 326. 
 
 An agreement to carry a passenger and his baggage, includes 
 only ordinary baggage, or such articles of necessity and personal 
 convenience as are usually carried by passengers. Nordemeyer v. 
 Loescher, 1 Hilt. 499. See Weeks v. N. Y., N. H. & H. B. B. 
 Co., 9 Hun, 669 ; 72 IST. Y. 50. If a traveler leaves his overcoat in 
 a railroad car in which he has been traveling, and where he had 
 the exclusive care and possession of the coat, the company will 
 not be responsible for his forgetfulness, nor for the loss of the 
 coat, if ordinary care is exercised by the company for securing it. 
 Tower v. Utica and Schenectady B. B. Co., 7 Hill, 47. So, if a 
 traveler, who is a steerage passenger, on a sea voyage, takes his 
 trunk to the steerage, and places it under his bed, and fastens it to 
 his berth, and keeps it in his own exclusive possession and custody, 
 the owners of the vessel will not be liable as common carriers for 
 its loss. Cohen v. Frost, 2 Duer, 335. S'ee Tolano v. Nat. Steam 
 
430 BAILMENT. 
 
 Navigation Co., 35 How. 496; 4 Abb. N. S. 316; WilMns v. Earl, 
 19 Abb. 190, 195, 196; 3 Eob. 352. But a mere supervision of 
 one's baggage, or the means of entering its place of deposit, is 
 not sufficient to exonerate the carrier from liability. To have that 
 effect it must appear that the passenger took or kept possession of 
 his baggage with the intent to retain its custody, to the exclusion 
 of the carrier, or he must have been guilty of such negligence as 
 discharges a carrier from his general obligation. Thus, the plain- 
 tiff, who was a passenger on the defendant's steamboat, deposited 
 his valise, containing wearing apparel, in a stateroom, the key of 
 which was handed to him at the time of paying his passage. Dur- 
 ing his temporary absence from the stateroom, the door of which 
 was locked, the valise was stolen, and it was held that the defend- 
 ant was liable. Mudgett v. Bay State Steamboat Co., 1 Daly, 151. 
 
 Where carriers of passengers, by a general regulation, make it 
 the duty of their agents to take charge of property inadvertently 
 left in their cars, and provide at their depot a place for its safe 
 keeping, where the owner may apply for it, it will be deemed a 
 part of their business and duty to take charge of such articles and 
 keep them for the passenger. Morris v. Third Avenue R. B. Co., 
 1 Daly, 202. In such a case the carrier is not subjected to the 
 liability of a common carrier, but will be regarded in the light of 
 a bailee for hire, and as such, he must exercise ordinary care and 
 diligence in taking care of the property thus left by the passenger. 
 If the carrier delivers such property to a wrong party instead of 
 the true owner, the latter may maintain an action against the car- 
 rier for a conversion of the property. Ih. But in such a case, 
 where the property comes into the carrier's possession in conse- 
 quence of the owner's neglect, and where the carrier may not 
 know to whom it belongs, or by whom it was left, he ought not to 
 be held responsible for delivering it to a wrong person, if he has 
 exercised all the care and vigilance that could reasonably be ex- 
 pected of him under the circumstances ; and whether he has exer- 
 cised such care is a question of fact for the jury. Ih. 
 
 By a statute of this State applying alike to hotel-keepers and 
 owners and managers of steamboats, the liability for the loss of 
 money, jewelry and ornaments belonging to travelers on such boats, 
 may be limited by providing a safe for the deposit of such valu- 
 ables and posting the notice required by law. See Laws of 1897, 
 ch. 305 ; ante, p. 400. 
 
 A carrier must deliver his passenger's baggage to him at his 
 place of destination, and the forgetfulness of the passenger to 
 
BAILMENT. 431 
 
 claim it there is no excuse ; and if the baggage is lost by reason 
 of its being carried further by another carrier whose route is a 
 continuation of the one traveled over by such passenger, the car- 
 rier will be liable for its loss. Cole v. Goodwin, 19 Wend. 251. 
 
 The General Railroad Law of this State provides for the check- 
 ing of all baggage taken for transportation and the furnishing 
 to the passenger of a duplicate check. It further provides that 
 " such baggage shall be delivered, without unnecessary delay, 
 to the passenger or any person acting in his behalf at the place to 
 which it was to be transported, where the cars usually stop, or at 
 any other regular intermediate stopping place, upon notice to the 
 baggage-master in charge of baggage on the train, of not less than 
 thirty minutes, upon presentation of such duplicate check to the 
 officer or agent of the railroad corporation, or of any corporation, 
 over any portion of whose road it was transported." General 
 Laws, ch. 39, § 44. 
 
 The liability of the carrier as such for the baggage of a pas- 
 senger continues from the time it is checked to its arrival at the 
 place of destination, and for such a time thereafter as will afford 
 the passenger a reasonable opportunity to remove it. Mortland 
 V. Philadelphia & Beading R. B. Co., 81 Hun, 473 ; Both v. Buf- 
 falo & State Line B. B. Co., 34 IS. Y. 548 ; Bumell v. New York 
 Central B. B. Co., 45 K Y. 184 ; Mattison v. N. Y. C. B. B. 
 Co., 51 E". Y. 552. A passenger ought to call for his baggage 
 at the end of his journey or within a reasonable time thereafter. 
 If he neglects to do so, the carrier will not after a reasonable time 
 for that purpose, be liable as a carrier, but as a warehouseman or 
 bailee for hire. lb.; Van Horn v. Kermit, 4 E. D. Smith, 454. 
 As to what constitutes a reasonable time cannot be measured by 
 any arbitrary and inflexible rule, but depends upon the circum- 
 stances of each case. It is generally a question of fact, but when 
 the facts are undisputed what is reasonable time is a question of 
 law for the court. Mortland v. Philadelphia & Beading B. B. 
 Co., 81 Hun, 473 ; Both v. Buffalo & State Line B. B. Co., 34 
 ]Sr. Y. 548; Hedges v. H. B. B. B. Co., 49 IST. Y. 223. See Oil- 
 Jiooly V. N. Y. & Savannah Steam Nav. Co., 1 Daly, 197. 
 
 The respective rights and liabilities of connecting lines of steam- 
 boats and railroads in the matter of selling tickets and checking 
 baggage over the connecting line, and the receipt and carriage of 
 freight marked for carriage over such connecting line, is regulated 
 by statute. General Laws, ch. 39, § 47. 
 
 In respect to connecting lines of railroads the statute provides 
 
432 BAILMENT. 
 
 as follows : " Every railroad corporation doing business in this 
 State shall be a common carrier. Any one of two or more cor- 
 porations owning or operating connecting roads within this 
 State, or partly within and partly without the State, shall be 
 liable as a common carrier for the transportation of passengers or 
 delivery of freight received by it to be transported by it 
 to any place on the line of a connecting road; and if it shall be- 
 come liable to pay any sum by reason of neglect or misconduct 
 of any other corporation it may collect the same of the corporation 
 by reason of whose neglect or misconduct it became liable." Gen- 
 eral Laws, ch. 39, § 48 ; Laws of 1892, ch. 676, § 48. 
 
 Where a person purchases a through ticket over several rail- 
 roads, and procures a corresponding check for his baggage, and 
 the baggage is afterwards lost, the company on whose road it was 
 lost is responsible therefor. The statute above cited applies only 
 to the company originally contracting and does not create any lia- 
 bility against any other company for loss of baggage while in the 
 possession of the company originally receiving it. The passenger 
 has his election to bring his action against the carrier with whom 
 the original undertaking was entered into, or against the particu- 
 lar carrier in whose hands the loss or injury occurred. The latter 
 ib liable without the aid of the statute. Smith v. New York Cent. 
 R. R. Co., 43 Barb. 225; 41 K Y. 620; liymcm v. Central Ver- 
 mont R. R. Co., 66 Hun, 202. Where a passenger has delivered 
 his baggage in good condition for continuous transportation over 
 connecting lines, and receives it damaged, he may sue the carrier 
 who so delivers it. The baggage is presumed to continue in the 
 same condition when it reached the hands of the last carrier that 
 it was in when delivered to the first. Proof of the delivery of the 
 baggage in good condition to the first carrier, and its delivery by 
 the last in a damaged condition makes out a prima facie case and 
 throws upon the defendant the burden of rebutting the presump- 
 tion that the baggage was received by him in its original condi- 
 tion. But the defendant may rebut this presumption by showing 
 that he received the baggage in its damaged condition, and this 
 being established, the action must necessarily fail. Fox v. Wabash 
 Ry. Co., 16 Misc. 370; Myerson v. Woolverton, 9 Misc. 186; 
 Springer v. Westcott, 2 App. Div. 295 ; Smith v. New YorJc Cent. 
 R. R. Co., 43 Barb. 225 ; 41 IST. Y. 620. The first carrier, con- 
 tracting to transport baggage to its destination, is responsible for 
 the default of any subsequent connecting carrier, unless relieved 
 by some limitation of liability in his contract. Jennings v. G. T. 
 
BAILMENT. 433 
 
 B. Co., 127 N. Y. 438. A subsequent connecting carrier is liable 
 only for his own default. See Kessler v. N. Y. C. & H. B. B. Co., 
 61 N. Y. 538 ; MUnor v. N. Y. & N. H. B. B. Co., 53 N. Y. 363. 
 It is sometimes important to determine whether a common car- 
 rier can restrict his common-law liability, and if so, to what ex- 
 tent. And, as to a mere notice given by a carrier, it is entirely 
 clear that he cannot screen himself from liability by a notice, 
 whether the notice is brought home to the owner of the goods or 
 not. A notice is no evidence of assent on the part of the owner, 
 and he has a right to rely upon the common-law liability of the 
 carrier, who cannot relieve himself from that liability by any act 
 of his own. Nevins v. Bay State Steamboat Co., 4 Bosw. 225; 
 Cole V. Goodwin, 19 Wend. 251 ; Camden Co. v. Belknap, 21 id. 
 354; Clark v. Faxton, 21 id. 153; Hollister v. Nowlen, 19 id. 
 234; Powell v. Myers, 26 id. 591; Alexander v. Greene, 3 Hill, 
 « ; 7 id. 533 ; Dorr v. N. J. Steam Nav. Co., 11 IST. Y. 485. But 
 it is competent for a common carrier of goods and the owner of 
 them to limit the carrier's common-law liability by making an 
 express contract to that effect. Dorr v. N. J. Steam Nav. Co., 
 11 K Y. 485; Parsons v. Monteath, 13 Barb. 353; Moore v. 
 Evans, 14 id. 524; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 
 173 ; Meyer v. Harndens Express Co., 24 How. 290 ; Kirkland 
 V. Dinsmore, 62 JST. Y. 171 ; Mynard v. Syracuse, Binghamton & 
 N. Y. B. B. Co., 71 K Y. 180; Magnin v. Dinsmore, 56 N. Y. 
 168. 
 
 In this State at least a common carrier may, by express 
 contract, exempt himself from liability, as such, for any loss even 
 though it was occasioned solely by his own gross negligence or 
 that of his servants. lb.; Lee v. Marsh, 43 Barb. 102; 28 How. 
 275 ; Wells v. N. Y. C. B. B. Co., 24 K Y. 181 ; Bissell v. N. 
 Y. C. B. B. Co., 25 ]Sr. Y. 442. And see Heineman v. Grand 
 Trunk B. Co., 31 How. 430. But the contract which will have 
 this effect must be clear and explicit. Where general words in 
 the contract of the carrier, limiting his liability, may operate 
 without including the negligence of the carrier or his servants, it 
 will not be presumed that such words were intended to include 
 such negligence. On the contrary, every presumption is against 
 such an intention; and the contract will not be cons'trued as ex- 
 empting from liability for negligence unless such exemption is 
 stipulated for in unequivocal terms. See Alexander v. Greene, 
 7 Hill, 533 ; Wells v. Steam, Navigation Co., 8 N. Y. 375 ; Mag- 
 nin V. Dinsmore, 56 N. Y. 168 ; Mynard v. Syracuse, Bingham- 
 28 
 
434 BAILMENT. 
 
 ion & N. Y. R. R. Co., 71 N. Y. 180 ; Holsapple v. Rome, W. & 
 0. R. R. Co., 86 jST. Y. 275 ; Nicholas v. N. Y. Cent. & H. R. R. 
 R. Co., 89 N. Y. 370; Canfield v. Baltimore & Ohio R. R. Co., 
 93 K Y. 532 ; Wheeler v. 0. 8. N. Co., 125 IST. Y. 155 ; Eenney 
 V. N. Y. C. & H. R. R. R. Co., 125 N. Y. 422 ; Bathbone v. N. 
 Y. C. & H. R. R. R. Co., 140 N. Y. 48. And such contract must 
 be founded upon a good consideration between the carrier and 
 the other contracting party. Pendergast v. Union Railway Co., 
 
 10 App. Div. 207, 210. The cases cited relate to the carriage, 
 both of goods and of persons; and no, reason exists for making a 
 distinction in the application of the rule that general words and 
 language, capable of other operation, will not be construed to limit 
 the responsibility of the carrier for negligence. Kenney v. N. Y. 
 G. & H. R. R. R. Co., 125 K Y. 422. A common carrier who 
 accepts goods for transportation assumes a double responsibility. 
 The one for losses by accident or mistake, where he is liable by 
 the custom of the realm or the common law as an insurer; the 
 other for losses by default or negligence, where he is answerable 
 as an ordinary bailee. Dorr v. N. J. St. Nav. Co., 4 Sandf. 145 ; 
 
 11 K Y. 485 ; New York Cent. R. R. Co. v. Lochwood, 17 Wall. 
 363 ; Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271, 
 278. 
 
 , Eesting under this double responsibility, if by special con- 
 tract he relieves himself of liability for negligence as carrier, he 
 will still be liable for negligence as bailee; and that liability the 
 courts of this State have exhibited a very decided purpose to re- 
 tain and enforce wherever it is possible. Even that may be 
 thrown off by special agreement, but that result cannot be accom- 
 plished by general words. Wheeler v. 0. 8. N. Co., 125 N. Y. 
 155. 
 
 A common carrier may, by special contract with the shipper, 
 regulate the freight charges. Kilmer v. N. Y. C. & H. R. R. R. 
 Co., 100 N. Y. 395. He may contract for exemption from loss 
 or damage unless the claim therefor is presented within a specified 
 time. Hirschberg v. Dinsmore, 12 Daly, 429 ; 67 How. 103 ; 
 Kaiser v. Hoey, 16 St. Eep. 803. Under an express contract 
 that the goods are to be carried " at the risk of the owner," the 
 carrier incurs only the liability of an ordinary bailee. Moore v. 
 Evans, 14 Barb. 524. A reservation in an express company's 
 contract that all claims for damages are to be presented to a 
 specified office of the company for settlement, does not make such 
 presentation of them a condition precedent to the company's lia- 
 
BAILMENT. 435 
 
 bility. Their readiness at that office goes only in defense as to 
 interest and costs, and not to the cause of action. Place v. Union 
 Express Co., 2 Hilt. 19. 
 
 § 10. Receiptor's Agreement. 
 
 A receipt given for the return of goods that have been attached 
 or seized on execution is a species of bailment, and will be briefly 
 noticed in this place. 
 
 The cases in v?hich receiptors are most frequently required are 
 those in which personal property, has been attached or taken on 
 an execution by an officer having such process. And it is a 
 general rule that an officer, such as a sheriff or a constable, who 
 has taken goods on an attachment or execution may maintain an 
 action against any person who subsequently and wrongfully con- 
 verts them. Dezell v. Odell, 3 Hill, 215 ; Seaman v. Luce, 23 
 Barb. 240 ; Betts v. Hoyt, 19 Barb. 412. So, after such a seizure 
 of goods and chattels, if the officer delivers them to a receiptor, 
 who promises to redeliver them on demand, or at a specified place 
 and time, such officer may maintain an action against the receiptor 
 if he neglects and refuses to redeliver them to the officer on his 
 demand, or if he neglects and refuses to redeliver them at the 
 time and place specified. Ih. The action may be replevin for 
 the recovery of the possession of the property, or in trover for a 
 conversion of it ; or upon the contract for the recovery of damages 
 for the_ breach of it by the non-delivery of the property. Ih. A 
 receiptor cannot defend in such an action on the ground that the 
 levy was excessive. Ih. In the case of Dezell v. Odell, 3 Hill, 
 215, the receipt was entitled in the action, and the body of it was 
 as follows: 
 
 " Received of H. Odell, constable, one bay horse, one sorrel 
 mare, one double wagon, one bureau, and one cow, which I agree 
 to deliver to H. Odell on the 29th day of October, on the premises 
 of Alexander Dezell, at ten o'clock in the forenoon, in the town 
 of Lisbon. " Jambs Dezell." 
 
 The action was trover by the constable against the receiptor, 
 James Dezell. 
 
 A demand of the property by the constable was proved, as well 
 as a refusal by the defendant to redeliver the goods. The defend- 
 ant also offered to prove at the trial that the property receipted 
 was really his own, and that it was purchased with his own money, 
 but the evidence was excluded on the ground that the receipt 
 estopped him from making such a defense. 
 
436 BAILMENT. 
 
 The principle of estoppel is quite extensive in its application. 
 And where a school district collector has taken goods by virtue 
 of a warrant issued by the trustees of a school district for the 
 collection of teachers' wages, a delivery of the property so taken 
 to a third person, on his promise to redeliver it, will be binding 
 on him. Hilliard v. AusUn, 17 Barb. 141. Such an agreement 
 need not be in writing to be valid, nor is it necessary to allege in 
 the complaint that it is in writing. Ih. If the agreement was to 
 redeliver the property, or in default of so doing to pay the sum 
 specified in the warrant if the property was not redelivered, the 
 sum so specified may be recovered of the receiptor. Ih.; Burrall 
 V. Acher, 23 Wend. 606 ; S. C, 21 Wend. 605. And see Slinger- 
 land V. Morse, 7 Johns. 463. 
 
 When the agreement of the receiptor is in writing, it is best to 
 set out a copy of it in the complaint. In other cases the agree- 
 ment ought to be stated according to its terms, and as it can be 
 established by evidence. In an action against a receiptor, the 
 officer should prove his process, a levy under it, a delivery of the 
 property to the defendant, his promise or agreement to redeliver 
 it, a demand of the property, when a demand is necessary, or that 
 the time for redelivering the property has elapsed, when it was 
 to be redelivered at a specified time and place, a refusal by the 
 defendant to redeliver, and the value of the property. Though 
 there are instances in which the officer cannot recover more than 
 the amount of his execution or attachment, with interest, costs, 
 fees, etc. If a constable levies an execution upon property suffi- 
 cient to satisfy it, and a sheriff subsequently levies upon and sells 
 it, the constable may maintain an action against the sheriff to 
 recover the amount of the constable's execution, with interest, 
 costs, etc. Beits v. Hoyt, 19 Barb. 412. If the property is taken, 
 in such a case, by a wrongdoer, or one without process, on a 
 pretense of a title or right to the property, the constable may 
 recover the full value of the property. 
 
LIEN. 437 
 
 CHAPTER X. 
 
 LIEN. 
 
 § 1. Liens in General. 
 
 A lien is a right vested in one man to retain possession of the 
 property of another until some pecuniary claim has been satisfied. 
 It exists in favor of an unpaid vendor of personal property ; of per- 
 sons who have advanced money upon the security of a deposit 
 of goods and chattels; of innkeepers v^ho have provided lodging 
 and food for travelers and guests ; of common carriers who have 
 received goods to be carried for hire ; of the factor, broker or auc- 
 tioneer, who has received goods for sale, and has made advances oi- 
 given acceptances upon the credit of them to his employer, or who 
 has sold them and earned commissions, etc., and retains in his 
 hands the proceeds or avails of the sale. A lien generally exists 
 in favor of mechanics or artisans and others who have bestowed 
 labor and service on goods and chattels which have been delivered 
 to them to be repaired, improved or mended. It may also exist 
 in many other cases by custom, or by the express agreement of 
 the parties. It may exist at common law or, it may exist by virtue 
 of some statutory enactment, or by both, as where the statute is 
 merely declaratory of a right existing at common law. 
 
 The right of lien, when once established, is not destroyed by 
 reason of the fact that the remedy for the recovery of the debt 
 which is secured by the lien is barred by the statute of limitations. 
 Spears v. Hartly, 3 Esp. !N". P. 81 ; In re Broomhead, 16 Law J. 
 Q. B. 355. 
 
 There are two species of liens known to the law, namely, par- 
 ticular liens and general liens. 
 
 Particular liens are when persons claim a right to retain gdods 
 in respect of labor and money expended upon them, and those 
 liens are favored in law. General liens are claimed in respect of 
 a general balance of accounts, and these are founded in custom 
 only, and are, therefore, to be taken strictly. 
 
 Whenever a party has bestowed work and labor, or skill in re- 
 pairing or improving a chattel at the request or by the employ- 
 ment of the owner, he has a lien upon it for a fair and reasonable 
 remuneration, or for the contract price, if the price has been fixed 
 by agreement. Chase v. Westmore, 5 M. & S. 183 ; Scott v. Delor 
 
-138 LIEK 
 
 hunt, 65 E". Y. 128 ; Hazard v. Manning, 8 Hun, 613 ; Morgan 
 V. Gongdon, 4 N. Y. 552; Weaver v. Darby, 42 Barb. 411; Crom- 
 melin v. iVeiw ZorA; (f- Harlem R. B. Co., 1 Abb. Ct. App. Dec. 
 472, 474 ; 4 Keyes, 90 ; Moore v. Hitchcock, 4 Wend. 292. 
 
 It may be laid down as a general rule that every workman, ar- 
 tificer or mechanic has a particular lien upon the chattel which 
 has been delivered to him in his business, and on which he has 
 expended his labor or money, or both (Franklin v. Hosier, 4 
 Barn. & Aid. 34) ; and, therefore, a shipwright has a lien upon 
 the ship for repairs (id.) ; a printer on the paper delivered to 
 him to be printed (Blake v. Nicholson, 3 M. & S. 167 ; Conrow \. 
 Little, 115]Sr. Y. 387);a workman employed to take away mate- 
 rials and manufacture clothing from them, on the materials fur- 
 nished (Kafka v. Levensohn, 18 Misc. 202) ; or a miller on the 
 grain ground at his mill. Chase v. Westmore, 5 M. & S. 180. 
 
 Where a qiiantity of logs is delivered at a saw mill, at different 
 times and days, upon an agreement that the whole lot is to be 
 sawed into boards, if the mill owner saws a portion of the logs 
 into boards which he delivers to the owner, without being paid 
 for his sawing, he has a lien upon the residue of the logs in his 
 possession for the value of such sawing. Morgan v. Congdon, 4 
 ]Sr. Y. 552. An auctioneer has a lien for his expenses and for 
 his commissions on the price of the property sold. Bobinson v. 
 Butter, 4 Ell. & Blackb. 954; Coppin v. Walker, 7 Taunt. 237 j 
 Coppin V. Craig, id. 243 ; Williams v. Millington, 1 H. Bla. 81. 
 
 A livery-stable keeper has a lien for the keeping and exercise 
 of a horse which is sent to him for the purpose of being trained. 
 Sevan v. Waters, 3 Carr. & Payne, 520. 
 
 But where no work is to be done upon the chattel to improve or 
 increase its value, or carry it from one place to another for hire, 
 no lien attaches upon it. Thus, if a power of attorney, or an 
 authority to receive money is intrusted to a bailee in order that 
 he may exhibit it as a voucher, he has no lien upon the document 
 for money due to him from the bailor. Where a mortgage deed, 
 was delivered to an auctioneer in order that he might obtain \ 
 payment of the principal and interest due thereon, and the auc- 
 tioneer made several applications for the money, it was held that I 
 he had no lien upon the deed for his charges. Sanderson v. Bell, 
 2 Cr. & M. 304. 
 
 Again, the lien of a manufacturer or workman or mechanic 
 extends only to the principal chattels placed in his hands to be 
 worked tip, and not to the accessorial materials which may have 
 
LIEN. 439 
 
 been furnislied by the employer, and left unused upon the prem- 
 ises of such manufacturer, workman, or mechanic. Cumpston V. 
 Haigh, 2 Bing. JST. C. 449. A stereotype printer who receives 
 the stereotype plates from his employer to print from, has no lien 
 upon such plates for printing, but it is confined to the paper upon 
 which he printed. Bleaden v. Hancock, 4 Oarr. & Payne, 152. 
 But such a lien may be created by an express agreement between 
 the parties. Chapman v. Kent, 3 Duer, 225. And a printer em- 
 ployed to print a book who has received one hundred and fifty 
 reams of paper for that purpose, and has used but four, has a lien 
 upon all the paper, not only for labor literally expended upon 
 the paper itself, as by printing, but also for any act done, labor 
 performed, or money expended in the preparation of instrumen- 
 talities by which that labor was to be performed, as types, cuts, 
 illustrations, electrotypes and other things of like nature and ob- 
 ject. Conrow v. Little, 115 IST. Y. 387. But where the publishers 
 of a book furnish the printers with the type for the purpose, the 
 latter have no common-law lien upon the type for the work done 
 in printing the book. De Vinne v. Rianhard, 9 Daly, 406. 
 
 It is provided by statute in this State that a person who makes, , 
 alters, repairs, or in any way enhances the value of an article of 
 personal property, at the request, or with the consent of the owner, 
 has a lien on such article, while lawfully in possession thereof, 
 for his reasonable charges for the work done and materials fur- 
 nished, and may retain possession thereof until such charges are 
 paid. General Laws, ch. 49, § 70 ; Laws of 1897, ch. 418, § 70. 
 
 To give a right of lien under this statute, the party claiming 
 it must be in possession of the articles upon which it is claimed. 
 Thus, it has been held that, where a person claims a lien for ser- 
 vices in cutting, skidding, and drawing a quantity of logs for a 
 corporation, the mere proof of the fact that the party was employed 
 by the corporation to do the work in question does not show the 
 possession requisite to give a lien, as the possession was originally 
 in the corporation, and possession by an employee will be deemed 
 the possession of the employer. 0' Clair v. Hale, 35 App. Div. 
 77. In the court below, it was held that this provision of the stat- 
 ute applied to skilled labor and to personal property only, and did 
 not apply to cutting and placing in the driveways, logs owned by 
 the defendant under a stumpage contract with the owner of the 
 tract from which they were cut, and which did not become personal 
 property until they were cut. O'Glair v. Hale, 25 Misc. 31. 
 
 Another statute of this State provides that " a person keeping 
 
440 LIEN. 
 
 a livery stable, or boarding stable for animals, or pasturing or 
 boarding one or more animals, or who in connection therewith 
 keeps or stores any wagon, truck, cart, carriage, vehicle or har- 
 ness, has a lien dependent upon the possession upon each animal 
 kept, pastured or boarded by him, and upon any wagon, truck, 
 cart, carriage, vehicle or harness, of any kind or description, 
 stored or kept, under an agreement with the owner thereof, 
 whether such owner be a mortgagor remaining in possession or 
 otherwise, for the sum due him for the care, keeping, boarding, 
 or pasturing of the animal, or for the keeping or storing of any 
 wagon, truck, cart, carriage, vehicle and harness, under the agree- 
 ; ment, and may detain the animal or wagon, truck, cart, carriage, 
 I vehicle and harness accordingly, until such sum is paid." Gen- 
 eral Laws, ch. 49, § 74 ; Laws of 1897, ch. 418, § 74, as amended 
 by ch. 465, Laws of 1899. This statute extends to a considerable 
 extent the right of lien given by former statutes. See Robinson 
 V. Kaplan, 21 Misc. 686 ; Jackson v. Kasseall, 30 Hun, 231. 
 
 A party cannot set up a right of lien which is at variance with 
 the terms or conditions, or the implied understanding upon which 
 he received the property. And, therefore, if a livery-stable keeper 
 takes in a horse to be stabled and fed for hire, upon the under- 
 standing that the horse is to be redelivered to the owner when- 
 ever he requires it, the livery-stable keeper has no right of lien 
 upon the horse for his keep (Judson v. Etheridge, 1 Cr. & M. 
 743 ; Forth v. Simpson, 13 A. & E. IST. S. 680 ; Yorhe v. Green- 
 augh, 2 Ld. Raym. 868) ; nor for the money which he may have 
 paid to a veterinary surgeon for blistering the horse according to 
 the owner's directions {Orchard v. Bachstraw, 9 Man., Grang. & 
 Scott, 698) ; the right of the owner to the possession of the horse 
 for the purpose of riding him being inconsistent with the right 
 of lien See Cotta v. Carr, 27 Misc. 545. 
 
 The livery-stable keeper, indeed, who holds a horse at the con- 
 stant disposal of the owner, is the mere servant of the latter, and 
 has nothing more than the bare custody of the animal. Fox v. 
 McGregor, 11 Barb. 41 ; Bass v. Pierce, 16 Barb. 595 ; Grinnell 
 V. Cooh, 3 Hill, 486; Neff v. Thompson, 8 Barb. 213, 216. This 
 is the case also with an agister of milch cows, who receives them 
 to be depastured, agisted, or fed, if the owner has a right to the 
 possession of the cows whenever he requires them for the purpose 
 of milking. Ih. But the agister may maintain an action of tres- 
 pass against a stranger or wrongdoer who takes the cows from his 
 possession. Ih. 
 
LIEN. 441 
 
 In the absence of any special agreement, the law will not give 
 to a farmer who pastures horses, any lien upon the animals for 
 the price or value of keeping them. Bissell v. Pearce, 28 N. Y. 
 252. 
 
 If a person receives a bill of exchange for the purpose of get- 
 ting it discounted and then of paying over the proceeds to the 
 owner, or of applying the money in some specified manner, he 
 has no lien upon the bill for the money which may be due to him 
 from the latter. Key v. Flint, 8 Taunt. 21, 23; Buchanan v. 
 Findlay, 9 Barn. & Cress. 738, 749. And whenever goods in the 
 hands of a bailee or depositary are by the terms of the contract 
 to be redelivered to the owner at some stated period, or if by the 
 agreement the plaintiff is to have the goods immediately, and the 
 payment in respect of them is to take place at a future day, the 
 bailee cannot set up any lien. Crawshay v. Homfray, 4 Barn. 
 & Aid. 52. A lien is wholly inconsistent with a dealing upon 
 credit, and it can exist in those cases only in which payment is to 
 be made in ready money, or security is to be given the moment the 
 work is completed. Baitt v. Mitchell, 4 Camp. IST. P. 146 ; Wiles 
 Laundering Go. v. Hahls, 105 N. Y. 234. The lien which a me- 
 chanic has for work done by him upon a chattel, is discharged by 
 an agreement on his part to look to the personal credit of his em- 
 ployer, or that of another person, for the payment of his demand. 
 Bailey v. Adams, 14 Wend. 201 ; Fieldings v. Mills, 2 Bosw. 489. 
 
 And the fact that the person who is to make the payment be- 
 comes insolvent before the time of payment arrives, will not make 
 any difference, nor save or revive the lien. lb. So, if security, 
 such as a bill, note or bond, is taken for the debt for which the 
 party has a lien upon the property of the debtor, it will discharge 
 it if a future day of payment is given. Hewison v. Outhrie, 2 
 Bing. E". C. 755, 759 ; Homcastle v. Farran, 3 Barn. & Aid. 497 ; 
 Oorman v. Williams, 26 Misc. 776. 
 
 If a party, when goods or chattels are demanded of him, rests , 
 his refusal to deliver them up on grounds quite distinct from any | 
 claim of lien, he cannot afterwards, on finding that those grounds | 
 fail him, put forward a claim of lien as a justification for his 
 refusal. Saltus v. Everett, 20 Wend. 267; Holbrooh v. Wight, 
 24 Wend. 169, 179 ; Hudson v. Swan, 83 K Y. 552; Long Island 
 Brewery Co. v. Fitzpatricle, 18 Hun, 389 ; Dows v. Morewood, 
 10 Barb. 183 ; Winter v. Coit, 7 N. Y. 288 ; Tiffany v. St. John, 
 65 K Y. 314, 318. 
 
 Where, therefore, a warehouseman, on being applied to for 
 
442 LIEN. 
 
 brandy which had been delivered to him for safe custody, refused 
 to give it up, saying that it was his own property, it was held that 
 he could not afterwards justify his refusal on the ground that 
 warehouse rent was due to him, and that it was not tendered to 
 him at the time the brandy was demanded, for it would be absurd 
 to offer the expenses of keeping the goods to one who insisted 
 upon retaining them as his own property. Weehs v. Ooode, 6 J. 
 Scott, N. S. 367; Boardman v. Sill, 1 Camp. N. P. 410, n. ; Hol- 
 brook V. Wight, 24 Wend. 169 ; Tuttle v. Gladdvng, 2 E. D. Smith, 
 157; Doivs v. Morewood, 10 Barb. 184; Dunlap v. Hunting, 2 
 Denio, 643. Where a demand of property is made, and the per- 
 son in possession refuses to deliver it, but does not pretend that 
 the party making the demand is not entitled to it, he cannot on 
 the trial object that the plaintiff did not exhibit the evidence of 
 his right at the time of making the demand. Livingston v. 
 Stoessel, 3 Bosw. 19; Tuttle v. Gladding, 2 E. D. Smith, 157. 
 
 Where a factor refuses to deliver property which was consigned 
 to him, upon the ground that he has a lien for his general balance, \ 
 he cannot, upon failing to establish that, depend upon the ground 
 that he has a lien for actual charges and expenses upon the prop- 
 erty. Winter v. Coit, 7 E". Y. 288 ; Weeks v. Ooode, 6 J. Scott, 
 jST. S. 367, and note at end of case. 
 
 But a person does not of course lose his right of lien by merely 
 omitting to mention it when the goods are demanded. And if 
 he claims a right to detain them for two separate charges, and 
 has a lien only in respect of one of them, this will not dispense 
 with the necessity of a tender of the one in respect of which a 
 lien exists. White v. Gainer, 2 Bing. 23 ; Scarf e v. Morgan, 4 
 Mees. & Wels. 270, 281. 
 
 So it has been held that where an innkeeper has a lien for keep- 
 ing horses, but he claims for a longer time than he is entitled to, 
 this is not such an excess of claim as to discharge the other party 
 from tendering the sum actually due. Allen v. Smith, 12 J. 
 Scott, ]Sr. S. 638. But it is doubtful if this decision would be 
 regarded as law in this State. It has been recently decided that 
 where a livery-stable keeper undertakes to demand of the owner 
 of the property a sum which he has no lawful right to exact, re- 
 fusing to deliver the property except upon the condition of the 
 payment of this sum, and the owner of the property is ignorant 
 of the sum actually due, no actual physical tender of the amount 
 of the lien is necessary. Allen v. Corhy, 59 App. Div. 1. 
 
 But where a party claims to detain goods upon two causes of 
 
LIEN. 443 
 
 lien, in such a way as to dispense with a tender upon either of 
 them, he will be guilty of a conversion, unless he can sustain both 
 t'laims. Kerford v. Mondel, 5 Hurlst. & Norm. 931 ; which ex- 
 plains Scarf e v. Morgan, 4 Mees. & Wels. 270, above cited. 
 
 It is generally essential to the existence of the right of lien 
 that the relationship of employer and employee should exist be- 
 tween the parties. 
 
 A person who is not engaged in the business of warehousing or 
 storage, but who permits another to deposit a chattel in an un- 
 occupied room of his premises, does not thereby acquire any lien 
 upon such chattel for the value of the storage of it. Alt v. Weiden- 
 herg, 6 Bosw. 176. 
 
 Where common carriers have transported goods, which remain, 
 in their possession and in their cars, in consequence of the delay! 
 of the consignee to receive them, they have ng implied lien for| 
 that implied compensation which the law givers in such a case tol 
 the carrier. Crommelin v. New York & Harlem B. B. Co., 10 
 Bosw. 77. 
 
 A mere trespasser or wrongdoer, who gets possession of prop- 
 erty without the consent of the ' ov?ner, cannot in general deal 
 with it so as to create a right of lien thereon as against the true 
 owner. Hartop v. Hoare, 3 Atk. 44; S. C, 2 Strange, 1187; 
 Coitus v. Everett, 20 Wend. 267 ; Broiuer v. Peahody, 13 K Y. 
 121; Daws v. Perrin, 16 K Y. 325; Covell v. Hill, 6 K Y. 374; 
 Anderson v. Nicholas, 5 Bosw. 121 ; 8. C, 28 N. Y. 600. 
 
 To enable an artisan to obtain a lien upon goods intrusted to 
 him to work up, it must appear that the person from whom he 
 received them had authority to dispose of them for that purpose. 
 Gluchman v. Kleiman, 3 Misc. 97. 
 
 Where the owner of a carriage (a pony phaeton), intrusted it 
 to a painter to be painted, and the latter carried it to the premises 
 of the defendant, who was in the habit of taking carriages to 
 stand on his premises for hire, and there left it, and the carriage 
 never having been painted or brought back, the plaintiff, after 
 the expiration of three months, made search for it, and found it 
 on the premises of the defendant, who claimed a lien on it for 
 the price of the standing room, it was held that the defendant had 
 no such lien by law. Buxton v. Baughan, 6 Carr. & Payne, 674. 
 And where a chaise, which had been broken by the negligence of 
 a servant, was taken by the latter to ^ coachmaker's without the 
 knowledge or sanction of the master, and wa^ there repaired, it 
 was held that the coachmaker had no lien upon the chaise as 
 
444 LIEN. 
 
 against the master for the price of the repairs. Hiscox v. Oreen- 
 wood, 4 Esp. N. P. 174. 
 
 "A keeper of a hotel, inn, boarding-house, or lodging-house, ex- 
 cept an emigrant lodging-house, has a lien upon, while in posses- 
 sion, and may detain the baggage and other property brought upon 
 their premises by a guest, boarder or lodger, for the proper 
 charges due from him, on account of his accommodation, board 
 and lodging, and such extras as are furnished at his request. If 
 the keeper of such hotel, inn, boarding or lodging-house knew that 
 the property so brought upon his premises was not, when brought,, 
 legally in possession of such guest, boarder or lodger, or had 
 notice that siich property was not then the property of such guest,, 
 boarder or lodger, a lien thereon does not exist." General Laws, 
 eh. 49, § 71 ; Laws of 1897, ch. 418, § 71, as amended by Laws 
 of 1899, ch. 380. 
 
 The common law accords to innkeepers, common carriers, and 
 to all persons who are bound by law to exercise their craft, trade, 
 or calling in favor of travelers and wayfarers, a right to retain 
 the goods and chattels of such travelers until they have received 
 the customary and fair remuneration for the services which they 
 have been compelled to render them, whether the goods are the 
 property of the traveler or the property of third parties from 
 whom it has been hired, or even fraudulently taken or stolen,, 
 if the innkeeper has no notice of the wrong and acts honestly. 
 Grinnell v. Cook, 3 Hill, 490; Johnson v. Hill, 3 Stark. N. P. 
 172; Peet v. McGraw, 25 Wend. 653; Turrill v. Crawley, 13 
 Ad. & Ellis, ISr. S. 197; BoUnson v. Walter, 3 Bulstr. 269; 
 Yorke v. Greenaugh, 2 Ld. Raym. 866, 867; Snead v. Watkins,. 
 1 J. Scott, N. S. 267. 
 
 At common law a boarding-house keeper had no lien upon the 
 goods of a boarder except by a special agreement. This was 
 changed in 1860 by a statute similar in some respects to the 
 statute above cited (Laws of 1860, ch. 446), and it was held that 
 that statute gave to a boarding-house keeper the same lien that 
 the common law gave to innkeepers as to goods brought to the 
 inn by travelers. Jones v. Morrill, 42 Barb. 623. And it was- 
 held that neither by the act of 1860, nor by the common law did 
 a boarding-house keeper or an innkeeper obtain a lien upon the 
 separate property of the wife of a guest or boarder who engaged 
 board for himself and his family. Mcllvaine v. Hilton, 7 Hun,. 
 594. It was also held that the lien was limited to the sum then 
 due for board and did not extend to sums to become due under 
 
LIEX. 445 
 
 an agreement to board in the future, nor to any other indebted- 
 ness. Bhafer v. Quest, 6 Rob. 264; 35 How. 184. 
 
 A boarding-house, within the meaning of the statute, is a 
 house in which the business of keeping boarders generally is car- 
 ried on, and which is held out by the owner or keeper as a place 
 where boarders are kept. A private house where one or more 
 boarders are kept occasionally only, and upon special considera- 
 tions, is not such a boarding-house. Cady v. McDowell, 1 Lans. 
 484. 
 
 A lodging-house keeper had no lien at common law upon the 
 property of a guest for rent due. Cochrane v. Schryver, 12 Daly, 
 174. Now no distinction is made by the statute in respect to 
 the right of lien of the keeper of a hotel, inn, boarding-house or 
 lodging-house, except an emigrant lodging-house. 
 
 Where the property does not accompany the person of the guest 
 when he comes to the inn, but is afterwards brought there for the 
 vise of the guest, and is known by the innkeeper to be the prop- 
 erty of another at the time it is brought to the inn, the innkeeper 
 cannot set up any lien upon it for the debt due to him from the 
 guest. Broadwood v. Granara, 10 Exch. 417. 
 
 But the lien and the liability of an innkeeper do not exist, 
 unless the person bringing the goods or chattels to him is either 
 actually or constructively a guest of the house. Grinnell v. Cooh, 
 3 Hill, 485 ; Fox v. McGregor, 11 Barb. 41 ; Feet v. McGraw, 25 
 Wend. 653. 
 
 The present statute gives a lien to an innkeeper upon the prop- 
 erty of his guest for the proper charges due from him on account 
 of his accommodation and such extras as are furnished at his re- 
 quest. It is to be presumed that these " extras " do not include a 
 bar bill. See Laws of 1896, ch. 112, § 32, as amended by Laws 
 of 1897, ch. 312, § 23. 
 
 But where a man goes to an inn, with two race-horses and a 
 groom, in the character of a guest, and they remain there for 
 several months, taking the horse out every day for exercise and 
 training, and being occasionally absent for several days together 
 at races, but always with the intention of returning to the inn, 
 the relation of innkeeper and guest will, in the absence of proof 
 of an alteration in the relation of the parties, be presumed to 
 continue, and the occasional absences will not destroy the inn- 
 keeper's lien for his bill. Allen v. Smith, 12 J. Scott, ¥. S. 
 638. 
 
 A general lien is a right on the part of a manufacturer, or 
 
446 LIEIvf. 
 
 mechanic, or workman, factor, broker, or commission agent or mer- 
 chant for the sale of goods, warehouseman or wharfinger, into 
 whose hands goods have been placed to be worked up, repaired 
 or improved, sold or taken care of for hire, in the ordinary course 
 of their trade or employment, to retain possession of them not 
 only imtil they have received payment of the hire due to them 
 for their services in the particular employment, but for the gen- 
 eral balance due to them from their employer in the ordinary 
 course of dealing for work and services of the like nature bestowed 
 at other times upon other goods of the employer. This right 
 depends either upon the express agreement of the parties, or the 
 custom and usage of the particular business, or upon statute. 
 
 The burden of making out and establishing the right whether 
 it exists by agreement or by custom, lies upon the party claim- 
 ing it. When custom and usage of trade are relied upon as 
 establishing the right, the usage must be shown to have governed 
 the parties in their previous dealings together, or to prevail to 
 such an extent that the contracting party must be supposed to be 
 cognizant of it, and to have contracted subject to the usage, but 
 as the right is an encroachment upon the ordinary rules and prin- 
 ciples of the common law, it is regarded with jealousy by the 
 courts, and requires the strongest proof. Wheeler v. Newbould, 
 16 IsT. Y. 392; Merchants' Banh of N. Y. v. Woodruff, 6 Hill, 
 174; Dalton v. Daniels, 2 Hilt. 472. And the usage, when it 
 exists, must be shown to have been long es>tablished, and notorious, 
 fair and reasonable, and not contrary to any established prin- 
 ciple of law. Wheeler y. Newbould, 5 Duer, 29 ; Beals v. Terry, 
 2 Sandf. 127 ; Suydam v. Glarh, id. 133 ; Hinton v. Locke, 5 
 Hill, 437. 
 
 Evidence of a usage which contradicts the express agreement 
 between the parties is not admissible. Hinton v. Locke, 5 Hill, 
 437 ; Hone v. Mutual Safety Ins. Co., 1 Sandf. 137 ; Tail v. Rice, 
 5 ISr. Y. 155. 
 
 By a recent statute a warehouse company, warehouseman or 
 other person lawfully engaged in the business of storing goods, 
 wares and merchandise for hire has a lien on goods deposited and 
 stored with him for his storage charges, and for money advanced 
 by him for cartage, labor, weighing and coopering in relation 
 to such goods, or other goods belonging to the same owner; and 
 he may detain such goods until his lien is paid. General Laws, > 
 ch. 49, § 73 ; Laws of 1897, ch. 418, § 73. The lien given by i 
 this act is a general lien, and not simply a specific lien upon ' 
 
LIEN. 447 
 
 llio property mentioned. Stallman v. Kimherly, 53 Hun, 
 531. 
 
 The statutes also give a lien to factors. "A person in whose 
 name any merchandise 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 
 such 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 AYhere 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 
 security is received by the person in whose name the shipment is 
 made, that such person is not the actual and hona fide owner | 
 thereof." Laws of 1897, ch. 418, § 72; General Laws, ch. 49,1 
 § 72. 
 
 The lien of a factor does not extend to a collateral debt not 
 growing out of the relationship of principal and factor, such as 
 a debt due for rent (Houghton v. Matthews, 3 Bos. & Pul. 485) ; 
 nor to goods which have not actually reached the hands of the 
 factor, and come into his possession with the consent and direc- 
 tion of the owner (Kinloch v. Craig, 3 Term E. 119, 123 ; Bank 
 of Rochester v. Jones, 4 K Y. 497; Winter v. Coit, 7 K Y. 
 288) ; even though the factor's claim is for advances made upon 
 former shipments, which are unpaid. Ih. And, if goods are left 
 at the factor's place of business ' by mistake . or inadvertence 
 (Lucas V. Dorrien, 7 Taunt. 278; 8. G., 1 Moore, 29) ; or have 
 been taken possession of by him without authority, he cannot set 
 up a lien upon them for his balance. Taylor v. Robinson, 2 
 Moore, 730. 
 
 Where a factor is dealing for a principal, but he conceals the 
 name of that principal, and delivers goods in his own name, the 
 person contracting with him has a right to consider him, to all 
 intents and purposes, as the principal; and though the real prin- 
 cipal may appear and bring an action upon that contract against 
 the purchaser of the goods, yet that purchaser may set off any 
 claim he may have against the factor in answer to the demand 
 of the principal. George v. Clagett, 7 Term, 359 ; and note a, 
 360, Rabone v. Williams; Hogan v. 8horb, 24 Wend. .458. But, 
 if the name of the principal is disclosed at the time of the sale, 
 
4-18 LIEN. 
 
 the vendee has no right to set up any equities between himself 
 and the factor to defeat the action of the owner; and the same 
 consequence will follow if the vendee knew or had good reason 
 to believe he was dealing with the agent of another, although 
 the name of the principal was not disclosed. Hogan v. Shorbj 
 24 Wend. 458, 462; Maanss v. Henderson, 1 East, 335; Man v. 
 Shiffner, 2 East, 523 ; 8nooh v. Davidson, 2 Oamp. N. P. 218 ; 
 Bliss V. Bliss, Y Bosw. 339. 
 
 Although a purchaser from a factor, without notice of the 
 principal, may set off a debt due from such factor, the rule is 
 otherwise as to brokers and commission merchants. If a broker 
 sells goods without disclosing the name of his principal, the pur- 
 chaser cannot set off a debt due from the broker if the principal 
 sues to recover the purchase price of the goods. Bliss v. Bliss, 1 
 Bosw. 339. 
 
 A person Avho receives goods from another who is merely the 
 agent of the true owner, cannot retain such goods as against 
 the true owner for a debt due from such agent to the person 
 receiving the goods, provided the debt was due at the time of 
 receiving the goods, and it was not contracted on the credit of a 
 deposit of such goods. Hartop v. Hoare, 3 Atk. 44; S. C, 2 
 Strange, 118Y. 
 
 Insurance brokers have a lien for the general balance due to 
 them from their employers upon all policies affected by them for 
 such employers and left in their hands, and upon all moneys 
 received by them upon such policies from the insurers or under- 
 writers, unless the party for whom they effected the policy was 
 himself only an agent in the matter, in which case the extent 
 of their lien will depend upon the disclosure or concealment of 
 the agency, and the degree of credit they may have given to the 
 agent under the impression that he was the party really interested 
 in the policy. The lien does not extend to a collateral debt not 
 incurred in respect of brokerage business. 
 
 Bankers are also a species of factors in pecuniary transactions, 
 and they have by law a lien upon all the securities of their cus- 
 tomers in their hands for their advances to such customers in 
 the ordinary course of business, unless such securities have been 
 received under special circumstances and not in the ordinary 
 course of their business as bankers, or under some special 
 arrangement or understanding inconsistent with the exercise of 
 the right, or limiting it to some specified amoimt. Davis v. Bow- 
 sher, 5 Term, 488 ; Vanderzee v. Willis, 3 Brown's Ch. 21 ; 
 
LIEN. 449 
 
 Thompson v. Oiles, 2 Barn. & Cress. 422 ; People v. St. Nicholas 
 Bank, 44 App. Div. 313; Meyers v. New York County Nat. 
 Bank, 36 id. 482 ; National Bank v. Insurance Co., 104 U. S. 54. 
 
 A banker's lien exists only in respect to accounts that are at 
 the time due and payable, unless by agreement of the parties a 
 wider scope is given it. Jordan v. Nat. Shoe & Leather Bank, 
 74 K Y. 467. 
 
 If securities which are not negotiable are deposited with a 
 banker by a person who is AvrongfuUy possessed of them, or is 
 not the true owner thereof, and is not authorized to raise money 
 upon them, the banker who advances money upon them has no 
 further or better rights over them than the party who deposited 
 them in his hands, and he cannot set up a lien upon them as' 
 against the true owner. Lucas v. Dorrien, 7 Taunt. 278. 
 
 But in reference to negotiable securities, such as bills of ex- 
 change and promissory notes, a different rule prevails, and if they 
 are taken before due, a right of lien will extend to them, although 
 the customer who delivered them to the banker was not the owner, 
 but was holding them as agent or trustee of some third party, 
 unless the banker knew at the time he received the securities that 
 they did not belong to the party from whom he received them. 
 See Meyers v. New York County Nat. Bank, 36 App. Div. 482. 
 
 Attorneys, solicitors and counselors have a lien upon all moneys 
 recovered by them in the actions and suits in which they are em- 
 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. Blakelock, 1 Maule & Selw. 535 ; Lambert v. Buck- 
 master, 2 Barn. & Cress. 616. And see Ely v. Cooke, 28 N. Y. 
 365. 
 
 The enactment of the Code has not in any manner affected the 
 right of lien in favor of attorneys, etc. Ward, v. Wordsworth, 
 1 E. D. Smith, 598 ; S. C, 9 How. 16 ; Sherwood v. Buffalo and 
 N. Y. City B. B., 12 How. 136. 
 
 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. Holcomh, 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 
 29 
 
■ioO LIE:tf. 
 
 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 
 v?ill extend to the amount agreed upon, and be a valid and effec- 
 tual lien and security to that extent. Booney v. Second Avenue 
 B. B., 18 ISr. Y. 368; IfffiZZ v. Ayer, 9 Abb. 220; S. G., 19 How. 
 91 ; McGregor v. Comstoclc, 28 ii. Y. 237 ; Mackey v. Machey, 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 Hen 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, 18 Ves. 294; Batch v. Symes, Turn. & K. 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, 
 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 
 V. Oxenham, 3 Barn. & Cress. 225 ; Lightfoot v. Kecme, 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 favpr of 
 all persons who may require his services, has a right to prescribe 
 
LIEN. 451 
 
 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, i£ 
 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. 
 Schmidt V. Blood, 9 Wend. 268. And see Morgan v. Congdon, 
 4 N. 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 work 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 E". 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. Robinson v. Springfield Iron 
 Co., 39 Hun, 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 
 
452 LIEN. 
 
 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 j 
 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, Ryan & Moody, 194; 8. C, 1 Carr. & Payne, 
 575 ; Bigelow v. Heaton, 6 Hill, 43 ; Kline v. Green, 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 
 an implied power of sale. Clark v. Gilbert, 2 Bing. N. C. 343, 
 357. 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 
 execution issued upon a judgment in his own favor, he thereby 
 loses his lien, although the goods are sold to him under the exe- 
 cution, and are never removed off of his premises. Jacobs v. La- 
 tour, 5 Bing. 130 The question whether the lien is lost, is noti 
 important except in those cases in which other creditors have a! 
 lien upon the same property by attachment, execution, chattel 
 mortgage or otherwise. If the party having the prior lien author- 
 izes a sale of the property even on his own execution, he transf^ 
 the possession of the property to the officer for the purposes! of 
 the sale, which is a relinquishment of the lien. And, if he pur- 
 chases the property on such sale, he makes title under the sale 
 and does not retain any advantage from his original right of lien. 
 
 If materials are delivered to a workman to be made up or manu- 
 factured, upon the terms that the employer is to pay ready money 
 for the work, the employer cannot get rid of the workman's lien 
 for the price by offering to set off against such price a debt due 
 from the workman to such employer. Clarice v. Fell, 4 Barn. & 
 Ad. 404. But if the workman in such a case delivers the prop- 
 
LIEK 453 
 
 erty to the owner without payment, and suhseqnently sues for 
 the price of his work done, the owner will then he entitled to set 
 off such demand as he has against the plaintiff. /&.; Gomforth 
 V. Bivett, 2 Maule & Selw. 510. 
 
 § 2. Mechanics' Liens. 
 
 Prohably the form of lien the most frequently met with in 
 practice is that known as the mechanic's lien. This lien is purely 
 statutory. Formerly, there was a great want of uniformity in this 
 particular branch of the law, due to the fact that many independ- 
 ent statutes had been enacted, and from time to time amended, 
 declaratory of the manner in which this lien might be created and 
 enforced. These statutes varied in their provisions and were, to 
 a certain extent, local, in the sense that their provisions in many 
 cases extended over only a part of the State, or, if professedly 
 general, excepted from their operation certain cities or counties 
 wherein the subject was regulated by other statutes. ISTow the 
 right of a mechanic or laborer to a lien upon real property for 
 work done thereon for its improvement, or to a person furnish- 
 ing materials therefor, is given and regulated by article 1 of 
 chapter 418 of the Laws of 189Y, an act in relation to liens, con- 
 stituting chapter 49 of the General Laws, and the procedure fo^l 
 the enforcement of such liens is regulated and prescribed by title 3[' 
 of chapter 23 of the Code of Civil Procedure. 
 
 As a justice's court has jurisdiction to enforce such liens where 
 the amount involved does not exceed two hundred dollars, the right 
 of lien under the general statutes will be here considered, and the 
 practice for its enforcement will be discussed in its appropriate 
 place in a subsequent chapter, so far as such discussion is con- 
 sistent with the space allowed and the general plan of this work. 
 The practitioner desiring a fuller discussion of the law should 
 consult a special work on the subject, such as Heydecker's Me- 
 chanics' Lien Law. 
 
 The statute provides that " a contractor, sub-contractor, laborer 
 or materialman, who performs labor or furnishes materials for 
 the improvement of real property with the consent or at the re- 
 quest of the owner thereof, or of his agent, contractor or sub-con- 
 tractor, shall have a lien for the principal and interest of the 
 value, or the agreed price, of such labor or materials upon the 
 real property improved or to be improved and upon such improve- 
 ment, from the time of filing a notice of such lien as prescribed 
 
454 LIEK 
 
 in this article." Laws of 189Y, ch. 418, § 3 ; General Laws, ch. 
 49, § 3. 
 
 The term " real property " as used in the act relating to me- 
 chanics' liens, includes real estate, lands, tenements and heredita- 
 ments, corporeal and incorporeal, fixtures, and all bridges and 
 trestle work, and the structures connected therewith, erected for 
 the use of railroads, and all oil or gas wells and structures and 
 fixtures connected therewith, and any lease of oil lands or other 
 right to operate for the production of oil or gas upon such lands, 
 and the right or franchise granted by a municipal corporation for 
 the use of the streets or public places thereof, and all structures 
 placed thereon for the use of such right or franchise. 
 
 The term " owner," when so used, includes the owner in fee of 
 real property, or of a less estate therein, a lessee for a term of 
 years, a vendee in possession under a contract for the purchase 
 of such real property, and all persons having any right, title or 
 interest in such real property which may be sold under an execu- 
 tion in pursuance of the provisions of statutes relating to the en- 
 forcement of liens of judgment, and all persons having any right 
 ■or franchise granted by a municipal corporation to use the streets 
 and public places thereof, and any right, title or interest in and 
 to such franchise. The purchaser of real property at a statutory 
 or judicial sale, is deemed the ovsmer thereof from the time of 
 such sale. If the purchaser at such sale fails to complete the pur- 
 chase, pursuant to the terms of sale, all the liens created by his 
 consent after such sale is a lien on any deposit made by him and 
 not on the real property sold. 
 
 The term " improvement," when so used, includes the erection, 
 alteration or repair of any structure upon, connected with, or be- 
 neath the surface of, any real property and any work done upon 
 such property, or materials furnished for its permanent improve- 
 ment. 
 
 The term " contractor," when so used, means a person who en- 
 ters into a contract with the owner of real property for the im- 
 provement thereof. 
 
 The term " sub-contractor," when so used, means a person who 
 ■enters into a contract for the improvement of such real property 
 with a contractor, or with a person who has contracted with or 
 through such contractor, for the performance of his contract or 
 any part thereof. 
 
 The term " laborer," when so used, means any person who per- 
 iorms labor or service^ upon such improvement. 
 
LIEN. 455 
 
 The term " materialman," when so used, means any person, 
 other than a contractor, who furnishes material for such improve- 
 ment. 
 
 When two persons owning in severalty adjoining lots enter into 
 a joint contract for the excavation of both lots, which contract 
 treats both lots as one parcel, a mechanic's lien filed for work done 
 under the contract may be enforced against the two lots as one 
 parcel. Deegan v. Kilpatrick, 54 App. Div. 371 ; Hall v. 8hee- 
 han, 69 N. Y. 618 ; Mandeville v. Beed, 13 Abb. 173. 
 
 To give a lien under the third section of the statute above 
 quoted, the work must be done or the materials furnished with the 
 consent or at the request of the owner of the real property, or of 
 his agent, contractor or sub-contractor. ISTo express consent of the 
 owner is necessary to bring a case within the statute. A consent 
 may be implied from the conduct and attitude of the owner "with 
 respect to the improvements which are in the process of construc- 
 tion upon his premises. The facts from which the inference of 
 consent is to be drawn must be such as to indicate, at least, a 
 willingness on the part of the owner to have the improvements 
 made or an acquiescence in the means adopted for that purpose, 
 with knowledge of the object for which they are employed. The 
 omission of the owner to object to improvements made upon his 
 premises by a tenant, when he has knowledge of the circumstances 
 under which they are being made, is always an important fact 
 bearing upon the question. National Wall Paper Co. v. Sire, 163 
 N. Y. 122. See Huested v. Mathes, 77 N. Y. 388 ; BurUtt v. 
 Harper, 79 IST. Y. 273 ; OHs v. Dodd, 90 N. Y. 336 ; Schmalz v. 
 Mead, 125 K Y. 188; Miller v. Mead, 127 IST. Y. 544; Cowen 
 V. PaddocTc, 137 IST. Y. 188. 
 
 The legislature, in giving the right of lien, clearly intended 
 to enforce the eqiiitable principle that one who knowingly takes 
 the benefit of the property or labor of another in the form of im- 
 provements made upon his lands ought to have the land's sub- 
 ject to the lien for the value thereof. Otis v. Dodd, 90 E". Y. 336 ; 
 Butter V. Flynn, 51 App. Div. 225. 
 
 But where a trespasser, claiming title hostile to the true ovmer, 
 assumes to make improvements upon the property, the fact that 
 the true owner knew that the improvement was to be made is no 
 proof of his consent. Bpruch v. McRoberts, 139 IST. Y. 193. 
 
 The requirements of the statute in respect to the consent of the 
 owner are not met by a mere general agreement, unknown to the 
 party claiming the benefit of the lien, that the occupant may make 
 
456 LIEK 
 
 alterations at his own expense, especially where the alterations 
 made are other than those expressed in the consent, and were made 
 without the knowledge of the owner, and do not appear to be 
 of any actual benefit to the property. Hankinson v. Yantine, 152 
 K Y. 20. And see De Klyn v. Oould, 165 ¥. Y. 282. 
 
 As to the extent of the lien given by the third section of the 
 statute, it is provided as follows : " Such lien shall extend to the 
 owner's right, title or interest in the real property and improve- 
 ments, existing at the time of filing the notice of lien. If an 
 owner assigns his interest by a general assignment for the benefit 
 of creditors within thirty days prior to such filing, the lien shall 
 extend to the interBst flius assigned. If any part of the real prop- 
 erty subject to such lien be removed by the owner or by any other 
 person, at any time before the discharge thereof, such removal 
 shall not affect the rights of the lienor, either in respect to the 
 remaining real property, or the part so removed. If the labor is 
 performed for, or materials furnished to, a contractor or sub-con- 
 tractor for an improvement, the lien shall not be for a sum greater 
 than the sum earned and unpaid on the contract at the time of 
 filing the notice of lien, and any sum subsequently earned thereon. 
 In no case shall the owner be liable to pay by reason of all liens 
 created pursuant to this article a sum greater than the value or 
 agreed price of the labor and materials remaining unpaid, at the 
 time of filing notices of such liens, except as hereinafter provided." 
 Laws of 1897, ch. 418, § 4; General Laws, ch. 49, § 4. Tlie'ex-'^ 
 ception relates to payments made before due for the purpose of 
 avoiding the provisions of the statute. Id. § 7. 
 
 The term " lienor," as used in section 4 above quoted, means 
 any person having a lien upon property by virtue of the provisions 
 of the act in relation to liens, and includes his successor in inter- 
 est. Id. § 2. 
 
 The statute also recognizes and authorizes a lien for labor done 
 or materials furnished for the construction of a public improve- 
 ment. Id. § 5. The term " public improvement," as used in the 
 statute, means an improvement upon any real property belonging 
 to the State or a municipal corporation. Id. § 2. 
 
 The statute also authorizes the creation of liens upon railroads. 
 "Any person who shall hereafter perform any labor for a railroad 
 corporation shall have a lien for the value of such labor upon the 
 railroad track, rolling-stock, and appurtenances of such railroad 
 corporation and upon the land upon which such railroad track and 
 appurtenances are situated, by filing a notice of such lien in the 
 
LIEN. 457 
 
 office of the clerk of any county wherein any part of such railroad 
 is situated, to the extent of the right, title and interest of such 
 corporation in such property, existing at the time of such filing. 
 The provisions of this article relating to the contents, filing and en- 
 try of a notice of mechanic's lien, and the priority and duration 
 thereof, shall apply to such liens. A copy of the notice of such 
 lien shall he personally served upon such corporation within teui 
 days after the filing thereof, in the manner prescribed by the Code 
 of Civil Procedure for the service of summons in actions in jus- 
 tices' courts against domestic railroad corporations." Id. § 6. 
 
 The possibility that the owner of the property improved may 
 defeat the intention of the statute by making advance payments 
 on the contract or placing collusive mortgages or incumbrances on 
 the land is guarded against by a provision of the statute that "Any 
 payment by the owner to a contractor upon a contract for the im- 
 provement of real property, made prior to the time when, by the 
 terms of the contract, such payment becomes due, for the purpose 
 of avoiding the provisions of this article, shall be of no effect as 
 against the lien of a sub-contractor, laborer, or material man under 
 such contract, created before such payment actually becomes due. 
 A mortgage, lien or incumbrance made by an owner of real prop- 
 erty, for the purpose of avoiding the provisions of this article, with 
 the knowledge or privity of the person in whose favor the mort- 
 gage, lien or incumbrance is created, shall be void and of no effect 
 as against a claim on account of the improvement of such real 
 property, existing at the time of the creation of such mortgage, 
 lien or incumbrance." Id. § 7. 
 
 "A statement of the terms of a contract pursuant to which an 
 improvement of real property is being made, and of the amount 
 due or to become due thereon, shall be furnished on demand, by 
 the owner, or his duly authorized agent, to a sub-contractor, la- 
 borer or material man performing labor or furnishing materials 
 to a contractor, his agent or sub-contractor under such contract. 
 If, upon such demand, the owner refuses or neglects to furnish 
 such statement or falsely states the terms of such contract or the 
 amount due or to become due thereon, and a sub-contractor, la- 
 borer or material man has not been paid the amount of his claim 
 against a contractor or sub-contractor, under such contract, and a 
 judgment has been obtained and execution issued against such 
 contractor or sub-contractor and returned wholly or partly un- 
 satisfied, the owner shall be liable for the loss sustained by reason 
 of such refusal, neglect or false statement, and the lien of such 
 
45S LIEN". 
 
 sub-contractor, laborer or material man, filed as prescribed in this 
 article, against the real property improved for the labor per- 
 formed or materials furnished after such demand, shall exist to 
 the same extent and be enforced in the same manner as if such 
 ' labor and materials had been directly performed for and furnished 
 I to such owner." Id. § 8. 
 
 It will be noticed that the language of the first sentence of 
 section Y of the Lien Law above quoted apparently limits the 
 effect of collusive payments to such payments made by the owner 
 to a contractor. But it has been -held that the section should be 
 held to embrace payments by the principal contractor as well as 
 payments by the owner. Lawrence v. Dawson, 34 App. Div. 211. 
 And this was the construction put upon the corresponding pro- 
 visions of the Lien Law of 1885. See Laws of 1885, ch. 342, 
 § 2 ; Smack v. Cathedral of the Incarnation, 31 App. Div. 559. 
 The last sentence of section 4 of the present Lien Law to the 
 effect that in no case shall the owner be liable to pay by reason of 
 all liens created pursuant to the article relating to mechanics' liens 
 a sum greater than the value or agreed price of the labor and 
 materials remaining unpaid at the time of filing notices of such 
 liens " except as hereinafter provided," should be read in con- 
 nection with section 7 of that article, as that is the provision in- 
 tended and referred to. The policy of the statute is that, except 
 in cases of fraud and collusion, the owner cannot be compelled 
 to pay any greater sum for the completion of his building than 
 that which by his contract he agreed to pay; and the aaime is 
 true of a contractor who has in turn in good faith paid the sub- 
 contractor the amount due him after the same has become due 
 and payable. See French v. Bauer, 134 J^. Y. 458. 
 
 A lien becomes operative from the time of filing the notice of 
 lien. General Laws, ch. 49, § 8 ; Laws of 1897, ch. 418, § 3. 
 But it must be a notice such as the statute prescribes or one in 
 substantial compliance therewith. See id. § 22; Sage v. Staf- 
 ford, 42 App. Div. 449 ; Ringle v. Wallis Iron WorJcs, 149 N. 
 Y. 439. " The notice of lien shall state: 
 
 1. The name and residence of the lienor. 2. The name of the 
 o^vner of the real property against whose interest therein a lien 
 is claimed," and the interest of the owner as far as known to the 
 lienor. 3. The name of the person by whom the lienor was em- 
 ployed, or to whom he furnished or is to furnish materials; or 
 if the lienor is a contractor or sub-contractor, the person with whom 
 the contract was made. 4. The labor performed or to be per- 
 
1 LIEK 459 
 
 formed, or materials furni&lied or to be furnished, and the agreed 
 price or value thereof. 5. The amount unpaid to the lienor for 
 such labor or materials. 6. The time when the first and last items 
 of work were performed and materials were furnished. 1. The 
 property subject to the lien, with a description thereof sufficient 
 for identification; and if in a city or village, its location by 
 street and number, if known. A failure to state the name of the 
 true owner or contractor, or a misdescription of the true owner, 
 shall not affect the validity of the lien. The notice must be veri- j 
 fied by the lienor or his agent, to the effect that the statements 
 therein contained are true to his knowledge, except as to the 
 matters therein stated to be alleged on information and belief,] 
 and that as to those matters he believes it to be true." Laws of'' 
 1897, ch. 418, § 9 ; General Laws, ch. 49, § 9. 
 
 If the notice was in fact verified by the lienor or his agent the 
 fact that the officer before whom the verification was made neg- 
 lected to certify the affidavit or to subscribe the jurat until after 
 the notice was filed, will not affect its' validity from the time of 
 filing, in the absence of evidence that any one was misled by the 
 omission. Sage v. Stafford^ 42 App. Div. 449. A verification 
 of the notice of lien by the agent of a corporation, which follows 
 tlie precise words of the statute, but does not show whether the 
 verification of the agent was based upon knowledge or upon in- 
 formation and belief, is sufficient. Union Stove Worhs v. Kling- 
 man, 20 App. Div. 449. But it has been held in a number of 
 cases that a substantial departure from what the law has declared 
 to be requisite to complete the notice to be filed to create a lien 
 under its provisions, renders it of no effect and neither creates a 
 lien nor gives jurisdiction to the courts to sustain proceedings for 
 its enforcement. Foster v. Schneider, 50 Hun, 151 ; McKinney v. 
 White, 15 App. Div. 423. It has been held in some of the courts 
 that a party, by inserting facts in the notice of lien which are 
 shown to be untrue, thereby forfeits the right of lien and renders 
 the notice void or ineffectual to create a lien. See Close v. ClarJc, 
 16 Daly, 91 ; Foster v. Schneider, 50 Hun, 151. But this quali- 
 fication is the result of judicial construction and not of any express 
 declaration of the statute; and it would seem that statements of 
 facts in a notice of lien which are shown to be untrue will not 
 forfeit the right to a lien and render the notice void or ineffectual 
 unless the statements are willfully and intentionally false in some 
 important or material respect. See Bingle v. Wallis Iron Works, 
 149 'N. Y. 439. This, however, is not expressly decided by the 
 
460 LIEN. 
 
 case cited. But it is now authoritatively settled in this State in 
 accordance with the current of authority in other States, that 
 where a party inserts in a notice of mechanic's lien statements 
 of fact which are not only untrue, but willfully and intentionally 
 false in some important or material respect, he thereby forfeits 
 the right to a lien and renders the notice void or ineffectual. 
 Aeschilmann v. Presbyterian Hospital, 29 App. Div. 630 ; 165 
 K Y. 296; Gashell v. Beard, 58 Him, 101, 107; Mull v. Jones, 
 45 St. Rep. 643 ; Brandt v. Verdon, 44 St. Rep. 885 ; Gibhs v. 
 Hanchette, 90 Mich. 657 ; Stuhis v. Railroad Co., 65 Iowa, 513 ; 
 Rose V. P. £ B. Paper Works, 29 Conn. 256; Uthoff v. Gerhard, 
 42 Mo. App. 256 ; McPherson v. Walton, 42 K J. Eq. 282. If an 
 error in stating the amount of the demand is made through mistake 
 and without fraudulent intent the misstatement will not prevent the 
 enforcement of the lien. Goodrich v. Gillies, 82 Hun, 18 ; 
 Donovan v. Frazier, 15 App. Div. 521. 
 
 As the law does not require the notice to be signed or sub- 
 scribed by the lienor, it will be sufficient if his name appears 
 at the beginning of the paper. Moore v. McLaughlin, 66 Hun, 
 133. 
 
 The provision of the statute that a failure to state the name 
 of the true owner or contractor, or a misdescription of the true 
 owner shall not affect the validity of the lien, has reference to 
 an unsuccessful attempt to designate the true owner, and does 
 not authorize the lienor to name the lessee of the premises as the 
 person against whose interest he claims a lien, and afterward 
 proceed against the lessor, against whose interest he did not in- 
 tend to file notice of lien. De Klyn v. Gould, 165 IST. Y. 282 ; 
 Grippin v. Weed, 22 App. Div. 593 ; 165 N. Y. 612. 
 
 " The notice of lien may be filed at any time during the prog- 
 ress of the work and the furnishing of the materials, or within 
 ninety days after the completion of the contract, or the final per- 
 formance of the work, or the final furnishing of the materials, 
 dating from the last item of work performed or materials fur- 
 . nished. The notice of lien must be filed in the clerk's office of the 
 county where the property is situated. If such property is sit- 
 uated in two or more counties, the notice of lien shall be filed 
 in the office of the clerk of each of such counties. The county 
 clerk of each county shall provide and keep a book to be called the 
 ' lien docket,' which shall be suitably ruled in columns headed 
 ' owners,' ' lienors,' ' property,' ' amoimt,' ' time of filing,' 
 ' proceedings had,' in each of which he shall enter the particu- 
 
LIEN. 461 
 
 lars of the notice, properly belonging therein. The date, hour, and 
 minute of the filing of each notice of lien shall be entered in 
 the proper column. The names of the owners shall be arranged in 
 such book in alphabetical order. The validity of the lien shall \ 
 not be affected by the death of the owner before notice of the lien 
 is filed." Laws of 1897, ch. 418, § 10; General Laws, ch. 49, \ 
 § 10. 
 
 The statute changes the former rule that a lien could not be 
 acquired by filing a notice after the death of the owner, although 
 the work was done prior to his death. Tubridy v. Wright, 144 
 K Y. 519. 
 
 A lien may be filed for work and materials to be furnished 
 in the future. Bingle v. Wallis Iron Works, 85 Hun, 479. 
 
 A lien filed after the expiration of the time limited by the 
 statute is absolutely void. McMahon v. Hodge, 2 Misc. 234. 
 
 "At any time after filing the notice of lien the lienor may 
 serve a copy of such notice upon the owner, by delivering the same 
 to him personally, or if the owner cannot be found, to his agent 
 or attorney, or by leaving it at his last known place of residence 
 in the city or town in which the real property or some part thereof 
 is situated, with a person of suitable age and discretion, or by 
 registered letter addressed to his last known place of residence, 
 or, if such owner has no such residence in such city or town, or 
 cannot be found, and he has no agent or attorney, by afiixing a 
 copy thereof conspicuously on such property, between the hours of 
 nine o'clock in the forenoon and four o'clock in the afternoon. 
 Until service of the notice has been made, as above provided, an 
 owner, without knowledge of the lien, shall be protected in any 
 payment made in good faith to any contractor or other person 
 claiming a lien. A failure to serve the notice does not otherwise 
 affect the validity of such lien." General Laws, ch. 49, § 11 ; 
 Laws of 1897, ch. 418, § 11. And see Hamilton v. Coogan, 7 
 Misc. 677. 
 
 Where the lien is on account of public improvements the notice 
 of lien and the filing thereof should be in accordance with the 
 provisions of the statute applicable thereto. The Sitatute provides 
 that " at any time before the construction of a public improve- 
 ment is completed and accepted by the municipal corporation, and 
 within thirty days after such completion and acceptance, a person 
 performing work for or furnishing materials to a aontractor, his 
 sub-contractor, assignee or legal representative, may file a notice 
 of lien with the head of the department or bureau having charge 
 
4-62 LIEN. 
 
 of sucii oonstruction and with the financial officer of the munic- 
 ipal corporation, or other officer charged with the custody and 
 disbursements of the corporate funds applicable to the contract 
 under which the claim is made. The notice shall state the name 
 and residence of the lienor, the name of the contractor or sub- 
 contractor for Avhom the labor was performed or materials fur- 
 nished, the amoimt claimed to be due or to become due, the date 
 when due, a description of the public improvement upon which 
 the labor was performed and materials expended, the kind of 
 labor performed and materials furnished and give a general de- 
 scription of the contract pursuant to which such public improve- 
 ment was constructed. If the name of the contractor or sub-con- 
 tractor is not known to the lienor, it may be so stated in the notice, 
 and a failure to state correctly the name of the contractor or sub- 
 contractor shall not affect the validity of the lien. The financial 
 officer of the municipal corporation or other officer or person with 
 whom the notice is filed shall enter the same in a book provided 
 for that purpose, to be called the ' lien book.' Such entry shall 
 include the name and residence of the lienor, the name of the 
 contractor or sub-contractor, the amount of the lien and date of ! 
 filing, and a brief designation of the contract under which the lien i 
 arose." General Laws, ch. 49, § 12. 
 
 Sections 1824 to 1838 of the 'New York Consolidation Act, and < 
 the acts amendatory thereof, relating to mechanics' liens on ac- I 
 count of public improvements in the city of New York as consti- | 
 tuted before the taking effect of the Greater ISTew York charter, ; 
 were repealed in 1899. See Laws of 1899, ch. 195. 
 
 In respect to the priority of liens, the statute provides as fol- 
 lows : "A lien for materials furnished or labor performed in the 
 improvement of real property shall have priority over a convey- 
 ance, judgment or other claim against such property not recorded, 
 docketed or filed at the time of filing the notice of such lien 
 over advances made upon any mortgage or other incumbrance 
 thereon after such filing ; and over the claim of a creditor who has 
 not furnished materials or performed labor upon such property, 
 if such property has been assigned by the owner by a general as- 
 signment for the benefit of creditors, within thirty days before 
 the filing of such notice. Such liens shall also have priority over 
 advances made upon a contract by an owner for an improvement 
 of real property which contains an option to the contractor, his 
 successors or assigns to purchase the property, if such advances 
 were made after the time when the labor began or the first item of 
 
LIEN. 463 
 
 material was furnisked as stated in the notice of lien. If several 
 buildings are erected, altered or repaired, or several pieces or 
 parcels of real property are improved, under one contract, and 
 there are conflicting liens thereon each lienor shall have priority 
 upon the particular building or premises where his labor is per- 
 formed or his materials are used. Persons standing in equal 
 degrees as co-laborers or material men, shall have priority accord- 
 ing to the date of filing their respective liens; but in all cases 
 laborers for daily or weekly wages shall have preference over all ; 
 other claimants under this article, without reference to the time j 
 when such laborers shall have filed their notices of liens." General '■ 
 Laws, ch. 49, § 13. The last paragraph is applicable to persons 
 having liens under contracts for public improvements. Id. § 24. 
 
 A lien, duly filed, may be assigned by a written instrument 
 signed' and acknowledged by the lienor, at any time before the 
 discharge thereof. The assignment must contain the names and 
 places of residence of the assignor and assignee, the amount of 
 the lien and date of filing the notice of lien, and must be filed 
 in the ofiice where the notice of the lien assigned is filed. The facts- 
 relating to such assignment and the names of the assignee must 
 be entered by the proper ofiioar in the book where the notice of 
 lien is entered and opposite such entry. Unless the assignment 
 is filed the assignee need not be made a defendant in an action to 
 foreclose a mortgage, lien or other incumbrance. A payment made 
 by the owner of the real property subject to the lien assigned 
 or by his agent or contractor, or by a contractor of a municipal 
 corporation, to the original lienor, on account of such lien, with- 
 out notice of such assignment and before the same is filed, will 
 be valid and of full force and effect. In other respects the valid- 1 
 ity of an assignment of a lien will not be affected by a failure \ 
 to file it. Id. § 14. The assignee of a claim, under which a 
 notice of lien has been filed, and of the lien, is under no obliga- 
 tion to give notice of the assignment to the debtor in order to 
 protect his rights in such chose in action. Notice to the debtor 
 is necessary only that he may not so dispose of the funds out of 
 which an obligation is to be paid as to affect the rights of the 
 assignee. Lawrence v. Congregational Church, 32 App. Div. 489. 
 
 " JSTo assignment of a contract for the performance of labor or 
 the furnishing of materials for the improvement of real property 
 or of the money or any part thereof due or to become due there- 
 after, nor an order drawn by a contractor or sub-contractor upon 
 the owner of such real property for the payment of such money 
 
464 LIEX. 
 
 shall be valid, until the contract or a statement containing the 
 S'ubstance thereof and such assignment or a copy of each or a 
 copy of such order, be filed in the ofiice of the county clerk of the 
 county wherein the real property improved or to be improved is 
 situated, and such contract, assignment or order shall have effect 
 and be enforceable from the time of such filing. Such clerk shall 
 enter the facts relating to such assignment or order in the lien . 
 docket or in another book provided by him for that purpose." \ 
 General Laws, ch. 49, § 15. This section applies only to such 
 notices of lien as are filed under section 3 of the Lien Law, and 
 docs not apply to notices of lien filed under section 5 of that act. 
 Brace v. City of Oloversville, 39 App. Div. 25. 
 
 In respect to the duration of the lien, the statute provides as 
 follows : " Xo lien specified in this article shall be a lien for 
 a longer period than one year after the notice of lien has been 
 filed, unless within that time an action is commenced to foreclose 
 the lien, and a notice of the pendency of such action, whether in 
 a court of record or not of record, is filed with the county clerk 
 of the county in which the notice of lien is filed, containing the 
 names of the parties to the action, the object of the action, a 
 brief description of the real property affected thereby, and the 
 time of filing the notice of lien; or unless an order be granted 
 within one year from the filing of such notice by a court of record, 
 continuing such lien, and such lien shall be redocketed as of the 
 date of granting such order and a statement made that such lien 
 is continued by virtue of such order. 'So lien shall be continued 
 by such order for more than one year from the granting thereof, 
 but a new order and entry may be made in each successiive year. 
 If a lienor is made a party defendant in an action to enforce 
 another lien, and the plaintiff or such defendant has filed a notice 
 of the pendency of the action within the time prescribed in this 
 section, the lien of such defendant is thereby continued. Such. 
 action shall be deemed an action to enforce the lien of such de- 
 fendant lienor. The failure to file a notice of pendency of action 
 shall not abate the action as to any person liable for the pay- 
 ment of the debt specified in the notice of lien, and the action 
 may be prosecuted to judgment against such person." General 
 Laws, ch. 49, § 16. 
 
 A lien under a contract for a public improvement is of shorter 
 duration. Such lien will not continue for a longer period than 
 three months from the time of filing the notice of lien unless an 
 action is commenced to foreclose the lien within that time, and a 
 
LIEK 465 
 
 notice of the pendency of the action is filed with the financial offi- 
 cer of the municipal corporation with whom the notice of lien 
 was filed, or unless an order he made hy a court of record, con- 
 tinuing such lien, and a new docket is made stating such fact. 
 The order may be made by the Supreme Court, a justice of the 
 Supreme Court, the County Court of the county where the lien 
 was filed or the county judge of such county. The order may be 
 made upon the application of the lienor upon such afiidavits or 
 evidence as, in the opinion of the court or judge, shall be deemed 
 sufficient. The order cannot continue the lien longer than six 
 months, but the court or judge may, in his or its discretion, make 
 a new order continuing the lien in each succeeding six months if 
 that course seems just and equitable. Id. § 17. 
 
 The statute provides that a lien other than for labor performed 
 or materials furnished for a public improvement, may be dis- 
 charged either (1) by the certificate of the lienor, duly acknowl- 
 edged or proved or filed in the office where the notice of lien is 
 filed, stating that the lien is satisfied and may be discharged; or 
 (2) by failure to begin an action to foreclose the lien or to se- 
 cure an order continuing it, within one year from the time of 
 filing the notice of lien; or (3) by an order of the court vacating 
 or cancelling such lien, of record, for neglect of the lienor to prose- 
 cute the same, granted pursuant to the Code of Civil Procedure; 
 or (4) either before or after the beginning of an action, by the 
 giving of an undertaking by the owner with sureties, executed 
 and conditioned as the statute prescribes; or (5) at any time be- 
 fore the commencement of an action to foreclose the lien, by der 
 positing with the county clerk, in whose office the notice of lien 
 is filed, a sum of money equal to the amount claimed in such no- 
 tice, with interest to the time of such deposit; or (6) after such 
 action is commenced, by a payment into court of such sum of 
 money as, in the judgment of the court, or a judge or justice 
 thereof, after at least five days' notice to all the parties to the; 
 action, will be sufficient to pay any judgment which may be recov- '! 
 ered in such action. General Laws, ch. 49, §§ 18, 19 ; Laws of 
 1897, ch. 418, §§ 18, 19. The manner in which a lien for the 
 construction of a public improvement may be discharged is pointed 
 out in section 20 of the act above cited, as amended by chapter 
 169 of the Laws of 1898. See General Laws, ch. 49, § 20. 
 
 "A contract for a building loan, either with or without the sale 
 of land, and any modification thereof, must be in writing and 
 
 30 
 
466 LIEK 
 
 duly acknowledged, and within ten days after its execution be 
 filed in the office of the clerk of the county in which any part of 
 the land is situated, and the same shall not be filed in the regis- 
 ter's office of any county. If not so filed, the interest of each 
 party to such contract in the real estate affected thereby, is sub- 
 ject to the lien and claim of a person who shall thereafter file a 
 notice of lien under this chapter. A modification of such contract 
 shall not affect or impair the right or interest of a person, who 
 previous to the filing of such modification had furnished or con- 
 tracted to furnish materials, or had performed or contracted to 
 perform labor for the improvement of real property, but such 
 right or interest shall be determined by the original contract. The 
 county clerk shall be entitled to a fee of twenty cents for filing 
 such a contract or modification. Such contracts and modifications 
 thereof shall be indexed in a book provided for that purpose, in 
 the alphabetical order of the names of the persons to whom such 
 loans shall be made." General Laws, ch. 49, § 21 ; Laws of 1897, 
 ch. 418, § 21, as amended by ch. 78 of the Laws of 1900. 
 
 The Mechanics' Lien Law is to be construed liberally to secure 
 the beneficial interests and purposes thereof. A substantial com- 
 pliance with its several provisions is sufficient for the validity of 
 a lien and to the jurisdiction of the courts to enforce it. General 
 Laws, ch. 49, § 22. 
 
 A mechanic's lien may be enforced against the property speci- 
 fied in the notice of lien which is subject thereto, and against any 
 person liable for the debt upon which the lien is founded. The 
 Code of Civil Procedxire regulates and provides for such en- 
 forcement. Id. § 23. 
 
 § 3. Liens on Vessels. 
 
 "A debt which is not a lien by the maritime law, and which 
 amounts to fifty dollars or upwards, on a sea-going or ocean-bound 
 vessel, or fifteen dollars or upwards on any other vessel shall be a 
 lien upon such vessel, her tackle, apparel and furniture, and shall 
 be preferred to all other liens thereon, except mariners' wages, if 
 such debt is contracted by the master, owner, charterer, builder or 
 consignee of such ship or vessel, or by the agent of either of them, 
 within this State, for either of the following purposes : 
 
 1. For work done or other material or articles furnished in this 
 State for or towards the building, repairing, fitting, furnishing 
 or equipping of such vessel. 
 
LIEJSr. 467 
 
 2. For such provisions and stores, furnished within this State, 
 as are fit and proper for the use of such vessel, at the time when 
 they were furnished. 
 
 3. For wharfing and the expense of keeping such vessel in 
 port, and for the expense of employing persons to watch her. 
 
 4. For loading or unloading such vessel, or for the advances 
 made to procure necessaries therefor, or for the insurance thereof. 
 
 5. For towing or piloting such vessel, or for the insurance or 
 premium of insurance of or on such vessel or her freight ; but no 
 lien exists for a debt contracted for any purpose specified in this 
 subdivision, unless it amounts to the sum of twenty-five dollars 
 or more." General Laws, ch. 49, § 30. 
 
 " When a vessel shall have sustained damage by any other ves- 
 sel through the negligence or willful misconduct of the person 
 navigating such vessel, to the extent of fifty dollars, the owner of 
 the damaged vessel shall have a lien, unless a lien is given therefor 
 by maritime law, upon the vessel causing the damage, her tackle, 
 apparel and furniture, to the extent of such damage, which shall 
 be deemed a debt for the purposes of this article, and the master, 
 owner, agent or consignee of the damaged vessel may enforce such 
 lien in like manner and with like effect as in case of other liens 
 created by this article; but a notice of the lien must be filed in 
 the office of the clerk of the county in which such damage is sus- 
 tained, and the proceedings to enforce the lien must be com- 
 menced within ten days after the damage has been done, or such 
 damage will cease to be a lien upon such vessel. But if such dam- 
 age is sustained in either of the counties of New York, Kings or 
 Queens such notice shall be filed in the office of the clerk of the 
 city and county of E^ew York, and if the vessel causing the dam- 
 age is built, used or fitted for the navigation of any of the canals 
 or lakes of this State, a certified copy of such notice shall be filed 
 in the office of the comptroller as provided in the next section." 
 Id. § 31. 
 
 " Every debt specified in section thirty shall cease to be a lien 
 upon such vessel, unless the lienor shall, within thirty days after 
 it is contracted, file a notice of lien, containing the name of the 
 vessel, the name of the owner, if known, the particulars of the 
 debt, and a statement of the amount claimed to be due from such 
 vessel, and verified by the lienor, his legal representative, agent 
 or assignee, to be true and correct. The notice shall be filed in 
 the office of the clerk of the county in which the debt was 
 
468 LIEN. 
 
 contracted. But if the debt was contracted in either of the coun- 
 ties of New York, Kings or Queens, such notice shall be filed in 
 •the office of the clerk of the city and county of ISTew York. If 
 the vessel is built, used or fitted, for the navigation of any of the 
 oanals or lakes of the State, the lienor shall immediately after 
 filing the notice in the county clerk's office, file a copy thereof in 
 the office of the comptroller of the State, duly certified by the 
 county clerk in whose office the original notice is filed." Id. § 32. 
 The statute also prescribes the duration of the lien (§ 33), the 
 right to assign and the mode of assigning the lien (§ 34), and 
 the courts in which the lien may be enforced. Id. § 35. See 
 Matter of Haines, 52 App. Div. 550. 
 
 § 4. Liens on Monuments, Gravestones, and Cemetery Structures. 
 
 "A person furnishing or placing in a cemetery or burial ground 
 a monument, gravestone, inclosure or other structure, has a lien 
 "thereon for the agreed price thereof or the part remaining unpaid, 
 with interest from the time the amount was due, upon filing with 
 the superintendent or person in charge of such cemetery or burial 
 ground, a notice of lien as provided in this article." General 
 Laws, ch. 49, § 40. 
 
 The statute prescribes the time within which the notice must 
 be filed, the requisites of the notice, and the service of a copy 
 of the notice (id. § 41) ; the proceedings authorized and neces- 
 sary for the enforcement of the lien (id. § 42) ; the disposition 
 of the proceeds of the sale (id. § 43) ; and the duties of the 
 superintendent or other person in charge of the cemetery or burial 
 ground in respect to the property against which the lien exists. 
 Id. § 44. 
 
 The subject is not of such general interest or utility as to war- 
 rant a reproduction of the statute in full. Sufficient has been 
 given to put the practitioner upon the trail leading to fuller infor- 
 mation in respect to this particular lien. 
 
 § 5. Liens for Labor on Stone. 
 
 'A person employed in a quarry, mine, yard or dock at excavat- 
 ing, quarrying, mining, dressing, or cutting sandstone, granite, 
 <5ement stone, limestone, bluestone or marble, may have a lien 
 Tipon such stone for the amount due for the labor expended thereon, 
 upon filing a notice of lien in the office where a chattel mortgage 
 thereon would be filed. See ante, p. 115. Such notice must be 
 
LIEN. 469 
 
 filed within thirty days after the completion of such labor and 
 must state the amount due therefor, the name and residence of the 
 lienor, and the name of the person for whom the labor was per- 
 formed, and the quality and description of the stone against which 
 the claim is made. The notice of lien must be indorsed, filed 
 and entered by the proper officer in the same manner as chattel 
 mortgages, and the same fees may be charged therefor. See ante, 
 p. 116. A copy of the notice filed must be served upon the owner 
 of such stone, or upon the person in charge of the quarry, mine, 
 yards or docks wherein such services were performed within five 
 days after the filing thereof. General Laws, ch. 49, § 50 ; Laws 
 of 1897, ch. 418, § 50, as amended by § 1 of ch. 322 of the Laws 
 of 1899. 
 
 " Such lien shall terminate unless an action is brought to en- 
 force the same within three months after the date of filing such 
 notice, as provided in the Code of Civil Procedure for the enforce- 
 ment of a lien upon a chattel. If the labor upon such sandstone, 
 cement stone, granite, bluestone, limestone or marble is performed 
 for the contractor under a contract with the owner of such quarry, 
 mine, yard or dock, the owner shall not be liable to pay by rea- 
 son of all the liens filed against such quarry, mine, yard or dock, 
 a greater sum than the amount unpaid upon such contract at the 
 time of filing such notices, or in case there is no contract, than 
 the aggregate amount unpaid of the value of labor and services 
 performed pursuant to the preceding section. The lien created 
 by this article shall not attach to any material which shall have 
 become a part of any building or structure, or ceased to be the 
 property of the person for whom such labor was performed." 
 Laws of 1897, ch. 418, § 51, as amended by ch. 322 of the Laws 
 of 1899 ; General Laws, ch. 49, § 51. 
 
 " Such lien may be discharged by a payment of the amount due 
 thereon, by a failure to bring an action to enforce the same within 
 the time prescribed in the preceding section, by the written con- 
 sent of the lienor, duly acknowledged and filed with the proper offi- 
 cer to the effect that such lien may be discharged, and by the owner 
 of such sandstone, cement stone, granite, bluestone, limestone or 
 marble filing with such officer an undertaking in an amount equal 
 to twice the sum specified in the notice of lien, executed by one 
 or more sureties who shall justify in such amount and approved 
 by the officer with whom the notice of lien is filed, conditioned for 
 the payment of the sum due such lienor, by reason of s<uch lien, 
 and the costs and expenses of enforcing the same." Id. § 52. 
 
470 LIEiv'. 
 
 § 6. Liens for the Services of Stallions. 
 
 " On complying with the provisions of this article, the owner 
 of a stallion shall have a lien on each mare served together with 
 the foal of such mare from such service, for the amount agreed on 
 at the time of service, or if no agreement wais made, for the 
 amount specified in the statement hereinafter required to be filed, 
 if within one year after such service he files a notice of such lien 
 in the same manner and place as chattel mortgages are required by 
 law to be filed. Such notice of lien shall be in writing, specifying 
 the person against whom the claim is made, the amount of the 
 same and a description of the property upon which the lien is 
 claimed, and such lien shall terminate at the end of one year from 
 the date of such filing, unless within that time an action is com- 
 menced for the enforcement thereof, as provided in the Code of 
 Civil Procedure for the foreclosure of a lien on chattels." Gen- 
 eral Laws, ch. 49, § 60. 
 
 " A person having the custody or control of a stallion and charg- 
 ing a fee for his services, shall, before advertising or offering 
 such services to the public, file with the clerk of the county in 
 which he resides, or in which such stallion is kept for service, a 
 written statement giving the name, age, description and pedigree, 
 if known, and if not, stating that the same is unknown, of such 
 stallion and the terms and conditions on which he will serve. On 
 filing such statement, the county clerk shall record the same in a 
 book provided for that purpose and issue a certificate to such per- 
 son that such statement has been so filed and recorded. He shall 
 be entitled to receive ten cents per folio for recording such state- 
 ment and for such certificate." Id. § 61. 
 
 " The person having the custody and control of such stallion, 
 shall post a written or printed copy of such statement and certifi- 
 cate in a conspicuous place in each locality in which such stallion 
 is kept for service." Id. § 62. 
 
 " A person who neglects or refuses to file and post such state- 
 ment as required in this article, or falsely states the pedigree of 
 such stallion in such statement, forfeits all fees for the services 
 of such stallion and is liable to a person deceived or defrauded 
 thereby for the damages sustained." Id. § 63. 
 
 § 7. Enforcement of liens on Personal Property by Sale. 
 
 Article seventh of the Lien Law of this State provides a mode 
 for the enforcement of the lien by a sale of the property as therein 
 
HEN. 471 
 
 directed. The provisions of this article are not exclusive, and 
 do not preclude any other remedy by action or otherwise, now 
 existing, for the enforcement of the lien, or bar the right to re- 
 cover so much of the debt as shall not be paid by the proceeds of 
 the sale of the property. General Laws, eh. 49, § 85 ; Laws of 
 1897, ch. 418, § 85. 
 
 To authorize a sale under this article, there must be a lien 
 against personal property, other than one created by a mortgage 
 on chattels; the property sold must be in the legal possession of 
 the lienor; and the sale must be public and conducted in the 
 manner prescribed by the act. See Id. § 80. 
 
 " Before such sale is held the lienor shall serve a notice upon 
 the owner with due diligence within such county, if such owner 
 can be found when such lien arose, if not then to the person for 
 whose account the same is then held personally, provided such 
 service can be made with due diligence within the county where 
 such lien arose, but if such person cannot with due diligence be 
 found within such county, then such notice shall be served by mail- 
 ing it to him at his last known place of residence, or to his last 
 known post ofl&ce address. A like notice shall be served in the 
 same way upon any person who shall have given to the lienor 
 notice of an interest in the property subject to the lien. Such 
 notice shall contain a statement of the following facts : 
 
 First. The nature of the debt or the agreement under which 
 the lien arose, with an itemized statement of the claim and the 
 time when due ; 
 
 Second. A brief description of the personal property against 
 which the lien exists ; 
 
 Third. The estimated value of such property; 
 
 Fourth. The amount of such lien at the date of the notice. 
 
 It shall also require such owner or person to pay the amount 
 of such lien, on or before a. day mentioned therein, not less than 
 ten days from the service thereof, and shall state the time when 
 and place where such property will be sold, if such amount is 
 not paid. If the agreement on which the lien is based provides 
 for the continuous care of property the lienor is also entitled to 
 receive all sums which may accrue under the agreement, sub- 
 sequent to the notice and prior to payment or a sale of the prop- 
 erty ; and the notice shall contain a statement that such additional 
 sum is demanded. Such notice shall be verified by the lienor to 
 the effect that the lien upon such property is valid, that the debt 
 
472 LIEN. 
 
 upon "which such lien is founded is due, and has not been paid 
 and that the facts stated in such notice are true to the best of his 
 knowledge and belief." Id. § 81. 
 
 " Each sale of personal property to satisfy a lien thereon shall 
 be at public auction to the highest bidder, and shall be held in 
 the city or town where the lien was acquired. After the time 
 for the payment of the amount of the lien specified in the notice 
 required to be served by the preceding section, notice of such sale, 
 describing the property to be sold, and stating the name of the 
 owner or person for whose account the same is then held and the 
 time and place of such sale, shall be published once a week, for 
 two consecutive weeks, in a newspaper published in the town or 
 city where such sale is to be held, and such sale shall be held not 
 less than fifteen days from the first publication; if there be no 
 newspaper published in such town, such notice shall be posted at 
 least ten days before such sale in not less than six conspicuous . 
 places therein." Id.' § 82. ■ 
 
 " At any time before such property is sold, the owner thereof 
 may redeem the same by paying to the lienor the amount due on 
 account of the lien, and whatever legitimate expenses have accrued 
 at the time of such payment in serving the notice and advertising 
 the sale as required in this article. Upon making such payment, 
 the owner of such property is entitled to the possession thereof." \ 
 Id. § 83. 
 
 " Of the proceeds of such sale, the lienor shall retain an amount 
 sufficient to satisfy his lien, and the expenses of advertisement 
 and sale. The balance of such proceeds, if any, shall be held by 
 the lienor subject to the demand of the owner or his assignee or 
 legal representative, and notice that the balance is so held shall be 
 served personally or by mail upon the owner of the property sold. 
 If such balance is not claimed by the owner or his assignee or legal 
 representative within thirty days from the day of sale, such bal- 
 ance shall be deposited with the treasurer or chamberlain of the 
 city or village, or the supervisor of the town, where such sale was 
 held. There shall be filed with such deposit, the affidavit of the 
 lienor, stating the name and place of residence of the owner of 
 the property sold, if known, the articles sold, the prices obtained 
 therefor, that notice required by this article was duly served and 
 how served upon siich owner, and that such sale was legally and 
 how advertised. There shall also be filed therewith a copy of 
 the notice served upon the owner of the property and of the notice 
 
LIEN. 473 
 
 published or posted as required by this article. The officer with 
 whom such balance is deposited shall credit the same to the owner 
 of the property, and pay the same to such owner, his assignee or 
 legal representative, on demand and satisfactory evidence of 
 identity. If such balance remains in the possession of such of- 
 ficer for a period of five years, unclaimed by the person legally 
 entitled thereto, it shall be transferred to the general funds of the 
 town, village or city, and be applied and used as other moneys be- 
 longing to such town, village or city." Id. § 84. 
 
474 CONDITIONAL SALE OF GOODS. 
 
 CHAPTER XL 
 
 CONTRACTS FOR THE CONDITIONAL SALE OF GOODS 
 AND CHATTELS. 
 
 § 1. In General. 
 
 Tlie subject of conditional sales of goods and chattels is tecL.- 
 nically a part of the general subject of liens, and is so treated 
 by our law makers. It is also often treated by law writers as 
 a part of the general subject of sales. For convenience it will 
 be treated here in a separate chapter as an independent sub- 
 ject. 
 
 Contracts of this nature were so frequently resorted to, and the 
 conditional vendee, having the possession and apparent owner- 
 ship of the goods and chattels, so often sold or disposed of the same 
 to innocent third persons without notice of the defective title of 
 their vendor, that statutes were passed for the protection of pur- 
 chasers, pledgees or mortgagees in good faith of property so sold, 
 requiring in effect, that a contract of sale, containing conditions 
 and reservations as to ownership, should be reduced to writing 
 and the original or a true copy filed substantially as in case of 
 chattel mortgages, to render the same valid as against such pur- 
 chasers, pledgees or mortgagees. Thesa statutes have been from 
 time to time amended, and, like the statutes relating to chattel 
 mortgages, have become, in a consolidated form, a part of the 
 Lien Law of the State. Asi these statutes add little or nothing 
 to the protection of the immediate parties to the contract the 
 tendency has been to obtain as many statutory exemptions as 
 possible from the operation of the general act. Thus we find that 
 the provisions of the statute do not apply to the conditional sale 
 of household goods, law books, law blanks, and law office supplies, 
 pianos, organs, safes, scales, butchers' aud meat market tools and 
 fixtures, wood-cutting machinery, engines, dynamos, boilers, 
 portable furnaces, boilers for heating purposes, threshing machines, 
 horse powers, mowing machines, reapers, harvesters, grain drills 
 and attachments, dairy sizes of centrifugal cream separators, 
 coaches, hearses, carriages, buggies, phaetons, and other vehicles, 
 bicycles, tricycles, and other devices for locomotion by human 
 power, if the contract for the sale thereof is executed in dupli- 
 cate, and one duplicate delivered to the purchaser. General Laws, 
 cL 49, § 115 ; Laws of 1897, ch. 418, § 115, as amended by ch. 
 
CONDITIONAL SALE OF GOODS. 475 
 
 354, Laws of 1898. Gas-fixtures are housekold goods within the 
 meaning of this section. Iden v. Sommers, 46 St. Rep. 240. 
 
 It should not be overlooked that the exemption of the articles 
 above enumerated from the operation of the statute exists only 
 ■where the contract for the sale thereof is executed in duplicate, 
 iind one duplicate is delivered to the purchaser. This would not 
 include the case of 'a single instrument executed in two parts, 
 where the vendor retains the vendee's contract only and delivers 
 to the vendee only the part containing the stipulations to be per- 
 formed by the vendor. A duplicate of the entire contract must 
 be delivered to the vendee, otherwise the contract falls within 
 the operation of the general provisions of the statute. A copy ( 
 is not a duplicate. Orant v. Orifjfith, 39 App. Div. 107. 
 
 § 2. Conditional Sale of Railroad Equipment and Boilings Stock. 
 
 " Whenever any railroad equipment and rolling stock is sold, 
 leased or loaned under a contract which provides that the title 
 to such property, notwithstanding the use and possession thereof 
 by the vendee, lessee or bailee, shall remain in the vendor, lessor 
 or bailor, until the terms of the contract as to the payment of 
 installments, amounts or rentals payable, or the performance of 
 •other obligations thereunder, are fully complied with and that 
 title to such property shall pass to the vendee, lessee or other bailee 
 on full payment therefor, such contract shall be invalid as to any 
 subsequent judgment creditor or purchaser from such vendee, 
 lessee or bailee for a valuable consideration, without notice, unless 
 
 1. Such contract is in writing, duly acknowledged and recorded 
 in the book in which real estate mortgages are recorded in the 
 office of the county clerk or register of the county in which is 
 located the principal office or place of business of snoh vendee, 
 lessee or bailee; and imless 
 
 2. Each locomotive or car so sold, leased, or loaned, has the 
 name of the vendor, lessor, or bailor, or of the assignee of such 
 vendor, lessor, or bailor, plainly marked upon both sides thereof, 
 followed by the word owner, lessor, bailor or assignee, as the 
 case may be." General Laws, ch. 49, § 111 ; Laws of 1897, ch. \ 
 418, § 111. 
 
 This statute seems to require both that the contract be recorded 
 and that the property be marked as therein provided to render it 
 valid as against subsequent judgment creditors of or purchasers 
 from the vendee, lessee or bailee for a valuable consideration, 
 -without notice. 
 
476 CONDITIONAL SALE OF GOODS. 
 
 § 3. Title to Goods Sold Under a Contract for Conditional Sale. 
 
 Article 9 of the Lien Law of this State contains, with the 
 several amendments thereto, the statutory provisions in respect to 
 conditions and reservations in contracts for the sale of goods and 
 chattels. It is there provided, that " except as otherwise provided 
 in this article, all conditions and reservations in a contract for the 
 conditional sale of goods and chattels, accompanied by immediate \ 
 delivery and continued possession of the thing contracted to be 
 sold, to the effect that the ownership of such goods and chattels 
 is to remain in the conditional vendor or in a person other than 
 the conditional vendee, until they are paid for, or until the occur- 
 rence of a future event or contingency shall be void as again&t 
 subsequent purchasers, pledgees or mortgagees in good faith, and 
 as to them the sale shall be deemed absolute, unless such contract 
 of sale, containing such conditions and reservations, or a true 
 copy thereof, be :Sled as directed in this article." General Laws, 
 ch. 49, § 112. 
 
 The term " conditional vendor," as used in the section quoted, 
 means the person contracting to sell goods and chattels upon con- 
 dition that :Jie ownership thereof is to remain in such person until 
 such goods and chattels are fully paid for or until the occuirrence 
 of any future event or contingency ; the term " conditional 
 vendee," means the person to whom such goods and chattels are 
 so sold ; the words " except as provided in this article " refer to 
 the provisions of section 115 hereinbefore referred to, excepting 
 contracts for the sale of the classes of articles therein enumerated 
 from the operation of the statute, and the filing " as directed in 
 this article " is that prescribed by section 113 hereinafter noticed. 
 
 It has long been settled as the law of this State that a sale and\ 
 delivery of personal property on condition that the title to the \ 
 property shall remain in the vendor until the purchase price is \ 
 paid, is valid as between the parties and that no title vests in the 1 
 vendee before performance of the condition. Herring v. Hop- 
 pock, 15 N. Y. 409; Ballard v. Burgett, 40 K Y. 314; Cole v. 
 Mann, 63 IST. Y. 1 ; Frank v. Batten, 49 Hun, 1 ; National Cash- 
 Register Co. V. Coleman, 85 Hun, 125. It is equally well settled 
 that the purchaser at such sale has no leviable interest until the 
 purchase money is fully paid. Ih.; Strong v. Taylor, 2 Hill, 
 326; Burchell v. Green, 6 Misc. 236; 80 Hun, 602; E. 8. T. F. 
 Co. V. Grant, 114 IST. Y. 40. 
 
 It was a rule of the common law that a purchaser under a con- 
 tract providing that the title should remain in the vendor until 
 
CONDITIONAL SALE OF GOODS. 4Y7 
 
 the purchase price was fully paid, took no title, before perform- 
 ance of the condition, which he could convey or transfer even to a 
 purchaser acting in good faith, and parting with value, without 
 notice of the want of title of his vendor. See Atistin v. Dye, 46 
 N. Y. 500 ; Ballard v. Burgett, 40 N. Y. 314. These decisions, 
 and many others of similar import, were made before the enact- 
 ment of chapter 315 of the Laws of 1884, which, with the subse- 
 quent amendment thereto, is the basis of the present statute in 
 relation to conditional sales. The object of that statute was to 
 change the rule between the vendor on a conditional sale and a 
 subsequent purchaser or mortgagee of the vendee in good faith 
 without knowledge of the condition, by providing, in effect, that 
 unless the agreement evidencing the conditional sale is filed, and 
 kept renewed from time to time as provided by that act, the sub- 
 sequent purchaser or mortgagee in good faith would hold the' 
 property as against the conditional vendor. See Rodney Hunt 
 Machine Co. v. Stewart, 57 Hun, 545. But neither has that act 
 uor the present statute changed the relations existing between 
 the conditional vendor and the conditional vendee in respect to 
 the property purchased. The conditional vendee is still, in effect, 
 the vendor's bailee, and as such remains liable to the vendor for 
 any conversion of the property purchased. A sale or mortgage | 
 by the conditional vendee is a conversion of the conditional \ 
 vendor's chattel. Ih. 
 
 The assignee for the benefit of the creditors of the conditional 
 vendee who is in possession of the property after failure of his 
 assignor to make payment of the purchase money in installments, 
 as provided by his contract, will be liable in trover to the con- 
 ditional vendor for a failure to deliver the property on demand, 
 although his assignor had given his notes for the several install- 
 ments of the purchase money, only one of which was due when the 
 action was commenced, and no tender had been made of the notes 
 unpaid. Brewer v. Ford, 54 Hun, 116 ; 59 Hun, 17. 
 
 Where a sale of personal property is made on condition that the 
 stipulated price shall be paid on delivery, the title does not pass 
 imtil payment is made unless the vendor waives the condition. 
 Under such a contract, delivery and payment are simultaneous or 
 concurrent acts by the seller and buyer, and although the articles 
 may have been delivered into the possession of the vendee, the 
 delivery is held to be conditional and not absolute, provided the 
 vendor has not by subsequent acts waived the condition of pay- 
 ment. E. 8. T. F. Co. v. Grant, 114 IsT. Y. 40. Where goods are 
 
478 CONDITIONAL SALE OF GOODS. 
 
 sold to be paid for in cash or by notes on delivery, if delivery i» 
 made without a demand of the notes or cash the presumption is 
 that the condition is AVaived, and a complete title vests in the 
 purchaser ; but this presumption may be rebutted by proof of acts 
 or declarations and circumstances showing an intention that the 
 delivery shall not be considered complete until performance of 
 the condition, and the question of intention is one of fact. Comer 
 V. Cunningham, 77 N. Y. 391. 
 
 Contracts made iipon condition that the property may be re- 
 turned at the option of the buyer, carry title to him absolutely. 
 Carter v. Wallace, 32 Hun, 384; Costello v. Herbst, 18 Misc. 176. 
 
 § 4. riling of Contracts for Conditional Sale. 
 
 A contract for the conditional sale of goods and chattels in 
 order to be valid as against subsequent purchasers, pledgees or 
 mortgagees in good faith, must be filed as prescribed by the stat- 1 
 ute. General Laws, ch. 49, § 112. " Such contracts shall be. 
 filed in the city or town where the conditional vendee resides, if 
 he resides in the State at the time of the execution thereof, and 
 if not, in the city or town where such property is at such time. 
 Such contract shall be filed in the city of New York, as follows, 
 to wit : in the borough of Brooklyn in said city, such instrimaent 
 shall be filed in the ofiice of the county of Kings ; in the borough 
 of Queens in said city, in the office of the clerk of Queens county ; 
 in the borough of Kichmond in said city, in the office of the clerk 
 of the county of Richmond, and in the borough of Manhattan and 
 the borough of the Bronx in said city, in the office of the register 
 of the city and county of New York; in every other city or town 
 of the State, in the office of the city or town clerk, unless there is 
 a county clerk's office in such city or town, when it shall b© filed in 
 such office." Id. § 113 ; Laws of 1897, ch. 418, § 113, as amended 
 by Laws of 1900, ch. 248, § 4. Probably the requirement that 
 the contract '"' be filed in the office of the county of Kings " was in- 
 tended to read " in the office of the regisiter of the county of Kings." 
 
 The provisions of the article relating to chattel mortgages are 
 made applicable to the indorsement, entry, refiling and discharge 
 of contracts for the conditional sale of goods and chattels. Gen- 
 eral Laws, ch. 49, § 114. These provisions have been considered in 
 the chapter relating to chattel mortgages. See ante, pp. 112-125. 
 The officers with whom such contracts are filed are required to 
 enter the future contingency or event required to occur before the 
 ownership of such goods and chattels shall pass from the vendor 
 to the vendee, and the amount due upon such contract and the 
 
CONDITIONAL SALE OF GOODS. 479 
 
 time wlien due. TKe name of the conditional vendoir must be 
 entered in the column of " mortgagees," and the name of the con- 
 ditional vendee in the column of "mortgagors." The officers 
 performing services under this article are entitled to receive the 
 same fees as for like services relating to chattel mortgages. lb. 
 It is no defense to an action for the conversion by a transferee 
 of goods sold upon condition that the contract of sale was mot 
 filed, if the transferee is not a bona fide purchaser for value. 
 O'Neill V. Patterson, 26 Misc. 3; Victoria Paper Mills Go. v. 
 N. Y. & Penn. Co., 28 Misc. 123 ; Sayles v. Nat. Water Purifying 
 Co., 41 St. Eep. 8.56 ; Ryan v. Wollowitz, 25 Misc. 498 ; Hopkvns 
 V. Davis, 23 App. Div. 235. 
 
 § 5. Rights of the Vendor on Default. 
 
 As has been stated, where property has been sold and delivered 
 on condition that the title should remain in the vendor until pay- 
 ment of the purchase price, no title vests in the vendee. In case 
 the condition is not performed, the vendor has the right to re- 
 possess himself of the property, both as against the vendee and his 
 creditors who have caused the same to be levied upon under process 
 issued to enforce the collection of their debts. The conditional 
 vendee has no interest in the property which may be levied upon 
 and sold. The title still remains in the vendor. 
 
 The rule is the same where property is sold to be manufactured 
 under an agreement that the title to the majiufactured product 
 should remain in the seller until the condition of payment is 
 fulfilled. See Frank v. Batten, 49 Hun, 91. But where the prop- 
 erty is sold and delivered to the buyer for consumption or sale, 
 or to be dealt with in any way inconsistent with the continued 
 ownership of the seller, or in a manner which would necessarily 
 destroy his right of property, the rule does not apply, and the 
 vendor is estopped from setting up title in himself as against the 
 creditors of the vendee. See Ludden v. Hazen, 31 Barb. 650; 
 Devlin v. O'Neill, 6 Daly, 305 ; 68 N. Y. 622. It is otherwise 
 if the conditional vendee is authorized to sell upon a contract 
 recognizing on the part of the purchaser the continued ownership 
 of the conditional vendor until the payment of the purchase price, 
 or upon an agreement on the part of the conditional vendee to 
 remit immediately to his vendor the proceeds of the sales. In 
 such case a sale by the conditional vendee is made merely as agent 
 of the conditional vendor and does not affect the question of title 
 as between the original parties or between the conditional vendor 
 and the purchaser from his vendee. Cole v. Mann, 62 N. Y. 1. 
 
4S0 COI^DITIONAL SALE OF GOODS. 
 
 In a sale of goods and chattels upon condition, the conditional 
 vendor has performed his part of the contract of sale by deliver- 
 ing possession to his vendee. All that remains to be done to com- 
 plete the transaction and vest the title to the property contracted 
 to be sold in the conditional vendee, is for the latter to perform the 
 conditions of the sale and make the payments provided for by the 
 contract. If he has made pajTiients of installments of the pur- 
 chase price in performance of the condition of the contract of 
 sale, but has, for any reason, refused or neglected to pay other 
 installments when due, and the vendor has repossessed himself of 
 the property sold, the vendee has not, by the payments made, 
 acquired an interest in the property to the extent of such pay- 
 ments, nor has he acquired thereby a right, without the aid of a 
 statute conferring it, to recover back the payments he has made. 
 See Monroe v. Reynolds & Upton, 47 Barb. 574; Humerton v. 
 Cherry, 23 Hun, 141 ; E. 8. T. F. Co. v. Grant, 114 N. Y. 40. 
 
 The rights of the parties, after default, have to some extent been 
 defined by statute. " Whenever articles are sold upon condition 
 that the title thereto shall remain in the vendor, or in some other 
 person than the vendee, until the payment of the purchase price, 
 or until the occurrence of a future event or contingency, and the 
 same are retaken by the vendor, or his successor in interest, they 
 shall be retained for a period of thirty days from the time of such 
 retaking, and during such period the vendee or his successor in 
 interest, may comply with the terms of such contract, and there- 
 upon receive such property. After the expiration of such period, 
 if such terms are not complied with, the vendor, or his successor 
 in interest, may cause su.ch articles to be sold at public auction. 
 Unless such articles are so sold within thirty days after the ex- 
 piration of such period, the vendee or his successor in interest 
 may recover of the vendor the amount paid on such articles by 
 such vendee or his successor in interest under the contract for the 
 conditional sale thereof. General Laws, ch. 49, § 116; Laws of 
 1897, ch. 418, § 116, as amended by ch. 762 of the Laws of 1900. 
 
 The purchaser may waive the benefit of this statute, and except 
 where it would be against public policy to permit it, may contract 
 that the vendor, upon retaking the property, may sell it at public 
 or private sale, and may hold the original vendee liable for any 
 deficiency on the sale. Warner v. Zuechel, 19 App. Div. 494. 
 
 The statute does not fix any time within which the vendor must 
 assert his right to retake the property after default; and where, 
 upon the conditional sale of a chattel, it is agreed that the vendee 
 is to have possession and pay the price within the time fixed, if 
 
CONDITIONAL SALE OF GOODS. 481 
 
 after the purchase money has become due and remains impaid the 
 vendee is still permitted to retain possession, and the vendor 
 receives paj-t payment, this> is an assent by the latter to delay 
 and a waiver of any forfeiture, and a recognition of the right of 
 the vendee to acquire title by payment of the residue of the pur- 
 chase money, which right will continue until a request by the 
 vendor for such payment and a refusal by the vendee to make it. 
 Cunningham v. Hedge, 12 App. Div. 212. 
 
 Where property has been sold imder an agreement that the 
 title shall remain in the vendor until the purchase price has been 
 fully paid and that the vendor should have the right to retake 
 the property and terminate the contract in case the vendlee failed 
 to make payments, according to its terms, and the vendee has 
 made a cash payment at the time of executing the contract and 
 subsequently has given his note for the balance of the puroh-ase 
 money, if the vendor procures the note to be discounted, and 
 afterwards commences an action to collect the note, this will 
 amount to a conclusive election on his part to treat the note as 
 given in satisfaction of the vendee's obligation under the con- 
 tract, and will estop him from subsequently asserting the right 
 to retalve the property for a default in payment as against a pur- 1 
 chaser from his vendee who has paid full value. Orcutt v. Bicken- 
 hrodt, 42 App. Div. 238. 
 
 Where the conditional vendee has given notes for the purchase 
 price secured by a chattel mortgage, and the vend^ has retaken 
 the property on default of payment, he has no remedy on the notes 
 or chattel mortgage, but may sue for a breach of contract. Earle 
 V. Rohinson, 12 Misc. 536. On the other hand, the purchaser, 
 under a contract for a sale of. property upon condition that the 
 title is to remain in the vendor until full payment, cannot main- 
 tain an action for a breach of warranty of the property so long as 
 any installment of the purchase money remains unpaid. JSTof 
 action will lie on a warranty unless the title has fully passed to' 
 the buyer. English v. Hanford, 75 Hun, 428. 
 
 § 6. Sale of the Property and Disposition of the Proceeds. 
 
 As has been stated, a vendee of property under a contract for 
 a conditional sale who has made default in the payment of the 
 purchase money, has thirty days, after the property has been 
 retaken by his vendor, in which to perform the conditions of his 
 contract, during which period no sale of the property can be made 
 by the vendor. After the expiration of that period the vendor 
 31 
 
482 CONDITIOISrAL SALE OF GOODS. 
 
 may sell the property at public sale; and, it seems, that if he 
 would avoid the repayment of any sums which the vendee has 
 paid under the contract, he miist so time the preliminary steps 
 as to complete the sale within the thirty days from the time when 
 the right of sale accrued. See arde, p. 480. 
 
 ISTot less than fifteen days before such sale, a printed ov written 
 notice must be served personally vipon the vendee, or his successor 
 in interest, if he is within the county where the sale is to be held ; 
 and if he is not within the county or he cannot be found therein, 
 the notice must be mailed to him at his last known place of resi- 
 dence. The notice must starte the terms of the contract; the 
 amoimt unpaid thereon ; the amount of expenses of storage ; and 
 the time and place of sale, unless such amountsi are sooner paidi 
 Laws of 1897, ch. 418, § 117 ; General Laws, ch. 49, § 117. ' 
 
 It would seem that this notice might be given at any time after 
 the retaking of the property by the vendor, although the time 
 fixed for the sale must be at least thirty-one days after such re- 
 taking, so as to allow the vendee the full statutory time in which 
 to comply with the terms of his contract. 
 
 At the time and place specified in the notice the property should 
 be sold at public auction. Out of the proceeds of the sale the 
 vendor or his successor in interest may retain the amount due 
 upon the contract, and the expenses of storage and of sale. The 
 balance of such proceeds must be held by the vendor or his suc- 
 cessor in interest, subject to the demand of the vendee or his 
 successor in interest, and notice that the balance is so held must be 
 served personally or by mail upon the vendee or his successor in 
 interest. If such balance is not called for within thirty days 
 from the time of sale, it must be deposited with the treasurer or 
 chamberlain of the city or village, ox. the supervisor of the town 
 where the sale was held, and there must be filed therewith a copy 
 of the notice served upon the vendee or his successor in interest 
 and a verified statement of the amount unpaid upon the contract, 
 expenses of storage, and of sale and the amount of such balance. 
 The officer with whom such balance is deposited must credit the 
 vendee or his successor in interest with the amount of the balance 
 and pay the same to him on demand after siifficient proof of 
 identity. If such balance remains in the possession of such officer 
 for a period of five years, unclaimed by the person legally entitled 
 thereto, it must be transferred to the fimds of the town, village or 
 city, and applied and used as other moneys belonging to such 
 town, village or city. Laws of 1897, ch. 418, §' 118 ; General 
 Laws, ch. 49, § 118. 
 
PEINCIPAL AND SUEETY. 483 
 
 CHAPTER XII. 
 
 PRINCIPAL AND SURETY. 
 
 § 1. Who is a Surety. 
 
 The relation of prinoipal and snrety exists when one person 
 binds himself as accessory to ans'wer for some debt or liability of 
 another person whose liability is absolutely that of principal. 
 
 There must be a person who is liable as principal, or the rela- 
 tion of surety cannot exist. Every person who is legally capable 
 of making valid contracts, may become liable as a surety. The 
 contract of suretyship must be in writing and subscribed by the 
 surety or his lawful agent to conform' to the requirements of 
 article 2 of the Personal Property Law, which takes the place, in 
 part, of the former statute of frauds. See Laws of 1897, ch. 417, 
 § 21, subd. 2. The statute of frauds formerly required that the 
 contract should express the consideration. The statute was sub-j 
 sequently amended by the omission of this provisiion. The effect 
 of this amendiment was to dispense with the necessity of such 
 statement in the instrument itself, but left it still indispensable 
 that a consideration^^^in fact for the promise to answer for the 
 debt, default or miscarriage of another, should exist in order to 
 entitle the promisee to recover thereon. Speyers v. Lambert, 6 
 Abb. N. S. 309 ; 1 Sweeny, 335 ; 37 How. 315 ; Evansville Nat. 
 Bank v. Kaufmann, 93 ~S. Y. 273 ; Erie County Savings Bank v. 
 Coit, 104 ]Sr. Y. 532. The present statute, which substantially 
 re-enacts the corresponding provision of the former statute, as 
 amended, should receive the same construction; and it may be 
 stated that the common-law rule applies to this class of contracts ; 
 that a consideration is necessary to render them valid ; and that, 
 unless such consideration be acknowledged by the contract itself, 
 it is still necessary to prove one to recover thereon. Ordinarily 
 these contracts are entered into concurrently with the principal 
 obligation, and, when this is the case, a consideration which sup- 
 ports the principal contract supports the subsidiary one also. 
 McNaught v. McClaughry, 42 N. Y. 22; Erie County Savings 
 Bank v. Coit, 104 ~S. Y. 532 ; Smith v. MoUeson, 74 Hun, 606 ; 
 148 K Y. 241. 
 
 The relation of principal and surety always arises upon a con- 
 tract made by the surety. And when the contract is made by 
 himself in person, and in express temis, there Avill be no difficulty 
 
4S4- PKINCIPAL AND SURETY. 
 
 as to the existence of such a contract and of his liability. But 
 there are other cases in which it is not always clear whether the 
 surety is bound by a given contract or not. When a note is 
 indorsed by one member of a firm for the accommodation of a 
 third person, the other members of the firm will not be bound as 
 sureties. Livingston v. Hastie, 2 Caines, 246. Ordinarily one 
 member of a firm cannot bind the firm by a contract of surety- 
 ship, executed in the name of the firm, having no relation to the 
 business of the partnership. But the firm may subsequently ratify 
 the transaction and thus become liable on the contract. 
 
 A person may become a surety by signing a promissory note 
 with another, in form, as a joint maker, and in an action on the 
 note may show by parol the nature of the contract for the purpose 
 of interposing, as a defense, matters entitling him to a discharge 
 from liability. Hubhard v. Gurney, 64 X. Y. 457. So persons 
 may become sureties for another by becoming accommodation 
 indorsers of a promissory note; and in an action by one of such 
 indorsers, who has paid the note, against his co-indorsers, may 
 show by parol that all the indorsers were by agreement, as be- 
 tween themselves, co-sureties. Easterly v. Barber, 66 N. Y. 433. 
 So where one partner, on the dissolution of the firm, assmnes 
 and agrees to pay the firm debts, he will become, as to the other 
 partners, the principal debtor, and the others mere sureties, 
 though, as to the firm creditors, all the partners may be liable as 
 principals. Millerd v. Thorn, 56 jST. Y. 402; Colgrove v. Tall- 
 man, 67 N. Y. 95 ; Beed £ Barton v. Ashe, 18 App. Div. 501 ; 
 Morss V. Gleason, 64 IST. Y. 204. .So if a wife mortgages her real 
 estate to secure the debt of her husband, she thereby becomes his 
 surety, and is entitled to the protection which the law extends to 
 persons occupying that relation. Bank of Albion v. Burns, 46 
 Jf. Y. 170. So where the grantee of land assumes the payment 
 of a mortgage for which his grantor was liable, the grantee be^ 
 comes, in equity, as between himself and the gi'aoitor, the prin- 
 cipal debtor, and the grantor the surety. Paine v. Jones, 76 IST. 
 Y. 274; Marshall v. Davies, 78 N". Y. 414. So the grantor of 
 real estate, who has conveyed it subject to the payment of a mort- 
 gage, occupies, to the extent of the value of the land, the position 
 of a surety and is entitled to the same rights. Murray v. 
 Marshall, 94 IST. Y. 611; Spencer v. Spencer, 95 IS^. Y. 353. So 
 where a person was authorized by the trustees of a religious 
 society to procure a loan for the corporation, and he did so by 
 mortgaging his farm, and then paid out the avails in erecting a 
 
PKINCIPAL AND SUEETY. 485 
 
 church edifice, and his accounts were subsequently audited by a 
 committee of the society, it was held that after a sale of his farm 
 on the mortgage he was a surety for the society in raising the 
 money, and was entitled to be reimbursed. Jones v. Methodist 
 Church of Rochester, 21 Barb. 161. It is not necessary that the 
 name of a surety should appear in the body of the contract, for if 
 he signs his name to it he will be bound by the terms contained 
 in it. ClarJc v. Rawson, 2 Denio, 135 ; Parks v. Brinherhoof, 2 
 Hill, 663 ; Thomas v. Oumaer, 7 Wend. 43. And it is held in, 
 this State that, although the name of the principal is inserted in! 
 the body of a bond, it need not be signed by him to be binding oni 
 his sureties. Williams v. Marshall^ 42 Barb. 524. And where a 
 provision of the Code of Civil Procedure requires a bond or un- 
 dertaking, with sureties, to be given by, or in behalf of, a party 
 or other person, he need not jo'in with the sureties in the execu- 
 tion thereof, unless the provision requires him to execute the same, i 
 Code Civil Pro., § 811. When two persons give their joint ob- 
 ligation upon a consideration received by them jointly, each 
 stands in the relation of surety for the other in respect to oner- 
 half of the debt. And if an agreement is afterwards made be- 
 tween them by which one of them assumes the whole obligation, 
 the other from thenceforth becomes his surety in respect to the 
 whole, and as such may prove his claim upon the bankruptcy of 
 his principal, although he has paid nothing on the joint obligation 
 and the same is not yet due. Crafts v. Mott, 4 JST. Y. 604. 
 
 § 2. Liabilities of Sureties. 
 
 Sureties are never held responsible beyond the clear and abso- 
 lute terms and meaning of their undertakings, and presumptions 
 and equities are never allowed to enlarge, or in any degree to 
 change their legal ofcligatious. Leggett v. Humphreys^ 21 How. 
 IJ. S. 66 ; I/adlow v. Simond, 2 Gaines Cas. 1 ; Walsh v. Bailie^ 
 10 Johns. 180 ; Robinson v. Frost, 14 Barb. 536. The liability of 
 a surety is measured by his agreement, and is not to be extended 
 by construction. Nat. Merch. Banking Assn. v. Conkling, 24 
 Hun, 496 ; 90 N. Y. 116 ; Oetty v. Binsse, 49 IST. Y. 385 ; Win- 
 ters V. Judd, 59 Hun, 32 ; Ulster County Savings Inst. v. Young, 
 161 N. Y. 23. His obligation, so far as warranted by the terms 
 employed, should be construed strictly and favorably to him. 
 Ward V. Stahl, 81 IST. Y. 406; Ulster County -Sav. Inst v. Os- 
 trander, 15 App. Div. 173. His contract, however, is to be inter- 
 preted by the same rules which are applicable to the construction 
 
486 PRINCIPAL AND SUEETY. 
 
 of other contracts. The extent of his obligation must be deter- 
 mined from the language employed when read in the light of the 
 circumstances surrounding the transaction. Where the question 
 is as to the interpretation and meaning of the language by which 
 the party has bound himself, there is no difference between the 
 contract of a surety and that of a principal or other party sustain- 
 ing a different relation. But when the intention of the parties 
 has been thus ascertained the principle of strictissimi juris ap- 
 plies, and then it is that the courts guard the rights of the surety 
 and protect him against a liability not strictly within the terms 
 of his contract. Nat. Merch. Banking Assn. v. Conhling, 90 IST. Y. 
 116, 121 ; Smith v. Molleson, 148 IST. Y. 241 ; Ulster County Sav- 
 ings Inst. V. Young, 161 N. Y. 23 ; People v. Backus, 117 N. Y. 
 196; Union Dime Savings Bank v. Feltz, 25 Abb. IST. C. 357; 
 Ringle v. O'Matthiessen, 39 IST. Y. Supp. 92; Gates v. McEee, 
 13 InT. Y. 232, 237 ; Belloni v. Freeborn, 63 N". Y. 383. The rule 
 that the contract of the surety is tstrictissimi juris is not a rule 
 of construction of the contract, but a rule of application of the 
 contract after the proper construction of it has been ascertained. 
 Gamble v. Cuneo, 21 App. Div. 413. 
 
 If the obligation is joint the courts have no power to inter- 
 polate into it words of severalty. Davis v. Yan Buren, 72 N. Y. 
 587 ; Wood v. Fisk, 63 IST. Y. 245. The contract is the measure 
 and limit of the liability of the surety. Getty v. Binsse, 49 IST. Y. 
 .']85. A surety has the right to stand upon the very terms of his 
 agreement. The test is not whether any alteration of the contract 
 between the principal and the creditor is prejudicial to the surety, 
 as his liability depends solely and strictly upon an observance of 
 the precise contract which he has made. Grant v. Smith, 46 IST. Y. 
 93 ; Paine v. Jones, 76 IST. Y. 274, 279 ; Wright v. Johnson, 8 
 Wend. 512 ; Livingston v. Moore, 15 App. Div. 15 ; Hunt v. 
 Smith, 17 Wend. 179 ; Dobbin v. Bradley, 17 Wend. 422 ; Wal- 
 rath V. Thompson, 6 Hill, 540 ; Walrath v. Thompson, 2 N. Y. 
 185 ; Leeds v. Dunn, 10 E". Y. 469 ; Colemard v. Lamb, 15 Wend. 
 329. 
 
 Any change in the agreement between the principal debtor and 
 his creditor, or if there is any deceit or fraud between them which 
 makes the contract different from that assented to by the surety, 
 will discharge him. lb.; McWilliams v. Mason, 6 Duer, 276. 
 "Where a surety agrees to become bound for $1,500, expected to 
 be advanced in cash to the principal for business purposes, and 
 but $1,000 was actually so advanced, and the chief portion of the 
 
PEINCIPAL AND SURETY. 487 
 
 residue was adjusted by discharging an old debt to the party 
 making the advance, and no notice was given of this to the surety, 
 he was held to be exempt from liability. lb. And see Wright v. 
 Johnson, 8 Wend. 512 ; Hunt v. Smith, 17 Wend. 179 ; Walrath 
 v. Thompson, 6 Hill, 540; Colemard v. Lamb, 15 Wend. 329; 
 Bigelow v. Benton, 14 Barb. 123. 
 
 Where a person proposes to a creditor to become surety for an- 
 other, and the proposed surety makes it a condition that he is to 
 be notified by the creditor if accepted, such, notice of acceptance 
 must be given by the creditor, or the surety will not be bound. 
 BeeJcman v. Hale, 17 Johns. 134; Stafford v. Low, 16 Johns. 67; 
 Fellows v. Prentiss, 3 Denio, 512. The condition requiring notice 
 need not be expressed in terms, it will be sufficient if it is clear, 
 from the agreement, that notice is to be given before the surety 
 is to be liable. lb. But where it is evident that no notice is 
 required by the surety, none need be given. And where a person 
 writes a letter to another, and promises to indemnify him if he 
 will sell goods to a third person, such promise is binding without 
 any notice of acceptance, and if the goods are furnished, the surety 
 is liable. Whitney v. Groot, 24 Wend. 82 ; Smith v. Dann, 6 Hill, 
 543 ; Waterbury v. Graham, 4 Sandf. 215. 
 
 The principle of the cases is, that where a person merely pro- 
 poses to become a surety in case that the creditor accepts him as 
 such, and gives notice to that effect, there is no contract until the 
 notice is given, and therefore the surety is not bound. It is a 
 mere proposal to become a surety which is not to be binding until 
 acceptance and notice. And this is important to a surety, since 
 he may wish to provide for his own indemnity from his principal 
 in case the creditor accepts the offer of the surety. But when the 
 offer made is in the nature of a' request to sell goods, or of a 
 promise to pay for them if sold by the creditor, then no notice is 
 necessary. The cases in which indorsers of notes will be dis- 
 charged, will be noticed when treating of promissory notes and 
 bills of exchange. 
 
 § 3. Sureties in Indemnity Bonds. 
 
 Indemnity bonds are not frequently sued in these courts, be- 
 cause the sums involved are usually above their jurisdiction. 
 There are some cases which may be within the limits of their juris- 
 diction, and therefore a brief notice will be taken of such cases, 
 and see ante, p. 51. 
 
188 PKINCIPAL AND SUKETY. 
 
 The object of an indemnity bond is to secure the person in- 
 demnified from any loss or inconvenience which may arise from 
 such acts as he may do at the request, or for the advantage of the 
 person who gives the indemnity. And when such bonds are prop- 
 erly drawn, the person indemnified is entitled to claim a full in- 
 demnity for all losses, damages, costs or expenses which he may 
 pay, or for which he may become liable, by reason of assuming the 
 position of surety, or of doing the acts for which he is indemnified. 
 The courts have made a distinction between a bond which promises 
 indemnity against a liability, and those which merely promise 
 indemnity for any loss or damage which shall occur by reason of 
 such liability. In the former case, the surety is entitled to recover I 
 whenever there is a liability on his part to pay the damages, etc., ' 
 whether payment has be'en actually made or not. Churchill v. 
 Hunt, 3 Denio, 321 ; Gilbert v. Wiman, 1 N. Y. 550 ; Webb v. 
 Pond, 9 Wend. 423 ; Chase v. Hinman, 8 Wend. 452 ; Rockfeller 
 y.^ Donnelly, 8 Cow. 636; Conner v. Beeves, 103 E". Y. 52Y ; 
 Brower v. Mechanics & Traders' Banh, 43 App. Div. 173 ; Belloni 
 V. Freeborn, 63 ¥. Y. 383 ; Wright v. Whiting, 40 Barb. 235 ; 
 Jarvis v. Sewall, 40 Barb. 449 ; Eohler v. Matlage, 72 JST. Y. 259. 
 In the latter case there must have been an actual payment before \ 
 indemnity can be claimed and a recovery can be had. Gilbert v. 
 Wiman, 1 IST. Y. 550; Aberdeen, v. Blackmar, 6 Hill, 314; Crip- 
 pen V. Thompson, 6 Barb. 532 ; Belloni v. Freeborn, 63 IST. Y. 383 ; 
 Rector, etc. v. Higgins, 48 IST. Y. 532 ; Hawhins v. Mosher, 13 
 Hun, 563 ; Brown v. Mechanics & Traders' Bank, 43 App. Div. 
 173 ; Moloney v. Nelson, 144 N. Y. 182. See ante, p. 52. 
 
 To sustain an action on a bond of indemnity which covenants to 
 indemnify and save harmless, it is not necessary to show that the 
 covenantee was compelled by legal proceedings to pay, it is enough 
 to show that he was liable to pay, and did pay the money. Webb 
 V. Pond, 19 Wend. 433. But where the bond requires that notice 
 of proceedings against the party shall be given, no action will lie 
 without notice. Crippen v. Thompson, 6 Barb. 532. Where mer- 
 chants in this country gave a written engagement to their agents 
 at Havana to save them harmless from all costs, damages and ex- 
 penses which might arise in consequence of any law suit which 
 then was or might he brought against them for the recovery of 
 freight or average on the cargo of a certain ship, it was held that 
 the agents were entitled to recover for moneys which they were 
 obliged to pay in consequence of legal proceedings on an award 
 
PEINOIPAL AITD SURETY. 489 
 
 made previous to obtaining the written engagement, the award 
 being made in February, and the engagement in August, 1815. 
 Hill V. Packard, 5 Wend. 375. 
 
 Where a bond was executed to a constable, conditioned to keep 
 him harmless and indemnified of, from and against all costs, dam- 
 ages, charges, trouble and expense that he might be put to, sus- 
 tain or suffer by reason of a levy and sale by him of property 
 upon an execution, it was held that the condition of the bond was 
 broken, and that an action would lie thereon as soon as the lia- 
 bility was incurred by the officer in conseqtience of sxxch. levy 
 and sale. Bancroft v. Winspear, 44 Barb. 209. And see John- 
 son V. Gilbert, 9 Hun, 469. The officer is not forced to first ad- 
 vance the money to discharge his liability before he can seek in- 
 demnity upon the bond. Bancroft v. Winspear, 44 Barb. 209. 
 In an action on the bond he may recover not only the amount he 
 has actually expended in his defense of an action brought against 
 him by one claiming to be the owner of the property levied on, 
 but also the costs and counsel fees of his attorney and counsel in 
 defending such suit, although the latter may not have been actually 
 paid by the officer. Ih. 
 
 In consideration that the plaintiff had, at the request of the 
 defendant, paid to the holder the amount of a dishonored bill of 
 exchange, on which the defendant was liable as indorser, and had, 
 at the like request, consented to bring an action in his own name 
 against H., the acceptor, the defendant gave to the plaintiff the 
 following guaranty : " I hereby agree to be answerable to you 
 for all costs, damages and expenses which you may sustain by 
 reason of trying the said action and relating and incidental 
 thereto." The plaintiff brought the action against H., who suc- 
 ceeded in his defense, and his costs of the action were paid to him 
 by the plaintiff. The bill of costs of the plaintiff's attorney in 
 the same action had been delivered to the plaintiff, but not paid 
 to him, at the time of suing the defendant on his guaranty, and 
 it was held that the plaintiff was not only entitled to recover the 
 costs which he had paid to H., but also those for which he was 
 liable to his ovra attorney. SparTc v. Heshp, 1 Ell. & E. 564. See 
 also Smith v. Howell, 6 Exch. Y30. 
 
 Where a bond of indemnity is given to a sheriff in an attach- 
 ment case, and he successfully defends an action brought by a 
 claimant of the goods, the sheriff is entitled to recover the whole 
 amount of the costs and expenses secured by the bond, and not 
 a proportional part, though there are other creditors who did not 
 
490 PEINCIPAL AND SUEETY. 
 
 indemnify him, and they received the surplus of the proceeds 
 after satisfying the indemnifying creditor. Chamberlain v. Sel- 
 ler, 18 ]Sr. Y. 116. 
 
 One who has a promise of indemnity against a debt, and is 
 sued and compelled to pay it, with costs, may recover over against 
 the promisor, not only the principal and interest upon the money 
 which he has paid, but also the costs. Mott v. Hicks, 1 Cow. 515. 
 
 But he cannot recover the costs where he has not paid them. 
 Churchill v. Hunt, 3 Denio, 321 ; Scott v. Tyler, 14 Barb. 202 ; 
 Aberdeen v. BlacTcmar, 6 Hill, 324. This rule must be applied in 
 accordance with the distinction already pointed out as to indem- 
 nity against liability, or as to damages by reason of liability, etc., 
 ante, p. 488. The terms damages, costs, and expenses, in a cove- 
 nant of indemnity against the payment of a demand, do not cover 
 a premium or bonus which the party is compelled to pay to raise 
 the amount of the demand. Low v. Archer, 12 IST. Y. 278. 
 
 A party who is indemnified against loss or damage cannot un- 
 necessarily defend an action and charge the costs and expenses 
 upon the obligor. But the costs of a proper and necessary defense 
 are recoverable of the obligor. 
 
 And where he has notice of an action against the surety, and 
 is requested to defend it, he is bound to defend it or to pay the 
 costs of a defense reasonably interposed. Westeri'elt v. Smith, 2 
 Duer, 449 ; Thomas v. Hubbell, 15 N. Y. 405. Where one is in- 
 demnified for a trespass, and he confesses judgment therefor, he 
 must show, in an action against his indemnitor, that the judg- 
 ment was not for too much. Stone v. Hooker, 9 Cow. 154. 
 
 A sheriff who has taken a bond of indemnity should not by his 
 collusive act deprive his indemnitors of the opportunity to present 
 and have tried and determined in the ordinary course of judicial 
 proceeding, his liability when sued by third persons for an act to 
 which his indemnity extends; and where a sheriff intentionally, 
 and in bad faith, prevents the indemnitors from presenting a de- 
 fense interposed in good faith, and which is not frivolous, he can- 
 not afterwards avail himself of a judgment recovered in that ac- 
 tion as a ground of recovery on the bond. If he prevents his in- 
 demnitors from presenting a defense to the action against him, he 
 cannot say that they have not been injured or that the judgment 
 determines their liability. Wheeler v. Siveet, 137 IST. Y. 435. 
 
 Where a sheriff, who has taken a bond of indemnity, is sued 
 for an act to which the indemnity extends, the Code authorizes 
 his indemnitors to apply to the court for permission to defend the 
 
PRINCIPAL AND SURETY. 491 
 
 action in place of the sheriff. Code of Civil Pro., §§ 1421-1423.1 
 On being substituted in place of the sheriff they do not become 
 liable as indemnitors only, governed by the provisions of their 
 bond, but become liable in the place of the sheriff for the damages 
 occasioned by his unlawful taking, if the act of the sheriff shall 
 be adjudged to be unlawful. The substitution does not in any re- 
 spect vary the rights of the plaintiff in the prosecution of his ac- 
 tion. Dyett V. Hyman, 129 N. Y. 351. The action is in no sense 
 an action upon the bond of indemnity. lb. See also Cassani v. 
 Dunn, 4:4: App. Div. 248. 
 
 A bond to indemnify against a past trespass is sometimes valid. 
 Kneeland v. Rogers, 2 Hall, 579 ; HacJcet v. Tilley, 11 Mod. 93. 
 A bond given to indemnify against an illegal act to be done is void ; 
 but not so when given to indemnify against an act already done 
 and not known to be illegal at the time. In the latter case the 
 indemnity is valid. Stone v. Hooker, 9 Cow. 154; Griffiths v. 
 Hardenbergh, 41 K Y. 464; Bowe v. WilUns, 105 IST. Y. 322, 
 328. Taking indemnity by a public officer is not unlawful because 
 not authorized by statute. Griffiths v. Hardenbergh, 41 IST. Y. 
 464 ; Turner v. Hadden, 62 Barb. 480. 
 
 § 4. Discharge of Sureties. 
 
 There are numerous ways in which a surety may be discharged 
 from his liability. And it may result from the terms of the con- 
 tract itself, or from some act of the parties. If the contract in 
 terms declares that the liability shall terminate at a particular 
 time, or on the occurrence of some specified event, then the lia- 
 bility will cease at the expiration of the time or the happening of 
 the event. Payment, or other discharge of the obligation by the 
 principal, will discharge the surety. So a lawful tender by the 
 principal, or his authorized agent will have the same effect. And 
 the rule is the same where the creditor and the principal make 
 a compromise, by which the principal is discharged, or where there 
 is an accord and satisfaction between the principal and his cred- 
 itor. Fraud by the creditor in relation to the obligation of the 
 surety, or by the debtor with the knowledge or assent of the cred- 
 itor, will discharge the liability of the surety. Stone v. Compton, 
 5 Bing. ]Sr. C. 142 ; Pidcoch v. Bishop, 3 Barn. & Cress. 605 ; 
 Weed V. Bentley, 6 Hill, 56. 
 
 The question whether a surety has been discharged from lia- 
 bility by the acts of the creditor is one of frequent occurrenoe. 
 
492 PKINCIPAL AND SURETY. 
 
 And one of the general rules upon the subject is, that a mere i 
 delay by a creditor in the prosecution of his demand against the j 
 principal will not discharge the surety. Williams v. Townsend, 1 
 Bosw. 411 ; Merriti v. Lincoln, 21 Barb. 249 ; Fulton v. Mat- 
 thews, 15 Johns. 433 ; Schroeppel v. Shaw, 3 N. Y. 446 ; Mc- 
 Kechnie v. Ward, 58 IST. Y. 541 ; Clarh v. SicUer, 64 IST. Y. 231 ; 
 Powers V. SiTberstein, 108 IST. Y. 169. The rule is the same in 
 relation to bonds given by public officers. People v. Russell, 4 
 Wend. 570. But if a creditor delays, neglects, or refuses to col- 
 lect his demand of a solvent principal, after a request by the surety 
 that it shall be done, and the principal subsequently becomes in- 
 solvent, this will discharge the surety. King v. Baldwin, 17 
 Johns. 384; Pain v. Pochard, 13 Johns. 174; Manchester, &c. v. 
 Sweeting, 10 Wend. 162 ; Albany, &c. v. Vedder, 14 Wend. 165 ; 
 Herrick v. Borst, 4 Hill, 650; Remsen v. Beelcman, 25 N. Y. 
 552; Colgrove v. Tollman, 67 N. Y. 95. This doctrine that a 
 surety is entitled by notice to call upon the creditor to proceed 
 to collect the debt by legal proceedings against the principal, on 
 the debt becoming due, although no such obligation is imposed 
 by the contract, and that the creditor failing to comply the surety 
 is discharged to the extent of the loss sustained" by the delay, came 
 into the law of this State with Paine v. Packard, above cited, and 
 while this doctrine, though frequently criticised, has not been over- 
 ruled, the courts have not been disposed to apply it, except in cases 
 where the surety became such at the inception of the contract, or 
 that relation was created by dealings between the parties orig- 
 inally bound by the contract subsequent thereto of which the 
 creditor had notice. Wells v. Mann, 45 IST. Y. 327 ; Newcomb v. 
 Hale, 90 W. Y. 326. The doctrine is not a favorite in the law, 
 and is not to be applied with laxity. Hunt v. Purdy, 82 N. Y. 
 486 ; Lawson v. Buckley, 49 Hun, 329. The request or notice to ' 
 the creditor should at least clearly inform him that he is required 
 to take legal proceedings to collect his debt ; otherwise it will be 
 of no effect. lb. ; Denick v. Hubbard, 27 Hun, 347 ; Howe Ma- 
 chine Co. V. Farrington, 82 IST. Y. 121 ; Singer v. Troutman, 49 
 Barb. 182; Coykendall v. Constable, 48 Hun, 360; Goodwin v. 
 Simonson, 74 IST. Y. 133 ; Gilbert v. Marsh, 12 Hun, 519. When 
 a surety claims to be discharged on account of mere delay in prose- 
 cuting the principal, he must show that some injury has resulted 
 to him in consequence. People v. Berner, 13 Johns. 383 ; Herrick 
 v. Borst, 4 Hill, 650. A surety will not be discharged by the neg- 
 lect of the creditor to collect the debt of the principal, on being 
 
PEINCIPAL AND SURETY. 493 
 
 requested by the surety to do so, unless it appears that the princi- 
 pal was, at the time of the request, solvent and able to pay his 
 debts. A creditor is not bound to pursue an insolvent principal ^ 
 at the direction of the surety. Merritt v. Lincoln, 21 Barb. 249 ; 
 Herrick v. Borst, 4 Hill, 650 ; Wheeler v. Benedict, 36 Hun, 478 ; 
 Auburn Savings Bank v. Brinkerhoff-, 44 Him, 142 ; Thompson 
 V. Hall, 45 Barb. 214. It seems that notice to the attorney of the 
 creditor is not su.fficient to discharge the surety. Coykendall v. 
 Constable, 48 Hun, 360. A creditor may take as many collateral 
 securities from his debtor as he pleases, and still not discharge the 
 surety. Williams v. Towfiisend, 1 Bosvsr. 411 ; Twopenny v. 
 Young, 8 Barn. & Cress. 208 ; Gahn v. Niemcewicz, 11 Wend. 
 320, 321 ; Elwood v. Deifendorf, 5 Barb. 398 ; Cary v. White, 
 52 N. Y. 138 ; Fox v. Parker, 44 Barb. 541 ; Fallkill Nat. Bank 
 V. Sleight, 1 App. Div. 189 ; Mack v. Anderson, 66 St. Rep. 836. 
 A dealing by a creditor with the principal debtor, in respect to 
 a second or collateral security, will not, at law, discharge the 
 surety from the payment of the principal debt ; although he might 
 have been discharged had the creditor dealt with the principal 
 in the same manner with respect to the original security. Schroep- 
 pel V. Shaw, 5 Barb. 580 ; S. C, 3 IvT. Y. 446. 
 
 The receipt of a bill or note, having time to run, from the party 
 primarily liable on a bill or note th^ ov erdu e, does not operate 
 to discharge an indorser on the bill or note so overdue, unless 
 there is an agreement, express or implied, that the new bill or 
 draft shall be in payment of the former, or extending the time 
 of payment in favor of some party who is liable thereon prior to 
 such indorser. Taylor v. Allen, 36 Barb. 294. The principle is\ 
 well settled that when the holder of a promissory note takes a \ 
 nBW note from the debtor, payable at a future day, he suspends 
 the right of action upon the original demand imtil the maturity 
 of the last-mentioned note, and the surety upon the same, not 
 assenting thereto, thereby becomes discharged from liability. Fel- 
 lows V. Prentiss, 3 Denio, 512 ; Bangs v. Mosher, 23 Barb. 478 ; 
 Dorlon v. Christie, 39 Barb. 610; Albany City Ins. Co. v. Deven- 
 dorf, 43 Barb. 444; Shipman v. Kelley, 9 App. Div. 316 ; Reed & 
 Barton v. Ashe, 18 App. Div. 501; Place v. Mcllvain, 38 IST. Y. 
 96 ; Hart v. Hudson, 6 Duer, 294 ; Brown v. Mason, 55 App. Div. 
 395 ; Hubbard v. Ourney, 64 IST. Y. 457. But to bring a case 
 within this rule it should be made to appear from the facts proved 
 there was an agreement, either express or implied, that the new 
 note was taken in payment of the first note, or that the time of 
 
494 PEINCIPAL AND SUEETY. 
 
 payment was extended in favor of the party who was primarily 
 liable. Ih. The question as to what will be considered as proof 
 of such agreement is not clear. The authorities are numerous that 
 the mere acceptance of the promissory note of the principal debtor 
 for a pre-esisting debt operates, in the absence of an agreement 
 that such shall not be the effect, as an extentsion of time, and sus- 
 pends the right of action upon the debt until the note becomes 
 due. Fellows v. Prentiss, 3 Denio, 512 ; Myers v. Wells, 5 Hill, 
 465 ; Putnam v. Lewis, 8 Johns. 389 ; Bangs v. Mosher, 23 Barb. 
 4Y8; Dorlon v. Christie, 39 Barb. 610; Place v. Mcllvain, 38 
 K Y. 96 ; Happy v. Mosher, 48 ]^. Y. 313 ; Shipman v. Kelley, 
 9 App. Div. 316 ; Martens-Turner Co. v. Mackintosh, 17 App. 
 Div. 419; Reed & Barton v. Ashe, 18 App. Div. 501; Brown v. 
 Mason, 55 App. Div. 395. On the other hand, it has been held 
 that the mere acceptance of the notes will not of itself, without an 
 agreement for the extension of the time of payment of the debt, 
 have that effect. Graham v. Negus, 55 Hun, 440; Fuller v. 
 Negus, 29 St. Eep. 192 ; 8 IsT. y. Supp. 681. Whatever may be 
 the true rule in respect to the acceptance by the creditor of the 
 negotiable promissory note of the principal debtor, the rule is welll 
 settled that the taking of any other form of new security froni 
 the debtor without agreeing to give him time does not discharg| 
 a surety. Gary v. White, 52 IST. Y. 138. And the fact that such 
 new security may not be enforceable until a definite time in the 
 future does not operate to extend the time of payment of the prin- 
 cipal debt or siispend the right to sue upon the original security. 
 United States v. Hodge, 6 How. (U. S.) 2Y9 ; Cary v. White, .52 
 'N. Y. 138 ; FallJcill Nat. Banh v. Sleight, 1 App. Div. 189. There 
 is undoubtedly reason for giving a greater effect to the acceptance 
 of a negotiable promissory note by the creditor than to the taking 
 of a chattel mortgage or similar form of new security. 
 
 The receipt of additional security is a good consideration for 
 an agreement by the holder of a promissory note to relinquish all 
 claim upon it against an indorser. Eccleston v. Ogden, 34 Barb. 
 444. Where a creditor makes a valid and binding agreement to 
 extend the time of payment by the principal debtor, or where he 
 changes the terms of the agreement, the surety will be discharged. 
 Bathhone v. Warren, 10 Johns. 585 ; Smith v. Townsend, 25 IST. 
 Y. 479 ; 'Antisdel v. Williamson, 37 App. Div. 167 ; 165 IST. Y. 
 372 ; Bank of Albion v. Burns, 46 IST. Y. 170 ; Calvo v. Davies, 
 73 liT. Y. 211 ; Robertson v. Sully, 157 IST. Y. 624. The extension 
 of time for a single day is sufficient to release the surety. Feh 
 
1 
 
 PEINCIPAL AND SURETY. 495 
 
 lows V. Prentiss, 3 Denio, 512; Bangs v. Strong, 1 Hill, 250; 
 Place v. Mcllvain, 38 IST. Y. 96, 99. The court will not enter into 
 the question what injury the surety has sustained, nor whether 
 the extension was actually injurious to the rights of the surety. 
 Bangs v. Strong, 1 Hill, 250; Vose v. Florida R. B. Co., 50 
 K Y. 369, 373; Calvo v. Davies, 73 N. Y. 211, 216. Even 
 though the surety is benefited by the extension, he may take ad- 
 vantage of it. Gahn v. Niemcewicz, 11 Wend. 312. An agree- 
 ment for a valid consideration, extending to a principal the time 
 of payment of a debt, discharges the surety, although the prin- 
 cipal, at the time of such agreement, is actually insolvent. Ih.; 
 Huffman v. Hulbert, 13 "Wend. 375. So, where an award is made 
 upon a submission between a creditor and principal debtor, which 
 extends the time for payment by the debtor beyond that fixed in 
 the contract, sureties for the performance of the contract are 
 discharged. Coleman v. Wade, 6 N. Y. 44. 
 
 When a creditor takes the draft or check of the principal debtor, 
 payable at a future day, in payment of the debt, this is a valid 
 extension of credit, and" if done without the consent of the sure- 
 ties, discharges them from all liability. Bangs v. Mosher, 23 
 Barb. 478 ; Tohey v. Barber, 5 Johns. 73 ; Albany City Fire Ins. 
 Co. V. Devendorf, 43 Barb. 444. In the consideration of thei 
 authorities and their application to a given case arising in prac-l 
 tice, the distinction between security taken as collateral and seen- 1 
 rity taken in payment, must be constantly kept in mind. See' 
 Hubbard v. Gurney, 64 IST. Y. 457, 468. 
 
 Where the demand against the principal has been put into a 
 judgment, a valid agreement to extend the time of payment will 
 discharge the surety. Bam,gs v. Strong, 4 N. Y. 315 ; La Farge 
 V. Herter, 9 IST. Y. 241. And when a creditor, in the course of 
 legal proceedings based upon his claim, once gets hold of the 
 property of the principal, which is applicable to the payment of 
 the debt, the surety is entitled to insist that the creditor shall not 
 voluntarily let the property go, and if he does so, and the claim 
 subsequently proves to be uncollectible from the principal, the 
 surety is discharged. Spring v. George, 50 Hun, 227. So where 
 the principal debtor has placed any property in the creditor's 
 hands, or given him any lien upon any property to secure the 
 debt, the creditor is bound to keep and hold the property for that 
 purpose for the protection and benefit of the surety, and if he 
 voluntarily gives up or surrenders the property or the lien to the 
 debtor, or wastes the property, or allows the debtor to waste it, the 
 
496 PEINCIPAL AND SUEETY. 
 
 surety has a just ground of complaint, and to the extent of his loss 
 is entitled to a reduction of his liability for the debt. Grow v. 
 Garloch, 97 K. Y. 81. See Yose v. Florida R. R. Co., 50 N. Y. 
 369 ; Uiiderhill v. Palmer, 10 Daly, 478; Farmers & Mech. Nat. 
 Bank v. Lang, 87 E". Y. 209. 
 
 The rule that a surety is discharged pro tanto through the sur- 
 render of a security by the creditor, does not rest on contract, but 
 upon the equitable principle that the property of the debtor, 
 pledged for the payment of the debt, should be applied on the 
 debt. In such case of surrender the surety is discharged to the 
 extent that he is injured. Antisdel v. Williamson, 165 N. Y. 
 372. A diversion of security, which results in no injury to the 
 surety, does not affect his liability. Blydenburgh v. Bingham, 
 38 K Y. 371 ; State Bank v. Smith, 155 N. Y. 185. See Emery 
 V. Baltz, 94 ]Sr. Y. 408. 
 
 The agreement of the creditor to extend the time of payment, 
 which will have the effect of discharging the surety from liability, 
 must be valid and founded upon a valid consideration. Draper 
 V. Romeyn, 18 Barb. 166 ; Reynolds v. Ward, 5 Wend. 501 ; Ful- 
 ton V. Matthews, 15 Johns. 433; Hunt v. Bloomer, 5 Duer, 202; 
 Miller Y. Holbrook, 1 Wend. 317; Gibson v. Renne, 19 Wend. 
 390; Kellogg v. Olmsted, 25 N. Y. 189; Halliday v. Hart, 30 
 N". Y. 474 ; Lowman v. Yates, 37 N. Y. 601 ; Parm,elee v. Thomp- 
 son, 45 IN"". Y. 58; Title Guarantee & Trust Co. v. Weiher, 30 
 Misc. 250; Powers v. Silberstein, 10'8 IST. Y. 169; Manchester v. 
 Van Brunt, 19 JST. Y. Supp. 685 ; Babcock v. Euntzsch, 85 Hun, 
 615 ; Olmstead v. Latimer, 158 IST. Y. 313. Where, in such agree- 
 ment, the remedies against the sureties are reserved, the agrees 
 ment does not operate as an absolute, but only as a qualified and 
 conditional suspension of the right of action. In that case the 
 stipulation is treated in effect as if it was made in express terms 
 subject to the consent of the surety, and the surety is not thereby 
 discharged. Calvo v. Davies, 73 IST. Y. 211 ; Morgan v. Smith, 
 70 N. Y. 537 ; National Bank of Newburgh v. Bigler, 83 IsT. Y. 
 51. To discharge a surety by giving time to the principal debtor, 
 not only the fact of stiretyship must exist, but it must be known 
 to the creditor at the time of doing the act complained of. 
 Elwood V. Deifendorf, 5 Barb. 398. 
 
 A creditor who has agreed with the principal debtor without 
 the consent of a surety, to extend the time of payment of the 
 debt, for a usurious consideration paid at the time, cannot avail 
 himself of the usury as rendering the agreement invalid, when 
 
PKINCIPAL AND SURETY. 497 
 
 the agreement and the usurious consideration are proved by the 
 surety for the purpose of es.tablishing a defense that he is dis- 
 charged from his liability. Draper v. Trescott, 29 Barb. 401. 
 The usurer is not allowed to show that an obligation which he has 
 taken in satisfaction of a prior demand, is usurious and, therefore, 
 void, in order to- avoid the effect of such obligation as a satisfac- 
 tion of the prior demand. La Farge v. Herter, 9 N. Y. 241 ; 
 Billington v. Wagoner, 33 IST. Y. 31. An agreement to extend 
 the time of payment, made in consideration of a usurious premium 
 which has been completely executed by payment of the premium 
 and by forbearance accordingly, discharges the surety. Draper v. 
 Trescott, 29 Barb. 401 ; Nat. Banh of Gloversville v. Place, 15 
 Hun, 564; Thayer v. King, 31 Hun, 438; Froude v. Bishop, 25 
 App. Div. 514. 
 
 § 5. Eights of a Surety against His Principal. 
 
 Where one party, at the request of another, enters into a con- 
 tract- as his surety, the law, in order to prevent injustice, will 
 imply a pronaise on the part of the principal to indemnify the 
 surety in the absence of an express promise to that effect. 
 Konitzky v. Meyer, 49 E". Y. 571 ; Holmes v. Weed, 19" Barb. 
 128 ; Jones v. East Society, etc., 21 Barb. 161 ; ChadwicTc v. 
 Manning, 27 St. Rep. 31. And where a surety has paid a judg- 
 ment against his principal, for which he was bound, he has a 
 right of action against his principal to recover the money so paid, 
 although the principal has subsequently taken an appeal from 
 the judgment and secured its reversal. Oarr v. Martin, 20 N. Y. 
 306 ; Hatch v. Hamlin, 12 Daly, 272. 
 
 A mere surety cannot recover of the principal until he has paid 
 the demand either in money, or he has in some other manner 
 satisfied the indebtedness. Powell v. Smith, 8 Johns. 249 ; El- 
 wood V. Deifendorf, 5 Barb. 398 ; Jones v. East Society, etc., 21 
 Barb. 161 ; Adams v. Tator, 57 Hun, 302. An extinguishment 
 of the debt by giving a negotiable note, if received in satisfaction 
 of a judgment against the principal, or a conveyance of land will 
 enable a surety to recover the amount paid. Witherhy v. Mann, 
 11 Johnsu 518 ; Bonney v. Seeley, 2 Wend. 481. But he can re- 
 cover no more than the amount actually discharged. Ih. There 
 are cases, however, as we have seen, ante, p. 488, in which the 
 surety may recover whenever he has incurred, or been subjected 
 to a liability, if the agreement is so made. 
 
 A surety, upon payment of the debt, has a right to the benefit 
 32 
 
498 PKINCIPAL AND SUEETY. 
 
 of all the collateral securities held by the creditor. Schroeppel 
 V. 8haw, 3 ]Sr. Y. 446 ; Goodyear v. Watson, 14 Barb. 481 ; 
 Clason V. Morris, 10 Johns. 524 ; Ontario Bank v. Walker, 1 Hill, 
 652; Corey v. White, 3 Barb. 12; Mathews v. Aikin, 1 N. Y. 
 595 ; Lewis v. Palmer, 28 IsT. Y. 271 ; Marsh v. Benedict, 14 Hun, 
 317; National Exch. Bank v. Silliman, 65 IST. Y. 475; >Siaie 
 Bank V. ^Smi^/i, 155 IsT. Y. 185. 
 
 Where a creditor receives from his principal debtor, collateral 
 security of sufficient value to pay the debt, the surety is discharged 
 if the security be surrendered without his consent. Pitts v. 
 Congdon, 2 IST. Y. 352. The remedy of a surety against his prin- 
 cipal, on payment of the debt, is not on the original security, but 
 by an action for money paid for his principal. Elwood v. Deifen- 
 dorf, 5 Barb. 398. 
 
 A judgment and an execution against the person of the surety, 
 and an arrest and imprisonmient thereon, and a discharge of the 
 surety under an insolvent law, will not sustain an action in his 
 favor against the principal for the amount of the debt. Powell v. 
 Smith, 8 Johns. 249. When the contract of indemnity of the prin- 
 cipal is broken, and the surety is liable, he may pay the money 
 without suit, and recover against his principal. Mauri v. Heffer- 
 nan, 13 Johns. 58. In the absence of any special agreement upon 
 the subject, a surety may recover in an action against his principal 
 his reasonable costs and other expenses, incurred necessarily and 
 in good faith, in the prosecution or defense, by the express or 
 implied consent of his principal, of an action or special proceeding 
 relating to the demand secured. Code of Civil Pro., § 1916. \ 
 If a surety knows that a claim, made by a creditor of his principal 
 is just, he has no right to interpose a defense to a suit brought 
 against him as surety and litigate the same. If he does so, and 
 fails in the suit, he cannot recover of his principal the costs paid 
 by him. He is only entitled to recover the costs of a judgment by 
 default. Holmes v. Weed, 24 Barb. 546 ; Short v. Kalloway, 11 
 Ad. & Ell. 28 ; Bleaden v. Charles, 7 Bing. 246. Where a surety is 
 sued, and a judgment is recovered against him, without any de- 
 fense having been interposed, such judgment will not be sufficient 
 evidence of the amount for which the principal is liable to the 
 surety. King v. Norman, 4 Man., Grang. & Scott, 884. 
 
 Upon principles of equity a surety, as between himself and. 
 principal, stands upon a different footing, in some respects, from 
 an ordinary creditor. He is entitled to full indemnity against the 
 consequence of the default of the pi Incipal, and is entitled to 
 
PKINOIPAL AND SURETY. 499 
 
 call upon him for redmbursemeait, not only of ■what he may have 
 been obliged to pay in discharge of thie obligation for which he 
 was surety, but also of all i*easonable expenses legitimately in- 
 curred in consequence of such default or for his own protection. 
 These do not include the expenses incurred in defending himself 
 againsrt the just claims of the creditor, nor remote and conse- 
 quential damages sustained by the surety, such as sacrifices of his 
 property for the purpose of meeting his liability, loss of time, 
 injury to business, expenses incurred in. seeking to avoid pay- 
 ment, etc. But they do include expenses reasonably incurred for 
 the purpose of securing the application of the property of the 
 principal to the payment of the debt in exoneration of the surety. 
 Thompson v. Taylor, 72 N. Y. 32. 
 
 § 6. Rights and Liabilities of Cosureties. 
 
 Where two persons agree equally to bear and pay the losses and 
 damages which may be sustained in consequence of one of them 
 becoming special bail for a third person, and after they have 
 equally contributed to the payment of the debt, one of them is 
 refunded the amount paid by him, he is answerable to the other 
 for a moiety of the money received by him. Smith v. Hicks, 5 
 Wend. 48 ; Smith v. Hicks, 1 Wend. 202. The obligation of one 
 of two cosureties is to pay the whole debt. His right is, if he 
 pays the whole debt, to recover one^half from his cosurety, or 
 the whole from the principal. If he pays less than the whole 
 debt, he cannot recover from the cosurety, though he may from 
 the principal, more than the amount which he has paid in excess 
 of the moiety which, as between him and his cosurety it was 
 his duty to pay. Morgan v. Smith, 70 N. Y. 537. 
 
 The right of one surety to contribution from his cosurety, in 
 the absence of an express agreement between them, arises from 
 payment by him of a demand against the principal, which they 
 were equally under legal obligation to pay. Tobias v. Rogers, 13 
 N. Y. 69. In the absence of a contract between sureties to in- 
 demnify each other, either express or implied, the doctrine of 
 contribution rests on principles of equity. Eelief is afforded 
 to the surety making payment on the ground that the sureties 
 have common interest aud a common burden, for as all are equally 
 bound and equally relieved, equity deems it but just that all 
 should contribute in proportion towards a benefit obtained by all. 
 OHsfield v. Murdoch, 127 K Y. 315. 
 
 Several sureties who sign a note of the principal at his request, 
 
500 PEINCIPAL AND SURETY. 
 
 at different times, witbout oommunication with each other, are 
 bound to contribute equally to the payment of the note in case 
 of failure of the principal. And where the first of such sureties 
 pays the whole note, he may recover from the last his proportion 
 of the amount so paid. Norton v. Goons, 6 N". Y. 33. But where 
 a party signs a note as the surety of another, and subsequently a 
 third person affixes his name also as maker, addiag to his signa- 
 ture, the words " surety for the above parties," the first surety, 
 although he pays the note, cannot compel contribution against the 
 second surety, unless it is made satisfactorily to appear that the 
 second surety intended to place himself in relation of cosurety 
 with the first surety. Harris v. Warner, 13 Wend. 400; Warner 
 V. Price, 3 Wend. 397. Where two persons sign a written obliga- 1 
 tion as sureties, and there is a verbal agreement between them 
 prior to signing, or ootemporaneously with it, that one of them 
 will indemnify the other from loss in consequence of his signing, 
 the party so verbally indemnifying, cannot call on the cosurety 
 for contribution. Barry v. Ransom, 12 IST. Y. 462. 
 
 One of several cosureties who pays the debt, may call upon 
 the other sureties for contribution, whether they were bound 
 jointly or severally, and whether by the sajne or by different 
 instruments; and although they became sureties for the same 
 debt at different times. Norton v. Coons, 3 Denio, 130 ; 8. C, 6 
 K Y. 33. 
 
 The right of contribution between sureties may exist although 
 tlie sureties have entered into their engagements in ignorance of 
 the contracts of each other. But it is not enough to give the right 
 that both parties are sureties. They must occupy the same posi- 
 tion in respect to the principal, and be without equities between 
 themselves, giving one an advantage over the other. Wells v. 
 Miller, 66 N. Y. 255. A cosurety is entitled to any indemnity, 
 or the avails of it, which his cosurety had from the principal 
 debtor; and if the cosurety has released or discharged the in- 
 demnity, or has collected and applied the avails to his own use, 
 he cannot recover. Grisfield v. Murdoch, 127 N. Y. 315 ; Liv- 
 ingston V. Van Rensselaer, 6 W^end. 63. If a cosurety suing for 
 contribution has received any money or property as payment or 
 security from the principal, he will be obliged to account for it. 
 Elwell V. Shiddy, 77 IST. Y. 282. 
 
 Where one of several sureties takes from his principal a chattel 
 mortgage, to indemnify him for becoming such surety, and he 
 afterwards discharges the same without the consent of his co- 
 
PKIISTCIPAL AND SUEETY. 501 
 
 sureties he will, by that act, be prevented from calling upon any 
 or all of them for contribution. Ramsey v. Lewis, 30 Barb. 403 ; 
 Elwood V. Deifendorf, 5 Barb. 398. 
 
 There is no subrogation as between cosureties, in favor of the 
 one who has paid, to the rights of the creditor. The principle 
 of law upon which their relations and rights are regulated is 
 contribution. Motley v. Flannagan, 16 Misc. 470. 
 
 A discharge of a surety, under the bankrupt law, from has obli- 
 gation to answer for the demand against the principal, releases 
 him from liability to his cosiirety for contribution. Tobias v. 
 Rogers, 13 IN". Y. 59. 
 
 § 7. Continuing Guaranties. 
 
 Whether a guaranty is to be construed as a continuing guaranty 
 depends upon the language and the intention of the parties. 
 When the language is explicit, the language will control the 
 construction, but when it is ambiguous, parol evidence may be 
 given to show the intention. It is a general rule, that the con- 
 struction is to be favorable to the sureties, though this must not be 
 understood to mean that there can be a. departure from the law 
 to favor them. A guarantor, like a surety, is bound only by the 
 strict letter or precise terms of his contract, and the claim against 
 the guarantor is strictissimi juris. Creamer v. Mitchell, 162 IST. 
 Y. 477. A guaranty is to be construed in conformity with the 
 rule governing the construction of contracts generally, and must 
 accord with the apparent intention of the parties; and when the 
 meaning of the language used is plain, or is ascertained, the 
 guarantor is entitled to the application of the strict rule govern- 
 ing the contracts of sureties, and cannot be held beyond the plain 
 terms of the contract. Crooks v. Propp, 32 Misc. 309 ; Evans- 
 ville Nat. Bank v. Eaufmann, 93 N. Y. 273 ; Schwartz v. Hyman, 
 107 N. Y. 562; Rindge v. Judson, 24 JST. Y. 64; Whites Bank 
 V. Myles, 73 N. Y. 335. 
 
 The cases are unanimous in holding that little, if any, aid 
 can be derived from reported cases in construing this class of 
 guaranties. If the language is ambiguous, the construction of 
 the guaranty must always be influenced by the precise language 
 used, viewed in the light of the circumstances attending its exe- 
 cution; and, having ascertained the apparent intention of the 
 parties, the court, while holding the guarantor to every obligation 
 fairly and reasonably embraced within the language used, should 
 not strain that language beyond its obvious meaning for the pur- 
 
502 PEINCIPAL AND SUKETY. 
 
 pose of enlarging Ms liability. Schwartz v. Hyman, 107 N. Y. 
 562. 
 
 The words " all liabilities to be incurred " create a continuing 
 guaranty ; and the words " all liabilities incurreid " may be ex- 
 plained as referring to future liabilities, by extrinsic evidence 
 that there were no existing liabilities. Agawam Bank v. Strever, 
 18 jST. Y. 502. But a promise to pay for all the goods that A. 
 may want of B., is not a continuing guaranty. Whitney v. Oroot, 
 24 Wend. 82. So a letter in these words : " I hereby agree to I 
 guaranty to you the payment of such an amount of goods at a| 
 credit of one year, interest after six months, not exceeding five! 
 hundred dollars, as you may credit to J. H. P.," is not a continu- 
 ing guaranty, but is exhausted by a single purchase to the amount 
 mentioned. Fellows r. Prentiss, 3 Denio, 512. 
 
 A guaranty was as follows : " I will be responsible for what 
 stock A. has had, or may want hereafter, to the amount of five 
 hundred dollars," and this was held to be a continuing guaranty. 
 Gates V. McKee, 13 N. Y. 232; Bindge v. Judson, 24 N. Y. 
 64. 
 
 An engagement to pay for all goods a firm may sell and de- 
 liver to a third person but. not exceeding in the aggregate one 
 hundred and eighty-two dollars, " the same to be a running ac- 
 count for an indefinite time, and such deliveries be at such times " 
 as such third person may desire, is a continuing guaranty, and 
 the amount specified is a limitation only upon the guarantor's 
 liability and not upon the amount of goods which may be de- 
 livered under the guaranty. Picker v. Fitzelle, 28 App. Div. 
 519. 
 
 Where, for the purpose of enabling a company to borrow money 
 from a bank, parties jointly and severally guarantee the payment 
 of all drafts, checks, notes and bills which the bank may receive 
 from and discount for the company, and to pay any and all such 
 drafts, checks, notes and bills, as may become due and remain 
 unpaid within one year from' date, not exceeding $10,000 ; the 
 contract is a continuing guaranty, and the parties thereto are 
 liable thereon not only upon notes of the company to the amount 
 specified, but upon renewal notes of the company given in the 
 place of the originals. Fifth Nat. Bank v. Woolsey, 31 App. 
 Div. 61. 
 
 Where a guarantor expressly guarantees the payment by a third) 
 person for any and all materials which the persons addressed may 
 deliver to such third person, adding " I am not to be liable for 
 
PEINCIPAL AND SUKETY. 503 
 
 any balance exceeding five hundred ' dollars wkich. may becomei 
 due," the contract is a continuing guaranty limited to a balance 
 " which may become due " not exceeding the amount specified, 
 but not limited as to the amount of the dealings between the par- 
 ties named therein. McShane Co. v. Padian, 142 IST. Y. 207. 
 So an agreement to the effect that the promisor agreed to guar- 
 antee the payment of goods purchased by a person named to the 
 extent of a sum specified, is a continuing guaranty. Eichold v. 
 Tiffany, 20 Misc. 680. 
 
 Illustrations might be continued indefinitely of the construc- 
 tion placed by the courts upon particular contracts of guaranty. 
 Such illustrations would be of little practical value, as in no two 
 contracts would the language be exactly the same, or the circum- 
 stances surrounding the parties identical. 
 
 § 8. Eights of Sureties against Third Persons. 
 
 A mere surety for a debt will not be bound by a judgment rem- 
 dered in a suit between his principal and the creditor, even thouOTi . 
 the suit was conducted exclusively by the surety as the agent of the 
 principal. Jachson v. Oriswold, 4 Hill, 522. See Thomson v. 
 MacGregor, 81 IST. Y. 592, 597; People v. Russell, 25 Hun, 524. 
 
 The rule is otherwise in case of sureties in bonds of executors 
 and administrators, for the reason that they have by their bond 
 contracted that their principal shall obey all orders and decrees 
 of the surrogate. Casoni v. Jerome, 58 ]^. Y. 315 ; Oerould v. 
 Wilson, 81 ISr. Y. 573 ; Deohold v. Oppermann, 111 IST. Y. 531. 
 Upon the same principle, the sureties on an injunction undertak- 
 ing are concluded by the assessment of damages against the prin- 
 cipal, unless they show fraud or collusion, since the surety under- 
 takes to pay the damage which may be recovered by the party 
 enjoined. Jordan v. Yolhenning, 72 N. Y. 300. But in all cases, 
 whether prima facie bound by the judgment or otherwise, it is 
 competent for sureties to show in an action against them that the 
 judgment against them was recovered by fraud and collusion for 
 the purpose of charging them and of increasing their liability. 
 Annent v. Terry, 35 N. Y. 256. 
 
 A surety in a usurious contract may set up the usury as a de- 
 fense, even when the principal refuses to make such a defense. 
 Morse v. Hovey, 9 Paige, 197. Where an agent is employed to 
 borrow money for public purposes, and he gives sureties for the 
 proper discharge of his duties, the sureties will not be liable for 
 
504: PKIjSTCIPAL axd sueety. 
 
 any sum beyond that named in the bond, although the agent may 
 obtain a larger sum by false statements as to the amount which 
 he is avithorized to receive. Supervisor'^ of Rensselaer v. Bates, 
 17 K Y. 242. 
 
 Sureties cannot be concluded by a fabricated account of their 
 principal with his creditors ; they may always inquire into the va- 
 lidity and truth of the transaction between them. United States 
 V. Boyd, 5 How. U. S. 29. A sheriff who had taken a bond with 
 sureties, for the liberties of the jail granted to a prisoner in 
 execution, was sued for an escape, and a judgment recovered 
 against him. He gave notice of the suit to the sureties, and the 
 suit was regularly defended by the sheriff, aided by the sureties. 
 The sheriff afterwards brought an action on the bond for his 
 indemnity; and it was held that the recovery in the former suit 
 was conclusive evidence in the suit on the bond ; and that the de- 
 fendants could not, on the trial of the suit against them on the 
 bond, controvert the fact of the escape. Kip v. Brigham, 6 Johns. 
 158; Duffleld v. Scott, 3 Term, 374; Kip v. Brigham, 7 Johns. 
 168; a-nte, p. 55. Where the obligors have notice of the suit in 
 which the expenses are incurred, they are bound to defend it ; 
 and if they do not, the recovery is conclusive against them. Trus- 
 tees of Neiohurgh v. Galatian, 4 Cow. 340; Beers v. Pirmey, 12 
 Wend. 309 ; Hale v. Andrus, 6 Cow. 225 ; Stone v. Hooher, 9 
 Cow. 154. A bond given to indemnify for an escape after it has 
 happened, is good. Given v. Driggs, 1 Caines, 450. When 
 parties, whether principal or sureties, stipulate to pay a third 
 person, or indemnify the debtor, a verdict against the latter, by 
 reason of their default, is at least prima facie, not to say conclu- 
 sive evidence against them, without their having been notified 
 of the former suit. Lee v. ClarTc, 1 Hill, 56 ; Holmes v. Weed, 
 19 Barb. 128. 
 
 As a general rule of law, a covenant to indemnify against a 
 future judgment, charge or liability is broken by the recovery 
 of a judgment, or the fixing of a charge or liability in the matter 
 to which the covenant relates. When the covenant is one of in- 
 demnity against the recovery of a judgment, the cause of action 
 on the covenant is complete the moment the judgment is recovered, 
 and an action for damages may be immediately maintained 
 thereon, measured by the amount of the judgment, and this al- 
 though the judgment has not been paid by the covenantee, and 
 although the covenantor was not a party, or had no notice of the 
 former action. The covenantor in an action on a covenant of gen- 
 
PEOTCIPAL AND SUEETY. 505 
 
 eral indemnity against judgments, is concluded by the judgment 
 recovered against the covenantee, from questioning the existence 
 or extent of the covenantee's liability in the action in which it 
 was rendered, save only in case siich judgment was recovered by 
 fraudulent collusion for the purpose of charging the surety. But 
 where the judgment is recovered by consent of the obligee, the 
 judgment is presumptive evidence only against the sureties, and 
 they may show that it was not founded upon any legal liability or 
 that it exceeds such liability. In the absence of such proof, the 
 judgment is still the measure of the liability of the sureties. Con- 
 ner V. Reeves, 103 N. Y. 527. 
 
 In order to make a judgment recovered on such claim or de- 
 mand conclusive against the indemnitor, he must have notice of 
 the suit, and an opportunity to defend. Aberdeen v. Blackmar, 
 6 Hill, 324. The omission to give notice, however, does not go to 
 the right of action in the contract of indemnity ; but merely affects 
 the question as to the burthen of proof. Ih. In a suit against 
 one on a joint and several promise of indemnity by two, notice to 
 one is notice to both. Bartlett v. Campbell, 1 Wend. 50 ; Wester- 
 velt V. Smith, 2 Duer, 449 ; Fay v. Ames, 44 Barb. 327. In an 
 action by a sheriff, upon the bond given by a deputy sheriff, on 
 receiving his appointment, to indemnify the sheriif against his 
 acts or omissions as such deputy, the surety in such bond is con- 
 cluded by a judgment recovered against the sheriff, in an action 
 brought against him for the neglect of the deputy to collect an 
 execution, where the deputy had notice of the action, and de- 
 fended it, even though the surety had no notice of the action. Ih. 
 And in such a case, the surety will not be permitted to litigate the 
 question whether the sheriff was liable in the former action, nor to 
 prove facts in exoneration of his principal, the deputy, where the 
 latter had set up such facts in the former action against the sheriff. 
 Ih. 
 
 But notice to the principal is not always notice to the sureties. 
 The defendants were sureties in a bond to the sheriff, that their 
 principal, 0. H., should " well and faithfully, in all things, per- 
 form and execute the duties of deputy sheriff without fraud, de- 
 ceit or oppression." A judgment was recovered against the sheriff 
 for the alleged misconduct of such deputy, in a suit of which 
 such deputy had notice, with a request to defend ; but his sureties 
 had no notice. In an action upon the bond against the sureties, 
 it was held that they were at liberty to prove facts which would 
 have established a good defense in the action against the sheriff. 
 
506 PEINCIPAL AND SURETY. 
 
 Thomas v. Hubhell, 15 IST. Y. 405 ; 35 IST. Y. 120 ; Douglass v. 
 Howland, 24 "Wend. 35. 
 
 A notice by a sheriff, of a suit against him, to the obligees of 
 a bond for the limits, to charge the obligors with the effect of such 
 notice, must be such as to give them a fair opportunity to inter- 
 pose a defense. When an obligor, under such circumstances, does 
 appear in season to make a defense, although the notice given to 
 him is short, he will not be allowed to allege a want of due notice. 
 Riley v. Seymour, 1 Wend. 143. In an action upon a bond given 
 to bankers, conditioned for the fidelity of a clerk, entries of the 
 receipt of sums of money made by the clerk in books kept by him 
 in the discharge of his duty as clerk, are, after his death, evidence 
 against his sureties of the fact of the receipt of the money. Whit- 
 nash V. George, 8 Barn. & Cress. 556; Goss v. Watlington, 3 
 Brod. & Bing. 132.' 
 
 A bond reciting a conveyance of land, and covenanting to in- 
 demnify and save harmless the obligee against all actions brought 
 for the recovery of the land, and against all costs and expenses 
 in consequence, is an indemnity only against all lawful claims, 
 and a complaint which merely alleges a breach by assigning the 
 bringing of a suit without alleging title in the party prosecuting, 
 will not give a right to recover. Luddington v. Pulver, 6 Wend. 
 404. A guaranty of an act which is illegal is void. Swift v. 
 Beers, 3 Denio, 70. It is a general rule, that where the principal 
 is not liable the surety will not incur a liability. But there are\ 
 exceptions to the rule, and the surety of an infant will be liable ' 
 on his contract, although the infant has the legal right to avail 
 himself of the defense of infancy. 
 
 § 9. Guaranties of Collection or of Payment. 
 
 Guaranties for the payment of debts are sometimes absolute 
 and sometimes conditional. The guaranty may be of collection or 
 it may be of payment. A guaranty of collection is an undertaking 
 to pay the sum secured by the obligation guaranteed, provided the 
 principal is prosecuted to judgment and execution with due dili- 
 gence, and the same cannot be collected of him. Due diligence 
 in exhausting the legal remedies against the principal is a con- 
 dition precedent to any liability against the guarantor. Northern 
 Ins. Co. V. Wright, 76 IST. Y. 445 ; Craig v. Parkis, 40 IST. Y. 181 ; 
 McMurray v. Noyes, 72 'N. Y. 523 ; Jackson v. Decker, 14 App. 
 Div, 415; Schmitz v. Langhaar, 88 IST. Y. 506; Chatham Nat. 
 
PEINCIPAL AND SURETY. 507 
 
 Bank v. Pratt, 40 St. Rep. 789 ; Salt Springs Nat. Bank v. Shan, 
 39 St. Rep. 771 ; 57 Hun, 265 ; Griffith v. Bobertson, 15 Hun, 
 344 ; MoaMey v. Riggs, 19 Johns. 69 ; Thomas v. Woods, 4 Cow. 
 173; Taylor v. Bullen, 6 Cow. 624; Cumpston v. MdNair, 1 
 Wend. 457. The fact that the debtor is insolvent does not affect 
 the rule or excuse the want of due diligence in proceeding against 
 the principal for the collection of the debt. Craig v. Parkis, 40 
 N. Y. 181. It is not necessary for the guarantor to show, in 
 defense of an action based upon such a guaranty, that the guaran- 
 tor was injured or his rights impaired by reason of the want of 
 due diligence in proceeding against the principal debtor. Toles 
 Y. Adee, 91 N. Y. 562. ~Not is it necessary to show, in aid of 
 such defense, a request on the part of the guarantor that the cred- 
 itor proceed against the principal debtor. Ih. 
 
 No definite rule can be laid down as to what constitutes due 
 diligence on the part of the creditor or what degree of laches will 
 furnish thte guarantor with a defense against his obligation. An 
 unexeused delay of five years and six months in bringing an 
 action against the maker of a note will discharge a guarantor of 
 its collection from liability. Tiffany v. Willis, 30 Hun, 266. The 
 granting of additional time to answer by stipulations entered into 
 between the creditor's attorney and the attorney for the debtor in 
 an action brought on the guaranteed demand, or the stipulating 
 for delay in the entry of judgment in such action, is evidence of 
 want of due diligence in the collection of the demand. Salt 
 Springs Nat. Bank v. Sloan, 57 Hun, 265. 
 
 There is a distinction between the case of the guaranty of the 
 collection of an account against the estate of a deceased person 
 and the guaranty of a claim against a living debtor. In the latter 
 case, the law requires the prosecution of the demand to judgment 
 and execution, and in the former it does not. It is sufficient that 
 the creditor used due diligence in availing himself, for the en- 
 forcement of his demand, of such remedies as are authorized in 
 the forum in which he must necessarily or would ordinarily pro- 
 ceed. See Schmitz v. Langhaar, 24 Hun, 168 ; 88 N. Y. 503. 
 
 A guaranty that a note is collectible of the maker, requires the 
 holder to attempt to collect it of such maker before the surety can 
 be made liable on his guaranty. Taylor v. Bullen, 6 Cow. 624; 
 Cumpston v. McNair, 1 Wend. 457. A guaranty in these terms, 
 " I warrant this note good," requires an attempt to collect the de- 
 mand of the maker, by process of law, before the surety is liable. 
 
508 PEINCIPAL AND SURETY. 
 
 Curtis V. Smallman, 14 Wend. 231 ; Cooke v. Nathan, 16 Barb. 
 342 ; Van Derveer v. Wright, 6 Barb. 547. 
 
 So, a guaranty, " I guarantee the collection of the within note," 
 requires the plaintijBf to show diligence in attempting to collect 
 of the indorser and maker, or he cannot recover of the surety. 
 Loveland v. Shepard, 2 Hill, 139 ; MoaMey v. Riggs, 19 Johns. 
 69 ; Burt v. Horner, 5 Barb. 501. Where a party, on transfer- 
 ring a note, guarantees the collection thereof, and the maker, be- 
 fore it becomes due, absconds from the State, leaving no property 
 here, the holder is not bound to follow him out of the State, nor 
 to issue an attachment, or commence any action against him, be- 
 fore suing upon the guaranty. Coohe v. Nathan, 16 Barb. 342 ; 
 White V. Case, 13 Wend. 543. Though, if the maker leaves prop- \ 
 erty in this State, the holder must attempt to collect the debt by 1 
 attachment before the guarantor is liable. 76. But in another 
 case, it was held, that if the debtor resides out of the State at the 
 time of giving the note, and continues to reside there, and has 
 property at the place of his residence, it is the duty of the holder 
 to prosecute him there before he can have recourse to the guaran- 
 tor. Burt V. Horner, 5 Barb. 501. 
 
 An action will not lie on a promise by one to indemnify and 
 save another harmless from all loss which he may sustain in conse- 
 quence of making advances to a third person at the request of the 
 promisor, without showing an ineffectual attempt to coerce pay- 
 ment from the party to whom the advances were made, or that 
 endeavors to collect the money from him would have been use- 
 less, by reason of his insolvency or otherwise. Ward v. Fryer, 
 19 Wend. 494. Where the collection of a promissory note is guar- 
 anteed, the person to whom it is delivered, if the note is unpaid 
 at its maturity, is bound to proceed with prompt diligence to en- 
 force its payment. This is a duty which he owes to the guarantor. 
 If he neglects or violates this duty, he takes upon himself the risk 
 of the collection of the note, and discharges the guarantor. Hart 
 V. Hudson, 6 Duer, 294. He violates this duty if, after commenc- 
 ing a suit against the maker of the note, he discontinues it, and 
 takes from him a new note or other security for its amount, pay- 
 able on a future day, without the consent or knowledge of the 
 guarantor. Ih. 
 
 Where the guaranty is absolute for the payment of the debt,j 
 no evidence need be given that an attempt has been made to col-| 
 lect the amount from the principal debtor. ( 
 
PEINCIPAL AND SUEETY. 509 
 
 The circumstances and the phraseology of each case may be 
 different from that of similar cases, but whenever the guaranty 
 is an absolute one, the surety is liable without any resort to the 
 principal debtor in the first instance. McMurray v. Noyes, 72 
 JSr. y. 523 ; Jackson v. Decker, 14 App. Div. 415 ; Fidelity & 
 Casualiy Co. v. Wells, 49 App. Div. 171. 
 
 Upon a guaranty that " all drafts drawn by A. will be duly 
 honored and paid by me, should he meet with any misfortune 
 that he will not be able to do it himself," the guarantor under- 
 takes to pay the amount of the drafts if A. shall not be able to 
 do it himself. It is not, therefore, necessary for the acceptors 
 to prove that they have exhausted their remedy against A. It 
 is only necessary to show that the drafts were not paid when they 
 became due. Orant v. Hotchkiss, 26 Barb. 63. And see Curtis 
 y. Smallman, 14 Wend. 231; Cooke v. Nathan, 16 Barb. 342; 
 Torry v. Hadley, 27 Barb. 192 ; Bank of New York v. Living- 
 ston, 2 Johns. Cas. 409 ; Mann v. Eckford, 15 Wend. 502 ; Van 
 Rensselaer v. Miller, Hill & Denio, 237 ; Clark v. Burdett, 2 Hall, 
 197. 
 
 If the surety agrees that his principal shall pay on demand, 
 the demand is a condition precedent to his liability. Nelson v. 
 Bostwick, 5 Hill, 37 ; Douglass v. Rathhone, 5 Hill, 143. In case 
 of an absolute unconditional guaranty of payment, no demand of 
 payment of the principal debtor or notice of non-payment, is 
 necessary before action against the guarantor. Brown v. Curtiss, 
 2 K Y. 225 ; Mann v. Eckford's Executors, 15 Wend. 502 ; Doug- 
 loiss V. Howland, 24 Wend. 35 ; Clark v. Burdett, 2 Hall, 217 ; 
 Cordier v. Thompson, 8 Daly, 172 ; Cass v. Shewman, 61 Hun, 
 472. 
 
 The statute of limitations is a valid defense in behalf of a 
 surety, whether the statute operates upon the agreement of the 
 surety or upon the liability of the principal debtor. Neither the 
 principal debtor nor a cosurety can revive a demand, barred by 
 the statute, so as to affect the rights of a surety who took no part 
 in the transaction. Winchell v. Hicks, 18 IST. Y. 558 ; Church v. 
 Howard, 17 Hun, 5 ; Van Kouren v. Parmelee, 2 N. Y. 523 ; 
 Shoemaker v. Benedict, 11 N. Y. 176. JSTor can a surety revive 
 a barred demand against the principal unless the payment was 
 made at the express request of the principal. Ih.; Harper v. 
 Fairley, 53 N. Y. 442, 445. 
 
 Any person who can enforce the principal contract can enforce 
 the guaranty of it. Claflin v. Ostrom, 54 N. Y. 581. A guaranty 
 
510 PKINCIPAL AND SURETY. 
 
 of a bill, note or other obligation is so far assignable as to au- 
 thorize an action in the name of the assignee. Cooper v. Dedrich, 
 22 Barb. 516 ; McLaren v. Watson, 26 Wend. 425 ; Miller v. Gas- 
 ton, 2 Hill, 188. A special guaranty, however, is not assignable 
 until a right of action has arisen thereon, and no cause of action 
 arises thereon, except upon compliance with its conditions bj the 
 person to whom it is addressed. No other person can accept its 
 terms or acquire any advantage therefrom. Evansville Nat. Bank 
 V. Kaufmann, 93 N. Y, 2Y3. 
 
BILLS AND NOTES. 511 
 
 CHAPTER Xin.' 
 
 BILLS OF EXCHANGE AND PROHISSORY NOTES. 
 
 § 1. General Principles and Definitions. 
 
 Formerly the law relating to the subject of bills and notes was 
 found in the rules of the law merchant as declared by the courts, 
 in the provisions of the Eevised Statutes and in acts of the legis- 
 lature passed from time to time and contained in the session 
 laws of this State The provisions of all these statutes were re- 
 pealed in 1897, and an act was passed, forming a part of the 
 General Laws of this State, and known as " The Negotiable Instru- 
 ments Law." General Laws, ch. 50 ; Laws of 1897, eh. 612. 
 
 All negotiable instruments mad© and delivered subsequent to 
 the passage of that act are governed by it, except that in a case 
 not provided for by the act the rules of the law merchant still 
 govern. Laws of 1897, ch. 612, §§ 6, 7; General Laws, ch. 50, 
 §§6,7. 
 
 Bills of exchange and promissory notes are so much alike, in 
 many respects, that a separate discussion of each subject would 
 lead to a useless repetition. For that reason they will be treated 
 of together, though the peculiarities of each will be pointed out 
 with distinctness. In the first place a definition will be given of 
 the more important terms which are used in relation to bills and 
 notes. In this definition nothing more is intended to be stated 
 than merely to define the terms employed. But in a subsequent 
 place, the rights and duties of the parties to a bill or note will be 
 discussed and illustrated by a reference to the adjudged eases. 
 
 A bill of exchange is a written order or request by one person 
 to another, for the payment of a particular sum of money at a 
 specified time, absolutely and at all events, to the person named 
 in the bill as payee. Or, as defined by the statute, " a biU of 
 exchange is an unconditional order in writing addressed by one 
 person to another, signed by the person giving it, requiring the 
 person to whom it is addressed to pay on demand or at a fixed 
 or determinable future time, a sum certain in money to order or 
 to bearer. General Laws, ch. 50, § 210. 
 
 A bill may be addressed to two or more drawees jointly, whether 
 they are partners or not, but not to two or more drawees in the 
 alternative or in succession. Id. § 212. 
 
512 BILLS AND NOTES. 
 
 An inland bill of exchange is a bill which is, or on its face 
 purports to be, both drawn and payable within this State. Any 
 other bill is a foreign bill. Unless the contrary appears on the 
 face of the bill the holder may treat it as an inland bill. Id. 
 § 313. 
 
 A bill of exchange is sometimes termed a draft in popular 
 language. Both names signify the same thing, and the same rules 
 of law are applicable to the instrument, by whatever name it may 
 be called. 
 
 A promissory note is a written promise by one person for the 
 payment of money to another person therein named, at another 
 specified time, absolutely and at all events. Within the meaning 
 of the Negotiable Instruments Law, a negotiable promissory note 
 is an unconditional promise in writing made by one person to 
 another signed by the maker engaging to pay on demand or at 
 a fixed or determinable future time, a sum certain in money to 
 order or to bearer. When drawn to the maker's own order it 
 is not complete until indorsed by him. Id. § 320. 
 
 A chech is a bill of exchange drawn on a bank payable on de- 
 mand. Id. § 321. 
 
 A bank bill or note is simply a promissory note, made and is- 
 sued by a bank or banker, payable to the bearer on demand. 
 
 Bills and notes are divided into those which are negotiable, and 
 th'ose which are not negotiable. A negotiable instrument is one 
 which may be transferred by indorsement, or delivery, so as to 
 give a right of action to the person to whom it is so indorsed or 
 delivered in his own. name, and upon the instrument so transr 
 f erred. 
 
 The term negotiable instrument has a definite signification in 
 the law merchant. And the meaning of the term has not been 
 changed by the Code. A note payable in chattels may now be 
 assigned, and the assignee may enforce its collection in his own 
 name; but, that fact will not render the note a negotiable one. 
 
 For all purposes, and as to all the rights of the parties to bills 
 and, notesi, the law in relation to negotiability remains unchanged, 
 except in the single fact that actions may now be brought in the 
 name of the party interested in them. 
 
 In a bill of exchange, there are usually three original parties, 
 the drawer, the payee, and the drawee, who, after acceptance, 
 becomes the acceptor. In a promissory note, there are but two 
 original parties, the maker and the payee. In a bill of exchange 
 the acceptor is, in contemplation of law, the primary debtor. 
 
BILLS AND NOTES. 513 
 
 "When a negotiable note has been indorsed by the payee, then 
 there occurs a striking resenablance in the relations of the parties 
 upon both instruments, although they are not in all respects iden- 
 tical. The indorser of a note stands in the same relation to the 
 subsequent parties to it as the drawer of a bill; and the maker 
 of a note is under the same liabilities as the acceptor of a bill. 
 The maker is the principal debtor in a promissory note, who signs 
 it as such on the face of the note, and promises to pay it when 
 due. 
 
 The payee is the person to whom a promissory note is made 
 payable, or the person in whose favor a bill of exchange is drawn. 
 
 An indorser is one who writes his name on a bill of exchange, 
 or a promissory note, or other negotiable paper. He undertakes 
 to be responsible to the holder for the amount of the bill or note, 
 if the latter shall make a legal demand of the payer, and in de- 
 fault of payment give proper notice to such indorser. An in- 
 dorsee is the person in whose favor an indorsement is made. 
 
 The holder of a bill of exchange or of a promissory note, is the 
 person who is legally in possession of it, either by indorsement 
 or delivery, or both, and entitled to receive payment either from 
 the drawer or acceptor, or the maker. 
 
 The draiuer is the person who makes a bill of exchange. The 
 drawee is the person to whom a bill of exchange is addressed, and 
 who is requested to pay the amount of money therein mentioned. 
 
 The acceptor is the person who agrees to pay a bill of exchange 
 drawn upon him. Acceptance is the act by which the drawee or 
 other person evinces his assent or intention to comply with, and 
 be bound by the request contained in a bill of exchange to pay 
 the same ; or, in other words, it is an engagement to pay the bill 
 when due. See Laws of 1897, ch. 612, § 220 ; General Laws, 
 ch. 50, § 220. An indorsement is the act of writing the indorser's 
 name upon the back of a bill of exchange or a promissory note. It 
 also signifies the writing of the indorser. See id. § 2. 
 
 An illustration of the use of a bill of exchange may render the 
 subject more intelligible. If A., living in New York, wishes to 
 receive one thousand dollars, which await his orders in the hands 
 of B., in London, he applies to C, going from New York to Lon- 
 don, to pay him one thousand dollars, and take his draft on B. 
 for that sum, payable at sight. 
 
 This is an accommodation to all parties, A. receives his debt 
 for transferring it to 0., who carries his money across the Atlan- 
 tic in the shape of a bill of exchange, without any danger or risk 
 33 
 
514 BILLS AND NOTES. 
 
 in the transportation; and on his arrival at London, he presents 
 the bill to E. and is paid. This illustration introduces all the 
 parties to a bill of exchange. A., who draws the bill, is called 
 the drawer; B., to whom it is addressed, is called the drawee, and 
 on acceptance he becomes the acceptor; C, to whom the bill is 
 made payable, is called the payee. As the bill is payable to C. 
 or his order, he may, by indorsement, direct the bill to be paid to 
 D., and in that case C becomes the indorser, and D., to whom the 
 bill is indorsed, is called the indorsee or holder. It is important 
 to be remembered that the acceptor of a bill of exchange is the 
 principal debtor, while the indorsers are regarded as mere sure- 
 ties, and even the drawer of the bill is regarded as a mere surety 
 for the acceptor. The maker of a note and the acceptor of a bill 
 are always the principal debtors so far as the holder of the paper 
 is concerned. The holder, however, may recover the amount of 
 the bill of either or all the parties to it, unless he is himself a 
 party, when he may recover against all who are liable on the 
 paper prior to himself, though he cannot recover as against those 
 who becomes parties to it subsequently to himself, unless there is 
 some special agreement to authorize it. 
 
 The definition and meaning of the terms used in the Negotiable 
 Instruments Law are given, in part, in article I of that act ; other 
 definitions are scattered through the subsequent articles. 
 
 § 2. Parties to a Bill or Note. 
 
 A bill or note is a contract, and the assent of the parties is as 
 requisite in making such a contract as in making any other. There 
 must be legal capacity to assent or the contract will not be bind- 
 ing. See ante, p. 30. The presumption is that all persons are 
 capable of contracting, unless they are declared incapable by law. 
 The disability or want of legal capacity is an exception to the 
 general rule, and it must be pleaded and established by evidence 
 to be available as a defense to an action on a bill or note. 
 
 As a general rule, every person who is capable of making a 
 valid contract in relation to other matters is equally capable of 
 making a valid bill or note. There may be some exceptions to the 
 rule, though they are not numerous. 
 
 The parties to a bill or note may be limited to those whose names 
 appeared thereon at the time of its inception, or may include others 
 who have subsequently become parties and have acquired certain 
 rights in the instrument, or have assumed some form of liability 
 
BILLS AND NOTES. 515 
 
 in respect thereto. Persons who become parties to the instrument 
 after its execution and delivery as a completed instrument acquire 
 their rights or assume their liabiltiea by means of some form of 
 collateral contract, either expressed in terms or implied by law. 
 A party may be primarily liable on the instrument or only second- 
 arily liable. A person is primarily liable on an instrument when, 
 by its terms, he is absolutely required to pay it. He is secondarily 
 liable when not absolutely required by the terms of the instrument 
 to pay it. More than in any other form of contract, the relations 
 of the parties to a negotiable instrument and to each other are 
 subject to change. The payee of a promissory note, who, at the 
 time of its execution, was entitled to receive the moneys thereby 
 promised to be paid, may, by the mere placing of his name on the 
 back of the note and the delivery of the same in that form to a 
 third person, transfer all his rights to the money secured to this 
 stranger to the instrument, and, at the same time and by the same 
 act, incur a conditional liability for its payment. The promisee 
 in this manner become a promissor, and a stranger is substituted 
 in his place in the contract, with the same right to enforce it as 
 the original party. In a certain sense, the payee has ceased to 
 be a party to the note, and has become only a party to the con- 
 tract of indorsement, yet, in ordinary parlance, all persons are 
 termed parties to a note who are entitled to the money secured 
 thereby or liable for its payment, whether by original or subse- 
 quent contract. 
 
 § 3. Form and Requisites of Negotiable Instruments. 
 
 There are certain presumptions recognized by the law in aid of 
 negotiable instruments not accorded to instruments not negotiable. 
 It is, therefore, important to distinguish between these two classes 
 of instruments, and to determine at the outset what instruments 
 are negotiable and what instruments are not. 
 
 The form and requisites of negotiable instruments are pre- 
 scribed in this State by statute, as follows : "An instrument to be 
 negotiable must conform to the following requirements : 
 
 1. It must be in writing and signed by the maker or drawer. 
 
 2. Must contain an unconditional promise or order to pay a 
 sum certain in money; 
 
 3. Must be payable on demand, or at a fixed or determinable 
 future time ; 
 
 4. Must be payable to order or to bearer ; and 
 
516 BILLS AJSTD JN^OTES. 
 
 5. Where the instrument is addressed to a drawee, he must be 
 named or otherwise indicated with reasonable certainty." Laws 
 of 1897, ch. 612, § 20 ; General Laws, ch. 50, § 20. 
 
 As to what constitutes certainty as to sum, the act provides: 
 " The sum payable is a sum certain within the meaning of this 
 act although it is to be paid: 1. With interest; or 2. By stated 
 installments; or 3. By stated installments, with a provision that 
 upon default in payment of any installment or of interest, the 
 whole shall become due; or 4. With exchange, whether at a fixed 
 rate or at the current rate; or 5. With costs of collection or an 
 attorney's fee, in case payment shall not be made at naaturity." 
 Id. § 21. 
 
 "An unqualified order or promise to pay is unconditional within 
 the meaning of this act, though coupled with : 1. An indication 
 of a particular fund out of which reimbursement is to be made, 
 or a particular account to be debited with the amount; or 2. A 
 statement of the transaction which gives rise to the instrument. 
 But an order or promise to pay out of a particular fund is not 
 imconditional." Id. § 22. 
 
 As to what constitutes determinable future time, the statute 
 declares that an instrument is payable at a determinable future 
 time within the meaning of the act, which is expressed to be pay- 
 able : 1. At a fixed period after date or sight ; or 2. On or before 
 a fixed or determinable future time specified therein ; or 3. On or 
 at a fixed period after the occurrence of a specified event which 
 is certain to happen, though the time of happening be uncertain. 
 It also declares that an instrument payable on a contingency is 
 not negotiable, and the happening of the event does not cure the 
 defect. Id. § 23. 
 
 An instrument which contains an order or promise to do any 
 act in addition to the payment of money is not negotiable. . But 
 the negotiable character of an instrument otherwise negotiable is 
 not affected by a provision which authorizes the sale of collateral 
 securities in case the instrument is not paid at maturity; or au- 
 thorizes a confession of jtidgment if the instrument is not paid 
 at maturity; or waives the benefit of any law intended for the 
 advantage or protection of the obligor ; or gives the holder an 
 election to require something to be done in lieu of the payment of 
 money. Id. § 24. 
 
 The validity and negotiable character of an instrument are 
 not affected by the fact that it is not dated; or that it does not 
 
BILLS AND NOTES. 517 
 
 specify the value given, or that any value has been given therefor ; 
 or does not specify the place vs^here it is drav^n or the place v?here 
 it is payable; or bears a seal; or designates a particular kind of 
 current money in which payment is to be made. Id. § 25. But 
 nothing in the section cited alters or repeals any statute requiring 
 in certain cases the nature of the consideration to be stated in the 
 instrument. lb. 
 
 An instrument is payable on demand where it is expressed to 
 be payable on demand, or at sight, or on presentation ; or in which 
 no time for payment is expressed. Where an instrument is issued, 
 accepted or indorsed when overdue, it is, as regards the person so 
 issuing, accepting or indorsing it, payable on demand. Id. § 26. 
 
 The instrument is payable to order where it is drawn payable 
 to the order of a specified person or to him or his order. It may 
 be drawn payable to the order of a payee who is not maker, drawer 
 or drawee ; or the drawer or maker ; or the drawee ; or two or more 
 payees jointly ; or one or some of several payees ; or the holder of 
 an office for the time being. Where the instrument is payable to 
 order, the payee must be named or otherwise indicated with rea- 
 sonable certainty. Id. § 27. 
 
 The instrument is payable to bearer when it is expressed to 
 be so payable ; or, when it is payable to a person named therein or 
 bearer; or, when it is payable to the order of a fictitious or non- 
 existing person, and such fact is known to the person making it so 
 payable; or, where the name of the payee does not purport to be 
 the name of any person ; or, where the only or last indorsement is 
 an indorsement in blank. Id. § 28. 
 
 The instrument need not follow the language of the statute, 
 and any terms will be sufiicient which clearly indicate an inten- 
 tion to conform to the requirements of the act. Id. § 29. 
 
 Although the statute requires the instrument to be in writing, 
 it also declares that " written " includes printed, and " writing " 
 includes print. Id. § 2. 
 
 These provisions of the statute contain in a comparatively small 
 space much of the lore concerning the requisites of negotiable in- 
 struments to be found scattered through the reports, and render 
 a general citation of authorities unnecessary. 
 
 A convenient method of considering the requisites of such in- 
 struments, and the principles which govern their construction, 
 will be to give examples of some of the forms of those which are 
 in common use. The law does not require that any particular 
 
518 BILLS AND NOTES. 
 
 form of words shall be adopted, but merely that such language 
 shall be employed as will make a valid instrument. And in com- 
 mon practice there is quite a diversity in the forms employed by 
 different persons. And now first, in relation to bills of exchange, 
 or drafts, as they are sometimes called. 
 
 , BILL OF EXCHANGE. 
 
 $1,000. Albany, August 27, 1864. 
 
 Sixty days after date, pay to A. B., or order, one thousand dol- 
 lars, and charge the same to my account. C. D. 
 
 To E. F. Mekchant, Gloversville, N. Y. 
 
 Instead of being payable sixty days after date, the time speci- 
 fied may be any other number of days, or it may be " at sight," 
 or " ten days after sight," or " on demand." So it may be made 
 payable " to bearer," instead of being payable to the order of the 
 payee, or to the order of the drawer himself, or to the payee with- 
 out words of negotiability. It may be addressed to two or more 
 drawees jointly, whether partners or otherwise; and instead of 
 directing that the sum specified be charged to the account of the 
 drawer generally may indicate the particular fund to be debited 
 with the amount. Kelley v. Mayor, etc., 4 Hill, 263 ; Schmittler 
 V. Simon, 101 N. T. 554. But an order to pay out of a particu- 
 lar fund is not unconditional (General Laws, ch. 50, § 22), and 
 the writing is not a bill of exchange. See Hunger v. Shannon, 
 61 ]Sr. Y. 251 ; Ehrichs v. De Mill, 75 N. Y. 370 ; Brill v. Tuttle, 
 81 N. Y. 454; Van, Wagner v. Terrett, 27 Barb. 181; Schmittler 
 V. Simon, 101 N. Y. 554; American Boiler Co. v. Fontham, 34 
 App. Div. 294. The mere mention of a fund in a draft does not 
 necessarily deprive it of the character of negotiable paper; it is 
 only where there is a direction, express or implied, to pay it from 
 the fund, and not otherwise, that it will have that effect. Schmitt- 
 ler V. Simon, 101 N. Y. 554. 
 
 The drawer of a bill and any indorser may insert thereon the 
 name of a person to whom the holder may resort in case of need, 
 that is to say, in case the bill is dishonored by non-acceptance or 
 non-payment. Such person is called the referee in case of need. 
 It is in the option of the holder to resort to the referee in case of 
 need or not, as he may see fit. General Laws, ch. 50, § 215. 
 
 Where, in a bill, the drawer and drawee are the same person, 
 or where the drawee is a fictitious person, or a person not having 
 capacity to contract, the holder may treat the instrument, at his 
 
BILLS AND NOTES. 519 
 
 option, either as a bill of exchange or a promissory note. Id. 
 § 214. 
 
 An instrument in the form of a bill of exchange, drawn upon 
 a joint-stock bank by the manager of one of its branch banks by 
 order of the directors, may be declared upon as a promissory note. 
 Miller v. Thomson, 3 Man. & Grang. 576. So, an order drawn 
 by the president of a railroad corporation upon its treasurer, di- 
 recting the latter to pay A. B., or order, a specified sum, stated 
 as being the amount due A. B. for work done by him as contractor, 
 in building a section of the railroad of the corporation, is in 
 effect a promissory note, and may be declared on as such. Pair- 
 child V. Ogdenshurgh, &c., B. E., 15 N. T. 337. So, an instru- 
 ment signed by the mayor and clerk of a city, and countersigned 
 by the comptroller, addressed to the treasurer, directing the pay- 
 ment to A., or order, of a specified sum '' out of local fund when 
 collected or realized from tax sales for completing the grading of 
 H. street," is in legal effect a non-negotiable promissory note. 
 Bead v. City of Buffalo, 67 Barb. 526. See Bull v. Sims, 23 
 N. T. 570. 
 
 Such instruments, having no resemblance in form to promis- 
 sory notes, and owing their classification as such to a forced con- 
 struction requiring the placing of an evidently intended obliga- 
 tion somewhere in the list of recognized undertakings, are not to 
 be followed as precedents'. 
 
 The form of negotiable promissory note here given is not the 
 only one in common use, and may be departed from in many par- 
 ticulars without impairing its validity or negotiability. 
 
 PEOMISSORY NOTE. NEGOTIABLE. 
 $100. 
 
 Thirty days after date, I promise to pay A. B., or bearer (or 
 order), one hundred dollars, for value received (with interest). 
 
 Albany, August 27, 1864. 0. D. 
 
 The note would be equally valid and equally negotiable if not 
 dated, and if the place where made had been omitted. General 
 Laws, ch. 50, § 25 ; Mitchell v. Culver, 7 Cow. 336 ; Page v. Mor- 
 rell, 3 Abb. Ot. App. 433 ; 3 Keyes, 117 ; 33 How. 244. If the 
 note is dated, the date stated is deemed prima facie the true date 
 of the making of the instrument. General Laws, ch. 50, § 30. If 
 a note or bill is not dated, it will be considered to be dated as of 
 
520 BILLS AND NOTES. 
 
 the time it was issued, that is, as of the time of its first delivery, 
 complete in form, to a person who takes it as a holder. Id. §§ 2, 
 36; Hall v. Wilson, 16 Barb. 548. A bill or note is not in- 
 valid for the reason only that it is ante-dated or post-dated, pro- 
 vided this is not done for an illegal or fraudulent purpose. The 
 person to whom an instrument so dated is delivered acquires the 
 title thereto as of the date of delivery. General Laws, ch. 50, 
 § 31. See Godin v. Bank of Commonwealth, 6 Duer, 76, 82 ; 
 Brewster v. McCardell, 8 Wend. 4Y8 ; Mayer v. Mode, 14 Hun, 
 155 ; Pasmore v. North, 13 East, 517. When an instrument ex- 
 pressed to be payable at a fixed period after date is issued un- 
 dated, or where the acceptance of an instrument payable at a 
 fixed period after sight is undated, any holder may insert therein 
 the true date of issue or acceptance, and the instrument will be 
 payable accordingly. The insertion of a wrong date does not 
 avoid the instrument in the hands of a subsequent holder in due 
 course; but, as to him, the date so inserted is to be regarded as 
 the true date. General Laws, ch. 50, § 32 ; Laws of 1897, ch. 
 612, § 32. 
 
 A promissory note may be executed by one person only or by 
 several persons. If made by more than one person, the makers 
 may contract for a joint liability or for a joint and several lia- 
 bility. 
 
 JOINT AND SEVERAL NOTE. NEGOTIABLE. 
 $100. 
 
 Sixty days after date, for value received, we, or either of us, 
 promise to pay A. B., or bearer (or order), one hundred dollars, 
 with interest. C. D. 
 
 Albany, August 27, 1864. E. E. 
 
 By the omission of the words " or either of us " from the above 
 form, the note becomes a joint obligation. Where an instrument 
 containing the words " I promise to pay " is signed by two or more 
 persons, they are deemed to be jointly and severally liable thereon. 
 General Laws, ch. 50, § 36 ; Coonley v. Wood, 36 Hun, 559. 
 
 NOTE PAYABLE AT A BANK. 
 
 $200. 
 
 Sixty days after date, for value received, I promise to pay A. B., 
 or order, two hundred dollars at the Montgomery County Bank 
 Johnstown. Q_ j)_ 
 
 Albany, August 27, 1864. 
 
BILLS AND NOTES. 521 
 
 The addition of the place of payment adds nothing to and takes 
 nothing from the validity or negotiability of the note. Laws of 
 189Y, ch. 612 ; § 25 ; General Laws, ch. 50, § 25. 
 
 Specifying the payee or drawee. — Every valid promissory note 
 requires a competent maker, who can make a valid legal promise 
 to pay the money. So, every bill of exchange must be accepted 
 by a person who is legally capable of making such a contract. 
 There must also be a proper person to whom a note is made pay- 
 able; and there must not be any uncertainty as to the person to 
 whom it is payable. If no payee is named, or if no person is des- 
 ignated, so that there is no person specified as payee, the note will 
 be void. A note read thus, " I promise to pay to the secretary for 
 the time hemg of the Indian, etc.. Society," and it was held void 
 because no person was designated as payee. Storm v. Stirling, 
 3 Ell. & Bla. 832 ; S. C, Cowie v. Storm, 6 Ell. & Bla. 333. The 
 principle of this decision is, that the note was not payable to the 
 person who was secretary at the time when the note was made, 
 but to some unknown person who might be secretary at a future 
 time, when the note was payable, which was nine months after 
 date. But see General Laws, ch. 50, § 27. 
 
 A bill of exchange was drawn in this form : " Six months after 
 date pay to the order of the treasurer for the time beirvg of the 
 Commericial Travelers' Benevolent Institution, the sum of twenty 
 pounds for value received." This bill was held to be void, and 
 the court said : " I think the true construction of the instrument 
 is, that the acceptor undertakes to pay the amount to the order of 
 the person whoever he may be, who at the time of the maturity 
 of the bill shall be the treasurer of the institution. I take it, that, 
 in order to constitute a valid bill of exchange, it is essential that 
 there should be a drawer, a drawee and a payee; and although 
 the payee need not be expressly designated by name, still it is 
 essential to the validity of the bill, that he shall be a person who I 
 is capable of being ascertained at the time the bill is accepted. 
 He cannot be a person who is not ascertainable at that time, con- 
 sequently, the payee not being an ascertained person at the time 
 of the acceptance, the instrument here sued on is not a valid bill 
 of exchange." Yates v. Nash, 8 J. Scott, 581, 586. 
 
 The cases just cited are distinguishable from another class of 
 cases which seem to be quite similar. If the note or bill is pay- 
 able to some person who is designated by name, it will be valid, 
 although payable also to some other person as his successor in 
 
522 EILLS AND NOTES. 
 
 office. A note was written in this form : " Twelve months after 
 date, I promise to pay to Joseph M. White, Charles A. Davis and 
 Louis McLane, Trustees of the Apalachicola Land Company, or 
 their successors in office, or order," etc. ; and this note was held 
 valid. Davis v. Garr, 6 N. Y. 124. 
 
 In this case there were payees designated by name to whom 
 the note might be paid. And, in case of a change of officers, the 
 note would be in legal effect payable to their successors. The con- 
 tract was complete and legal at the time when it was made, and 
 if any change subsequently occurred as to the persons to whom 
 it became payable, that would not invalidate the note. And see 
 The King v. Box, 6 Taunt. 325. But a note which is payable in 
 the alternative is not negotiable within the statute, as, for in- 
 stance, if it is made payable to A., or to B. and C. Blanckenhagen 
 V. Blundell, 2 Barn. «& Aid. 417. Such a note cannot be declared 
 on as a promissory note within the statute. If, however, it pur- 
 ports on its face to be for value received, the setting forth of the 
 note according to. its terms, is a sufficient statement of the con- 
 sideration to enable the plaintiff to recover as on a contract. Wal- 
 rad V. Petrie, 4 Wend. 575 ; Jerome v. Whitney, 7 Johns. 321 ; 
 Taplin v. Packard, 8 Barb. 220. 
 
 I A note payable to an " assembly or their treasurer," is not to 
 1 be construed as payable to the order of one of two or more per- 
 Isons, but as declarative of the agent by whom the payee is to re- 
 ceive the money promised. Wells v. Monihan, 35 St. Rep. 494. 
 
 The statute requires that where a negotiable instrument is 
 drawn payable to order the payee must be named or otherwise in- 
 dicated therein with reasonable certainty. General Laws, ch. 50, 
 § 27. When it is drawn payable to the order of a fictitious or 
 non-existing person, and such fact was known to the person mak- 
 ing it so payable, or when the name of the payee does not pur- 
 port to be the name of any person, it is payable to bearer. Id. 
 § 28. See Jones v. Home Furnishing Co., 9 App. Div. 103 ; 
 Lewisohn v. Kent & Stanley Co., 87 Hun, 257; Plets v. Johiv- 
 son, 3 Hill, 112 ; Stevens v. Strong, 2 Sandf. 138. 
 
 Where a bill or note is payable otherwise than to the bearer, it 
 must contain the name of the payee. A promise to pay a given 
 sum on demand for value received, without saying to whom, is 
 mere waste paper. Douglass v. Wilheson, 6 Wend. 637, 644; 
 Gibson V. Minet, 1 H. Bla. 609, 610, Eyre Ch. B. But a note 
 which is made payable to the person who should thereafter in- 
 dorse it, is negotiable. United States v. White, 2 Hill, 59. 
 
BILLS AND NOTES. 523 
 
 The court said, page 61 : " The maker of a note may bind him- 
 self to the bearer generally; and a promise to pay such bearer 
 as shall come to the possession of the note in any given mode, is 
 but a more limited exercise of the same power. It is like making 
 a note payable in blank, which may be filled up by a bona fide 
 holder with his own name; indeed, it is but a more enlarged 
 form of the ordinary promise to the payee or order, or the order 
 of the payee. If it could have effect in no other way, we should 
 hold it payable to bearer generally, like a bill payable to a ficti- 
 tious payee or order." A bank check which is made payable 
 " to the order of bills payable," or " to the order of 1658," can- 
 not be passed by an indorsement, and it is therefore, in judgment 
 of law, payable to bearer. It stands upon the same ground as a 
 check payable to the order of a fictitious person. Willets v. Phoe- 
 nix Bank, 2 Duer, 121 ; Gibson v. Minet, 1 H. Bla. 569. And see 
 Leonard v. Mason, 1 Wend. 522 ; O'Donnell v. Smith, 2 E. D. 
 Smith, 124. A bill or note payable " to the bearer, B. C," is 
 not payable to bearer generally, and therefore is not negotiable 
 unless indorsed by the person named. Bloomingdale v. Butchers 
 and Drovers' Bank, 33 Misc. 594. 
 
 A bill or note which is made payable to the order of may 
 
 be filled up by any bearer, with his own name, if he can show 
 that he came regularly by it. Crutchley v. Mann, 5 Taunt. 529 ; 
 Crutchley v. Clarence, 2 Maule & Selw. 90 ; Atwood v. Griffin, 2 
 Oarr. & Payne, 368. When a bill or note is issued with a blank 
 for the name of the payee, a bona fide holder has authority to 
 insert his name in such blank. Ih. If a promissory note is made 
 payable to A. B., generally, it is prima facie evidence of a promise 
 to A. B., the father, and not to A. B., the son, if the names are 
 the same; but if A. B., the younger is in possession of the note, 
 he may recover upon it. Sweeting v. Fowler, 1 Stark. 106. 
 
 A mistake in the name of the payee, or a misdescription of it, 
 will not invalidate a bill or note, if the evidence leaves' no doubt 
 as to the intended payee. The King v. Box, 6 Taunt. 325 ; Stevens 
 V. Strong, 2 Sandf. 138. 
 
 The promise to pay. — The statute makes an unconditional 
 promise to pay a requisite of a negotiable note and declares what 
 promises are such. General Laws, ch. 50, §§ 20, 22. 
 
 It is niot necessary that a writing should contain a promise to 
 pay, expressed in terms, in order to give it the character and 
 effect of a promissory note. A written statement that a certain 
 amount of money is due a payee therein named, followed by the 
 
524 BILLS AND NOTES. 
 
 signature of the maker of the statement, implies that the mone}" 
 is due from the maker and is an indebtedness from him to the 
 person to Avhom the money is thus acknowledged to be due. The 
 acknowledgment of the indebtedness, and that it is due, implies 
 a promise to pay it on demiand. The statement is, therefore, a 
 promissory note. Kimball v. Huntington, 10 Wend. 675 ; Hege- 
 man v. Moon, 131 N. Y. 462. 
 
 An ordinary due bill in the following form : " Due A. B. one i 
 hundred dollars payable on demand," is a valid promissory note I 
 within the statute, if signed by the maker. Kimball v. Hunting- 
 ton, 10 Wend. 675; Luqueer v. Prosser, 1 Hill, 256. Or it is 
 valid if in this form : " Due A. B. or bearer, one day from date, 
 one hundred dollars, for value received." Russell v. Whipple, -1 
 Cow. 536. So of a due bill thus: " Due A. B., or bearer, one 
 hundred dollars, for value received, with interest, at L.'s office, 
 in R.," and not specifying any time of payment. Sackett v. 
 Spencer, 29 Barb. 180. No time of payment being specified, the 
 law declares it to be payable immediately. lb. 
 
 So an instrument in these words: " Six months from date I 
 guaranty to pay," etc., is a valid note. Bruce v. Westcott, 3 Barb. 
 374. So of an agreement to be accountable for a specified sum. 
 Morris r. Lee, 1 Strange, 629; S. C, 2 Ld. Raym. 1396; 8 Mod. 
 362. 
 
 An instrument which promises to pay a specified sum of money 
 to A. B., or order, or bearer, is a valid promissory note, although 
 it contains a clause which authorizes the payee or holder to accept 
 or claim something besides money in payment. And, therefore, 
 an instrument by which a railroad corporation promises to pay, 
 at a specified place, to A. B. or order, a given sum, with interest, 
 with a privilege of retiiming the note within a given time, and 
 receiving stock in exchange for it, is a negotiable promissory 
 note. Hodges v. Shuler, 22 N. Y. 114; 8. C, 24 Barb. 68. 
 
 So of an instrument by which the maker promises to pay to 
 A. B., or order, for value received, a specified sum, at the maker's 
 store, four months after date, or in gooda on demand. Hosstatter 
 V. Wilson, 36 Barb. 307. In these cases the notes promise uncon- 
 ditionally to pay a specified sum of money, and the maker has 
 no option about it, and, therefore, the promise is not in the 
 alternative so far as the maker is concerned. The fact that the 
 payee or holder has an option to accept payment in something 
 else than money does not change the character of the promise to 
 pay money. The fact that the instrument gives the holder an 
 
BILLS AND NOTES. 525 
 
 election to require something to be done in lieu of payment of 
 money, does niot affect th« negotiable character of an oitherwise 
 negotiable instrument; but it would be otherwise if the instru- 
 ment contained an order or promise to do any act in addition to 
 the payment of money. General Laws, ch. 50, § 24. 
 
 Bills and notes may be payable in money alone, and may still 
 contain clauses which will render them non-negotiable under the 
 statute. A note which promises to pay money, and also to do 
 some other act, is not negotiable. A note promised to pay twenty- 
 five dollars to the payee of it; and it contained this additional 
 clause, " I am to insure one span of colts from my horse to Mr. 
 Cheesebrough's sorrel mares this season, for ten dollars and fifty 
 cents," it was held, that the note was not negotiable, and that 
 any person, other than the payee, who sought to recover upon it 
 must prove an assignment of the note to him. Austin v. Burns, 
 16 Barb. 643. So, an instrument Avhieh directs B. to pay to C, 
 or bearer, a specified sum, and take up A.'s note for that amount, 
 is not a bill of exchange, althiough accepted in writing by B. 
 Cook V. Satterlee, 6 Cow. 108. And a note, in which the maker 
 promises to pay a certain sum of money, at a particular day, and 
 also to deliver up horses and a wharf, is not negotiable. Martin 
 V. Chauntry, 2 Strange, 1271. So, a note which agrees to pay a 
 certain sum, with interest, and also to pay a debt of uncertain 
 amoimt which the payee owed, as part payment of interest, is 
 not negotiable. Bolton v. Dugdale, 4 Barn. & Ad. 619. A 
 promise was in writing as follows : " I agree to pay D. six 
 hundred and ninety-five pounds at four installments, viz., the first 
 on," etc., " being two hundred pounds," and so on, specifying 
 three others, the four amounting to six hundred pounds ; " the 
 remaining ninety-five pounds to go as a set-off for an order of 
 E. to T., and the remainder of his debt owing from D. to him ; " 
 it was held that this was not a promissory note, for such a note 
 must be entire, and this ins'trument contained a promise to pay, 
 joined with an agreement to do so^mething else. Davies v. 
 Wilkinson, 10 Ad. & Ellis, 98. 
 
 The promise of the maker ought to be unconditional as to all 
 the principals in the note. A note was made in this form : " I, 
 John Oorner, promise to pay to Absalom Ferris the sum of fifty 
 pounds, with lawful interest for the same, or his order, at six 
 months' notice. Dated this 24th June, 1808. John Corner, or 
 else Henry Bond." It was held that no action would lie against 
 Henry Bond on this note. The court said : " This is not a promis- 
 
626 BILLS AND NOTES. 
 
 sory note by this defendant witkin the statute of Anne. it 
 operates differently as to the two parties. It isi an absolute 
 undertaking on the part, of Corner to pay, and it is oonditional 
 only on the part of the defendant, for he imdertakes to pay only 
 in the event of Comer's not paying." Ferris v. Bond, 4 Barn. & 
 Aid. 679, 681. 
 
 A note which contains a promise to pay a sujn certain, if the 
 maker's brother does not, within six weeks, is not good as a 
 promissory note. Appleby v. BiddulpTi, 8 Mod. 363. The prin- 
 ciple of these decisions is, that the promise of the makers must be 
 an absolute, not a oonditional one. But, there are other oases in 
 whicih a party signs his name below the principal, and then aidds 
 the word " surety " to his name. Such a note is held to be valid, 
 and an absolute promise to pay the amount to the payee or holdei-, 
 both as to the principal, and as to the person who thus writes 
 " surety " to his name. Wright v. Oarlinghouse, 26 IS. Y. 539 ; 
 Butler V. Rawson, 1 Denio, 105 ; Black v. Caffe, 7 IST. Y. 281 ; 
 Griffith V. Reed, 21 Wend. 502. A partnership note miay be 
 signed in the name of the firm. But where several persons, who 
 are not partners, m'ake a note, it ought tQ be signed by each of 
 the individual makers in his own name. 
 
 A bill of exchange or a promissory note, to be negotiable under 
 the statute, must be payable in money alone. If made payable 
 in any kind of property, it will not be a negotiable instrument, 
 under the statute, although it may be a valid contract, which may 
 be enforced by an action. There has been in the past no little 
 discussion as to the effect of specifying in a bill or note the par- 
 ticular kind of money in which it was payable. See Lieber v. 
 Goodrich, 5 Cow. 186; Thompson v. Sloan, 23 Wend. 71, 74; 
 Berry v. Robinson, 9 Johns. 120 ; Judah v. Harris, 19 Johns. 
 144; Little v. Phoenix Bank, 2 Hill, 425; 7 Hill, 359; Kelly v. 
 Ferguson, 46 How. 411 ; Chrysler v. Renois, 43 N. Y. 209. These ' 
 cases have lost much of their importance since the enactment of 
 the statute declaring that the validity and negotiable character of 
 an instrument are not affected by the fact that it designates a 
 particular kind of current money in which payment is to be 
 made. General Laws, oh. 50, § 25. 
 
 An order drawn by A. in favor of B., upon another, for A.'s 
 goods, or the proceeds of his goods, in the hands of the dtrawer, 
 is not a bill of exchange, nor equivalent to a bill of exchange. 
 Atkinson v. Manks, 1 Cow. 692. So, an order drawn by a land- 
 lord on his tenant, to pay to a person specified, the rents which 
 
BILLS AND NOTES. 527 
 
 liad accrued during a certain time, is not a negotiable bill re- 
 quiring a written acceptance, because it is not for the payment of 
 money only, since it might be payable in something else thian 
 money, and besides it is drawn upon a particular fund. Morton 
 V. Naylor, 1 Hill, 583. 
 
 A note may, by its terms, be made payable in install- 
 ments at a specified time, or it may be made payable by 
 installments payable in such sums and at such times as they may 
 be called for, as in the case of notes given for plankroad stock 
 or similar instances. Dutchess Cotton Manuf. v. Davis, 14 Johns. 
 238. .Stock notes which, are given for th.e formation of insurance 
 companies, and premium notes given when an insurance is made, 
 are familiar instances of notes payable in such installments. 
 Notes which are payable either in money, or in goods, at the 
 option of the maker, are not negotiable, because in such, a case 
 the note is not payable in money unless the maker so elect. It 
 is proper to remark bere thiat the mere fact that a bill or note is 
 mot negotiable under the statute, does not determine that the note 
 is void. 
 
 In all cases in wbich there is a valid consideration for the note 
 or bill, and it is in all other respects legal, such note or bill will 
 be valid as a contract, and if properly assigned, may, in this 
 State, be enforced in the name of the person who owns it. 
 
 The principal importance which is to be attached to the 
 question of negotiability, arises from the rule of law which sub- 
 jeots all imnegotiable bills and notes to any equities which may 
 exist between prior parties, even when they are transferred be- 
 fore due to a hona fide purchaser for value. In somie oasesi the 
 rules of pleading require a statement of facts in relation to non-ne- 
 gotiable paper, which, is not required wlien declaring upon nego- 
 tiable instruments. So, too, the evidence may differ in sucb. 
 respects as the pleadings may require. This subject will be 
 treated of hereafter. 
 
 The essential qualities of a bill or note are, that it be payable 
 at all events, not dependent on any contingency, nor payable out 
 of a particular fund, and that it be for the payment of money 
 only, and not for the performance of some other act or in the 
 alternative. Ooolc v. Satterlee, 6 Cow. 108. See General Laws, 
 ch. 50, § 20. An instrument payable upon a contingency is not 
 negotiable, and the happening of the event does not cure the de- 
 fect. Id. § 23. No matter what the event may be on the hap^ 
 pening of which payment is to be made, if it be uncertaiE, it 
 
528 BILLS ANT) NOTES. 
 
 destroys the negotiability of the instrument. This is illustrated 
 by an order for a specified sum payable ninety days after sight 
 " or when realized " (Alexander v. Thomas, 16 Ad. & Ell. IST. S. 
 333) ; or by an order payable out of the proceeds of certain car- 
 riages, when sold (De Forest v. Frary, 6 Cow. 151) ; or a promise 
 to pay within a certain number of days after the marriage of the 
 promisor {Beardsley v. Baldwin, 2 Strange, 1151) ; or a promise 
 to pay to the promisee or order a specified sum when he is twenty- 
 five years of age {Bice v. Bice, 43 App. Div. 458) ; or a promise 
 to pay after the dissolution of a partnership and the settlement 
 of the firm books. Sachett v. Falmer, 25 Barb. 179. And see 
 Van Wagner v. Territt, 27 Barb. 181. 
 
 But where the payment is made to depend upon an event 
 wbich is certain to occur, though it is uncertain at what par- 
 ticular time it will happen, the bill or note is valid and nego- 
 tiable. General Laws, ch. 50, § 22. A note which is made pay- 
 able in a certain number of days after th.e death of the maker's 
 father, is negotiable, since that event is certain to occur, though 
 the precise time when it will take place is uncertain. Coleman 
 V. Coohe, Willes, 393 ; CooTce v. Colehan, 2 Strange, 1217. 
 
 A note whereby the maker promises to pay a specified sum art 
 a specified time after his death, is valid, although the promise 
 is incapable of strict performance, as the maker could not pay 
 after death. Camwright v. Gray, 127 N. Y. 92 ; Boot v. Strang, 
 77 Hun, 14; Hophins v. Marlette, 47 St. Kep. 916; Hegeman v. 
 Moon, 131 jST. Y. 462. The law regards the substance of things, 
 and the promise to pay after death is in effect a promise that the 
 maker's estate should pay after his death. lb. But if the note 
 was made withoiit consideration and intended to operate as a gift, 
 it is invalid and cannot be enforced. Holmes v. Boper, 141 N. 
 Y. 64 ; Harris v. Clark, 3 JST. Y. 93. The words used in a bill of 
 exchange, ought to imply an obligation to pay the amount named, 
 for an instrument drawn in this form : " Please to let the bearer 
 have seven pounds, and place it to my account, and you will 
 oblige me," not purporting to be a demand made by a party hav- 
 ing a right to call on the other to pay, is not a good bill of ex- 
 change. Little V. Blackford, 1 Mood. & Malk. 171. But a draft 
 in these terms : " Mr. ISTelson will oblige Mr. Webb, by paying 
 to T. RufP, or order, twenty guineas on his account," purports to 
 be an order to pay, and is a negotiable bill. Buff v. Wehh, 1 Esp. 
 Rep. 129. A bill or note must be certain as to the amount to be 
 paid. An order directing a third person to pay for a specified 
 
BILLS AND NOTES. 529 
 
 quantity of grain, upon wMcli no price was fixed, is not a nego- 
 tiable bill, because it does not require the payment of a sum 
 certain. Lent v. Hodgman, 15 Barb. 274. So, an instrument by 
 which a party promises to pay to another a sum specified, " and 
 also all other sums which may be due to him," with interest, is 
 not a negotiable note, even as to the sum named. Smith v. 
 Nightingale^ 2 Stark. 375. 
 
 Nor is an instrument which is drawn in the form of a note for 
 the payment of a certain sima, " first deducting thereout any 
 interest or money due to the maker, on any account," a valid: 
 negotiable note. Barlow v. Broadhurst, 4 J. B. Moore, 471. Nor 
 is a draft di-awn upon commission merchants, requiring them to 
 pay to the order of the drawer, in thirty days from date, the sum 
 of one thousand dollars, or what might be due after deducting 
 all advances and expenses, available as a negotiable security. 
 The acceptance being for an uncertain amount, to-wit, for the 
 balance of the proceeds of xuisold goods, is not negotiable. Cush- 
 man v. Haynes, 20 Pick. 132. 
 
 Bills and notes must not be made payable out of a particular 
 fund ; for when so drawn, they become mere special engagements, 
 which are to be treated like other contracts not negotiable. 
 
 An order was drawn upon P., in these words : " Sir, pay to G., 
 &c., or order, three hundred dollars out of the balance that will 
 be due us from the sales of cloths that you now have or may have 
 of us, together with the woolen machinery upon which you have 
 a chattel mortgage, after deducting the amount you have advanced 
 us, with your charges and commissions. M. & H." This order 
 was accepted, as follows: "Accepted, ^1 0th Sept. 1846." In an 
 action upon this acceptance by G., &c., it was held, that the order 
 and the acceptance were made with reference to a particular fund, 
 and that the money was not payable, unless that fund was suffi- 
 cient to pay the debts, advances, etc., mentioned, as well as the 
 order ; and it appearing that no such fund existed, since M. & H. 
 were indebted to P., it was further held that the action could not 
 be maintained. Gallery v. Prindle, 14 Barb. 186. And see Van 
 Wagner v. Terrett, 27 Barb. 181. So, a promise in the form of 
 a note, which is payable " out of the net proceeds of ore to be 
 raised and sold from a certain ore bed," is not a negotiable 
 promissory note. Warden v. Dodge, 4 Denio, 159. And see Hay- 
 dock V. Lynch, 2 Ld. Raym. 1563 ; Jenney v. Herle, id. 1361. 
 So, an order by a landlord drawn on his tenant to be paid out of 
 the rent, is not a bill of exchange, and a verbal acceptance by the 
 34 
 
530 BILLS AND NOTES. 
 
 tenant is valid. Morton v. Naylor, 1 Hill, 583. So, wliere an 
 order was draw7i by A. upon B., for the payment of a sum certain, 
 to C, as soon as B. should receive it out of D.'s money, and B. 
 accepted the order generally, but refused to pay the money 
 thereon; in an action against B. in favor of C, it was held that 
 no action lay upon the instrument, because it was not a negotiable 
 bill of exchange. Dawhes v. De Lorane, 3 Wils. 207, 213. And 
 see Atkinson v. Manhs, 1 Cow. 692. 
 
 Whenever a bill or note is made payable out of a particular 
 fund, and promise of payment is made conting^ent upon the suffi- 
 ciency of the fund, and that is inadequate, the promise is not^ 
 binding. If the fund i& sufficient, an action may be maintained 
 upon proper pleadings and evidence, though no action will lie 
 upon it as a mere bill or note, since it is not a negotiable note 
 under the statute. 
 
 There is a plain distinction between bills and notes which are 
 payable out of a particular fund, and those which are payable 
 absolutely, but are chargeable to a particular account. A recital 
 in a bill or note that certain collateral securities have been given 
 for the payment of the money specified, does not in any manner 
 affect the validity of the bill or note, or its negotiability. Fan- 
 court V. TJiornc, 9 Ad. & Ellis, IST. S. 312. 
 
 An instrument, which, in its terms and form, is a negotiable 
 promissiory note, does not lose that character because it also states, 
 that the maker has deposited bonds as a collateral security for 
 its payment, and that he agrees on non-payment of the note at 
 maturity, that they may be sold in a maimer, and upon a notice 
 specified, and he will pay any deficiency necessary to satisfy the 
 note, and the expenses of such sale. Arnold v. Rock River, etc.,. 
 R. R., 5 Duer, 207. And see HaussouUier v. Hartsinck, 7 Term,, 
 733. This is now expressly provided by statute. Laws of 1897, 
 ch. 612, § 24; General Laws, ch. 50, § 24. 
 
 It was held in some of the earlier English cases that a note in 
 this form is valid and negotiable: " I promise to pay to A., or 
 his order, at three months after date, the sum of one hundred 
 dollars, as per memorandiun of agreem.ent." Jury v. Barker, 1 
 Ellis, Bla. & Ellis, 459, 460 ; and cases in note. But these cases 
 are hardly in accord with some of the decisions of our own courts. 
 In one case an order to pay a specified sum of money " as per 
 contract," was construed as a direction to pay only out of moneys 
 to become due thereunder and not as a direction to pay the sum 
 at all events. Ehrichs v. De Mill, 75 IST. Y. 370. 
 
BILLS AND NOTES. 53r 
 
 A statement in a written warrant of a municipal corporation- 
 for the payment of a sum certain at a fixed time to E. S., or 
 order, that the same is payable " out of any funds belonging to 
 the city, not before specially appropriated," and " chargeable to 
 general city fund," does not deprive the instrument of the char- 
 acter of a negotiable promissory note. Bull v. Sims, 23 N. Y. 
 570. A bill in the following form : " Messrs. A. B. & Co., Please 
 pay to the order of C. D., the sum of five hundred dollars, on 
 account of 24 bales cotton, shipped to you as per bill lading, by 
 steamer Colorado, inclosed to you in a letter, E. E.," is a negotia- 
 ble bill of exchange under the statute. Lowery v. Steward, 3 
 Bosw. 505. The court said, page 511 : " The draft in question 
 was in form a bill of exchange. It Avas an unconditional order 
 upon the defendants, to pay a sum certain therein named, to the 
 order of the payee. Although the account to which it should be 
 charged was mentioned, it was not, by its terms, directed to be 
 paid out of a particular fund. Had it been accepted, it was due 
 immediately, whether the cotton, to account of which it was to be 
 charged, had been sold or not." 
 
 It is quite common to specify in a bill the object or purpose for 
 which it was drawn, as well as the account to which it is to be 
 charged, without intending to make the order to pay either con- 
 ditional or contingent ; and, therefore, a bill in this form is negotia- 
 ble, when drawn underneath a promissory note : " A. B., Esq., 
 please pay the above note, and hold it against me in our settle- 
 ment. C. D." Leonard v. Mason, 1 Wend. 522. So, when a bill 
 was drawn payable one month after date, and the drawee was 
 directed to pay to A. B., or order, a specified sum, " as his quar- 
 terly half pay from June 24th to September 27th," which was 
 accepted by the drawee, it was held to be a negotiable bill, and 
 an action was sustained against the acceptor. McLeod v. Snee, 2 
 Strange, 762, etc., 2 Ld. Eaym. 1481. A statement of a particu- 
 lar fund in a draft or bill of exchange, if inserted merely as a 
 direction to the drawee how to reimburse himself, will not vitiate 
 it. Kelley v. Mayor, &c., of Brooklyn, 4 Hill, 263. 
 
 Writing, signing, sealing, etc — A negotiable instrument must 
 be in writing and signed by the maker or drawer. General Laws, 
 ch. 50, § 20. Writing includes print. Id. § 2. 
 
 Bills and notes are always written or printed, or these methods 
 are combined, when the instrument is partly printed and partly 
 written. But, when such an instrument is made by filling up a 
 
532 BILLS AND NOTES. 
 
 printed form, it is still usually termed a written instrument, and 
 is as valid as a note or bill which is wholly written. 
 
 The mode of writing is not material ; it may be in pencil mark, 
 or in ink ; on paper, or on parchment, or on any other convenient 
 substitute for paper. Oeary v. Physic, 5 Barn. & Cress. 234; 
 Brown v. Butchers and Drovers' BanTc, 6 Hill, 443 ; Jeffrey v. 
 Walton, 1 Stark. 267. 
 
 The signature to a bill or note, or indorsement, may be made 
 by writing the name in full, or by writing a part of it in initials, 
 and the remainder in full, or it will be valid if nothing but the 
 initials of the entire name are employed, if those are written 
 for the purpose of executing the instrument. Palmer v. Stephens, 
 1 Denio, 471 ; Merchant's Bank v. Spicer, 6 Wend. 443. A party 
 signing his name to an instrument with his initials, intending 
 thereby to bind himself, is as effectually bound as he would be by 
 writing his name in full. lb. So a party may use iigures instead 
 of his initials, or his name in full ; and where a party placed the 
 figures, " 1, 2, 8," upon the back of a bill of exchange, by way of 
 substitute for his name, intending thus to bind himself as indorser, 
 it was held to be a valid indorsement, although it appeared that the 
 indorser could write. Brown v. Butchers and Drovers' Bank, 6 
 Hill, 443. So of a mark in the form of a cross, if made by per- 
 sons who cannot write their names, is a valid signature. 
 George v. Surrey, 1 Moody & Malkin, 516. It is usual to have 
 a subscribing witness to such a signature by a mark, though this 
 is not necessary; and the signature may be proved by a witness 
 from inspection, if he has seen the party execute instruments in 
 that manner. Ih. When a signature is made by a mark, it is com- 
 monly the case that the writer of the instrument writes the name 
 of the maker, and leaves a blank space between the christian and 
 the surname for the mark between the words " his mark," etc. 
 
 Where a signature is so placed upon the instrument that it is 
 not clear in what capacity the person making the same intended 
 to sign, he is to be deemed an indorser. General Laws, ch. 50, 
 §36. 
 
 " No person is liable on the instrument whose signature does 
 not appear thereon, except as herein otherwise expressly provided. 
 But one who signs in a trade or assumed name will be liable to 
 the same extent as if he had signed in his own name." Id. 
 § 37. 
 
 The signature of any party may be made by a duly authorized 
 
BILLS AND NOTES. 533 
 
 agent. No particular form of appointment is necessary for this 
 purpose ; and the authority of the agent may he estahlished as in 
 other cases of agency. Id. § 38. 
 
 Where the instrument contains or a person adds to his signature 
 words indicating that he signs for or on behalf of a principal, 
 or in a representative capacity, he is not liable on the instrument if 
 he was duly authorized; but the mere addition of words describ- 
 ing him as agent, or as filling a representative character, without 
 disclosing his principal, does not exempt him from personal lia- 
 bility. Id. § 39. 
 
 Thus, where a negotiable promissory note has been given for 
 the payment of a debt contracted by a corporation, and the lan- 
 guage of the promise does not disclose the corporate obligation, 
 and the signatures to the paper are in the names of individuals, a 
 holder, taking bona fide and without notice of the circumstances 
 of its making, is entitled to hold the note as the personal under- 
 taking of the signers, notwithstanding they afiix to their names 
 the title of an office. Such an afiix will be regarded as descrip- 
 tive of the persons and not of the character of the liability. Un- 
 less the promise purports to be by the corporation, it is that of 
 the persons who subscribe it ; and the fact of adding to their names 
 an abbreviation of some official title, as " Prest." or " Treas.," has 
 no legal signification as qualifying their obligation, and imposes 
 no obligation upon the corporation whose officers they may be. 
 Pentz V. Stanton, 10 Wend. 271 ; Taft v. Brewster, 9 Johns. 334 ; 
 Hills V. Bannister, 8 Cow. 31 ; Moss v. Livingston, 4 N. Y. 208 ; 
 De Witt V. Walton, 9 N. Y. 571 ; Gasco Nat. Bank v. Clark, 139 
 N. Y. 307; Merchants' Nat. Bank v. Clark, 139 N. Y. 314; First 
 Nat. Bank v. Stuetzer, 80 Hun, 435; First Nat. Bank v. 
 Wallis, 84 Hun, 376; 150 N. Y. 455; Manufacturers & 
 Traders' Bank v. Love, 13 App. Div. 561 ; Bu„?h v. Gil- 
 more, 45 App. Div. 89 ; Cortland Wagon Co. v. Lynch, 82 Hun, 
 173. The fact that the name of the corporation is printed across 
 the end or margin of the note carries no presumption that the note 
 was or was intended to be the note of the corporation. Gasco Nat. 
 Bank v. Clark, 139 N. Y. 307 ; Merchants' Nat. Bank v. Clark, 
 139 N. Y. 314; First Nat. Bank v. Wallis, 84 Hun, 376; First 
 Nat. Bank v. Stuetzer, 80 Hun, 435. But where a note reads, 
 " the president and directors promise to pay " and is subscribed 
 by a person as " president," it is evident that no personal obliga- 
 tion was entered into or intended. Matt v. Hicks, 1 Cow, 513. 
 
534 BILLS AND NOTES. 
 
 A promissory note was made as follows: 
 
 " $4,900. " Teoy, N. Y., April 3d, 1896. 
 
 " One month after date we promise to pay to the order of our- 
 selves. Forty-nine hundred Dollars at the National Bank of Troy, 
 for value received. 
 
 " HUDSON VALLEY KNITTING CO., 
 
 "F. A. Fales, Treas." 
 
 This note was indorsed in the same manner with the addition 
 of the words " F. A. Fales," and " K. B. Dowsley." It was held 
 that the instrument was the note of the Hudson Valley Knitting 
 Co., and not the individual note of Fales and Dowsley. Union 
 Nat. Bank v. Scott, 53 App. Div. 65. 
 
 An indorsement of a note by an agent, in the name of the cor- 
 poration, hut without adding his own name, is sufficient to bind 
 the corporation. Youngs v. Perry, 42 App. Div. 247. 
 
 A signature by " procuration " operates as notice that the agent 
 has but a limited authority to sign, aiid the principal is bound 
 only in case the agent so signing acted within the actual limits 
 of his authority. General Laws, ch. 50, § 40. 
 
 " Where a signature is forged or made without authority of 
 the person whose signature it purports to be, it is wholly inopera- 
 tive, and no right to retain the instrument, or to give a discharge 
 therefor, or to enforce payment thereof against any party thereto, 
 can be acquired through or under such signature, unless the party, 
 against whom it is sought to enforce such right, is precluded from 
 setting up the forgery or want of authority." Id. § 42. 
 
 The mere touching up of a signature of a draft with a brush 
 or pen in a few places is not such an alteration as to constitute 
 forgery. Urdied States Nat. BanTc v. Nat. Park Bank, 59 Hun, 
 495. 
 
 As has been stated the fact that a note or bill is under seal does 
 I not impair its validity or negotiability. General Laws, ch. 50, 
 '§25. 
 
 The commercial paper of a corporation, negotiable in form, 
 does not lose the quality of negotiability by having attached thereto 
 the corporate seal. Chase Nat. Bank v. Faurot, 149 N. Y. 532. 
 
 Although the revenue laws of the United States may require 
 that a promissory note shall have a revenue stamp attached, the 
 failure to attach it will not invalidate the note. Gregory v. Hitch- 
 cock Publishing Co., 31 Misc. 173. See PeopU v. Fromme, 35 
 
BILLS AKD NOTES. 535 
 
 App. Div. 459 ; Moore v. Moore, 47 E". Y. 467 ; People v. Gates, 
 43 N. Y. 40. 
 
 Delivery. — " Every contract on a negotiable instrument is in- 
 ■complete and revocable until delivery of the instrument for the 
 purpose of giving effect thereto. As between immediate parties, 
 and as regards a remote party other than a holder in due course, 
 the delivery, in order to be eifectual, must be made either by or 
 under the authority of the party making, drawing, accepting or 
 indorsing, as the case may be ; and in such case the delivery may 
 l)e shown to have been conditional, or for a special purpose only, 
 and not for the purpose of transferring the property in the in- 
 strument. But where the instrument is in the hands of a holder 
 in due course, a valid delivery thereof by all the prior parties to 
 him so as to make them liable to him is conclusively presumed. 
 And where the instrument is no longer in the possession of a party 
 whose signature appears thereon, a valid and intentional delivery 
 by him is presumed tmtil the contrary is proved." General Laws, 
 ch. 50, § 35. 
 
 The statute is merely declaratory of the law as it existed before 
 its enactment. It has long been held that a bill of exchange or a 
 promissory note has no legal inception, however complete it may 
 be in form, until it is delivered to some person, as evidence of a 
 subsisting debt. Adams v. Jones, 12 Ad. & Ell. 455 ; Machell v. 
 Kinnear, 1 Stark. 499 ; Catlin v. Gunter, 11 N. Y. 368 ; Marvin 
 T. McCullum, 20 Johns. 288. 
 
 When a bill or note is made and delivered for a legal purpose 
 to some person as evidence of an existing indebtedness, it then 
 has its inception, if such delivery is absolute. 
 
 There may be, however, a conditional delivery of such an in- 
 strument, and in a proper case the courts will enforce the con- 
 dition. It is always competent for the maker to fix the condition 
 upon which the note shall be transferred and to prohibit its trans- 
 fer unless that condition be complied with ; and one who takes a 
 note, the use of which is restricted, as collateral security for an 
 antecedent debt, cannot recover upon it if such use of the note is 
 not within the authorized use. Tinsdale v. Murray, 9 Daly, 449 ; 
 Ayres v. Doying, 42 Hun, 630. A person who signs a promissory 
 note on condition that another person shall sign the same above 
 bis signature is not liable on the note unless the condition is com- 
 plied with. Miller v. Gamhie, 4 Barb. 146. Upon the same prin- 
 •ciple where notes are signed by two persons, one of them a princi- 
 
536 BILLS AND NOTES. 
 
 pal debtor, and the other his surety, a declaration by the principal, 
 at the time of the delivery, that such delivery is unconditional, 
 will not entitle the payee to maintain an action against the surety 
 or indorser of the notes. If it appears that the notes were signed 
 by the maker, together with a surety, and indorsed by another 
 person on the express condition that they were not to take effect 
 until a certain arrangement should be consummated, the absolute 
 delivery of the notes by the maker, is an unlawful diversion of 
 them from the purpose for which they were made and indorsed; 
 and the payee will obtain no title to them unless he is a bona 
 fide purchaser without notice, and for value paid. Mickles v. 
 Colvin, 4 Barb. 304. So, in an action by the payees of a check 
 against the drawers, the defendants may show the transaction in 
 which it originated; that its delivery was not absolute but con- 
 ditional, and that, according to such condition, it was the plain- 
 tiff's duty to return it to the defendants, and that they had re- 
 fused, before suit brought, to do so. Bernhard v. Brunner, 4 Bosw. 
 528. So, where notes were given for the purchase of a patent 
 right on the oral agreement of the payee that he would retain them 
 in his possession until he had furnished the maker with advertise- 
 ments from which sufficient profits could be derived to pay the 
 notes, and this agreement has been wholly disregarded by the 
 payee, these facts will constitute a defense to the notes in the 
 hands of any one but a bona fide holder for value, under the set- 
 tled rule that the delivery of the notes having been limited by con- 
 ditions, the performance of the conditions is essential to the va- 
 lidity of the notes. Andrews & Co. v. Hess, 20 App. Div. 194. 
 This doctrine has been repeatedly recognized and applied by the 
 courts in cases brought by their varying facts within the general 
 principle. See Seymow v. Coiving, 1 Keyes, 532 ; Boohstaver v. 
 Jayne, 60 K Y. 146 ; Higgins v. Bidgway, 90 Hun, 398 ; 153 
 N. T. 130; Garfield Nat. Bank v. Colwell, 57 Hun, 169. In the 
 two cases last cited the note was delivered upon the condition that 
 the maker should not be liable thereon. But the defense to a note 
 of want of legal inception, which would be valid as between the 
 original parties may be wholly unavailable as against a bona fide 
 holder for value. See Chase Nat. Bank v. Faurot, 72 Hun, 373 ; 
 149 K T. 532. 
 
 Where a person is induced to execute negotiable paper by a 
 fraud practiced upon him, there cannot be a recovery upon it, 
 except by a bona fide purchaser for value. Farrington v. Frank- 
 fort Bank, 24 Barb. 554. 
 
, BILLS AJSTD NOTES. ' 537 
 
 It is of no consequence when or where a bill or note is signed, 
 because it takes eifect from the time of delivery, and not from 
 the time of making {Hyde v. Goodnow, 3 N. Y. 266; Hall v. 
 Wilson, 16 Barb. 548), though the parties may in some cases 
 deliver a note after the time of its date, and by agreement make 
 it relate back to the time of its date for some purposes. But no 
 agreement can give the note an inception; there must be some 
 delivery of the instrument, actual or constructive, before it is an 
 absolute security as a bill or note. 
 
 It is not necessary that there should be positive proof of a 
 delivery, because the law will infer a delivery from given facts, 
 and those facts may be established by evidence, and be found by 
 a jury, or by the justice. 
 
 In an action upon a negotiable promissory note, payable to 
 bearer, or indorsed in blank by the payee, possession by the plain- 
 tiff is prima facie evidence that he is the owner of it for a good 
 consideration. James v. Chalmers, 6 N. Y. 209 ; 8. C, 5 Sandf. 
 52 ; Seeley v. Engell, 17 Barb. 580 ; Smith v. Schanck, 18 Barb. 
 344; Nelson v. Cowing, 6 Hill, 336; Bedell v. Carll, 33 K Y. 
 581 ; Zimmer v. Chew, 34 App. Div. 504. The same rule ap- 
 plies to checks. Townsend v. Billinge, 1 Hilt. 353 ; Cruger v. 
 Armstrong, 3 Johns. Cas. 5, and cases in note at end of case; 
 Conroy v. Warren, id. 259. Bills of exchange stand upon the 
 same footing. Indeed, it may be considered clearly settled, that 
 the actual possession of any negotiable instrument which appears 
 on its face to have been regularly negotiated, is sufficient prima 
 facie evidence that the instrument was duly delivered, and that 
 the possessor is its owner in good faith and for value. It is now 
 settled that the legal presumption is that such instrument was 
 delivered and negotiated to the holder before its maturity. An- 
 drews V. Chadboume, 19 Barb. 147; Pratt v. Adams, 7 Paige, 
 616. And evidence that the bill or note was not transferred to 
 the plaintiff until after the maturity of the paper, does not rebut 
 the presumption that he is a holder in good faith, and for value. 
 James v. Chalmers, 6 IST. Y. 209 ; Seeley v. Engell, 17 Barb. 530, 
 535; Smith v. Schanch, 18 Barb. '344. 
 
 § 4. Incomplete Negotiable Instruments. 
 
 Where a negotiable instrument is wanting in any material par- 
 ticular, the person in possession thereof has a prima facie author- 
 ity to complete it by filling up the blanks therein. And a signa- 
 
538 BILLS AND NOTES. 
 
 ture on a blank paper delivered by the person making the signature 
 in order that the paper may be converted into a negotiable instru- 
 ment operates as a prima facie authority to fill it up as such for 
 any amount. In order, however, that any such instrument when 
 completed, may be enforced against any person who became a 
 party thereto prior to its completion, it must be filled up strictly 
 in accordance with the authority given and within a reasonable 
 "time. But if any such instrument, after completion, is negotiated 
 to a holder in due course, it is valid and effectual for all purposes 
 in his hands, and he may enforce it as if it had been filled up 
 •strictly in accordance with the authority given and within a rea- 
 sonable time. General Laws, ch. 50, § 33 ; Laws of 1897, ch. 612, 
 § 33, as amended by Laws of 1898, eh. 336, § 4. And see John- 
 son V. Lee, 30 St. Hep. 392 ; Chemung Canal Bank v. Bradner, 
 44 K Y. 680 ; Harris v. Berger, 15 St. Eep. 389. 
 
 In determining what is a reasonable time or an unreasonable 
 time regard is to be had to the nature of the instrument, the usage 
 -of trade or business, if any, with respect to such insfruments and 
 the facts of the particular ease. General Laws, ch. 50, § 4 ; Laws 
 •of 1897, ch. 612, § 4. See Oerman-Americaxi Bank v. Atwater, 
 165 K T. 36, 40. 
 
 Bills and notes are generally superscribed in figures for the 
 amount which is written in the body of the instrument. This is a 
 mere matter of convenience, and ordinarily it is not of any im- 
 portance to the validity of the instruments. Though there may 
 "be instances when such figures may be useful, as for instance, 
 when the body of the bill or note is left blank as to the amount 
 payable by it. In such a case the blank in the body may be filled 
 up by the holder so as to correspond with the sum specified in 
 the figures in the margin. Where there is a discrepancy between 
 the amount stated in the margin and that mentioned in the body 
 of the instrument, the latter prevails, because the former is a 
 mere memorandum, while the words used in the body of the note 
 constitute the contract. Where the sum intended to be made pay- 
 able by a note is neither expressed in the body of it nor in the 
 margin in figures, the holder may fill up the blank for the sum 
 intended. And where a note was intended to be made payable 
 for eight hundred dollars, and the note was properly filled up as 
 a promise to pay " eight," omitting the words " hundred dollars," 
 it was held that the holder might insert those words. Boyd v. 
 Broiherson, 10 Wend. 93. And see Clute v. Small, 17 Wend. 
 
BILLS AND NOTES. 539 
 
 238. But if a note is perfect when it is delivered, the holder is 
 not authorized to make any additions to it, even though there is 
 a blank space sufficient to contain the alteration. Bruce v. West- 
 ■cott, 3 Barb. 374. There may be an exception to this rule in the 
 case of an evident mistake, as where a sum is agreed upon by a 
 -debtor as due from him to his creditor, and the debtor draws a 
 note in which he states the true amount in the margin, in figures, 
 but by mistake the body of the note is filled up with a smaller 
 sum. In such case the creditor may alter the body of the note 
 so as to make it correspond with the true sum. Clute v. Small, 
 17 Wend. 238. And see Bruit v. Picard, Ryan & Moody, 37 ; 
 Bruce v. Westcott, 3 Barb. 374. 
 
 When an incomplete instrument has not been delivered it will 
 not, if completed and negotiated, without authority, be a valid 
 -contract in the hands of any holder, as against any person whose 
 signature was placed thereon before delivery. General Laws, ch. 
 50, § 34. 
 
 The right of any holder to insert the true date in an undated 
 instrument has been noticed. See antej p. 520. 
 
 § 5. Checks. 
 
 A cheek has been defined as a bill of exchange drawn on a bank, 
 payable on demand. All the provisions of the Negotiable Instru- 
 ments Law that are applicable to a bill of exchange payable on 
 •demand are equally applicable to a check except as otherwise pro- 
 vided in that act. Laws of 1897, ch. 612, § 321 ; General Laws, 
 ■ch. 50, § 32. 
 
 A check may be drawn in the following or other equivalent 
 form : 
 
 No. • Albany, August 27, 1864. 
 
 Montgomery County Bank: 
 
 Pay to A. B., or bearer (or order), one hundred dollars. 
 $100. C. D. 
 
 It is common for business men having extensive dealings with 
 one or more banks to adopt a special form of check, but whatever 
 may be the design adopted the essential feature of the instru- 
 ment is the direction by the drawer to the bank addressed to pay 
 to the bearer or to a person specified or bis order a specified sum 
 
540 BILLS AND NOTES. 
 
 of money. Some of the essential features of this class of instru- 
 ments will be noticed. 
 
 The delivery of a bill or check by one person to another for 
 value implies a representation on the part of the drawer that the 
 drawee is in funds for its payment. Heuertematte v. Morris, 101 
 N. Y. 63. The drawer of the bill or check engages that on due 
 presentment the instrument will be accepted and paid, or both, ac- 
 cording to its tenor, and that if it be dishonored, and the necessary 
 proceedings on dishonor be duly taken, he will pay the amount 
 thereof to the holder, or to any subsequent indorser who may be 
 compelled to pay it. General Laws, ch. 50, § 111. See Hibernia 
 Nat. Bank v. Lacombe, 84 K Y. 367. 
 
 The person who receives a check assumes the obligation to pre- 
 sent it for payment within a reasonable time, and if he omits to 
 do so, and the drawer had provided funds to meet it which are lost 
 through the delay by the failure of the bank on which it is drawn, 
 the legal effect of the omission is to discharge the drawer and any 
 indorser of the instrument. Martin v. Home Bank, 160 N. Y. 
 190; Carroll v. Sweet, 128 N. Y. 19 ; Williams v. Brown, 53 App. 
 Div. 486 ; Little v. Phenix Bank, 2 Hill, 425. The statute pro- 
 vides that a check must be presented for payment within a rea- 
 sonable time after its issue or the drawer will be discharged from 
 liability thereon to the extent of the loss caused by the delay. 
 General Laws, ch. 50, § 322. The statute defines the word " is- 
 sue " as the first delivery of the instrument, complete in form, 
 to a person who takes it as holder. Id. § 2. It also provides 
 that in determining what is a reasonable time, regard is to be had 
 to the nature of the instrument, the usage of trade or business, if 
 any, with respect to such instruments, and the facts of the par- 
 ticular case. Id. § 4. See German-American Bank v. Atwater, 
 165 N. Y. 36, 40. 
 
 By the law merchant, a check delivered on the day of its date 
 at the place where the bank on which it is drawn is located, must 
 be presented to the bank for payment not later than the next day, 
 and if payment is refused, must be protested and notice of non- 
 payment given, in order to charge an indorser. Carroll v. Sweet, 
 128 N. Y. 19 ; Smith v. Janes, 20 Wend. 192. As to the indorser, 
 delay in making due presentment of the check for payment is not 
 excused, although the drawer of the check had no funds, or was 
 insolvent, or because presentment would have been unavailing as 
 a means of procuring payment. Mohawk Bank v. Broderick, 10 
 
BILLS AND NOTES. 541 
 
 Wend. 304; Gough v. Stmts, 13 Wend. 549; Carroll v. Sweet, 
 128 N. Y. 19. But as between the holder and drawer of the check, 
 presentment may be made at any time and delay in presentment 
 does not discharge the liability of the drawer unless loss has re- 
 sulted, and then only to the extent of the loss caused by the delay, 
 as provided by the statute cited. See Murray v. Judah, 6 Cow. 
 484; Carroll v. Sweet, 128 K Y. 19. 
 
 Where the check is payable at a place other than that at which 
 it is issued or negotiated, the check should be forwarded for pre- 
 sentment on the day it is received by the holder or the next succeed- 
 ing day. Smith v. Janes, 20 Wend. 192. If the holder of the 
 check deposits it in a bank for collection, he makes the bank his 
 agent, and in case of loss to the drawer through the delay of the 
 collecting agent in presenting it for payment, the loss will fall 
 upon the holder and the drawer will be discharged from liability 
 to the extent of the loss caused by the delay. Williams v. Brown, 
 53 App. Div. 486. 
 
 The drawer of a check may waive any right which he has gained 
 by reason of the failure of the payee or holder to present the same 
 to the drawee for payment within a reasonable time. See Roch- 
 well V. Dye, 42 App. Div. 520 ; Generals Laws, ch. 50, § 142. 
 
 The presentment for payment must be made during banking 
 hours, unless the drawer has no funds in the bank to meet his 
 check, at any time during the day, in which case presentment at 
 any hour before the bank is closed on that day is sufficient. Id. 
 § 135. 
 
 A check is not intended to be accepted like a bill of exchange, 
 but is expected to be paid on presentation for that purpose by the 
 payee or holder. But by obtaining the certification of a check by 
 the bank on which it is drawn or by an officer thereof authorized 
 to certify checks, the certification will be equivalent to an accept- 
 ance. Id. § 323. See Meads v. Merchants' Bank, 25 N. Y. 143 ; 
 Willets V. Phoenix Bank, 2 Duer, 121 ; Clews v. Bank of New 
 York N. B. A., 89 N. Y. 418 ; Marine Nat. Bank v. Nat. City 
 Bank, 59 N. Y. 67 ; Smith v. Miller, 43 N. Y. 171, 177. By 
 certifying that a check is good the bank guarantees the genuineness 
 of the drawer's signature, and represents that it has funds in its 
 possession sufficient to meet the check, and engages that those 
 funds shall not be withdrawn from it by the drawer to the preju- 
 dice of any bona fide holder of the check. This is the extent of 
 
542 BILLS AND NOTES. 
 
 the engagement. The certification does not import that the body 
 of the check is genuine, or that there is money in the bank, ab- 
 solutely applicable to the payment of the amount named in the 
 check. On that point it simply imports that the drawer has money 
 to the amount of the check which will not be withdrawn, and 
 which will be paid upon the check if it is properly payable thereon ; 
 that is, by the certification the drawee bank becomes responsible to 
 pay the holder whatever is properly due upon the check, and noth- 
 ing more. . If the check has been raised before certification the 
 bank cannot be called upon in consequence of its certification to 
 pay the amount of the check. Clews v. Bank of New Yorh Nat. 
 BJc. Assn., 89 IST. Y. 418. See Continental Bank v. Tradesmen's 
 Bank, 59 App. Div. 103. 
 
 Where the holder of a check procures it to be accepted or certi- 
 fied, the drawer and all the indorsers are discharged from liability 
 thereon. General Laws, eh. 50, § 324; First Nat. Bank of Jersey 
 City V. Leach, 52 N. Y. 350. The legal effect is the same where 
 the creditor accepts his debtor's check already certified. Lane v. 
 Nuffer, 25 St. Eep. 823. 
 
 A check of itself does not operate as an assignment of any part 
 of the funds to the credit of the drawer with the bank, and the 
 bank is not liable to the holder unless and until it accepts or certi- 
 fies the check. General Laws, ch. 50, § 325. 
 
 § 6. Bills of Exchange in a Set. 
 
 Foreign bills of exchange are usually drawn in several parts,, 
 the whole of which constitute what is called a set. These parts 
 are usually three in number though there may be more if the 
 parties choose. The drawer usually delivers to the payee three 
 bills of the same tenor and date, each of which should refer to 
 the other parts of the set, and express that payment of it is con- 
 ditional on the other parts of like " tenor and date " as itself 
 remaining unpaid at maturity. One or more of these parts of 
 the bill may be circulated while another is forwarded for accept- 
 ance. A bill of exchange drawn in one state on persons living 
 in another, is to be treated, it seems, as a foreign and not as an 
 inland bill. Wells v. Whitehead, 15 "Wend. 527. 
 
 Where a bill is drawn in a set, each part of the set being num- 
 bered and containing a reference to the other parts, the whole of 
 the parts constitute one bill. General Laws, ch. 50, § 310. 
 
BILLS AND NOTES. 54a 
 
 The following is a bill drawn in a set of three parts, all of which 
 are necessary to constitute a complete bill : 
 
 New Yoek, August 27th, 1864. 
 No. 175. Ex. £100 stg. 
 
 Sixty days after sight of this my first of exchange (second and 
 third unpaid), pay to A. B., or order, one hundred pounds sterling,, 
 value received, and charge the same to the account of C. D. 
 
 To Messrs. E. E. & Co., Liverpool. 
 
 New Yoke, August 27th, 1864. 
 No. 175. Ex. £100 stg. 
 
 Sixty days after sight of this my second of exchange (first and 
 third unpaid), pay to A. B., or order, one hundred pounds sterling,, 
 value received, and charge the same to the account of 0. D. 
 
 To Messrs. E. F. & Co., Liverpool. 
 
 New Yoek, August 27th, 1864. 
 No. 175. Ex. £100 stg. 
 
 Sixty days after sight of this my third of exchange (first and 
 second unpaid), pay to A. B., or order, one hundred pounds 
 sterling, value received, and charge the same to the account of 
 
 CD. 
 To Messrs. E. F. & Co., Liverpool. 
 
 " Where two or more parts of a set are negotiated to different 
 holders in due course, the holder whose title first accrues is as 
 between such holders the true owner of the bill. But nothing in 
 this section affects the right of a person who in due course accepts 
 or pays the part first presented to him." General Laws, ch. 50, 
 § 311. 
 
 " Where the holder of a set indorses two or more parts to 
 different persons he is liable on every such part, and every in- 
 dorser subsequent to him is liable on the part he has himself in- 
 dorsed, as if such parts were separate bills. Id. § 312. 
 
 " The acceptance may be written on any part and it must be 
 written on one part only. If the drawee accepts more than one 
 part, and such accepted parts are negotiated to different holders 
 in due course, he is liable on every such part as if it were a sep- 
 arate bill." Id. § 313. 
 
 " When the acceptor of a bill drawn in a set pays it without re- 
 quiring the part bearing his acceptance to be delivered up to him,, 
 and that part at maturity is outstanding in the hands of a holder in. 
 due course, he is liable to the holder thereon." Id. § 314. 
 
544 BILLS AND NOTES. 
 
 " Except as herein otherwise provided, where any one part in a 
 bill drawn in a set is discharged by payment or otherwise the whole 
 bill is discharged." Id. § 315 ; Holdsworth v. Hunter, 10 Barn. 
 & Cress. 449 ; Perrevra v. Jopp, id., note, p. 450 ; Wells v. White- 
 head, 15 Wend. 527, 528. 
 
 When the second of a set of three bills of exchange is protested 
 for non-acceptance, and an action is brought against the indorser, 
 and the plaintiff declares on the first of the set he is not entitled 
 to recover, unless he produces the second of the set which was 
 protested, or accounts satisfactorily for its non-production; the 
 defendant may require its production to guard against a subse- 
 quent claim by a bona fide holder, or by an acceptor who had 
 paid supra protest for his honor. Wells v. Whitehead, 15 Wend. 
 527. Each part of a set ought to refer to all the others so that 
 the drawer may not be compelled to pay twice over. Davison v. 
 Robertson, 3 Dow. 218, 228. To prevent mistakes and double 
 payment, neither party to a bill should pay, unless the part pro- 
 tested is presented and surrendered. For if the drawee pays on 
 receiving the second of the set, the indorser who is not aware of 
 the fact may be misled and be induced to pay again on receiving 
 the first of the set accompanied with notice of the protest. Dur- 
 Tcin V. Cranston, 7 Johns. 442. 
 
 For some purposes all the parts of the set constitute but one 
 bill; but they are not one so that the protest of either is a pro- 
 test of all, nor so as to dispense with the necessity of suing on 
 that particular bill which has been dishonored. Wells v. White- 
 head, 15 Wend. 527. Foreign bills must be protested for non- 
 acceptance and non-payment, or the drawer and indorser will be 
 discharged. lb. 
 
 § 7. Bills and Notes not Negotiable. 
 
 When a negotiable bill or note is taken in good faith, and for 
 value, before it is due, the holder may recover the full amount of 
 it without reference to any equities which may exist between 
 prior parties to it. Bills and notes not negotiable are valid in- 
 struments; but they are taken subject to all existing equities, even 
 when taken in good faith, for value, and before maturity. It is 
 evident, therefore, that for all commercial purposes, it is im- 
 portant that the holder should know whether the bill or note trans- 
 ferred to him is negotiable, or whether it is not negotiable. 
 
 Bills of exchange were negotiable under the law merchant 
 
BILLS AND NOTES. 545 
 
 Tvithout the aid of any statute; and our law early declared that 
 all notes in writing, made -and signed by any person, whereby 
 he shall promise to pay to any other person, or his order, or to the 
 order of any other person, or unto bearer, any sum of money 
 therein mentioned, shall be due and payable as therein expressed ; 
 and shall have the same effect, and be negotiable in like manner, 
 as inland bills of exchange, according to the custom of merchants. 
 These provisions were repealed and others substituted by recent 
 legislation, and to-day an instrument to be negotiable must con- 
 form to the requirements of the Negotiable Instruments Law. 
 What those requirements are has already been pointed out. 
 
 Under the practice before the Code, bills and notes were an 
 exception to the general rule that every contract must be enforced 
 by the person having the legal interest, and any person who held 
 a negotiable bill or note might maintain an action upon it in his 
 own name. This rule did not extend to non-negotiable paper, and 
 on the assignment of such paper, the law required the action to be 
 brought thereon in the name of the assignor, although the suit was 
 prosecuted for the beneiit of the assignee who was the real party 
 in interest. The Code changed this rule of practice, but did not, 
 in any manner, change the legal distinctions between negotiable 
 and non-negotiable paper. 
 
 Among non-negotiable instroments are notes payable in chattels 
 only {Jerome v. Whitney, 7 Johns. 322) ; orders for goods drawn 
 in the form of a bill of exchange (Athinson v. Manks, 1 Oow. 
 692) ; and notes not containing words of negotiability, as, for 
 example, notes payable to a specified person only, and not to 
 a person or his order, or to the order of a person, or to bearer. 
 Maule V. Crawford, 14 Hun, 193. 
 
 NOTE, NOT NEGOTIABLE. 
 $100. 
 
 Three months aftor date, I promise to pay A. B. one hundred 
 dollars, for value received (with interest). C. D. 
 
 Albany, August 27, 1864. 
 
 NOTE PAYABLE IN CHATTELS. 
 $100. 
 
 Thirty days after date, for value received, I promise to pay 
 A. B., or bearer (or order), one hundred dollars, in first quality 
 of wheat, at the current price. C. D. 
 
 Albany, August 27, 1862. 
 35 
 
546 BILLS AND XOTES. 
 
 An instniment which contains a promise of the maker to pay 
 to the order of another a specified sum of money at his store, or 
 goods on demand, is not a chattel note strictly speaking, but an 
 unconditional promise to pay a sum of money, and is negotiable. 
 Hosstatter v. Wilson, 36 Barb. 307. 
 
 Notes payable in chattels are as valid as though they were nego- 
 tiable. They are species of special contracts governed by some 
 rules of law which do not apply to negotiable paper. When 
 assigned, the assignee may enforce them in the same manner that 
 his assignor might have done. If no consideration is expressed 
 on the face of the note, and an action is. brought upon it, it will 
 be necessary to allege a consideration in the complaint in the same 
 manner as when declaring upon any other cause of action arising 
 upon contract. If the note recites that it was given " for value 
 received," this recital will not have the effect of shifting the 
 burden of proof as to the existence of a consideration for the con- 
 tract from the plaintiff to the defendant ; but the recital will stand 
 as an admission on the subject available as evidence against the 
 defendant, and from which alone, if its effect be not modified or 
 destroyed by other evidence in the case, a good and sufficient con- 
 sideration might be inferred. See Rice v. Rice, 43 App. Div. 
 458. The assignee of a chattel note takes it subject to all equities 
 existing against it at the time of the transfer, or such other 
 equities as may arise before notice of the assignment. See Cam- 
 right V. Gray, 57 Hun, 518, 520. The usual mode of making 
 notes, bills and checks negotiable is by drawing them payable to a 
 particular person, or order, or bearer, or to the order of the drawer, 
 or to bearer generally. It must be remembered, however, that 
 such negotiable words will not, of themselves, render every con- 
 tract a negotiable bill or note. An instrument may be drawn in 
 the general form of negotiable paper and yet have the element 
 of negotiability destroyed by the introduction of some clause chang- 
 ing its legal character, or by the omission of some essential re- 
 quirement other than words of negotiability. A note may be 
 drawn payable to a person or his order " when he is twenty-one 
 years of age " and yet be non-negotiable because payable upon a 
 contingency that may happen. Rice v. Rice, 43 App. Div. 458. 
 Another example of a non-negotiable note bearing words of nego- 
 tiability is the chattel note a form of which has been before 
 given. 
 
 Before noticing chattel notes more particularly, it may be 
 proper to say a few v^ords in relation to instruments in the form 
 
BILLS AND NOTES. 547 
 
 of bills of exchange, except that they are payable in chattels. 
 Such instruments are usually called orders for goods. 
 
 Where an order of this kind is drawn for a given sum, payable 
 in goods or in the proceeds thereof, it is not a bill of exchange; 
 and, if the drawee accepts, he is not liable to the payee upon it, 
 unless he has goods, or their avails, sufficient to pay the order; 
 and the person suing upon it must allege and prove these facts 
 before he can recover. Atkinson v. Manks, 1 Cow. 692. 
 
 But, where a person draws such a bill upon his factor, with 
 instructions to pay the amount to the payee out of the proceeds 
 of goods in his hands, after paying prior acceptances, and such 
 factor accepts the bill generally, he is liable to pay the amount 
 to the payee, if such factor had sufficient funds for that purpose, 
 after paying the prior acceptances, notwithstanding the drawer 
 may have owed the factor a sum larger than the amount of the 
 bill. Maber v. Massias, 2 W. Bla. 1072. By accepting the instru- 
 ment generally, the factor estopped himself from claiming any 
 allowance out of the fund for himself, until the prior accept- 
 ances, and the order or bill accepted were paid. So where the 
 owner draws an order upon a person for a portion of his property, 
 which is in the hands of his factor, or a warehouseman, or his 
 agent, and the order is accepted in general terms, the title to the 
 property mentioned in the order passes, and the vendee is entitled 
 to the property. Gillett v. Hill, 2 Cromp. & Mees. 530 ; 8. C, 4 
 Tyr. 290 ; Chapman v. Searle, 3 Pick. 38. An acceptance may 
 be absolute, or conditional. When the acceptance is conditional, 
 and is not to become absolute unless upon the happening of a 
 specified event, the acceptance is not binding, and cannot be en- 
 forced until the occurrence of the event. Swan v. Cox, 1 Marsh. 
 176. 
 
 But, when the event happens, the acceptance becomes absolute 
 and binding, and it may then be enforced if payment according 
 to the order and the acceptance is refused. Julian v. Shobrolce, 
 2 Wils. 9 ; Smith v. Abbot, 2 Strange, 1152. 
 
 Where the draw^ee of an order for goods produces it atthe trial, 
 this is evidence of a sale of goods by the drawee to the drawer, 
 and of a delivery of them to the payee, at the drawer's request. 
 In this respect they differ from orders drawn for the payment of 
 money, which, if nothing appears to the contrary, are presumed 
 to be drawn upon funds of the drawer in the hands of the drawee. 
 Alvord V. Baher, 9 Wend. 323. 
 
 A landlord, for value received, gave an order on his tenant to 
 
548 BILLS AND Is'OTES. 
 
 pay W. the rents accruing during a certain time, which the ten- 
 ant, when the order was presented, said he would pay, and the 
 landlord subsequently notified the tenant not to pay, but the lat- 
 ter disregarded the notice and paid the order, and it was held 
 that the tenant did right, and that the landlord's claim for rent 
 was extinguished. Morton v. Naylor, 1 Hill, 583. An order of 
 this nature is an equitable assignment of the fund on which it is 
 drawn, and the drawee, when notified of the assignment, must 
 pay accordingly, although there is no formal acceptance either 
 WTitten or verbal. Ih. So, where the owners of certain securities 
 assign them in trust to discharge certain specified debts, " the 
 balance to be held subject to their order," and the assignees 
 accept the trust, and the assignors afterwards give an order on 
 them for the balance, of which they are properly notified, it is 
 held that the payee of the order may recover against them to the 
 extent of the balance in their hands, though they have not form- 
 ally accepted the order, because the acceptance of the triist is in 
 effect a promise to the payee of the order. Weston v. Barker, 12 
 Johns. 276. 
 
 There is one important distinction between negotiable bills of 
 exchange, and orders for the delivery of goods, when the owner 
 of them draws an order for their delivery, which is shown to 
 the person who has them in his possession. In the former case 
 the drawee is not liable before he accepts the bill, but in the 
 case of an order for goods, the title to them passes to the payee 
 of the order whether the drawee accepts it or not. The order 
 operates a transfer of the title: So, when an order is drawn 
 upon a particular fund, as in the case of the rents just mentioned, 
 the title is transferred by the order by way of an assignment, and 
 no acceptance is necessary. But, in all such cases, whether of 
 an order upon a particular fund or that of an order for goods, 
 the payee must show that the drawer had title to the fund, or 
 that he owned the goods, unless the drawee accepts the order, 
 which is an admission of the right of the drawer to the property 
 or the fund. 
 
 Without such acceptance or proof of the drawer's title to the 
 fund or goods, no action can be maintained by the payee or his 
 assignee. It has been seen that negotiable promissory notes for 
 the payment of money differ from chattel notes in relation to 
 negotiability, and as to the equities of prior parties to the paper, 
 or prior holders of it. But there are other points in relation 
 to chattel notes which it is important to understand and to ob- 
 
BILLS AND NOTES. 549 
 
 serve in practice. It is a general rule that a party wlio is bound 
 to render a particular service, or to make a payment in money 
 by a given day, must seek the party to whom the duty or the 
 debt is due. In relation to notes payable in specific articles, 
 the law is well settled upon nearly all important questions. This 
 kind of notes sometimes raises questions as to the time when and 
 the place where they are payable. They may, however, be prin- 
 cipally reduced to four classes: 1. When the note is made by a 
 mechanic, manufacturer, merchant or producer of the article; 
 2. When there is no time or place of payment mentioned in the 
 note, whether it is made by a mechanic, etc., or by any other 
 person; 3. When the note is payable on demand, but no place 
 of payment is specified; 4. When the note specifies both the 
 time and place of payment. 
 
 First. When a chattel note is made by a mechanic, manufac- 
 turer, merchant or producer, and the note does not specify any 
 place of payment, the general rule is, that the payee of the note, 
 or his assigTiee, must go to the shop of the mechanic, the manu- 
 factory or warehouse of the manufacturer, the store of the mer- 
 chant, or the farm of the producer, and demand the property 
 specified in the note. And in such cases, luitil a demand is made 
 at such places, no breach of the maker's contract exists, and no 
 action can be maintained against him. The reason of this rule 
 is evident, and the rule itself is a just one. Every person who 
 manufactures or produces articles to sell, or who keeps them for 
 sale as a business, is presiuned to have facilities, at those places, 
 for the delivery of the articles which he makes or keeps for sale ; 
 and it is also presumed that he will always be properly supplied 
 with such articles as he has promised to deliver, whenever they 
 are called for at such place, while he could not be expected to be 
 so supplied with the articles elsewhere. 
 
 A merchant gave a due bill, payable to A. or order, for $2,000, 
 payable in merchandise out of his store, on demand, at a place 
 specified by street and number, in the city of New York, and the 
 goods were to be sold and delivered at a price not more than 
 twenty-five per cent above the cost price. It was held that the 
 terms of the note were complied with, by delivering goods at 
 prices twenty-five per cfent above cost to the merchant, thougk 
 that price might be much more than twenty-five per cent above 
 the wholesale market price, at the time of delivering such goods ; 
 and also that the merchant was at liberty to continue selling his 
 goods, without replenishing the stock, until demand for delivery 
 
550 BILLS AND NOTES. 
 
 in full of the contract; and that, so long as the merchant re- 
 tained sufficient goods 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 the stock at the date 
 of the contract; and further, that after a reasonable notice by 
 the merchant to the other party, to select his goods at the place 
 named in the note, such party was bound to accept them at any 
 other reasonably convenient place in the same city, to which they 
 might be removed ; and that a subsequent demand, at the original 
 place or elsewhere, for a delivery of the goods at the original place, 
 was ineffectual for the purpose of rendering the maker liable 
 to pay in money. Buch v. Burk, 18 X. Y. 337. Such a con- 
 tract or note authorizes the person who is entitled to receive the 
 goods, to demand them in parcels. lb. But a refusal to deliver 
 goods to the value of twenty dollars, which had been packed up 
 in boxes for removal, after the notice to the party to call for his 
 pay at the vendor's original location, does not constitute a breach 
 of the contract. Ih. 
 
 A note, payable in specific articles, may be demanded in par- 
 cels ; but A^-here an article has been made to order for a customer, 
 such article cannot be properly demanded in payment of the note. 
 Vance v. Bloomer, 20 ^Yend. 196. 
 
 Second. When a chattel note is given, and no time or place of 
 payment is specified, the holder of the note must make a demand 
 of the articles' at the maker's place of business or sale, before an 
 action will lie upon the note, lb.; Lohdell v. Hopkins, 5 Cow. 
 516 ; Durkee v. Marshall, 7 Wend. 312 ; Gook v. Ferrall's Admrs., 
 13 Wend. 285. 
 
 Where a chattel note specifies a time of payment, but does not 
 mention any place for it, the note is payable at the residence of 
 the creditor, if the articles are portable. Goodwin v. Holbrook, 4 
 Wend. 377. As we have seen, the general rule is, that the .store 
 of the merchant, etc., is the place of payment, where the contract 
 is silent as to place of pajonent. But this rule ceases, where the 
 contract is modified by collateral circumstances which show that 
 a different place of pajonent was intended. When the goods are 
 a subject of general commerce, and are purchased in large quan- 
 tities for reshipment, and the purchaser resides at the place of 
 reshipment, and has at such place a storehouse and dock for that 
 purpose, his place of business is ordinarily the place of delivery. 
 Bronson v. Gleason, 7 Barb. 473. Where a manufacturer of salt 
 at Liverpool execiited a writing as follows ; " I have this day 
 
BILLS AND l^OTES. 551 
 
 agreed with Bronaon & Crocker, of Oswego, to sell them one boat 
 load of salt per Aveek, and deliver the same to them, in good order, 
 equal to four hundred barrels each week, from this time to the 
 first of ISTovember next," etc. ; it was held, that, upon the reason- 
 able construction of the agreement, in connection with the sur- 
 rounding circumstances, the salt was to be delivered at Oswego. 
 II. 
 
 When it appears, or is necessarily implied from the terms of 
 the contract and the nature of the articles that are to be received 
 in payment, that it was the intention of the parties that the debtor 
 is to deliver the articles at his residence, or otherwise, when re- 
 quested by the creditor, a special request to deliver them must 
 be made to the debtor before he can be sued for the non-perform- 
 ance of the contract. Counsel v. Vulture Mining Co., of Arizona, 
 
 5 Daly, 74. 
 
 Where a note is payable in specific articles, which are to be 
 delivered by the maker at the residence of the payee, by a time 
 named, but a timely selection of the articles is to be made by the 
 payee, who makes no selection, thou.gh prior to the time for pay- 
 ment he instructs the maker not to send any of the articles until 
 he gives notice of what articles he wants, the maker is not thereby 
 discharged from his liability on the contract. OiTbert v. Danforth, 
 
 6 JSr. Y. 585. The payee, by such instructions and failure to 
 select, does not lose his right of selection, unless the maker, before 
 such right is exercised, has paid the amount of the note in arti- 
 cles of his own selection. Ih. Where such a note remained un- 
 paid for two years after it became due, and the payee then named 
 the articles which he required in payment, and demanded them 
 'of the maker, it was held that a neglect or refusal by such maker, 
 to comply with the demand in a reasonable time, rendered him 
 liable to pay the amount in money. Ih. 
 
 When a chattel note is payable at a particular place, other than 
 the residence of the promisee, it is the duty of the promisor, after 
 making the delivery at that place, to notify the promisee of such 
 delivery, without delay. Newcomb v. Cramer, 9 Barb. 402. 
 
 Third. Where such a note is payable on demand, a special de- 
 mand is necessary before an action can be maintained upon it. 
 So, a note which is given by one who keeps a saw mill and lum- 
 ber yard, for a specified sum, " payable in lumber, at cash price, 
 when called for," vsdthout mentioning a day or place of payment, 
 requires a demand at the mill yard, before an action can be 
 
552 BILLS AND IfOTES. 
 
 maintained. Rice v. Churchill, 2 Denio, 145. A demand at the 
 mill yard is sufficient, though neither the maker nor any one au- 
 thorized to make the payment, is found there. lb. If, upon such 
 demand, the maker be absent, it may be made of any one in 
 charge ; and if there be no such person, it may be made publicly. 
 Ih. The maker of such an engagement is bound to be at the place 
 of payment at all reasonable hours, prepared to perform the agree- 
 ment, lb. 
 
 Fourth. When a chattel note specifies a time and place of pay- 
 ment it is the duty of the maker to pay the note at such time and 
 place "without any previous demand; and a neglect or refusal 
 to do so will render him liable to pay the amount in money. 
 Where a note is payable in ponderous articles, at a day certain, 
 but no place of payment is specified, the maker of the note ought^ 
 if he desires to make a tender, to seek the payee or holder of the 
 note before the day of payment, and ascertain where he will have 
 the articles delivered ; and if a reasonable place is named, he is 
 bound to deliver them at that place. Barns v. Graham, 4 Cow. 
 452. If the note is payable generally, or at a place specified, the 
 articles ought not to be tendered in bulk, mixed and undistin- 
 guishable from others of the same kind ; but they should be sepa- 
 rated and distinguished, so that the payee may know what to 
 take. n. 
 
 When portable articles are to be delivered in payment of a 
 chattel note, on or before a specified day, but no place of pay- 
 ment is specified, the residence of the creditor is the place of 
 payment. La Farge v. Richert, 5 Wend. 187 ; Goodwin v. Hol- 
 brooTc, 4 Wend. 377. But when such a note is payable on demand, 
 or is payable in articles which are manufactured, etc., by the 
 maker, the note is payable at the maker's place of business. See 
 ante, p. 549. 
 
 § 8. Consideration of Bills and Notes. 
 
 The subject of the consideration of contracts generally has been 
 discussed in another chapter. See ante, p. 6. There are some 
 features of the subject that may, however, be conveniently and 
 properly noticed in this place. 
 
 As between the original parties to a note or bill, there is the 
 same necessity for a consideration that there is in the case of any 
 other contract which they may make. And between these parties 
 the question of consideration, either as to its sufficiency, validity 
 
BILLS AISTD NOTES. 553 
 
 or legality, is always open as a defense in an action on the note. 
 But mere inadequacy of consideration, except as a circumstance 
 bearing upon the question of fraud or undue influence is no de- 
 fense to such action. Earl v. Peck, 64 IT. Y. 596 ; Miller v. Mc- 
 Kenzic, 95 N. T. 575 ; Gowee v. Cornell, 75 IST. Y. 91 ; Worth v. 
 Case, 42 N. Y. 362 ; Sawyer v. Chambers, 4:4: Barb. 42. "Absence 
 or failure of consideration is a matter of defense as against any 
 person not a holder in due course ; and partial failure of consid- 
 eration is a defense pro tanto whether the failure is an ascertained 
 and liquidated amount or otherwise." General Laws, ch. 50, § 54. 
 See Sawyer v. Charnbers, 44 Barb. 42 ; Richardson & Morgan Co. 
 V. Gudewill, 30 Misc. 818. 
 
 " Every negotiable instrument is deemed prima facie to have 
 been issued for a valuable consideration ; and every person whose 
 signature appears thereon to have become a party thereto for 
 value." General Laws, ch. 50, § 50. " Value is any considera- 
 tion sufficient to support a simple contract. An antecedent or 
 pre-existing debt constitutes value; and is deemed such Avhether 
 the instrument is payable on demand or at a future time." Id. 
 § 51. " Where value has at any time been given for the instru- 
 ment, the holder is deemed a holder for value in respect of all 
 parties who became such prior to that time." Id. § 52. " Where 
 the holder has a lien on the instrument, arising either from con- 
 tract or by implication of law, he is deemed a holder for value 
 to the extent of his lien." Id. § 53. 
 
 Where a party sued upon a note denies any consideration and 
 alleges that it was not given for value, the plaintiff may rely, in 
 the first instance, on the presumption in his favor, and thereupon 
 the defendant is entitled to prove the circumstances under which 
 the note was given. Harding v. Jenkins, 26 Misc. 829. 
 
 It has been held that a promissory note, though not negotiable, 
 imports a consideration, though none is expressed. Paine v. 
 NoelJce, 53 How. 273; 54 How. 333; 11 Jones & Sp. 184; Cam- 
 right V. Gray, 57 Hun, 518 ; 127 N. Y. 92. And it has been held 
 that in an action upon such a note it is not necessary to allege 
 or prove a consideration, and that the burden of showing a want 
 of consideration is upon the defendant, lb. These decisions were 
 based upon the provisions of the Eevised Statutes on the subject 
 of promissory notes (IE. S. 768), and upon the decisions prior 
 to and subsequent to the statute of Anne (3 & 4 Anne, c. 9), of 
 which the provisions of the Revised Statutes were a substantial 
 
354 BILLS AXD XOTES. 
 
 re-enactment. These provisions of the Eevised Statutes were re- 
 pealed by the Xegotiable Instruments Law (eh. 612, Laws of 
 1897), and it has since been held that there are no provisions in 
 the present law warranting a court in holding that a note contain- 
 ing no words of negotiability, and expressing no consideration, 
 imports a consideration. It was, therefore, held that the burden 
 is upon a party suing upon such note to prove the existence of a 
 consideration therefor by extrinsic evidence. Deyo v. Thompson, 
 53 App. Div. 9. 
 
 ''An accommodation party is one who has signed the instrument 
 as maker, drawer, acceptor or indorser, without receiving value 
 therefor, and for the purpose of lending his name to some other 
 person. Such a person is liable on the instrument to a holder for 
 value, notwithstanding such holder at the time of taking the in- 
 strument knew him to be only an accommodation party." Gen- 
 eral Laws, ch. 50, § 55. See Boss v. Bedell, 5 Duer, 462, 467 ; 
 Grant v. ElUcott, 7 Wend. 227; Commercial Bank v. Norton, 1 
 Hill, 501; East River Bank v. Butterworth, 45 Barb. 476; 30 
 How. 444 ; 51 X. Y. 476 ; CVapp v. Cooper, 31 Misc. 466 ; Na- 
 tional Bank v. White, 19 App. Div. 390 ; Harger v. Worrall, 69 
 ISr. Y. 370. 
 
 It is a valid defense to an action brought on a promissory note 
 against the maker by the person to whom he delivered it, that the 
 note was without consideration, and was delivered upon condition 
 that the maker should not be liable thereon. Higgins v. Ridgway, 
 90 Hun, 398; 153 jST. Y. 130. In the case cited, the note was 
 made for the accommodation of the bank bringing the action, at 
 the request of its president, and was credited to a firm, having 
 large dealings with the bank, the senior member of which was an 
 officer of the bank. The note was drawn payable to the order of 
 the maker and indorsed by him. 
 
 So, where, at the time a note is discounted, there is a distinct 
 understanding between the maker of the note and the payee, which 
 is stated at the bank at which it is discounted, that the maker 
 should incur no liability by the signing of the note, he will not 
 be held liable thereon to the bank which discounted it. Garfield 
 Nat. Bank v. Colwell, 57 Hun, 169. But, in the absence of any 
 allegation or proof that such understanding was had with the 
 bank, or that the bank engaged with the maker that he should 
 incur no liability on the note, the agreement and understanding 
 between the maker and payee will be no defense to an action by 
 
BILLS AND NOTES. 555 
 
 the bank discounting the note. Higgins v. O'Donnell, 68 Hun, 
 100. An answer denying that the holder of the note, who knew it 
 to be accommodation paper, paid value therefor, will not sustain 
 a defense that there was an agreement between the holder, the 
 maker and the payees of the note that the maker should not be 
 held liable thereon. National Bank v. White, 19 App. Div. 390. 
 The drawer of a bill cannot maintain an action upon it against 
 the drawee, who has accepted it for his accommodation. Rey- 
 nolds V. Doyle, 1 Man. & Grang. Y53 ; Sparrow v. Chisman, 9 
 Barn. & Cress. 241 ; Thompson v. Clubley, 1 Mees. & Wels. 212. 
 Where a note is indorsed for the accommodation of the maker, 
 or a bill is accepted for the accommodation of the drawer, with- 
 out any restriction, and it is negotiated to a third person, who 
 pays value for it, the party receiving it is entitled to recover 
 upon it, against siich indorser or acceptor, notwithstanding the 
 purchaser took it with full knowledge that it was accommodation 
 paper. Ross v. Bedell, 5 Duer, 462, 467; Orant v. Ellicoti, 7 
 Wend. 227 ; Smith v. Knox, 3 Esp. 46 ; Commercial Bank v. 
 Norton, 1 Hill, 501 ; National Bank v. White, 19 App. Div. 390. 
 So, where a note is made for the accommodation of the indorser, 
 without any restrictions as to its use, it may be used by him for 
 his business purposes, and the holder, even though he took it with 
 knowledge of its origin, may recover against the maker to any 
 amount for which he holds the note as security, not exceeding 
 the sum named in the note. East River Bank v. Butterworth, 
 45 Barb. 476; 30 How. 444; 51 K Y. 476. 
 
 In the absence of proof of fraud or misappropriation, the pre- 
 sumption is that the indorsee of a negotiable bill or note is a 
 hona fide holder for value, and this presumption is not repelled 
 merely by proof that the instrument, as between the immediate 
 parties, was without consideration, and was made, indorsed and 
 accepted by one for the sole accommodation of the other. When 
 no other proof is given, the holder is not bound to prove a valu- 
 able consideration. Harger v. Worrall, 69 ~S. Y. 370 ; Merchants 
 & Traders' Bank v. Crow, 60 N. Y. 85. 
 
 But where it is shown that the bill or note, in respect to the 
 defendant in the action, was fraudulently put into circulation or 
 negotiated, or that it was lost or stolen, the plaintiff is not en- 
 titled to recover without proof that he parted with value for it 
 when it came into his hands. Ross v. Bedell, 5 Duer, 462, 467 ; 
 Berry v. Alderman, 5 J. Scott (14 C. B.), 95; Smith v. Braine, 
 
556 BILLS AXD :C^OTES. 
 
 16 Ad. & E. ]Sr. S. 244; Bailey v. Bidwell, 13 Mees. & Wels. 76; 
 Harvey v. Towers, 6 Exch. 656; May v. Seyler, 2 Exch. 563, 
 566 ; Edmunds v. Groves, 2 Mees. & Wels. 642 ; Ocean Nat. Bank 
 V. Carll, 55 N. Y. 440 ; Northampton Nat. Bank v. Kidder, 106 
 ]Sr. Y. 221 ; First Nat. Bank v. Green, 43 IST. Y. 298 ; Farmers & 
 Citizens' Nat. Bank v. Noxon, 45 IST. Y. 762. In sucli case it is 
 not sufficient for the plaintiiff to show simply that he purchased 
 before maturity and paid value. When it appears that the note 
 in suit is fraudulent as between the payee and the maker, the 
 effect of this evidence is to shift the burden of proof and to ren- 
 der it necessary for the plaintiff to show not only the payment of 
 value, but under what circumstances he became the holder of the 
 note. Citizens' Nat. Bank v. Weston, 162 N. Y. 113 ; Voshurgh 
 V. Diefendorf, 119 IST. Y. 357 ; Canajoharie Nat. Bank v. Diefen- 
 dprf, 123 ]Sr. Y. 191, 201, 202 ; Joy v. Diefendorf, 130 N. Y. 6 ; 
 Smith V. Weston, 159 N. Y. 194, 198, 199. 
 
 So, where an accommodation bill or note is made for a special 
 purpose, such, for instance, as to enable the maker to obtain a 
 discount at a particular bank, or to raise money in a given way 
 to pay a certain draft, the maker has no right to use the note in 
 any other way; and if he does so, it is a fraudulent diversion of 
 the note from its original object and design; and if the person 
 who received it from the maker knew the circumstances and the 
 terms upon which such indorsement was made, or if he is charge- 
 able with notice thereof, he cannot recover on it against the in- 
 dorser. Easson v. Smith, 8 Werid. 437 ; Brown v. Taber, 5 
 Wend. 566 ; Dennis-ton v. Bacon, 10 Johns. 198 ; Skilding v. 
 W'arren, 15 Johns. 270 ; Rochester v. Taylor, 23 Barb. 18 ; Prall 
 V. Hinchman, 6 Duer, 351 ; Farrington v. Frankfort Bank, 31 
 Barb. 183 ; Nickerson v. Buger, 76 N. Y. 279 ; Farmers & Citi- 
 zens' Nat. Bank v. Noxon, 45 IST. Y. 762. 
 
 But, although negotiable paper is diverted from the purpose for 
 which it was made, a bona, fide holder, for value, may recover upon 
 it. Ayrault v. McQueen, 32 Barb. 305 ; Small v. Smith, 1 Denio 
 683 ; Boyd v. Cummings, 17 N. Y. 101 ; Nickerson v. Buger, 84 
 N. Y. 675. 
 
 A surrender by a creditor to his debtor of a security sufficient 
 to have paid the debt due to the former, is a sufficient payment 
 of value to constitute a valid purchase. Ayrault v. McQueen, 32 
 Barb. 305. So, whenever a creditor surrenders up an existing 
 note, and receives in exchange such accommodation note, in good 
 
BILLS AXD iSTOTES. 557 
 
 faith, this is paying value for it, so as to render the accommodation 
 indorser liable to pay the note. Youngs v. Lee, 12 'S. Y. 551; 
 Seneca County Banh v. Neass, 3 E". Y. 443 ; SteWieimer v. Meyer, 
 33 Barb. 215 ; Laihrop v. Morris, 5 Sandf. 7 ; White v. Spring- 
 field Banh, 3 Sandf. 222. And it makes no difference whether 
 the note surrendered was due, or not due, at the time of giving 
 it up in exchange for the substituted note. Stettheimer v. Meyer, 
 33 Barb. 215 ; Youngs v. Lee, 12 N. Y. 551 ; S. C, 18 Barb. 187. 
 
 So, where an accommodation note is received by a creditor as 
 payment of a debt or an account against his debtor, and the 
 amount is credited to him, or a receipt is given for the amount, 
 this is paying value so as to enable the creditor to recover on the 
 note against the accommodfvtion maker or indorser. Purchase v. 
 Mattison, 3 Bosw. 310 ; S. C, 6 Duer, 588 ; De Zeng v. Fyfe, 1 
 Bosw. 335. See, however. Spear v. Myers, 6 Barb. 445. See 
 NicJcerson v. Euger, 84 IST. Y. 675 ; and Phoenix Ins. Co. v. 
 Church, 81 K Y. 218, and Laws of 1897, ch. 612, § 51. But 
 when a creditor receives such accommodation note as a collateral 
 security, and not as a payment of the debt due to him, he is not a 
 holder for value, and he cannot recover against such accommoda- 
 tion maker or indorser. White r. Springfield Bank, 3 Sandf. 222 ; 
 S. C, 1 Barb. 225 ; Goldsmid v. Lewis County Bank, 12 Barb. 
 407 ; American Exchange Bank v. Corliss, 46 Barb. 19. 
 
 A promissory note was indorsed for the accommodation of the 
 maker, and was transferred by him before maturity to a judgment 
 creditor as security for the payment of his judgment, and in 
 consideration of the discontinuance of proceedings supplementary 
 to the execution then pending against the maker ; such discontinu- 
 ance was held to make the creditor a holder for a valuable consid- 
 eration, and that not having any notice of any restriction im- 
 posed upon the maker as to the use to be made of the note, he 
 could recover against the indorser. Boyd v. Cummings, 17 N. Y. 
 101. 
 
 The drawer of an accommodation check cannot set up any other 
 defense against a bona fide holder than would be competent to 
 him had he delivered the check for value. Harheck v. Craft, 4 
 Duer, 122. So, the maker of a promissory note for the accommo- 
 dation of the payee, cannot set up as a defense, in cases exempt 
 from fraud, that the note was transferred to the plaintiff, in satis- 
 faction of a pre-existing debt, or that it was taken as a collateral 
 security therefor. De Zeng v. Fyfe, 1 Bosw. 335 ; Lathrop v. 
 
558 BILLS AXD XOTES. 
 
 Morris, 5 Sandf. 7 ; Bank of Rutland v. Buck, 5 Wend. 66 ; 
 Orandin v. Le Roy, 2 Paige, 509. There is a distinction which 
 ought to he observed in relation to these notes. Where a note or 
 hill is made for the accommodation of an individual, and there is 
 no restriction as to the use which he is to make of it, such indi- 
 vidual may get it discounted for cash, or he may pay an old debt 
 with it, or he may turn it out as a security for the payment of an 
 old debt, and the creditor may recover upon it as against such 
 maker or indorser. 
 
 But where the note is made for a special purpose, and it is di- 
 verted from that purpose, and the creditor receives it with notice 
 of that fact, or he receives it as a mere collateral security of a 
 debt due to him, he cannot recover against such accommodation 
 maker or indorser ; though, as we have seen above, the creditor 
 may recover upon the note, if he has received it absolutely in 
 payment. 
 
 Upon grounds of public policy growing out of commercial con- 
 venience or necessities, a holder of negotiable paper may, under 
 certain circumstances, recover upon it, notwithstanding any defect 
 in the title of the person from whom he derived it ; even though 
 such person may have obtained or acquired it by fraud, theft, or 
 robbery. Hall v. Wilson, 16 Barb. 548; Stalker v. McDonald, 
 6 Hill, 93 ; Miller v. Race, 1 Burr. 452, and 1 Smith's Lead. Cas. 
 250, where numerous cases are collected. But this rule does not 
 apply, where negotiable securities have been obtained and put 
 into circulation fraudulently, feloniously, or without considera- 
 tion, unless the person who has them became a holder thereof in 
 good faith, for a full and fair consideration, in the usual course 
 of business, and without notice of the invalidity of the title. lb. 
 W. made a promissory note for $120, payable to U., or bearer. 
 The note was never delivered, but was placed by the maker in 
 his desk as a place of deposit, from whence it was stolen by B., 
 a laborer in his employ, and was by him transferred to one Bigelow 
 for $115. Before the note became due, Bigelow transferred it 
 to the plaintiff; and it was held that he could not recover upon 
 it, because the note never had a legal inception, for want of a 
 delivery; that the transfer to Bigelow was void for usury; and 
 also because the note was not taken by him bona fide, for a full 
 and fair consideration, in the usual course of business. Hall v. 
 Wilson, 16 Barb. 548. 
 
 The old established rule of law that the holder of bills, bank 
 
BILLS AND NOTES. 559 
 
 notes, etc., can give a title which he does not possess, to a person 
 taking them bona fide for value, is not to be qualified by treating 
 it as essential that the person should take them with due care and 
 caution; except so far as the want of such care and caution may- 
 affect the bona fides and honesty of the transaction. Steinhart 
 V. Boker, 34 Barb. 436. 
 
 Where there is a total want of consideration for a promissory 
 note, bill of exchange, or check, that fact may always be shown 
 to defeat a recovery thereon, if the defense is interposed while 
 the matter is between the original parties. So, between the imme- 
 diate parties to a bill, note, or check, it will always be a good 
 defense to show that the instrument was obtained by duress, by 
 fraud, by false pretenses, or while the defendant was in a state of 
 complete intoxication, or it may be shown that the note was de- 
 posited as an escrow, and that it was delivered in violation of 
 that agreement, or that the note was not to become operative until 
 a specified condition has been performed. Ante^ p. 535. Moore- 
 V. Cocleroft, 4 Duer, 133. 
 
 oSTo action can be maintained upon a note which was obtained 
 by the fraud of the payee and holder. Barber v. Kerr, 3 Barb. 
 149 ; Walker v. Squires, Hill & Denio, 23 ; New York & Vir- 
 ginia, &c.. Bank v. Gibson, 5 Duer, 574. 
 
 If a promissory note is given to a vendor on the sale of goods, 
 and chattels, and he fraudulently represented the goods to be of 
 great value, when they were in fact worth nothing, the vendor 
 cannot maintain an action upon such note. Sill v. Rood, 15- 
 Johns. 230; Shepherd v. Temple, 3 N. H. 455. If the vendor 
 was guilty of fraud in obtaining the note by a fraudulent sale 
 of goods, or by perpetrating any other fraud upon the maker of 
 the note, such vendor cannot recover upon the note. And in 
 such cases of fraud the purchaser need not offer to return th& 
 goods in order to maintain his defense, if he can show that the 
 goods are of no value whatever. Burton v. Stewart, 3 Wend. 236. 
 
 But, in ordinary cases, if the goods are of any value, the pur- 
 chaser ought to return, or offer to return, them to the vendor, if 
 he would make a complete defense to an action upon the note. 
 Ih. The purchaser may, however, retain the property, and if 
 there was a fraud or a warranty in relation to the sale of the 
 goods which constitutes the consideration of the note, he may, 
 as against the vendor, if he sues upon the note, recoup the dam- 
 ages arising from the fraud or warranty, and thus diminish the 
 
560 BILLS AND NOTES. 
 
 amount of the recovery upon the note. When it is important to 
 rescind a contract, the law must be complied with. See Rescis- 
 sion. 
 
 Where a bill is accepted, or a promissory note is given, and the 
 consideration for such bill or note is an executory promise of 
 the drawer of the bill, or the maker of the note, to do some future 
 act, such consideration is sufficient to render the instrument valid 
 in the hands of one who paid full value for it, although he knew 
 of the agreement, but did not know of the breach thereof, at the 
 time of his purchase. Davis v. McCready, 17 N. Y. 230, 232. 
 " If one will issue his negotiable paper and send it into the world, 
 in consideration of an engagement of the party with whom he 
 deals to do some act for his benefit in future, he declares in effect 
 that he will pay the note or bill according to its terms to any one 
 who shall become the holder, for value, in the course of business, 
 and rely for his own indemnity iipon the promise he has received 
 as the consideration for issuing it." Ih., Denio, J. 
 
 Before an action upon a bill or note can be defeated entirely 
 and absolutely, it must be shown that it was obtained by fraud, 
 or that the consideration is illegal, or that there never was any 
 consideration whatever, or that if there once was a consideration, 
 that it has totally failed. If there is any consideration whatever 
 that will be sufficient to sustain the action. And where a vendor 
 sells goods or chattels without warranty, and without any fraud 
 on his part, he may recover upon a promissory note given for the 
 purchase-price, although the article sold turns out to be a differ- 
 ent one from what it was supposed to be, and although it is nearly 
 worthless. Welsh v. Carter, 1 Wend. 185 ; Johnson v. Titus, 2 
 Hill, 606. 
 
 Mere inadequacy of consideration is no defense to a bill or 
 note, though a total want or failure of consideration is a full de- 
 fense, and a partial failure thereof is a good defense so far as it 
 is proved. The general rule is, that no action will lie upon a 
 bill or note founded upon an illegal consideration as between the 
 original parties to it. So, it is a general rule, that when a nego- 
 tiable instrument has passed into the hands of a bona fide holder, 
 for value, in the ordinary course of business, he may recover upon 
 it. There are some exceptions to the latter rule in those cases 
 in which the statute declares the note void, as in cases of usury. 
 See Illegality. 
 
 No person is considered to be a hona fide holder of negotiable 
 
BILLS AND N^OTES. 561 
 
 paper unless he acquires it before it becomes due, in good faith, 
 and for value. The person termed a " bona fide holder " in the 
 reports and text-books is called a " holder in due course " in the 
 Negotiable Instruments Law. Both of these names must of neces- 
 sity be now used in treating of this subject, bilt both refer to the 
 same person, endowed with two names, but possessing identical 
 rights, privileges and limitations. 
 
 If a bill or note is dishonored by its non-payment, this is suffi- 
 cient to put a person who proposes to take it upon his guard, and 
 to require him to make inquiries about it. If he takes it without 
 such inquiry, he will take it subject to all the equities existing 
 against it, and his only remedy will be against the person transfer- 
 ring the paper to him. A holder of negotiable paper in good faith 
 is one who purchases or receives it without notice or knowledge of 
 the facts or circumstances which tend to impeach its validity, or to 
 diminish the amount recoverable upon it. If a person takes nego- 
 tiable paper before it is due, but with full knowledge of the facts 
 and circumstances which impeach its validity, he cannot recover 
 upon it, although he paid full value for it. So, in every case, the 
 holder of a bill must have given value for it, if he would avoid 
 existing equities, even when taken before due. And when the 
 holder claims to hold negotiable paper, as against the true owner, 
 from whom it has been stolen, he must always show himself to be 
 a purchaser in good faith and for value. 
 
 Accommodation paper stands upon grounds somewhat different 
 from other negotiable instruments. If an accommodation bill or 
 note is made and put into circulation, the holder who has ad- 
 vanced the money upon it may recover upon it against any of 
 the parties to it, notwithstanding there was no consideration for 
 it, as between the parties to it, and although no action could have 
 been maintained upon it between the original parties. When 
 paper of that kind is put into circulation, it is both a request to 
 advance the money upon it, and a promise to repay the amount 
 so advanced, and this is a sufficient consideration to bind any 
 one whose name is upon the instrument as a party to it. Ante, p. 
 553. The person for whose accommodation a promissory note is 
 made or indorsed, or for whom a bill of exchange is accepted, is 
 bound to indemnify the maker, indorser or acceptor, as the case 
 may be. Wright v. Qarlinghouse, 26 N. Y. 539, reversing 8. C, 
 27 Barb. 474 ; Suydam v. Westfall, 2 Denio, 205. 
 
 The person for whose benefit an accommodation bill or note 
 36 
 
562 BILLS AND NOTES. 
 
 has been made, can never recover upon it as against any of the 
 persons vyho made, indorsed or accepted such paper for his use 
 and benefit. Thurman v. Van Brunt, 19 Barb. 409. In the case 
 of an accommodation bill, the acceptance is prima facie evidence 
 that the acceptor has funds of the drawer in his hands ; but this 
 presumption may be rebutted. So, the making of an accommoda- 
 tion note is prima facie evidence of an indebtedness of the maker 
 to the payee, though this presumption is also liable to be rebutted. 
 If the accommodation maker, indorser or acceptor is compelled 
 to pay the paper so made, indorsed or accepted by him, he may 
 recover the amount from the person for whose accommodatiorr 
 it was made. But, in such a case, the action is not founded upon 
 the accommodation paper, but for money paid ; in which case the 
 instrument will become a part of the evidence to show the defend- 
 ant's liability. Bonney v. Seely, 2 Wend. 481 ; Ainslee v. Wil- 
 son, 7 Cow. 668 ; Suydam v. Westfall, 2 Denio, 205 ; Wright v. 
 Garlinghouse, 26 N. Y. 539. The complaint may, however, state 
 all the facts showing the defendant's liability, including a copy of 
 the accommodation paper. Wright v. Garlinghouse, 26 N. Y. 539 ; 
 27 Barb. 474 . 
 
 § 9. Guaranty of Bills and Notes. 
 
 The law relating to contracts entered into by a principal debtor 
 and svirety with third persons has been discussed in a preceding 
 chapter as fully as the space allotted to the subject would permit. 
 Much that is there said is applicable to contracts of guaranty as 
 well as to contracts of suretyship, and in many of the decisions 
 of the coiirts of this State but little if any distinction is made 
 between the two classes of contracts, and the terms " guarautor " 
 and " surety " are used as if synonymous. A guaranty, accord- 
 ing to the definition given by some of the elementary writers 
 and apparently adopted by our courts, isi a promise to answer for 
 the payment of some debt, or the performance of some duty, in 
 case of the failure of another person, who, in the first instance 
 is liable for such payment or performance. Gallagher v. Nichols, 
 60 N. Y. 438. See Winchell v. Doty, 15 Hun, 1. This definition 
 is broad enough to include very many contracts of suretyship. 
 
 In connection with the discussion of the rights, obligations and 
 liabilities of principals and sureties the nature of the liability 
 created by contracts of guaranty of payment or of collection of 
 bills and notes was considered, and the distinction between the two 
 classes of contracts pointed out. See ante, p. 506. 
 
BILLS AND NOTES. 563 
 
 The contract of guaranty, whether written upon a note at the 
 time of its execution and delivery or at a subsequent time, or 
 whether written upon a separate paper, is no part of the note, 
 and the guarantor is in no sense a party to the note. Promissory 
 notes are negotiable only by virtue of the statute, and the nego- 
 tiable quality is not extended to any other instrument relating 
 to the note Lamourieux v. Hewitt, 5 Wend. 307. Therefore a 
 contract of guaranty, though indorsed upon a negotiable note, 
 and drawn in general terms warranting its collection, is not of 
 itself negotiable under the statute or law merchant. lb. 
 
 But this doctrine does not seem to be recognized in the more re- 
 cent cases. See Herrich v. Guarantor's Finance Co., 58 App. Div. 
 30. And, though a guaranty may not be negotiable under the law 
 merchant or statutes relating to negotiable instruments, it is assign- 
 able under the Code. Code of Civil Procedure, § 1910. And 
 when a contract of guaranty is written upon a negotiable note, 
 and the note is transferred, nothing being said touching the guar- 
 anty, the contract of guaranty passes with the note. The sale and 
 delivery of the note with the guaranty upon it furnishes -prima 
 facie evidence of a sale of the contract of guaranty. Cooper v. 
 Dedrick, 22 Barb. 516. Such a guaranty is not special in the 
 sense that it is limited to the particular person addressed, but 
 being written upon an instrument transferable from person to 
 person by indorsement, is to be construed as evidencing an inten- 
 tion on the part of the guarantor to undertake to pay the note to 
 the person or persons to whom the note and guaranty are deliv- 
 ered, or to the person or persons to whom the contracts are trans- 
 ferred. McLaren v. Watsons Exrs., 26 Wend. 425 ; Ever son v. 
 Oere, 40 Hun, 248 ; 122 K Y. 290. Such transfer of title to the 
 guaranty does not arise by force of any statute or custom of 
 merchants, but by force of the contract itself as construed by the 
 rules applicable to other contracts. 
 
 The old question whether an action upon the guaranty of a note 
 must be brought in the name of the person to whom it was given, 
 or whether it might be brought in the name of the person who was 
 the holder and owner at the time the right of action accrued 
 thereon, has ceased to be of importance, and since the Code, the 
 person who is the holder of a note upon which is indorsed a gen- 
 eral guaranty of payment may maintain an action upon the guar- 
 anty unless it should be shown that the contract of guaranty was 
 not transferred at the time the note was transferred. Cooper v. 
 Dedrich, 22 Barb. 516, And see McLaren, v. Watson's Exrs., 26 
 
564 BILLS AND NOTES. 
 
 Wend. 425 ; 9 Wend. 557. But when a subsequent holder of a 
 promissory note sues upon a guaranty indorsed therebn, claiming 
 that the guaranty passed to him on the transfer of the note, it is 
 competent for the guarantor to show that it was not the intention 
 of the parties that the guaranty should accompany the note on 
 the transfer of the latter to the plaintiff, but that, on the con- 
 trary, it was expressly agreed that he should take the note at his 
 own risk. Gallagher v. WhitCj 31 Barb. 92. S. made a note pay- 
 able to W., or bearer; W. transferred the note to B., in part pay- 
 ment for a piano, at the same time guaranteeing its collection by 
 an indorsement upon the back thereof. S. failed to pay the note 
 at maturity, and W. took it up from B. W. subsequently trans- 
 ferred the note to the plaintiff, who expressly agreed to take the 
 same at his own risk. Through inadvertence, however, the guar- 
 anty was not erased at the time of the transfer ; it was held that 
 the guaranty was a contract between W. and B., and that when 
 W. paid the amount of the note to B. and took it up, the guar- 
 anty was extinguished, having perforrtted its office, and that the 
 plaintiff could not maintain an action against W. upon such guar- 
 anty, lb. 
 
 Where a guaranty warrants the payment and collection of a 
 note to the payee or holder, or bearer, and it is indorsed upon a 
 negotiable promissory note, such guaranty is negotiable, and an 
 action could have been maintained in the name of the owner of 
 the note, upon such guaranty, even before the Code. Ketchell v. 
 Burns, 24 Wend. 456; Miller v. Gaston, 2 Hill, 188. 
 
 A guaranty of a note or bill contained in a separate instrument 
 is not negotiable merely because the paper guaranteed has that 
 quality. Waison v. McLaren, 19 Wend. 557; 26 Wend. 425; 
 Barlow v. Myers, 64 E". Y. 41, 45. So, if a mortgage should be 
 given to secure negotiable paper, the mortgage would not be nego- 
 tiable, although it would pass to the indorsee of the paper as an 
 incident of the debt. Ih. In the case of the guaranty, the assignee 
 takes it by derivative title from the assignor, and no direct con- 
 tract is created by the assignment between him and the promisor, 
 and his interest in the promise is subject to any equities on the 
 part of the promisor existing against the note while in the hands 
 of his assignor. Ih. 
 
 The guaranty of the collection of a bond and mortgage, indorsed 
 on the bond by a prior owner, passes to a subsequent assignee of 
 the bond and mortgage, together with the right to sue upon the 
 
BILLS ANB NOTES. 565 
 
 guaranty, althougli the guaranty was not in terms transferred 
 with the principal obligations. Craig v. Parkis, 40 E". Y. 181. 
 This is not because the guaranty is a negotiable instrument, but 
 because the transfer of a debt or obligation carries with it, as an 
 incident, all securities for its payment. Ih. Upon the same prin- 
 ciple, the guaranty of a non-negotiable bill or note would pass to 
 and be enforceable by a person who has acquired title to the note 
 by assignment. 
 
 But, although the indorsee or assignee of a note may have title 
 to the note and to a guaranty indorsed thereon, with the right to 
 enforce either contract against the parties liable thereon, it does 
 not follow that this may be accomplished in a single action. The 
 note and the guaranty indorsed on it are separate instruments 
 and constitute separate causes of action. Allen v. Fosgaie, 11 
 How. 218 ; De Bidder v. Schermerhorn, 10 Barb. 638 ; Tihhits 
 V. Percy, 24 Barb. 39 ; Harris v. Eldridge, 5 Abb. Jif. C. 278 ; 
 Barton v. Speis, 5 Hun, 60 ; Evans v. GonTclin, 71 Hun, 536 ; 
 Boehr v. Liehmann, 9 App. Div. 247. And if both the guarantor 
 and the maker of a note are sued together, the complaint will be 
 demurrable upon the ground that causes of action have been im- 
 properly united. Ih. 
 
 No notice of dishonor or non-payment is necessary in the case 
 of a guaranty, as is required in case of an indorsement. Brown 
 V. Curtis, 2 ]Sr. Y. 225 ; Allen v. Rightmere, 20 Johns. 365. 
 
 There may be a special guaranty, limited to the person to whom 
 it is addressed, and usually contemplating a trust or reposing a 
 confidence in such person, that will not be assignable until a right 
 of action has arisen thereon. Evansville Nat. Bank v. Kaufmann, 
 93 N. Y. 273. But, to limit a guaranty so that it shall not be 
 transferable or assignable, the language should be plain and pecu- 
 liar and the intention of the parties should not be left in uncer- 
 tainty. Stillman v. Northrup, 109 IST. Y. 473. 
 
 § 10. Negotiation of Bills and Notes. 
 
 A negotiable instrument is negotiated when it is transferred 
 from one person to another in such manner as to constitute the 
 transferee the holder thereof. If payable to bearer, it is negotiated 
 by delivery; if payable to order, it is negotiated by the indorse- 
 ment of the holder completed by delivery. General Laws, eh. 50, 
 § 60. 
 
 An indorsement does not become a binding agreement until a 
 
566 BILLS AND NOTES. 
 
 delivery of it with, the instrument upon which it is made; and at 
 any time before delivery the indorser may erase his signature, 
 which will entirely destroy its effect as an indorsement. 
 
 " The indorsement must be written on the instrument itself or 
 upon a paper attached thereto. The signature of the indorser 
 without additional words is a sufficient indorsement." Id. § 61. 
 
 An indorsement which is made by merely writing the indorser's 
 name on the back of a bill or note is the most concise contract 
 that can possibly be drawn. The word " indorsement " imports 
 a writing on the back of the instrument. But the law does not 
 regard the mere etymological signification of the word when the 
 object and intention of the parties is evident. And, consequently, 
 an indorsement is valid although written across the face of a 
 bill or note, instead of being written on the back of it. And the 
 indorsement is equally valid if written upon a separate piece of 
 paper which is attached to the instrument. This piece of paper 
 is called an allonge, and is considered to be a part of the instru- 
 ment to which it is attached. 
 
 " The indorsement must be an indorsement of the entire in- 
 strument. An indorsement which purports to transfer to the in- 
 dorsee a part only of the amount payable, or which, purports to 
 transfer the instrument to two or more indorsees severally, does 
 not operate as a negotiation of the instrument. But where the 
 instrument has been paid in part, it may be indorsed as to the 
 residue." General Laws, ch. 50, § 62. And see Douglass v. Wil- 
 heson, 6 Wend. 637; 22 id. 559; Hawhins v. Cardy, 1 Ld. Eaym. 
 360; 1 Salk. 65. 
 
 "An indorsement may be either special or in blank ; and it may 
 also be restrictive or qualified or conditional." General Laws, 
 ch. 50, § 63. 
 
 "A special indorsement specifies the person to whom or to whose 
 order the instrument is to be payable; and the indorsement of 
 such indorsee is necessary to the further negotiation of the instru- 
 ment. An indorsement in blank specifies no indorsee, and an 
 instrument so indorsed is payable to bearer and may be negotiated 
 by delivery." Id. § 64. 
 
 " The holder may convert a blank indorsement into a special 
 indorsement by writing over the signature of the indorser in 
 blank any contract consistent with the character of the indorse- 
 ment." id. § 65. 
 
 A special indorsement, as it is termed in the statute, is also often 
 
BILLS AND NOTES. 567 
 
 •called an indorsement in full, or a full indorsement. After sucli 
 an indorsement, no one but the indorsee or person to whom it is 
 ordered to be paid can demand its payment; and, moreover, he 
 himself cannot transfer the bill or note as negotiable paper in any 
 manner other than by adding his own indorsement in writing. 
 Bwrdich v. Green, 15 Johns. 247. This mode of indorsement is 
 frequently adopted among business men to insure safety in the 
 transmission of negotiable paper. Thus, where a bill is drawn 
 in Buffalo on a person who resides in New York, and it is neces- 
 sary for the payee to send the bill to New York for collection, he 
 can do so without incurring any danger from its being lost or stolen 
 on the way, by indorsing it specially to the order of his correspond- 
 ent in the city where it is payable. 
 
 An indorsement is restrictive which either prohibits the further 
 negotiation of the instrument; or constitutes the indorsee the 
 agent of the indorser; or vests the title in the indorsee in trust 
 for or to the use of some other person. But the mere absence of 
 words implying power to negotiate does not make an indorsement 
 restrictive. General Laws, ch. 50, § 66. 
 
 A restrictive indorsement confers upon the indorsee the right 
 to receive payment of the instrument ; to bring any action thereon 
 that an indorser could bring; and to transfer his right as such 
 indorsee, where the form of the indorsement authorizes him to 
 do so. But all subsequent indorsees acquire only the title of the 
 first indorsee under the restrictive indorsement. Id. § 67. 
 
 A qualified indorsement constitutes the indorser a mere as- 
 signor of the title to the instrument. It may be made by adding 
 to the indorser's signature the words " without recourse " or any 
 words of similar import. Such an indorsement does not impair 
 the negotiable character of the instrument. Id. § 68. 
 
 Where an indorsement is conditional, a party required to pay 
 the instrument may disregard the condition, and make payment 
 to the indorsee or his transferee, whether the condition has been 
 fulfilled or not. But any person to whom an instrument so in- 
 dorsed is negotiated, will hold the same, or the proceeds thereof, 
 subject to the rights of the person indorsing conditionally. Id. 
 § 69. See Tappan v. Ely, 15 Wend. 362 ; Benedict v. Cowden, 
 49 N. Y. 396. 
 
 Where an instrument payable to bearer is indorsed specially, it 
 may nevertheless be further negotiated by delivery; but the per- 
 son indorsing specially is liable as indorser to only such holders 
 
568 BILLS A-NB l^OTES. 
 
 as make title through his indorsement. General Laws, ch. 50^ 
 §70. 
 
 Where an instrument is payable to the order of two or more 
 payees or indorsees who are not partners, all must indorse, unless 
 the one indorsing has authority to indorse for the others. Id. § 71. 
 But when a note is made payable to a firm, or where the note is 
 indorsed to a firm, either of the partners has authority to transfer 
 the instrument by an indorsement of the partnership name ( Cump- 
 ston V. McNair, 1 Wend. 457, 462), or by an indorsement in his 
 individual name. Everit v. Strong, 5 Hill, 163 ; 7 Hill, 585. 
 After the dissolution of a partnership, all the partners must unite 
 in the transfer of a partnership security in order to vest the title 
 in the transferee. Oeortner v. Trustees of Cwnajoharie, 2 Barb. 
 625 ; National Banh v. Norton, 1 Hill, 572 ; Sanford v. MicTcles, 
 4 Johns. 224. Upon the death of one of the partners in a firm, 
 the survivor is the proper person to indorse and transfer a bill or 
 note which belonged to the firm at the time of the death of his 
 partner. The indorsement by the surviving partner will transfer 
 the title, though he cannot create liabilities against the estate of 
 the deceased partner. 
 
 Where an instrument is drawn or indorsed to a person as 
 " cashier " or other fiscal officer of a bank or corporation, it is 
 deemed prima facie to be payable to the bank or corporation of 
 which he is such officer; and may be negotiated by either the in- 
 dorsement of the bank or corporation, or the indorsement of the 
 officer. General Laws, ch. 50, § 72. If an instrument so made 
 payable or indorsed is negotiated on behalf of the corporation by 
 such officer, by writing his name on the back of the bill or note 
 and adding his official title, as " Cashier," or " Treasurer," etc., 
 the effect of the indorsement is merely to transfer the instrument, 
 and creates no individual liability. Babcock v. Beman, 11 N. Y. 
 200; Mott V. Hicks, 1 Cow. 513; Brochway v. Allen, 17 Wend. 
 40 ; Hicks v. Hinde, 9 Barb. 528. And see Horton v. Garrison, 
 23 Barb. 176. 
 
 Where the name of a payee or indorsee is wrongly designated 
 or misspelled, he may indorse the instrument as therein described, 
 adding, if he think fit, his proper signature. General Laws, ch. 
 50, § 73. 
 
 Where any person is under obligation to indorse in a represent- 
 ative capacity, he may indorse in such terms as to negative per- 
 sonal liability. Id. § 74. 
 
BILLS AND NOTES. 56» 
 
 Except where an indorsement bears date after the maturity of 
 the instrument, every negotiation is presumed to have been effected 
 before the instrument v^as overdue. Id. § 75. And, except where 
 the contrary appears, every indorsement is presumed prima facie 
 to have been made at the place where the instrument is dated. Id. 
 § 76. 
 
 An instrument negotiable in its origin continues to be negotiable 
 until it has been restrictively indorsed or discharged by payment 
 or otherwise. Id. § 77. A note or bill does not lose its negotiable 
 character by being dishonored, and the indorsement, though made 
 after dishonor, follows the nature of the original contract, and 
 is negotiable unless it contains words of restriction. Leavitt v. 
 Putnam, 3 IST. Y. 494. 
 
 The holder may at any time strike out any indorsement which 
 is not necessary to his title. The indorser, whose indorsement is 
 struck out, and all indorsers subsequent to him, are thereby re- 
 lieved from liability on the instrument. General Laws, ch. 50, 
 § 78. Where a note is indorsed in blank by the payee, it becomes 
 negotiable by delivery, and a subsequent holder can strike out all 
 the indorsements except the first one and make title under that; 
 and he may do this notwithstanding the bill or note may have 
 upon it subsequent indorsements in full. Watervliet Bank v. 
 White, 1 Denio, 608 ; Dollfus v. Frosch, 1 Denio, 367 ; Pentz v. 
 Winterhottom,, 5 Denio, 51 ; Havens v. Huntington, 1 Cow. 387 ; 
 Williams v. Matthews, 3 Cow. 252. 
 
 Where the holder of an instrument payable to his order trans- 
 fers it for value without indorsing it, the 'transfer vests in the 
 transferee such title as the transferrer had therein, and the trans- 
 feree acquires, in addition, the right to have the indorsement of 
 the transferrer. But, for the purpose of determining whether the 
 transferee is a holder in due course, the negotiation takes effect 
 as of the time when the indorsement is actually made. General 
 Laws, ch. 50, § 79. A bill or note payable to the order of the 
 payee may be assigned without indorsement ; but, if thus assigned, 
 the assignor will take the paper subject to all equities, in the same 
 manner as though the instrument was not negotiable, or as though 
 it was overdue. Billings v. Jane, 11 Barb. 620 ; Hedges v. Sealy, 
 9 Barb. 214; Houghton v. Dodge, 5 Bosw. 326; White v. Brown, 
 14 How. 282 ; Baynor v. Hoagland, 7 Jones & Sp. 11 ; 64 N. T. 
 630. Where a broker or other agent negotiates an instrument 
 without indorsement, he incurs all the liabilities prescribed in sec- 
 
570 BILLS AND NOTES. 
 
 tion one hundred and fifteen of the ISTegotiable Instruments Act, 
 unless he discloses the name of his principal, and the fact that 
 he is acting only as agent. General Laws, ch. 50, § 119. 
 
 Where an instrument is negotiated back to a prior party, such 
 party may, subject to the provisions of the above-mentioned act, 
 reissue and further negotiate the same. But he is not entitled to 
 enforce payment thereof against any intervening party to whom 
 he was personally liable. Id. § 80. 
 
 A person placing his signature upon an instrument otherwise 
 than as maker, drawer or acceptor, is deemed to be an indorser, 
 unless he clearly indicates by appropriate words his intention to 
 be bound in some other capacity. Id. § 113. 
 
 Where a person, not otherwise a party to an instrument, places 
 thereon his signature in blank before delivery, he is liable as an 
 indorser in accordance with the following rules : 
 
 1. If the instrument is payable to the order of a third person, 
 he is liable to the payee and to all subsequent parties. 
 
 2. If the instrument is payable to the order of the maker or 
 drawer, or is payable to bearer, he is liable to all the parties sub- 
 seqiient to the maker or drawer. 
 
 3. If he signs for the accommodation of the payee, he is liable 
 to all parties subsequent to the payee. Id. § 114. 
 
 This section of the statute applies only to those Avho place their 
 signatures on negotiable paper as indorsers " before delivery " to 
 the payee. In such cases the act creates a presumption that, hav- 
 ing indorsed the instrument before delivery to the payee, they 
 did so with the intention of becoming liable to the payee, the ob- 
 ligation becoming complete only after such delivery. And it has 
 been held that those who seek the benefit of this statute must bring 
 themselves within it by appropriate allegations. Kohn v. Consoli- 
 dated Butter & Egg Co., 30 Misc. 725. It was held, before this 
 statute was enacted, that where a person had indorsed a promis- 
 sory note in blank before delivery to the payee, the legal presump- 
 tion arose that he intended to become liable simply as second in- 
 dorser, and that on the note itself, without explanation, he was 
 to be regarded as a second indorser and not liable to the payee. 
 See Coulter v. Richmond, 59 'N. Y. 478 ; Howard v. Van Gieson, 
 46 App. Div. 77; Cuming v. Roderick, 16 App. Div. 339; Mc- 
 Phillips V. Jones, 73 Hun, 516 ; Phelps v. Vischer, 50 IST. Y. 69. 
 It was also held that the paper itself furnished only prima, facie 
 evidence of this intention, and that it was competent to rebut the 
 
BILLS AND NOTES. 571 
 
 presumption by parol proof that the indorsement was made to 
 give the maker credit with the payee; and, in that case, the per- 
 son so making the indorsement was liable as first indorser, and 
 might be compelled to pay the note in an action brought by the 
 payee. lb.; Moore v. Cross, 19 IST. Y. 227 ; Bank of PoH Jeffer- 
 son V. Darling, 91 Hun, 236; Davis v. Ely, 32 App. Div. 124; 
 164 ]Sr. Y. 527 ; Meyer v. Hibsher, 47 IST. Y. 265 ; Witherow v. 
 Slaybach, 158 N. Y. 649. And see Nagel v. Lutz, 41 App. Div. 
 193. Prior to the statute of 1897, where an action was brought 
 by the payee upon a promissory note against one who indorsed the 
 same after delivery to the payee, it was necessary for the plaintiff 
 to allege in substance and effect that the defendant indorsed the 
 note for the purpose of lending his credit to the maker and with 
 the intent to charge himself thereon to the payee. If this allega- 
 tion was denied, the burden of proving the allegation was on the 
 plaintiff, for the payee was presumed to be the first indorser. But 
 since that statute the legal presumption is changed where the 
 complaint alleges that the irregular indorser indorsed the paper 
 " before delivery " to the payee. When that fact is established, 
 the burden is cast upon the indorser to allege and prove that, not- 
 withstanding such delivery, the payee was to become first indorser 
 according to the customary form of the contract, and that he did 
 not indorse for the purpose of lending his credit to the maker, or 
 with the intention of becoming liable to the payee. Such proof 
 may still be given, as it is not the intent of the statute to create 
 an incontestable liability against irregular indorsers. Kohn v. 
 Consolidated Butter & Egg Co., 30 App. Div. 725. 
 
 Every person negotiating an instrument by delivery or by a 
 qualified indorsement, warrants: 
 
 1. That the instrument is genuine and in all respects what it 
 purports to be ; 
 
 2. That he has a good title to it ; 
 
 3. That all the prior parties had capacity to contract; 
 
 4. That he had no knowledge of any fact which would impair 
 the validity of the instrument or render it valueless. 
 
 But when the negotiation is by delivery only, the warranty ex- 
 tends in favor of no holder other than the immediate transferee. 
 
 The provisions of the third subdivision do not apply to persons 
 negotiating public or corporate securities, other than bills and 
 notes. General Laws, ch. 50, § 115. 
 
 Every indorser who indorses vdthout qualification, warrants 
 to all subsequent holders in due course: 
 
572 BILLS AND Is^oTES. 
 
 1. The matter and things mentioned in subdivisions 1, 2 and 3 
 of the section last cited ; and 
 
 2. That the instrument is at the time of his indorsement valid 
 and subsisting. And, in addition, he engages that, on due present- 
 ment, it shall be accepted, or paid, or both, as the case may be, 
 according to its tenor, and that if it be dishonored, and the neces- 
 sary proceedings on dishonor be duly taken, he v^ill pay the 
 amount thereof to the holder, or to any subsequent indorser who 
 may be compelled to pay it. Id. § 116. 
 
 The following decisions as to the contract created by an indorse- 
 ment of a bill or note, and the liability of the indorser thereon, 
 though prior to the statute of 1897, may serve to illustrate and 
 explain its intent and meaning. It should be constantly remem- 
 bered that where the statute is silent, the rules of the law mer- 
 chant govern (id. § 7), and in that case the decisions are the evi- 
 dence of the law. 
 
 It has long been held that the indorser of a note is regarded 
 as contracting with a subsequent holder that the instrument is 
 Avhat it purports to be ; that it and as well the preceding indorse- 
 ments are genuine ; and that he has a clear legal title thereto ; and 
 Avhen sued upon his contract, he will be held estopped from 
 drawing in quesition that which he has impliedly warranted. 
 MacGregor v. Rhodes, 6 Ell. & Bla. 266; Edwards v. Dick, 4 
 Barn. & Aid. 212; McKnigU v. Wheeler, 6 Hill, 492; Erwin 
 V. Downs, 15 K Y. 575 ; Tumhull v. Bowyer, 40 N. T. 456 ; 
 White V. Continental Nat. Bank, 64 N. Y. 316 ; Lennon v. 
 Grauer, 2 App. Div. 513 ; 159 IST. Y. 433. He warrants that 
 the instrument is not forged (id.) and is liable on this warranty 
 in case the instrument proves to be a forgery. Herrick v. Whit- 
 ney, 15 Johns. 240; Shaver v. Ehle, 16 Johns. 201; Morrison v. 
 Ourrie, 4 Duer, 79. He guarantees that the makers of the paper 
 indorsed by him were competent to contract in the character in 
 which by the terms of the paper they purported to contract. Erwin 
 v. Downs, 15 ]Sr. Y. 575. The indorser of a copartnership note 
 impliedly contracts that it was made by the firm in whose name 
 it was executed, and cannot deny the fact when sued upon his 
 indorsement. Dalrymple v. Hillenbrand, 62 !N^. Y. 5. See Smith 
 V. Weston, 159 N. Y. 194. 
 
 Although the general rule is that an indorsement of a promis- 
 sory note amounts to a contract that the antecedent signatures 
 thereto are genuine, no liability on such contract can be enforced 
 by a holder who has procured an indorsement upon a forged note 
 
BILLS AND NOTES. 573 
 
 -«'ith knowledge of the forgery, and upon a representation to the 
 indorser that it was genuine. Turner v. Keller, 66 N. Y. 66. 
 
 Where a person places his indorsement on an instrument ne- 
 gotiable by delivery he incurs all the liabilities of an indorser. 
 General Laws, ch. 50, § 117. As respects one another, indorser s 
 are liable prima facie in the order in which they indorse; but 
 evidence is admissible to show that as between or among them- 
 selves they had agreed otherwise. Joint payees or joint indorsees 
 who indorse are deemed to indorse jointly and severally. Id. 
 § 118. 
 
 The foregoing principles are applicable to one who negotiates 
 a negotiable instrument by indorsement. Where the payee of a 
 usurious note indorsed it to a third person for a valuable consider- 
 ation, who took it without notice of the usury, and afterwards 
 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, that the usury con- 
 stituted no defense, and that the plaintiff was entitled to recover. 
 McKnight v. Wheeler, 6 Hill, 492. But where the holder of a 
 usurious note had transferred it without indorsement, without 
 any representations as to its legality, and without knowledge of 
 the defect at the time of the transfer, it was held that no war- 
 ranty would be implied, and that the purchaser could not recover 
 from him the loss sustained by reason of the defect. Littauer 
 V. Goldman, 72 N. Y. 506. So where the vendor of a note, at 
 the time of sale, expressly declined to warrant its genuineness, 
 it was held that no such warranty could be implied. Bell v. Dag, 
 60 N. Y. 528. 
 
 There is no implied warranty or representation on the part of 
 the vendor of a bill valid in the hands of the indorsee that it was 
 dra^vn against funds, or that it was not accommodation paper. In 
 the absence of inquiry as to the fact the vendor is not obliged to 
 disclose to the vendee Avho has the means of ascertaining the facts, 
 that the paper sold is accommodation paper. Peoples' Bank of 
 N. Y. V. BogaH, 81 K Y. 101. 
 
 Where a party vnrites his name on the back of a note, not 
 negotiable, before delivery to the payee, thfere being no contract 
 of indorsement, the courts give it effect by allowing the holder 
 to overwrite the indorser's name with the real contract as maker 
 or guarantor. Richards v. Warring, 1 Keyes, 576 ; 4 Abb. Ct. 
 App. 47 ; Cromwell v. Hewitt, 40 N. Y. 491 ; New York Security 
 & Trust Co. V. Storm, 81 Hun, 33. 
 
574 BILLS AND NOTES. 
 
 § 11. Acceptance of Bills. 
 
 An acceptance is an engagement to pay a bill according to the 
 tenor of the acceptance; and a general acceptance is an engage- 
 ment to pay according to the tenor of the bill. 
 
 It can scarcely be too frequently repeated, that in the particu- 
 lar contract created by a bill of exchange, the acceptor is regarded 
 as the principal debtor or contractor, while the drawer and in- 
 dorsers are looked upon as his sureties ; and this mode of consider- 
 ing the subject ought to be kept steadily in view, inasmuch as it 
 will not merely facilitate a comprehension of the forms of plead- 
 ings applicable to bills, but must also conduce to a right apprecia- 
 tion of the liabilities of the various parties whose names are 
 attached to such instruments. The drawee named in a bill of 
 exchange is not legally a party to it until he accepts it. But the 
 act of acceptance is like the making of a promissory note; the 
 acceptor then becomes the principal debtor, and he is then liable 
 to pay the amount mentioned in the bill to the payee or holder 
 thereof when it becomes due. If the drawee has funds in his 
 hands which belong to the drawer, he ought, according to mer- 
 cantile usage, to accept the bill ; but his legal obligation to do so 
 is no greater than is that of a debtor to give a promissory note to 
 his creditor for the sum due him. 
 
 The drawer by drawing the instrument admits the existence of 
 the payee and his then capacity to indorse; and engages that on 
 due presentment the instrument will be accepted and paid, or both, 
 according to its tenor, and that if it be dishonored, and the neces- 
 sary proceedings on dishonor be duly taken, he will pay the 
 amount thereof to the holder, or to any subsequent indorser who 
 juay be compelled to pay it. But the drawer may insert in the 
 instrument an express stipulation negativing or limiting his own 
 liability to the holder. Laws of 1897, ch. 612, §, 111 ; General 
 Laws, ch. 50, § 111. 
 
 The acceptor by accepting the instrument engages that he will 
 pay it according to the tenor of his acceptance; and admits the 
 existence of the drawer, the genuineness of his signature, and his 
 capacity and authority to draw the instrument, and the existence 
 of the payee and his then capacity to indorse. Id. § 112. 
 
 Unless the drawee has actually accepted the bill, or made some 
 valid agreement to do so, he is not liable to the payee or holder 
 of the bill, notwithstanding he has sufficient funds of the drawer 
 in his hands at the time. Butterworth v. Pech, 5 Bosw. 341 ; 
 Lowery v. Steward, 3 Bosw. 505 ; Chapman v. White, 6 N. Y. 
 
BILLS AND NOTES. 575 
 
 412; Wmier v. Drury, 5 N. Y. 525; Cowperthwaite v. Sheffield, 
 3 K Y. 243. Ante, p. 548. 
 
 The usual manner of acceptance is for the drawee to -write the 
 word "Accepted " across the face of the bill, followed by the date 
 and his signature. The date is not material unless the bill is 
 payable at a certain number of days after sight or acceptance; 
 and in such a case, the date ought to be added ; but if this is not 
 done at the time of accepting, the actual date may always be 
 shown by parol evidence, which will have the same legal effect 
 as though the date had been written. The statute has prescribed 
 certain rules in relation to the acceptance of bills, which are the 
 controlling law iipon the subject. 
 
 The acceptance of a bill is the signification by the drawee of 
 his assent to the order of the drawer. The acceptance must be in 
 ■writing and signed by the drawee. It must not express that the 
 drawee will perform his promise by any other means than the 
 payment of money. General Laws, ch. 50, § 220. 
 
 The holder of a bill, presenting the same for acceptance, may 
 require that the acceptance be in writing on the bill and, if such 
 request is refused, may treat the bill as dishonored. General 
 Laws, ch. 50, § 221. 
 
 Where an acceptance is written on a paper other than the bill 
 itself, it does not bind the acceptor except in favor of the person 
 to whom it is shown and who, on the faith thereof, receives the 
 bill for value. Id. § 222. 
 
 An unconditional promise, in writing, to accept a bill before it 
 is drawn is deemed an actual acceptance in favor of every person 
 who, upon the faith thereof, receives the bill for value. Id. § 223. 
 
 The drawee is allowed twenty-four 'hours in which to decide 
 whether or not he will accept the bill ; but the acceptance, if 
 given, dates as of the day of presentation. Id. § 224. 
 
 Where a drawee to whom a bill is delivered for acceptance 
 destroys the same, or refuses within twenty-four hours after such 
 delivery, or within such other period as the holder may allow, to 
 return the bill accepted or non-accepted to the holder, he will be 
 deemed to have accepted the same. Id. § 225. 
 
 A bill may be accepted before it has been signed by the drawer, 
 or while otherwise incomplete, or when it is overdue, or after it 
 has been dishonored by a previous refusal to accept, or by non- 
 payment. But when a bill payable after sight is dishonored by 
 non-acceptance and the drawee subsequently accepts it, tlie holder, 
 in the absence of any diflferent agreement, is entitled to liave the 
 bill accepted as of the date of the first presentment. Id. § 226. 
 
576 BILLS AND NOTES. 
 
 An acceptance is either general or qualified. A general accept- 
 ance assents without qualification to the order of the drawer. A 
 qualified acceptance in express terms varies the effect of the bill 
 as drawn. Id. § 227. 
 
 An acceptance to pay at a particular place is a general accept- 
 ance unless it expressly states that the bill is to be paid there only 
 and not elsewhere. Id. § 228. 
 
 An acceptance is qualified, which is: (1) Conditional, that is 
 to say, which makes payment by the acceptor dependent on the 
 fulfillment of a condition therein stated. (2) Partial, that is to 
 say, an acceptance to pay part only of the amount for which the 
 bill is drawn. (3) Local, that is to say, an acceptance to pay 
 only at a particular place. (4) Qualified as to time. (5) The 
 acceptance of some one or more of the drawees, but not of all. 
 Id. § 229. 
 
 The holder may refuse to take a qualified acceptance, and if he 
 does not obtain an unqualified acceptance, he may treat the bill 
 as dishonored by non-acceptance. Where a qualified acceptance 
 is taken, the drawer and indorsers are discharged from liability on 
 the bill, unless they have expressly or impliedly authorized the 
 holder to take a qualified acceptance, or subsequently assent 
 thereto. When the drawer or an indorser receives notice of a 
 qualified acceptance, he must within a reasonable time express his 
 dissent to the holder, or he will be deemed to have assented thereto. 
 Id. § 230. And see Gammon v. Schmoll, 5 Taunt. 353 ; Parker 
 V. Gordon, 7 East, 385 ; Walker v. Bank of State of New York, 
 13 Barb. 636; 9 K Y. 582. 
 
 Where a bill of exchange is transmitted to an agent for pre- 
 sentment for acceptance, such agent has no authority to accept 
 a conditional acceptance, and if the drawee accepts the bill in any 
 other manner than by an explicit and unequivocal acceptance, it 
 is the duty of such agent to give notice to the holder as in the 
 case of non-acceptance, and he will be liable to the holder for any 
 loss which he may sustain from a neglect to do so. lb. When 
 the drawee intends to accept a bill conditionally, he ought to 
 express the condition in the written acceptance, for parol evidence 
 is not admissiible to change its terms, and clearly sio, as against 
 a bona fide holder for value. Bam,k of Albion v. Smith, 27 Barb. 
 489 ; Heaverin v. Donnell, 7 Smedes & Marsh. 244. 
 
 An acceptance by the drawee of a bill, who is an executor, by 
 writing on its face the word " accept," followed by the signature 
 of the acceptor, with the word " executor " added, creates an in- 
 
BILLS AND NOTES. 57Y 
 
 dividual liability and does not bind the estate wliicb the executor 
 represents. Schmittler v. Simon, 101 N. Y. 554. 
 
 Though a bill of exchange is payable at a particular place, it 
 is not necessary for the holder in an action thereon to aver or 
 prove a demand of payment of the acceptor at that place. Foden 
 V. Sharp, i Johns. 183 ; Wolcott v. Van Santvoord, 17 id. 248 ; 
 Caldwell v. Cassidy, 8 Cow. 271 ; Haxtun v. Bishop, 3 Wend, 13, 
 20. But the acceptor may defeat the action by alleging and prov- 
 ing that he was ready to pay at the place according to the terms 
 of his acceptance. Ib.j Green v. Goings, 7 Barb. 652. 
 
 The acceptor is presumed to know the handwriting of the 
 drawer, and if he accepts a bill with a forged signature of the 
 drawer, he will be liable to pay the amount to a bona fide holder 
 of the bill for value. Amson v. Ahrahamson, 30 St. Rep. 657 ; 9 
 K Y. Supp. 514. 
 
 § 12. Presentment of Bills of Exchange for Acceptance. 
 
 As has been stated, the contract of a drawer of a bill of ex- 
 change is a promise or agreement on his part to the drawee, or 
 to any other person to whom it may afterwards be transferred, 
 that the drawee is legally competent to accept the bill and of 
 rendering himself liable to its payment ; that the drawee will duly 
 and legally accept it, that he will pay it on proper presentment 
 for payment, and that, if the drawee fails to do either of these 
 things, the drawer will pay the amount of the bill with legal dam- 
 ages, provided he has due notice of the dishonor. The theory 
 upon which a bill of exchange is founded, is, that the drawer 
 has money in the hands of the drawee, which the bill directs such, 
 drawee to pay over to the payee or his order. Upon this ass,ump- 
 tion, the law implies a mere conditional contract on the part of the 
 drawer, which is, that he will pay the bill if it is dishonored, and 
 he is duly notified that the drawee refuses to accept, or refuses to 
 pay the bill at maturity. 
 
 If the drawer has funds in the hands of the drawee, or if the 
 latter has agreed to accept the bill, the drawer has a right to 
 expect that the bill will be accepted or honored, and the law per- 
 mits him to act upon that supposition. And for this reason, the 
 law also provides that he shall have prompt notice of the non- 
 acceptance or non-payment of his bill, so that he may take proper 
 measures for his own security. 
 
 It is the duty of the payee of a bill of exchange to present it 
 for acceptance to the right person, at the right time and place, 
 37 
 
578 BILLS AND NOTES. 
 
 and in a proper manner. And he has a right to expect that the 
 bill will receive an immediate, full and imconditional acceptance. 
 If the drawee refuses to accept the bill, even when he has suffi- 
 cient funds of the drawer in his hands to pay it, this will not give 
 the payee any right of action against the drawee. Luff v. Pope, 
 5 Hill, 413 ; 7 id. 577; N. Y. and Virginia State Bank v. Gibson,. 
 5 Duer, 575 ; Harris v. Clark, 3 ¥. Y. 93. 
 
 The statute now provides for the manner in which the present- 
 ment for acceptance must be made and the cases in which such- 
 presentment is necessary to render a party to the bill liable. Gen- 
 eral Laws, ch. 50, §| 240-248. 
 
 Presentment for acceptance must be made in the following; 
 cases : 
 
 1. Where the bill is payable after sight, or in any other case 
 where presentment for acceptance is necessary in order to fix the 
 maturity of the instrument; or 
 
 2. Where the bill expressly stipulates that it shall be presented 
 for acceptance; or 
 
 3. Where the bill is drawn payable elsewhere than at the resi- 
 dence or place of business of the drawee. In no other case is 
 presentment for acceptance necessary in order to render any party 
 to the bill liable. Id. §. 240. 
 
 " Except as herein otherwise provided, the holder of a bill 
 which is required by the next preceding section to be presented, 
 for acceptance, must either present it for acceptance or negotiate 
 it within a reasonable time. If he fails to do so the drawer and 
 all indorsers are discharged." Id. § 241. 
 
 Since the law has not prescribed any particular time within 
 which such a bill is to be presented for acceptance, in order to 
 charge the drawer and indorsers, it, therefore, merely requires 
 that it shall be presented within a reasonable time, and leaves it 
 to the court to determine, in each case, what is a reasonable time 
 under its peculiar circumstances. Aymar v. Beers, 7 Cow. 705 ; 
 Sice V. Cunningham, 1 Cow. 397 ; Robinson v. Ames, 20 Johns.. 
 146. And see Laws of 1897, ch. 612, § 4. 
 
 If the drawer of a bill of exchange requests the payee to hold 
 it during an indefinite period, without presentation to the drawee, 
 for the alleged reason that he " knows the draft to be good," he 
 will release the payee from using the diligence which the law 
 requires ; and by such request the drawer takes upon himself any 
 risk arising from the insolvency of the drawee. Sheldon v. Chap- 
 man, 31 N. T. 644. See also Benton v. Martin, 52 N, Y. 570. 
 
BILLS AND NOTES. 579 
 
 If the bill is drawn payable so many days or montlis after date, 
 or on a day certain, the payee need not present it for acceptance 
 until maturity, even for the purpose of charging the drawer and 
 indorsers. Plato v. Reynolds, 27 JST. Y. 586; Allen v. Suydam, 
 20 Wend. 321; 17 id. 368. It ia, however, usual and better in 
 such a case, for the owner of a bill to present it at an early day 
 for acceptance, because if it is accepted, he thereby acquires the 
 additional security of the drawee or acceptor ; and if he refuses to 
 accept, recourse may be had immediately to the drawer and in- 
 dorsers for payment. 
 
 " Presentment for acceptance must oe made by or on behalf of 
 the holder at a reasonable hour, on a business day, and before the 
 bill is overdue, to the drawee or some person authorized to accept 
 or refuse acceptance on his behalf ; and 
 
 1. Where a bill is addressed to two or more drawees who are 
 not partners, presentment must be made to them all, unless one 
 has authority to accept or refuse acceptance for all, in which case 
 presentment may be made to him only ; 
 
 2. Where the drawee is dead, presentment may be made to his 
 personal representatives ; 
 
 3. Where the drawee has been adjudged a bankrupt or an in- 
 solvent, or has made an assignment for the benefit of his creditors, 
 presentment may be made to him or to his trustee or assignee. 
 General Laws, ch. 50, § 242 ; Laws of 1897, ch. 612, § 242, as 
 amended by ch. 336, Laws of 1898. See Cayuga Go. Bank v. 
 Hunt, 2 Hill, 635 ; Parker v. Gordon, 7 East, 385 ; Elford v. 
 Teed, 1 Maule & Selw. 28 ; 6 id. 44. 
 
 "A bill may be presented for acceptance on any day on which 
 negotiable instruments may be presented for payment under the 
 provisions of sections one hundred and thirty-two and one hun- 
 dred and forty-five of this act. W^hen Satiirday is not otherwise 
 a holiday, presentment for acceptance may be made before twelve 
 o'clock noon on that day." Greneral Laws, ch. 50, § 243. Section 
 132 merely fixes the time of presentment " at a reasonable hour 
 on a business day," and section 145 provides that " When the day 
 of maturity falls upon Sunday, or a holiday, the instrument is 
 payable on the next succeeding business day," and that " Instru- 
 ments falling due on Saturday are to be presented for payment 
 on the next succeeding business day, except that instruments pay- 
 able on demand may, at the option of the holder, be presented for 
 payment before twelve o'clock noon on Saturday when that day is 
 not a holiday." 
 
580 BILLS AND NOTES. 
 
 Before this statute, it was held that the presentment of a bill 
 for acceptance ought to be made during the usual business hours 
 of the day, or between morning and bedtime in the evening. 
 Cayuga Co. Bank v. Hunt, 2 Hill, 635 ; Parker v. Gordon, 7 
 East, 385 ; Elford v. Teed, 1 Maule & S'elw. 28 ; 6 id. 44. If 
 made at a bank it should be made during the usual banking hours 
 (Newark India Eubber Co. v. Bishop, 3 E. D. Smith, 48 ; Salt 
 Springs Nat. Bank v. Burton, 58 N. Y. 430) ; though, if after 
 business hours, the holder obtains admittance and finds in the 
 bank a person authorized to answer, a presentment to such person 
 will, generally, be sufficient. Ib.j Bank of Syracuse v. Hollister, 
 17 K Y. 46.' See General Laws, eh. 50, § 135. 
 
 Where the holder of a bill drawn, payable elsewhere than at 
 the place of business or the residence of the drawee, has not time 
 with the exercise of reasonable diligence to present the bill for 
 acceptance before presenting it for payment on the day that it 
 falls due, the delay caused by presenting the bill for acceptance 
 before presenting it for payment, is excused and does not dis- 
 charge the drawers and indorsers. Id. § 244. 
 
 If a bill is addressed to the drawee at a particular place, the 
 presentment ought to be made at that place ; and if the drawee 
 has removed to another part of the same city, it is the duty of 
 the holder to make diligent inquiry as to his place of business or 
 residence, and present it to him there for acceptance. De Wolf v. 
 Murray, 2 Sandf. 166 ; Cayuga Co. Bank v. Hunt, 2 Hill, 635 ; 
 Wilkins v. Jadis, 2 Barn. & Ad. 188. 
 
 But if the bill is not addressed to any particular place, the 
 presentment should be made at the residence or domicile of the 
 drawee without reference to the place where it is payable. And 
 if the drawee has removed to another place of residence in the 
 same State, the holder should make diligent search and inquiry 
 for him, and present the bill at his place of business or residence 
 for acceptance. Taylor v. Snyder, 3 Denio, 145 ; Anderson v. 
 Drake, 14 Johns. 114; Woodworth v. Bank of America, 19 Johns. 
 391. 
 
 Presentment for acceptance is excused and a bill may be treated 
 as dishonored by non-acceptance in either of the following cases: 
 
 1. Where the drawee is dead, or has absconded, or is a fictitious 
 person, or a person not having any capacity to contract by bill; 
 
 2. Where, after reasonable diligence, presentment cannot be 
 made; 
 
BILLS AND NOTES. 581 
 
 3. Where, though presentment has been irregular, acceptance 
 has been refused upon some other ground. General Laws, ch. 50, 
 § 245. 
 
 A bill is dishonored by non-acceptance when it is duly pre- 
 sented for acceptance, and such an acceptance as is prescribed by 
 the statute is refused or cannot be obtained ; or when presentment 
 for acceptance is excused and the bill is not accepted. Id. § 246. 
 
 § 13. Proceedings on Non-Acceptance. 
 
 Where a bill is duly presented for acceptance and is not ac- 
 cepted within the prescribed time, the person presenting it must 
 treat the bill as dishonored by non-acceptance or he loses the right 
 of recourse against the drawer and indorsers. General Laws, ch. 
 50, § 247. 
 
 When a bill is dishonored by non-acceptance, an immediate right 
 of recourse against the drawers and indorsers accrues to the holder 
 and no presentment for payment is necessary. Id. § 248 ; Bank of 
 Rochester v. Oray, 2 Hill, 277. 
 
 Where the drawee of a bill of exchange refuses to accept it, 
 the holder is required to take the same steps in relation to such 
 non-acceptance that he is bound to take in relation to a bill or 
 note in case of its non-payment upon a proper presentment for 
 payment. The principles which govern the giving of notices of 
 non-acceptance are precisely the same as those relating to the non- 
 payment of bills or notes. For this reason the proceedings had 
 iipon dishonor of a bill or note by non-acceptance or non-payment, 
 the requisites of a notice of dishonor and the manner in which 
 such notice must be given will be considered together in a subse- 
 quent section. See post, § 15. 
 
 § 14. Presentment of Negotiable Instruments for Payment. 
 
 Presentment for payment is not necessary in order to charge the 
 person or persons primarily liable on a bill or note. See General 
 Laws, ch. 50, § 130. In an action against the maker of a promis- 
 sory note or the acceptor of a bill of exchange, it is not necessary 
 for the holder to allege in his complaint or to prove at the trial 
 that a demand of payment has been made. It is no part of the 
 contract that they shall have notice in such cases, and as against 
 them an action is a sufficient demand. Foden v. Sharp, 4 Johns. 
 183 ; Wolcott V. Van Santvoord, 17 Johns. 248 ; Green, v. Goings, 
 7 Barb. 652; Fairchild v, Ogdenslurgh C. & B. B. Co., 15 N. Y. 
 
582 BILLS AND NOTES. 
 
 337 ; Caldwell v. Cassidy, 8 Cow. 271 ; Haxtun v. Bishop^ 3 Wend. 
 13 ; Bush V. Gilmore, 45 App. Div. 89 ; Hills v. Place, 48 N. Y. 
 520. 
 
 Whether the instrument is drawn payable generally or at a 
 particular place, the holder is not bound to allege or prove a de- 
 mand at any place; but if it is payable at a particular place and 
 no demand was made there, and the maker of the note or the ac- 
 ceptor of the bill was at the place of payment with the funds 
 ready to pay on the day of payment, he may, when sued, bring the 
 money into court and plead his readiness to pay at the time and 
 place of payment, in bar of damages arising from non-payment, 
 but not in bar of the debt due on the day named for payment. 
 In such case the creditor recovers no interest after the day of pay- 
 ment has passed, and no costs of suit, but costs go to the debtor. 
 Bead v. City of Buffalo, 67 Barb. 526 ; Hills v. Place, 48 N. Y. 
 520; Lochlin v. Moore, 57 N. Y. 360; Budiueiser Brewing Co. v. 
 Capparelli, 16 Misc. 502; Wam-sley v. Darragh, 14 Misc. 566. 
 Where an instrument is, by its terms, payable at a special place, 
 and the principal debtor is able and willing to pay it there at ma- 
 turity, such ability and willingness are equivalent to a tender of 
 payment upon his part. General Laws, eh. 50, § 130. " But 
 except as herein otherwise provided, presentment for payment is 
 necessary to charge the drawer and indorsers." Ih. See Harker 
 V. Anderson, 21 Wend. 372 ; Judd v. Smith, 3 Hun, 190 ; Smith 
 V. UnMngst, 20 Misc. 564. 
 
 Where the instrument is not payable on demand, presentment 
 must be made on the day it falls due. Where it is payable on 
 demand, presentment must be made within a reasonable time after 
 its issue, except that in case of a bill of exchange, presentment 
 for payment will be sufficient if made within a reasonable time 
 after the last negotiation thereof. General Laws, ch. 50, § 131. 
 See Eisenlord v. Dillenhack, 15 Hun, 23 ; Salmon v. Orosvenor, 
 66 Barb. 160; Sice v. Cunningham, 1 Gbw. 397; Furman v. Has- 
 hin, 2 Gaines, 369. 
 
 Presentment for payment to be sufficient must be made by the 
 holder, or by some person authorized to receive payment on his be- 
 half, at a reasonable hour on a business day, at the proper place, 
 to the person primarily liable on the instrument, or if he is absent 
 or inaccessible, to any person found at the place where the pre- 
 sentment is made. General Laws, ch. 50, § 132. 
 
 Presentment for payment is made at the proper place where a 
 place of payment is specified in the instrument and it is there 
 
BILLS AND NOTES. 583 
 
 presented; where no place of payment is specified, but the ad- 
 ,<iress of the person to make payment is given in the instrument 
 and it is there presented ; where no place of payment is specified 
 and no address is given and the instrument is presented at the 
 usual place of business or residence of the person to make pay- 
 ment; and in any other case, if presented to the person to make 
 payment wherever he can be found, or if presented at his last 
 known place of business or residence. Id. § 133. 
 
 The instrument must be exhibited to the person from whom 
 payment is demanded, and when it is paid must be delivered up 
 to the party paying it. Id. § 134. 
 
 Where the instrument is payable at a bank, presentment for 
 payment must be made during banking hours, unless the person 
 to make payment has no funds there to meet it at any time during 
 ihe day, in which case presentment at any hour before the bank 
 is closed on that day is sufficient. Id. § 135. See Salt Springs 
 Nat. BanJc v. Barton, 58 N. Y. 430. The maker has until the 
 close of banking hours in which to pay his note made payable at 
 a bank; and if before the close of banking hours the maker de- 
 posits money in that bank sufiicient to cover the note, a demand of 
 payment made earlier in the day is premature. German-Ameri- 
 can Bank v. Milliman, 31 Misc. 87. 
 
 Where the person primarily liable on the instrument is dead, 
 and no place of payment is specified, presentment for payment 
 must be made to his personal representative, if such there be, and 
 if, with the exercise of reasonable diligence, he can be found. 
 General Laws, ch. 50, § 136. See Willis v. Green, 5 Hill, 232; 
 Stewart v. Eden, 2 Caines, 121 ; Merchants' Bank v. Birch, 17 
 Johns. 25 ; Philpot v. Bryant, 3 C'arr. & Payne, 244. 
 
 Where the persons primarily liable on the instrument are liable 
 as partners, and no place of payment is specified, presentment for 
 payment may be made to any one of them, even though there has 
 been a dissolution of the firm. General Laws, ch. 50, § 137. See 
 Gates V. Beecher, 60 IST. Y. 518. But where there are several 
 persons, not partners, primarily liable on the instrument, and no 
 place of payment is specified, presentment must be made to them 
 all. General Laws, ch. 50, § 138. See Britt v. Lawson, 15 Hun, 
 123 ; Shutts v. Fingar, 100 K Y. 539. 
 
 Presentment for payment is not required to charge the drawer 
 where he has no right to expect or require that the drawee or ac- 
 ceptor will pay the instrument. General Laws, ch. 50, § 139; 
 
584 BILLS AND NOTES. 
 
 Laws of 1879, ch. 612, § 139. So presentment for payment is 
 not required in order to charge an indorser where the instrument 
 was made or accepted for his accommodation, and he has no rea- 
 son to expect that the instrument will be paid if presented. Id. 
 § 140. In this State the mere proof of the insolvency of the maker 
 of a promissory note is not a sufficient excuse for failing to present 
 the note for payment and to notify the indorser of its dishonor. 
 Manning v. Lyon, YO Hun, 345 ; Smith v. Miller, 52 JST. Y. 545 ;, 
 O'Neill V. Meighan, 32 Misc. 516. 
 
 Delay in making presentment for payment , is excused when 
 the delay is caused by circumstances beyond the control of the 
 holder and not imputable to his default, misconduct or negli- 
 gence. When the cause of delay ceases to operate, presentment 
 must be made with reasonable diligence. General Laws, ch. 50, 
 § 141. If presentment is made through an agent, the default of 
 the agent will be imputed to the holder. Williams v. Brown, 53 
 App. Div. 486. 
 
 A person accepting a check assumes, as between himself and an 
 indorser, an obligation to present the same to the bank for pay- 
 ment within the time prescribed by the law merchant, that is to 
 say, not later than the next day after its date, and if payment 
 is refused, to protest the same and give notice of non-payment. 
 Smith V. Janes, 20 Wend. 192 ; Carroll v. Sweet, 128 N. Y. 19. 
 Presentment in due time as iixed by the law merchant is a condi- 
 tion upon the performance of which the liability of the indorser de- 
 pends ; and delay in presentment is not excused, although the 
 drawer of the check had no funds, or was insolvent, or because pre- 
 sentment would have been unavailing as a means of procuring 
 payment. Mohawk Bank v. Broderick, 10 Wend. 304 ; Gough v. 
 Staats, 13 Wend. 549 ; Carroll v. Sweet, 128 N. Y. 19. The rule 
 is difFerent as between the holder and drawer of a check. As be- 
 tween them, presentment may be made at any time, and delay in 
 presentment does not discharge the liability of the drawer unless 
 loss has resulted. li.; Little v. Phoenix Bank, 2 Hill, 425. 
 
 "Presentment for payment is dispensed with: (1.) Where 
 after the exercise of reasonable diligence presentment as required 
 by this act cannot be made; (2) When the drawee is a fictitious 
 person; (3) By waiver of presentment, express or implied." Gen- 
 eral Laws, ch. 50, § 142. 
 
 The liability of the indorser of a note to pay it is made to de- 
 pend upon the implied condition that payment shall be demanded 
 
BILLS AND NOTES. 585 
 
 of the maker at maturity, and in the event of default, that notice 
 of non-pajrment shall be immediately given to the indorser. These 
 conditions are for the benefit of the indorser, and he may, before 
 maturity, waive them. The waiver may be oral or in writing. 
 It is not necessary that it should be direct and positive. It may 
 result from implication and usage, or from any understanding be- 
 tween the parties which is of a character to satisfy the mind that 
 a waiver is intended. Cody v. Bradshaw, 116 N. Y. 188. The 
 assent must, however, be clearly established, and will not be in- 
 ferred from doubtful or equivocal acts or language. Ih.j Ross v. 
 Hurd, 71 ]Sr. Y. 14. A statement by the indorser to the holder of 
 a note, that he was willing that it should remain another year, 
 and that it was a good note, has been held to be a waiver of de- 
 mand and notice, and that the indorser was not discharged by the 
 omission of such demand and notice. Sheldon v. Horton, 43 N. Y. 
 93. The indorsement of a renewal note to take up the original, 
 which is not accepted by the holder, is a waiver of notice of non- 
 payment. Nat. Hudson River Bank v. Reynolds, 57 Hun, 
 307. 
 
 The instrument is dishonored by non-payment when it is duly 
 presented for payment and payment is refused or cannot be ob- 
 tained, or, when presentment is excused and the instrument is 
 overdue and unpaid. Laws of 1897, ch. 612, § 143 ; General Laws, 
 ch. 50, § 143. 
 
 Subject to the provisions of the Negotiable Instruments Law, 
 when the instrument is dishonored by non-payment an .immediate 
 right of recourse to all parties secondarily liable thereon accrues, 
 to the holder. Id. § 144. 
 
 The foregoing provisions of the statute render it important 
 to determine when a negotiable instrument becomes due and 
 payable, as the time of presentment for payment may be a ma- 
 terial factor in fixing the liability of the parties secondarily liable. 
 Formerly, a promissory note which was drawn payable at a speci- 
 fied time, as on a certain future day, or on a given number of 
 days after date, or on any other particular day mentioned therein, 
 was not payable at the time the words naturally imported, and 
 the maker was allowed until the third day after, and exclusive of 
 the day expressed, in which to make payment. These added days 
 were called " days of grace." See Smith v. Aylesworth, 40 Barb. 
 104 ; Oothout v. Ballard, 41 Barb. 33 ; Etheridge v. Ladd, 44 
 Barb, 69. Days of grace were also allowed as to some bills but 
 
.586 BILLS ANT) NOTES. 
 
 ■denied as to others. See Commercial Bank of Kentucky v. Var- 
 num, 49 ]S[. Y. 269. They were not allowed as to notes not ne- 
 gotiable, l^ow every negotiable instrument is payable at the time 
 fixed therein without grace. When the day of maturity falls upon 
 Sunday, or a holiday, the instrument is payable on the next suc- 
 ceeding business day. Instruments falling due or becoming pay- 
 able on Saturday are to be presented for payment on the next 
 succeeding business day, except that instruments payable on de- 
 mand may, at the option of the holder, be presented for payment 
 before twelve o'clock noon, on Saturday, when that entire day is 
 not a holiday. General Laws, ch. 50, § 145. 
 
 The term holiday includes the following days in each year : the 
 first day of January, known as New Year's day; the twelfth day 
 of February, known as Lincoln's birthday ; the twenty-second day 
 of February, known as Washington's birthday; the thirtieth day 
 of May, known as Memorial day; the fourth day of July, known 
 as Independence day ; the first Monday in September, known as 
 Labor day; and the twenty-fifth day of December, knovTu as 
 Christmas day; and if either of such days is Sunday, the next 
 day thereafter ; each general election day and each day appointed 
 by the president of the United States or by the governor of this 
 State as a day of general thanksgiving, general fasting and prayer, 
 or other general religious observances. The term, half-holiday, 
 includes the period from noon to midnight of each Saturday which 
 is not a holiday. The days and half days aforesaid shall be con- 
 sidered as the first day of the week, commonly called Sunday, 
 and as public holidays or half-holidays, for all purposes what- 
 soever as regards the transaction of business in the public of- 
 fices of this State or counties of this State. General Laws, ch. 1, 
 § 24. 
 
 Where the instrument is payable at a fixed period after date, 
 after sight, or after the happening of a specified event, the time 
 of payment is determined by excluding the day from which the 
 time is to begin to run, and by including the date of payment. 
 Id. ch. 50, § 146. 
 
 Where the instrument is made payable at a bank it is equiva- 
 lent to an order to the bank to pay the same for the account of the 
 principal debtor thereon. Id. § 147. 
 
 Payment is made in due course when it is made at or after the 
 maturity of the instrument to the holder thereof in good faith 
 and without notice that his title is defective. Id. § 148. 
 
BILLS AND Iv^OTES. 587 
 
 § 15. Notice of Dishonor of a Bill or Note. 
 
 In another section of this chapter what constitutes the dishonor 
 'of a bill by non-acceptance has been pointed out (ante, p. 581), 
 and in the section following it, the proceedings necessary to charge 
 the drawer and indorsers of the dishonored bill have been briefly 
 considered. See anie, p. 581. 
 
 The Negotiable Instruments Law provides that " Sxcept as 
 herein otherwise provided, when a negotiable instrument has been 
 dishonored by non-acceptance or non-payment, notice of dishonor 
 must be given to the drawer and to each indorser, and any drawer 
 or indorser to whom such notice is not given is discharged." Gen- 
 eral Laws, ch. 50, § 160. Notice of demand and non-payment 
 is necessary to charge the indorser of a note, although he signed 
 it when past due. Alleman v. Bowen, 39 St. Eep. 822 ; Leavitt 
 V. Putnam, 3 N. Y. 494 ; Eisenlord v. Dillenbaclc, 15 Hun, 23 ; 
 79 N. Y. 617; Oerman-American Bank v. Atwater, 165 N. Y. 
 S6. 
 
 The notice may be given by or on behalf of the holder, or by 
 or on behalf of any party to the instrument who might be com- 
 pelled to pay it to the holder, and who, upon taking it up, would 
 have a right to reimbursement from the party to whom notice is 
 given. General Laws, ch. 50, § 161. Notice of dishonor may 
 be given by an agent either in his own name or in the name of 
 any party entitled to give notice, whether that party be his prin- 
 cipal or not. Id. § 162. Where notice is given by or on behalf of 
 the holder, it inures for the benefit of all subsequent holders and 
 all prior parties who have a right of recourse against the party 
 to whom it is given. Id. § 163. Where notice is given by or on 
 behalf of a party entitled to give notice, it intires for the benefit 
 of the holder, and all parties subsequent to the party to whom 
 notice is given. Id. § 164. 
 
 Notice of dishonor of a bill must, in general, come from the 
 holder or his agent, or from a party to the bill, though it will be 
 ^ood if given by an indorsee who has transferred it as a collateral 
 security for an existing debt ; for such a person has a direct in- 
 terest in the bill, and a right of recourse to the parties liable 
 thereon, whenever the bill comes back into his hands. Cowper- 
 ihwait V. Sheffield, 1 Sandf. 416. 
 
 Where the instrument has been dishonored in the hands of an 
 agent, he may either himself give notice to the parties liable 
 
588 BILLS AND NOTES. 
 
 thereon, or he may give notice to his principal. If he gives notice 
 to his principal, he must do so within the same time as if he were 
 the holder, and the principal upon the receipt of such notice has 
 himself the same time for giving notice as if the agent had been 
 an independent holder. Laws of 1897, ch. 612, § 165 ; General 
 Laws, ch. 50, § 165. 
 
 A written notice need not be signed and an insufficient written 
 notice may be supplemented and validated by verbal communica- 
 tion. A misdescription of the instrument does not vitiate the 
 notice unless the party to whom the notice is given is in fact mis- 
 led thereby. Id. § 166. The notice may be in writing or merely 
 oral, and may be given in any terms which sufficiently identify 
 the instrument, and indicate that it has been dishonored by non- 
 acceptance or non-payment. It may in all cases be given by de- 
 livering it personally or through the mails. Id. § 167. 
 
 The law does not require that the notice shall be given in any 
 particular form or set of words ; it will be sufficient if the lan- 
 guage employed is such as, in express terms or by necessary im- 
 plication, to convey notice to the drawers and indorsers of the 
 identity of the bill or note, and that payment of it on due pre- 
 sentment has been neglected or refused by the maker or acceptor. 
 Hodges v. SJiuler, 24 Barb. 68; 8. C, 22 N. Y. 114; Cool v. 
 Litchfield, 9 N. Y. 279 ; Cayuga Co. Bank v. Warden, 1 N. Y. 
 413 ; Cook v. Litchfield, 2 Bosw. 137 ; Davenport v. Gilbert, 4 
 Bosw. 532 ; S. C, again, 6 Bosw. 179. The notice will be valid 
 whether verbal or in writing, although a written notice will almost 
 invariably be preferred. Butt v. Hoge, 2 Hilt. 81 ; Woodin v. 
 Foster, 16 Barb. 146 ; Cuyler v. Stevens, 4 "Wend. 566. The bill 
 or note dishonored ought to be so described in the notice that the 
 drawer or indorsers may know what instrument is intended; and 
 if the notice correctly gives the date, time of payment, amount, 
 names of maker, and of the payees, and of the indorsement, of 
 a promissory note, this will be sufficient although it does not state 
 the number of the note, and although it appears that there were 
 three or four other notes precisely like it outstanding at the time of 
 giving the notice, and although, also, the number was the only 
 means of precisely identifying the note. Hodges v. Shuler, 24 
 Barb. 68 ; 8. C, 22 N. Y. 114. If the notice gives the names 
 of the makers and indorsers of a promissory note, with the amount 
 thereof, this is a sufficient description in the absence of evidence 
 showing that there were other notes to which the notice would 
 
BILLS AND NOTES. 589 
 
 apply. Youngs v. Lee, 18 Barb. 187 ; S. C, 12 N. Y. 551. A 
 statement in such notice that the note had been protested for non- 
 payment, is a sufficient notice of a presentment and demand of 
 payment at the time and place of payment. Ih. But if the notice 
 of non-payment does not state the name of the maker of the 
 promissory note dishonored, it will not be sufficient to charge the 
 indorser. Home Ins. Co. v. Oreen, 19 N. Y. 518. If the notice 
 possesses the usual legal requisites, but it misdescribes the bill 
 or note to which it refers, it is to be determined as a matter of 
 fact, upon the circumstances of the case, whether the indorser 
 or drawer could be misled by such misdescription. McKnight v. 
 Lewis, 5 Barb. 681. 
 
 And if there is a misdescription in some of the particulars, it 
 may be shown that there was at the time of giving the notice no 
 other note in existence to which the description could apply. 
 Cayuga Co. Bank v. Warden, 1 N. Y. 413 ; S. C, again, 6 E". Y. 
 19. And when the notice, in connection with such evidence, iden- 
 tifies the note with reasonable certainty, it will be sufficient to 
 charge the indorsers. Ih. It is not necessary that the notice 
 should state who is the owner of the bill or note, or at whose 
 request it is given. The indorser is bound to pay the true owner 
 or holder; and he can ascertain that fact at the time of pay- 
 ing it. 
 
 The negligence or other acts of the indorser may be such as 
 to render a defective notice sufficient if such acts or negligence 
 caused the error. Manufacturers & Traders' Bank v. Hazard, 30 
 N. Y. 226. 
 
 Notice of dishonor may be given either to the party himself or 
 to his agent in that behalf. General Laws, ch. 50, § 168. Where 
 any party is dead and his death is known to the party giving 
 notice, the notice must be given to a personal representative, if 
 there be one, and if, with reasonable diligence, he can be found. 
 If there be no personal representative, notice may be sent to the 
 last residence or last place of business of the deceased. Id. § 169. 
 Where the parties to be notified are partners, notice to any one 
 partner is notice to the firm, even though there has been a dissolu- 
 tion. Id. § lYO. Notice to joint parties who are not partners 
 must be given to each of them, unless one of them has authority 
 to receive such notice for the others. Id. § 171. Where a party 
 has been adjudged a bankrupt or an insolvent, or has made an 
 assignment for the benefit of creditors, notice may be given either 
 to the party himself or to his trustee or assignee. Id. § 172. 
 
590 BILLS AND I^OTES. 
 
 " Notice may be given as soon as the instrument is dishonored ; 
 and unless delay is excused as hereinafter provided, must be given 
 within the times fixed by this act." Id. § 173. Where the per- 
 son giving and the person to receive notice reside in the same place,, 
 notice must be given within the following times : 
 
 1. If given at the place of business of the person to receive- 
 notice, it must be given before the close of business hours on the 
 day following; 
 
 2. If given at his residence, it must be given before the usual 
 hours of rest on the day following ; 
 
 3. If sent by mail, it must be deposited in the post-office in 
 time to reach him in usual course on the day following. Id. § 174. 
 
 Where the person giving and the person to receive notice re- 
 side in different places, the notice must be given within the follow- 
 ing times ; 
 
 1. If sent by mail, it must be deposited in the post-office in 
 time to go by mail the day following the day of dishonor, or if 
 there be no mail at a convenient hour on that day, by the next 
 mail thereafter. 
 
 2. If given otherwise than through the post-office, then within 
 the time that notice would have been received in due course of 
 mail, if it had been deposited in the post-office within the time 
 specified in the last subdivision. Id. § 175. 
 
 Where notice of dishonor is duly addressed and deposited in 
 the post-office, the sender is deemed to have given due notice not- 
 withstanding any miscarriage in the mails. Id. § 176. Notice 
 is deemed to have been deposited in the post-office when deposited 
 in any branch post-office or in any letter box under the control 
 of the post-office department. Id. § 177. 
 
 Where a party receives notice of dishonor, he has, after the re- 
 ceipt of such notice, the same time for giving notice to antecedent 
 parties that the holder has after dishonor. Id. § 178. 
 
 The holder of a bill or note ought to give notice of its dishonor 
 to all the parties to whom he intends to look for payment ; but it 
 will be sufficient if he gives due notice to his immediate indorser 
 for the purpose of charging him; and it is the business of each 
 indorser to see that his immediate indorser is properly notified. 
 Morgan v. WoodwoHh, 3 Johns. Cas. 89 ; Bank of Utica v. Smith,, 
 18 Johns. 230; Bank of the U. S. v. Davis, 2 Hill, 451. Where 
 a bank discounts the note of a third person for one of its customers, 
 upon his indorsement of the note, and then passes the amount to> 
 his credit, the bank will not be liable to the customer for failing 
 
BILLS AND ITOTES. 591 
 
 to charge a prior indorser upon the dishonor of the note, because- 
 in such case the bank is the owner of the note and if content with 
 charging its immediate indorser, it is not bound to charge prior 
 indorsers. Lake v. Artisans' Banh, 17 Abb. 232 ; Spencer v. 
 Ballou, 18 N. Y. 327. Where the holder of a protested bill or 
 note gives notice to his immediate indorser, he has discharged a;ll 
 the duty which he owes to the other parties to such bill or note ; 
 and all the other parties will be charged if they receive notice in 
 due course from their immediate subsequent indorsers. West 
 Bank v, Taylor, 34 N. Y. 128. If the holder is not satisfied with 
 the responsibility of his immediate indorser, his proper course is 
 to give notice to all the parties to whom he intends to look for 
 indemnity on the instrument. 
 
 Where a party has added an address to his signature, notice of 
 dishonor must be sent t" that address ; but if he has not given, 
 such address, then the notice must be sent as follows : 
 
 1. Either to the post-ofiice nearest to his place of residence or to/ 
 the post-office where he is accustomed to receive his letters ; or 
 
 2. If he live in one place, and have his place of business in 
 another, notice may be sent to either place ; or 
 
 3. If he is sojourning in another place, notice may be sent to 
 the place where he is so sojourning. 
 
 But where the notice is actually received by the party within 
 the time specified in this act, it will be sufficient, though not sent 
 in accordance with the requirements of this section. General 
 Laws, ch. 50, § 179. 
 
 Notice of dishonor may be waived either before the time of 
 giving notice has arrived, or after the omission to give due notice, 
 and the waiver may be express or implied. Id. § 180. Where- 
 the waiver is embodied in the instrument itself, it is binding upon 
 all parties; but where it is written above the signature of an in- 
 dorser, it binds him only. Id. § 181. 
 
 A waiver of protest, whether in case of a foreign bill of ex- 
 change or other negotiable instrument, is deemed to be a waiver 
 not only of the formal protest, but also of presentment and notice 
 of dishonor. Id. § 182. 
 
 Notice of dishonor is dispensed with when, after the exercise 
 of reasonable diligence, it cannot be given to or does not reach the- 
 parties sought to be charged. Id. § 183. 
 
 Delay in giving notice of dishonor is excused when the delay is 
 caused by circumstances beyond the control of the holder and not 
 
592 BILLS AND NOTES. 
 
 imputable to his default, misconduct or negligence. When the 
 cause of delay ceases to operate, notice must be given with reason- 
 able diligence. Id. § 184. 
 
 Notice of dishonor need not be given to the drawer in either 
 of the following cases : 
 
 1. When the drawer and drawee are the same person ; 
 
 2. Where the drawee is a fictitious person or a person not hav- 
 ing the capacity to contract ; 
 
 3. Where the drawer is the person to whom the instrument is 
 presented for payment ; 
 
 4. Where the drawer has no right to expect or require that the 
 drawee or acceptor will honor the instrument; 
 
 5. Where the drawer has countermanded payment. Id. § 185. 
 Notice of dishonor is not required to be given to an indorser 
 
 in either of the following cases : 
 
 1. When the drawee is a fictitious person or a person not hav- 
 ing the capacity to contract, and the indorser was aware of the 
 fact at the time he indorsed the instrument ; 
 
 2. Where the indorser is the person to whom the instrument 
 is presented for payment ; 
 
 3. Where the instrument was made or accepted for his accom- 
 modation. Id. § 186. 
 
 Where due notice of dishonor by non-acceptance has been given, 
 notice of a subsequent dishonor by non-payment is not necessary, 
 unless in the meantime the instrument has been accepted. Id. 
 §187. 
 
 An omission to give notice of dishonor by non-acceptance does 
 not prejudice the rights of a holder in due course subsequent to 
 the omission. Id. § 188. 
 
 § 16. Protest of Bills of Exchange. 
 
 Where any negotiable instrument has been dishonored, it may 
 be protested for non-acceptance or non-payment, as the case may 
 be; but protest is not required except in the case of foreign bills 
 of exchange. Laws of 1897, ch. 612, § 189 ; General Laws, ch. 
 50, § 189. 
 
 Where a foreign bill, appearing on its face to be such, is dis- 
 honored by non-acceptance, it must be duly protested for non- 
 acceptance; and where such a bill which has not previously been 
 dishonored by non-acceptance is dishonored by non-payment, it 
 must be duly protested for non-payment. If it is not so protested. 
 
BILLS AND NOTES. 593 
 
 "the drawer and indorsers are discharged. Where a bill does not 
 appear on its face to be a foreign bill, protest in case of dishonor 
 is unnecessary. Id. § 260. 
 
 The protest must be annexed to the bill or must contain a copy 
 thereof, and must be under the hand and seal of the notary mak- 
 ing it, and must specify: (1) The time and place of present- 
 ment; (2) The fact that presentment was made and the manner 
 thereof; (3) The cause or reason for protesting the bill; (4) The 
 demand made and the answer given, if any, or the fact that the 
 drawee or acceptor could not be found. Id. § 261. The protest 
 may be made by a notary public, or it may be made by any re- 
 spectable resident of the place where the bill is dishonored, in 
 the presence of two or more credible witnesses. Id. § 262. 
 
 Protest of a bill must be made on the day of its dishonor, un- 
 less delay is excused as provided by the statute. Where a bill has 
 I)een duly noted, the protest may be subsequently extended as of 
 the date of the noting. Id. § 263. 
 
 A bill must be protested at the place where it is dishonored, ex- 
 cept that when a bill drawn payable at the place of business or 
 residence of some person other than the drawee, has been dis- 
 honored by non-acceptance, it must be protested for non-payment 
 at the place where it is expressed to be payable, and no further 
 presentment for payment to, or demand on, the drawee is neces- 
 sary. Id. § 264. 
 
 A bill which has been protested for non-acceptance may subse- 
 quently be protested for non-payment. Id. § 265. 
 
 Where the acceptor has been adjudged a bankrupt or an insol- 
 vent or has made an assignment for the benefit of creditors, be- 
 fore the bill matures, the holder may cause the bill to be pro- 
 tested for better security against the drawer and indorsers. Id. 
 " 266. 
 
 Protest is dispensed with by any circumstances which would 
 dispense with notice of dishonor. Id. § 267. Notice of dishonor 
 is dispensed with when, after the exercise of reasonable diligence, 
 it cannot be given to or does not reach the parties sought to be 
 charged. Id. § 183. Delay in noting or protesting is excused 
 when delay is caused by circumstances beyond the control of the 
 holder and not imputable to his default, misconduct or negligence. 
 When the cause of delay ceases to operate, the bill must be noted 
 or protested with reasonable diligence. Id. § 267. 
 
 Where a bill is lost or destroyed or is wrongfully detained from 
 38 
 
594 BILLS AND NOTES. 
 
 the person entitled to hold it, protest may be made on a copy or 
 written particulars thereof. Id. § 268. 
 
 A waiver of protest, whether in the case of a foreign bill of 
 exchange or other negotiable instrument, is deemed to be a waiver 
 not only of formal protest, but also of presentment and notice of 
 dishonor. Id. § 182. 
 
 § 17. Rights of the Holder. 
 
 The holder of a negotiable instrument may sue thereon in his 
 own name ; and payment to him in due course discharges the in- 
 strument. Laws of 1897, ch. 612, § 90; General Laws, ch. 50, 
 §90. 
 
 In the preceding pages much has been said incidentally as to 
 the rights of a hona fide holder of negotiable paper, or, the rights 
 of a holder in due course, as the term used in the Negotiable 
 Instruments Law. A holder in due course is a holder who has 
 taken the instrument under the following conditions : 
 
 1. That it is complete and regular upon its face ; 
 
 2. That he became the holder of it before it was overdue; and 
 without notice that it had been previously dishonored, if such 
 was the fact; 
 
 3. That he took it in good faith and for value ; 
 
 4. That at the time it was negotiated to him he had no notice 
 of any infirmity in the instrument or defect in the title of the 
 person negotiating it. Id. § 91. Where an instrument payable 
 on demand is negotiated an unreasonable length of time after its 
 issue, the holder is not deemed a holder in due course. Id. § 92. 
 And where the transferee receives notice of any infirmity in the 
 instrument or defect in the title of the person negotiating the same 
 before he has paid the full amount agreed to be paid therefor, he 
 will be deemed a holder in due course only to the extent of the 
 amount theretofore paid by him. Id. § 93. The title of a person 
 who negotiates an instrument is defective within the meaning of 
 the statute when he obtained the instrument, or any signature 
 thereto, by fraud, duress, or force and fear, or other unlawful 
 means, or for an illegal consideration, or when he negotiates it 
 in breach of faith, or under such circumstances as amount to a 
 fraud. Id. § 94. To constitute notice of an infirmity in the in- 
 strument or defect in the title of the person negotiating the same, 
 the person to whom it is negotiated must have had actual knowl- 
 edge of the infirmity or defect, or knowledge of such facts that his- 
 action in taking the instrument amounted to bad faith. Id. § 95.. 
 
BILLS AND NOTES. 595 
 
 A holder in due course holds the instrument free from any de- 
 fect of title of prior parties and free from defenses available to 
 prior parties among themselves, and may enforce payment of the 
 instrument for the full amount thereof against all parties liable 
 thereon. Id. § 96. 
 
 In the hands of any hoioer other than a holder in due course 
 a negotiable instrument is subject to the same defenses as if it 
 were non-negotiable. But a holder who derives his title through 
 a holder in due course and who is not himself a party to any fraud' 
 or illegality affecting the instrument, has all the rights of such 
 former holder in respect of all parties prior to the latter. Id. 
 §97. 
 
 Every holder is deemed prima facie to be a holder in due 
 course ; but when it is shown that the title of any person who has 
 negotiated the instrument was defective, the burden is on the holder 
 to prove that he or some person under whom he claims acquired 
 the title as a holder in due course. But the last-mentioned rule 
 does not apply in favor of a party who became bound on the in- 
 strument prior to the acquisition of such defective title. Id. § 98. 
 , Where proof is given that the note in suit was fraudulent as be- 
 tween the maker and the payee, the effect of this evidence is to 
 shift the burden of proof, and renders it necessary for the plain- 
 tiff to show not only the payment of value, but under what circum- 
 stances he became the owner of the note. Citizens' Nat. Bank v. 
 Weston, 162 IST. T. 113 ; VoshiCrgh v. Diefendorf, 119 N. Y. 357 ; 
 CanajoTiarie Nat. Bank v. Diefendorf, 123 IST. Y. 191 ; Joy v. 
 Diefendorf, 130 N. Y. 6; Smith v. Weston, 159 IST. Y. 194; Hun- 
 ter V. Batterson, 28 Misc. 479. Where a promissory note is pre- 
 sented to a person for the purpose of negotiation by the payee, to 
 whom it had apparently been delivered by the maker in the usual 
 course of business, there is nothing upon the face of the transac- 
 tion to put the purchaser upon inquiry, and he has the right to 
 assume, in the absence of actiial notice of any defect, that the re- 
 lation to the paper of every party whose name has been written 
 upon it was precisely what it appeared to be. Cheever v. Pitts- 
 burgh, etc., R. R. Co., 150 IST. Y. 59. The purchaser of negotiable 
 paper for value and before maturity, is not bound at his peril to 
 be on the watch for facts which might put a very cautious man 
 upon his guard. He does not owe to the party who put the paper 
 afloat, the duty of active inquiry in order to avert the imputation 
 of bad faith. The rights of the holder are to be determined by 
 
696 BILLS AlsTD XOTES. 
 
 the simple test of honesty and good faith, and not by a speculative 
 issue as to his diligence or negligence. The holder's rights can- 
 not be defeated without proof of actual notice of the defect in title 
 or bad faith on his part evidenced by circumstances. Though he 
 may have been negligent in taking the paper, and omitted precau- 
 tions which a prudent man would have taken, nevertheless, unless 
 he acted mala fide, his title, according to the settled doctrine, will 
 prevail. Ih.; Second Nat. Bank v. Weston, 161 IST. Y. 520. On 
 the other hand, it was held that gross carelessness, although not of 
 itself sufficient as a matter of law to defeat title in a purchaser 
 for value, constitutes evidence of bad faith. Canajoharie Nat. 
 Bank v. Diefendorf, 123 IST. Y. 191. 
 
 A donee of negotiable securities takes them subject to all the 
 equities existing at the time between the original parties, but not 
 subject to such as may arise thereafter. First Nat. Bank v. Wood, 
 128 N. Y. 35. The price paid or the absence of any parting with 
 value does not defeat a right of action upon a valid note. A valid 
 promissory note may be purchased of the payees at any price or 
 may be received as a gift from the payee, and the holder may en- 
 force it for its full amount. Callahan v. Crow, 91 IST. Y. 346. If 
 a note is purchased after maturity, it is taken subject to all exist- 
 ing defenses. lb. 
 
 A person who has purchased a note from a bona fide holder, 
 before maturity, succeeds to the title of such holder, and is en- 
 titled to recover on the note whether the transfer to him was for 
 value or otherwise, and whether it was transferred to him before 
 or after maturity, and even though he had notice that the note 
 was procured by fraud. Eckhert v. Ellis, 26 Hun, 664; Vosburgli 
 V. Diefendorf, 119 ]^. Y. 357. There is an exception to the rule 
 where the purchaser is the original payee, as he is not entitled to 
 the protection which the rule gives to the innocent indorsee or 
 purchaser. Eckhert v. Ellis, 26 Hun, 663. Neither does the rule 
 apply where the transferrer of the note, who is claimed to be a bona 
 fide holder for value, never had any title to the note unless as the 
 agent or instrument of the transferee who sues upon it. Yosburgh 
 V. Diefendorf, 119 K Y. 357. 
 
 A promissory note or other negotiable instrument, the consider- 
 ation of which consists wholly or partly of the right to make, use 
 or sell any invention claimed or represented by the vendor at the 
 time of sale to be patented, must contain the words " given for a 
 patent right " prominently and legibly written or printed on the 
 
BILLS AND NOTES. 597 
 
 face of such note or instrument above the signature thereto; and 
 such note in the hands of any purchaser or holder is subject to the 
 same defenses as in the hands of the original holder ; but this sec- 
 tion does not apply to a negotiable instrument given solely for 
 the purchase price or the iise of a patented article. Laws of 1897, 
 ch. 612, § 330 ; General Laws, ch. 50, § 330. 
 
 If the consideration of a promissory note or other negotiable 
 instrument consists, in whole or in part, of the purchase- price of 
 any farm product, at a price greater by at least four times than the 
 fair market value of the same product at the time, in the locality, 
 or of the membership and rights of an association, company or 
 combination to produce or sell any farm product at a fictitious 
 rate, or of a contract or bond to purchase or sell any farm product 
 at a price greater by four times than the market value of the same 
 product at the time in the locality, the words " given for a specu- 
 lative consideration," or other words clearly showing the nature 
 of the consideration, must be prominently and legibly written or 
 printed on the face of such note or instrument above the signature 
 thereof; and such note or instrument, in the hands of any pur- 
 chaser or holder, is subject to the same defenses as in the hands 
 of the original holder or owner. Id. § 331. 
 
 § 18. Discharge of Negotiable Instruments. 
 
 A negotiable instrument is discharged by payment in due course 
 by or on behalf of the principal debtor ; by payment in due course 
 by the party accommodated, where the instrument is made or ac- 
 cepted for accommodation ; by the intentional cancellation thereof 
 by the holder; by any act which will discharge a simple contract 
 for the payment of money; or when the principal debtor becomes 
 the holder of the instrument at or after maturity in his own right. 
 Laws of 1897, ch. 612, § 200 ; General Laws, ch. 50, § 200. 
 
 A person secondarily liable on the instrument is discharged 
 by any act which discharges the instrument ; by the intentional 
 cancellation of his signature by the holder; by the discharge of 
 a prior party ; by a valid tender of payment made by a prior 
 party; by a release of the principal debtor, unless the holder's 
 right of recourse against the party secondarily liable is expressly 
 reserved ; or by any agreement binding upon the holder to extend 
 the time of payment or to postpone the holder's right to enforce 
 the instrument, unless the right of recourse against such party is 
 expressly reserved. Id. § 201. 
 
698 BILLS AND NOTES. 
 
 Where the instrument is paid by a party secondarily liable 
 thereon, it is not discharged; but the party so paying it is re- 
 mitted to his former rights as regards all prior parties, and he 
 may strike out his own and all subsequent indorsements, and 
 again negotiate the instrument, except, where it is payable to the 
 order of a third person, and has been paid by the drawer, and 
 except also, where it was made or accepted for accommodation and 
 has been paid by the party accommodated. Id. § 202. 
 
 The holder may expressly renounce his rights against any party 
 to the instrument, before, at of^ after its maturity. An absolute 
 and unconditional renunciation of his rights against the principal 
 debtor, made at or after the maturity of the instrument, discharges 
 the instrument. But a renunciation does not affect the rights of 
 a holder in due course without notice. A renunciation must be 
 in writing, unless the instrument is delivered up to the person 
 primarily liable thereon. Id. § 203. 
 
 A cancellation made unintentionally, or under a mft'ake, or 
 without the authority of the holder, is inoperative; but where an 
 instrument or any signature thereon appears to have been cancelled 
 the burden of proof lies on the party who alleges that the cancel- 
 lation was made imintentionally, or under a mistake, or without 
 authority. Id. § 204. 
 
 Where a negotiable instrument is materially altered without the 
 assent of all the parties liable thereon, it is avoided,^ except as 
 against a party who has himself made, authorized or assented to 
 the alteration, and as against subsequent indorsers. But when 
 an instrument has been materially altered and is in the hands of 
 a holder in due course, not a party to the alteration, he may en- 
 force payment thereof according to its original tenor. Id. § 205. 
 
 Any alteration which changes the date ; the sum payable, either 
 for principal or interest ; the time or place of payment ; the num- 
 ber or relation of the parties ; the medium or currency in which 
 payment is to be made; or which adds a place of payment where 
 no place of payment is specified, or any other change or addition 
 which alters the effect of the instrument in any respect, is a ma- 
 terial alteration. Id. § 206. 
 
 § 19. Payment by Bill or Note. 
 
 Bills and notes are frequently given on the sale of property, 
 the settlement of accounts, etc. And it is a general rule that. the 
 giving of a note or bill by the debtor to his creditor for goods sold, 
 
BILLS AND NOTES. 599 
 
 or for an existing debt, is not to be regarded as a payment of the 
 indebtedness, unless there is an express agreement that it shall 
 have that effect. Hill v. Beehe, 13 N. Y. 556, 562, 563 ; Hughes 
 V. Wheeler, 8 Cow. 77 ; Burdich v. Green, 15 Johns. 247 ; Tohey 
 V. Barber, 5 Johns. 68 ; Board of Education, v. Fonda, 77 N. Y. 
 350, 362; Feldman v. Beier, 78 jST. Y. 293, 298; Jagger Iron 
 Co. V. Walker, 76 N. Y. .521 ; Novelty Mfg. Co. v. Connell, 88 
 Hun, 254; Ouilford v. Mulhin, 85 Hun, 489. The giving of a 
 bill or note does not extinguish the debt for which it was given; 
 it merely operates to extend the .time of payment until the in- 
 strument becomes due; and, if it is not then pS.id, the creditor 
 may sue upon the original demand, though he must be able to 
 produce the bill or note at the trial for cancellation. Ih. ; Muldon 
 V. Whitloch, 1 Cow. 290. See Beehl v. Martens, 40 App. Div. 
 231. The acceptance by a creditor of a bill or note, made by a 
 third person, on account of the debt, does not satisfy it, unless 
 the pardps agreed that it should be received as payment, and that 
 the creditor should run the risk of its being paid ; or unless the 
 creditor parts with the note, or is guilty of laches in not present- 
 ing it for payment. Elwood v. Diefendorf, 5 Barb. 398 ; Hays 
 V. Stone, 7 Hill, 128 ; 3 Denio, 575 ; Noel v. Murray, 13 N. Y. 
 167; Beehl v. Martens, 40 App. Div. 231. To the extent that 
 the debtor has been injured by the laches of the creditor in not 
 presenting it for payment, the law will treat the omission to make 
 due presentment as tantamount to payment. Carroll v. Sweet, 
 128 N. Y. 19, 24. The same rule applies to a check (id.), and, 
 if it is not paid, the creditor may sue upon the original demand. 
 Cromwell v. Lovett, 1 Hall, 56; Stephens v. McNeill, 26 Barb. 
 651 ; Tanner v. Bank of Fox Lake, 23 How. 399. If a note, given 
 for a debt, is left in the possession of one of the debtors for safe 
 keeping, and is destroyed by fire while in his possession, an action 
 upon the original debt, after the maturity of the note, will be 
 sustained. Tompkins v. Tompkins, 68 St. Eep. 846. 
 
 Where a note, bill or check is received on a precedent debt, the 
 presumption is that it was not taken as payment, and the burden 
 of establishing that it was agreed to be so received is upon the 
 debtor. Noel v. Murray, 13 N. Y. 168; Oreemvich Ins. Co. v. 
 Oregon Improvement Co., 76 Hun, 194; Hall v. Stevens, 116 N. 
 Y. 201. But where such an instrument is received cotemporane- 
 ously with the contracting of the debt, the presumption is that it 
 vr|s lagreed to be received in payment, and the burden of proving 
 tne contrary rests on the creditor. lb.; Whitbeck v. Van Ness, 
 
600 BILLS A]^D K'OTES. 
 
 11 Johns. 409; Rew v. Barber, 3 Cow. 272; Breed v. Cooh, 15 
 Johns. 241. Where the debtor guarantees a bill or note or check, 
 which he transfers as part payment, at the time of the creation 
 of the debt, such guaranty is evidence that the creditor did not 
 accept the instrument in payment. Monroe v. liojf, 5 Denio, 360; 
 Johnson v. Gilbert, 4 Hill, 178 ; Torry v. Hadley, 27 Barb. 192 ; 
 Tyler v. Stevens, 11 Barb. 485 ; Cardell v. McNiel, 21 ]^. Y. 336. 
 It is of no consequence whether the guaranty is in writing or by 
 parol, or whether it is valid or void. In either case it is evidence 
 that the creditor did not accept the instrument as an absolute 
 payment of his demand; and, therefore, when the time expires 
 for which such instrument extends, and it then is ujipaid, the 
 creditor may sue upon the original debt, and cancel such collateral 
 security on the trial. lb. Where the creditor accepts the note 
 of a third person in payment of his debt, whether existing, or one 
 created at the time of a purchase, etc., such note will be a pay- 
 ment and discharge of the debt ; or, if it was expressly agreed that 
 such should be the effect of the arrangement. Johnson v. Weed, 
 9 Johns. 310 ; Graves v. Friend, 5 Sandf. 568 ; 8t. John v. Purdy, 
 1 Sandf. 9 ; Frisbie v. Lamed, 21 Wend. 450 ; Willard v. Germer, 
 1 Sandf. 50; New York State Bank v. Fletcher, 5 Wend. 85. 
 And see Tobey v. Barber, 5 Johns. 68 ; S. C., 2 Am. Lead. Cases, 
 225-273. 
 
 Where several persons are jointly indebted for goods sold, 
 which are charged to all the debtors, it will not discharge some 
 of the parties from their liability by reason of the making out of 
 a bill against a part of the debtors, and taking a note from them 
 payable at a future time, and giving a receipt in full, if such note 
 is not paid. Muldon v. WhitlocJc, 1 Cow. 290 ; Schermerhorn v. 
 Loines, 7 Johns. 311. Where a firm was indebted, and had given 
 a firm note for the amount, and the firm was subsequently dis- 
 solved, and after that event one of the partners gave his indi- 
 vidual note for a part of the amount, the note of a third person for 
 a portion of it, and paid the balance in money, it was held that 
 this arrangement extingiiished the liability of the other partners. 
 Waydell v. Luer, 3 Denio, 410. And see Le Page v. McCrea, 1 
 Wend. 164; Frisbie v. Lamed, 21 Wend. 450. Whether a note 
 given by one of several partners, upon an express agreement that 
 it shall be received in payment of the firm debt, will discharge 
 the other partners, is not entirely settled. See Edw. on Bills, 
 194, 195, and cases cited; Hartford Fire Ins. Co. v. Dickenson, 
 73 Hun, 579. Where a creditor received from his debtor the 
 
BILLS AND NOTES. 601 
 
 business note of a third person, upon an agreement tkat it should 
 be a full satisfaction of a larger debt, if paid at maturity, but 
 not otherwise, it was held that the creditor, by receiving payment 
 of the note when past due, waived the condition and discharged 
 his original debtor. Conlcling v. King, 10 jST. Y. 440. 
 
 Where a debtor and creditor disagree as to the amount due on 
 an account, and the debtor sends to the creditor his check for the 
 sum which he conceives to be due, " in full payment " of the 
 account, which check the creditor uses, notifying the debtor that 
 he does not receive it in full payment, but merely as a payment 
 on account, claiming a balance still due, the transaction amoimts 
 to a payment and full satisfaction of the demand. Where a check 
 is sent in full satisfaction of an unliquidated demand, and the 
 creditor retains and uses it, his claim is canceled, and no protest, 
 declaration or denial, on his part, can change the result, so long 
 as the condition is insisted upon by the debtor. Reynolds v. Em- 
 pire Lumber Co., 85 Hun, 470 ; Fuller v. Kemp, 138 K Y. 231 ; 
 Nasoiy v. Tomlinson, 148 N". Y. 326 ; Wisner v. Schopp, 34 App. 
 Div. 199. 
 
 When a negotiable bill or note is delivered to a creditor, it 
 operates as a payment so far that he cannot recover upon the 
 original demand until such instrument is due, and he must then 
 produce and cancel it at the trial before he can recover. Holmes 
 v. DeCamp, 1 Johns. 34; Angel v. Felion, 8 Johns. 149; Ray- 
 mond V. Merchant, 3 Oow. 147 ; Hughes v. Wheeler, 8 Cow. 77 ; 
 Burdich v. Green, 15 Johns. 247. Negotiable paper is treated as 
 payment in the manner just mentioned^ for the reason that it 
 may be transferred from hand to hand; and if transferred to a 
 hona fide holder, for value, before the maturity of the paper, the 
 maker will be liable to pay the amount to such holder; and it is 
 therefore required that the creditor who took it from the debtor 
 shall produce and cancel it at the trial, or show its loss, etc., 
 before he can recover, either upon the original demand, or even 
 upon the note itself. Ih. See " J^ost Note." When a bill or note 
 which is not negotiable is given by a debtor to his creditor, the 
 debtor ought to have the same right to require the production and 
 cancellation of the note. 
 
 Where a creditor accepts a bill or note from his debtor it will 
 operate to suspend the right of action upon the original debt until 
 the bill or note becomes due or is dishonored. Putnam v. Lewis, 
 8 Johns. 389 ; Smith v. Applegate, 1 Daly, 91. 
 
 Where goods are sold which are to be paid for by the note of 
 
«02 BILLS AND ITOTES. 
 
 a third person, upon the delivery of the goods, and such third 
 person becomes insolvent before the goods are delivered, the vendor 
 is not compelled to deliver them and take such notes in payment, 
 even though the notes are not entirely worthless. Benedict v. 
 Field, 16 N. Y. 595; 8. C, 4 Duer, 154; Boget v. Merritt, 2 
 Caines, 117. 
 
 Where goods are sold and the purchaser pays for them by giv- 
 ing the note of a third person which is indorsed by the purchaser, 
 such note will prevent a recovery for the goods on a claim for 
 goods sold; and if the creditor neglects to take proper steps for 
 collecting the note, and he omits to give the purchaser notice 
 of non-payment, the purchaser will be discharged. Dayton v. 
 Trull, 20 Wend. 345. So, when a bill of exchange is given in 
 payment for goods purchased, the vendor must take proper steps 
 to present the bill for acceptance, and take proper steps to charge 
 the drawer, or he will be discharged, and the creditor will be 
 compelled to rely on the bill as a means of payment. Jones v. 
 Savage, 6 Wend. 658; Chamberlyn v. Delarive, 2 Wils. 350; 
 Smith V. Wilson, Andrews, 187, 228. The acceptance of a note 
 in payment of a prior debt, will not operate as a suspension of 
 the creditor's right of action, if the debtor neglects or refuses to 
 perform all that he engaged to do. And, therefore, where an 
 action had been commenced in the Supreme Court on a book 
 account, and an agreement was made between the parties for a 
 settlement, on condition that the defendant gave his note to the 
 plaintiff for the amount and paid the costs of the suit, and 
 the defendant gave the note but neglected to pay the costs, it 
 was held that the plaintiff had a right to proceed in the action. 
 Putnam v. Lends, 8 Johns. 389. When a creditor receives an 
 order or draft from his debtor upon a third person, for a given 
 sum, which the debtor alleges is to be due in a few days, and the 
 creditor takes the notes of such third person, payable in six and 
 nine months, he makes the debt his own, and, in case of non- 
 payment of the notes, he cannot call upon the debtor for the 
 amount of "the draft. Southwick v. Sax, 9 Wend. 122. 
 
 Where a debtor gives his own. note for money which he has 
 borrowed, and he also delivers to his creditor the note of a third 
 person as a collateral security, the creditor will have no right to 
 take a new note of such third person, and extend the time of pay- 
 ment, and if he takes such new note he releases his debtor from 
 the payment of his note, if the note of such third person was 
 equal to the amount of the loan. Nexsen v. Lyell, 5 Hill, 466. 
 
BILLS AND NOTES. 603 
 
 Where the note of a third person is delivered on a debt due, 
 and is received as a conditional payment, if the creditor uses dili- 
 gence in demanding payment of the note at maturity, and in giv- 
 ing notice of the non-payment so as to charge the indorsers thereon, 
 the liability on the original consideration revives, and the creditor 
 may bring his action upon the original demand. Hichling v. 
 Hardey, 7 Taunt. 312 ; Mussen v. Price, 4 East, 147. 
 
 In strictness the debt does not revive, for it was not extin- 
 ^ished. The dishonor of the paper merely gives a right of action, 
 which was temporarily suspended during the time such paper 
 was maturing. Puckford v. Maxwell, 6 Term, 52. 
 
 Forged negotiable paper, whether bills and notes, or bank notes 
 and bills, are no payment, and it will not make any difference to 
 the rule, to show that the person paying siich bills supposed that 
 they were genuine. Markle v. Hatfield, 2 Johns. 455 ; Thomas v. 
 Todd, 6 Hill, 340 ; Baker v. Bonesteel, 2 Hilt. 397 ; Jones v. 
 Jtyde, 5 Taunt. 488. The party receiving such a bill must return 
 it to the person of whom he received it, within a reasonable time 
 after discovering its worthlessness, or he will have to bear the loss. 
 Ih. So, where bank bills are received in payment, and at the time 
 of such payment the bank which issued the bills has in fact stopped 
 payment and is insolvent, although the failure is not known at the 
 place of payment, the loss falls upon the party paying, and not 
 upon the party receiving the bills. LigJithody v. Ontario Bank, 
 11 Wend. 9 ; 8. C, 13 Wend. 101. The rule as to returning such 
 bills is the same as that in relation to forged paper. Camidge v. 
 Allenby, 6 Barn. & Cress. 373. The object in requiring a prompt 
 return of sxich paper is, to enable each person to act without delay 
 in returning it to the person from whom he received it, and while 
 his memory is fresh in relation to the transaction. 
 
 § 30. Lost Bills and Notes. 
 
 At common law, if the owner of a negotiable bill or note lost 
 it, so that it could not be produced at the trial, he could not 
 maintain an action upon it. Rowley v. Ball, 3 Cow. 303 ; Kirhy 
 v. 8isson, 2 Wend. 550. And this was the rule, even though the 
 note was lost after it became due. lb. But if the bill or note 
 was not negotiable, or if the evidence did not show afErmatively 
 that it was negotiable, the plaintiff could recover upon it not- 
 withstanding its loss. Pintard v. Tackington, 10 Johns. 104; 
 McNair v. Oilherf, 3 Wend. 344. The statute now makes pro- 
 vision for a recovery upon negotiable instruments which are lost. 
 
OOi BILLS AND NOTES. 
 
 " Where it appears upon tke trial of an action that a negotiable 
 promissory note or bill of exchange upon which the action, or a 
 counterclaim interposed in the action, is founded, was lost, while 
 it belonged to the party claiming the amount due thereupon, he 
 may prove the contents thereof, by parol or other secondary evi- 
 dence, and may recover or set off the amount due thereupon, as 
 if it was produced. But for that purpose, he must give to the 
 adverse party a written undertaking, in a sum fixed by the judge 
 or the referee, not less than twice the amount of the note or bill, 
 Avith at least two sureties, approved by the judge or referee, to 
 the effect, that he will indemnify the adverse party, his heirs and 
 personal representatives, against any claim by any other person, 
 on account of the note or bill, and against all costs and expenses, 
 by reason of such claim." Code of Civil Pro., § 1917. 
 
 " But where an action is prosecuted or defended by the people 
 of the State, or by a public ofScer in their behalf, the people, or 
 the public officer, may prove the contents of a lost note or bill 
 of exchange, by parol or other secondary evidence, and may re- 
 cover or set off the amount due thereupon without giving any 
 security to the adverse party." Id. § 1918. 
 
 These provisions of the Code are a substantial re-enactment of 
 the corresponding provisions of the Revised Statutes, and deci- 
 sions under the former act may be consulted in interpreting the 
 present statute if interpretation is necessary. 
 
 A bond or undertaking is not required or authorized by section 
 1917 of the Code as a condition precedent to the right to bring 
 suit, but if it appears upon the trial that tlie instrument is lost, 
 the plaintiff may still recover upon executing the required under- 
 taking to be approved by the trial judge. Eead v. Marine Bank, 
 136 N. Y. 454. 
 
 The word " judge," as used in section 1917, includes a justice 
 of the peace. Code of Civil Pro., § 3343, subd. 3. The under- 
 taking provided for in section 1917 takes the place of the bond 
 required by the former statute. It is not necessary that the party 
 seeking to recover or defend upon a lost bill or note should exe- 
 cu.te the undertaking as the section does not in terms require such 
 execution. See Id. § 811. But it is indispensable that the under- 
 taking be executed by at least two sureties. Ih. See Code of 
 Civil Pro., § 3347, subd. 6. The approval of the justice should 
 be indorsed upon the undertaking, which, technically, means 
 written upon the back, though if placed at the foot of the instru- 
 ment it would probably sufficiently follow the requirements o£ 
 
BILLS AND NOTES. 605 
 
 the statute. See Id. § 812. The instrument, when executed and 
 approved, should be filed by the justice. Id. §§ 816, 3134, 3347. 
 The undertaking given by the plaintiff in an action in a jus- 
 tice's court upon a lost note may be in the following form : 
 
 JUSTICE'S COUET — County or Fulton. 
 
 John Doe, Plaintiff, 
 
 against 
 
 EiCHAED Roe, Defendant. 
 
 Before Eugene Morton, 
 Esq., Justice of the 
 Peace. 
 
 Whereas: John Doe, above named, has brought an action before 
 Eugene Horton, a Justice of the Peace of the County of Fulton, 
 against Eichaxd Roe, upon a certain negotiable promissory note, 
 bearing date on or about the . . day of . . . , 189., exe- 
 cuted by the said Richard Roe, whereby he promised to pay to 
 the order of John Doe, the sum of one hundred dollars, .... days 
 after the date thereof, at the Johnstown Bank, and 
 
 \Whereas : It has appeared upon the trial of said action that said 
 note was and is lost while it belonged ta the said John Doe, 
 
 Noiv, Therefore, We, John Stiles and Richard Stiles, the under- 
 signed sureties, do hereby jointly and severally undertake, pur- 
 suant to section 1917 of the Code of Civil Procedure, in the sum 
 of two hundred dollars, that we will indemnify the said Richard 
 Roe, his heirs and personal representatives, against any claim by 
 any other person on account of said note, and against all costs 
 and expense by reason of said claim. 
 
 JOHN STILES, 
 RICHARD STILES. 
 
 STATE OF NEW YORK, ) 
 
 r SS. ' 
 County op Fulton, ) 
 
 On this .. day of , 189 ., before me personally ap- 
 peared John Stiles and Richard Stiles, to me known to be the 
 same persons who executed the foregoing undertaking, and sever- 
 ally acknowledged that they executed the same. 
 
 [Eugene Horton, 
 
 Justice of the Peace, 
 
606 BILLS AND NOTES. 
 
 STATE OF NEW YOEK, 
 
 County of Eulton, 
 
 John Stiles and Kichard Stiles-, the above-named sureties, being 
 severally duly sworn, say, and each for hiimself says, that he is 
 a resident and a householder (or freeholder) within the State, 
 and is worth the sum of four hundred dollars over all the debts 
 and liabilities which he owes or has incurred, exclusive of prop- 
 erty exempt from levy and sale under execution. 
 Subscribed and sworn before me this ) 
 
 .. day of , 189.. ) 
 
 Eugene Hoeton, 
 
 Justice of the Peace. 
 
 I approve of the within undertaking and of the sureties therein 
 named. 
 
 Dated the . . of , 189 . . 
 
 Eugene Hoeton, 
 
 Justice of the Peace. 
 
 In case the action is brought upon a bill of exchange the under- 
 taking may be changed to show that fact. So if a los.t note or bill 
 is set wp as a counterclaim in an action, the recitals in the under- 
 taking given by the defendant should show that fact. The form 
 given can be readily adapted to either case. 
 
 The statute applies only to lost notes or bills, and not to such 
 as have been destroyed. Scott v. Meeker, 20 Hun, 161. 
 
 It has been already seen that a recovery might be had on a lost- 
 note which was not negotiable, even before the enactment of this 
 statute. The statute applies, in terms, to negotiable instruments, 
 and to no others. And it provides for such instruments in the 
 event of their loss, but not in any other case. It must be made 
 to appear on the trial that the bill or note was lost while it belonged 
 to the party who claims the amount due thereon. 
 
 So, too, it must appear affirmatively at the trial, that the lost 
 instrument was negotiable, or the plaintiff may recover without 
 giving any bond of indemnity. McNair v. Gilbert , 3 Wend. 344 ; 
 Pintard v. TacTcington, 10 Johns. 104. In the absence of evidence 
 upon the subject, there is no presumption that the note was nego- 
 tiable, and that fact must be proved. It.; Blade v. Noland, 12' 
 Wend. 173. Where the instrument has been deliberately de- 
 stroyed by the owner, he cannot recover upon it as a lost bill or 
 note. Ih. In an action upon negotiable paper "which has been 
 lost, the giving of a bond required by the statute, with sufficient 
 
BILLS AND NOTES. GOT 
 
 siireties, and conditioned as the statute requires, is an indispens- 
 able prerequisite to any recovery thereon. Desrrwnd v. Bice^ 1 
 Hilt. 530. A check is a bill of exchange within this statute. 
 Jacks V. Darrin, 1 Abb. 148 ; S. C, 3 E. D. Smith, 548, 557. 
 
 The plaintiff is entitled to recover although the bill or note is 
 lost after the action is commenced. Ih. An action may be main- 
 tained by the plaintiff upon a promissory note which has been 
 accidentally destroyed without giving an indemnity bond. Des^ 
 Arts V. Leggett, 16 N. Y. 582; 8. C, 5 Duer, 156. 
 
 But where it is proved that the plaintiff has deliberately and 
 voluntarily burnt the note, he will not be permitted to introduce 
 secondary or inferior evidence of its contents. Blade v. Noland,. 
 12 Wend. 173. 
 
 The statute was intended to be an advantage to both the maker 
 and the holder or owner of a lost negotiable bill or note. Without 
 the aid of the statute no action could be maintained in a court of 
 law, if the instrument was payable to bearer, or if payable tO' 
 order and indorsed in blank, or if it was negotiable by mere de- 
 livery. The reason why the plaintiff was required to produce the 
 note at the trial was, that if a recovery were permitted on it with- 
 out its production, the maker might subsequently be required 
 to pay the same note to some other person who was the true 
 owner and possessor, for value, and in good faith, at the time of 
 the first recovery. 
 
 To prevent this result, the statute requires the plaintiff to give 
 an undertaking which will indemnify the maker against the claims 
 of such bona fide holder, or of any other person. And the indem- 
 nity extends to costs and expenses as well as to the debt itself. 
 
 The statute makes no distinction between a bill or note which 
 is lost before it is due, and one lost after it is due. In either case, 
 there must be an undertaking given for a full indemnity against 
 the demand, and for all costs and expenses incurred by reason of 
 any claim made by a third person. When the plaintiff can show 
 that the maker cannot be put to any loss on account of the bill 
 or note, as where it is clearly proved that the instrument was 
 accidentally destroyed by fire, no indemnity is required. Des 
 Arts V. Leggett, 5 Duer, 156; 16 N. Y. 582; Scott v. Meelcer, 
 20 Hun, 161. See Hoxie v. Kennedy, 10 St. Kep. 786. It was 
 held in the earlier cases that where the plaintiff has lost a bill or 
 note which required his indorsement to render it negotiable, he 
 might recover on it, or on the original consideration, without giv- 
 
€08 BILLS AND NOTES. 
 
 ing an indemnity bond, if he proved that the instrument had not 
 been indorsed by him at the time of the loss. Bolt v. Watson, 4 
 Bing. 273 ; Long v. Bailie, 2 Camp. 214, in note; Pintard v. Tach- 
 ington, 10 Johns. 104. But this is not in accord with the later 
 decision of th^ highest court in this State. Frank v. Wessels, 
 64 JSr. Y. 155. 
 
 Actual possession of the note by the plaintiff is not important, 
 provided he is entitled to the money due upon it. Selden v. Prin- 
 gle, 17 Barb. 458. 
 
 In order to charge the indorser of a lost negotiable promissory 
 ,note, the holder must tender an indemnity to both indorser and 
 maker at the time of demand and notice, and should the indorser 
 sustain any injury by reason of the holder's neglect in this par- 
 ticular, it vyill be a good defense at the trial. Smith v. Bochwell, 
 2 Hill, 482. See Bishop v. Sniffen, 1 Daly, 155. 
 
 It is held that the statute relates merely to the remedy on lost 
 negotiable bills and notes, and does not affect any rights or lia- 
 bilities of the parties arising out of the proceedings to charge the 
 drawers or indorsers. If the note or bill is temporarily lost, but it 
 is produced at the trial, the plaintiff may recover without giving 
 a bond of indemnity. The loss of a bill or of a negotiable note 
 does not change the contract entered into by the parties to the 
 instrument, in any material particular, its only effect is to give 
 the parties called upon to pay, a right to demand security against 
 any further or different liability than that which they have as- 
 sumed. The mode of demanding payment is necessarily changed, 
 but the act is not dispensed with. The owner cannot present the 
 bill or note for payment, as the holder is ordinarily required to 
 do, but he can make a valid demand of payment by tendering to 
 the maker or acceptor a proper indemnity, even where he refuses 
 to pay on the ground that the note is not presented in consequence 
 of its loss. And the indorser cannot complain that a demand of 
 payment is defective, when the law declares that it is legal and 
 valid; but to charge him as an indorser, it is in all cases incum- 
 bent on the holder to give him notice of its dishonor. In an action 
 on a negotiable promissory note against the makers and indorsers, 
 the demand was made, and notice of non-payment given, without 
 any objection being interposed by any of the parties, on account 
 of the absence of the note; no bond of indemnity was offered to 
 the makers or the indorsers, nor was any requested by either of 
 them; and it did not appear that either of them knew of the loss 
 until the suit was commenced, and the note being found before 
 
BILLS AND NOTES. 609 
 
 the trial, the proceedings were held sufficient to charge the in- 
 dorser, and judgment was rendered for the plaintiff. Smith v. 
 Rockwell, 2 Hill, 482. 
 
 It makes no difference whether a bill or note has been accident- 
 ally destroyed or lost by the owner ; it is necessary in either case 
 to make a regular demand of payment at the time it becomes due, 
 and to give due notice of the non-payment to the drawers and 
 indorsers, in the same manner as though it had not been lost or 
 destroyed. Thachray v. Blachett, 3 Oamp. 163. Where a bill 
 is lost or destroyed or is wrongfully detained from the person en- 
 titled to hold it, protest may be made on a copy or written particu- 
 lars thereof. Laws of 189Y, ch. 612, § 268 ; General Laws, ch. 
 50, § 268. 
 
 Where the holder of bank bills cuts them into two~ parts for 
 the purpose of safe transmission by mail, he is entitled to recover 
 the amount of the bills of the bank, when it appears that the bills 
 were actually mailed, and that only one set of the halves came 
 safely to.hand. Hinsdale v. Bank of Orange, 6 Wend. 378. Sev- 
 ering the bills does not destroy their negotiability, so as to pre- 
 vent a restoration by putting the parts together again; but, in 
 their severed condition, neither part is negotiable so as to entitle 
 any person to become a hona fide holder of a separate half. And, 
 therefore, the ovsmer of them is entitled to demand the amount 
 due on the face of the bills, in the same manner as though they 
 had been actually destroyed, or as though they had not been nego- 
 tiable. Ih. 
 
 Where a bill of exchange, a note or a check, drawn payable to 
 bearer or to order, and indorsed in blank, is lost or stolen, the 
 owner should, for his own protection, immediately give notice to 
 all the parties not to pay the money thereon to any person but 
 himself; and he should publish a notice as extensively as possible 
 in the newspapers, when that is the most ready and efficient mode 
 of publication, cautioning all persons against taking or buying 
 the lost or stolen paper. The notice ought to be explicit and defi- 
 nite in its description of the lost instrument, as to date, amount, 
 parties and time when payable. 
 
 In the case of an accepted bill, the acceptor ought to be forth- 
 with notified not to pay the bill to any person but the owner ; and 
 in the case of a note, the same notice should be promptly given 
 to the maker. So, in the case of a check, or of an unaccepted 
 draft, the drawee or the bank ought to be directed not to pay the 
 check in the one case, nor to accept the draft in the other. 
 39 
 
610 GIFTS. 
 
 CHAPTER XIV. 
 GIFTS. 
 
 § 1. Nature, Definition and Classification of Gifts. 
 
 A gift may be defined as a voluntary transfer of property by 
 one person to another without any consideration or compensation 
 therefor. Gray v. Barton, 55 IST. Y. 68, 72. It diiiers from a 
 grant, sale or barter of property in this, that to sustain a grant, 
 sale or barter the transaction must have been made upon considera- 
 tion, while a gift must be without consideration 
 
 Gifts are of two kinds, gifts inter vivos and gifts causa mortis. 
 A gift inter vivos is one that is made without any prospect of the 
 immediate death of the donor as an incentive to the act, while a 
 gift caibsa mortis is one made by a person whose death is believed, 
 on reasonable grounds, to be very near, and who makes the gift 
 in view and because of such approaching death. Three things 
 are necessary to such a gift : 1. It must be made under the appre- 
 hension of death from some present disease or other impending 
 peril ; 2. That the donor did not recover from a then existing dis- 
 ease or escape the impending peril; 3. There must be a delivery 
 of the subject of the gift, either actual or constructive. Grymes 
 V. Hone, 49 K T. 17 ; Bidden v. Thrall, 125 JST. T. 572. 
 
 The distinction between gifts inter vivos and gifts causa mortis 
 relates rather to the time the property in the thing given vests in 
 the donee than to the nature of the acts constituting the gift. A 
 gift inter vivos, when made perfect by a delivery of the thing 
 given, is" an executed contract, and effectually and irrevocably vests 
 the property in the donee without regard to the custody of the 
 property after the delivery. Gannon v. McGuire, 160 W. Y. 476. 
 The title to the property passes to the donee immediately on deliv- 
 ery, and the donor has no more right over the property than any 
 other person, unless such right is acquired from the donee. Upon 
 a gift cav^a m,ortis the title does not pass immediately. The gift 
 is conditional, to take effect only on the death of the donor, who, 
 in the meantime, has the power of revocation, and may at any 
 time resume the possession and control of the gift. In the one case 
 the gift becomes complete on the delivery of the thing given; in 
 the other, by the death of the donor. Bedell v. Carll, 33 N. Y. 
 581. 
 
GIFTS. 611 
 
 § 2. Parties to Gifts. 
 
 Any person of full age and of sound mind is legally capable of 
 making a valid gift. But there are cases in which the situation 
 and relationship of the parties will cause the transaction to be 
 closely scrutinized by the courts, as, for example, a gift by a wife 
 to her husband, who is also her trustee. No such gift is ever sup- 
 ported unless it satisfactorily appears that it was not tainted with 
 the infl^^ence springing from the relation, and that it could prop- 
 erly and prudently be made by the donor; and that, in the exer- 
 cise of the good faith and diligence which the husband and trustee 
 must exercise for the protection of the wife and cestui que trust, 
 it was such a gift as he could conscientiously, free from taint of 
 self-interest, have permitted made to another, for whom the wife 
 had an affection such as would furnish a reason for the gift. Smy- 
 ley V. Reese, 53 Ala. 89 ; 25 Am. Eep. 598. And see Green v. 
 Carrill, L. E,., 4 Ch. Div. 882. A gift from a father to an adult 
 son, who has occasionally performed services for him without 
 charge, if made while the donor has sufficient mental capacity to 
 transact business with his family, though not to transact business 
 generally, is valid, if fairly made. Yan Deusen v. Rowley, 8 
 ]Sr. T. 358. 
 
 Under the statutes of this State, a husband may make a valid 
 gift to his wife, which will be supported at law, the claims of 
 creditors not intervening. Mack v. Maclc, 3 Hun, 323. Such 
 gifts were always sustained in equity where the gifts were clearly 
 proved, and the claims of creditors were not affected, but were 
 held invalid in law upon the theory of the common law that the 
 husband and wife were one, and that her personal property be- 
 came his by virtue of the marriage relation. Since the enabling 
 acts, the unity of the husband and wife does not, in law, create 
 a union of her property with his, and the old common-law rule 
 falls with the fall of the reason upon which it was based. Ih. 
 
 A gift by any person who is legally competent to give, of prop- 
 erty which he has the right to give, to a person who is competent 
 to receive it, which is completed by a transfer of the possession 
 thereof, however voluntary it may have been, is regarded by the 
 law as an executed contract, founded upon mutual consent. But 
 in all cases the donor must be so circumstanced at the time of 
 making the gift that the transaction will not operate as a fraud 
 upon his creditors. 
 
612 GIETS. 
 
 § 3. Property WMcli is the Subject of Gift. 
 
 Almost every species of personal property, including choses in 
 action, may be made the subject of gift. The note of a third per- 
 son is a subject of gift, and if payable to the payee's order, and 
 properly indorsed by him, the possession of the note will be suffi- 
 cient evidence of the donee's title to enable him to recover upon it. 
 Bedell v. Carll, 33 K Y. 581. 
 
 There may be a valid gift of stock certificates, although there is 
 no vsrritten assignment of the certificates and no transfer on the 
 corporate books. Gilkinson v. Third Ave. R. B. Co., 47 App. 
 Div. 472 ; Walsh v. Sexton, 55 Barb. 251 ; Westerlo v. De Witt, 
 36 ]Sr. Y. 340, 345 ; Allerton v. Lang, 10 Bosw. 362. This is the 
 rule whether the gift be causa mortis or inter vivos. Gilkinson v. 
 Third Ave. R. R. Co., 47 App. Div. 472. So there may be a valid 
 gift of a bond and mortgage (Hackney v. Vrooman, 62 Barb. 
 650), or of a part of the mortgage debt owing from the donee to 
 the donor (Carpenter v. Soule, 88 E". Y. 251), or of the amount 
 due from the donee to the donor upon a contract for the sale and 
 conveyance of land (Ferry v. Stephens, 66 IST. Y. 321), or a debt 
 due from the donee to the donor upon a book account. Gray v. 
 Barton, 55 N. Y. 68. A transfer of shares of stock in a bank upon 
 the books of the bank by the direction of a father in favor of his 
 son, is a valid gift of such stock. Yan Deusen v. Rowley, 8 N. Y. 
 358. There may be a valid gift to the donee of his ovtu note, which 
 will operate as a cancellation of the debt owing by the donee to the 
 donor and evidenced by the note. But the gift of the donor's own 
 note is the delivery of a promise only and not of the thing prom- 
 ised, and the gift, therefore, fails. See Pearson v. Pearson, 7 
 Johns. 26 ; Fink v. Cox, 18 Johns. 145 ; Craig v. Craig, 3 Barb. 
 Ch. 78 ; Holliday v. Atkinson, 5 Barn. & Cress. 501. So, if the 
 donor gives his draft upon a third person in favor of the donee, 
 and the draft is intended as a gift causa mortis, the draft is not 
 valid, and no action can be maintained upon it against the execu- 
 tors of the donor if the draft was not accepted during the testa- 
 tor's lifetime. Harris v. Clark, 3 IST. Y. 93 ; 2 Barb. 94. But 
 if the donor executes an instrument which operates as a transfer 
 or assignment of his funds in the hands of a third person, this- 
 will be a sufficient delivery to constitute a valid gift causa mortis. 
 Ih. It is well settled in this State that a check payable at a future 
 day does not have the effect of transferring the money of the bank 
 upon which it is drawn before it becomes due, and, therefore, is 
 not the subject of a valid gift. Curry v. Powers, 70 N. Y. 212. 
 
GIFTS. 613 
 
 § 4. Essentials of a Valid Gift. 
 
 In order to render any gift valid, whether it be inter vivos or 
 causa mortis, the subject of the gift must be delivered to the donee 
 or to some person for him, so as to divest the'possession and title 
 of the donor. Young v. Young, 80 N. Y. 422 ; Curry v. Powers, 
 10 K Y. 212 ; Harris v. Clarh, 3 IST. Y. 93 ; Trow v. Shannon, 78 
 N. Y. 446 ; Beaver v. Beaver, 117 N. Y. 421. The transfer must 
 be consummated, and not remain incomplete or rest in mere in- 
 tention. Enough must be done to pass the title. Martin v. Funk, 
 75 N. Y. 134. The intention to give may be established by the 
 most satisfactory evidence and yet the gift may fail. Instruments 
 may be ever so formally executed by the donor, purporting to 
 transfer title to the donee, or there may be the most explicit decla- 
 ration of an intention to give, or of an actual present gift, yet, 
 unless there is delivery, the intention is defeated. Beaver v. 
 Beaver, 117 l!^. Y. 421. Mere words of gift are not enough, for 
 the owner must part with the possession and control before the 
 gift can take effect. There must be an intent to make the gift 
 in prcesenti, because a gift to take effect in futuro is void as a 
 promise without consideration. Oan/non v. McGuire, 160 iN. Y. 
 476. For this reason it is indispensable that every oral gift, to be 
 valid, should be accompanied by an actual or symbolical delivery 
 of the thing given, if the subject-matter is capable of delivery. 
 In this respect, there is no difference between a gift between liv- 
 ing persons or one made in view of death. If the possession, or 
 some means of obtaining the possession and control, is not trans- 
 ferred to the donee, the title does not pass. Noble v. Smith, 2 
 Johns. 52 ; Orangiac v. Arden, 10 Johns. 293 ; Oooh v. Hunted, 
 12 Johns. 188 ; Huntington v. Gilmore, 14 Barb. 243 ; Hunter v. 
 Hunter, 19 Barb. 631 ; Woodruff v. Cook, 25 Barb. 505. 
 
 What constitutes a delivery may depend upon the nature of the 
 thing given. The delivery may be symbolical or actual, that is, 
 by actually transferring the manual custody of the chattel to the 
 donee, or by giving to him the symbol which represents possession. 
 In the case of bonds, notes or choses in action, the delivery of the 
 instrument which represents the debt is a gift of the debt, if that 
 is the intention ; and, also, where the debt is that of the donee, it 
 may be given by the delivery of a receipt acknowledging payment. 
 Westerlo v. De Witt, 36 N. Y. 340 ; Bedell v. Oarll, 33 N. Y. 
 581 ; Beaver v. Beaver, 117 N. Y. 421. N'on-negotiable choses in 
 action, such as bonds, mortgages, and promissory notes unin- 
 
;614 GIFTS. 
 
 dorsed, may be transferred by delivery only as a gift causa mortis. 
 Westerlo v. De Witt, 36 N. Y. 340; Bedell v. Carll 33 N. Y. 
 581 ; Cornell v. Cornell, 12 Hun, 312 ; Hackney v. Vrooman, 62 
 Barb. 650. The delivery of a certificate of deposit, unindorsed, 
 ■with intent to transfer to the donee the money therein specified, 
 will constitute a valid gift of the money as a gift causa mortis. 
 So, the delivery of a negotiable security with a like intent will 
 vest the title in the donee. House v. Grant, 4 Lans. 296. Cer- 
 tificates of stock and coupon government bonds will pass by de- 
 livery, without any writing, as a gift causa mortis. Walsh v. 
 Sexton, 55 Barb. 251. The delivery of a pocket-book containing 
 a certificate of stock, with the intention of transferring title to the 
 contents, passes the title to the stock. Allerton v. Lang, 10 Bosw. 
 362. The delivery by the donor of his check upon a bank, payable 
 to the donee, is sufficient to consummate a gift of the sum of 
 money represented thereby. Pichslay v. Starr, 76 Hun, 10; 
 149 ISr. Y. 432. 
 
 Cumbersome property will be well delivered when in a house 
 or room, by the delivery of the key with intent to surrender its 
 possession and control. The delivery of the key of a desk or 
 trunk, with intent to give possession of the contents, will be a 
 good delivery of the contents. Cooper v. Burr, 45 Barb. 9 ; Turner 
 V. Brown, 6 Hun, 331; Scott v. Simes, 10 Bosw. 314; Gilkinson 
 V. Third Ave. R. B. Co., 47 App. Div. 472 ; Curry v. Powers, 70 
 ]Sr. Y. 212. 
 
 An absolute gift requires a remuneration by the donor and an 
 acquisition by the donee of all interest in and title to the subject 
 of gift. A portion cannot be retained and the remainder disposed 
 of. Curry v. Powers, 70 'N. Y. 212 ; Irish v. Nutting, 47 Barb. 
 370, 383 ; Hill v. Wilson, L E., 8 Ch. App. 888. A person may, 
 however, make a valid gift in prcesenti of an instrument secur- 
 ing the payment of money, and reserve to himself the accruing in- 
 terest, without any written transfer delivered to the donee, and 
 without creating a trust. But this can be accomplished only by 
 an absolute delivery to the donee of the security which is the sub- 
 ject of the gift, vesting the entire legal title and possession in him, 
 on his undertaking to account to the donor for the interest he may 
 collect thereon. But if the donor retains the instrument under 
 his own control, though he do so merely for the purposie of col- 
 lecting the interest, there is an absence of the complete delivery 
 which is absolutely essential to the validity of a gift. A gift 
 cannot be made by creating a joint possession of donor and donee, 
 
GIFTS. 615 
 
 even though the intention be that each shall have an interest in 
 the chattel, especially where the line of division between those 
 interests cannot be ascertained. Young v. Young, 80 JST. Y. 422. 
 
 The total exclusion of the power or means of resuming posses- 
 sion by the donor is not necessary to the validity of a gift. Cooper 
 V. Burr, 45 Barb. 9. The fact that a deposit box was rented in 
 the joint name of the donor and the donee, and that each retained, 
 a key, does not in itself show such a failure to part with the do- 
 minion and control of certificates of sto'ck placed by the donor 
 therein as to render a gift of the stock ineffectual where the in- 
 tention to make a gift thereof is otherwise clear. Gilkinson v. 
 Third Ave. B. B. Co., 47 App. Div. 472. The renting of a box 
 in a safe deposit company does not raise a presumption of joint 
 ownership of the property placed therein. Mercantile Deposit 
 Co. V. Huntington, 89 Hun, 465. jSTor does the fact that, after 
 a gift has been made complete by delivery, the subject of the gift 
 was returned to the donor for safe keeping, operate to change the 
 nature and effect of the act of the donor or affect the validity of 
 the gift. It is not necessary that the donee shall retain the pos- 
 session of the property after the gift is made complete by delivery. 
 Gannon v. McGuire, 160 K Y. 476. 
 
 If a husband deposits a sum of money in the name of himself 
 and wife and takes a certificate that the same has been deposited 
 by himself and wife, this is prima facie a gift of the money to 
 the wife in case she survives him. Boman Catholic Orphan Asy- 
 lum V. Strain, 2 Bradf . 34 ; Piatt v. Oruhb, 41 Hun, 447 ; Wort- 
 man V. Bohiyison, 44 Hun, 357; Wetherow v. Lord, 41 App. Div. 
 413. So, if one on loaning money takes a promissory note there- 
 for, payable to the order of himself and wife, this imports a gift 
 to the wife in case she survives him, and no delivery of the note 
 to her by the husband is necessary to perfect the gift. Banford 
 v. Sanford, 45 ]^. Y. 723. The deposit in a savings bank of a 
 person's own money to the credit of another is consistent with 
 an intent on the part of the depositor to give the money to the 
 other, but does not, of itself, without more, establish such intent 
 where the deposit is a new account, is unaccompanied by any 
 declaration of intention, and the depositor received and retained 
 the pass-book which, under the known rules of the bank, must 
 be presented as evidence of the right to draw the deposit. Beaver 
 V. Beaver, 111 K Y. 421. 
 
 A valid gift of a pass-book, which constitutes the donor's evi- 
 dence of a deposit in a savings bank, is sufficient to vest a title in 
 
616 GIFTS. 
 
 the donee in the money deposited. Penfield v. Thayer, 2 E. D. 
 Snaith, 306. And if, at the death of the donor, the pass-book 
 comes to the hands of hia representatives, and they collect the 
 money from the bank, the donee may recover the amount from 
 them. Ih. In the case last cited the donor had deposited money 
 in a savings bank, and the evidence of it was contained in an 
 account or pass-book, given to him by the bank. This book was 
 kept in a trimk of the domor. The donor and the donee were upon 
 intimate terms, and the donee was dependent upon the donor's 
 bounty. And at one time, when the donor was about to start 
 upon a journey with no intention of returning, he went to the 
 room where the donee was, which was in the same house where 
 the donor and donee boarded, and said to the donee, " My trunk, 
 up stairs, and what there is in it, I give to you; there is enough 
 in it to take care of you for life;" or " for a spell." The donor 
 went upon the journey, and in a few days afterwards returned, 
 when he resumed the use of his room, where he soon after died. 
 The donee then first took possession of the trunk, which contained 
 the donor's clothing, and the pass-book; and it was held that the 
 title of the money deposited in the bank passed to the donee by 
 a valid gift. 
 
 The unqualified delivery of a book of deposit in a savings bank, 
 with intent on the part of the person making the deposit to give 
 an amount of money to the donee, is sufficient to vest in the donee 
 absolute title to the money represented by the book; and he may 
 recover such amount from the bank upon proof of such facts. 
 Wetherow v. Lord, 41 App. Div. 413. The contract which is cre- 
 ated between a depositor and a savings bank is quite different from 
 that existing between a depositor and a bank of deposit. In the 
 former case the book evidences the contract and the bank is not 
 compelled to pay the depositor except upon presentation of the 
 book; in the latter case the book is simply a statement of the de- 
 positor's acoouut with the bank, is no evidence of title to the 
 money stated to be deposited, and is not required to be presented 
 when the deposit is drawn out. In the former case the book repre- 
 sents the depositor's right to the money, and the bank is protected 
 in payment on presentation of the book, if without bad faith and 
 if guilty of no negligence, although in fact the book has been 
 fraudulently obtained from the depositor. Ih. It is this pecu- 
 liarity of the contract between the depositor and the bank which 
 makes the gift of the book a gift of the money represented by it. 
 
 The delivery which the law requires to give validity to a gift 
 
GIFTS. 617 
 
 need not be to the donee in person. A delivery of the subject 
 of the gift to a third person for the use of the donee is sufficient. 
 Hunter v. Hunter, 19 Barb. 631 ; Whiting v. Barrett, 7 Lans. 
 106; Taylor v. Kelly, 5 Him, 115. The delivery must be un- 
 conditional. A condition attached to the delivery of the subject 
 of the gift -will invalidate the gift, but a promise of the donee, 
 not constituting a condition of delivery or of title, but consistent 
 vdth it, -will not have that effect. Hills v. Hills, 8 Mees. & Wels. 
 404 ; Blount v. Burrow, 4 Bro. Ch. C. 72 ; Doty v. Willson, 47 
 K Y. 580. 
 
 No particular form of vfordsi need be used at the time lo make 
 a valid gift inter vivos. There must be a delivery with the in- 
 tention of making a gift, and this intention may be evidenced by 
 circumstances, or, if these are equivocal, by subsequent explicit 
 declaration of that intention. Ih.; Winchin v. Merrill, 2 Edvi^. 
 Oh. 333. Prior declarations of the donor showing such intention 
 are competent evidence in corroboration of other testimony, al- 
 though standing alone they would be insufficient to establish a 
 gift. Bidden v. Thrall, 125 N. Y. 572, 576. As the object 
 of delivery is to give possession, no delivery is necessary where 
 the possession is already complete in the donee. Champney 
 v. Blanchard, 39 K". Y. 111. A person who has just pur- 
 chased household furniture, in possession of the husband and 
 wife, under a chattel mortgage against the husband, may make 
 a valid delivery of the furniture as a gift tO' the wife by 
 pointing out a portion of the articles purchased and saying, " I 
 give you these and all the property I have purchased this day." 
 Allen V. Cowan, 23 IST. Y. 502. In an early English case the owner 
 of silver plate, residing with her daughter-in-law who had posses- 
 sion of the plate, said to her, " I will give you all the plate that 
 is mine," and this was held not to transfer the title by gift, 
 for the reason that a mere verbal gift without delivery would not 
 pass the title. Shower v. Pilek, 4 Exch. 478 ; Irons v. Smallpiece, 
 2 Bam. & Aid. 551. But this is said to be going to the extreme 
 verge of the law. Winter v. Winter, 1 Best & Smith, 997. 
 
 Delivery need not be made at the time of the gift if the prop- 
 erty is subsequently delivered. A recognition by the donor of 
 the donee's ownership, after the latter has taken possession of 
 the property, renders the gift a perfect one and completely trans- 
 fers the title. Whiting v. Barrett, 7 Lans. 107. 
 
 "Where all that ia necessary to complete a gift is a transfer of 
 an account upon the books of a firm composed of the donor, and 
 
618 GIFTS. 
 
 the donee, and instructions liave been given by the donor to the 
 bookkeeper of the iirm to make such transfer, the failure of the 
 common agent of the parties to make the transfer before the death 
 of the donor will not defeat the gift. Maclay v. Rohinson, 91 
 Him, 630. 
 
 An acceptance by the donee is as necessary to the consumma- 
 tion of a valid gift as a delivery by the donor. But the assent and 
 acceptance of the donee will be presumed in the absence of any 
 evidence to the contrary. Penfield v. Thayer, 2 E. D. Smith, 
 305 ; Beaver v. Beaver, 111 E". Y. 421. 
 
 In this State there is no presumption of law or fact either 
 against or in favor of a gift, and he who claims title through a 
 gift must establish it by evidence which is clear and convincing, 
 strong and satisfactory. Parian v. Wiegel, 76 Hun, 462 ; Devlin 
 V. Greenwich Savings Banh, 125 N. Y. 756 ; Ridden v. Thrall, 
 125 IST. Y. 572, 576 ; Leivis v. Merritt, 113 jST. Y. 386 ; Grymes 
 V. Hone, 49 JST. Y. 17, 23. 
 
 A gift causa mortis is not rendered invalid by the fact that the 
 donor did not die of the disease from which he apprehended death 
 if he died of a disease existing at the time ; and death from a sut- 
 gical operation made necessary by a present disease is a death 
 from the disease within the meaning of the rule. Ridden v. 
 Thrall, 125 IST. Y. 572. There is no limit as to the time within 
 which the donor must die to make such a gift valid. The only 
 rule is that the donor must not recover from the disease or peril 
 existing at the time of the gift. Grymes v. Hone, 49 IST. Y. 17. 
 
 A vague and general impression that death may occur from 
 those casualties that attend all human affairs, but which are still 
 too remote and uncertain to be regarded as objects of present con- 
 templation and apprehended danger, is not sufficient to sustaia 
 siich a gift. The donor must be in a condition to fear approach- 
 ing death from approximate and impending peril, or from an 
 illness preceding expected dissolution. Irish v. Nutting, 47 Barb. 
 370. Thus, the gift of bounty money by a soldier at or about 
 the time of enlistment in the army in time of war, with directions 
 to keep the money in case of his decease, does not constitute a 
 gift causa mortis. Ih.j Doxheimer v. Gautier, 34 How. 472; 
 5 Kob. 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 IST. Y. 581), although made by mistake through 
 
GIFTS. 619 
 
 the donor's forgetfulness of a fact at the time of making it (Picks- 
 lay V. Starr, 149 E". Y. 432), while a gift caiisa 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 !N". T. 581 ; 
 Orymes 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. Orymes 
 V. Hone, 49 N. Y. IT ; Curtiss 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 
 Eradf. 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. Whitimg v. Barrett, 7 Lans. 
 106. 
 
 Where the owner 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 
 of the farm causa mortis; and if the donor, by reason 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. 
 
620 ASSIGNMENTS. 
 
 CHAPTER XV. 
 
 ASSIGNHENTS. 
 
 § 1. What May be Assigned. 
 
 The term " assignment " is ordinarily applied to the 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 ; 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 aiithorizes 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. 
 
 The Code of Civil Procedure provides as follows : "Any claim 
 or demand can be transferred, except in one of the following- 
 cases : 
 
 1. Where it is to recover damages for a personal injury or 
 for a breach 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 transferor, 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." Code Civil Pro., § 1910. 
 
ASSIGNMENTS. 621 
 
 "A cause of action to cancel or otherwise affect an instrument 
 executed or an act done as security for a usurious loan or forbear- 
 ance can be thus transferred where the instrument or act creates 
 a specific charge upon the property which is also transferred in 
 disaffirmance thereof, and not otherwise; but in that case the 
 transferee does not succeed to the right conferred by statute upon 
 the borrower to procure relief, without paying or offering to pay 
 any part of the sum or thing loaned." Id. § 1911. 
 
 "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." Id. § 1912. 
 
 These provisions of the Code 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 pome 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 either to the plaintiff or another. Id. § 3343, subd. 9. 
 
 Before the enactment of the present Code, 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. BrooTclyn Crossiown 
 R. B. Co., 75 IST. Y. 192. Whether the decision is in conflict with 
 the section of the Code 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- 
 ages for negligence, causing the death of another, is not assign- 
 able. Whitford v. Panama B. B. Co., 23 N. Y. 465. See Heger- 
 ich V. Keddie, 99 IST. Y. 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 (Zabriskie v. Smith, 13 N. Y. 323) ; or 
 
622 ASSIGNMENTS. 
 
 for a breach of promise to marry (Wade v. Kalhfleisch, 58 N. Y. 
 286) ; or for a penalty incurred by trustees under the former Gen- 
 eral Manufacturing Act (Stokes v.. Stichney, 96 N. Y. 323) ; or 
 for fraud in inducing one to marry another (Price v. Pnce, 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. Tujfts, 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. Stokes v. Stickney, 96 N. Y. 323 ; Torbett 
 V. Godwin, 62 Hun, 407 ; Brackeit v. Oriswold, 103 N. Y. 425 ; 
 Pier V. George, 86 JST. Y. 613 ; Bolen v. Croshy, 49 N. 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. Raphe, 66 Barb. 180) ; 
 or for the conversion of personal property (Drake v. Smith, 12 
 Hun, 532 ; Ward v. Benson, 31 How. 411 ; Hawk v. Thorn, 54 
 Barb. 164; McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38 ; Mc- 
 Kee V. Judd, 12 IST. 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 IST. Y. 657. And see Haight 
 V. Hoyt, 19 ]Sr. Y. 464) ; a cause of action for damages arising 
 out of a combination between the defendant and an insolvent pur- 
 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. 
 
ASSIGNMENTS. 623 
 
 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 [Meecli v. Stoner, 
 19 ]Sr. Y. 26 ; Hendrichson 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 V. New Yorh & N. H. B. R. Co., 28 Barb. 605 ; 16 
 How. 277 ; Waldron v. Willard, 17 IST. Y. 466 ; Poy 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 c(- Erie R. B. 
 Co., 22 Barb. 110) ; a cause of action for the recovery of damages 
 upon an undertaking on arrest (Barriberger v. Kahn, 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 (MerricJc v. Bramard, 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), ifi^ assign able. 
 
 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; Code of Civil Pro., § 1910. 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. 
 lb. Another exception relates to demands, the transfer of which 
 is prohibited by the State or Federal statutes. lb. 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 
 
624 ASSIGNMENTS. 
 
 or oiEcial 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 
 of a warrant for the payment thereof. See U. S. Eev. Stat. 
 § 3477. See also Goodman v. Niblack, 102 U. S. 556; Bailey 
 V. U. 8., 109 U. S. 432 ; Spojford v. Kirk, 97 F. S. 484 ; Hohhs 
 V. McLean, 111 IJ. 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 
 
ASSIGNMENTS. 625 
 
 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 F. S. 432; Burch v. Taylor, 152 U. S. 634; Fortunato v. 
 Patten, 147 N. Y. 277 ; York v. Conde, 147 K 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. Dielold 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. Code of Civil Pro., § 1910, subd. 3. An execu- 
 tor'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 inchoate, and upon grounds of public policy 
 are unassignable. Matter of Worthington, 141 N. Y. 9. It is 
 well settled that a public ofiicer cannot, during his official term, 
 and before his salary or fees become due and payable, make a 
 valid assignment of such salary or fees. Ib.j Bliss v. Lawrence, 
 58 N. Y. 442 ; Botmry Nat. Bank v. Wilson, 122 IST. Y. 478 ; Bill- 
 ings V. O'Brien, 4 Daly, 556 ; 45 How. 392 ; 14 Abb. E". S. 238. 
 This is upon the ground that it would be against public policy to 
 permit a public ofiicer to dispose of, in advance, the emoluments 
 of the office, which furnish an incentive to care, diligence and zeal 
 in the discharge of his official obligations. But the fact that un- 
 earned fees or salaries give no present right of action does not af- 
 fect the question of assignability, as expectancies as well as existing 
 rights of action may be assigned, and the rights of the assignee 
 will be protected and enforced at law. Devlin v. Mayor, 63 H. Y. 
 8 ; Field v. Mayor, 6 N. Y. 179 ; Hall v. Buffalo, 2 Abb. Ct. App. 
 301; 1 Keyes, 193; Storer v. Eycleshimer, 46 Barb. 84; 3 
 40 
 
626 ASSIGNMENTS. 
 
 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 IST. Y. 8. 
 
 A mere lien upon property 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. BanTc v. Kaufmann, 93 N. 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 person cannot assig-n 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 
 V. Lefferts, 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, 
 anntiaUy, 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. Oaruthers, 15 JST. 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. Pechham v. Smith, 9 How. 436. A condi- 
 tional agreement between the assignor and the assignee, that 
 they would share the amoimt 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 JST. Y. 322. 
 
ASSIGNMENTS. 627 
 
 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. S^ich 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; 8. C, 12 N. 
 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 
 under that name and will give a right of action to the assignee 
 against the bank refusing to pay over such balance. Jaffe 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. Risley v. Phoenix Bank, 83 N. Y. 318 ; Charrir 
 hers V. Lancaster, 160 N. Y. 342. 
 
 A judgment for any cause of action, whether 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. Code of Civil Pro., 
 § 1912 ; Pulver v. Harris, 52 N. Y. 73. A verdict, though recov- 
 ered for a personal tort, is assignable. Zoghaum v. Parker, 66 
 Barb. 341 ; 55 jST. Y. 120. 
 
 § 2. Requisites 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. Richardson v. Mead, 27 Barb. 
 
628 ASSIGNMENTS. 
 
 178; Arthur v. Brooks, 14 Barb. 533; Clark v. Downing, 1 E. D. 
 Smith, 406; Beach v. Raymond, 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 Code 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 N. Y. 30 ; 
 McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38 ; Peck v. Yorks, 
 75 N. Y. 421 ; Hays v. Hathorn, 74 N. Y. 486 ; Stone v. Frost, 
 61 ]Sr. Y. 614. And see Livingston v. Spero, 18 Miso. 243 ; Cos- 
 tello V. Herbst, 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 
 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 
 *N. 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'Brieri v. Smith, 37 St. 
 Hep. 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. Sackett, 
 56 App. Div. 610, 613. This is the rule in respect to an assign- 
 ment and transfer of a non-negotiable note for the payment of 
 money upon a contingency (Loftus v. Clark, 1 Hilt. 310 ; Pres- 
 cott V. Hull, 17 Johns. 284) ; of contracts under seal (Horner 
 
ASSIGNMENTS. 629 
 
 T. ^^ooA, 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. Phcenix Bank, 83 N. Y. 318. But a person hav- 
 ing an indivisible claim against four persons cannot assign the 
 claim as against two sio 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. N. 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 the con- 
 dition will not defeat the vesting of the legal title in the as- 
 signee. Orijfin v. Prudential Ins. Co., 43 App. Div. 499. See 
 Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y. 625. 
 
 § 3. What Passes to the Assignee under the Assignment. 
 
 The Code of Civil Procedure 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 
 proceeding or interpose as a defense or counterclaim in his own 
 name as the transferor might have done ; subject to any defense or 
 counterclaim existing against the transferor before notice of the 
 transfer, or against the transferee. But this section does not 
 apply where the rights or liabilities of a party to a claim or de- 
 mand which is transferred are regulated by special provisions of 
 law; nor does it vary the rights or liabilities of a party to a 
 negotiable instrument which is transferred." Code of Civil Pro., 
 § 1909. 
 
 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 cases the securities are incidents 
 to the debt, which is the principal. Parmelee v. Dann, 23 Barb. 
 
630 ASSIGNMENTS. 
 
 461, 463; Rose v. Baker, 13 Barb. 230; Freeman v. Auld, 44 
 K Y. 50, 57. 
 
 An assignment of a judgment necessarily carries the debt as 
 they are inseparable {Ih.; Bolen v. Crosby, 49 N. Y. 183; Reed 
 Y. 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 IST. 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. 8 mead, 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 N. 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 E". Y. 
 228. And the assignment of a part of a debt entitles the assignee 
 to a pi'o 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. Ih. ; 
 Birdsall v. Davenport, 43 Him., 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. 
 Elias, 14 Hun, 533 ; McKee v. Judd, 12 E". Y. 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 vdll pass as an incident on assignment of one of the 
 debts secured. Barlow v. Myers, 64 ~R. Y. 41. 
 
 The assignment of a bond and mortgage gives to the assignee 
 
ASSIGNMENTS. 631 
 
 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. Parhis, 40 N. Y. 181 ; Claflm v. Ostrom, 
 54 N. Y. 581 ; Stillman v. Northrup, 109 N. 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 N. Y. 299; 
 Fairbanks v. Sargent, 104 N. Y. 108 ; again, 4 N. Y. Supp. 162 ; 
 21 St. Rep. 875 ; Bush v. Lathrop, 22 N. Y. 535 ; Greene v. War- 
 wich, 64 K Y. 220 ; Bennett v. Bates, 94 N. Y. 354, 363 ; Schafer 
 V. Beilly, 50 E". Y. 61 ; Davis v. Bechstein, 69 N. Y. 440 ; Crane 
 V. Turner, 67 JST. Y. 437 ; Reid v. Sprague, 72 N. Y. 457 ; Cray 
 V. Green, 77 N. 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 
 N. Y. 88 ; Greene v. Warwick, 64 N. Y. 220 ; Schafer v. Reilly, 
 50 N. Y. 61; Stevenson Brewing Co. v. Iba, 155 N. Y. 224. 
 Where two mortgagees, whether of chattels or lands, enter into an 
 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. 21 5 ; Ste- 
 venson Brewing Co. v. Iba, 155 N. 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 N. Y. 
 220 ; Rapp v. Gottleib, 142 N. Y. 164. The want of consideration 
 is equally available as a defense against the assignee as against 
 his assignor. Briggs v. Langford, 107 N. Y. 680 ; Hill v. Hoole, 
 116 N. 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. Rep. 877. The assignee of a judgment takes it 
 
632 ASSIGNMENTS. 
 
 subject to defenses existing against his assignor. French v. Ste- 
 venson, 32 St. Kep. 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. Code of Civil Pro., § 1909. By the lan- 
 guage of the Code the interest which the transferee acquires is 
 " subject to any defense or counterclaim existing against the trans- 
 feror, before notice of the transfer, oa against the transferee." 
 Id. § 1909. This section of the Code must be read in connection 
 with sections 501 and 502 of the same act, which are applicable 
 to a justice's court, when the nature of the counterclaim is such 
 that a justice would have jurisdiction of a cause of action founded 
 thereon. Id. § 2945. See BechwitJi v. Union Bank of N. Y., 
 9 N. T. 211. 
 
 An assignment of a claim which has been paid is a nullity. 
 Cochran v. Sherman, 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. Garrigue v. Loescher, 3 Bosw. 578. 
 And see Lawrence v. Congregational Church, 164 N. Y. 115, 119. 
 
 Where a cause of action has been assigned by a writing, it may 
 be reassigned without a Avriting ; and if the assignee surrenders the 
 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. Larkin, 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. Co. v. Hibemia Fire Ins. Co., 7 Hun, 74. 
 And where an action is brought by an assignee of a claim or de- 
 mand, and on the trial produces a vsrritten 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 Churchy 
 164 K Y. 115. 
 
ASSIGNMENTS. 633 
 
 § 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.. 
 Heermans v. Ellsworth, 64 N. 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 Oow. 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 IST. Y. 88. A mortgagor may continue to deal 
 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 N. Y. 159 ; Van Kewren v. CorJcins, 66 
 K Y. 77 ; Stoddard v. Oailor, 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. Laws of 1896, ch. 547, § 271. 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 assign- 
 ment of the same mortgage or any unauthorized discharge, and is 
 notice that the rights of the mortgagee are gone, and that he can 
 neither assign or discharge the instrument. Viele v. Judson, 82 
 N. Y. 32. Therefore, in an action to foreclose a mortgage brought 
 by an assignee whose assignment was on record, a purchaser of 
 
634 ASSIGNMENTS. 
 
 the equity of redemption cannot successfully set up payments 
 made by him to the mortgagee subsequent to the recording of the 
 assigiiment. Brewster v. Carries, 103 N. T. 556. Payment by 
 the debtor after notice of the assignment will not affect the rights 
 of the assignee. Field v. Mayor, etc., of N. Y., 6 N. Y. 179. 
 
 But an assignee of a demand is not without a remedy against 
 his assignor, where the latter, after receiving a valuable considera- 
 tion for the assignment, so deals with the debtor as TxTT'ender the 
 demand worthless in the hands of the assignee. Thus, if a per- 
 son for a valuable consideration assigns 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 & Mechanics' 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 
 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 v. Ingersoll, 
 89 N. Y. 508 ; Fairbanks v. Sargent, 104 N. Y. 108 ; FoHunato 
 V. Patten, 147 N. Y. 277. 
 
SALE. 635 
 
 CHAPTER XVI. 
 
 SALE. 
 
 § 1. Wiat Constitutes a Sale. 
 
 A sale is an agreement by which, the title or ownership of prop- 
 erty is transferred from one person to another for a legal con- 
 sideration. In all contracts of sale, there is an agreement to trans- 
 fer property for money, or for a price payable in current money. 
 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 cases, whether the contract is one of sale, or of exchange; 
 and the only difference is, that the transfer of the property from 
 one to the other is a transaction in which each 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. 
 
 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 : " Ee- 
 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 
 
636 SALE. 
 
 commission, and tliat parol evidence was inadmissible to explain 
 the transaction. Marsh v. WicTchwrn, 14 Johns. 167. 
 
 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 IST. Y. 153, and note, id. 586. 
 So, where a (2ontract was made between a miller and other per- 
 sons, for the manufacture of wheat into flour, he engaging oii 
 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 ; 
 Baker 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 
 flve 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 : " Rec'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 bail- 
 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. McArthur v. Wilder, 3 Barb. 66. 
 The case of Seymour v. Brown, 19 Johns. 44, has been repeatedly 
 overruled. See Mallory v. Willis, 4 IST. Y. 76, 90 ; Baker v. Wood- 
 ruff, 2 Barb. 520, 524 ; S. C, 2 IST. Y. 153, 157. 
 
SALE. 63Y 
 
 § 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 IST. Y. 363. And where 
 the purchaser of ale in barrels, imder 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. 
 WescoU 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 isaZe. lb., ante, p. 383. The plaintiffs agreed to 
 deliver good merchantable wheat at a flouring mill carried on by 
 the defendant, " to be manufactured into flour." The defendant 
 agreed to deliver 196 pounds of superfine flour, packed in barrels 
 to be furnished by the plaintiffs, for every four bushels and fifteen 
 pounds of wheat. He was to be paid sixteen cents per barrel, 
 and two cents extra in case the plaintiffs made one shilling net 
 profit on each barrel of flour. The defendant was to guarantee 
 the inspection of the flour. The plaintiffs were to have the " 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. Y. 76. Where a contract is made 
 with the manufacturer to deliver to him raw materials which he 
 is to return manufactured, the contract is one of bailment and 
 not one of sale, and the title to the article manufactured remains 
 in the original owner. If, however, the contract simply requires 
 the return of a manufactured article of equal value, then it is one 
 
638 SALE. 
 
 of sale, and the title of the raw material is changed. Foster v. 
 Pettibone, 7 K Y. 433; Hyde v. Cookson, 21 Barb. 92; Smith 
 V. James, 7 Cow. 328; Rightm,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, 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 K Y. 76, 85 ; Foster v. Pettibone, 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. 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 in- 
 convenience 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 pur- 
 chaser, maintain an action gainst 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 
 
SALE. 639 
 
 long as the purchaser neither says, nor does anything to mislead 
 or deceive the vendor in respect to the actual vs^eight. Gage 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 
 an item of assets, the existence of v^hich was unknown to the par- 
 ties. Cram v. Union Bank, 42 Barb. 426 ; 1 Abb. Ot. App. 461 ; 
 4 Keyes, 558. Thus, W. bought out all the interest of M. in 
 the property of the firm of K. & 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. 7&. 
 See also Albright v. Voorhies, 36 Hun, 437; American Type- 
 founders Co. V. Conner, 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. Wheadon v. Olds, 20 
 Wend. 174. And see Scott v. Warner, 2 Lans. 49 ; Oeorge v. Tall- 
 man, 5 Lans. 392 ; Calkins v. Oriswold, 11 Hun, 208 ; Graves v., 
 Brinkerhoff , 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 
 
640 SALE. 
 
 value, and the consent of the parties to the contract. See Gard- 
 ner V. Lane, 12 Allen, 39, 43 ; Butler v. Thompson, 92 U. S. 412. 
 There cannot be a valid contract of sale unless it is made by per- 
 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. There are some instances in which contracts for 
 the sale of necessaries may be enforced against infants. 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 any 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 an 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. Schenectady Stove Co. v. HoTbrooh, 
 101 W. 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. Glarh, 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- 
 
SALE. 641 
 
 ment to give a credit ; and the value will be determined by the 
 usual market price of dmilar 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 & Dimond, also tiling. Will 
 you have the same ordered at once ? " This note was delivered by 
 B. to the plaintiffs (Murphy & Dimond), 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 nolIj^We to pay f-o^ the goods. Murphy v. Winchester, 
 35 Barb. 616. ^ — ' ' ™"~'^ 
 
 A contract of sale may be made by a duly authorized agent of 
 feither 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. Beehe v. Robert, 12 Wend. 413 ; Nelson v. 
 Cowing, 6 Hill, 336; Andrews v. Kneeland, 6 Oow. 354; Holman 
 V. Dord, 12 Barb. 336 ; Milburn 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 agreementsi transfer 
 the title at once, and others provide for a future transfer of the 
 title. This subject will be discussed in a subsequent place when 
 treating of sales as absolute, or as executory. 
 41 
 
642 SALE. 
 
 § 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 tiie 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. 
 Wolf V. Di Lorenzo, 22 Misc. 323 ; 49 IST. Y. Supp. 191 ; Allen 
 V. Hammond, 11 Peters (U. S.), 63; Conturier y. Hastie, 5 H. 
 L. Cas. 673. 
 
 If a substantial portion of the property is destroyed, or non- 
 existent, at the time of the sale, and the parties suppose that it 
 is existent, the buyer may rescind the contract if he elects to do 
 so, or he may if he chooses accept the portion of it which can be 
 delivered, on paying the price agreed upon for the whole property. 
 The vendor cannot compel a purchaser to accept a portion of the 
 property sold, although a portion of it is destroyed by accident. 
 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 
 
SALE. 643 
 
 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 accoimt 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 
 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 hasr, 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, althpugh 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. lb.; Andreiu v. Newcomb, 32 IS. Y. 417. See 
 Conderman v. Smith, 41 Barb. 404 ; Deeley v. Dwight, 132 N. 
 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. 
 
 Oontraets 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 
 
i 
 
 644 SALE. 
 
 validity of the contract which will be noticed hereafter. See Laws 
 of 1897, ch. 417, § 21 ; General Laws, eh. 47, § 21. Other stat- 
 utes may affect the validity of the contract, and the question 
 whether or not the contract comes within the prohibition of the 
 statute may be one of construction. The question as to what will 
 transfer the title to the goods sold from the vendor to the vendee 
 may depend wholly upon the intention of the parties to the sale 
 as gathered from the language of the contract or their acts, and 
 be a mere question of construction. The question as to whether 
 a given transaction is a sale or a mere wager is one of construction 
 also. 
 
 A contract for the sale of goods, to be delivered at a future 
 day, is not invalidated by the circumstance that at the time of 
 the making of the contract, the vendor neither has the goods in 
 his possession, nor has entered into any contract to buy them, 
 nor has any reasonable 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 
 statute. 2 E. S. 980, § 8, 5th ed. ; 1 K. S. 662, § 8, 1st ed. ; 
 Cassard v. Hinman, 1 Bosw. 207 ; West v. Wright, 86 Hun, 436 ; 
 Story V. Salomon, 71 E". Y. 420; Bigelow v. Benedict, 70 IST. Y. 
 202 ; Kingsbury 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. Laws of 1897, 
 ch. 417, § 22 ; General Laws, cL 47, §. 22. 
 
 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, 
 
SALE. 645 
 
 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 
 thing sold, and the payment of the price, are to be simultaneous 
 acts, the title, until delivery or payment, remains in the seller. 
 lb. 
 
 A contract made in the city of ISTew York, for the sale of five 
 hundred bales of cotton, to be delivered on its arrival at New 
 York from New Orleans, at any time between the date of the 
 contract, which was the ninth day of February, and the first day 
 of June thereafter, to be paid for in cash on delivery, the cotton 
 to be weighed, and two per cent allowed, is an executory 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 
 pig iron, of a certain quality, " on board the ship S., it being 
 imderstood 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 
 
646 SALE. 
 
 less, to arrive on or before the first of August, sugar to be of 
 current quality, et-c. 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 Augusit. Part of it was damaged on the 
 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 within the time specified ; it was held that this was an 
 absolute sale; and that the additional clause in the agreement, 
 " to arrive on or before the first of August," did not make the 
 sale conditional, depending on the arrival at that time. Have- 
 meyer v. Cunningham; 35 Barb. 515. This case differs from 
 Russell V. Nicoll, 3 Wend. 112, because in that case the cotton 
 was to be weighed, etc., before delivery. But in this case the 
 court held the sale to be absolute, and they said, on pages 519, 
 520: " There are two classes of cases in which the designation of 
 the time of arrival in such contracts has been held to be a 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 
 Doth 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 sacksi of 
 wool, containing about thirty thousand pounds, which they had 
 previously shipped to the defendants, in ISTew York, upon the 
 following terms : The wool to be weighed in New York by a city 
 weigher; the plaintiff to pay all charges for transportation and 
 insurance, and for storage and cartgage in ISTew 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 jSIew York. If any of the 
 wool should have been siold 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 
 
SALE. 647 
 
 for the wrongful conversion of the property. Chapw,an 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 
 drawn, does not operate to transfer the title to any particular 
 property, nor does it operate as a sale of the articles specified. 
 Such an acceptance merely amounts to a promise to deliver the 
 property at a future time, on request. It is a special undertaking, 
 and in order to recover upon it, the payee must declare upon it 
 as such. Burrall v. Jacot, 1 Barb. 165. 
 
 Where A. agreed to deliver to B., by the first day of May, from 
 seven hundred to one thousand barrels of meal, for which B. 
 agreed to pay on delivery, at the rate of 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 ; Topping 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^ 
 comes absolute. Scott v. Pentz, 5 Sandf. 572. 
 
 Where the agreement between the parties provides that 
 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 
 
 
648 SALE. 
 
 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 
 tmless it be to measure or weigh the same to fix the amount to 
 be paid, the contract is executory and the title does not pass. 
 Blossom V. Shatter, 59 Hun, 481; 128 K 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 m.aterial 
 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. Read, 106 JST. Y. 333. 
 
 If goods are sold without any price being paid, there is an 
 implied agreement to pay a reasonable or market price therefor. 
 Regus v. Moran, 29 St. Rep. 324. 
 
 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. 
 
 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 pajTnent 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 vdth 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. 
 
 i 
 
 ^^0 
 
 § 7. When the Title Passes on a Contract of Sale. 
 
 Contracts of sale, like any other contracts, may be absolute, 
 conditional, executory or executed, express or implied. When the 
 contract is absolute and it is execiited 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 
 
SALE. 649 
 
 some manner waives the performance of the condition. The nature 
 of the contract depends entirely upon the agreement of the parties. 
 
 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 ptirchased by him, for the purpose of performing the contract 
 at a future time, the general rule is, that the title does not pass 
 until a delivery of the property. Andrews v. Durant, 11 N. Y. 
 35 ; Comfort v. Klersted, 26 Barb. 472 ; Hart v. Taylor, 82 N. Y. 
 373, 376 ; Butler v. Butler, 77 N. Y. 472, 475 ; Deeley v. Dwight, 
 132 ISr. Y. 59, 64; Interstate Steamboat Co. v. First Nat. Banh, 
 87 Hun, 93. 
 
 If it is the agreement and the intention oi 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 suificient 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 ; 
 Gilbert v. N. Y. C. & H. R. R. R. Co., 4 Hun, 378 ; Andrews v. 
 Durant, 11 IST. Y. 35, 42; Dexter v. Beviiis, 42 Barb. 573. Thus, 
 where the sale is on condition that the vendee shall give his 
 promissory note for the purchase price, the title does not pass to 
 the vendee until the condition has been fulfilled, althou 
 property may have been actually delivered into his posa 
 unless the delivery was absolute and in completion of the c^ 
 or the vendor has waived the condition. Adams v. Roscoe Ltl 
 Co., 2 App. Div. 47; 159 N. Y. 176. So, where, on a sale of 
 personal property it is agreed that payment therefor shall accom- 
 pany or precede delivery, the title does not pass until the pay- 
 ment is made, unless the condition is waived. Empire State Type 
 
 pass to 
 ag]gg|r 
 
 SS^^^^B 
 
650 SALE. 
 
 Founding Co. v. Grant, 114 N. Y. 40 ; Leven v. Smithy, 1 Denio, 
 571 ; Russell v. Minor, 22 Wend. 659 ; Hammet v. Linneman, 48 
 K'. Y. 399; Smilh v. Lynes, 5 X. Y. 41; TJiompson v. Leslie, 39 
 St. Rep. 47 ; Schreyer v. Fenton, 15 App. Div. 158 ; Conway v. 
 5ms/(-, 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 vo 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 isi 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 N. Y. 540; 
 Parker v. Baxter, 86 IST. Y. 586 ; Hall v. Stevens, 40 Hun, 578 ; 
 Hammet v. Linneman, 48 N". Y. 399 ; Empire State Type Found- 
 ing Co. V. Grant, 114 IST. Y. 40; Smith v. Lynes, 5 IST. 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 to 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 k demand of the 
 purchase price is presumptive evidence of a waiver of the con- 
 dition of present payment and of a lien upon the property, and 
 •.willingness to give credit to the personal responsibility of 
 ^yer. Osbom v. Gantz, 60 IST. Y. 540, 542 ; Parker v. Bax- 
 P IT. Y. 586; Wheeler & Wilson Mfg. Go. v. Eeeler, 65 
 ; 508 ; Smith v. Lynes, 5 IT. Y. 41. 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 
 
SALE. 651 
 
 acts &f the parties and the circumstances 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. /&.; Hammet v. lAnneman, 48 E". Y. 
 399. 
 
 Where goods are solid to be paid for on delivery, if, on the 
 delivery being completed, the vendee refuses to pay for them, the 
 vendor may resTune 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 purchasier. 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 ; Gibson v. Tobey, 
 46 N. 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 
 vendee may sell the goods to one of his creditors in payment of 
 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 withont 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. Marie, 
 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. lb. 
 
 Where the memorandiim of a contract of sale of merchandise, 
 which was signed by a broker as the agent of the parties, con- 
 
652 SALE. 
 
 tained a provision that the notes to he given by the purchasers 
 should he 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 satist- 
 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 month?, 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 ; Ifut 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, 
 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 acknowledge the 
 condition as still subsisting and binding upon them, this is suffi- 
 cient to uphold the condition. lb. 
 
 A sale of lumber on credit, and a conditional delivery of it to 
 the purchaser for transportation by him, and a delivery to con- 
 
SALE. 653 
 
 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 becomesi 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, 
 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 ; Bapelye 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 without 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. WhitaTcer, 71 IST. Y. 291 ; Olyphant v. 
 Baker, 5 Denio, 379 ; Dexter v. Bevins, 42 Barb. 573 ; Keeler v. 
 Yanderveer, 6 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 
 
654 SALE. 
 
 the price of the whole at a rate agreed iipon between the parties, 
 the title will pass. Groat v. Oile, 51 N. Y. 431 ; Blossom v. 
 Shatter, 59 Hun, 481 ; 128 Is. Y. 679 ; Crofoot v. Bennett, 2 K 
 Y. 258; Kimberly v. Patchin, 19 K Y. 330; Bradley v. Wheeler, 
 44 K Y. 495; Sanger v. Waterhury, 116 IST. Y. 371. 
 
 Thus, where the plaintiff sold to the defendant a quantity of 
 barley in a storehouse 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 acquiesced 
 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. BaJcer, 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. 75. 
 
 Upon a sale of a specified quantity of grain, its separation 
 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 
 
SALE. 655 
 
 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 stare 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. Tylei' v. Strang, 21 Barb. 199. 
 
 Tbe 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 burn the kiln, 
 which he accordingly did, and then executed to the plaintiff a 
 bill of sale of all the bricks 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 N. Y. 258. See also Dows v. More- 
 wood, 10 Barb. 188. 
 
 Where hay in the stack was sold by a school district collector 
 under a tax warrant, but it was not delivered, the quantity sold 
 being mixed with 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. 
 
 St) where a constable levied upon thirteen sheep generally, and 
 on the day of sale the sheep of the defendant in the execution, 
 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. 
 
656 SALE. 
 
 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 sihould 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. Conhling, 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 corn 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 sal^ 
 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 ; Hurff v. Hires, 40 N. 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 
 defined larger quantity, it must be so clearly defined that the pur- 
 chaser can take it, or, if necessary, maintain replevin for it. 
 Foot V. Marsh, 51 IST. Y. 288. 
 
 The tendency of the modern decisions in to give effect to con- 
 tracts of sale according to the intention of the parties to a greater 
 extent than was allowed by the older cases, and to engraft upon 
 the rule that the property passes by the contract of sale, if such 
 be the intention, fewer exceptions, and those only which are 
 founded on substantial considerations affecting the interests of 
 the parties. 
 
 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 IST. Y. 495 ; Hayden v. Demets, 53 ]^. Y. 426, 431 ; Schocw 
 maker v. Yervalen, 9 Hun, 138 ; Oroat v. Gile, 51 N. Y. 431. 
 Except for the purposes of satisfying the statute of frauds, the 
 
SALE. 657 
 
 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 N. Y. 495. " Independently of any stat- 
 ute, any words importing a bargain, whereby the owner 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 proBsenii, for a specified price, would be a sale and transfer of 
 the right to the chattel. To avoid frauds and perjuries, the statute 
 requires either that the possession shall pass, or that something 
 shall be given in earnest to bind the bargain, or that some note or 
 memorandum, in writing, of the bargain be signed by the parties 
 or their agents, when the price of the goods and merchandise shall 
 be of the value or exceed fifty dollars." Spenceb, J. De Fonclear 
 V. ShottenJcirkj 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 
 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. Minor, 
 22 Wend. 659; Tuthill v. Wheeler, 6 Barb. 362. The subject 
 of conditional sales and the recent statutes relating thereto have 
 been considered in another chapter. 
 
 § 8. Sale or Betnrn. 
 
 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- 
 42 
 
658 SALE. 
 
 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, 
 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. In such contracts 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 articles in as good condition as he received them, subject to 
 any special modification which may have been made in the par- 
 ticular 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 sale, will be considered as sold, and the title to them is vested 
 in the receiver of them ; the goods he does not buy are considered 
 as a deposit in the hands of the receiver of them, and the title is 
 in the person who sent them. Bouv. Law Diet., " Sale and Re- 
 turn; " 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 
 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. 
 
 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 ; Basseit v. Spofford, 45 N. Y. 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 
 
SALE. 65& 
 
 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 bona 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. No 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 N. Y. 
 314; McOoldrich v. Willets, 52 IST. Y. 612; Collins v. Ralli, 20 
 Hun, 246 ; Farmers & Mechanics' Nat. Bank v. AtJcinson, 74 ]!^. 
 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 woi^ld 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 hona 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. Peahody, 
 13 ¥. Y. 121 ; 2 Kent's Com. 324, orig. pag. ; Ballard v. Burgett, 
 40 N. 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. 
 
660 SALE. 
 
 Weaver v. Barden, 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 dispo- 
 sition, lb. J Driscoll v. West Bradley & Cary Mfg. Co., 59 IST. Y. 
 96 ; McNeil v. I'enth Nat. Bank, 46 IST. Y. 325 ; Moore v. Metro- 
 politan Nat. Bank, 55 IST. Y. 41; Armour v. Michigan Central 
 B. R. Co., 65 N. Y. Ill ; Bostwick v. Drygoods Bank, 67 Barb. 
 449 ; Daws v. Kidder, 84 ¥. 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 
 person without his assent. First. The o^vner 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 niust have acted and parted with value upon the faith of 
 such apparent ownership or authority, so that he will be the loser 
 if the appearances to which he trusted are not real. Barnard v. 
 Campbell, 55 IS". 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 N". Y. 440. 
 
 Property is sometimes purchased by a vendee who obtains it by 
 practicing a gross fraud upon the vendor. In such cases a 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 
 E". Y. 371 ; Hodge v. Sexton, 1 Hun, 576 ; Simpson v. Del Hoyo, 
 94 N. Y. 189; Eelty v. Simmons, 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 again a bona 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 
 
SALE. 661 
 
 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. Fishe, 71 N. 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- 
 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. 
 
 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. Hayden v. Demets, 53 N. Y. 426 ; 
 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 IST. Y. 426 ; Wilkes v. Ferris, 5 Johns. 335. 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 it, and the purchaser tells the 
 vendor to do as he pleases, without telling him what to do, or 
 whether he will take it, this is a sufficient tender, on the part of 
 the vendor. Stanton v. Smull, 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 
 
662 SALE. 
 
 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 measurer, and the measurer so se- 
 lected is appointed by the board of measurers to perform the duty ; 
 and where the measurement is, in fact, made by a measurer 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- 
 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 sufiicient de- 
 livery to pass the title without any other separation or delivery. 
 Kimherly v. Patchin, 19 N. Y. 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 
 ^oods. 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 IST. 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 frotn the 
 correspondence between the parties was to be barreled only for 
 
SALE. 663 
 
 delivery, it was held that the fact that the vendor had the oil in 
 iron tanks ready to be barreled at the time of tender was a suffi- 
 cient compliance with the written agreement. Mann v. Nai. 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. McEnigU, 13 Johns. 294. 
 
 On the 8th of December, 1848, the plaintiff bargained with W., 
 a tanner, for the purchase of fifteen sides of harness leather, 
 which were then in W.'s shop in an unfinished state, at a certain 
 price per pound when finished. The plaintiff paid W. thirty 
 dojars as the probable value of the leather, and if it should ex- 
 ceed that amount the plaintiff was to 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 E"ew 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 
 
664 SALE. 
 
 on board of a vessel, for transportation, the carman taking re- 
 ceipts from tlie 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 ont ; or, in other words, to whom the goods 
 shall be deliverable. And until he does so, the right of possession 
 remains in himself. Accordingly, where goods were thus placed 
 on board of a vessel for transportation to the purchaser's place 
 of residence, and receipted for by the master; it was held, that 
 there was not such a delivery to the purchasers as rendered the 
 goods liable to be taken by virtue of an attachment, issued and 
 executed before the vessel sailed, on the ground that fhe pur- 
 chasers were non-resident debtors. Jones v. Bradner, 10 Barb. 
 193. 
 
 A delivery of goods to a carrier, pursuant to the direction of 
 the purchaser, is a good delivery to him {Pacific Iron WorTcs v. 
 Long Island R. B. Co., 62 N. Y. 272 ; Wilcox Silver Plate Co. 
 V. Green, T2 K 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. li.j Everett v. 
 Parks, 62 Barb. 9. ISTor will a delivery to a general carrier, not 
 designated or selected by the vendee, constitute an acceptance 
 under the statute of frauds. Bodgers v. Phillips, 40 E". Y. 519 ; 
 Wilcox Silver Plate Co. v. Green, 72 N. Y. 17, 20; Allard v. 
 Greasert, 61 N. 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 ; Gulwillig v. Zuberbier, 41 Hun, 361. A 
 delivery of goods to the vendee's teamster according to the custom 
 of the parties is sufficient to authorize the submission of the ques- 
 tion of delivery to the jury. Henderson v. Wasserman, 35 St. 
 Rep. 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. Mackie v. Egan, 6 Misc. 95. 
 
 Where the owner of property authorizes a broker to eell 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- 
 
SALE. 665 
 
 livery of it, that such entries be made by tie vendor at the cus- 
 tom house, and that such documents be furnished by him as v^ill 
 confer upon the purchaser the power to control it. Where, in 
 such a case, such vendor, though requested to do so, wholly ne- 
 glects 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- 
 temporaneoiis declarations qualifying it, the onus of proving the 
 delivery conditional, vests upon the vendor. If no such proof 
 is given, the delivery will be deemed absolute, and title to the 
 goods will vest in the purchaser. Caldiuell v. Bwrtlett, 3 Duer, 
 341 ; Smith v. Lynes, 5 N. Y. 42. 
 
 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 I'J'ew York, and it was 
 to be delivered on its arrival at New York from !N^ew Orleans, at 
 any time between two specified dates, it was held that the ven- 
 dors 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. 
 Bussell 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. 
 
 The defendant in October, 1845, made a contract to deliver to 
 the plaintiff a canal boat load of oats, " on or about the firsH of 
 November next." In an action to recover damages for the non- 
 delivery of the oats, it was held that the measure of damages was 
 
666 SALE. 
 
 the difference between the contract-price and the market value of 
 the oats within a reasonable time after the first of November. 
 Kipp V. Wiles, 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. Hephe v. Schmalholz, 26 St. Eep. 
 98 ; Reynolds v. Spencer, 92 Hun, 275. A part delivery 
 and acceptance, some before and some after the time, will not 
 maintain the action. Davenport v. ^Yheeler, 1 Cow. 231. And 
 see Mead v. Degolyer, 16 Wend. 632. A party contracting to de- 
 liver 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 future 
 day, and a portion of the lumber specified in such new contract, 
 was delivered and used by the vendee, but it was not all deliv- 
 ered, it was held that there could not be a recovery for the lum- 
 ber delivered under either contract. Ih.; 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 eases, the date of the shipment is a material element in the 
 identification of the property purchased. Clark v. Fey, 121 
 N. Y. 470 ; Hill v. Blahe, 97 N. 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- 
 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 
 
SALE. 667 
 
 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. LittlejoJin, 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. Where the contract calls for " prompt shipment " of 
 the goods purchased, this implies expedition and admits of less 
 delay than would be permitted under a contract to ship within a 
 reasonable time, and requires an effective shipment by a vessel pre- 
 pared to sail, if not at once, at least within a reasonable time. 
 Toiias V. Lissherger, 105 W. 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- 
 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. Croninger 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 Vorrigan 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 
 
668 SALE. 
 
 it where the vendee may possibly obtain possession and control is 
 not sufficient. Kinne v. Ford, 43 N. 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, lb. 
 
 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. Corbett, 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 
 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. lb. 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. Tomphins, 12 Barb. 
 265. 
 
 The place for the delivery of goods sold is usually fixed by the 
 contract, and when that is done, the goods 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 
 
SALE. 609 
 
 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. Ilolhrooh, 4 Wend. 377. 
 
 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 oflfer 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 sufiicient, though neither the maker nor any one 
 authorized to make the payment be found there. 
 
 The maker of such an engagement is bound to be at the place 
 of payment at all reasonable hours prepared to perform the agree- 
 ment, lb. If upon such demand the maker be absent, it may 
 be made of any one in charge, and if there be no such person, 
 it may be made publicly at a reasonable time. lb. 
 
 The defendant, who was a shopkeeper in New York city, agreed 
 to pay a debt of 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 much more than twenty-five per cent 
 
670 SALE. 
 
 above tke 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 sufBcient 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 K 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. But this rule 
 ceases to be applicable when the collateral circumstances indicate 
 a different place. Branson v. Gleason, 7 Barb. 472. 
 
 Wliere 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- 
 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, and deliver the same to them in good order, equal 
 to 400 barrels each week, from this time to the first of November 
 next," etc., it was held that upon the reasonable construction of 
 the agreement, in connection with the surrounding circumstances, 
 the salt was to be delivered at Oswego. Ih. 
 
 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 
 
SALE. 671 
 
 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- 
 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 hundred and sixty barrels, which the defendant refused to 
 receive, saying, among other things, that there was more than he 
 had ordered ; 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 number 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 bargained 
 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 oiit or separated, and that thereupon no sale had taken 
 place ; and it was held, that the nonsuit Avas 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. Downer v. Thompson, 6 Hill, 208 ; reversing same case, 
 2 Hill, 137. The Svipreme 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 an 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 accteptance of the goods by the de- 
 fendants. Corning v. Colt, 5 Wend. 253. 
 
672 SALE. 
 
 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 
 the whole quantity 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. 
 
 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; Eein v. Tupper, 52 IST. Y. 550; Baher v. Higgins, 21 IST. 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 ISTew York 
 for the sale of five hundred bales of cotton, on its arrival at New 
 York from I^ew 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, 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. Russell 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 
 
SALE. 673 
 
 may, in the first case, deliver any quantity lie chooses ; and in the 
 latter case, he may deliver any quantity not being less nor more 
 than that specified in the contract. Disbar ough 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. 
 Eootj 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 acoept 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 specified 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 
 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 corn in 
 *' merchantable 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 corn 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 
 43 
 
674 SALE. 
 
 have been of unmerchantable quality, and tendered the good and 
 bad corn together, without proposing or offering to deliver any, 
 except in that way ; it was held, that this was not a proper tender 
 or offer o£ performance ; and that the purchasers were not bound to 
 receive the corn 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 corn, 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 ; Hargous v. Stone, 5 N. Y. 73, pi. 6. Where the sale is a 
 conditional one, and the property is at sea on board of a vessel 
 bound to the place of making the contract, if the property is of 
 an inferior quality, so that the defendant is not bound to take it, 
 yet if he receives a portion of the property before ascertaining its 
 quality, and then refuses to accept or pay for it because it is not of 
 the quality required by the contract, he will be bound to return the 
 property to the vendor, on his demand, and if he is unable to re- 
 turn 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. Pettie, 4 N. 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. 
 
SALE. 675 
 
 § 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. 
 Coohe v. Millard, 65 JST. Y. 352 ; 22 Am. Kep. 619. 
 
 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. Durant, 11 IST. Y. 35 ; Hart 
 V. Taylor, 82 N. Y. 373, 376 ; Butler v. Butler, 77 N. Y. 472, 
 475 ; Deeley v. Dwight, 132 ISI". 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 vendee, the thing sold must not only be in 
 existence, but it must be identified. 76. Where D. agreed to 
 manufacture for K. a quantity of shingles, at a specified price per 
 thousand, which shingles should ie 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 agree- 
 ment to be execiTted 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 delivery. 
 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 
 it is agreed to be built, until it is finished and delivered. Andrews 
 V. Durant, 11 I^T. Y. 35. The rule is the same, where certain 
 portions of the contract price are agreed to be paid to the builder 
 at specified stages of the woijk, and when an agent of the person 
 for whom the article is to be constructed, is to, and does superin- 
 tend and approve the materials and work. 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 
 when it was completed and delivered, the workmanship and ma- 
 
676 SALE. 
 
 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. ; Mer- 
 ritt V. Johnson, 7 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 work progressed, he was not entitled to maintain an action, 
 the materials being personal property, and not passing to the plain- 
 tiff until delivery, or imtil 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. Schench, 3 Hill, 28 ; 
 Rightmyer v. Raymond, 12 Wend. 51 ; Foster v. Pettibone, 7 ~N. 
 Y. 433 ; Hyde v. Goohson, 21 Barb. 92 ; Gregory v. Stryher, 2 
 Denio, 628. 
 
 As has been stated, to transfer the title of a manufactured 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 a 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. Lan- 
 caster, 160 I^J". Y. 342 ; Ellison v. Creed, 34 App. Djv. 15. See 
 Beed v. Randall, 29 N. Y. 358; Beck v. Sheldon, 48 K Y. 365; 
 Dutchess Company v. Harding, 49 ]Sr. Y. 321 ; Chambers v. Lan- 
 caster, 3 App. Div. 215; Wiles v. Provost, 6 App. Div. 1. 
 
SALE. 677 
 
 § 12. Sale or Delivery Procured by Fraud. 
 
 Tliere is another class of cases which, is somewhat analogous', 
 though the rule is widely different in the two cases. When a sale 
 is procured by the fraud of the vendee, it may be laid down as a 
 universal rule, that, as between vendor and vendee, the latter 
 will not acquire any title to the property which he may have ob- 
 tained by his fraud, provided the vendor elects to rescind the 
 sale, and seeks to recover the property. Hunter v. Hudson 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 IST. 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 main- 
 tain 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 ]Sr. 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 pretenses. lb. 
 But to justify a vendor in treating a sale of personal property 
 as void, and in retaking the property on the ground of false and 
 fraudulent representations, such representations must be made to 
 him, or made for the purpose of being communicated to him, 
 and with the design of influencing his conduct. Van Kleeck v. 
 Le Boy, 37 Barb. 544; 4 Abb. Ot. App. 479; 4 Abb. K S. 
 431 ; 4 Trans. App. 295. 
 
 If such false statements are maae to a stranger, without any 
 intent to influence the conduct of the plaintiff, this cannot be 
 made a pretext for avoiding a sale made by the plaintiff himself. 
 lb. 
 
 But where goods are purchased with a preconceived design of 
 not paying for them, and with a knowledge by the vendee that 
 he is 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. 
 
678 SALE. 
 
 Talcott, 96 K Y. 100, 107. And where the sale is procured 
 through the fraud of the vendee's agent, the rule is the same. 
 Olmstead v. Hotali/ng, 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. Hinman, 6 
 Bosw. 8. How far a principal is identified with 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 arts or contrivances for the purpose of mislead- 
 ing the vendor, it is not a fraud to say nothing on the subject. 
 Nichols V. Pinner, 18 IS. Y. 295 ; Wright v. Brown, 67 IST. Y. 
 1 ; Morris v. Talcott, 96 IST. Y. 100, 107 ; Peoples' Bank v. Bogart, 
 81 N. Y. 101, 108 ; Buckley v. Artcher, 21 Barb. 585 ; Mitchell 
 v. Warden, 20 Barb. 253. These facts alone do not disclose an 
 intent to defraiid. 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 'N. Y. 100. See Sinnott v. German- 
 American Bank, 164 IT. Y. 386. But where there is a condition 
 of knowTi 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. Broivn, 67 IST. Y. 1 ; 
 Nichols V. Michael, 23 IST. Y. 264; Hennequin v. Naylor, 24 K 
 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 
 to cheat will be inferred. Anonymous, 67 IST. Y. 598, affirming 
 S. C, sub nom. Boehling v. Duncan, 8 Hun, 502. See Devoe v. 
 Brandt, 53 W. Y. 462 ; Chaffee v. Fort, 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 
 
SALE. 679 
 
 vendor, and a violation of that duty amounts to a fraud, whicli 
 will avoid the sale as between vendor and vendee. Mitchell v. 
 Warden, 20 Barb. 253 ; Buckley 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. Cary v. 
 Hotaling, 1 Hill, 311; Olmstead v. Hotaling, id. 317; Hall v. 
 Naylor, 6 Duer, 71 ; Hathome v. Hodges, 28 IST. Y. 486 ; Nauga- 
 tuck Cutlery Co. v. Bdbcock, 22 Hun, 481; Hall v. Erwin, 60 
 Barb. 349 ; Miller v. Barber, 66 IST. Y. 558 ; Van Eleeck v. Le Roy, 
 4 Abb. Ct. App. 479 ; 4 Abb. jST. 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 JST. Y. 85; White v. Benjamin, 150 K Y. 
 258. 
 
 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 
 any goods of that firm on credit, or that he defrauded or intended 
 to defraud such firm. Murfey v. Brace, 23 Barb. 561; Durbrow 
 V. McDonald, 5 Bosw. 131. 
 
 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 ; Clemmons v. Bouse, 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 IST. Y. 200. A creditor 
 of a fraudulent vendee will not get any title as against the vendor, 
 when such creditor obtains his title by a levy and sale on an 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; Acker v. Campbell, 23 Wend. 372; Devoe v. Brandt, 53 
 K Y. 462. See Naugatuck Cutlery Co. v. Bahcock, 22 Hun, 481. 
 So the vendor may reclaim the property in such a case if the 
 
680 SALE. 
 
 vendee Las 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 N. 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. Woodhurn v. Charnberlin, 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. S. R. Co. v. 
 Fancher, 145 IST. Y. 552 ; Goodwin v. Wertheimer, 99 jST. 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 possession. Levy 
 V. Carr, 85 Hun, 289 ; Goodwin v. Wertheimer, 99 N. Y. 149. 
 ^See Nat. B. & D. Bank v. Hubbell, 117 K 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. Carnphell, 58 IST. Y. 76 ; Wise 
 V. Grant, 140 N. Y. 593 ; Fassett v. Smith, 23 1^. Y. 252 ; Bene- 
 dict V. Williams, 48 Hun, 124; A. 8. R. Co. v. Fancher, 145 N. 
 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 
 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 
 will be deemed a ratification. He may elect to rescind it, and 
 
SALE. 681 
 
 thereby his title to the property is reinstated as against the pur- 
 chaser and all persons deriving title from him not being bona 
 fide purchasers for value. Upon rescission the vendor may follow 
 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. B. Co. v. Fancher, 145 JST. Y. 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 disafiirmance 
 of the sale. If before such option was exercised, the goods were 
 levied upon by the sheriil 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 N. 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. Parle 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 
 action of trover against B., might go into evidence to show, that 
 the goods had 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. 
 
682 SALE. 
 
 The law is well settled as to the rights of hona fide purchasers 
 from a fraudulent vendee. But, before stating the rule, it will 
 be well to determine who is a bona fide purchaser. It may be 
 safely laid down as law, that no person, as against the true owner, 
 is to be deemed a hona fide purchaser from the first vendee, when 
 it appears that he has neither advanced money nor property, nor 
 incurred liabilities upon the faith of such vendee's apparent title, 
 nor where he had notice of the fraud of the vendor or knowledge 
 of circumstances sufBcient to put him on inquiry. Barnard v. 
 Campbell, 58 N". Y. 73 ; Stevens v. Brennan, 79 IST. Y. 254 ; Weis 
 V. Brennan, 9 Jones & Sp. 177. See Weaver v. Barden, 49 
 ]Sr. Y. 286 ; Boot v. French, 13 Wend. 570. He is not a bona 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 ; Robinson 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, 
 58 N. 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 bona 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 disaffirm the contract as against such 
 fraudulent vendee. Caldwell v. Bartlett, 3 Duer, 341 ; Keyser 
 V. HarbecTc, id. 373 ; Malcom v. Loveridge, 13 Barb. 372 ; Mow- 
 rey v. Walsh, 8 Cow. 238 ; Root v. French, 13 Wend. 570. So a 
 bona fide mortgagee will get a good title if he advances the money 
 for which the mortgage is given. Malcom v. Loveridge, 13 Barb. 
 372. So, one who in good faith, without notice of such fraud, 
 receives such goods from a fraudulent vendee, on consignment 
 for sale, and advances money thereon to such vendee, acquires a 
 lien thereon, and such original vendor cannot reclaim the goods 
 from him without repaying his advances. Williams v. Birch, 6 
 IBosw. 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. lb. And see Levy v. Carr, 85 Hun, 289. 
 
SALE. 683 
 
 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 documentary 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 document- 
 ary 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. EarbecTc, 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 note 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. Dietrich, 14 Wend. 31, which holds, that the 
 vendor may recover the property of a hona fide purchaser from 
 a fraudulent vendee, is opposed to all the other cases, and is ex- 
 pressly overruled in Fassett v. Smith, 23 E". 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 ; S. 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- 
 
684 SALE. 
 
 chaser is not protected against the claims of the owner, although 
 such purchaser acquires the property for a fair aad 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. Saltiis v. Everett, 20 Wend. 175, 267, etc. 
 On the seventh of October, the plaintiffs, in the city of Xew 
 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 
 was 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 J^ew 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. Peahody, 
 13 ]^. Y. 121. A bill of lading is only so far negotiable as to 
 
SALE. 685 
 
 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 owners of the 
 goods, and there has been, in point of fact, no sale of them, an 
 indorsee, though taking the goods in good faith and for value, 
 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 feloniously, 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- 
 Avithstanding he has paid over the proceeds to the person employ- 
 ing him. lb. One who deals with or disposes of the personal 
 property of another (the same not being negotiable paper), must 
 see to it that he acts by the authority of some one who has power 
 sufficient to warrant such dealing or disposition. lb. One who 
 tortiously possesses himself of another's chattels, without a de- 
 livery from the true owner, or his consent express or implied, can 
 vest no title to them in a purchaser, though bona fide. Caldwell 
 V. Bartlett, 3 Duer, 341, 352, and cases cited. 
 
 It is sufficient 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 
 such notice, and forbears to make inquiry, he is not a purchaser 
 in good faith, within the meaning of the rule, that a bona fide 
 purchaser from such a vendee, in the ordinary course of business, 
 for value, will acquire a valid title as against the defrauded ven- 
 dor. Danforth v. Dart, 4 Duer, 101 ; Mitchell v. Warden, 20 
 Barb. 253; Covell v. Hill, 6 K Y. 374; Pringle v. Phillips, 5 
 Sandf. 157. 
 
686 SALE. 
 
 § 13, Bescinding Contracts of Sale. 
 
 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 N. 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 tnutual 
 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 did not know of the bargain until after it was made, nor 
 did he know the terms of it, and that it was contrary to his propo- 
 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. Rohertson 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 ; it was held that the maker of the note 
 having returned the mill within the time and refused to accept 
 a new one, though offered him by the payees, he was entitled to 
 no abatement from the amount of the note by reason of latent 
 defects in the mill. Pinney v. Hall, 1 Hill, 89. 
 
 If the purchaser of goods which, by the terms of the contract 
 of 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 
 
SALE. 687 
 
 upon, the vendor may request him to pay for and take the goods, 
 aijd, in case of his refusal, may abandon and rescind the contract, 
 and dispose of the goods as if no contract had been made, or he 
 may, 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. Bandies, 34 Barb. 301 ; Bogart 
 V. O'Beagan, 1 E. D. Smith, 590; Crooks 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 IST. Y. 481 ; 
 Dustan v. McAndrew, 44 IN". Y. 72, 78 ; Lewis v. Oreider, 49 Barb. 
 606 ; 51 K Y. 231, 237 ; Hayden v. Demets, 53 N. Y. 426, 431 ; 
 Cahen v. Flatt, 69 N. Y. 348, 352 ; Mason v. Decker, 72 K Y. 
 599 ; Quick v. Wheeler, 78 JST. Y. 305 ; Windmuller v. Pope, 107 
 N. Y. 674; Tuthill v. Shidmore, 124 jST. Y. 148, 154; YanBrock- 
 len V. Smeallie, 140 IST. Y. 70. If the vendor elects to pursue 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 concurrent. If the vendor suc- 
 ceeds in the action and obtains complete payment, the vendee is 
 entitled to the possession of the property. Westfall v. Peacock, 
 63 Barb. 209. 
 
 Where the vendor elects to avail himself of the second method, 
 he is boimd to resell within a reasonable time (Smith v. Pettee, 
 70 ]Sr. Y. 13; Moore v. Potter, 155 IST. Y. 481), to follow any 
 proper instructions the vendee may give him as to the time and 
 manner in which the sale should be made, and to give credit upon 
 the contract price for the amount received. Ih. But the vendor 
 does not act as the vendee's agent in making the resale, but, on 
 the contrary, acts for himself in disposing of the property for the 
 purpose of ascertaining the actual damage he may sustain. Moore 
 V. Potter, 155 N. Y. 481. The resale need not be at auction un- 
 
688 SALE. 
 
 less such is the customary mode of selling the kind of property 
 in question, nor is it absolutely essential that notice of the time 
 and place of sale should be given to the vendee. Pollen v. Le Roy, 
 30 K Y. 556; Mann v. Nat. Linseed Oil Co., 87 Hun, 568; Bo- 
 gart v. O'Beagan, 1 E. D. Smith, 590; McOihhon v. Schlessinger, 
 18 Hun, 225; Lewis v. Greider, 49 Barb. 606; 51 N. Y. 231; 
 Tan Brochlen v. Smeallie, 140 N. Y. 70. Notice of intention to 
 sell in case the contract is not performed is all that the law re- 
 quires. Lewis V. Greider, 49 Barb. 606 ; McGibhon v. Schles- 
 singer, 18 Him, 225. It is always wisest for the vendor to give 
 notice of his intention to resell and quite unsafe to omit it. Van 
 Brochlen v. Smeallie, 140 'N. Y. 70. If the usual mode of selling 
 the particular goods in the market is by auction, the seller ought 
 to dispose of them in that manner. If the custom be to sell them 
 through a broker, it is the duty of the seller to offer them in mar- 
 ket through a broker's agency. Crooks v. Moore, 1 Sandf. 297. 
 All that is required of the vendor is that he should act with rea- 
 sonable care and diligence and in good faith. Dustan v. McAn- 
 drew, 44 N. Y. 72. 
 
 Where goods are sold which are to be paid for on delivery, and 
 the vendee takes possession of the goods by fraud, or without the 
 consent of the vendor and his waiver of the condition, such vendor 
 may recover the possession of the goods in an action of replevin. 
 Acker v. Campbell, 23 Wend. 372. 
 
 Where a contract of sale has been procured by a fraud, the 
 vendor may treat the sale as a valid one, if he so elects, and 
 the fraudulent vendee will be bound, notwithstanding his own 
 fraudulent acts. Branson v. Wiman, 8 N. Y. 182 ; Matteawan 
 Co. v. Bentley, 13 Barb. 641. But either party to a contract of 
 sale may rescind it, if it was procured by the fraud of the other 
 party. And the cases in which vendors have rescinded contracts 
 of sale on account of the fraud of the vendee are very numerous. 
 Ash V. Putnam, 1 Hill, 302 ; Cary v. Hotailing, id. 311 ; Olmsted 
 V. Hotailing, id. 317 ; Willson v. Foree, 6 Johns. 110 ; Keteltas 
 V. Fleet, 7 Johns. 324; Hitchcock v. Covill, 20 Wend. 167; Bliss 
 V. Cottle, 32 Barb. 322; Wheaton v. Baker, 14 Barb. 594; Seor 
 man v. Low, 4 Bosw. 337. 
 
 Although a sale is made on credit, if the goods were sold and 
 the credit given to the vendee in reliance upon false and fraudu- 
 lent representations made by him, the vendor has the right either 
 to disaflfirm the sale and proceed in replevin to recover his goods, 
 
SALE. 689 
 
 or to waive the tort and proceed at once in assumpsit for the pur- 
 chase price of the goods as if the sale were made for cash. Heil- 
 hrann v. Herzog, 165 IST. Y. 98 ; Wigand v. Sichel, 3 Keyes, 122 ; 
 Willson V. Foree, 6 Johns. 110 ; Eayser v. Sichel, 34 Barb. 84 ; 
 Both V. Palmer, 27 Barb. 652 ; Pierce v. Drahe, 15 Johns. 475. 
 There is a well-recognized distinction in such cases as these be- 
 tween a disaffirmance of the sale, with all its incidents, as where 
 the action to recover the possession of the goods is brought, and 
 a mere rescission of the credit upon which the sale was made, as 
 in case of an action for the purchase price of the goods. lb. 
 
 After a demand and refusal the vendor may maintain trover 
 against the fraudulent vendee (Hitchcock v. Covil, 20 Wend. 
 167), or replevin to recover possession of the goods (Cary v. 
 Hotaling, 1 Hill, 316; Olmsted v. Hotailing, 1 Hill, 317; 
 Wheaton v. Baker, 14 Barb. 594), and may recover the goods from 
 such vendee or his assignee (Bliss v. Cottle, 32 Barb. 322), or 
 from his creditors. Ash v. Putnam, 1 Hill, 302. See ante, p. 679. 
 
 The bringing of an action of replevin is an act of rescission 
 {Wise V. Orant, 140 E". Y. 593), and being an election of remedies, 
 precludes the plaintiff therein from thereafter maintaining a 
 claim under the contract of sale. Moller v. Tuska, 87 N. Y. 
 166. But if the plaintiff is successful in part only in his en- 
 deavor to retake his entire property, he does not thereby lose his 
 right to pursue the original wrongdoer for the value of the un- 
 found portion (Powers v. Benedict, 88 N. Y. 605), nor does it 
 preclude him from stiing for the fraud on the part of the pur- 
 chaser in obtaining the goods. Bochester Distilling Go. v. Deven- 
 dorf, 54 St. Hep. 864. A vendor who has disaffirmed a sale on 
 the ground of fraud may reclaim, by an action of replevin, such of 
 the goods sold as are within his reach, and at the same time main- 
 tain an action against the vendee to recover damages for those 
 that have been disposed of. Hersey v. Benedict, 15 Hun, 282. 
 And the mere bringing of an action for the purchase price is not 
 a binding election or waiver of the right to rescind the sale on 
 the ground of fraud where it is not established that the action 
 was brought with knowledge of the fraud. Equitable Co-operative 
 Foundry Go. v. Hersee, 103 N. Y. 25. But a vendor wlio 
 rescinds the contract and retains the property sold, cannot main- 
 tain an action for fraud and deceit against the vendee (Booms 
 V. Jennings, 2 Misc. 257), nor can the vendor after a resale of 
 the property maintain an action for the purchase price. Grouse 
 T. Wolf, 4 Misc. 635. 
 44 
 
690 SALE. 
 
 A breach of warranty made by the vendor, is not a suiBcient 
 ground for the vendee to rescind the contract of sale, and to 
 insist upon returning the goods sold. The purchaser is not 
 entitled to rescind the sale, return the chattels and demand a 
 return of the price paid, unless there was fraud in the sale on 
 the part of the vendor, or there was an express agreement that 
 they might be returned if they were not such as they were war- 
 ranted to be. Kiernan v. Rocheleau, 6 Bosw. 148 ; Gary v. Gru- 
 man, 4 Hill, 625 ; Voorhees v. Earl, 2 Hill, 288 ; Muller v. Eno, 
 14 ]Sr. Y. 597; Fishery. Fredenhall, 21 Barb. 82; Rust v. Eckler, 
 41 K Y. 488 ; Paries v. Morris Ax & Tool Co., 54 IST. Y. 586 ; 
 Day V. Pool, 52 1^. Y. 416 ; Nichols v. Townsend, 7 Hun, 375 ; 
 Zuller V. Rogers, 7 Hun, 540. 
 
 There is sometimes an implied warranty which may authorize 
 a refusal to receive goods sold, or even a return of them after they 
 have been delivered, though this is not strictly upon the ground 
 that the contract is rescinded, but because the goods delivered are 
 not such as the contract requires. When goods are to be manu- 
 factured in future, the vendee may require .'., merchantable article. 
 Howard v. Hoey, 23 Wend. 350; Hoe v. Sanborn, 21 K Y. 
 552; Muller v. Eno, 14 K Y. 597, 602. 
 
 Where a party would rescind a contract of sale for fraud, he 
 must act promptly on discovering such fraud. Wheaton v. Baker, 
 14 Barb. 594; Matteawan Co. v. Bentley, 13 Barb. 641; Fisher 
 V. Fredenhall, 21 Barb. 82 ; Central Bank v. Pindar, 46 Barb. 
 467 ; Schiffer v. Dietz, 83 I^. Y. 300 ; Strong v. Strong, 103 K 
 Y. 69; Hoch v. Ooodhart, 31 Misc. 789 ; Hallahan v. Webber, 
 7 App. Div. 122. Not only must there be a disaffirmance of the 
 contract at the earliest practicable moment after the discovery, 
 but a return of all that has been received under it and a restora- 
 tion of the other party to the condition in which he stood before 
 the contract was made. Cobb v. Hatfield, 46 ISI". Y. 533 ; Baird 
 V. Mayor, etc., of N. Y., 96 K Y. 567; Gould v. Cayuga Co. 
 Nat. Bank, 86 IST. Y. 75 ; Weill v. Malone, 91 Hun, 261 ; Voorhees 
 V. Earl, 2 Hill, 288; Roth v. Palmer, 27 Barb. 654; Masson v. 
 Bovet, 1 Denio, 69; Wheaton v. Baker, 14 Barb. 594; Waring 
 V. Mason, 18 Wend. 426 ; Fisher v. Fredenhall, 21 Barb. 82 ; 
 Matteawan Co. v. Bentley, 13 Barb. 641. Effective rescission re- 
 quires a lawful right to rescind, due notice of an intention to re- 
 scind, and a restoration of benefits received by the party attempt- 
 ing to rescind, so that the other party may be placed in statu quo. 
 Martin-Barris Co. v. Jackson, 24 App. Div. 354 ; Cox v, Stokes, 
 
SALE. 691 
 
 156 N. Y. 491. Even the most complete right of rescission cannot 
 be exercised without a return or an offer to return such benefits. 
 lb. 
 
 But where the party who practiced the fraud has entangled and 
 complicated the subject of the contract in such a manner as to 
 render it impossible that he should be restored to his former con- 
 dition, the party injured, upon resitoring or offering to restore 
 what he has received, and doing whatever is in his power to undo 
 what has been done in the execution of the contract, may rescind 
 it and recover what he has advanced. Masson v. Bovet, 1 Denio, 
 69. 
 
 The defendant, being the plaintiff in a judgment, and about 
 to cause land of the judgment debtor to be sold on execution, 
 fraudulently represented to the plaintiff that the land to be sold 
 was free from any prior incumbrance, when, in truth, it was 
 subject to older liens to more than its value, and thereby induced 
 him to become the purchaser at the sheriff's sale for a consider- 
 able sum, and received from him in payment of his bid the note 
 of a third person, held by the plaintiff for a larger sum than the 
 amount bid, giving back his own note for the balance. It was 
 held that the plaintiff, who had, immediately upon the discovery 
 of the fraud, offered to give up the note received by him and to 
 assign the certificate of sale, could maintain replevin against the 
 defendant for the note so transferred to the defendant by him. Ih. 
 So where a vendor, in pursuance of a right reserved in the con- 
 tract of sale, declares the contract void, and re-enters and takes 
 possession of the lands, and sells the same to another person, 
 this amounts to a rescission of the contract by him, and the 
 vendee may, in an action for money had and received, recover 
 back the payments made by him. Utter v. Stuart, 30 Barb. 20. 
 
 And where, on the 19th of June, 1857, the plaintiffs bought a 
 quantity of sheep of the defendant for the sum of one hundred 
 and sixty-eight dollars, paying fifty dollars of the price down, and 
 agreeing to pay fifty dollars on the twenty-second day of that 
 month, and to take the sheep away and pay the balance of the 
 purchase money v^thin ten days of sale. The plaintiffs did not 
 pay the fifty dollars on the twenty-second day of June, and did 
 not call for the sheep and offer to pay the balance of the price 
 within ten days. On the seventh day of July the defendant told 
 the plaintiffs that the sheep were sold to another person, and 
 refused to let the plaintiffs have them. In an action brought by 
 
692 SALE. 
 
 the plaintiffs to recover back the fifty dollars paid at the time of 
 the sale, and for damages, it was held that if the defendant meant 
 to enforce the contract, he should have given notice to the plain- 
 tiffs that if they did not take the sheep and pay the balance of 
 the purchase money by a specified time, he should sell the sheep 
 and look to the plaintiffs for any deficiency ; that having resold the 
 sheep without giving such notice, the defendant rescinded the con- 
 tract in toto, and lost all right of action against the plaintiffs for 
 their breach of it, and became liable to refund to them the fifty 
 dollars paid on it, and that, therefore, the plaintiffs were entitled 
 to recover the fifty dollars paid by them, with interest thereon 
 from the time the defendant rescinded the contract, but that, being 
 themselves in the vsTong, they could not recover any dajnages of 
 the defendant for his rescission of the contract, and also that it 
 was not necessary to demand the fifty dollars of tne defendant 
 before bringing their action to recover it back. Fancher v. Good- 
 man, 29 Barb. 315. 
 
 Before a purchaser of real estate can rescind the contract of 
 purchase and claim to recover back the moneys paid by him on 
 account of the price, he is bound to restore to the vendor the 
 possession of the premises. He cannot occupy under the con- 
 tract, and thus enjoy the benefit of it, and at the same time treat 
 it as rescinded, and reclaim the purchase money. Goelih v. White, 
 35 Barb. 76 ; Ahhott v. Draper, 4 Denio, 51. 
 
 There are cases in which the omission to return what has been 
 received is excusable in point of law. The defendant obtained 
 merchandise from the plaintiff under fraudulent representations, 
 paying part of the price in cash and giving his note for the bal- 
 ance. At the maturity of the note, the defendant could not be 
 found, upon inquiry at his last place of residence; it was held 
 that an action of trover would lie without a tender of the money 
 or note, and that it was sufficient if the note was produced and 
 tendered at the trial. Ladd v. Moore, 3 Sandf. 589. Though a 
 party who rescinds a contract is bound to restore what he has 
 received upon it, yet this is upon the condition that such party 
 shall thus restore himself to his own original position. Ih. 
 
 ^^ere a fraudulent purchaser has absconded, leaving the pur- 
 chase money unpaid, a return to him of the notes given for such 
 price becomes impracticable, and the vendor is therefore not re- 
 quired to offer to return the notes before bringing an action to 
 disaffirm the sale. In such case it is sufficient to produce the 
 notes at the trial. Hathome v. Hodges, 28 N". Y. 486 ; White 
 V. Dodds, 42 Barb. 554; 28 How. 197; 18 Abb.. 250. 
 
SALE. 693 
 
 As against a third person claiming under a fraudulent vendee, 
 it is not necessary, in order to establish a rescission of the con^ 
 tract of sale, to prove a return of, or an offer to return, any secur- 
 ities received thereon if the vendor refrains from asserting any 
 title to those securities founded upon the original contract. 
 Kinney v. Eiernan, 49 N. Y. 164. And see Pearse v. Pettis, 47 
 Barb. 276. 
 
 The law does not require a vendor of personal property vpho 
 seeks to rescind the contract of sale and to recover the property 
 on account of fraud to reimburse the defendant for advances to 
 others or expenditures made by him to effectuate the fraud al- 
 though the vendor would have the benefit of such advances and 
 expenditures on repossessing himself of the property. Oucken- 
 heimer v. Angevine, 81 N. Y. 394. So, no return of the money 
 received, or offer to return is necessary before action brought where 
 the judgment sought for and allowed is in fact an actual return 
 of the consideration paid. Allerton v. Allerton, 50 N. Y. 670. 
 And see Importers & Traders' Nat. Banlc v. Peters, 21 St. Kep. 
 98, 102; 123 K Y. 273. So where what was obtained by a 
 fraudulent contract is absolutely of no value whatever, the de- 
 frauded party is not required to return it before disaffirming the 
 contract. The law does not require an idle ceremony. Gould 
 V. Cayuga County Nat. Bank, 86 N. Y. 75, 81. So, where the 
 vendor upon a sale induced by fraud has taken the vendee's own 
 note, the vendor may repudiate the contract and bring his action 
 to recover the property sold without first surrendering the note. 
 Nichols V. Michael, 23 IST. Y. 264; Nellis v. Bradley, 1 Sandf. 
 560 ; Ladd v. Moore, 3 Sandf. 589. This is so because as between 
 the parties the note is not property but a mere promise to pay 
 which is avoided by the rescission of the contract. It is of no 
 value to the vendee, and needs to be surrendered to him at the 
 trial merely because it might otherwise be used to his detriment. 
 Oould V. Cayuga County Nat. Banh, 86 N. Y. 75, 83. It is no 
 more necessary to tender a negotiable note than any other if the 
 note has not been negotiated and still belongs to the vendor. 
 Nichols V. Michael, 23 N. Y. 264. But where negotiable notes 
 were given by the vendee, payable at a bank which discounted the 
 notes and owned them at the time of the commencement of the 
 action, and no tender or offer was made by the vendor to return 
 or cancel the notes before action brought; it was held that the 
 plaintiff could not maintain an action to recover the value of the 
 goods, although he produced them at the trial, and offered to 
 cancel them. MatteaiUan Co. v. Bentley, 13 Barb. 641, 644. 
 
[694 SALE. 
 
 And where a vendor sells goods and receives from the pur- 
 chaser a promissory note made by a third person in payment, and 
 he afterwards sues the purchaser for goods sold, on account of 
 fraudulent representations made by him as to the solvency of the 
 maker of such note, by which he was induced to receive the note, 
 the vendor must, in order to recover, show that he returned or 
 tendered the note to the defendant before suit brought. And if 
 he has recovered a judgment upon it against the maker, an as- 
 signment of the judgment must be tendered before suit. Baker 
 V. Bobbins, 2 Denio, 136. 
 
 Where a vendor has received the notes of third persons or other 
 property on the sale, he must restore or offer to restore them be- 
 fore bringing his action to recover back the property. King v. 
 Fitch, 1 Keyes, 432 ; 2 Abb. Ct. App. 508. 
 
 If, since the purchase, the purchaser has assigned all his prop- 
 erty to trustees, in trust for the beneiit of creditors, and the as- 
 signees are in possession of the property, a tender of the money 
 or property received by the vendor, upon the sale, may properly 
 be made to the assignees instead of the purchaser. Stevens v. 
 Hyde, 32 Barb. 171. The vendor may recover the property from 
 such an assignee precisely as though he were the fraudulent vendee. 
 lb.; Nellis v. Bradley, 1 Sandf. 560. 
 
 If an infajit has executed a contract on his part by the pay- 
 ment of money or delivery of property, he cannot afterwards 
 disaffirm it, and recover back the money or claim a return of the 
 property, without restoring to the other party the consideration 
 received from him. Bartholomeiv v. Finnemore, 17 Barb. 428. 
 An infant purchased a horse of the defendant, and paid for him 
 in property, Avhich he delivered to the defendant. He kept the 
 horse about one month, during which time, in consequence of 
 misuse by the infant, the value of the horse was greatly lessened, 
 and he then tendered him back to the defendant and demanded 
 the property he had delivered to the latter; it was held that the 
 infant could not recover for thfi property on a refusal by the 
 defendant to redeliver it. lb. 
 
 The terms on which a rescission by an infant will be allowed are 
 a restoration of the property to the person of whom he received 
 it, and the payment of such a stmi as, with the payments on 
 account of the purchase, equals the deterioration of the property 
 in value, caused by the infant's use of it. Oray v. Lessington, 2 
 Bosw. 257. Where an infant purchased a bicycle on the install- 
 ment plan, title to pass on completion of the stipulated payments. 
 
SALE. 695 
 
 and after using it for a time, returned it and brought an action 
 to recover the installments paid, it was held that, in the absence 
 of fraud on the part of the defendant in making the contract, the 
 infant must account for the reasonable use of the bicycle or its 
 deterioration in value, and that where the value of the use equaled 
 the amount paid on the contract the infant could not recover. 
 Rice V. Butler, 160 K Y. 578. 
 
 Where there is a total failure of title the buyer may rescind 
 the contract and recover what he has paid under it, or may 
 abandon the property to the true owner, taking the burden of 
 proving title in such owner. Wolf v. Michael, 21 Misc. 86. See 
 Sweetman v. Price, 26 E". Y. 224. 
 
 Upon a sale of an interest in a patent, the purchaser is pre- 
 cluded from setting up the want of value in the invention, or the 
 insuflBciency of the materials, where he has sold the right trans- 
 ferred to him to another for value. He cannot defend an action 
 for the unpaid purchase money on that ground. It would be 
 otherwise if there had been a warranty or express representation 
 of the value or character of the article. By parting with the 
 patent, he had disabled himself from reinstating the plaintiff in 
 its possession, and the contract could not be rescinded without 
 that. Thomas v. Quintard, 5 Duer, 80; Wheaton v. Baher, 14 
 Barb. 594. 
 
 When a contract is rescinded, the entire contract must be 
 rescinded. The vendee cannot elect to rescind in part, and to 
 hold the residue of the contract valid. Voorhees v. Earl, 2 Hill, 
 288 ; Shields v. Pettee, 2 Sandf. 262 ; Ooelth v. White, 35 Barb. 
 76 ; Abbott v. Draper, 4 Denio, 51 ; Matteawan Co. v. Bentley, 13 
 Barb. 641 ; Wheaton v. Baher, 14 Barb. 594 ; Stevens v. Hyde, 
 32 Barb. 171. The vendee cannot retain any benefit whatever 
 under the contract, and Sitill insist upon a rescission of it. lb. 
 He cannot both repudiate the contract and enforce it in the same 
 action. He cannot allege that it was void for some purpose and 
 insist that it was valid for others. Oarbutt v. Smith, 40 Barb. 
 22 ; Walker v. Millard, 29 IST. Y. 375. He cannot, in an action 
 to recover the value of the property, stand on the contract as fix- 
 ing the value, and yet recover on the theory of a rescission of the 
 contract. If he attempts to rescind it he must rescind it in toto. 
 Martin-Barris Co. v. Jachson, 24 App. Div. 354. And although 
 the contract may relate to several different articles at different 
 prices, he cannot retain some of them and rescind the contract as 
 to the others. Voorhees v. Earl, 2 Hill, 288. So as to quality 
 
696 SALE. 
 
 or kind of goods, the vendee cannot accept some and reject others, 
 he must rescind entirely or not at all. Shields v. Pettee, 2 Sandf. 
 262. He cannot retain a part of the goods and then recover dam- 
 ages for the non-delivery of the entire quantity, because they do 
 not correspond with the article sold and agreed to be delivered. 
 He must either receive the article as it is, or he must return the 
 portion delivered, and then enforce his claim for damages. He 
 can recover no damages if he refuses to return the part delivered. 
 lb. 
 
 Where a contract is entered into for the sale of a chattel, the 
 price paid, and the article delivered to the purchaser, with the 
 right to return it to the vendor within a stipulated time, provided 
 the purchaser does not in any way injure it while in his posses- 
 sion, and the property is returned to the vendor who accepts it and 
 repays the price, an action lies against the purchaser if he has 
 been guilty of a misrepresentation or a fraudulent concealment in 
 respect to an injury done to the property while in his possession. 
 Taylor v. Tillotson, 16 Wend. 494. To subject the purchaser to 
 an action in such a case, it is not necessary to show that the injury 
 was intentional, or that it was occasioned by gross negligence. Ih. 
 During the time the purchaser retains the property in such a case, 
 the title is vested in him, and he is at all risks of loss or injury to 
 the property. Ih. 
 
 But where, after the sale of a chattel, it is agreed that the 
 vendee may, within a reasonable time, return it and receive back 
 the price, if returned in as good condition as at the time of the 
 delivery, and the vendee afterwards rescinds the contract and 
 returns the chattel to the vendor, who receives it without objec- 
 tion and gives back the price, the latter is concluded, by his own 
 act, from maintaining an action against the vendee for any de- 
 terioration of the chattel not arising from a secret injury. Lord 
 V. Kenny, 13 Johns. 219. 
 
 A party may have a right to rescind a contract for fraud, but 
 he is not bound to exercise that right by a rescission of the con- 
 tract. He may elect to treat the contract as a valid one, and 
 then enforce such other legal remedies as the law gives him. 
 So, when goods are sold with a warranty, and the vendee has a 
 right, by the terms of his contract, to rescind the contract and 
 return the goods, if they do not answer the warranty, he is not 
 bound to return the goods, but he may retain them and sue the 
 vendor for a breach of the warranty. Waring v. Mason, 18 Wend. 
 426; Boorman v. Jenkins, 12 Wend. 566; Benaud v. Peck, 2 
 
SALE. 69T 
 
 Hilt. 137 ; Muller v. Eno, 14 IST. Y. 598. The purchaser may 
 recover for the breach of warraoity, although he has sold the goods 
 and no claim has been made upon him, and although he is not 
 liable to any one on account of the alleged defect. Muller v. Eno, 
 U K Y. 598 ; Benaud v. Pech, 2 Hilt. 137. 
 
 A return of the goods is never necessary, unless the vendee 
 wishes to rescind the contract of sale. Waring v. Mason, 18 
 Wend. 426; Boorman v. Jenkins, 12 Wend. 566; Muller v. Eno, 
 14 ]Sr. Y. 597, 602. 
 
 If the vendor rescinds the contract on account of the fraud of 
 the vendee, and reclaims the goods from him, such vendor can- 
 not afterwards maintain an action to recover the purchase price 
 of the vendee. So, where the vendee failed to pay cash for the 
 goods as he agreed to do, and the vendor took the goods for that 
 reason, in an action of replevin, that is a rescission of the con- 
 tract, and the vendor cannot maintain an action to recover the 
 purchase price. Morris v. Rexford, 18 N. Y. 552 ; Fancher v. 
 Goodman, 29 Barb. 315. So, in an action by a purchaser to re- 
 cover back money paid in part execution of a contract, which has 
 been rescinded by the vendor, the plaintiff is not obliged to prove 
 a tender or readiness to pay the whole price. Main v. King, 8 
 Barb. 535. 
 
 A defrauded party is not compelled to rescind and sue in an 
 action at law for the consideration parted with upon the fraudu- 
 lent contract. He may bring an action in equity to rescind the 
 contract, and in that action have full relief. Such an action does 
 not proceed as upon a rescission, but for a rescission. In such 
 a case, it is sufficient for the plaintiff to offer in his complaint to 
 restore what he has received, and the rights of the parties can 
 be fully regulated and protected in the judgment to be entered. 
 See Allerton v. Allerton, 50 N. Y. 670. 
 
 § 14. Warranty. 
 
 Sales of personal property form so large a portion of the con- 
 tracts made, that a careful examination of the law in relation to 
 the law of warranty cannot fail to be useful. But the remedy of 
 a party may not always seem to be clear, since he may have more 
 than one form of action, or he may think he has a right of action 
 when the law does not give him any under the circumstances 
 of the particular case. When a sale has been made, and the vendee 
 thinks that he has a right of action on account of the improper 
 
698 SALE. 
 
 conduct of the vendor, the vendee will need to be careful in dis- 
 criminating accurately between three separate classes of cases: 
 1. Where a fraud is involved. 2. Where a warranty has been 
 given in express terms, or where one may be implied. 3. Where a 
 representation or statement has been made, which is erroneous, 
 but neither fraudulent nor incorporated into the contract. The 
 subject of frauds in sales, will be discussed separately hereafter. 
 There is a broad distinction between a sale of goods with a war- 
 ranty of quality, and a fraud in a sale of similar articles. If a 
 man sells a horse to another, and expressly warrants him to be 
 sound, the contract of warranty is broken if the horse proves other- 
 wise. The purchaser, in such cases, relies upon the contract, and 
 it is immaterial to him whether the vendor did or did not know of 
 the unsoundness of the horse. In either case, he is entitled to 
 recover all the damages which he has sustained by reason of the 
 breach of that contract. An express warranty extends to all the 
 defects or faults which it covers, whether they are known or un- 
 known to the vendor. Carley v. Wilkins, 6 Barb. 557. But if 
 the vendor says to the purchaser, " I do not know whether the 
 horse is or is not sound, and therefore will not warrant him; all 
 I can say is, that I have long owned him, and know of no unsound- 
 ness ; " here there is manifestly no warranty, and, if the vendor 
 spoke the truth, no fraud If, however, the vendee can show that 
 the horse was unsound, that the vendor knew it to be so at the time 
 of the sale, and that, in consequence of the false representations 
 made by him, the vendee was defrauded, the vendor would be lia- 
 ble, not for a breach of a contract of warranty, for he made no such 
 contract, but for making representations which he knew to be 
 false. In such a case, the guilty knowledge of the vendor would 
 constitute an essential ingredient in the fraud, and in an action 
 against him, it should be both alleged and proved. 
 
 The remarks already made relate to the distinction between an 
 express warranty and a fraud ; but the same distinction exists be- 
 tween cases of implied warranties and frauds. There is a class of 
 representations or statements which a vendor may make which 
 are not always considered as amounting to a warranty. Cases 
 frequently occur, in which, upon entering into contracts, misrep- 
 resentations made by one party have not been in any degree re- 
 lied upon by the other party. If the party, to whom the repre- 
 sentations were made, had himself resorted to the proper means of 
 verification before he entered into the contract, it may appear that 
 
SALE. 699 
 
 lie relied -upon the result of his own investigation, and not upon 
 the statements made to him on the other side; or, if the means 
 of investigation and verification were at hand, and the attention 
 of the party receiving the representations were drawn to them, the 
 circumstances of the case may lead a jury to impute to the party al- 
 leged to have been misled such a knowledge of the facts as upon due 
 inquiry he ought to have obtained, the notion of any reliance hav- 
 ing been made upon the representations made to him being neces- 
 sarily excluded. Again, in endeavoring to ascertain what reliance 
 was placed on representations, they should be considered with 
 reference to the subject-matter which they concern, and to the 
 relative knowledge of the parties. If the subject is capable of 
 being accurately known, and one party is, or is supposed to be pos- 
 sessed of accurate knowledge, and the other is entirely ignorant, 
 and a contract is entered into after representations made by the 
 party who knows, or is supposed to know, without any means of 
 verification being resorted to by the other, it may well enough be 
 presumed that the ignorant man relied on the statements made 
 by him who was supposed to be better informed ; but, if the subject 
 is in its nature uncertain ; if all that is known about it is a matter 
 of inference from something else, and if the parties making and 
 receiving representations on the subject have equal knowledge and 
 means of acquiring knowledge, and equal skill, it is not easy to pre- 
 sume that representations made by one would have much influ- 
 ence on the other. 
 
 Contracts of warranty are governed by the same rules of law 
 that apply to all other contracts, and, therefore, a warranty need 
 not be expressed in any particular form of language. Fairbanh 
 Canning Co. v. Metzger, 118 IT. T. 260; Petty v. Fish, 31 Misc. 
 739. All contracts of sale with warranty must contain two in- 
 dependent stipulations: 1. An agreement for the transfer of 
 title and possession from the vendor to the vendee. 2. A 
 further agreement that the subject of the sale has certain qualities 
 and conditions. It is not necessary that in the collateral agree- 
 ment the word warranty should be used. Chapman v. Murch, 19 
 Johns. 290; Boherts v. Morgan, 2 Cow. 438; Whitney v. Button, 
 10 Wend. 411; Petty v. Fish, 31 Misc. 740; Fairbanh Canning 
 Co. V. Metzger, 118 IST. Y. 260; Titus v. Poole, 73 Hun, 383. 
 Any assertion by the seller concerning the goods or property which 
 is the subject of sale, if relied upon by the purchaser, and under- 
 stood by the parties as an absolute assertion, and not merely the 
 
TOO SALE. 
 
 expression of an opinion, is an express warranty. Ib.j Hawkins 
 V. Pemherton, 51 IST. Y. 198 ; Oneida Manufacturing Society v. 
 Lawrence, 4 Cow. 430 ; Carley v. Wilkins, 6 Barb. 557. It is 
 not necessary that the vendor should have intended the representa- 
 tion to constitute a warranty, as was held in the earlier cases. 
 If the contract is in writing, and contains a clear warranty, the 
 vendor will not be permitted to say that he did not intend what his 
 language clearly and explicitly declares ; and so if it be by parol, 
 and the representation as to the character or quality of the article 
 sold be positive, not a mere expression of opinion or judgment, 
 and the vendee understands it as a warranty, and relies upon it 
 and is induced by it, the vendor will be bound by his representa- 
 tion, whether he intended it to be a warranty or not. He is re- 
 sponsible for the language he uses, and he cannot escape liability 
 by claiming that he did not intend to convey the impression which 
 his language was calculated to produce upon the mind of the ven- 
 dee. Hawkins v. Pemherton, 51 N. Y. 198 ; Fairhank Canning 
 Co. V. Metzger, 118 N. Y. 260. If the contract is by parol, the 
 question whether what passed between the parties amounted to a 
 warranty, or was merely a recommendation, or an expression of 
 an opinion, is a question of fact to be determined by the justice 
 or a jury as a fact, unless the language used has a fixed or techni- 
 cal meaning. Murray v. Smith, 4 Daly, 277 ; Duffee v. Mason, 
 8 Cow. 26 ; Whitney v. Sutton, 10 Wend. 413 ; Blakeman v. 
 Mackay, 1 Hilt. 266; Rogers v. Ackerman, 22 Barb. 134; Cook 
 V. Moseley, 13 Wend. 277 ; Van Wyck v. Allen, 6 Daly, 376. But 
 if the question is as to the effect of a written contract, the inter- 
 pretation of the language used is within the province of the court. 
 Sparks V. Messick, 65 IST. C. 440 ; Merriam v. Field, 24 Wis. 640 ; 
 Brown v. Bigelow, 10 Allen, 242. 
 
 It may be important to determine, especially In the case of an 
 exe cutor y contract of sale, whether the failure of the vendor to 
 furnish the precise article contracted for and which is supposed 
 to constitute a cause of action, counterclaim or defense, is in fact 
 or in law a breach of the principal contract of sale or of a collateral 
 contract of warranty. In an executory contract of sale words of 
 description may be regarded as merely defining the thing sold and 
 to be delivered, and as imposing a condition upon the vendor which 
 the vendee must satisfy himself has been fulfilled before complete 
 acceptance at the peril of being held to have waived the defects. 
 If the words used, and claimed to create a warranty, express no 
 
SALE. TOl 
 
 other or greater obligation than the law implied from a descrip- 
 tion of the article sold, a failure to furnish the precise thing de- 
 scribed may be held to be a mere non-compliance with the prin- 
 cipal contract of sale, and governed by the rules of law applicable 
 thereto, and not as a breach of a collateral contract of warranty. 
 See Eeed v. Randall, 29 N. Y. 358; Waeher v. Talbot, 43 App. 
 Div. 180 ; Coplay Iron Co. v. Pope, 108 E". Y. 232. The tendency 
 of the recent decisions of the courts of this State is to treat such 
 words as part of the contract of sale, descriptive of the article sold 
 and to be delivered in the future, and not as constituting that col- 
 lateral obligation which sometimes accompanies a contract of sale 
 and known as a warranty. Ib.j Carleton v. Lombard, Ayres & Co., 
 149 IST. Y. 137. But these cases do not deny that a warranty may 
 accompany an executory contract of sale. On the other hand it has 
 been expressly held that a warranty may accompany an executory 
 contract and may be enforced as such. Day v. Pool, 52 1!^. Y. 416 ; 
 Paries V. Morris Ax & Tool Co., 54 IST. Y. 586; Bounce v. Dow, 
 57 ISr. Y. 16 ; Briggs v. Hilton, 99 IST. Y. 517 ; Fairbanh Canning 
 Co. v. Metzger, 118 E". Y. 260. The distinction between the two 
 classes of cases is important. In the case of executory contracts 
 for the sale and delivery of personal property, if the article fur- 
 nished fails to conform to the agreement, the vendee's right to 
 recover damages does not survive an acceptance of the property, 
 after opportunity to ascertain the defect, unless notice has been 
 given to the vendor, or the vendee offers to return the property. 
 Reed v. Randall, 29 IST. Y. 358 ; Bech v. Sheldon, 48 IST. Y. 365 ; 
 Coplay Iron Co. v. Pope, 108 IST. Y. 232 ; Waeber v. Talbot, 43 
 App. Div. 180 ; Mason v. Smith, 130 N. Y. 474, 480. In the case 
 of a sale with an express warranty, the right to recover damages 
 for the breach of the warranty survives an acceptance, the vendee 
 being under no obligation to return or offer to return the goods, 
 if, indeed, he has a right to return them upon discovery of the 
 breach, which is questionable. Day v. Pool, 52 E". Y. 416 ; Paries 
 V. Morris Ax & Tool Co., 54 K Y. 586 ; Dounce v. Dow, 57 N. Y. 
 16 ; Bates v. Fish Brothers' Wagon Co., 50 App. Div. 38 ; Briggs 
 V. Hilton, 99 E". Y. 517; Fairhanh Canning Co. v. Metzger, 118 
 ]Sr. Y. 260. Where there is an express warranty it is unimportant 
 whether the sale be regarded as execiitory or in prcesenti, for it is 
 now settled that the same rights and remedies attach to an ex- 
 press warranty in an executory as in a present sale. lb. "Where 
 the warranty relates not to the external character of the article 
 
702 SALE. 
 
 sold, but to its intrinsic quality, not the subject of the direct 
 and immediate observation of the senses, the party to whom it is 
 given may rely upon it and recover his damages without return- 
 ing or offering to return the property purchased. Parks v. Morris 
 'Ax & Tool Co., 54 K Y. 586 ; Bounce v. Dow, 57 ]\^. Y. 16 ; Day 
 V. Pool, 52 K Y. 416. 
 
 A warranty may relate to the quality or condition of the article 
 sold or to its character. A representation that will amount to a 
 warranty in one case will in the other. TIawhins v. Pemberton, 
 51 K. Y. 198 ; Dounce v. Dow, 64 N. Y. 411 ; White v. Miller, 
 71 N. Y. 118 ; Van Wyck v. Allen, 69 IS^. Y. 61. The distinction 
 made in some of the older cases are no longer regarded in this 
 State, and it is held that a sale of a chattel by a particular de- 
 scription is a warranty that the article sold is of the kind specified. 
 Ih. 
 
 From the cases already cited it is evident that a warranty may 
 be oral or written, may accompany an executed or executory con- 
 tract, and may relate to the character, quality or condition of the 
 article sold. It is also evident that whether the language used by 
 the vendor was or was not understood and relied upon as a war- 
 ranty of the facts stated is, in case of oral contracts, a question of 
 fact. A few cases will be given in illustration of the general rules. 
 
 In one case the vendor said that the horse sold was not lame, 
 and that he would not be afraid to warrant him sound every way, 
 as far as he knew. The horse subsequently proved lame, but as to 
 the fact whether it was so at the time of the sale, the evidence was 
 contradictory. The justice gave judgment for the plaintiff, which 
 was affirmed by the Supreme Court. Cook v. Moseley, 13 Wend. 
 277. 
 
 In another case, the vendor sold a colt, and during the negotia- 
 tions, the vendee mentioned that the colt looked poor ; when the 
 vendor said, " there is nothing the matter with the colt ; it is well 
 and sound, and will make a fine horse." The colt proved to have 
 been diseased at the time. The court held that the words might 
 amount to a warranty, or be a matter of opinion merely, which 
 was a question for the jury under all the circumstances. Duffee 
 V. Mason, 8 Cow. 25, 26. 
 
 So, where, upon an exchange of horses, the horse of the defend- 
 ant was lame at the time of the exchange, and the plaintiff ex- 
 pressed his apprehensions as to the lameness, and the defendant 
 said he is a sound horse except the scratches, and when he gets 
 
SALE. 703 
 
 ■well of the scratches, he will be well of the lameness; upon this 
 the exchange took place. The horse was cured of the scratches, 
 but the lameness continued, and would be permanent. The jury 
 found that this was a warranty, and the judgment was affirmed, 
 on the ground that the finding of the jury was conclusive. Whit- 
 ney V. Sutton, 10 Wend. 411. 
 
 The question whether words used by a vendor, upon a sale of a 
 horse, in respect to his age amounts to a warranty, is a question 
 of fact for the jury. Rogers v. Ackerman, 22 Barb. 134. Where 
 a broker, on a sale of cotton by sample, assures the purchasers that 
 the samples are fairly and honestly drawn, and that they may 
 depend upon the bales turning out, when opened, equal to the 
 samples, this, if not conclusive evidence of an agreement to war- 
 rant, is enough to go to the jury on that question. Brower v. 
 Lewis, 19 Barb. 574. A distinct assertion of the quality of a 
 chattel, made by the owner during a negotiation for its sale, which 
 it may be supposed was intended to cause the sale, and which was 
 operative in causing it, is sufficient to constitute a warranty, if the 
 jury are satisfied that such was the intention ; this was so held in 
 an action for a breach of warranty of the soundness of oysters, in 
 which the plaintiff said he did not want the oysters if they were 
 not good ; to which the defendant said, " I cut holes in the ice 
 and took them out fresh." Blakeman v. Mackay, 1 Hilt. 266. The 
 plaintiff told the defendant that he would not exchange horses, 
 unless the defendant would warrant his horse to be sound, to which 
 the defendant answered, " he is a sound horse except the bunch 
 on his leg." The plaintiff gave proof tending to show that the 
 horse had the glanders. Verdict and judgment for the plaintiff, 
 and held evidence of a warranty. Boberts v. Morgan, 2 Cow. 438. 
 Upon the sale of goods, which were fancy articles, it was falsely 
 stated by the agent of the owner, that they were French goods, 
 new, and in good order, and just imported from France; it was 
 held, that such representations were not mere puffing ones, nor 
 statements as to the value or condition of the goods which a mere 
 inspection could detect ; but that the averments were material, as 
 the goods were a fancy article depending in a great degree for 
 their value upon the fact that they were French, just imported, 
 and new; and, consequently, fashionable and salable. Holman 
 V. Dord, 12 Barb. 336. In an action on the case on a false war- 
 ranty, it is enough to aver, and to prove, that the warranty was 
 false, and that the purchaser was deceived by it. lb. Where the 
 
704 SALE. 
 
 language employed by the vendor is the mere expression of his 
 opinion in relation to the article sold, and it was so understood 
 by both parties at the time, there will be no warranty. Where 
 personal property is purchased upon a misrepresentation of its 
 value, but such representation is made in good faith, and in an 
 honest belief of its truth, the purchaser must pay a note given 
 by him for its price, he having retained the property bought, al- 
 though it may have been worthless at the time of the purchase. 
 To constitute a defense to an action to recover the contract price 
 of property sold, it is necessary to prove more than that the vendor 
 expressed an erroneous opinion of its value, in which the purchaser 
 chose to confide, instead of exercising his own judgment, ex- 
 clusively, or consulting others more competent to judge than him- 
 self, where the opinion was honestly expressed, and no deceit was 
 practiced to put him off his guard. United States Trust Co. v. 
 Harris, 2 Bosw. 76 ; McCraclcan v. Cholwell, 8 K Y. 133. 
 
 It is not always easy to distinguish the line of demarkation be- 
 tween the cases holding that descriptive words used in a contract 
 of sale constitute a warranty and the cases holding that no con- 
 tract of warranty has been created thereby. In one case a bill of 
 sale delivered to the purchaser of personal property read as fol- 
 lows: " This is to certify that I have this day sold, etc., twenty- 
 four cans containing four hundred and seventy-eight pounds of 
 pure oil of peppermint." This contract was made after the plain- 
 tiff had inspected a part of the property, the whole being present, 
 and found two-thirds of the portion inspected to be impure ; after 
 the weight had been ascertained, part of the purchase money paid 
 down and the property delivered to a third jjerson to be by him 
 delivered absolutely on the payment of the balance of the pur- 
 chase money. The purchaser brought an action against the vendor 
 upon this contract to recover damages for an alleged breach of 
 warranty. It was held that the purchaser had no cause of action 
 and should have been nonsuited on the trial. Hotchkiss v. Gage, 
 26 Barb. 141. Where the purchaser inspects the articles which 
 he purchases, and there is not a clear and express warranty or 
 fraud on the part of the vendor, no action will lie for a defect in 
 the quality of the articles sold. Hotchkiss v. Gage, 26 Barb. 141 ; 
 Deifendorff v. Gage, 7 Barb. 18 ; Zabriskie v. C. V. R. R. Co., 
 131 K Y. 72; Coplay Iron Co. v. Pope, 108 K Y. 232. 
 
 In another case the vendor entered into an executory contract 
 to sell and deliver nine hundred tons of " No. 1 extra foundry 
 
SALE. 705 
 
 pig iron of the Coplay Iron Company make." The vendor was 
 a manufacturer of iron, and the iron contracted to be delivered 
 had not been manufactured at the time of the making of the con- 
 tract. The iron subsequently delivered was not " 'No. 1 extra 
 foundry pig iron." The vendee did not return or offer to return 
 the iron. It was held that the words quoted were descriptive 
 merely of the kind and quality of iron to be delivered under the 
 contract of sale and did not constitute a collateral warranty as 
 to the quality of the iron; and that by not returning or offering 
 to return the iron after knowledge of its defective quality, the 
 vendee had waived the right to claim damages arising out of the 
 failure to deliver the article contracted for by the terms of the 
 contract of sale. Coplay Iron Co. v. Pope, 108 IsT. Y. 232. Al 
 dealer of food prodiicts in France entered into an executory agree- 
 ment to deliver upon the dock in New York, at a future time, 
 three hundred and thirty-three cases of " Talbot extra fine peas, 
 seive 23-24." The goods delivered were not of the quality called 
 for by the contract, but were not returned or offered to be returned 
 by the vendee, although the defective character of the goods was 
 early discovered by him. In an action to recover damages for 
 a breach of warranty it was held that the words quoted did not 
 import a warranty ; that they were merely descriptive of the goods 
 to be delivered under the contract of sale, and did not amount to 
 a warranty ; and that the retention of the goods by the vendee with- 
 out an offer to return them was an assent to the sufficiency of 
 the performance of his contract by the vendor. Waeier v. Talbot^ 
 43 App. Div. 180. 
 
 But where a person purchased at auction an article represented 
 by the auctioneer to be " blue vitriol," and having that appear- 
 ance, in reliance upon the statement of the auctioneer, and with- 
 out opportunity to discover by an examination at the time that 
 the article was not as represented, it was held in an action brought 
 to recover damages for an alleged breach of contract to purchase, 
 that the representations amounted to a warranty or at least re- 
 quired the submission of the question to the jury. Hawkins v. 
 Pemberton, 51 N. Y. 198. In another case the vendor solicited 
 the vendees, who were market gardeners, to purchase cabbage seed 
 of the variety known as " Large Bristol Cabbage," stating that 
 they had raised a quantity of the same kind of seed as that pur- 
 chased by the vendees the previous year which had produced 
 Bristol cabbage. The vendees visited the store of the vendor and 
 45 
 
706 SALE. 
 
 were shown a catalogue of seeds on which was " Large Bristol 
 Cabbage." The vendees ordered a quantity of this seed which 
 was described on the bill as in the catalogue. The seed was raised 
 upon Bristol cabbage stocks, but so near other varieties as to be 
 mixed with them, and to produce in consequence worthless plants. 
 In an action by the vendees to recover the damages alleged to 
 have been sustained by them by reason of a breach of warranty, 
 it was held that there was a warranty that the seed sold was 
 Bristol cabbage seed ; and that there was an implied warranty that 
 the seed was free from any latent defect arising from the mode 
 of cultivation. White v. Miller, 71 IST. Y. 118. And see Passen- 
 ger V. Thorburn, 35 Barb. 17 ; 34 K Y. 634; Van Wych v. Allen, 
 69 K Y. 61. 
 
 A purchaser ordered a quantity of " prime Japan wax," and the 
 vendor delivered an article described in the bill in the same 
 terms, and this was held to be a warranty of quality. Levy v. 
 'American Wax & Paper Mfg. Co., 24 Misc. 204. 
 
 Where an article is known in the market by a particular name 
 and is stated by the vendee at the time of sale to be that article, 
 and is purchased by the vendee in reliance upon such statements 
 without opportunity to examine it, or in a case where an examina- 
 tion would not enable him to discover whether the goods agreed 
 with the representation made, a warranty is implied that the goods 
 are of the kind, character and description represented. Van Wych 
 V. Allen, 69 IST. Y. 61. 
 
 So, also, where the vendee desires an article for a certain pur- 
 pose, and the vendor furnishes an article knowing that the vendee 
 relies upon his furnishing an article complying with such desire, 
 the law implies a warranty that it accords with the desire. Van 
 WycTc V. Allen, 69 'E. Y. 61. Thus, where a person, who raised 
 and harvested wheat, sold it for seed grain, it was held that there 
 was an implied warranty that there was no latent defect known 
 to him arising from the manner of cultivation and storage that 
 would render it unsuitable for that purpose. Prentice v. Fargo, 
 53 App. Div. 608. And, as a general rule, whenever a man sells 
 goods with special reference to a special purpose, the law charges 
 him with representing or warranting that the goods shall be fit for 
 that purpose, and if they are not, holds him responsible for the 
 damages resulting from their unfitness. Newman v. Wilson, 78 
 Hun, 295 ; Jefferson Iron Co. v. Thompson, 20 Week. Dig. 317. 
 Upon a sale of a manufactured article bjjjaajjianufacturer, with 
 knowledge that it is to be used for a particular purpose, there is 
 
SALE. TOT 
 
 an implied warranty on the part of the vendor that the goods are 
 suitable for that specific purpose. American Forcite Powder Mfg. 
 Co. V. Brady, 4 App. Div. 95 ; Kellogg Bridge Co. v. Hamilton^ 
 110 U. S. 108 ; Wait v. Borne, 123 IST. Y. 592, 605. There is also 
 an implied warranty that the article so manufactured and sold shall 
 be merchantable, and free from any latent defects arising from the 
 process of manufacture or the use of defective materials. Bier- 
 man y. City Mills Co., 151 N. Y. 482 ; Hoe v. Sanborn, 21 N. Y. 
 552 ; Carleton v. Lombard, Ayres & Co., 149 IST. Y. 137. But 
 these rules have no application where the seller is not also the 
 manufacturer. Reynolds v. Mayor, Lane & Co., 39 App. Div. 
 218 ; Cafre v. Lockwood, 22 App. Div. 11 ; Bounce v. Dow, 64 
 N. Y. 411 ; Bartlett v. Hoppoch, 34 E". Y. 118 ; American Forcite 
 Powder Mfg. Co. v. Brady, 4 App. Div. 95. 
 
 It is a general rule that a warranty to be binding on the vendor 
 must be made at the time of sale. Wilmot v. Hurd, 11 Wend. 
 584 ; Shull v. Ostrander, 63 Barb. 130. 
 
 A warranty made after that time would be without considera- 
 tion. But, in relation to representations or offers of warranty 
 which have been made during negotiations that occurred some- 
 time before the actual sale, the rule is jiot settled uniformly. I£ 
 negotiations are entered into, and representations are made or a 
 warranty offered, and the parties break off all further negotiations 
 upon the subject, there will not, by the English law, be any war- 
 ranty, if a sale subsequently takes place without any further 
 representations or warranty. 1 Com. Dig. 359, Deceipt A. 11. 
 Hopkins v. Tanqueray, 15 C. B. 130; 2 Carr. & Kir. N. P. 646. 
 In one case in this State, however, it appeared that a vendor 
 offered to warrant a horse sound, during a negotiation, but the 
 sale did not take place at the time, though a few days afterwards 
 the vendee purchased the horse. There was no evidence of any 
 warranty at the time of the sale; but it was held that a verdict 
 in favor of the plaintiff, who stied for a breach of the warranty, 
 was conclusive. Wilmot v. Hurd, 11 Wend. 584. In such a case 
 the jury were, perhaps, authorized to infer, that, in the absence of 
 any. further negotiations between the parties, they intended that 
 the previous negotiations should be considered a part of the trans- 
 action at the time of the sale, and if that were so, a clear warranty 
 was made out. If, however, the jury had found the other way, 
 their verdict would have been equally conclusive. 
 
 In another case the plaintiff and defendant traded horses, the 
 defendant making the usual misrepresentations as to the animal 
 
708 SALE. 
 
 he was trading, amounting to warranties. The trade was re- 
 scinded afterward and the plaintiff returned the horse he had 
 received with the warranty. Afterwards a new bargain was made 
 by which the plaintiff took both horses and gave his note for one 
 hundred dollars. !No representations were made by the defendant 
 at the time of the last sale ; and it was held that the representations 
 made by the defendant in the first transaction did not enter into 
 and form a part of the second. Shull v. Ostrander, 63 Barb. 130. 
 
 In another case goods were purchased with an agreement on the 
 part of the seller that he would warrant them to be as had been 
 represented. Subsequently another lot of goods was ordered 
 '■' same as you sent us. on October 4th ;" and this lot of goods was 
 delivered the 8th of May. Subsequently another lot of goods 
 was ordered, "same as sent on May 8th;" and it was held that 
 the warranty given upon the first sale applied to the goods pur- 
 chased on the last sale. Moore v. King, 57 Hun, 22~L It would 
 not be safe, however, to rely in every case upon the ricochet of the 
 warranty. But it may be regarded as settled that where repre- 
 sentations are made during the negotiations for a sale, although 
 at the hour or during the day upon which such representations are 
 made the bargain is not concluded, yrt, if the person to whom 
 they are made, as a continuation of the negotiation, becomes a 
 purchaser, such representations are still a part of the res gestae 
 and bind the maker of them. Ahem v. Goodspced^ 72 X. Y. 108. 
 
 It is a general rule that a warranty does not extend to those 
 defects which are open and plainly visible at the time of sale. 
 Day V. Pool 52 K Y. 416; Studer v. Bleistein, 115 X. Y. 316; 
 Bennett v. Buclian, 76 IST. Y. 386. And where a negro was sold 
 with a warranty that he was in good health, and in all respects 
 sound, and the bill of sale and warranty were in writing ; it was 
 held that the vendor might show, in an action for a breach of 
 warranty, that the vendor at the time of the sale, pointed out to 
 the vendee the defect in question, which was, that the left arm 
 was thin and crooked and that it was plainly visible, and a verdict 
 in favor of the defendant was sustained. Schuyler v. Russ, 2 
 Caines, 202. The reason why a warranty is not construed to bind 
 the vendor to answer for visible or known defects, is, that both 
 joarties are supposed to intend that such defects shall be excluded 
 from the warranty. But a warranty may be made by express 
 terms to include visible or known defects as well as any others. 
 And, if the vendor expressly warrants that a present lameness of 
 
SALE. 709 
 
 a horse will be cured in a given time, or, that it will not injure 
 him, the warranty is valid, and an action will lie for a breach of it. 
 
 To prevent a recovery for a breach of warranty upon the sale 
 of a horse, on the ground that the defects existed, and were visible 
 at the time of the sale, it must be shown that the defects were 
 such as could be discerned by an ordinary observer examining 
 the property with a view of trading for it or of purchasing it, and 
 were not such as to require skill to detect them. Birdseye v. 
 Frost, 34 Barb. 367. Where, on the trial of such an action in a 
 justice's court, the question whether the defects complained of 
 were visible at the time of the sale or trade, so as to take them, 
 out of the operation of the warranty, is before the jtistice or a 
 jury, and is passed upon by either of them, such finding is con- 
 elusive. Ih. The question whether the defects were visible, and, 
 therefore, not reached by the warranty, is not a question of law 
 merely ; it has been sometimes called a mixed question of law and 
 fact. lb. The question, however, is really one of fact, from 
 which the legal conclusion follows when the facts are settled. 
 If the defects are not visible without skill, etc., then a general 
 warranty includes them ; if they are visible to one not skilled, 
 then tbe warranty does not extend to such defects. 
 
 If a purchaser, at the time of the sale, points out what appears 
 to be a defect in the article which is the subject of sale, and the 
 vendor expressly affirms that such defect does not exist, the pur- 
 chaser may rely upon such statement and recover for any damages 
 he. may sustain if the statement proves untrue. Wilbur v. Cart- 
 right, 44 Barb. 536. And see Chase v. Nichols, 32 St. Kep. 88; 
 9 K Y. Supp. 878. 
 
 To the sale of food for animal or human constmiption, the law 
 annexes an implied warranty that the food is not in an unwhole- 
 some condition and unfit to be eaten. Jeffrey v. Bigelow, 13 
 "Wend. 518 ; Van Brachlin v. Fonda, 12 Johns. 468 ; Divine v. 
 McCormick, 50 Barb. 116 ; Moses v. Mead, 1 Denio, 378 ; 5 id. 
 617. And see Fairbanh Canning Co. v. Metzger, 118 N. Y. 260 ; 
 Rothmiller v. Stein, 143 IST. Y. 581, 592. In such cases the rule 
 of caveat emptor cannot be applied. lb. And it has been held 
 that the policy of the law requires that only articles that are 
 sound, wholesome and fit for use shall be knowingly sold for food, 
 and that in accordance with such policy the law implies a war- 
 ranty in all cases of executed contract of sale of articles of food, 
 that the same are sound, wholesome and fit for use as such, where 
 the vendor has personal knowledge of the quality and condition of 
 
710 SALE. 
 
 the articles sold, and the purchaser has not such knowledge, and 
 the vendor also knows that the party purchasing intends to use the 
 articles for food, or to sell them to others to be used for the same 
 purpose. Burch v. Spencer, 15 Hun, 504. One who sells the 
 meat of a boar to one engaged in the business of buying and 
 packing meat and pork to be sold at wholesale and retail and used 
 as food, impliedly warrants that the hog is fit to be used as food. 
 Ih. So where a bull is sold as an article of food for domestic 
 use, the law implies a warranty that it is fit for that purpose. 
 Money v. Fisher, 92 Him, 347. But it has been held that where 
 provisions are sold as merchandise, and not for immediate con- 
 sumption by the purchaser, there is no implied warranty of their 
 soundness (Moses v. Mead, 5 Denio, GlT) ; and that where meat 
 is sold again, and the seller is unaware of any latent defect and 
 makes no representations as to quality, giving the buyer an oppor- 
 tunity to inspect it, there is no implied warranty that the meat 
 is sound, and the maxim of caveat emptor applies. Rinschler v. 
 Jeliffe, 9 Daly, 469. And see Hyland v. Sherman, 2 E. D. Smith, 
 234. 
 
 An implied warranty may attach to a written as well as to an 
 unwritten contract of sale. Carleton v. Lombard, Ayres & Co., 
 149 IT. Y. 137. The parties may so contract with each other as to 
 eliminate this obligation from the transaction entirely. The seller 
 may, by express and tmequivocal words, exclude it, and in like 
 manner the buyer may waive it. So where the thing sold is some- 
 thing to be manufactured, the parties may provide for an in- 
 spection of the article when made, which will operate to extinguish 
 the liability upon acceptance. It). ; McParlin v. Boynton, 8 Him, 
 449 ; 71 N. Y. 604. Where the vendor has given an express war- 
 Tanty of the existence of some particular quality in the goods sold, 
 there can be no warranty implied of the existence of some other 
 quality. Carleton v. Lombard, Ayres & Co., 149 IST. Y. 601. 
 Where an express warranty is given, and there is a breach, the 
 right of action to recover damages arising from the breach will 
 survive the retention of the article warranted by the purchaser 
 ■without a return or offer to return. Hooper v. Story, 155 N. Y. 
 171 ; Brigg v. Rilion, 99 K Y. 511 ; Bay v. Bool, 52 IST. Y. 416 ; 
 Bates V. Fish Brothers' Wagon Co., 50 App. Div. 38. Upon an 
 executory sale of goods by sample, with warranty that the goods 
 shall correspond with the sample, the vendee is not precluded from 
 claiming and recovering damages for breach of warranty, although 
 lie has accepted the goods after an opportunity for inspection. 
 
SALE. Til 
 
 Kent V. Friedman, 101 N. Y. 616; Brigg v. Hilton, 99 K Y. 
 617 Ourney v. Atlantic & Great Western B. Co., 58 N. Y. 358 ; 
 Zabriskie v. C. V. B. B. Co., 131 N. Y. T2. A contract of sale 
 of goods whicli points out a known and ascertainable standard 
 by which to judge the quality of the goods sold, is, for all practical 
 purposes, a sale by sample. Ih. While an express warranty sur- 
 vives an acceptance of the goods sold, an implied warranty does 
 not except in case the defects are latent. Oshorn v. American 
 Ink Co., 29 Misc. 648. An implied warranty on an executory 
 ■contract of sale survives acceptance where the defects are latent 
 and not discoverable on ordinary inspection. lb.; Bierman v. 
 City Mills Co., 151 IsT. Y. 482; League Cycle Co. v. Abrahams, 
 27 Misc. 548. But an acceptance by the vendee of personal prop- 
 erty manufactured under an executory contract of sale, after a 
 full and fair opportunity of inspection, in the absence of fraud, 
 €stops him from thereafter raising any objection as to visible 
 defects and imperfections, whether discovered or not, unless such 
 delivery and acceptance is accompanied by some warranty of 
 quality manifestly intended to survive acceptance. Studer v. Blei- 
 Mein, 115 K Y. 316. 
 
 To sustain an action upon a warranty, it is not necessary that 
 all the representations made by the defendant should be false, or 
 that all should be actionable. If any part of the representations 
 are actionable, it will sufBce. Sweet v. Bradley, 24 Barb. 549. 
 - Where a partner, upon selling promissory notes belonging to the 
 firm, and which were sold for their benefit, stated to the pur- 
 chaser that he would warrant them to be good notes, and that 
 they would be paid; that they were given for a valuable con- 
 sideration, and were regular business paper ; that the makers were 
 responsible, and worth $40,000 or $50,000, and that the indorser 
 was worth $25,000; which representations were false, and the 
 makers insolvent; it was held, that the firm was bound by the 
 representations made by the partner on selling the notes ; and that 
 iin action would lie against all the members of the firm, upon the 
 warranty. lb. A positive affirmation of a fact is a sufficient 
 warranty., And an affirmation in regard to an existing fact, which 
 is distinctly and positively made, in negotiations for a trade or 
 sale, should be regarded as a contract, and enforced as a war- 
 ranty, lb.; Carley v. WilMns, 6 Barb. 557; Whitney v. Sutton, 
 10 Wend. 411; Sogers v. Acherman, 22 Barb. 134; Chapman v. 
 Murch, 19 Johns. 290. 
 
Y12 SALE. 
 
 " The general rule is well uiiderstood, that in the sale of any 
 article of merchandise, a warranty cannot be implied of the good- 
 ness of the article, from the fact that a sound price has been paid 
 or agreed to be paid ; and that redress cannot be had, although 
 the article sold is not a salable, merchantable article, unless there 
 be a warranty of its soundness or quality, or unless the vendor 
 has been guilty of a fraud in the sale. In such sales, the pur- 
 chaser can always protect himself by demanding a warranty; if 
 that be not required, and there be no fraud on the part of the 
 vendor, the purchaser buys at his own risk, his judgment is his 
 only warrantor, and he has no right to call on the vendor for any 
 damages he may have sustained, by the article being different or 
 of an inferior quality from what he expected he was purchasing.'" 
 Per ]\1aison, senator, in Wright v. Hart, 18 Wend. 455. And see 
 Holden v. Dahin, 4 Johns. 421; Swett v. Colgate, 20 Johns. 196; 
 Seixas v. Woods, 2 Caines, 48. No custom or usage is admissible 
 to show that the sale of any particular article implies a warranty 
 of the goodness of that article ; because no custom can be admitted 
 to control the general rules of law. Thompson v. Ashton, 14 
 Johns. 31G; approved, Beirne v. Dord, 5 JST. Y. 102; Wheeler v. 
 Newhould, 16 N. Y. 393 ; Dalton v. Daniels, 2 Hilt. 472. Nor 
 is evidence of custom or usage admissible to contradict, modify, 
 or affect an express agreement between the parties. lb. 
 
 But it has been held that where a custom is shown to exist m 
 a particular trade or business, persons engaged in that business 
 are presumed to contract with reference to the custom, unless it 
 is otherwise expressly agreed. Dalton v. Daniels, 2 Hilt. 472 ; 
 Hinton v. Locke, 5 Hill, 437 ; Allen v. Merchants' Bank, 22 
 Wend. 215. The subject of customs and usages will be explained 
 elsewhere. No maxim of the law is more firmly established or 
 more frequently applied in relation to the law of sales than that 
 of " caveat emptor." The meaning of this maxim ia, that in all 
 executed sales, or in sales of property which the vendor has on 
 hand at the time of making the contract of sale, the purchaser 
 must examine the quality of the thing sold, or that he must take 
 the article at his o^vn risk as to its quality, if there is neither an 
 express warranty or fraud on the part of the vendor. Wright v. 
 Hart, 18 Wend. 449, 455 ; United States Trust Co. v. Harris, 2 
 Bosw. 76 ; Hotchkiss v. Gage, 26 Barb. 141. 
 
 Where casks are sold by one who buys and sells them as an 
 article of merchandise, without fraud or express warranty, the 
 loss, if they prove leaky, falls upon the purchaser. Van Riper v.. 
 
SALE. 713 
 
 Acherman, 3 E. D. Smith, 58. So, where a drover brings cattle 
 to market and sells them to a butcher to be slaughtered, but with- 
 out fraud or an express warranty, the drover will not be liable 
 to an action because the cattle were bruised in the cars on their 
 way to market. Ooldrich v. Ryan, 3 E. D. Sinith, 324. So, where 
 kelp was sold as barilla, and both vendor and vendee supposed 
 that it was barilla, and the vendee examined a sample of it at 
 the time of the sale, and he purchased the article as barilla, but 
 without fraud or express warranty on the part of the vendor, and 
 it was held that the vendee must bear the lose although the article 
 turned out to be kelp, and or far less value than barilla for the 
 purpose for which Is was purchased. Swett v. Colgate, 20 Johns. 
 196. 
 
 Where the vendor sold white lead as a good article, and for a 
 full price, but the kegs had never been opened since their pur- 
 chase in New York, and there was no fraud or express warranty, 
 it was held that the vendor was not liable to an action at the suit 
 of the vendee. Holden v. Dakin, 4 Johns. 421. So, where a 
 wagon was sold, and the vendor affirmed that it was worth fifty 
 dollars, and that he had been offered that sum for it, but the wagon 
 was not worth over twenty-five dollars, and there was no warranty 
 nor proof of fraud, the court said : " The plaintiff below pur- 
 chased the wagon on sight, and the assertion of the defendant that 
 it was worth more than its real value, furnishes no ground of 
 action." Davis v. Meeker, 5 Johns. 354. 
 
 So, where stocks are sold, there is no implied warranty as to 
 their value. Ounningham v. Spier, 13 Johns. 393 ; United States 
 Trust Co. V. Harris, 2 Bosw. 76. One exception to the rule 
 " caveat emptor," is when the sale is made by sample. 
 
 On a sale by sample, the law implies a warranty that the bulk 
 of the article sold is of the same kind and of equal quality with 
 the sample in reference to which the parties contracted. " When 
 a contract for the sale of goods is made by sample, it amounts to 
 an undertaking, on the part of the seller with the purchaser, that 
 all the goods are similar both in nature and quality to those ex- 
 hibited, and if they be not, the purchaser may either rescind the 
 contract by returning the goods in a proper time, or keep them 
 and recover damages for a breach of such warranty." Per 
 Jewett, J., in Beime v. Dord, 5 N". T. 98, 99. 
 
 " But the mere circumstance that the seller exhibits a sample 
 at the time of the sale will not of itself make a sale by sample, 
 so as to subject the seller to liability on an implied warranty as 
 
V14 SALE. 
 
 to the nature and quality of the goods, because it may be ex- 
 hibited, not as a warranty that the bulk corresponds to it, but 
 merely to enable the purchaser to form a judgment on its kind 
 or quality. If the contract be connected by the circumstances 
 attending the sale with the sample, and refer to it, and it be 
 exhibited as the inducement to the contract, it may be a sale by 
 sample, and then the consequence follows that the seller warrants 
 the bulk of the goods to correspond with the specimen exhibited 
 as a sample. Whether a sale be a sale by sample or not, ia a 
 question of fact for the jury to find from the evidence in each 
 ease, and to authorize a jury to find such a ,contract, the evidence 
 must satisfactorily show that the parties contracted solely in 
 reference to the sample exhibited. That they mutually under- 
 stood that they were dealing with the sample as an agreement or 
 understanding that the bulk of the commodity corresponded with 
 it, or, in other words^ the evidence must be such as to authorize 
 the jury, under all the circumstances of the case, to find that the 
 sale was intended by the parties as a sale by sample." lb. Stee 
 also Ames v. Jones, 77 IST. Y. 614; Jacobs v. Day, 55 St. Rep. 
 386 ; 25 N. Y. Supp. 763. 
 
 The plaintiff, a merchant in New York, received an order from 
 Mexico for a quantity of cotton sheeting, having over thirty 
 threads to the Mexican quarter of a square inch. By the Mexican 
 revenue laws the importation of goods of less fineness was pro- 
 hibited. The plaintiff employed a broker to make the purchase, 
 who procured samples from the defendant, only one of which was 
 found to be of the requisite fineness. The broker ordered the 
 desired quantity of the goods of the quality of the approved 
 sample. The defendant had only about half of the desired quan- 
 tity, but he agreed to procure from Boston and deliver the residue 
 in a short time, which he did. The whole was delivered, in bales, 
 at a packing-house, at the plaintiff's request, where the bales were 
 opened and the cloths repacked in larger bales, and forwarded 
 to Mexico. On their arrival there, they were found to average 
 only twenty-eight to twenty-nine threads to the quarter inch, and 
 they were condemned and sold by the custom-house offieers. The 
 defendant was not notified that the goods were designed for the 
 Mexican market, or what were the revenue laws there, or that 
 goods having over thirty threads to the quarter inch were re- 
 quired. He had no glass to count the threads, which could not 
 be counted without a glass. It was not unusiial for goods of this 
 kind, of the same general quality, to vary one or two threads to 
 
SALE. 715 
 
 the quarter of an inch. In an action to recover damages for the 
 loss of the goods, alleging that there was a warranty that the 
 goods delivered were of the same fineness as the sample, that they 
 were of a quality which could be imported into Mexico, that they 
 had over thirty threads to the Mexican quarter of an inch, etc., 
 it was held that there was no evidence of such a warranty; and 
 that the plaintiff was rightfully nonsuited; and that something 
 beyond the mere exhibition of a sample is requisite to create a 
 warranty that the bulk of the goods is of the same quality as the 
 sample. Hargous v. Stone, 5 IST. Y. 73. It was also held, that, 
 as to the goods procured from Boston, if the contract was to be 
 regarded as an executory one to furnish goods of a particular de- 
 scription, the purchaser was bound to examine them when the bales 
 were received and opened to be repacked, and to have returned 
 them if the quality was not such as was promised ; that not having 
 done so, he waived all objection on account of defects of quality, 
 which would have appeared on such examination. lb. 
 
 Where blankets in bales were sold imopened, samples only 
 being seen and examined by the purchaser, it was held that evi- 
 dence of a custom among dealers in blankets to sell in that man- 
 ner, and to make compensation to the purchaser in case the 
 blankets, on such bales being opened, proved defective or inferior 
 to the samples, where such evidence was clearly insufficient to 
 establish a general commercial usage, was not proper to be sub- 
 mitted to the jury as bearing upon the question whether there 
 was a warranty of the quality or soundness of the blankets on 
 such sale. Beime r. Dord, 5 N. Y. 95. That a personal examina- 
 tion of the bulk of the goods by the purchaser at the time of the 
 sale is not practicable or convenient, furnishes of itself no sufii- 
 cient ground to say that the sale is by sample, it is only a fact 
 bearing upon the character of the sale. Ih. And see the remarks 
 of Jewbtt, J., in the same case, and quoted, ante, p. 713. 
 
 In a sale of hemp, put up in bales, there is no implied warranty 
 that the interior shall correspond in quality with the exterior of 
 the bales, and if there be fraud, the vendor is not liable, unless 
 it be shown that he was privy to it. Salisbury v. Stainer, 19 
 Wend. 159. Where the purchaser opens and examines one of 
 several bales, and is at liberty to open others, but omits to do so, 
 and the quality of the hemp in the bales not examined does not 
 correspond with that opened, he is not permitted to allege that 
 the sale was by sample, nor to contend that he is entitled to re- 
 cover damages as upon an implied warranty. lb. See also 
 
,716 SALE. 
 
 Waring v. Mason, IS Wend. 425 ; Boorman v. Jenkins, 12 Wend, 
 566; Beehe v. Robert, 12 Wend. 413; Sands v. Taylor, 5 Johns. 
 395, which were held to be sales by sample under the circum- 
 stances of the case. 
 
 The decisions in Hargous v. Stone, and Beirne v. Dord, cited 
 ante, p. 715, have settled the law that the mere exhibition of a 
 sample by the seller of goods at the time of the. sale, is not suffi- 
 cient to create a warranty that the bulk of the goods corresponds 
 in quality and soundness with the sample. Hence, if upon the 
 trial of an action to recover damages for the breach of a warranty 
 in the sale of goods, nothing more is proved than the exhibition 
 of a sample at the time of the sale, it is the duty of the court to 
 dismiss the complaint. Beirne v. Dord, 4 Duer, 69. If upon 
 such evidence, and no other, the question whether a warranty was 
 intended by the parties should be left to a jury, a verdict in favor 
 of the plaintiff would be set aside as contrary to law. Ih. It 
 seem.s that the question whether a warranty was intended by the 
 parties, depends in all cases upon the facts that occurred at the 
 time of the sale, and upon those alone. Ih. Where damaged 
 cotton is sold by sample, the sample should be a fair specimen of 
 the whole; of the bad as well as of the good; and if the seller 
 warrants that the whole corresponds with the sample, he is liable 
 in case it turns out to be different, although it was sold as a 
 damaged article. Brower v. Lewis, 19 Barb. 574. And see ante, 
 p. 713, same cases cited upon another point. Executory contracts 
 of sale do not depend upon the same principles as executed con- 
 tracts of sale. 
 
 " Where a contract is executory, that is, to deliver an article not 
 defined at the time, on a future day, whether the vendor has at 
 the time an article of the kind on hand, or it is afterwards to be 
 procured or manufactured, the contract carries with it an obliga- 
 tion that the article shall be merchantable, or at least of medium 
 quality or goodness. If it comes short of this, the vendee may 
 rescind the contract and return the article after he has had a 
 reasonable time to inspect it. He is not bound to receive or pay 
 for it, because it is not the thing he agreed to purchase." Per 
 Paige, J., Hargous v. Stone, 5 IST. Y. 86. 
 
 Where ale is to be brewed and delivered on a future day, there 
 is an implied warranty that the article shall be of merchantable 
 quality; and if it is not of a medium quality or goodness the 
 vendee may return it after a reasonable time to inspect it, and it 
 is sufficient to entirely defeat the sale, if there be a notice by the 
 
SALE. 717 
 
 vendee to the vendor to take it back, where such notice assigns 
 the true ground. Howard v. Hoey, 23 Wend. 350. 
 
 Where property is sold " with all faults," or " just as it stands," 
 or in any other language which indicates that the purchaser takes 
 all risks, this will absolve the vendor from liability, in all cases of 
 executed sales, provided there was no fraud on his part. Bagle- 
 hole V. Walters, 3 Camp. 154; Pickering v. Dowson, 4 Taunt. 
 779. But, if the vendor does any act to conceal defects in the 
 property, or says or does anything to mislead the purchaser, so 
 that he in any manner relies upon what is said or done by such 
 vendor, or, where such vendor has been guilty of an active or 
 affirmative concealment of defects, then such vendee may recover 
 damages for the fraud practiced. 76. 
 
 The possession of chattels by a vendor, is equivalent to an 
 affirmation that he has title. And in such a casic the vendor is to 
 be held to an implied warranty of title, though nothing be said 
 on the subject between the parties. McCoy v. Artcher, 3 Barb. 
 323 ; Burt v. Deiuey, 40 K". Y. 283 ; McGiffin v. Baird, 62 N. Y. 
 329; Sweeiman v. Prince, 26 iST. Y. 224; Scranton v. Clark, 39 
 Barb. 273 ; Forgotston v. Cragin, 62 App. Div. 243. 
 
 But, if the property sold be at the time of the sale, in the pos- 
 session of a third person, and there be no affirmation, or assertion 
 of o-^vnership, no warranty of title will be implied. McCoy v. 
 Artcher, 3 Barb. 323. 
 
 The possession of the property by the vendor is the foundation 
 of the rule implying a warranty of title. Scranton v. Clark, 39 
 Barb. 273. If, however, there be an affirmation of title where the 
 vendor is not in possession, the vendor should be subjected to the 
 same liability as if he had the possession of the property. McCoy 
 V. Artcher, 3 Barb. 323. 
 
 T^Hiere the vendor sold a horse as executrix in her own wrong, 
 and the administrators of the estate recovered the value of the horse 
 from the vendee ; and before that trial the vendor was notified to 
 come forward and defend the action, which was not done, it was 
 held that such vendor was liable upon an implied warranty of 
 title. Defreeze v. Trumper, 1 Johns. 274. Under the rule of law 
 that in every sale of personal property, there is an implied war- 
 ranty by the vendor, of title in himself, and that he has a right 
 to sell, the warranty extends also to a prior lien or incumbrance. 
 Dresser v. Ainsworth, 9 Barb. 619. The essience of the contract 
 of warranty, in such cases is, that the vendor has a perfect title 
 to the goods sold ; that the same are unincumbered, and that the 
 
718 SALE. 
 
 purchaser will acquire by the purchase, a title free and clear, and 
 shall enjoy the possession without disturbance by means of any- 
 thing done or suffered by the vendor. lb. It is, therefore, imma- 
 terial, whether the purchaser, at the time of his purchase, knew 
 of a previous levy upon the goods by the sheriff. He has a right 
 to rely upon the implied warranty; and if he is evicted by a sale 
 of the goods under a previous execution, he has a right of action 
 against the vendor. lb. 
 
 One who transfers a chose in action impliedly warrants, at the 
 least, that there is no legal defense to its collection arising out 
 of his own connection with its origin. Delaware Bank v. Jarvis, 
 20 j^. Y. 226. The party accepting the transfer is at liberty 
 to act upon the implied assertion of the validity of the paper, 
 and to bring an action for its collection. When defeated, he is 
 entitled to recover from the assignor the costs incurred in such 
 action. lb. The holder of a note, which had a usurious incep- 
 tion in his hands, transferred it without indorsement and without 
 notice of the facts to the plaintiff. And the latter brought an 
 action upon the note, to which the defense of usury was success- 
 fully interposed. 
 
 The defendant had notice of the plea, and was called upon to 
 assume the conduct of the action, but he declined to do so, though 
 denying that there was any legal defense; it was held that the 
 plaintiff was entitled to recover the amount of the note, with in- 
 terest, besides the costs of the action in the suit in which the 
 defense of usury was interposed. Ih. ; Fake v. Smith, 1 Abb. N. 
 S. 106. But this rule would not apply where the vendor of the 
 note had no part in the usurious transaction and had no knowl- 
 edge at the time of the transfer of the defect. Littauer v. Gold- 
 man, 72 K Y. 506. 
 
 Every person negotiating a negotiable instrument by delivery 
 or by a qiialified indorsement, warrants that the instrument is 
 genuine and in all respects what it purports to be; that he has a 
 good title to it ; that all the prior parties had capacity to contract ; 
 and that he has no knowledge of any fact which would impair the 
 validity of the instrument or render it valueless. If the negotia- 
 tion is by delivery only, the warranty extends in favor of nO' 
 holder other than the immediate transferee. Laws of 1897, ch. 
 612, § 115. And, it seems, that on the purchase of notes, appear- 
 ing on their face to be valid and uncancelled obligations, but which 
 in fact have been paid, or the indorsers discharged to the knowl- 
 edge of the vendor, a cause of action arises in favor of the vendee,, 
 
SALE. 719 
 
 who purchased without notice, against the vendor, based upon 
 an implied warranty that the notes were valid obligations. 
 Mandeville v. Newton, 119 N. Y. 10. And see Ross v. Terry, 
 63 ISr. Y. 613. 
 
 In a general sale of personal property, where there is no ex- 
 press warranty, and the article is not to be manufactured or raised 
 by the vendor, and the contract is not an executory one to furnish a 
 particular article; the general rule is, that there is no implied 
 warranty of the kind or quality of the article sold. Ante, p. 712. 
 And see Carley v. Wilkins, 6 Barb. 558 ; Deifendorff v. Qage, 7 
 Barb. 18. 
 
 Where goods are sold in close packages, and there is a mutual 
 mistake as to the quantity, the vendee is entitled to recover from 
 the vendor for any deficiency, at the rate at which they were pur- 
 chased. But he cannot recover remote damages resulting from 
 the quantity being so deficient. Hargous v. Ahlon, 3 Denio, 406. 
 Therefore, where cloth was purchased in New York, for the Mexi- 
 can market, the vendor knowing their destination, and the vendee 
 shipped them to a Mexican port where they were entered at the 
 custom house, according to the invoice by which they were pur- 
 chased, which, by a mutual mistake, represented the number of 
 yards to be considerably greater than the actual quantity, and 
 the vendee was by this means obliged to pay duties and commis- 
 sions on the quantity deficient ; it was held that the vendee could 
 not recover this excess from the vendor. lb.; 8. C, 5 Hill, 472. 
 
 Where the vendee sends an order for a particular quantity of 
 goods, he will not be bound to accept those sent, if they differ in 
 number or quantity from that specified in the order. Corning v. 
 Colt, 5 Wend. 253; Bruce v. Pearson, 5 Johns. 534; Downer v. 
 Thompson, 2 Hill, 137; 8. C, 6 Hill, 208. When there is an 
 express contract as to the quantity which is sold, the vendor has 
 no right to send any more or any less than the terms of the con- 
 tract authorize. And where there is no express contract, but the 
 vendee sends an order for a particular quantity of goods which is 
 specified in the order, the vendor is bound to send the quantity 
 specified, and if he sends more (Downer v. Thompson, 6 Hill, 
 208) ; or less (Bruce v. Pearson, 3 Johns. 534) ; the vendee will 
 not be bound to accept them ; and if the goods are lost before they 
 are accepted by the vendee, the loss will not fall on the vendor. 
 lb. The vendee may accept the quantity sent, and if he does so, 
 he will be liable to pay for them. Corning v. Colt, 5 Wend. 253. 
 
 Want of title in the vendor of personal property is no defense 
 
720 SALE. 
 
 to an action brought for the recovery of the purchase money, where 
 there has been no recovery by the real owner against the purchaser 
 (Case V. Hall, 24 Wend. 102; Delaware Bank v. Jarvis, 20 K 
 Y. 230), no return of property to the vendor, and no payment for 
 the property to the claimant. McGiffin v. Baird, 62 IST. Y. 329. 
 If, however, the title is taken from the purchaser by title para- 
 mount, or if the purchaser is compelled to pay to the true owner 
 the value of the property, in either case it is a defense to an 
 action for the purchase money. So if the vendee returns the prop- 
 erty upon discovering the defect of title, he may have an action 
 upon the implied warranty or a defense to an action for the pur- 
 chase price, in which ease he assumes the burden of proving title 
 in a third person. Ih. And it seems that a vendee of chattels 
 may voluntarily yield possession to a claimant, and recover against 
 the vendor on the implied warranty of title upon showing that the 
 claimant had title paramount. Burt v. Dewey, 40 IST. Y. 283 ; 
 Sweetman v. Prince, 26 IST. Y. 224. 
 
 A purchaser with knowledge that the goods are claimed by a 
 third person, who voluntarily pays the price of the goods to such 
 third person, cannot afterwards, in a suit brotight by the vendor 
 against him for the price, set up the want of title in the vendor, 
 and that he has paid the price to the true owner as a defense. 
 Vibbard v. Johnson, 19 Johns. 7Y. Where a suit is brought by 
 the true owner against the vendee of personal property, and the 
 vendor has notice of the action and is requested to defend it, 
 which he neglects or refuses to do, a recovery by such owner against 
 the vendee will be a conclusive bar to a right of action by the 
 vendor to recover the purchase price ; or it will be conclusive evi- 
 dence in favor of the vendee to recover back the purchase money 
 from the vendor. Barney v. Dewey, 13 Johns. 224; Blasdale v. 
 BabcocJc, 1 Johns. 517. Where the services of a negro (whose 
 services it was supposed might be disposed of) were sold for a 
 term of five years, and he left the employment of his master, as- 
 serting his freedom, and it appeared that he was in fact free at 
 the time of the sale ; it was held in an action by the vendor against 
 the vendee to recover the sum agreed to be paid for his services, 
 that the consideration of the promise was illegal, and in analogy 
 to the rule of law applicable to the sale of chattels, that the as- 
 sertion of freedom in this case was equivalent to the legal eviction 
 of a vendee, on the claim of the true owner. Livingston v. Bain, 
 10 Wend. 384. 
 
SALE. 721 
 
 A vendor of personal property, who has notice of a suit against 
 his vendee in respect to the property sold, is as much bound to 
 indemnify his vendee as if he had entered into an express cove- 
 nant for that purpose. Brewster v. Countryman, 12 Wend. 446. 
 A purchaser who defends a suit in a justice's court against a 
 claim made upon the property sold to him, is not bound to carry 
 up the cause by appeal, if the judgment passes against him. Ih. 
 Where the vendor is a witness in a suit between a third person 
 and the vendee in relation to the title to the property, that is 
 sufficient notice to such vendor to defend the action. Brewster v. 
 Countryman, 12 Wend. 450 ; Barney v. Dewey, 13 Johns. 224 ; 
 Blasdale v. Babcock, 1 Johns. 517. 
 
 Where goods were sold by an auctioneer, without any warranty 
 or misrepresentation, and the same turned out to be spuriotis, 
 and the labels upon them counterfeit, it was held that it was no 
 defense to an action upon a note given by the purchasers for the 
 purchase price, there being no proof that the auctioneer knew 
 the fact of the spurious nature of the goods, or that he had any 
 better means of judging their genuineness than the buyer pos- 
 sessed. Rudderow v. Huntington, 3 Sandf. 252. 
 
 Where a horse is sold by a written bill of sale, containing a 
 warranty as to soundness, the writing merges all cotemporaneous 
 parol agreements, such as an agreement that the seller will take 
 back the horse and refund the money within a specified time, and 
 the purchaser is limited, in his recovery for any defects warranted 
 against, to such damages as arise from a breach of the written 
 warranty Fales v. McKeon, 2 Hilt. 53. The rule invoked in 
 this and similar cases means that where the parties to a contract 
 of sale have expressed in words the warranty by which they in- 
 tend to be bound, no further warranty will be implied by law, but 
 that expressed will include the whole obligation of the seller. 
 This principle applies to sales of specific existing chattels, and 
 not ordinarily to sales of goods to be made or supplied upon the 
 order of the buyer. The obligation attached to an executory con- 
 tract for the sale of goods by the manufacturer or maker, cannot 
 be changed by the mere fact that the contract has been reduced 
 to writing. The existence of an implied warranty is not neces- 
 sarily denied by the fact that the contract of sale is in writing. 
 Carleton v. Lombard, Ayres & Co., 149 N. Y. 137. Where a 
 party on the sale of an article makes representations amounting 
 to a warranty, and the sale is consummated by a written transfer 
 46 
 
722 SALE. 
 
 without a clause of warranty inserted, the vendee, in an action 
 for a breach of such alleged warranty, will not be permitted to 
 show the representations and assertions which were made previous 
 to the execution of the instrument of transfer, the presumption of 
 law being that the writing contains the whole contract. Van 
 Ostrand v. Reed, 1 Wend. 424. So, where the contract is required 
 to be in writing, by the statute of frauds, any warranty which is 
 relied upon miist be stated in the memorandum, and parol evidence 
 of a warranty not contained in the writing is not admissible. 
 Peltier v. Collins, 3 Wend. 459 ; Mumford v. McPherson, 1 Johns. 
 414; Wilson v. Marsh, id. 503. But where, upon the sale and 
 purchase of a horse, a bill of sale was executed by the vendor, 
 specifying the price and acknowledging its receipt, it was held 
 that the instrument was to be construed as a mere receipt for the 
 purchase money, and not as a contract, whose written terms could 
 not be varied by parol; and that parol evidence of a verbal war- 
 ranty was therefore admissible. FilJcins v. Whyland, 24 Barb. 
 379; 8. C, 24 ¥. Y. 338. And where a written warranty of 
 property was given, it was held that parol evidence was admissible 
 to show that the vendor informed the vendee of certain visible 
 defects, and pointed them out to him at the time of the sale. 
 Schuyler v. Buss, 2 Caines, 202. 
 
 § 15. Stoppage in Transitu. 
 
 When a vendor has sold goods on credit, and he learns that the 
 vendee is insolvent, such vendor may stop such goods in their 
 transit, and resume their possession at any time while they are 
 in the hands of a carrier or middleman, and before they reach 
 the possession of the vendee. 
 
 The origin of this right, and the principles upon which it is 
 founded, seem to be to this day undetermined, although the right 
 itself has been recognized for nearly or quite two hundred years. 
 In this State, it seems to be regarded as an extension of the ven- 
 dor's lien for the purchase money. When the vendor retakes the 
 property in the exercise of this right of stoppage, he is not rein- 
 vested with the title, but simply placed in actual possession of 
 the goods, holding them as security for the purchase price. Gross 
 V. O'Donnell, 44 K Y. 661, 665, 666 ; Babcoch v. Bonnell, 80 IST. 
 Y. 244, 249. But the right is something more than a lien. In 
 the absence of an express power the lienor usually cannot transfer 
 the title to the property on which the lien exists \)j a sale of it to 
 
SALE. Y23 
 
 one having notice of the extent of his right, but must proceed by 
 foreclosure. When a vendor rightfully stops goods in transitu, or 
 retains them before transitus has begun, he can, by a sale made on 
 notice to the vendee, vest a purchaser with a good title. Dustan v. 
 McAndrew, 44 N. Y. 72 ; Tuthill v. Shidmore, 124 N. Y. 148, 154. 
 
 This right exists betvpeen vendor and vendee only, or between 
 parties who stand substantially in that relation. And, therefore, 
 a mere surety of the vendee, where he is not primarily liable for 
 the purchase price, cannot stop the goods in transitu to secure 
 himself, although the vendee is insolvent. Siffken v. Wray, 6 
 East, 371. The right is not, however, confined strictly to the 
 vendor. See Muller v. Fondir, 55 IST. Y. 325. The right may 
 be exercised by one who pays the price of goods for the vendee 
 and takes from him an assignment of the bill of lading as se- 
 curity for his advances. Gossler v. Schepler, 5 Daly, 476. And 
 the right has been sustained in behalf of a mere factor or purchas- 
 ing agent, not only as to his advances but also as to his commis- 
 sions. Feise v. Wray, 3 East, 93 ; Newhall v. Vargas, 13 Me. 103. 
 
 One of the chief difiiculties which arises in practice is to 
 determine when the right to stop the goods ceases. If they have 
 reached the actual possession of the vendee before the right is exer- 
 cised, it will then be too late for the vendor to reclaim them. 
 
 If a vendor delivers to his vendee a bill of parcels for goods 
 lying in a public warehouse, together with an order for their de- 
 livery, and the vendee goes to the warehouse, produces the order, 
 has the goods marked with his initials, pays the storage upon 
 them, and then returns them into the warehouse, the vendor's 
 right of stoppage in transitu is gone. H oiling sworth v. Napier, 8 
 Gaines, 182. 
 
 The vendor's right of stoppage in transitu does not cease on 
 the arrival of the goods at the port of delivery, until they have 
 come to the vendee's actual possession, or his constructive posses- 
 sion by a delivery to his agent. Mottram v. Heyer, 5 Denio, 629 ; 
 8. C.J, 1 Denio, 483. A vendor's right is not terminated by the 
 goods coming to the hands of a shipping agent appointed by the 
 vendee, though they are delivered to him to await further direc- 
 tions, in respect to the time and mode of shipment to the vendee, 
 at an ultimate destination previously fixed, and not to be affected 
 by such subsequent directions. The transit continues until the 
 goods come to the possession of the vendee or of some agent au- 
 thorized to act in respect to the disposition of them otherwise than 
 
72i SALE. 
 
 by forwarding them to the vendee. Harris v. Pratt, 17 1^. Y. 249 ; 
 8. C, 6 Duer, 606. An assignee in trust for creditors of the in- 
 solvent vendee is not a purchaser for value, and he takes the goods 
 subject to any right of stoppage in transitu which may exist against 
 his assignor. Ih. 
 
 Two partners carried on business at New York and at Notting- 
 ham in England, under different firms, one partner residing at 
 each of those places. They bought goods of the plaintiffs in the 
 name of the English firm, informing them that such goods were 
 purchased for the New York house, and directing them to be sent 
 to E. S. & Co. of Liverpool, to await further instructions in re- 
 spect to shipment. They were accordingly sent to E. S. & Co., 
 and by them, in accordance with the directions of the English 
 firm given shortly afterwards, shipped to the New York firm. Be- 
 fore their arrival at New York, the vendees became insolvent and 
 made an assignment of all their assets to the defendants in trust 
 for the payment of the debts of the firm. The plaintiffs, while 
 the goods were yet on shipboard, and on the same day such assign- 
 ment was made, asserted their right of stoppage in transitu, and 
 notified the defendants thereof, who, before receiving such notice, 
 had made an entry of the goods at the custom house ; and it was 
 held that the transit had not ended, and that the plaintiffs had a 
 right to stop the goods. It). The right continues whilst the goods 
 remain in the hands of a warehouseman, although at the place 
 where they were directed to be sent, if that is an intermediate 
 point between the place of sale and the ultimate destination of the 
 goods. Covell V. Hitchcoch, 23 Wend. 611. Where a party, resid- 
 ing at a distance from his correspondent, ordered a quantity of 
 merchandise, directing it to be forwarded to an intermediate 
 place, and the goods were accordingly forwarded, and after their 
 arrival at the intermediate place, were delivered to a common 
 carrier employed by the purchaser, but before reaching his resi- 
 dence, the possession of the goods was resumed by the vendor 
 on the ground of the insolvency of the purchaser ; it was held 
 that the goods not having arrived at the place of their final des- 
 tination, the transitus was not ended, and the vendor had a right 
 to stop and detain them until their price was paid; and that he 
 might do so, notwithstanding that a portion of the goods ordered 
 had been actually received by the purchaser at his residence, 
 previous to the exercise of the right of stoppage as to the residue. 
 BucMy V. Furniss, 17 Wend. 504. But see Stevens v. Wheeler, 
 
SALE. T25 
 
 27 Barb. 658 ; in which it was said that a part delivery terminated 
 the right. 
 
 It has been held, that where goods ara sent by a carrier, and 
 the vendee gives an order to a third party to get the goods, that 
 if such person gets the goods from the carrier, this will be a good 
 delivery, and will prevent the vendor from stopping the goods, 
 although the possession was obtained before the goods had reached 
 the termination of the route by which they were to be sent. Ste- 
 vens V. Wheeler, 27 Barb. 658. 
 
 The delivery to the vendee, which puts an end to the state of 
 passage, may be at a place where he means the goods to remain 
 until a fresh destination is communicated to them by orders from 
 himself. And when the goods have reached the place where they 
 have been directed by the vendor, and have there come into the 
 possession of the vendee's agent, subject to the future instructions 
 of the vendee, the right of stoppage in transitu is at an end. Becker 
 V. Hallgaxten, 86 IST. T. 167. 
 
 The right may also be defeated by the indorsement and delivery 
 of a bill of lading of the goods to a honcb fide indorsee for a valu- 
 able consideration, without notice of the facts on which the right of 
 stoppage would otherwise exist. Ih. But it will not be defeated 
 by an apparent sale, fraudulently made, without consideration, 
 for the purpose of defeating the right of stoppage. Bosenthal v. 
 Dessau J 11 Hun, 49. The vendor's right of stoppage in transitu 
 is not lost by the receipt of the acceptance of the vendee, even 
 though he may have negotiated the bills so that they are outstand- 
 ing in third hands unmatured. Ainis v. Ayres, 62 Hun, 376. 
 
 Goods in public store awaiting the completion of the entry at 
 the custom house by the payment of the duties are deemed to 
 be still in transit. Western Transp. Co. v. Hawley, 1 Daly, 327. 
 In another case, after a review of the authorities in this country 
 and in England, the following conclusions were reached. 
 
 1. When goods are removed under general orders to a govern- 
 ment warehouse, in default of an entry, the right of stoppage in 
 transitu is not terminated. 
 
 2. Where a formal entry is made, but is not followed up by 
 proper bonding, the right continues. 
 
 3. Where there is a perfect entry, and the goods are thereupon 
 regularly bonded and warehoused, the right ceases. Frascherieris 
 V. Henriques, 6 Abb. N. S. 251. 
 
 A demand of the property from the vendee, made before its 
 
T26 SALE. 
 
 actual delivery to him, and while it is in the custody of the cus- 
 tom-house officers, is not a sufficient demand to enable the vendor 
 to reclaim it. The demand must be made of the carrier or mid- 
 dleman in whose custody it is at such time, and under such cir- 
 cumstances that they may prevent a delivery to the vendee. Mott- 
 ram v. Heyer, 5 Denio, 629 ; 8. C, 1 Denio, 483. 
 
 § 16. Sales, How Affected by the Statute of Frauds. 
 
 The common-law rules in relation to sales, have been materi- 
 ally affected by the statute, where the value of the property sold 
 is fifty dollars or more. 
 
 Under the statute, every agreement, promise or undertaking is 
 void, unless it or some note or memorandum thereof be in writ- 
 ing and subscribed by the party to be charged therewith, or by 
 his lawful agent, if such agreement, promise or undertaking is 
 a contract for the sale of any goods, chattels or things in action 
 for the price of fifty dollars or more, and the buyer does not ac- 
 cept and receive part of such goods, or the evidences, or some of 
 them, of such things in action, nor at the time, pay any part of the 
 purchase money. If goods be sold at public auction, and the auc- 
 tioneer, at the time of the sale, enters in a sale book, a memorandum 
 specifying the nature and price of the property sold, the terms of 
 the sale, the name of the purchaser, and the name of the person 
 on whose account the sale was made, such memorandum is equiva- 
 lent in effect to a note of the contract of sale, subscribed by the 
 party to be charged therewith. Laws of 1897, ch. 417, § 21. 
 
 This statute is a substantial re-enactment of the provisions of 
 the Eevised Statutes in respect to the sale of personal property, 
 and decisions under the former statute are applicable to sales 
 under the present act. 
 
 The cardinal purpose of the statute of frauds was to lessen the 
 opportunities for the perpetration of fraud by compelling the 
 parties to put their agreements in writing when their transactions 
 involve more than a certain pecuniary value; but it recognized 
 that an incontestable fact might equally well establish what the 
 agreement between them was, and, therefore, provided that ac- 
 ceptance, or a part payment, would be sufficient, and would obvi- 
 ate the necessity for the production of some written evidence. 
 Tompkins v. Sheelian, 158 IST. Y. 617. 
 
 In an action upon a written contract, parol evidence is not ad- 
 missible to show that the party who signed it as a principal was 
 
SALE. 727 
 
 only an agent of the third person, and thus to charge such third 
 person as principal, his name not appearing on the face of the in- 
 strument. Fenly v. Stewart, 5 Sandf. 101. But in an action 
 against the principal, upon a written contract executed by his 
 agent in his own name without mentioning the principal, parol 
 evidence is admissible to show that it is the contract of such prin- 
 cipal. Dykers v. Townsenci, 24 E". Y. 57. 
 
 The statute in express terms applies to the sale of things in 
 action. A parol contract to sell a chose in action for the price 
 of fifty dollars or more is void by the statute of frauds, unless the 
 evidences of the demand, or some of them, be delivered to the 
 buyer, or he pay a part of the purchase money. Artcher v. Zeh, 
 5 Hill, 200 ; Baldwin v. Williams, 3 Mete. 365. The rule which 
 relates to the sale of personal property and choses in action, is 
 equally applicable to the exchange of such things. 
 
 Combs sued Bateman upon a note, which was given under the 
 following circumstances: An agreement by parol was made, by 
 which one Ehle was to exchange a span of horses with Bateman, 
 who was to give two yokes of oxen worth eighty dollars each, and 
 his note for twenty dollars, payable in oats. The agreement was 
 made in the morning; but the property was not exchanged, nor 
 any delivery made ; but Bateman gave the note and was to drive 
 his oxen to the house of Ehle and make the exchange for the 
 horses on the same afternoon. He did not do so, and afterwards 
 Ehle tendered him the horses and demanded the oxen, but the 
 defendant refused to perform the contract, and now insisted that 
 the contract was void by the statute of frauds, and the note, there- 
 fore, without consideration. The note was transferred to the 
 plaintiff after it became due; and it was held that he could not 
 recover upon it, because the verbal agreement was void by the 
 statute, and the note was, therefore, without consideration. Combs 
 V. Batemmi, 10 Barb. 573. 
 
 The form of the memorandum is not important if it contains 
 within itself all the essential parts of the contract. But, whether 
 formal or informal, the note or memorandum must contain all 
 the substantial and material terms of the contract between the par- 
 ties. It must show on its face what the whole agreement is, so 
 far as the same is executory and remains to be performed, and 
 rests upon unfulfilled promise. Drake v. Seaman, 27 Hun, 63 ; 
 97 K Y. 230; Mentz v. Newwitter, 122 K Y. 491; Bailey v. 
 Ogden, 3 Johns, 399 ; Stone v. Browning, 68 IST. Y. 598 ; Trustees 
 
728 SALE. 
 
 of First Baptist Church v. Bigelow, 16 Wend. 28. A memoran- 
 dum which fails to show who are the contracting parties and re- 
 quires parol evidence to establish the fact is insufficient to satisfy 
 the requirements of the statute. Calkins v. Folk, 38 How. 62 ; 
 1 Abb. Ct. App. 291 ; 41 E". Y. 610. 
 
 It is not essential that the whole agreement should be contained 
 in one writing to satisfy the requirements of the statute. Several 
 instruments may be construed together for the purpose of ascer- 
 taining the terms of the contract and for the purpose of taking 
 an action founded thereon out of the operation of the statute. Tall- 
 man V. Franklin, 14 IST. T. 584; Peck v. Vandermark, 99 N. Y. 
 29; Peabody v. Speyers, 56 K Y. 230; Coe v. Tough, 116 JST. Y. 
 273. The note or memorandum must be subscribed at the end 
 by the party to be charged to be binding upon him. James v. Pat- 
 ten, 6 1^. Y. 9 ; McOivem v. Fleming, 12 Daly, 289 ; 66 How. 
 300. But, although the note or memorandum itself is not so sub- 
 scribed, if there is another paper signed by the party which is 
 either annexed to the memorandum or refers to it, both papers 
 may be construed together and the signature of the one treated 
 as subscribed to both, and the two papers, thus construed together, 
 may be given such effect as they are entitled to. Coe v. Tough, 
 116 N. Y. 273 ; Doughty v. Manhattan Brass Co., 101 IST. Y. 644 ; 
 Tallman v. Franklin, 14 N. Y. 584. The mode of annexation is 
 not material. Ih. But an unsigned writing in relation to a sale 
 of goods, and a signed writing referring thereto, but suggesting 
 material changes with an inquiry as to the acceptability thereof, 
 will not together make a valid contract of sale under the statute. 
 Hutchison v. Walter, 16 Misc. 77. 
 
 The question as to whether the consideration must be stated 
 in the note or memorandum cannot be said to have been authorita- 
 tively settled. The statute no longer in express terms requires 
 such statement ; but the omission of this express requirement does 
 not annul the requirement that the note or memorandum must con- 
 tain all the substantial and material terms of the contract. See 
 Drake v. Seaman, 97 IST. Y. 230; Newberry v. Wall, 65 IST. Y. 
 484; Stone v. Browning, 68 IST. Y. 604. 
 
 The statute does not require that the note or memorandum of 
 the contract of sale shall be subscribed by both parties. It will 
 be sufficient if it is subscribed by the party against whom it is 
 sought to be enforced ; and it is not necessary that it should be 
 subscribed by the party who seeks to avail himself of its advan- 
 
SALE. 729 
 
 tages. Fenly v. Stewart, 5 Sandf. 101 ; Davis v. Shields, 26 
 Wend. 341 ; Russell v. Nicoll, 3 Wend. 112. And see West v. 
 Newton, 1 Duer, 277 ; Justice v. Lang, 42 ]Sr. Y. 493 ; Mason v. 
 Decher, 72 N. Y. 595 ; Steele v. Taft, 22 Hun, 453. See Justice 
 V. Lang, 52 IST. Y. 323. 
 
 Brokers are frequently employed to make contracts, and they 
 are then the agents of the parties who employ them. Though 
 they are sometimes employed by both parties. In one case, one 
 Sturges was authorized by both parties to effect a sale of some 
 hemp. The hemp was to be sold by sale to Darragh ; and Sturges 
 subscribed a bill of sale in this form : 
 
 " New York, 16th August, 1850. 
 " Sold for account of William A. Sale, Jr. 
 
 " To Mr. JoHw Daeeagh. 
 " Bales jute hemp a $80.00 per ton, six months. This hemp is 
 to remain in store at the expense and risk of the seller for the ex- 
 piration of the first month; thereafter at the expense and risk of 
 the purchaser. Mr. Darragh "is to pay for this hemp as he may 
 want to take it away, at the rate of 8 per cent per annum dis- 
 count. Tare 6 lbs. per bale." 
 
 The greater part of the hemp was delivered to Darragh in par- 
 cels from time to time, and was received by him and paid for on 
 delivery, bxit none of it was delivered until nearly a week after 
 the execution of the contract ; and it was held, that the delivery 
 and acceptance of a part of the hemp, though subsequent to the 
 execution of the contract, took the case out of the statute of 
 frauds, and rendered Darragh liable in an action for damages for 
 his refusal to accept all the hemp ; and, it was further held, that 
 Sturges being authorized by both parties, as a broker, to effect the 
 sale, a memorandum in writing, signed by him in his own name, 
 was a sufficient note or memorandum in writing, within the mean- 
 ing of the statute of frauds, to charge the parties. Sale v. Dar- 
 ragh, 2 Hilt. 184; Newberry v. Wall, 84 IST. Y. 576. And see 
 Weidmann v. Champion, 12 Daly, 522. But where, upon the 
 making of a contract of sale and purchase, a broker acts merely 
 to bring the parties together, after which the parties negotiate with 
 each other directly, and the broker makes an entry of the sale, so 
 consummated, in his book, such entry will not bind either party, 
 nor will it prevent either party from giving parol evidence of the 
 
730 SALE. 
 
 contract. Aguirre v. Allen, 10 Barb. 74; Lawrence v. Gallagher, 
 10 Jones & Sp. 309 ; 73 K Y. 613. 
 
 If the purchaser accepts and receives a part of the property 
 purchased, this is enough to take the case out of the statute. But 
 to have this effect there must be both a receipt and acceptance. 
 Cross V. O'Donnell, 4:4: 'N. Y. 661 ; Stone v. Browning, 51 N. Y. 
 211 ; Heermance v. Taylor, 14 Hun, 149 ; Caulkins v. Hellman, 
 4z7 ]Sr. Y. 449. The acceptance and receipt are two distinct things. 
 There may be an actual receipt without an acceptance, and an 
 acceptance without a receipt. The receipt of the goods is the 
 act of taking possession of them. When the seller gives to the 
 buyer the actual control of the goods, and the buyer accepts such 
 control, he has actually received them. Such a receipt is often 
 an evidence of acceptance, but is not the same thing. The re- 
 ceipt by the buyer may be, and often is, for the express purpose 
 of determining whether he will accept or not. Cooke v. Millard, 
 65 ]Sr. Y. 352. Beyond the mere receipt, there must be some vol- 
 untary act or conduct on the part of the vendee, or his authorized 
 agent, manifesting an intention to accept the goods, absolutely 
 and unconditionally, as a performance of the contract. Caulkins 
 V. Hellman, 47 IST. Y. 449 ; Stone v. Browning, 51 IST. Y. 211 ; 
 44 How. 131 ; 13 Abb. IST. S. 188 ; Heermance v. Taylor, 14 Hun, 
 149 ; Shindler v. Houston, 1 IN". Y. 261 ; Hallenheck v. Cochran, 
 20 Hun, 416 ; Clark v. Tucker, 2 Sandf. 157. It is not necessary 
 that the acceptance and receipt should occur at the same time. 
 Either may precede the other ; and, after both have concurred, 
 the statute is complied with, and the contract becomes operative 
 and valid. McKnight v. Dunlop, 5 N. Y. 537 ; Cross v. O'Don- 
 nell, 44 IST. Y. 661 ; Jackson v. Tupper, 101 E". Y. 515. 
 
 Where, by the terms of an agreement for the sale and purchase 
 of goods, cash is to be paid on the delivery of the goods, payment 
 of the money is sufficient evidence that the goods have been deliv- 
 ered, in pursuance of the contract, for the purpose of taking the 
 case out of the statute of frauds. Aguirre v. Allen, 10 Barb. 74. 
 
 A verbal agreement for the sale of personal property exceeding 
 fifty dollars in value, is valid, where a part of the property has 
 been delivered to the purchaser and accepted by him under the 
 agreement, although such delivery and acceptance took place 
 several months after the making of the verbal agreement. Mc- 
 Knight V. Dunlop, 5 N. Y. 537. The plaintiff, by a verbal agree- 
 ment, in June, 1844, purchased 5,000 bushels of barley malt of 
 
SALE. 731 
 
 the defendant, at a fixed price, to be paid for by the plaintiff's 
 note, whenever one thousand dollars worth of the malt should be 
 delivered. The defendant, in August and September, delivered 
 about fourteen hundred bushels in pursuance of the agreement, 
 and refused to deliver the residue; it was held that the contract 
 was valid, and that the plaintiff was entitled to damages for the 
 non-delivery of the residue of the 5,000 bushels. Ih.; Sprague v. 
 Blake, 20 Wend. 61 ; Sale v. Darragh, 2 Hilt. 184. 
 
 An act done by one of the parties to a contract, which is right- 
 fully treated by the other party as a trespass, cannot, by a subse- 
 quent understanding, be made a sufficient partial delivery and 
 acceptance of goods, to take a case out of the statute of frauds. 
 Baker v. Cuyler, 12 Barb. 667. The parties entered into a verbal 
 contract, whereby the plaintiffs agreed to sell, and the defendant 
 to purchase, all the wheat the plaintiffs had in their warehouse 
 which should remain after P. & Co., should take away eight 
 hundred bushels which had been sold to them. The defendant 
 afterwards, in the absence of the plaintiffs, without any permis- 
 sion, and before P. & Co. had taken away their part, took from 
 the warehouse over one hundred bushels of the wheat. The plain- 
 tiffs, on being informed of such act, complained of it, and insisted 
 that it was not authorized by the contract, and said that the wheat 
 must be returned. Subsequently, P. & Co. took away their eigh.t 
 hundred bushels, and there remained in the warehouse about three 
 hundred and forty bushels, which the plaintiffsi requested the de- 
 fendant to take away and pay for, calling it the defendant's wheat. 
 The defendant promised to do so, but did not, and the plaintiffs 
 after due notice to him, sold the wheat and brought an action to 
 recover the difference between the price obtained and the contract 
 price; and it was held, that the action would not lie. Ih. But 
 where, on a sale of cattle, no earnest money was paid, nor any 
 memorandimi in writing made, and the cattle were to remain in 
 the possession of the vendor, at the risk of the vendee, until he 
 called for them ; and the vendee afterwards came and took away 
 the cattle, without saying anything to the vendor; this was held 
 to be sufficient delivery within the statute to render the vendee 
 liable to pay the purchase price. Yincent v. dermond, 11 Johns. 
 283. A delivery of goods by the vendor, and an acceptance by the 
 agent of the purchase, is sufficient to take a case out of the statute, 
 and to render the sale valid. Outwater v. Dodge, 6 Wend. 397. 
 
 Upon a sale of personal property, any acts of the parties in- 
 dicative of the exercise of ownership by the vendee, may be sub- 
 
732 SALE. 
 
 mitted to tlie jury as evidence o£ receipt and acceptance, to take 
 tlie case out of the statute. Gray v. Davis, 10 N. Y. 285. A. 
 sold B. a stock of goods in a store. After the verbal bargain, an 
 inventory of the goods was taken, B. going through the store and 
 calling off the parcels, and A. entering them in the inventory, 
 which was headed, " B. bought of A.," etc. On leaving the store, 
 A. offered B. the keys, which he declined to take until the next 
 day, saying that he had no insurance. The vendor then offered 
 to assign his own policies, when the purchaser requested the 
 vendor's clerk to take the keys for him until the next morning, 
 which he did ; aud it was held, that these facts were sufficient evi- 
 dence to go to the jury, of a receipt and acceptance by the pur- 
 chaser. Ih. 
 
 The acceptance and retention of a bill of lading may be equiva- 
 lent TO an acceptance of the property mentioned in it. Currie v. 
 'Anderson, 2 El. & El. 592; Bodgers v. Phillips, 40 K Y. 519. 
 The selection and separation of a part of a flock of sheep from 
 the others and the marking of them with the vendee's name, is 
 sufficient to warrant a jury to find a delivery and acceptance of 
 the sheep so selected and marked. Bappley v. Adee, 65 Barb. 
 589. The marking of logs is an equivocal act, and may be for 
 the purpose of taking possession, or of identification, or of accept- 
 ance. Evans v. Harris, 19 Barb. 417. Retention and use of the 
 property after full opportunity to inspect or test it and discover 
 its defects may be conclusive evidence of an acceptance. Chambers 
 V. Lancaster, 160 E". Y. 342. A promise to remove ponderous 
 and bulky articles purchased and attempts by the vendee to re- 
 sell them, are sufficient evidence of acceptance. Bowe v. Ellis, 3 
 Misc. 92. And it may be broadly stated that any act from which 
 it may be inferred that the buyer of property has taken possession 
 of it as owner, presents a question for the jury to determine 
 whether the act was done with intent to accept, and whether there 
 has been such a delivery as to take an oral contract of sale out of 
 the operation of the statute of frauds. Jones v. Beynolds, 120 
 E". Y. 213. 
 
 Part pajment of the purchase money may have the same effect 
 in removing a parol contract from the operation of the statute as 
 the receipt and acceptance of a part of the chattels sold. But 
 there is an important distinction made by the language of the 
 statute in the two cases. The part delivery may be made at^ any 
 time because the statute does not limit it to any particular time ; 
 but in respect to part payment, the statute requires that it shall 
 
• SALE. 733 
 
 be made at the time of making the contract. No subsequent pay- 
 ment will, of itself, take the contract out of the operation of the 
 statute of frauds. Sprague v. Blahe, 20 Wend. 61, 63, 64 ; Hallen- 
 hecJc V. Cochran, 20 Hun, 416 ; Hunter v. Wetsell, 57 IST. Y. 375 ; 
 84 ]Sr. T. 549 ; Jackson v. Tupper, 101 N. Y. 511. There must 
 be enough in addition to the act of payment to show that the terms 
 of the prior oral contract were then in the minds of the parties 
 and were reaffirmed by them, and this being shown, a cause of 
 action arises, not on the prior oral contract, but on the new con- 
 tract made at the time of the payment. lb.; Bissell v. Balcour, 
 39 K Y. 275 ; 7 Trans. App. 212 ; Allis v. Bead, 45 N. Y. 142. 
 
 Giving the purchaser's own note is not a part payment within 
 the meaning of the statute. Combs v. Bateman, 10 Barb. 573. 
 Neither is the giving of the purchaser's check in and of itself 
 a payment; but when it is given and accepted as such, and is in 
 due course actually paid, it satisfies the requirement of the statute, 
 although, some time must necessarily elapse between the giving 
 of the check and its presentment and payment. Hunter v. Wet- 
 sell, 84 K Y. 549. 
 
 An agreement to indorse the price of the property upon a chat- 
 tel mortgage held by the purchaser against the vendor, without 
 any indorsement being in fact made, does not constitute a pay- 
 ment {Ely V. Ormsby, 12 Barb. 570), and in such a case a creditor 
 of the vendor will hold the property in preference to the vendee, 
 if the property is left in the possession of the vendor. lb. And 
 see Arfcher v. Zeh, 5 Hill, 200. 
 
 Where a sale of goods is made on an agreement that the price 
 shall be applied to the payment of a precedent debt, such price 
 must be actually applied by a receipt or otherwise, to bring it 
 within the exception in the statute of frauds, founded on payment 
 of all or a part of the price. Clark v. Tucker, 2 Sandf. 157 ; Mat- 
 tice V. Allen, 3 Keyes, 482 ; 3 Trans. App. 263 ; 3 Abb. Ct. App. 
 248 ; Pitney v. Olen^ Falls Ins. Co., 65 N. Y. 6. And see Teed 
 V. Teed, 44 Barb. 96 ; Walrath v. Richie, 5 Lans. 362. 
 
 A mere oral agreement between a debtor and a creditor, that 
 the former will deliver and the latter receive chattels of more than 
 fifty dollars value in payment of the debt, is void by the statute of 
 frauds, if there is no memorandum in writing, no part delivery, 
 nor anything more than the mere verbal agreement ; even though 
 the creditor should enter the chattels on his account-book to the 
 credit of the debtor; especially where such entry was not in the 
 
T34 SALE. 
 
 usual manner, but upon a blank leaf of a book, by itself. Brabin 
 V. Hyde, 32 K Y. 519. 
 
 The defendant, by an oral agreement, promised to deliver to the 
 plaintiff a quantity of butter, of a value exceeding one hundred 
 dollars. The defendant was, at the time of the bargain, indebted 
 to the plaintiff in the sum of six dollars and fifty cents, for a 
 barrel of flour which was charged to him on account, and it was 
 a part of the agreement that this sum should apply as part pay- 
 ment for the butter. The plaintiff made an entry of the sale in 
 a memorandum-book, as well as a statement of the acceptance of 
 the barrel of flour, in part payment of the butter. This entry was 
 made in the memorandum-book at the defendant's house, at a dis- 
 tance from the plaintiff's books of account, but no entry was made 
 in the plaintiff's account books to show that the flour was paid 
 for by the butter, or otherwise ; and it was held that this was not 
 a sufficient part payment to take the case out of the statute of 
 frauds. Teed v. Teed, M Barb. 96. 
 
 A., a debtor, sold to B., his creditor, a bill of goods of more than 
 fifty dollars in value; the price of which was not applied, by re- 
 ceipt or otherwise, to the debt, nor was there any proof of any 
 agreement that it should be so applied; but, on the contrary, it 
 appeared from the bill of parcels that the purchaser was to give 
 a note at ten months, payable to his own order ; and it was held 
 that there was no part payment of the purchase money which 
 would take the case out of the statute of frauds. Wylie v. Kelly, 
 41 Barb. 594. 
 
 A tenant orally agreed with his lessor that he would turn 
 out hay and grain to secure the payment of the rent of the 
 farm, if the lessor feared that she would not get her pay. The 
 value of the property agreed to be turned out exceeded fifty 
 dollars, and there were no acts of delivery, no relinquish- 
 ment of any part of the lessor's debt, no prior security parted 
 with, nor any receipt or credit actually given; and it was held 
 that the title to his chattels did not pass, as the transaction rested 
 merely in words, and that the creditors of the tenant might levy 
 upon and sell the chattels, and claim a priority over the lessor as 
 to such chattels. Buskirh v. Cleveland, 41 Barb. 610. 
 
 But where an oral contract was made for the sale of wood, and 
 after it was ready for delivery it was measured by the parties, and 
 a portion of it delivered and paid for by giving the vendor actual 
 credit for the account upon a debt then owing from him to the 
 
SALE. 735 
 
 vendee, it was held that the contract was valid and saved from the 
 condemnation of the statute of frauds. Fish's Eddy Chemical Co. 
 V. Stevens, 92 Hun, 179. 
 
 The payment which will take an oral contract out of the opera- 
 tion of the statute of frauds may he made in money or in prop- 
 erty, or in the discharge of an existing deht, in whole or in part, 
 due from the vendor to the purchaser, or the extinguishment of, 
 or payment upon, a promissory note held by the latter against the 
 former. A mere agreement to apply the purchase' money to either 
 of these objects would not be enough, because the contract would 
 still rest in words and nothing more. The agreement to pay the 
 note or satisfy the debt must be consummated and carried into 
 effect by an act which shall be obligatory upon the purchaser and 
 enable the vendor to enforce the contract of sale. The statute 
 requires acts, not words. Brabin v. Hyde, 32 N. Y. 519. 
 
 The part performance which will take a parol contract for the 
 sale of goods out of the operation of the statute of frauds must 
 be with the assent of both parties. Payment to an agent of the 
 vendor of the purchase money is as effectual to remove the case 
 from the operation of the statute as payment to the principal. But 
 the fact of the agency must be established without resort to the void 
 agreement. The authority of the agent to receive payment may be 
 shown by an act on the part of the vendor recognizing the agency, 
 or by a subsequent ratification of the act of the assumed agent in 
 receiving the payment. Such a ratification is equivalent to an 
 original authority to receive it. Hawley v. Keeler, 53 IST. Y. 114. 
 
 The payment which, under this statute, will validate a contract 
 must be a payment of a part of the purchase price of the goods 
 sold by the contract sought to be enforced. Payment for goods 
 previously sold and delivered, although made iinder a claim by 
 the vendee that the goods in question were included in the first 
 contract, and in consideration of the new agreement, is not suffi- 
 cient. Organ v. Stewart, 60 IST. Y. 413. 
 
 Where goods, amounting in the aggregate to upwards of one 
 hundred dollars, are purchased at auction in several parcels, upon 
 distinct and separate bids, to be paid for in a note at a future 
 day, the whole constitutes but one contract, and the delivery of 
 some of the parcels is sufficient to take the case, as to the residue, 
 out of the operation of the statute of frauds. Mills v. Hunt, 20 
 Wend. 431 ; S. C, 17 Wend. 333 ; Sprague v. Blahe, 20 Wend. 
 61 ; Swift v. Opdylce, 43 Barb. 274. 
 
736 SALE. 
 
 It is a general rule that if a sale he of a number of articles at 
 the same time, neither of which is of a price to bring it within 
 the statute, but which in gross exceed the statutory limit, the con- 
 tract is deemed to be entire, and to fall within the statute. Allard 
 V. Greasert, 61 N. Y. 1. The mere circumstance of a separate 
 price being fixed upn each article makes no such difference as will 
 take the case out of the operation of the statute. Ih.; Baldey v. 
 Parlter, 2 Barn. & Ores. 37. 
 
 In one case, the defendant by his agent made a parol contract 
 with the plaintiff to purchase of him a quantity of apples and 
 his crop of barley, the apples to be delivered immediately, and 
 the barley as soon as a car could be procured for shipping it, and 
 to be paid for respectively on delivery. Nothing was advanced 
 upon the contract at the time in part payment, either for the 
 apples or the barley; and the articles were not then delivered, or 
 either of them, or any part thereof. But the apples were subse- 
 quently delivered, accepted and paid for, and it was held that the 
 contract, in respect to the apples, and that in respect to the bar- 
 ley, were in effect separate in regard to their execution. Aldrich 
 V. Pyatt, 64 Barb. 391. It was also held that the articles sold, 
 being of different characters, to be delivered at different times 
 and paid for respectively on delivery, the contract was to be exe- 
 cuted distributively ; and that the delivery and receipt of the ap- 
 ples and the payment therefor did not take the case out of the stat- 
 ute of frauds, so far as it related to the barley. Ih. See also Swift 
 V. Opdyhe^ 43 Barb. 274 ; Keeler v. Vandervere, 5 Lans. 313. 
 
 Where an agreement is void in part by the statute of frauds, 
 and good for the residue, non-enforcement is the result for the 
 whole contract. Harmon v. Reeve, 18 C. B. 587 ; GooTce v. Mil- 
 lard, 65 ]Sr. Y. 352, 357; Irvine v. Stone, 6 Gush. 508. Thus, a 
 contract for the purchase of coal in Philadelphia, and to pay for 
 the freight of the same to Boston, if void by the statute of frauds 
 as to the sale, is void also and cannot be enforced as to the freight, 
 although the latter part, if it stood alone, would not be within the 
 statute. Ih. But the part which would be valid if it stood alone, 
 may be held valid if it can be separated from the part which is 
 void. Ih.; May field v. Wadsley, 3 Barn. & Ores. 361; Wood v. 
 Benson, 2 Cr. & Jerv. 94. 
 
 Questions frequently arise as to the application of this statute 
 to executory contracts of sale. There may be an agreement for 
 a future purchase of property which is now in existence, or there 
 
SALE. 737 
 
 may be an agreement for a future purchase of property which is 
 not now existing, but is to be supplied hereafter for the sum 
 agreed on, which is to be regarded merely as the price of the ar- 
 ticle, or there may be an agreement to purchase hereafter, an 
 article which is to be manufactured by the seller, and the bargain 
 implies that the money to be paid is for the manufacturing as 
 well as for the article or its materials. A verbal executory agree- 
 ment for the sale of an existing article, at a price exceeding fifty 
 dollars, to be delivered at a future day, no part of the purchase 
 money being paid, is void by the statute. Jackson v. Covert, 5 
 Wend. 139 ; Bennett v. Hull, 10 Johns. 364. 
 
 Where there is an agreement for the sale of an ark load of 
 lumber, a portion of which is landed, and the landing of the resi- 
 due suspended until an inspector can be procured to measure it, 
 and the vendor, after waiting a day for an inspector, reloads the 
 portion landed and goes away with the lumber, an action of trover 
 does not lie against him at the suit of the vendee. Fitch v. Beach, 
 15 Wend. 221 ; Outwater v. Dodge, 7 Cow. 85. 
 
 So, a verbal agreement to sell seven hundred bushels of wheat, 
 of which two hundred and fifty bushels were threshed and in a 
 granary, but the residue was unthreshed, but which the vendor 
 agreed to thresh and deliver, together with that which was 
 threshed, which was to have a second cleaning, the whole to be 
 delivered at a specified time and place, and to be paid for on 
 delivery, was held void by the statute. Downs v. Boss, 23 
 Wend. 270. There is a class of cases, however, which are 
 executory in their nature, that have been held valid when 
 the agreement is one which relates to an article that the 
 vendor is to manufacture, and he is also to furnish the mate- 
 rials employed in making the article, and although the price of 
 the finished article exceeds fifty dollars. The reason assigned 
 is, that it is a contract for labor, and for materials found, instead 
 of the sale of a chattel. A contract for the purchase of articles 
 delivered on a future day, to be manufactured by the vendor, 
 is a contract for work and labor, and, therefore, is not within the 
 statute, even when all the materials are furnished by the manu- 
 facturer. Bohertson v. Vaughn, 5 Sandf . 1 ; Sewell v. Fitch, 8 
 Cow. 215 ;'W.C.& M. Co. v. Holbrooh, 118 N. Y. 586 ; Parsons 
 v. Lov^hs, 48 N. T. 17 ; Deal v. Maxwell, 51 E". T. 652 ; Hinds 
 V. Kellogg, 37 St. Rep. 356 ; 133 IST. Y. 536 ; Pelletreau v. U. 8. 
 Electric Light & Power Co., 13 Misc. 237 ; 63 St. Rep. 109. 
 
 47 
 
738 SALE. 
 
 An agreement by a mechanic to furnish materials and do the 
 carpenter work and turning, according to a specified plan and 
 specification, for buildings to be erected upon the land of another, 
 is not a contract for the sale of goods within the meaning of the 
 statute of frauds. It need not, therefore, be in writing, signed 
 by the party sought to be charged. Courtwright v. Stewart, 19 
 Barb. 455. The true criterion for determining whether a contract 
 is for the sale of goods, and, therefore, within the statute of 
 frauds, or for work and labor and materials, and so not within the 
 statute, is to inquire whether the work and labor required, in 
 order to prepare the subject-matter of the contract for delivery, 
 is to be done for the vendor himself, or for the vendee. In the 
 former case, the contract is really a contract of sale, while, in the 
 latter, it is a contract of hiring. lb.; Stephens v. Santee, 51 Barb. 
 532. See Branson v. Wyman, 10 Barb. 406 ; 8 N. Y. 182. 
 
 It is settled by a long course of decisions in this State 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 condition 
 to be delivered, such as flour from wheat not yet ground, or nails 
 from iron belonging to the manufacturer, or paper to be manu- 
 factured by the party and then delivered, is not a contract of sale 
 and, therefore, not within the section of the statute of frauds 
 under consideration. But where the chattel contracted for is in 
 existence at the time of the contract, although the vendor is to 
 do some work upon it to adapt it to the uses of the vendee, the 
 contract will be deemed one of sale within the meaning of the 
 statute. Cooke v. Millard, 65 IST. Y. 352. 
 
 A contract to manufacture and deliver beer at a future time 
 is valid, although the value exceeds fifty dollars, if the vendor 
 is to furnish the materials. Donovan v. Willson, 26 Barb. 138. 
 And so of a contract to manufacture pumps, and to furnish ma- 
 terials therefor, where the article is to be made and delivered at 
 a future time. Parker v. Schenck, 28 Barb. 38. 
 
 A parol agreement was made between the plaintiff and the 
 defendant, for a monument, to be furnished by the former to 
 the latter, for his deceased relative, for the price of two hundred 
 dollars. The marble, consisting of several pieces, or parts, was 
 put together, into the form of the monument, which was stand- 
 ing in the plaintiff's shop, or in the yard adjoining, at the time. 
 And the plaintiff agreed to polish, letter and finish the monu- 
 ment, and set it up for the defendant ; it was held that this was 
 
SALE. 739 
 
 not an agreement to sell and deliver a monument already made, 
 and, therefore, void by the statute, but was an agreement to make 
 or manufacture one, not then in existence, and was valid and 
 binding. Mead v. Case, 33 Barb. 202. A contract to make a 
 wagon and find the materials, and to deliver it at a future day is 
 not within the statute. Crookshanh v. Burrell, 18 Johns. 58. 
 
 So, a parol agreement for the sale and delivery of a quantity of 
 malt, to be thereafter manufactured and delivered from time to 
 time as wanted, each parcel to be paid for on delivery at a speci- 
 fied price, is not within the statute. Ferren v. O'Hara, 62 Barb. 
 517. A parol contract to manufacture and deliver a quantity of 
 paper is not within the statute. Parsons v. Loucks, 48 li. Y. 17. 
 So of a contract for the sale and delivery of patent roofing mate- 
 rials to be thereafter manufactured and delivered. W. C. & M. 
 Co. V. Holbrooh, 118 IST. Y. 586. On the other hand, an agree- 
 ment by one party to deliver, and the other to receive and pay for 
 furniture, already manufactured, but to be upholstered according 
 to order, is a contract for the sale of goods and within the statute. 
 Flint V. CorUtt, 6 Daly, 429. 
 
 A contract for the sale and delivery of a quantity of wood to 
 be cut from trees standing on the land of the vendor was held 
 to be a sale and not an agreement for work and labor in manu- 
 facturing fire-wood out of standing trees. Smith v. New York 
 Central B. R. Co., 4 Keyes, 180; 4 Abb. Ot. App. 262. See 
 Cooke V. Millard, 65 N. Y. 352, 361; Parsons v. Loucks, 48 
 E". Y. 17, 20, 25. But this seems to be regarded as one of the 
 border cases. It has been held that such a contract is not for the 
 sale of an interest in lands and, therefore, a writing was not neces- 
 sary to give it validity under another branch of the statute. Kill- 
 more v. Howlett, 48 N. Y. 569 ; Boyce v. Washburn, 4 Hun, 792. 
 
 § 17. Rights and Remedies of Parties to Contracts of Sale. 
 
 In the preceding pages of this chapter much has been said 
 incidentally respecting the rights and remedies of parties to a 
 contract of sale. Some of these rights and remedies have been 
 briefly noticed, while others have been considered at consider- 
 able length. Among the subjects so noticed or considered are the 
 rights incident to the transfer of the title to the property sold; 
 the rights growing out of a contract of sale or return ; the rights 
 and remedies of the defrauded vendor ; the right to rescind a con- 
 tract for fraud and the remedies on rescission; the rights and 
 
740 SALE. 
 
 remedies of the vendor when the vendee refuses to take and pay 
 for the property purchased ; and the right of stoppage in transitu. 
 
 A few cases will be added to those already given, further illus- 
 trating the rights of the parties and the remedies given by the 
 law for their infringement, even at the risk of seeming repeti- 
 tion. 
 
 Where goods are sold, and, by the terms of the sale, they are 
 to be paid for on delivery, the vendee must pay the money, or 
 tender it to the vendor, before he is entitled, to the possession 
 of the goods. So, where goods are sold, and nothing is said about 
 payment, the law implies that the goods must be paid for, or the 
 price tendered, before the vendee is entitled to take them. Clarh 
 V. Dales, 20 Barb. 42, 61. But where goods are sold upon credit, 
 for a specified time, or upon an indefinite credit, and by the terms 
 of the contract nothing is mentioned as to any security for the 
 price, the vendee is entitled to the immediate possession of the 
 goods, without payment or tender of the price, or of any security. 
 The contract, however, must be one which is valid, and by which 
 the title to the goods is transferred to the vendee by the effect 
 of the contract of sale. And if the contract is void by the statute 
 of frauds, or the title does not pass because of something to be 
 done to the goods before delivery, the right to the possession will 
 not pass on a sale on credit, any more than on any other sale. 
 
 The time of making payment is either expressly agreed upon; 
 or it is left to the rules of law to determine it; or, it may be a 
 question of fact to be settled by a jury, as where a person is ac- 
 customed to purchase goods of another on credit, and the vendee 
 sends an order for goods in the usual manner in which he has 
 been dealing; if the order is accepted and the goods put up, it 
 may be a question of fact for a jury, whether the sale was not 
 intended to be on credit. Though it has been seen, that in the 
 absence of any circumstances to show that a credit was to be 
 given, the law will imply that the goods are to be paid for on 
 delivery. 
 
 Where, by the terms of the agreement, the time of payment 
 and the time of delivering the goods are at different specified 
 times, the agreement may be in the nature of independent cove- 
 nants (see ante, pp. 34, 35), in which neither party is bound to per- 
 form on his part before requiring the other to do so. Dox v. Dey, 
 3 Wend. 356 ; Dey v. Dox, 9 Wend. 129, 133. For instance, if 
 goods are sold, and the delivery is to precede the payment of the 
 
SALE. 741 
 
 price by six months, the vendee will, of course, be entitled to the 
 goods without payment or. tender of the price. So, on the other 
 hand, if the goods are sold on a credit of six months, and the ven- 
 dee does not call for the goods, nor take them when tendered, if 
 that is required by the contract, the vendor may recover the price 
 at the expiration of the six months, although the vendee did not 
 take the goods. This rule must be understood to apply to those 
 cases, however, in which the contract is binding by the rules of 
 law, and of a case of actual sale, not of a mere agreement for a 
 future sale. 
 
 Where goods are sold upon an agreement that the vendor will 
 accept the note of a third person in payment for them, a tender 
 by the vendee of such note to the vendor will change the title in 
 the goods, so that they become the property of the vendee. Des 
 Arts V. Leggett, 16 IST. Y. 582. -If the tender is refused, the 
 vendee may, if he so elects, continue in possession of the note as 
 a bailee for the vendor. Ih. Where the vendee gives his own 
 note for the purchase price of goods, the note is not a payment 
 of the debt ; it is mere evidence of the existence of the debt, 
 though it will operate to extend the time of payment until the 
 time of payment specified expires., 
 
 But where goods are purchased upon an agreement between 
 the vendor and the vendee that the note of a third person, which 
 is owned by the vendee, shall be taken in payment for the price 
 of the goods, such note, if delivered by the vendee to the vendor, 
 operates as a payment of the debt as much as a similar amount in 
 money would. Comhs v. Bateman, 10 Barb. 5Y3 ; Breed v. CooTc, 
 15 Johns. 241; Bew v. Barber, 3 Cow. 2Y2; Whithech v. Van 
 Ness J 11 Johns. 409. But where the purchaser, on the sale of 
 goods, instead of giving his own note therefor, transfers the note 
 of a third person, and guarantees the payment thereof, if the note 
 is not paid when due, the vendor may recover against the vendee 
 on an account for goods sold. Butler v. Haight, 8 Wend. 535. 
 The vendee continues liable for the debt in such cases, whether 
 the guaranty be in writing or not, since the note is not received 
 in payment as an absolute discharge of the debt, but is received 
 as payment upon condition that the maker pays the note, and if 
 he does not, the vendee remains liable in the same manner as 
 though the note had never been given. Johnson v. Gilbert, 4 Hill, 
 1Y8; Garden v. McNiel, 21 K T. 337; Torry v. Hadley, 27 
 Barb. 192; Tyler v. Stevens, 11 Barb. 485. Where goods are 
 
742 SALE. 
 
 sold, and the vendor agrees to accept the note of a third person 
 in payment, and the vendor supposes, at the time of making such 
 agreement, that such third person is solvent and responsible, but 
 before the goods are delivered, or the note is tendered, such third 
 person becomes insolvent, the vendor is not bound to accept such 
 note, although it is tendered by the vendee, nor is the vendor 
 bound to deliver the goods for such note. Boget v. Merritt, 2 
 Caines, 117. 
 
 So, where there is an executory contract for the delivery of 
 goods, which are sold upon an agreement that upon the delivery 
 of the goods they shall be paid for by the notes of a third party, 
 and such third person becomes insolvent between the time of 
 making the contract of sale and the time stipulated for its per- 
 formance, the vendor is not bound to deliver the goods and accept 
 the notes, although they are not entirely worthless. Benedict v. 
 Field, 16 IST. Y. 595 ; S. C, 4 Duer, 154. 
 
 Where, by the terms of an auction sale, the purchaser is to give 
 approved indorsed notes at six months, the vendor is not in fault 
 for not approving and accepting notes offered to him by the ven- 
 dee, unless he knows the notes to be good, or he is furnished with 
 the means of ascertaining them to be so. HicJcs v. Whitmorej 12 
 Wend. 548. And see Draper v. Jones, 11 Barb. 263 ; Hanna v. 
 Mills, 21 Wend. 90. Where the vendee has been guilty of a fraud, 
 upon a purchase of goods on credit, the vendor may, without wait- 
 ing until the time of credit has expired, reclaim the goods, or he 
 may waive the tort and recover the value of the goods immediately. 
 Kayser v. Sichel, 34 Barb. 84 ; Both v. Palmer, 27 Barb. 652 ; 
 iWillson V. Foree, 6 Johns. 110; Pierce v. Drake, 15 Johns. 475. 
 See ante, pp. 688, 689. 
 
 If the vendor has received the note of a third person in pay- 
 ment, he must first return that or oifer to return it to the vendee, 
 before suing for the price, or before bringing an action of replevin. 
 See ante, p. 694. 
 
 In an action for goods sold and delivered, the evidence showed 
 that the defendant admitted the correctness of the bill, and prom- 
 ised to pay it, but objected to the interest, and said he bought the 
 goods on credit, without specifying the length of credit ; there was 
 evidence that he had made payments on account of the bill, and 
 it was held that a judgment of the justice, in favor of the plain- 
 tiff, for the amount and interest, was correct. Whitloch v. Bueno, 
 1 Hilt. 72. Where goods are sold, and the vendee is to pay cash 
 
SALE. iY4:3 
 
 for them on delivery, or he is to give his own note therefor, pay- 
 able at a future time, the vendee cannot require the vendor to 
 accept his own notes in payment instead of money, nor as a sub- 
 stitute for the note which was to have been given by the vendee. 
 In such a case the vendor is not bound to deliver the property 
 until the money is paid, or until such a note is given as was agreed 
 upon. Leven v. Smithy 1 Denio, 571. And if the goods have 
 been delivered, and the vendee refuses to pay the money as he 
 agreed, the vendor may maintain replevin for the recovery of the 
 goods. lb.; Russell v. Minor, 22 Wend. 659. If, however, the 
 vendor should deliver the property without requiring the pay- 
 ment of the money, or the delivery of the note agreed upon, the 
 vendee would be entitled to set off any notes which he held at the 
 time against the vendor, in an action by him to recover the pur- 
 chase price. For, in that case, it would be an election on the part 
 of the vendor to consider the goods sold, and the title in the ven- 
 dee, which would render the payment of the purchase money a 
 mere debt on the part of the vendee, and that would entitle him 
 to all the advantages of that position, including the right of set-off. 
 In an executory contract for the sale of an article to be paid 
 for upon delivery at any time within a certain period, the obli- 
 gations of the one party to pay, and that of 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 pur- 
 chaser, he must show that he was ready and offered to deliver the 
 goods. Dunham v. Mann, 8 E". Y. 508. Whichever party seeks 
 to enforce the contract against the other, must show performance, 
 or a tender of performance on his part. lb.; ante, p. 38. Where 
 the court, in an action by the vendor upon such a contract, charged 
 the jury, that, if the purchaser, during the time appointed in 
 the contract, did not demand the delivery of the article purchased, 
 and offered to pay for it on the delivery, the plaintiff might re- 
 cover, it was held, that the charge was erroneous, and that the 
 jury ought to have been instructed, that, in order to entitle the 
 plaintiff to recover, he must have shown an offer of performance 
 on his part. lb. Where the delivery of the thing sold, and the 
 payment of the price, are to be simultaneous acts, the title, until 
 payment or delivery, remains in the seller ; and where the acts 
 are to be thus concurrent, the promises of the parties are depend- 
 ent upon a mutual performance ; and neither can maintain an ac- 
 tion against the other, without showing, on his own part, an ac- 
 
744 SALE. 
 
 tual performance, or a legal offer to perform. That this is the 
 rule as to vendors. Kelley v. Ufton, 5 Duer, 336 ; Dunham v. 
 Mann, 8 N. Y. 508 ; Newcomh v. Cramer, 9 Barb. 402 ; Boutwell 
 V. O'Keefe, 32 Barb. 434. But, as we have already seen, ante, p. 
 649, the title to the property may pass without any delivery, if 
 such is the intention of the parties, and the terms of the contract 
 are consistent with such intention ; though the vendor will be en- 
 titled to retain the possession of the property until the purchase 
 money is paid, if the sale was for cash on delivery, or was not a 
 sale on credit. 
 
 Where a carriage is built by a mechanic, in pursuance of a 
 contract, and it is tendered to the customer, who refuses to accept 
 and pay for it, and on his refusal to do so, the carriage is left in 
 charge of a third person, of which the customer has notice, the 
 mechanic, instead of selling it for what it may bring, and suing 
 for the difference between that and the contract price, may bring 
 his action immediately, and declare upon the contract as upon a 
 delivery of the property; and he is entitled to recover the price 
 agreed upon between the parties at the time of making the con- 
 tract. Bemeni v. Smith, 15 Wend. 493. Or, he may resell the 
 carriage, and hold the purchaser liable for any loss on the resale. 
 Ante, p. 687. Where goods are sold to be paid for by a bill or 
 note, at a future day, which is not delivered according to the terms 
 of the sale, the vendor may sue immediately for a breach of the 
 special agreeipent, and recover, as damages, the whole value of 
 the goods, allowing a rebate of interest during the stipulated 
 credit ; but he cannot, however, maintain assumpsit upon the 
 common counts, until the credit has expired. Hanna v. Mills, 
 21 Wend. 90. 
 
 To enable a vendee of a chattel to recover damages for the 
 breach of the contract to deliver, he must prove payment, or a 
 tender of the purchase money, or other performance of the con- 
 tract, upon his own part. McDonald v. Williams, 1 Hilt. 365 ; 
 Cornwall v. Haight, 8 Barb. 328; Topping v. Root, 5 Cow. 404; 
 Clarh V. Dales, 20 Barb. 42; Crandall v. Clark, 7 Barb. 169. 
 But, in an action by a vendee upon a contract for the sale of an 
 article to be delivered at a particular place, if he shows that he 
 was ready to pay at the time and place appointed, it is not neces- 
 sary for him to prove payment or tender. Branson v. Wiman, 
 8 iN". Y. 182. If the payment was to be made in " New York 
 funds," and it is shown that the vendee had means to pay them. 
 
SALE. 745 
 
 there is no necessity of showing that he had obtained such funds 
 for that purpose. Ih. And, in such a case, the vendee need not 
 prove that any demand was made by him upon the vendor. Vail 
 V. Bice, 5 ]Sr. Y. 155. Where the non-performance of a condition 
 precedent is occasioned by the act of either party, either by dis- 
 qualifying himself for performing on his part, or by his giving 
 notice that he will not perform, the party seeking his remedy, is 
 not bound to aver performance, or readiness to perform, on his 
 part, but may allege the facts constituting his excuse ; and if the 
 proof sustains them, he will establish his right to recover such 
 damages as he can show he has suffered by the non-performance 
 of the other party. Clarice v. Grandall, 27 Barb. 73. Where 
 property is sold, and it is to be paid for on delivery, and the 
 vendor gives notice to the vendee that he will not deliver the 
 property, the vendee is not bound to demand performance, nor 
 to tender payment of the price, in order that he may recover 
 damages against the vendor for his non-performance of the con- 
 tract, n. And see Clarke v. Grandall, 3 Barb. 612. And the 
 rule is the same where the vendor fraudulently and falsely repre- 
 sents that he has sold the property. Ih. And in the complaint, it 
 will be sufficient to allege either of these facts in excuse of per- 
 formance on the part of the plaintiff. 76. Where the contract 
 requires the purchaser to give security for the property purchased, 
 he must offer the security in the manner required ; and in an 
 action by him against the vendor for non-delivery of the property, 
 the purchaser must allege and prove the offer of security. Corn- 
 wall V. Haight, 8 Barb. 328. 
 
 A mere declaration of a vendor, to a third person, that he 
 would not be able to deliver the property at the time agreed on, 
 is not evidence of a breach on his part ; and to enable the vendee 
 to recover damages for the non-delivery of the property, he must 
 allege and prove payment, or a tender of the purchase money, or 
 other performance of the contract on his own part ; McDonald v. 
 Williams, 1 Hilt. 365. And see O'Brien v. Brietenback, id. 304; 
 Kipp V. Wiles, 3 Sandf. 585. 
 
 Where an order is drawn upon a person for the delivery of a 
 specified quantity of goods, and the order is accepted by him, it 
 is necessary for the holder of the order to demand the goods before 
 an action can be maintained. Burrall v. Jacot, 1 Barb. 165. 
 Where the defendant, in his own name and upon his own credit, 
 agreed with the plaintiffs for the purchase of a specified quantity 
 
746 SALE. 
 
 of goods, to be paid for in the notes of a third person, and on the 
 delivery of a portion thereof, the time for the delivery of the resi- 
 due is postponed to a time specified, and the plaintiffs present a 
 hill for the quantity delivered, and the defendant denied that he 
 was the purchaser, and refused to deliver the notes agreed for, 
 on the sole ground that he was acting as the agent of another per- 
 son, and was not liable on the contract, the plaintiffs are not 
 bound to tender or offer to deliver the residue of the goods. Par- 
 tridge V. Oildermeister, 6 Bosw. 57, 58. In such case the plain- 
 tiffs are entitled, on proof of such refusal upon the ground stated, 
 to recover the value of the portion of the goods which was deliv- 
 ered, if the jury are satisfied that the purchase was in fact made 
 by the defendant and upon his credit. lb. By placing his re- 
 fusal to pay for the goods upon the ground that he was not bound 
 to pay for them at all, the defendant relieved the plaintiffs from 
 delivering or tendering him any more goods, even if the postpone- 
 ment of the time of the delivery of the residue did not of itself 
 entitle the plaintiffs to claim payment for the portion delivered 
 without waiting for such subsequent delivery. Ih. 
 
 When a sale is complete, and the title to the property is trans- 
 ferred absolutely to the vendee, several important consequences 
 result to the parties. The risk of injury to the property, or of its 
 loss or deterioration is all with the vendee ; he has the sole right 
 of disposal of it; it is liable to be seized by his creditors upon 
 legal process for that purpose ; he may maintain an action against 
 the vendor to recover its possession in case of a refusal to deliver 
 it, or for damages for such refusal, or for a conversion of it. And 
 on the other hand the vendor is entitled to recover the purchase 
 price if delivered ; or to maintain an action for a refusal to receive 
 and pay for the property if not delivered ; and while the property 
 remains in the possession of the vendor he is a mere bailee. 
 
INTEKEST ON MONEY. ,Y47 
 
 CHAPTER XVII. 
 
 INTEREST ON MONEY. 
 
 § 1. Nature and Rate of Interest. 
 
 Interest is the compensation which is paid by the borrower to 
 the lender, or by the debtor to the creditor, for the use of money ; 
 or the compensation which the law awards to a person as a measure 
 of his damages for being kept out of the use of money, to which 
 he was lawfully entitled at some fixed time in the past, through 
 the default or wrongful act of another. Before interest can be 
 allowed in any case, either at law or in equity, it must, as a gen- 
 eral rule, be by virtue of some contract, express or implied, or 
 by virtue of some statute, or on account of the default of the party 
 liable to pay; and then it is allowed as damages for the default. 
 Matter of Trustees, etc., 13Y N. Y. 95 ; Woerz v. Schumacher, 161 
 N. Y. 530. A right to interest can arise in those cases only in 
 which there is an express agreement to pay it, or when the circum- 
 stances of the case are such that the law will imply a promise to 
 pay it, or will enforce its payment as a matter of justice. 
 
 In the absence of any statutory enactment, parties may agree 
 upon such a rate of interest as they choose. But there are restric- 
 tions upon this right which restrain the lender from taking a 
 greater rate of interest than that specified by the statute. These 
 restrictions do not apply to loans of the funds of co-operative sav- 
 ings and loan associations to the members of such associations. 
 Laws of 1894, ch. 705, § 178 ; General Laws, ch. 37, § 178. But 
 see Mutual Benefit Loan & Building Co. v. Lynch, 30 Misc. 499. 
 
 Prior to the year 1879, the statute provided that " The rate of 
 interest upon the loan or forbearance of any money, goods or 
 things in action, shall continue to be seven dollars upon one hun- 
 dred dollars for one year, and after that rate for a greater or less 
 sum, or for a longer or shorter time." 3 R. S. 72, § 1, 5th ed. 
 
 The amendment of that statute in 1879 inserted the word 
 " six " in place of the word " seven " in the original statute, chang- 
 ing the rate of interest from seven to six per cent., and provided 
 that the amendment should go into effect on the first day of Janu- 
 ary, 1880, and should not be so construed as to in any way affect 
 any contract or obligation made before the passage of the act. 
 Laws of 1879, ch. 538. It was held under the statute, as amended, 
 
748 INTEKEST ON MONEY. 
 
 that where a mortgage executed prior to 1879 provided for the 
 payment of interest on the principal sum at the rate of seven per 
 cent, until the principal sum was paid, the mortgage would con- 
 tinue to draw interest at that rate until paid or merged in a judg- 
 ment on foreclosure; and after judgment of foreclosure the mort- 
 gagee was entitled to interest upon the sum found due upon the 
 mortgage, not by virtue of the mortgage, but by virtue of the 
 judgment in which the mortgage had become merged, at the rate 
 of six per cent, per annum. Taylor v. Wing, 84 IST. Y. 471. It 
 was also held that where a mortgage executed before the passage 
 of the amendment provided for the payment of the principal sum 
 in four equal installments, with interest on all sums remaining 
 from time to time unpaid, this meant that the whole principal sum 
 was to be at interest at seven per cent, from the time of the execu- 
 tion of the mortgage until an installment of principal became due ; 
 that where the installment was paid, the interest on the balance 
 remaining unpaid, but not yet due, was also to be at the same 
 rate ; but if an installment was not paid when due, the contract 
 was violated, and interest upon such installment coiild only be 
 recovered as damages and at the rate of interest authorized by law. 
 Ferris v. Hard, 135 IST. Y. 354. It was held in another ease that 
 where a mortgage executed May 10, 1876, by its terms became 
 payable May 10, 1881, the mortgagee was entitled to interest at 
 the rate of seven per cent, to the latter date, and at the rate of 
 six per cent, thereafter. Bennett v. Bates, 94 N. Y. 354. It was 
 also held that a judgment was not a " contract or obligation " 
 within the meaning of the act of 1879, and that the judgment 
 creditor was entitled to interest at seven per cent, on a judgment 
 rendered prior thereto up to January 1, 1880, and at the rate of 
 only six per cent, thereafter. O'Brien v. Young, 95 N. Y. 428. 
 By the decided weight of authority in this State, where one con- 
 tracts to pay a principal sum at a certain future day, with in- 
 terest, the interest prior to the maturity of the contract is payable 
 by virtue of the contract, and thereafter as damages for breach 
 of the contract. Macomber v. Dunham, 8 Wend. 550; United 
 States Bank v. Chapin, 9 "Wend. 471 ; Hamilton v. Van Rensse- 
 laer, 43 N. Y. 244; Bitter v. Phillips, 53 N. Y. 586; O'Brien v. 
 Young, 95 IST. Y. 428 ; Bennett v. Bates, 94 N. Y. 354; Ferris v. 
 Hard, 135 N. Y. 354. And such is the rule as laid down by the 
 Supreme Court of the United States. Brewster v. Wakefield, 
 22 How. (U. S.) 118; Burnhisel v. Firman, 22 Wall. 170; Hoi- 
 
INTEREST ON MONEY. 749 
 
 den V. Trust Co., 100 U. S. 72. The same authorities hold that 
 after the maturity of such a contract, the interest is to be com- 
 puted as damages according to the rate prescribed by law, and not 
 according to that prescribed in the contract if that be more or less. 
 Ih. And see Sanders v. Lake Shore & Michigan Southern By. 
 Co., 94 N. Y. 641. It has also been held, in a number of cases in 
 this State, that where, by the terms of the agreement, interest was 
 reserved at a rate less than that fixed by statute, the rate remained 
 the same until the agreement became merged in a judgment, and 
 did not increase to the legal rate upon the principal money becom- 
 ing due and payable by the terms of the agreement. Miller v. 
 Burroughs, 4 Johns. Ch. 436 ; Van Beuren v. Van Gaasbeck, 4 
 Cow. 496 ; Andrews v. Eeeler, 19 Hun, 87 ; Sullivan v. Fosdick, 
 10 Hun, 173, 188 ; Elmira Iron & Steel Boiling Mill Co. v. City 
 of Elmira, 5 Misc. 194. Where no rate is agreed upon, the law 
 implies it to be that limited by statute. Guggenheimer v. Giesz- 
 ler, 81 N. Y. 293. An agreement to pay and receive more than 
 the statutory rate would be usurious. 
 
 As a general rule, the law of the place where contracts purely 
 personal are made must govern as to their construction and va- 
 lidity, unless they are to be performed in another State or coun- 
 try, and were made in reference to the laws of such State or 
 country, in which case, their construction and validity depend 
 iTpon the law of the place of performance. Pomeroy v. Ainsworth, 
 22 Barb. 120; Balme v. Wombough, 38 Barb. 352; Dike v. Erie 
 Bailwcy, 45 N. Y. 113; Curtis v. Delaware, etc., B. B. Co., 
 74 N. Y. 116 ; Merchants' Bank v. Griswold, 72 N. Y. 472. If 
 no place of performance is expressly stated, or implied from the 
 terms of the contract, the law of the place where it was made vdll 
 govern. If a contract is to be performed partly in one country 
 and partly in another, each portion is to be interpreted according 
 to the laws of the country where it is to be performed. Where 
 a contract for the payment of money is made in one place, and 
 payment is to be made in another, and no interest is expressed 
 in the contract, the interest is to be governed by the law of the 
 place where it is payable. Fanning v. Consequa, 17 Johns. 511 ; 
 Foden v. Slater, 4 Johns. 183 ; Pomeroy v. Ainsworth, 22 Barb. 
 120; Balme v. Wombough, 38 Barb. 352. In the absence of any 
 agreement on the subject, a debt is presumed to be payable at 
 the place where it was contracted, and where the creditor resides, 
 and interest is to be computed according to the rate allowed by 
 the laws in force at that place. Stewart v, Ellice, 2 Paige, 604; 
 
750 INTEEEST 0¥ MONEY. 
 
 Smith V. Smith, 2 Johns, 235; Hosford v. Nichols, 1 Paige, 
 220. 
 
 Where a note is signed, dated and made payable in this State 
 by a resident thereof, with no intention that it shall be taken else- 
 where for discount, is taken to another State and there first nego- 
 tiated at a rate of discount greater than that allowed by our usury 
 laws, no action can be maintained upon it here. Jewell v. Wright, 
 30 N. Y. 259 ; DicUnson v. Edwards, Y7 IST. Y. 573 ; overruling 
 Bowen v. Bradley, 9 Abb. K S. 395. 
 
 The maximum rate of interest on bonds issued to refund the 
 bonded indebtedness of a municipal corporation is fixed by statute 
 at five per cent, per annum, payable annually, semi-annually, or 
 quarterly. Laws of 1892, ch. 685, § 7, as amended by Laws of 
 1893, ch. 466; Laws of 1897, ch. 54. 
 
 § 2. Demands upon Which Interest is Recoverable. 
 
 Where a written instrument, whether it be a bond, bill of ex- 
 change, promissory note, or other obligation to pay money, con- 
 tains an express covenant or agreement to pay interest, then inter- 
 est is plainly recoverable. But there are many cases in which 
 there is no express agreement to pay interest, and yet it is payable 
 by virtue of the rules of law. Interest is recoverable on money 
 due under a special contract, as where compensation for services is 
 agreed upon at a specific sum per month. Still v. Hall, 20 Wend. 
 51; Feeter v. Heath, 11 Wend. 477. So, interest is allowable in 
 an action upon a covenant to pay rent, when the amount is a sum 
 certain and is payable in money. Clark v. Barlow, 4 Johns. 183. 
 So, where rent is payable in produce and work, the lessor is en- 
 titled to recover interest from the time the rent fell due, althotigh 
 the damages are unliquidated and there was no agreement for in- 
 terest. Van Rensselaer v. Jewett, 2 ~N. Y. 135 ; Livingston v. 
 Miller, 11 IST. Y. 80 ; Lush v. Druse, 4 Wend. 313 ; Van Rensse- 
 laer V. Jones, 2 Barb. 643. 
 
 The old common-law rule which required that a demand should 
 be liquidated, or its amount in some way ascertained before inter- 
 est could be allowed, has been modified by general consent, so far 
 as to hold that if the amount is capable of being ascertained by 
 mere computation, then it shall carry interest. McMahon v. New 
 York & Erie B. B. Co., 20 N. Y. 463, 469 ; Graham v. Chrystal, 
 1 Abb. ]Sr. S. 121. And, in some cases, the courts have gone a 
 step further and allowed interest upon an unliquidated demand, 
 the amount of which could be ascertained by computation, to- 
 
INTEREST ON MONEY. 751 
 
 gether with a reference to -well-established market values, because 
 such values in many cases are so nearly certain that it would be 
 possible for the debtor to obtain some proximate knowledge of 
 how much he was to pay. Van Rensselaer v. Jewett, 2 N. Y. 135 ; 
 Sipperly v. Stewart, 50 Barb. 62. But this is as far as the courts 
 have gone in this direction, and it is now the established rule that, 
 in an action to recover unliquidated damages for a breach of con- 
 tract, interest is not allowable unless there is an established market 
 value of the property, or means accessible to the party to be 
 charged of ascertaining by computation or otherwise the amount 
 to which the plaintiff is entitled. Sloan v. Baird, 162 N. Y. 327 ; 
 Gray v. Central B. B. Co. of N. J., 157 N. Y. 483; White v.. 
 Miller, 78 N. Y. .393 ; Mansfield v. N. Y. 0. & H. B. B. B. Co., 
 114 N. Y. 331 ; McMaster v. State, 108 K Y. 542 ; Button v. 
 Kinnetz, 88 Hun, 35. 
 
 Where a person hired rooms and board at a hotel for a specified 
 time at a fixed price per week, but left before the expiration of the 
 time, he was held liable in an action to recover damages for the 
 breach of contract, not only for the difference between what he 
 agreed to pay and what the landlord received from a person to 
 whom he subsequently let the rooms, but also for interest on such 
 difference from, the expiration of the term for which the rooms 
 were hired. De LavaMette v. Wendt, 75 N. Y. 579. In this case, 
 the sum due the plaintiff at the time fixed for the expiration of 
 the term was ascertainable by mere computation, and the amount 
 due was not unliquidated or uncertain in the sense to prevent the 
 running of interest thereon. So, in an action on contract to re- 
 cover damages for the non-delivery of merchandise, it was held 
 that the plaintiff was entitled to recover not only the difference be- 
 tween the contract price and the market value, but also the interest 
 on such difference ; and that the allowance of interest did not rest 
 in the discretion of the jury. Dana v. Fiedler, 12 N. Y. 40. 
 
 But the courts are not inclined to extend the exception to the 
 common-law rule in the direction of allowing interest on a demand 
 the amount of which is left to proof of value at the trial. See 
 McMahon v. New YorTc & Erie R. B. Co., 20 N. Y. 463, 469 ; 
 Gallup V. Perue, 10 Hun, 525. 
 
 There are many cases in which interest may be charged upon 
 what is called an implied agreement, or upon an agreement which, 
 under the circumstances of the case, is one where the law declares 
 that interest ought to be paid, and therefore enforces the duty by 
 compelling its payment. 
 
752 INTEEEST ON MONEY. 
 
 As a general rule, interest is allowable on cash advanced by 
 one person for another, although the advances rest in the form 
 of a mutual, current, unliquidated account. Rensselaer Glass Fac- 
 tory V. Beid, 5 Cow. 588 ; Gillet v. Van Rensselaer, 15 IST. Y. 397, 
 399 ; Trotter v. Grant, 2 Wend. 413, 415 ; Eldred v. Eames, 48 
 Hun, 253 ; Foley v. Foley, 15 App. Div. 276. See Woerz v. Schu- 
 macher, 161 IST. Y. 530. So, interest is chargeable upon the sum 
 due on a policy of insurance after a loss, and after the time when 
 the money is due upon it. Vandenheuvel v. United Ins. Co., 1 
 Johns. 406, 413. A forwarding merchant is entitled to charge 
 interest on his account, where his customer knows that such is 
 his ordinary usage. Meech v. Smith, 7 Wend. 315. One who 
 has deposited money on a bet, and the money has been paid over, 
 may, nevertheless, recover the money with interest thereon from 
 the time a demand is made therefor. Ruckman v. Pitcher, 20 
 N. Y. 9; S. 0., 13 Barb. 556. If one partner withdraws or uses 
 the partnership funds in his own private trade or speculations, he 
 must account not only for the interest on the money so withdrawn 
 or used, but for the profits of the trade. Stoughton v. Lynch, 1 
 Johns. Ch. 467; S. C, 2 Johns. Ch. 209; Ames v. Downing, 1 
 Bradf. 321. Where, by a partnership agreement, one of the part- 
 ners was to make certain advances, and the agreement is silent 
 as to the payment of interest on the advances, none will be allowed, 
 as the sharing of the profits is a sufiicient compensation for the 
 advances. Lewis v. Whitehall Lumber Co., 14 St. Bep. 302. 
 But where a written settlement between partners up to a certain 
 date shows an allowance of interest, this, in the absence of evi- 
 dence to the contrary, will be held conclusive evidence of an 
 agreement to pay interest. Bulloch v. Bemis, 20 St. Bep. 836. 
 Where a principal brings an action against his agent for an ac- 
 counting, the agent may be charged with interest upon balances 
 found due from him in the adjustment of his accounts, represent- 
 ing moneys of his principal which should have been paid over. 
 Bonn V. Steiger, 2 St. Bep. 90. The right to interest upon an ac- 
 counting in equity is not limited to such claims only as interest 
 might be recoverable upon at law. Interest is allowable in some 
 cases by courts of equity where it would not be recoverable at 
 law, and in such cases it is allowed or refused by the court in 
 the exercise of a sound discretion. Woerz v. Schumacher, 161 
 ISr. Y. 530, 538. 
 
 Interest is not considered as a part of the debt, so as to support 
 a suit for it separately, after the principal has been paid. John- 
 
INTEKEST ON MONEY. 753 
 
 ston V. Brannan, 5 Johns. 268 ; Brower v. Jones, 3 Johns. 230 ; 
 Stevens v. Barringer, 13 Wend. 639. Where interest is only re- 
 coverahle as damages for the non-payment of the principal when 
 it became due, the receipt of the principal debt by the creditor is 
 a bar to any claim for interest thereon. Jacob v. Emmett, 11 
 Paige, 142 ; Hamilton v. Yan Rensselaer, 43 IST. Y. 244 ; Cutter 
 V. Mayor, etc., of N. Y., 92 E". Y. 166 ; McCreery v. Day, 119 N". 
 Y. 1, 9 ; Devlin v. Mayor, etc., of N. Y., 60 Hun, 68 ; Southern 
 Cent. Railroad Co. v. Town of Moravia, 61 Barb. 180 ; Bronze Gas 
 & Electric Co. v. City of N. Y., 29 Misc. 402. 
 
 But an action may be maintained for the recovery of interest, 
 although the principal of a debt has been paid, where the payment 
 of interest is stipulated for in the contract ; it is only when inter- 
 est is not stipulated for in the contract, and is recoverable merely 
 as damages, or as an incident to the debt, that a creditor is pre- 
 cluded from maintaining an action for its recovery, after accepting 
 the principal. FaJce v. Eddy, 15 Wend. Y6 ; Southern Cent. Bail- 
 road Co. V. Town of Moravia, 61 Barb. 180. 
 
 In an action upon a bond conditioned to indemnify the obligee 
 against moneys which he may be compelled to pay for a third 
 person, the obligee may recover the moneys he may be compelled 
 so to pay, to the amount of the penalty, together with interest 
 upon the amount as damages for the detention. Lyon v. Clarh, 8 
 'N. Y. 148. Such a bond, although in form one of indemnity, is 
 a bond for the payment of money only, and the obligors, although 
 describing themselves as the attorneys of a third person, are in 
 no respect sureties. lb. Where the sum actually due, by the con- 
 dition of a bond without interest, equals the penalty, interest can 
 be recovered as damages beyond the penalty. lb. The apparent 
 conflict in the cases upon the question whether a recovery in 
 debt, upon a penal bond, can be had beyond the penalty, arises 
 from confounding actions on bonds for the performance of cove- 
 nants, with actions on bonds for the recovery of money only. In 
 the former class of cases, the recovery is generally limited to the 
 amount of the penalty, while in the latter it is not. lb. See Grif- 
 fiths V. Hardenbergh, 41 N. Y. 464, 470; Beers v. Shannon, IS 
 IST. Y. 292 ; Woerz v. Schumacher, 161 N. Y. 530, 538. 
 
 The recovery against a surety in a bond for the payment of 
 money is not limited to the penalty, but may exceed it so far as 
 necessary to include interest from the time of the breach. Brain- 
 ard V. Jones, 18 N. Y. 35. So far as interest is payable by the 
 terms of the contract, and until default is made, it is limited to 
 48 
 
TSi INTEREST 01^ MOInTEY. 
 
 the penalty, but after breach it is recoverable, not on the ground 
 of contract, but as damages, which the law gives for its viola- 
 tion, li. In the absence of an express agreement, or of a cus- 
 tom known to the party charged, interest cannot be charged by a 
 forwarding and commission merchant, on items for freight, wharf- 
 age and storage; he is entitled to interest on cash advances only. 
 Trotter v. Grant, 2 Wend. 413. 
 
 A merchant or manufacturer whose custom it is, after a limited 
 period, to charge interest upon articles sold or manufactured by 
 him, may charge interest accordingly to those who are in the habit 
 of dealing with him with a knowledge of such custom. Beab v. 
 McAllister, 8 Wend. 109 ; S. C, 4 Wend. 483. 
 
 Although the law does not, in general, give interest upon an 
 open running account for goods sold, yet it may be recovered 
 where there was a stipulated term of credit given which has 
 expired, or where there is an agreement, express or implied, to pay 
 interest. Esterly v. Cole, 3 N. Y. 502 ; S. C, 1 Barb. 235. And 
 an agreement to pay interest may be inferred from the course of 
 dealing between the parties, as where it has been charged and 
 allowed under like circumstances. Ih. So it may be inferred 
 from a uniform practice of the creditor to charge interest, which 
 is known to the customer at the time of dealing. lb. So, also,^ 
 where there is a general usage in any particular trade or branch 
 of business, to charge and allow interest, parties having knowl- 
 edge of the usage are deemed to contract with reference to it. lb. 
 
 Dealers are not presumed to know such customs ; the knowledge 
 must be established either by positive evidence, or by circum- 
 stances from which it may be inferred. lb. Knowledge of the 
 usage may be established by presumptive, as well as by direct evi- 
 dence. It may be presumed from the fact that both parties are 
 engaged in the particular trade or branch of business to which 
 the usage relates; and also from other facts, as the uniformity, 
 long continuance and notoriety of the usage. Esterly v. Coh, 3 
 N. Y. 504. The testimony of a witness that it is the uniform 
 practice of grocers to charge interest on goods sold, after ninety 
 days, unless a special agreement to the contrary is made, does 
 not amount to proof of the usage of a particular trade, of which 
 all dealers in that line are bound to take notice, and are presumed 
 to be informed. Wood v. HickoTc, 2 Wend. 501. Evidence of 
 such a custom or practice is competent, but, standing alone, it 
 is not sufficient to establish a knowledge on the part of the pur- 
 chaser that interest is thus chargeable. 
 
INTEREST ON MONEY. 765 
 
 Interest cannot be allowed on an unliquidated account for goods 
 sold and delivered, where no time is fixed for payment, and where 
 there is no agreement, express or implied, to pay interest. Mc- 
 Knight v. Dunlop, 4 Barb. 36 ; Van Beuren v. Van GaashecTc, 
 4 Cow. 496 ; Newell v. Oriswold, 6 Johns. 45 ; Tucker v. Ives, 
 6 Cow. 193 ; Kane v. Smith, 12 Johns. 156 ; Liotard v. Graves, 
 3 Caines, 226. An account which consists of items on the part of 
 the plaintiff, and only of credits and payments on the part of 
 the defendant, is an unliquidated account, which does not carry 
 interest without an agreement, express or implied. Wood v« 
 Hickoh, 2 Wend. 501. 
 
 , Upon a recovery upon a premium note for the non-payment of 
 an assessment, the plaintiff is not entitled to interest on the amount 
 of the note, the recovery for the whole amount being in the nature 
 of a penalty. Bangs v. Mcintosh, 23 Barb. 592 ; Bangs v. Bailey, 
 37 Barb. 630. But see Hyatt v. Wait, id, 30. Where the ven- 
 dee, in a contract for the purchase and sale of real estate, takes 
 possession of the property as owner, without having paid the 
 purchase-money, he is bound to pay interest. Stevenson v. Max- 
 well, 2 N. Y. 408. Where a contract is made for the sale of real 
 estate, and the vendor cannot, or will not, give a good title to the 
 land, he must refund the purchase-money paid, with interest from 
 the time when he was bound to convey, if he refuses to convey, 
 and from the time when a deed is demanded, if he cannot give a 
 good title. Pierce v. Nichols, 1 Paige, 244. 
 
 Where the purchaser of personal chattels has paid the price in 
 advance, and the vendor neglects or refuses to deliver the prop- 
 erty, the purchaser will be entitled to recover the value of the 
 goods at the time when they were to have been delivered and at 
 the place of delivery, with interest on such value. Where the price 
 has not been paid in advance, and the action is brought by the 
 vendee for the non-delivery of the goods, he is entitled to recover 
 the difference between the contract price and the market value 
 of the articles at the time and place of delivery, with interest 
 thereon. Dana v. Fiedler, 12 N. Y. 40. 
 
 Where goods are sold at a cash sale, the purchase price will 
 draw interest from the time of the sale, if the money is not paid 
 at that time. Sewall v. Oihbs, 1 Hall, 602. A sale is presumed 
 to be for cash unless the giving of a credit is proved. And where 
 a bill for goods sold includes a charge for interest upon the price, 
 and the purchaser, upon its presentation to him, promises to pay 
 the bill as made out, the allowance of interest down to the time 
 of trial is proper. Pollock v. Ehle, 2 E. D. Smith, 541. 
 
756 INTEEEST ON MONEY. 
 
 Aji unliquidated account for work, labor and services does not 
 bear interest. Rensselaer Glass Factory v. Beid, 5 Cow. 588 ; 
 Doyle V. St. James' Church, 7 Wend. 178 ; De Witt v. De Witt, 
 46 Hun, 258; Smith v. Velie, 60 N. Y. 106; Hand v. Church, 
 39 Hun, 303. 
 
 In an action upon an account for medical attendance, when a 
 demand of payment is proved, but there is no evidence as to when 
 the services were rendered nor when the demand was made, in- 
 terest can be allowed to the plaintiff from the commencement of 
 the suit only. Rawson v. Grow, 4 E. D. Smith, 18 ; Doyle v. St. 
 James' Church, 7 Wend. 178. And see Robinson v. Stewart, 10 
 ]Sr. Y. 190. ISTor is interest recoverable on a bill for official fees, 
 unless there has been a regular taxation. Mumford v. Hawkins, 
 5 Denio, 355. In an action for use and occupation, interest is 
 recoverable on the rent due, when the tenant is in possession under 
 a written sealed lease. Ten Eych v. Houghtaling, 12 How. 523 ; 
 Williams v. Sherman, 7 Wend. 109. The action need not be 
 covenant on the lease, but may be an action to recover rent, and 
 make the use and occupation the ground of action. lb. 
 
 In actions in relation to personal property, interest is some- 
 times allowed by way of damages. In an action in the nature of 
 trover, for a conversion of personal property, interest is allowable 
 on the value from the time of the conversion to the time of the 
 trial. Wilson v. Conine, 2 Johns. 280 ; Bissell v. Ho'phins, 4 Cow. 
 53 ; Hyde v. Stone, 7 Wend. 354. The rule is the same in actions 
 of trespass for wrongfully and unlawfully taking personal prop- 
 erty. Beats V. Guernsey, 8 Johns. 446. In replevin, the damages, 
 Avhen limited to an indemnity, will be ascertained, by adding to 
 the value of the property at the time when the O'wner is dispos- 
 sessed, the damages which he is proved to have sustained from the 
 loss of its possession. Interest on the value which the property 
 bore at the time of the injury, from that time to the time of the 
 trial or judgment, mi;st always be added to complete the indemnity. 
 Suydam v. Jenkins, 3 Sandf. 614; Rowley v. Gibbs, 14 Johns. 
 385. 
 
 Where money is loaned at less than the legal rate of interest, 
 but the contract of lending is indefinite as to the length of credit, 
 and after the death of the lender, the borrower denies the debt and 
 conceals the evidence of it, he is chargeable with interest at the 
 legal rate, from the time of such denial and concealment. Law- 
 rence V. Trustees of Leake & Watts Orphan House, 2 Denio, 
 577. 
 
INTEREST ON MONEY. 757 
 
 " Whenever real property held by any person for life is incum- 
 bered by mortgage or other lien, the interest on which should be 
 paid by the life tenant, and such life tenant neglects or refuses 
 to pay such interest, the remainderman may pay such interest, 
 and recover the amount thereof, together with interest thereon 
 from the time of such payment, of the life tenant." General Laws, 
 ch. 46, § 233. 
 
 § 3. Interest upon Interest. 
 
 Occasionally a claim is made for interest upon interest, or, as 
 it is usually termed, compound interest. In the absence of an 
 express agreement to pay it, the law will not give compound in- 
 terest. Forman v. Forman, 17 How. 255; Toll v. Hiller, 11 
 Paige, 228. A contract is not usurious by reason of stipulating 
 for the payment of compound interest. But the cotirts of this 
 State will not enforce an agreement for its payment, when the 
 agreement is made before any interest accrues. Connecticut v. 
 JacJcson, 1 Johns. Ch. 13 ; Van Benschooten v. Lawson, 6 Johns. 
 Ch. 313; Quackenbush v. Leonard, 9 Paige, 334; Toll v. Hiller, 
 11 Paige, 228 ; Howry v. Bishop, 5 Paige, 98 ; Young v. Hill, 
 67 N. Y. 162. But, where there is a loan of money, and interest 
 has become due and payable, an agreement may be made to in- 
 clude the interest then due with the principal sum, and that both 
 shall be considered a new principal and draw interest. And a 
 note, bond or other obligation which is founded upon such an 
 agreement, is valid, and may be enforced in a court of law or 
 equity. Kellogg "v. HicJcok, 1 Wend. 521 ; Townsend v. Corning, 
 1 Barb. 627; Mowry v. Bishop, 5 Paige, 98. In this State in- 
 terest upon interest cannot be recovered unless by force of a con- 
 tract ; and the contract to be valid must be made after the interest 
 which is to bear interest has become due, and it must be supported 
 by a sufficient consideration. Young v. Hill, 67 N. Y. 162. See 
 Peyser v. Myers, 56 Hun, 175. Subject to these qualifications 
 an agreement to pay interest upon interest is valid and binding. 
 Ournsey v. Bexford, 63 N. Y. 631. 
 
 When a mortgage is assigned by the mortgagee with the con- 
 currence of the mortgagor, and there is interest then due and 
 unpaid upon the mortgage, which is paid by the assignee as well 
 as the principal sum, he may recover interest on the money ,so 
 paid for the interest as well as upon the principal sum. Jackson 
 V. Campbell, 5 Wend. 572. A promissory note, payable one year 
 
758 INTEKEST ON MONEY. 
 
 after date, with interest to be paid quarter yearly, is valid. 
 Mowry v. Bishop^ 5 Paige, 98. Compound interest cannot be 
 claimed unless the debtor intends and agrees to pay it. 
 
 Where a creditor claimed and received from his debtor, upon 
 the liquidation of a security bearing annual interesit, an amount 
 ascertained by a third person who made annual rests and com- 
 puted interest upon interest, both parties supposing the amount 
 to be correct, it was held that an action for money had and 
 received, would lie to recover back the excess paid beyond the 
 amount due by a calculation upon correct principles. Boyer v. 
 Pach, 2 Denio, 107. 
 
 Without a special agreement compoimd interest is allowable 
 only in case of gross delinquency or of intentional violation of 
 duty. Bennett v. Cooh, 2 Hun, 526 ; Lansing v. Lansing, 45 
 Barb. 191 ; Garniss v. Gardiner, 1 Edw. Ch. 128. The law 
 exacts of a trustee fidelity to his trust. If he is guilty of fraud 
 or mismanagement of the trust fund, or is guilty of a breach of 
 trust, or has used trust funds for his own purpose and made a 
 profit therefrom, he may be compelled to pay interest, and in 
 extraordinary cases compound interest, so as to place the cestui 
 que trust in the same situation as if the trustee had faithfully 
 performed his duty. But a trustee is not chargeable with interest 
 solely because he deposits the trust moneys with his own, or uses 
 them in his business ; there must be in addition a breach of trust, 
 a neglect or refusal to invest the fund at the time, or in the manner 
 the trust instrument or the law points out. Price v. Holman, 
 135 K Y. 124. 
 
 § 4. From What Time Interest Commences to Eun. 
 
 Interest isi not payable before the principal on which it accrues, 
 unless there be a special agreement to that effect. French v. 
 Kennedy, 7 Barb. 452. 
 
 There is no general principle of law which requires the interest 
 on notes, bonds or other written contracts for the payment of 
 money, to be paid annually. The time at which it is to be paid 
 mtist depend upon the agreement of the parties as expressed in 
 the contract. Bander y.' Bander, 7 Barb. 560; 5 How. 41. A 
 promissory note in these words, " Eor value received, I promise to 
 pay M. B., or bearer, the sum of $1,000, payable in ten annual 
 installments, with use; the first payment to become due on the 
 first day of June, 1848," does not draw interest annually on the 
 
INTEREST ON MONEY. Y59 
 
 -whole sum unpaid ; but interest is payable on the several install- 
 ments only as they respectively become due. lb. This decision 
 proceeds upon the principle that interest is not payable until the 
 principal sum is due, unless a different agreement is made by an 
 •express contract. Interest is recoverable on contracts for the 
 payment of money from the time when the principal ought to 
 have been paid. Williams v. Sherman, 7 Wend. 109. A bond, 
 dated in October, 1827, was conditioned for the payment of a sum 
 of money in three installments, one on the first day of May, 1830, 
 another on the first day of May, 1832, and the third on the first 
 day of May, 1884, and following the condition were these words: 
 " or of the interest thereof or any part thereof, to be paid yearly, 
 and every year, on the first day of May in each year, after the 
 same commences, then," etc. ; and it was held that the interest 
 must be deemed to have commenced on the first day of May, 1828, 
 on the whole sum unpaid. Fake v. Eddy, 15 Wend. 76. A sum 
 of money, payable by an instrument in which interest is not men- 
 tioned, and which does not specify any time of payment, or that 
 the money is payable on demand, draws interest from the date 
 of the instrument. Purdy v. Philips, 11 jST. Y. 406 ; *S^. C, 1 
 Duer, 869 ; Farquhar v. Morris, 7 Term, 124. 
 
 It isi a general principle of law that where a debtor is in default 
 for not paying money, delivering property or rendering services, 
 in pursuance of his contract, he is chargeable with interest, from 
 the time of the default, on the specified amount of money, or on 
 the value of the property or services at the time they should have 
 been rendered or paid. Van Rensselaer v. Jewett, 2 jST. Y. 135 ; 
 Adams v. Fort Plain Bank, 36 N. Y. 255 ; Board of Supervisors 
 V. Clark, 92 N. Y. 391 ; Glaser v. N. Y. Physicians Mut. Aid 
 Assn., 32 Misc. 67. 
 
 A judgment for a sum of money, rendered in a court of record 
 or not of record, or a judgment rendered in a court of record, 
 directing the payment of money, bears interest from the time 
 when it is entered. But where a judgment directs that money 
 paid out shall be refunded, or repaid, the direction includesi in- 
 terest from the time when the money was paid, unless the contrary 
 is expressed. Code of Civil Pro., § 1211. 
 
 No legacy can be lawfully paid by any executor or adminis- 
 trator until after the expiration of one year from the time of 
 granting letters testam^entary or of administration, unless directed 
 "by the will to be sooner paid. Id. § 2721. Interest is payable 
 upon a general pecuniary legacy at the expiration of one year after 
 
760 INTEREST ON MONEY. 
 
 the granting of letters testamentary or of administration, whether 
 temporary or final. Matter of Oakes, 19 App. Div. 192 ; Matter 
 of McGowan, 124 JST. Y. 526. Where the legacy itself is the 
 income of a trust fund, to be set apart and invested, the rule does 
 not apply, and the legatee is entitled to the income of the trust 
 fund from the death of the testator, but is not entitled to 
 demand payment of the income until the expiration of one 
 year from the grant of letters. Matter of Stanfield, 135 N. Y. 
 292; Goohe v. Meeker, 36 N. Y. 15; Matter of Benson, 96 K 
 Y. 499, 511. As a general rule, where a time is specified for the 
 payment of a legacy, and there is no direction as to interest, the 
 legacy will carry interest only from the time the legacy is payable. 
 Brown v. Knapp, 79 N. Y. 136; Thorn v. Garner, 113 N. Y. 
 198. But there is a well-defined exception to this rule. Where 
 the legacy is to a minor child, or to an infant to whom the testator 
 stood in loco parentis, and such legatee has no other provision 
 nor any maintenance, in the meantime, allotted by the will, the 
 legacy though payable at a future day, carries interest from the 
 death of the testator. Brown v. Knapp, 79 N. Y. 136; Cooke v. 
 Meeker, 36 N. Y. 15; King v. Talbot, 40 X. Y. 76; Matter of 
 Travis, 85 Hun, 420. An absolute bequest to the testator's widow 
 in lieu of dower and distributive share is not payable until one 
 year from the date of issuing letters testamentary and interest 
 on the legacy does not commence to run until that time. Matter 
 of Barnes, 7 App. Div. 13. 
 
 Where land has been taken for a public use by condemnation 
 proceedings and the statute fixes the time when the award shall 
 be paid, interest on the award runs from that time. Supervisors 
 of Erie v. Gity of Buffalo, 63 Hun, 565. Where there has been 
 only a constructive taking of the land, and the owner has been 
 left in undisturbed possession, this will materially affect his right 
 to interest on the award. See Donnelly v. Gity of Brooklyn, 121 
 ]Sr. Y. 9. In the absence of any provision in the statute fixing 
 the time of payment, or any facts changing the ordinary rule, 
 interest on the award will commence to run from the entry of 
 the final order. Trustees of N. Y. & Brooklyn Bridge v. Third 
 Methodist Episcopal Ghurch, 45 St. Rep. 615. 
 
 Interest is due on a balance of account from the time it is 
 liquidated ; and it is to be considered as liquidated when rendered, 
 if no objections are made to it. Walden v. Sherburne, 15 Johns. 
 409 ; Beers v. Reynolds, 12 Barb. 288 ; 11 N. Y. 97. 
 
 Interest is chargeable on a balance of accounts, only from the 
 
INTEREST ON MONEY. 761 
 
 time tliat the party again&t whom the charge is made, has notice 
 of the deficiency on his part. Kane v. Smith, 12 Johns. 156. 
 Where a running account is presented, with interest calculated to 
 the day of such presentment, and the debtor admits its correct- 
 ness, except as to specified items, and he makes a payment on ac- 
 count, the creditor, upon afterwards proving the correctnessi of 
 the account in respect to the items objected to, is entitled to interest 
 from the time of presentment, upon the whole balance left unpaid. 
 Crane v. Hardman, 4 E. D. Smith, 448. 
 
 It is well settled, as a general rule, that interest is not recover- 
 able unless there is an express agreement to pay it, or unless the 
 plaintiff's demand was either liquidated, or capable of being as- 
 certained by computation merely, or could be determined by a 
 reference to ordinary market rates. McMahon v. N. Y. & Erie 
 E. R. Co., 20 N. Y. 463. But where the debtor is himself in 
 default in not taking the proper and requisite steps to ascer- 
 tain the amount of his debt, as where a contract for the construc- 
 tion of a railroad provided that the work should be paid for ac- 
 cording to estimates and measurements which were to be made 
 by the engineer of the company, and the company refused to 
 direct their engineer to make the necessary estimates, although 
 requested by the contractor to do so, it was held that interest 
 was allowable on the demand from the time of such refusal by 
 the company. Ih. 
 
 Interest may be recovered on the amount agreed to be paid as 
 a compromise of a disputed right or claim ; and the interest com- 
 mences running from the time when there is a performance of 
 the acts which were to be done by the person to whom the pro- 
 mise was made, and to whom the money was to be paid. Palmer 
 V. North, 35 Barb. 282. 
 
 Where the principal beneficiary under a will promised the heirs- 
 at-law a specified sum if they would not oppose the probate of 
 the will, and the heirs assented to the arrangement, and the will 
 was admitted to probate, it was held that interest was payable 
 on the specified sum from the time when the will was admitted 
 to probate. lb. 
 
 Entries in the books of account of a firm, in the handwriting 
 of one of the partners, exhibiting a debit and a credit side of an 
 account, from which it appears a balance is due from the firm, 
 although no balance is struck in the books', is proof sufficient of 
 the original indebtedness, and entitles the creditor to interest 
 from the time that the parties inspected the accounts while in 
 
762 INTEKEST ON MOI^EY. 
 
 that situation. Patterson v. Choate, 7 Wend. 441. This case 
 has been overruled upon another point, but not in respect to the 
 principle just stated. Interest is not recoverable upon an unliqui- 
 dated demand for board and lodging, nor can it be set off, where 
 there was no price, or time of payment, stipulated between the 
 parties, or to be inferred from the facts; and when there is no 
 proof of usage on the subject. Holmes v. Banking 17 Barb. 454. 
 And see McMahon v. New York & Erie B. B. Co., 20 N. Y. 
 469. 
 
 In covenant for non-payment of rent on a lease reserving a 
 certain number of bushels of wheat and a number of fowls annu- 
 ally, the plaintiff is entitled as a matter of law to interest on the 
 value of the property after the time when, by the terms of the 
 lease, it should have been delivered. Van Bensselaer v. Jewett, 
 5 Denio, 135; 8. C, 2 K T. 135; Livingston v. Miller, 11 N. Y. 
 80 ; Lusli v. Druse, 4 Wend. 313 ; Yan Bensselaer v. Jones, 2 
 Barb. 644. 
 
 A chattel note which promises to pay a sum certain at a speci- 
 fied time, ought, on the same principle, to entitle the holder to 
 recover the amount due, with interest from the time when default 
 was made in the payment of it. And the rule ought to be the 
 same when a chattel note is payable in a specified number or 
 qiiantity of articles, as is the case in actions for rents. Dana v. 
 Fiedler, 12 N. Y. 40 ; Clark v. Finney, 7 Cow. 681. 
 
 Promissory notes and bills of exchajige draw interest from the 
 time when they become due, vdthout any agreement for interest. 
 And when they are payable with interest, they bear interest from 
 the date, unless some other time is specified in the instrument. 
 Kennerly v. Nasli, 1 Stark. IST. P. 452. 
 
 Where a note is payable on demand, it is deemed to be due at 
 its date, and may be prosecuted immediately, although an actual 
 demand must be made to entitle the holder to draw interest upon 
 the principal sum. Scovil v. Scovil, 45 Barb. 517, 523. Au 
 accepted negotiable draft for the payment of money draws interest 
 from the time of its negotiation. Clark v. Lake Ave. Fermanent 
 Savings & Loan Assn., 48 St. Hep. 189. 
 
 No demand is necessary before bringing an action for money 
 received to the plaintiff's use, where it was the duty of the defend- 
 ant to have remitted it, and in such a case interest is recoverable 
 from the time when it ought to have been remitted. Stacy v. Gra- 
 Jiam, 14 ]Sr. Y. 492. Interest is recoverable against a person in- 
 trusted with the collection of money, as a loan officer who retains 
 
INTEREST ON MONEY. 763 
 
 i-t and converts it to his own use, from the time when the sum 
 ought to have been paid over. People v. Gasherie, 9 Johns. 71. 
 A party who receives money which belongs to another, and who 
 refuses to pay it over, is chargeable with interest, although he 
 lias a set-off, and the precise amount due from him is not liqui- 
 dated previous to the commencement of the suit. Greenly v. Hop- 
 Uns, 10 Wend. 96. Where a sheriff is in default for not paying 
 •over money pursuant to an order of the court, he is liable to pay 
 interest on the amount from the time when a demand was made 
 in pursuance of the order. SUngerland v. Swart, 13 Johns. 255. 
 So, if a sheriff retains money which he has collected on an execu- 
 tion after its return day, he is liable to pay interest. Crane v. 
 Dygert, 4 Wend. 675. Where a person is bound to pay over 
 money, or to remit it, without a demand before suit, such person 
 is liable to pay interest from the time when the money ought to 
 have been paid or remitted, although no demand has loeen made 
 before suit. But, when such person is not under obligation to 
 pay over the money, or to remit it without further instructions, 
 or until after a demand or a notice to pay over, or remit it, a 
 'demand must be made before interest can be collected of him. 
 
 § 5. Computation of Interest. 
 
 The rule for computing interest is well settled in this State. 
 '" The rule for casting interest, when partial payments have been 
 made, is to apply the payment, in the first place, to the discharge 
 of the interest then due. If the payment exceeds the interest, the 
 surplus goes towards discharging the principal, and the subsequent 
 interest is to be computed on the balance remaining due. If the 
 payment be less than the interest, the surplus of interest must not 
 be taken to augment the principal ; but interest continues on the 
 former principal until the period when the payments, taken to- 
 gether, exceed the interest due, and then the surplus is to be ap- 
 plied towards discharging the principal; and interest is to be 
 computed on the balance of principal as aforesaid." Kent, 
 ■Chancellor, in Connecticut v. Jackson, 1 Johns. Ch. 13, 17. The 
 same rule obtains in the Supreme Court. " The rule of practice 
 is, to calculate interest on the principal, up to the time when the 
 payment has been made; add this interest to the principal, and 
 then deduct the payment, without regard to the time when made, 
 whether before or after the expiration of the year. This rule, 
 however, is to be adopted only in cases where the payment ex- 
 
764 INTEREST ON MONEY. 
 
 ceeds the interest due; otherwise, it will be taking interest upon 
 interest. Where the payment falls short of the interest due, in- 
 terest must be calculated on the principal up to the time when the 
 payments will overrun the interest due on the principal debt, and 
 the deduction then be made." Williams v. HougMaling, 3 Cow. 
 87, note a. See Peyser v. Myers, 135 N. Y. 599. 
 
 Where partial payments are made upon a bond or other obliga- 
 tion, after the money has become due and payable by the terms 
 of the instrument, the day on which the payment was to have 
 been paid, is to be disregarded in the computation of interest. 
 The rests are to be made at the times when the payments are actu- 
 ally made, unless the payment should fall short of the interest 
 then due ; in which case, the rest is to be made when the first 
 payment is received, which, taken with the previous smaller ones, 
 in the aggregate, exceeds the amount of interest due at the time. 
 French v. Kennedy, 1 Barb. 452. In the case of an over-payment, 
 which becomes a partial ante-payment, with respect to future in- 
 stallments, the amount of such over-payment should be immedi- 
 ately applied to the principal and interest to become due on the 
 next annual pay-day, leaving the interest to be computed on the 
 balance. Ih. Where money is lent, to be paid at or on a certain 
 day specified, with interest, to be paid, in the meantime, at stated 
 periods, the borrower cannot, by tendering the debt or principal 
 before the day stipulated for its payment, stop the interest ; for 
 the time of payment, in such case, is part of the contract, and 
 for the mutual benefit and convenience of both parties. Ellis v. 
 Craig, 7 Johns. Ch. 7. 
 
 But, after a debt is due, the debtor may tender the money due, 
 and if the creditor refuses to receive it, he cannot recover interest 
 from the time of the tender, although he may recover the principal. 
 Raymond v. Beamard, 12 Johns. 274; Spestcee, Ch. J., in Wol- 
 cott V. Van Bantvoord, 17 Johns. 253. And see Manny v. Harris, 
 2 Johns. 24. 
 
 A person who is prohibited by an injunction from paying the 
 principal, will not be compelled to pay interest to the person who 
 obtained such injunction and restrained the payment thereof. 
 Stevens v. Barringer, 13 Wend. 639 ; Gillespie v. Mayor, etc., 
 of New YorTc, 3 Edw. Ch. 512. And see North American Fire 
 Ins. Co. V. Mowatt, 2 Sandf. Ch. 108. 
 
USUEY. 765 
 
 CHAPTER XVIII. 
 
 USURY. 
 
 § 1. What Constitutes Usury. 
 
 The subject of interest for the use of money having been dis- 
 cussed, the next subject which requires attention is the law relat- 
 ing to usury. Both subjects might have been considered together, 
 but convenience of reference may be facilitated by a separate view 
 of the questions. Usury is the illegal profit which is required 
 and received by the lender of a sum of money from the borrower, 
 for its use. 
 
 In point of law, it is entirely immaterial in what manner or 
 form or under what device or pretense usury is taken. The inge- 
 nuity of man has been taxed in vain in the effort to avoid the 
 laws in relation to the subject. And whenever a court or jury 
 can clearly see that any contract, whatever may be its form, is 
 really intended as a cover for taking usury, such contract will be 
 declared void. And where the plain undisputed facts in a case 
 establish a case of usury, and the defense of usury is properly 
 interposed by answer, and on the trial a verdict of a jury is ren- 
 dered in favor of the plaintiff and against such defense, it will 
 not be of any avail, and will be set aside by the court. White v. 
 Stillman, 25 N. Y. 541. And, in such a case, where it appeared 
 on the trial that the first taker of the note advanced the money on 
 it, and during the negotiations with the maker, the first taker 
 stated that he should have to charge one and a half per cent, a 
 month for discounting it, though he also spoke of getting it dis- 
 cotinted for the maker, it was held to be erroneous to submit to 
 the jury the question whether the taker of the note sold it as agent 
 or broker for the maker. Ih. 
 
 The statutes of this State are substantially copies of the Eng- 
 lish statutes, except as to the rate of interest. The several States 
 of the Union have enacted similar statutes, though there is quite 
 & diversity as to the rate of interest in each of them. 
 
 The New York statutes, so far as it is important to give them, 
 are as follows : " The rate of interest upon the loan or forbear- 
 ance of any money, goods or things in action, shall continue to 
 be seven, dollars upon one hundred dollars for one year, and after 
 that rate for a greater or less sum, or for a longer or shorter 
 time." 3 E. S. 2253, § 1, Yth ed. 
 
766 USUEY. 
 
 " ISTo person or corporation shall, directly or indirectly, take or 
 receive in money, goods or things in action, or in any other way, 
 any greater sum or greater value, for the loan or forbearance of 
 any money, goods or things in action, than is above prescribed.'* 
 Id. § 2. 
 
 " Every person who, for any such loan or forbearance, shall 
 pay or deliver any greater sum or value than is above allowed 
 to be received, and his personal representatives, may recover in 
 an action against the person who shall have taken or received the 
 same, and his personal representatives, the amount of the money 
 so paid or value delivered, above the rate aforesaid, if such action 
 be brought within one year after such payment or delivery." Id. 
 § 3. 
 
 " If such suit be not brought within the said one year, and 
 prosecuted with effect, then the said sum may be sued for and 
 recovered with costs, at any time within three years after the said 
 one year, by any overseer of the poor of the town where such pay- 
 ment may have been made, or by any county superintendent of 
 the poor of the county, in which the payment may have been 
 made." Id. § 4. 
 
 "All bonds, bills, notes, assurances, conveyances, all other con- 
 tracts or securities whatsoever (except bottomry and respondentia 
 bonds and contracts), and all deposits of goods or other things 
 whatsoever, whereupon or whereby there shall be reserved or 
 taken, or secured or agreed to be reserved or taken, any greater 
 sum, or greater value, for the loan or forbearance of any money, 
 goods or other things in action, than is above prescribed, shall be 
 void; but this act shall not affect such paper as has been made 
 and transferred previous to the time it shall take effect." Id. 
 § 5. 
 
 " For the purpose of calculating interest, a month shall be con- 
 sidered the twelfth part of a year, and as consisting of thirty 
 days; and interest for any number of days, less than a month, 
 shall be estimated by the proportion, which such number of days 
 shall bear to thirty." Id. § 9. 
 
 " Whenever, in any statute, act, deed, written or verbal contract, 
 or in any public or private instrument whatever, any certain rate 
 of interest, is or shall be mentioned, and no period of time is 
 stated for which such rate is to be calculated, interest shall be 
 calculated at the rate mentioned, by the year, in the same manner 
 as if the words ^ per annum,' or ' by the year,' had been added 
 to such rate." Id. § 10. 
 
USUEY. 76r 
 
 " "Whenever, in an action at law, the defendant shall plead or 
 give notice of the defense of usury, and shall verify the truth of 
 his plea or notice by affidavit, he may, for the purpose of proving 
 the usury, call and examine the plaintiff as a witness, in the same- 
 manner as other witnesses may be called and examined." Laws of 
 1837, ch. 430, § 2. 
 
 " Ho corporation shall hereafter interpose the defense of usury 
 in any action." Laws of 1850, ch. 172, § 1. " The term corpora- 
 tion, as used in this act, shall be construed to include all associa- 
 tions and joint-stock companies having any of the powers and 
 privileges of corporations not possessed by individuals or part- 
 nerships." Laws of 1850, ch. 172, § 2. 
 
 It is a fundamental principle governing the law of usury that it 
 must be founded on a loan or forbearance of money. If neither of 
 these elements exists, there can be no tisury, however unconscion- 
 able the contract may be. The law declares that no one shall loan 
 money exacting for its use more than legal interest, or, having 
 loaned money, he shall not exact a greater rate as a condition of 
 postponing payment. MeaJcer v. Fiero, 145 IN". Y. 165 ; Orvis v. 
 Curtiss, 157 N. Y. 657. There must exist, in fact or in law, a 
 corrupt piirpose or intent on the part of the person who takes the- 
 security to secure an illegal rate of interest for the loan or for- 
 bearance of money. There must be a lender and a borrower, and 
 it must appear that the real purpose of the negotiations and trans- 
 actions was, on the one side, to loan money at usurious interest 
 reserved in some form by the contract, and, on the other side, to- 
 borrow upon the usurious terms dictated by the lender. Ih. 
 
 There must be a loan, and the statute is applicable to those 
 loans only which are in substance and effect loans of money. K 
 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 
 of money which is produced by the sale of shares of stock within 
 the statute, where the agreement is that the borrower shall replace 
 the stock. Dry Dock Bank v. American Life Ins. Co., 3 N. Y. 
 344; Pomeroy v. AinswortJi, 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 hona fide put in hazard it is no 
 loan; and it is not usury to take more than legal interest. lb. 
 Where it appeared that, in May, 1829, the defendant applied 
 to the plaintiff to lend him two himdred pounds, to which the 
 plaintiff consented, and the defendant afterwards gave him a war- 
 
768 USUKY. 
 
 rant of attorney for the payment of three hundred pounds by 
 three instalhnents, on the following terms, viz. : one hundi-ed 
 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 Earn. & 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, 267. 
 
 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- 
 ray V. Ainsworth, 22 Barb. 119 ; Green v. Brown, 22 Misc. 279 ; 
 Sumner v. People, 29 N. Y. 337. 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 ex- 
 cessive interest but for the operation of the statute. There must 
 be no option on the part of the 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. Gronin, 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. 
 
USURY. Y69 
 
 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 
 hy 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. 557 ; 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. lb. 
 
 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 ; Oillett v. Averill, 5 Denio, 
 85. So, where money was loaned on bond and mortgage, but the 
 money was not advanced on the securities for several days 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 Antwerp, 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 suspic- 
 ious 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. lb. One who makes a contract which the law 
 declares usurious, cannot escape the penalty of the offense upon 
 a plea that he was ignorant of the law, or that he did not intend 
 to evade the statute. Thomas v. Murray, 34 Barb. 158 ; reversed, 
 32 K Y. 605. 
 
 49 
 
770 USURY. 
 
 A promissory note for the payment of a particular sum, witht 
 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. Nor is it usurious, on selling a note 
 payable at a future day, to take a note for the principal and 
 interest of the note sold, computed to the day of sale, without 
 making a rebate of interest. lb. There may be a lawful 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- 
 vance, 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, 44 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- 
 portion of the profits of the trade or business, this is usurious. 
 Sweet V. Bpence, 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. 
 Avnsworth, 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. Kep. 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 cf the statu- 
 
USUEY. 771 
 
 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 y. Hicock, 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. See ante, p. 757. 
 
 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. The rule as to 
 taking interest in advance, has been thus stated : " That the tak- 
 ing of interest in advance, is allowed for the benefit of trade, al- 
 though, by allowing it, more than the legal interest is in fact 
 taken; that being for the benefit of trade, the instrument dis- 
 counted, or upon which the interest is taken in advance, must be 
 such as will, and usually does, circulate or pass in the course of 
 trade. It must, therefore, be a negotiable instrument, and pay- 
 able at no very distant day; for, without these qualities, it will 
 not circulate in the course of trade. Under these limitations, the 
 taking of interest in advance, either by a bank, or incorporated 
 company without banking powers, or an individual, is not usuri- 
 ous." Sutherland, J., in N. Y. Firemen's Ins. Co. v. Ely, 2 
 Cow. 703, 704; and approved by Court of Appeals in Marvine 
 V. Hymers, 12 IST. 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 
 
772 USUEY. 
 
 the bank or individual banker taking or receiving the samej^ if 
 such action is brought within two years from the time the excess 
 of interest is taken. The purchase, discount or sale of a bona 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." General 
 Laws, ch. 37, § 55, known as the Banking Law. 
 
 " 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." Id. § 56. 
 
 The right to recover a penalty imposed by section 55 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. Caponigri v. AUieri, 165 N. 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. 
 Suydam v. Bartle, 10 Paige, 94. And where the agreement, by 
 its terms, contemplates an advance of money to pay the bills 
 when they become due, if the principal does not furnish the means 
 of payment at the day, an allegation that such agreement is 
 usurious, merely presents a question of fact, to be decided by the 
 evidence, whether the compensation agreed to be paid, was 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 
 
USUEY. 773 
 
 ■without any intent to take usury, the contract for the payment 
 of a commission is valid. Suydam v. Westfall, 4 Hill, 211 ; 
 Trotter v. Curtis, 19 Johns. 160 ; Seymour v. Marvin, 11 Barb. 
 80 ; Harvey v. Archbold, 3 Barn. & Cress. 626. 
 
 If such an agreement is intended as a mere cover for usury, 
 and both parties know it, the contract will be void. Ih. And see 
 Bamsdell 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. 
 Ante, p. 765. A usurious contract is executed and extinguished by 
 payment; and consequently, after usurioiis loans and advancesi 
 have been paid, they cannot be recovered back, except that the 
 excess may be sued for within a year, under the statute. Seymour 
 V. Marvin, 11 Barb. 80. 
 
 A lender, whether a banker or 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. 
 
 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 iisury. Van Duzer v. Howe, 21 jST. 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. McCullough, 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- 
 
'1U USUKY. 
 
 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 
 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. Condit v. Baldwin, 
 
 21 K Y. 219; 8. C, 21 Barb. 181; Barretto v. Snowden, 5 
 Wend. 181 ; Coster v. Dilworih, 8 Cow. 299 ; Crane v. Hubhel, 
 7 Paige, 413 ; Fellows v. Commissioners, etc., of Oneida, 36 
 Barb. 655 ; Bell v. Day, 32 IST. Y. 165 ; Cowenhoven v. Pfluger, 
 
 22 App. Div. 464; Friedman v. Bruner, 25 Misc. 474; Stillman 
 V. NoHhrup, 1Q9 K Y. 473; Estevez v. Purdy, 66 K Y. 446; 
 Van Wych v. Walters, 81 IST. Y. 352 ; Philips v. Machellar, 92 
 iN". Y. 34. It is incumbent 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 acquiescence, became a party to the usurious exaction. 
 Ih. The defendant in such action has the burden of establishing 
 such knowledge and acquiescence by satisfactoi*y evidence. Mere 
 surmise and conjecture or uncertain inferences will not suffice. 
 Nor 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 shoAvn that the plaintiff had knowl- 
 edge at the time. ISTor 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. Stillman 
 V. Northrup, 109 IST. 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 usnry, the party 
 alleging the usury has failed. Ih.; Booth v. Swezey, 8 N. Y. 
 276; Valentine v. Conner, 40 JST. Y. 248. 
 
 In the cases 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 
 
USUEY. 775 
 
 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. BUven v. Lydecker, 130 I^. Y. 102. The ratification 
 may be implied from circumstances. Bliss v. Sherrill, 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 
 ie 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. Hurson, 32 Barb. 557; Marvine v. Hymers, 12 E". Y. 
 223 ; Archibald v. Thomas, 3 Cow. 284 ; Conger v. Tradesman's 
 Bank, Hill & Denio, 34 ; N. Y. Firemen's Ins. Co. v. Sturges, 2 
 Cow. 664 ; 8ame v. Ely, id. 678 ; Bevier v. Covell, 87 N. Y. 50. 
 But, if the lender intentionally takes a larger sum than the law 
 allows as interes.t, by reason of an erroneous opinion which he 
 entertains as to the law, the loan will be usurious, and the security 
 
77G USUEY. 
 
 void. Utica Ins. Co. v. Tilman, 1 Wend: 555 ; Bank of UHca 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 of 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 hanker in the interior of the 
 State, made payable in the city of New 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 JST. Y. 134; Eagle 
 Bank v. Rigney, 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 N. 
 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 New 
 York, charging him therefor the one-half of one per cent., which 
 was the current premium on exchange, this transaction was held 
 not to be usurious. Marvine v. Hymers, 12 N. 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 promisf- 
 sory notes past due, to give a new note for the aggregate principal, 
 and to pay the discount upon it and the back interest upon it, and 
 in addition to transfer to the holder at par, drafts on New York 
 and Albany worth three-fourths of one per cent, premium, to an 
 amount equal to the debt ; it was held that the new note was void 
 for usury. Seneca Co. Bank v. Schermerhorn, 1 Denio, 133. And 
 see opinion of Comstock^ Ch. <T., in Oliver Lee & Co.'s Bank v. 
 Walhridge, 19 N. Y. 141, 142; and of Axlen, J., on p. 144. 
 
USUEY. Y7T 
 
 So, where the borrower of money in Xew York agreed to pay 
 for the use of it seven per cent, interest, and a part of the difference 
 of exchange was paid by the lender (a resident of Savannah, 
 Georgia), on the transfer of the money from Savannah to 'New 
 York, immediately previous to the loan, it was held that the con- 
 tract was usurious, and that the notes given for the money so 
 loaned were void. Jacks v. Nichols, 5 E". 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, SS^N. 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. Ramsbotton, 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 
 K 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. Chamberlin, 31 K Y. 611, 617 ; Gilbert v. Warren, 
 56 App. Div. 289; More v. Hoiuland, 4 Denio, 264; Dry Dock 
 Bank v. American Life Ins. & Trust Co., 3 N. 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- 
 terest without rendering the agreement usurious. Leavitt v. De 
 Launy, 4 JST. Y. 363; Eetchum v. Barher, 4 Hill, 224; 7 Hill, 
 444; More v. Howland, 4 Denio, 264. A sale of the credit of 
 the vendor must not, however, be connected with a loan of money 
 by him or it will be usurious. Ih. 
 
 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 hisi indorsement will not make the note usurious. 
 
Y78 USUEY. 
 
 in tke 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. Eitchel v. Schenck, 29 N. 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 until 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. lb. 
 
 The transfer by a payee of a valid available note, upon which, 
 when due, he might have maintained an action against the maker, 
 and which he parts with at a discount beyond the legal rate of 
 interest, is not a usurious transaction, although the payee on such 
 transfer indorses the note; and on non-payment by the maker, 
 the indorsee may maintain an action against the indorser. Crane 
 V. Hendricks, 7 Wend. 569. In such a case, the recovery against 
 the indorser cannot exceed the amount which the purchaser paid 
 with interest, etc., though he may recover the full amount of the 
 note, as against the maker of the note. Cook v. Clark, 4 E. D. 
 Smith, 213 ; Burton v. Baker, 31 Barb. 241 ; Ingalls v. Lee, 9 
 Barb. 647; Mazuzan v. Mead, 21 Wend. 285; Braman v. Ress, 
 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. Cohh v. Titus, 10 N. 
 Y. 198 ; 8. C, 13 Barb. 45 ; Rice v. Mather, 3 Wend. 62 ; Odell 
 V. Oreenly, 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, 
 used by the borrower to raise the money, the transaction is a loan 
 within the usury laws. And if, by the obligations exchanged, the 
 amount ultimately to be paid by the borrower, is greater than 
 that to be paid by the lender, the transaction is usurious. Scher- 
 merhorn v. Talman, 14 'N. Y. 93 ; Dry Dock Bank v. American 
 Life Ins. Co., 3 K Y. 344; Thomm 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 
 
USUKY. Y79 
 
 than tlie sum secured to the lender, provided it is given at the 
 iona fide request of the borrower, and for his accommodation, 
 and there is no intention to take us.ury. But it is not enough to 
 xepel the presumption of usury, that the proposition came from 
 the borrovyer, instead of the lender. Oillett 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 
 Co. V. Beehe, 1 IST. 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 N. Y. 315. Where no such intention exists, a contract 
 providing that the chattels loaned, shall, when returned, have a 
 certain fixed value, or that the borrower may, at his election, pay 
 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 R. on 
 the first day of May, 1834, eleven cows, for two or four years, as 
 K. might elect, R. to pay $50.75 on the first of May in each year, 
 for their iise. 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. Ih. 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 
 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 v?ill pay annually fifty cents per 
 head for each sheep, although the value of the sheep is less than 
 
780 USUEY. 
 
 a principal sum, the interest of which, at seven per cent, per an- 
 num, Avould amount to fifty cents. Hall v. Haggart, 17 Wend. 
 280. 
 
 Where the lender makes it the conditions of a loan, that the 
 horrower shall purchase property of such lender at a price greatly 
 above its value, and a note or bond is taken for the money loaned, 
 including the price of the property sold, such note or bond will be 
 void. Rose v. Dickson, 7 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 'E. Y. 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 v. Brown, Holt's N. p. 295. See Brooks 
 V. Avery, 4 IST. Y. 225. 
 
 Negotiable business paper which had a valid inception, may 
 be sold by the payee or holder for less than its face, and at such 
 price as he sees fit, and the purchaser will be entitled to recover 
 the full amount due upon the note, although he may thus receive 
 more than the amount of legal interest on the money paid for the 
 note. Kent v. Walton, 7 Wend. 256 ; Cram v. Hendricks, id. 569 ; 
 Powell V. Waters, 8 Cow. 669 ; Cameron v. Chappell, 24 Wend. 
 94; Joy v. Diefendorf, 130 N. 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 N. Y. 522, 524; Harger v. Wilson, 63 Barb. 
 237. 
 
USUEY. Y81 
 
 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 bona fide holder. Hall v. Earnest, 36 
 Barb. 585 ; Bossange v. Boss, 29 Barb. 576 ; Hall v. Wilson, 16 
 Barb. 548. A note, delivered by the maker withotit 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 
 hands. And if he negotiates the note upon a usurious considera- 
 tion, it is void. Catlin v. Ounter, 11 E". Y. 368; Williams v. 
 Storm, 2 Duer, 52 ; Clarh v. Loomis, 5 Duer, 468 ; Jones v. Hahe, 
 2 Johns. Gas. 60 ; Marvin y. McCullum, 20 Johns. 288 ; Clarh 
 V. Sisson, 4 Duer, 408 ; 22 E". Y. 312 ; Newell v. Doty, 33 IS. Y. 
 83; Eastman v. Shaw, 65 K Y. 522; Clafiin v. Boorum, 122 
 ]^. Y. 385; French v. Hoffmire, 19 Misc. 714; Thames Loan & 
 Trust Go. V. Hagemeyer, 17 App. Div. 533; Freeport Bank v. 
 Hagemeyer, 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, had, 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 
 ]Sr. 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 
 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. 
 lb. 
 
 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 
 
782 TJSUEY. 
 
 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. Ackerman, 16 Hun, SOY ;, 
 84 ]Sr. Y. 677 ; Miller v. Zeimer, 111 N. Y. 441 ; Payne v. Burnr 
 Tiam, 62 IST. 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 na 
 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 Wyck, 2 Hill, 522. Where a debt or note 
 is originally free from usury, and valid, and a subsequent note or 
 security is given, which includes a 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 Trust Co. v. Keech, 7 Hun, 
 253 ; 69 IST. Y. 248 ; Church v. Malay, 70 IST. Y. 63 ; Ahrahams- 
 V. Clausen, 52 How. 241 ; Langdon v. Gray, 52 How. 387. But, 
 unless 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- 
 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- 
 ous contract remains in force, unrescinded by the parties, a prom- 
 ise to repay the sum actually borrowed cannot be enforced. Ham- 
 mond V. Hopping, 13 Wend. 505 ; Rice v. Welling, 5 Wend. 595. 
 And see Early v. Mahon, 19 Johns. 147 ; McConkey v. Petterson, 
 15 App. Div. 77 ; Sheldon v. Haxtun, 91 N. Y. 124 ; Patterson v. 
 Birdsdl, 64 N. Y. 294. 
 
USUEY. 78a 
 
 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. Ih.; Cooh v. Bumes, 
 
 36 IST. Y. 520 ; Farmers & Mechanics' Bank of Genesee v. Joslyn^ 
 
 37 K Y. 353; Winsted Bank v. Webh, 39 N. Y. 325; Gerwig v. 
 Bitterly, 56 IST. Y. 214; Russell v. Nelson, 99 IS. Y. 119. It is 
 not to be inferred from the rule stated that a plaintiff suing upon, 
 a 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 securities 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.- 
 Haxtun, 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 
 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- 
 
784 USUKY. 
 
 ous contract. Levey v. Allien, 72 Hun, 321 ; Feldman v. McGraw, 
 1 App. Div. 574; Treadwell v. Archer, 76 K 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 another 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. Ganz v. Lancaster, 50 
 App. Div. 204. 
 
 In some of the cases a distinction is made between a usurious con- 
 sideration actually paid to obtain an extension of time of payment, 
 and a usurious consideration agreed to be paid. Thus, it has been 
 held that a mere agreement made by a creditor with the principal 
 debtor, to forbear the payment of the debt in consideration of a 
 usurious premium to be paid for such forbearance is void, and, 
 therefore, .it cannot operate to discharge the sureties. But, where 
 the usuriotis premium is actually paid at the time, the sureties 
 will be discharged. 2 Am. Lead. Cas. 420, 421, 4th ed. ; Vilas v. 
 Jones, 10 Paige, 76 ; IN". Y. 274 ; Fernan v. Doubleday, 3 Lans. 
 216. 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. IN'o man is allowed to take any advantage 
 which results from his own unlawfiil acts. When the original 
 loan is usurious, all the securities therefor, however remote, or 
 
USUEY. 785 
 
 however frequently renewed, are void. Beed v. Smith, 9 Cow. 
 647; Steele v. Whipple, 21 Wend. 103; Jaclson v. Packard, 6 
 Wend. 415 ; Tuthill v. Davis, 20 Johns. 285 ; Jacks v. Nichols, 
 5 K 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 ; 8. 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 amotmt 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 
 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. Hull, 
 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. Jacohson v. Bradley, 16 St. Eep. 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. Van Tassell 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. Brachett v. Barney, 28 
 ISr. T. 333. 
 
 A reservation in a new security of compound interest which 
 had accrued upon a sum previously due, made against the will of 
 50 
 
786 USUEY. 
 
 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. See ante, p. 757. 
 
 § 2. Who May Plead Usury as a Defense. 
 
 The statute authorizes the borrower to set up the defense of 
 usury. 3 E. S. 73, § 8, 5th ed. ; Schermerhorn v. Am. Life, etc., 
 Ins. Co., 14 Barb. 131. But there are frequently questions as to 
 what constitutes a borrower within the meaning of the statute. 
 It is a matter of some importance 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 tised in the statute. Hungerford's Bank v. Dodge, 30 
 Barb. 626 ; Cassabeer v. Kalhfleisch, 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. 
 He has this right whether the principal desires to set up the de- 
 fense or not. 16. So, an assignee in trust for the benefit of 
 creditors may interpose this defense. Pearsall v. Kingslwnd, 3 
 Edw. Ch. 195. So a receiver of an insolvent corporation may 
 repudiate the illegal transfer of its securities by its officers, and 
 claim them as a part of its fund. Talmage v. Pell, 7 IN". Y. 328. 
 So of the receiver of an individual. 
 
 A purchaser of land which is incumbered by a usitrious mort- 
 gage, may set up usury in defense to a bill of foreclosure, unless 
 by the terms of purchase, he took the equity of redemption merely, 
 subject to the payment of the mortgage. Brooks v. Avery, 4 N. Y. 
 226. And a purchaser at a foreclosure sale under a valid 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 
 
USUET. 787 
 
 tHe sum actually due. Rexford v. Widger, 2 ¥. 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 " borrov?er," and, therefore, he cannot 
 maintain a suit in equity to set aside the mortgage vyithout paying 
 or offering to pay the sum actually loaned. Post v. President, 
 etc., of Bank of TJtica, 1 Hill, 391 ; O'Brien v. Ferguson, 37 Hun, 
 368 ; Buckingham v. Corning, 91 IST. Y. 525. 
 
 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. Billington 
 V. Wagoner, 33 IST. Y. 31. A mere stranger to the usurious con- 
 tract cannot avail himself of the usury. Murray v. Judson, 9 
 ¥. Y. 73 ; Rosa v. Butterfield, 33 IST. Y. 665 ; Ohapuis v. Mathot, 
 91 Hun, 565 ; Ohio & Mississippi R. R. Co. v. Kasson, 37 IST. Y. 
 218; Williams v. Tilt, 36 IST. Y. 319; Mason v. Lord, 40 K Y. 
 476; Kay v. Whittalcer, 44 'N. 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, 6 IST. Y. 347. 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 Banlc v. Commercial Warehouse 
 Co., 49 ]Sr. Y. 642 ; Bullard v. Raynor, 30 'S. Y. 206 ; Be Wotf v. 
 Johnson, 10 Wheat. 369; KnickerhocJcer 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 ; KnicherbocJcer Life Ins. Co. v. Nelson, 78 IST. Y. 
 137, 150; Union Dime Savings Inst'n v. Wilmot, 94 IST. Y. 221. 
 ISov is the defense of usury available to one who has purchased the 
 
788 USUEY. 
 
 land assuming the usurious mortgage. Hartley v. Harrison, 24 
 IST. 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 instrinnent 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- 
 wicl, 40 Barb. 359 ; 44 N. Y. 626 ; Dix v. Van Wych, 2 Hill, 522 ; 
 Morris v. Floyd, 5 Barb. 134 ; Union Dime Savings Inst'n v. Wil- 
 mot, 94 ]Sr. 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 better 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 K Y. 476, 486; Chapins v. Mathot, 91 Hun, 
 565, 569; French v. Shot-well, 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 al- 
 leged 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 
 of this State. Southern Life Ins. & Trust Co. v. Packer, 17 
 N. Y. 51. 
 
USUKY. 789 
 
 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- 
 worth V. O'Brien, 28 Barb. 187 ; S. C, 23 N. 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. Hun- 
 gerford's Bank v. Dodge, 30 Barb. 626. And see Smith v. Alvord, 
 63 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 N. Y. 665 ; Union Nat. BanTc v. Wheeler, 
 60 ]Sr. Y. 612. 
 
 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 
 WycJc, 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 plaintiff 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 ustirious. 
 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 catise 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 upon such bond against 
 the obligor, he cannot set up usury in the note as a defense. 
 Churchill v. Hunt, 3 Denio, 321. 
 
 Where the holder and apparent owner of negotiable paper sells 
 it to a 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. 
 Where a party purchases accommodation paper at less than its 
 face, on representations made by the parties to it that it is busi- 
 
;y9o usury. 
 
 ness paper, and on which he relies, he is entitled to recover the 
 •v<?hole sum payable by its terms, although it exceeds the amount 
 paid for it, with the legal interest thereon. Burrall v. DeGroot, 
 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 
 Broohlyn v. Townsend, 29 Barb. 569; S. C, 17 How. 569. 
 
 So, where the maker of a promissory note annexes thereto a 
 certificate that the same is given for value, and will be paid when 
 due, and the note is 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. Weyih v. Boylan, 85 
 ]Sr. Y. 394. 
 
 Where the maker of a note employs an agent to negotiate the 
 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. Hamilton, 35 
 Barb. 427. In the absence of any limitation to his authority, it is 
 within the powers of an agent employed to sell negotiable paper 
 to represent it as being a business note and valid. Ih. See Ahern 
 v. Goodspeed, 72 K". Y. 108. 
 
USURY. 791 
 
 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 iipon the faith of such representa- 
 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 contrary of such representations, or from setting 
 up the defense of usury. Parshall v. Lamoreaux, 37 Barb. 189. 
 But a mere accommodation guarantor of the note, who neither 
 made any representations in relation to the character of the paper, 
 or of the circumstances under which it was given, nor was 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. Ih. 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 instrtictions, such maker 
 is not bound by the representations of the indorser that it is busi- 
 ness paper. Jackson v. Fassitt, 33 Barb. 645 ; and reporter's 
 note explanatory in Furguson 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. Ih. 
 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 
 up such representations as an estoppel. Truscott v. Davis, 4 Barb. 
 495. See Nichols v. Nusshaum, 10 Hun, 214. 
 
 But, if the purchaser purchased the note in good faith, and 
 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 ; JacTcson 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 estop those who made them from 
 setting up the defense of usury, when an action is brought by the 
 
792 USURY. 
 
 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. Clarh 
 V. Sisson, 4 Duer, 408. To estop the parties to a bill of exchange 
 by their representations in respect to its considerat:' on 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 
 estop 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. Clark 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. Fassitt, 
 33 Barb. 645 ; Truscoit 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, 
 is void and cannot be enforced. Mahee v. Crozier, 22 Hun, 264. 
 
 A lender cannot avoid his o^vn contract on the ground that it 
 contains a usurious reservation in his o^wa favor. Elwell v. 
 Chamberlain, 4 Bosw. 320 ; La Farge v. Herter, 4 Barb. 346 ; 9 
 ]Sr. Y. 241 ; Billingion v. Wagoner, 33 IST. 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 
 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. j 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 
 
USUKY. 793 
 
 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 ; Hosford v. Nichols, 1 Paige, 221 ; Hyde 
 V. Goodnoio, 3 IST. Y. 266 ; Pomeroy v. Ainsworth, 22 Barb. 120 ; 
 Curtis V. Leavitt, 15 IST. Y. 14; Bahne v. Womhough, 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. 
 Where 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 
 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. Berrien v. Wright, 26 Barb. 208 ; Curtis v. Leavitt, 
 15 ]Sr. Y. 14; Bard v. Poole, 12 K 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- 
 
794 USURY. 
 
 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. Ih.; 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 is 
 allowed by statute in this State, is not invalid on accomit 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 IST. Y. 124. 
 The question whether the contract is usurious depends not upon 
 the amount of interest allowed, but upon the validity of the interest 
 in the country or State where the contract is made and is to be 
 executed. Thompson v. Ward, 33 Misc. 426 ; Thorn v. Alvord, 32 
 Misc. 456; Sheldon v. Haxtun, 24 Hun, 196; 91 IST. 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. Dickinson v. Edwards, 77 IST. Y. 573 ; Jewell v. 
 Wright, 30 N. 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 'Sew 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 
 Georgia v. Lewis, 45 Barb. 340 ; Balme v. Wombough, 38 Barb. 
 352. 
 
 A party residing in one State who goes into another State and 
 there makes an agreement with a citizen of that State for a loan, 
 lawful by its laws, but usurious under the laws of the State 
 where the borrower resides, cannot render his obligation void by 
 making it payable in his own State. IN'or 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 N. Y. 566 ; Tilden v. Blair, 21 Wall. 241. 
 
 When a question arises in our courts upon a transaction which 
 has occurred in another State, and there is nothing to show what 
 the law of that State is, and the transaction is of such a nature 
 
USURY. 795 
 
 as to raise no pres-umption 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 IS". 
 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. Good- 
 now, 3 N. Y. 267. Where there is a usurious agreement upon the 
 loan of money, it is immaterial whether the unlawful excess be 
 actually paid, or only promised to be paid ; in either case the con- 
 tract is void. Hammond v. Hopping, 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 effect in 
 discharging a surety, has been explained. Ante, p. 497. 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- 
 
796 USURY. 
 
 stances, or how common the practice of disregarding it. Pratt v. 
 Adams, 7 Paige, 617 ; Dunham v. Dey, 13 Johns. 40 ; Dunham 
 v. Oould, 16 Johns. 367 ; Banh 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. Y. 541 ; Cat- 
 lin V. Gunter, 11 IST. Y. 368 ; 8izer v. Miller, 1 Hill, 227 ; Rock- 
 well V. Charles, 2 Hill, 499 ; Conger v. Tradesman's Bank, Hill 
 & Denio, 34; Doe v. Broivn, Holt's IST. P. 295; Doe v. Gooch, 3 
 Barn. & Aid. 664. The cases which are to be decided by a jury or 
 by the court upon questions of fact, are those in which the 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 cotirt. Ante, p. 765. 
 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. 
 Corning, 6 ~S. 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 usurioiis agreement. Ackley v. Finch, 7 
 Cow. 290 ; Schroeppel v. Corning, 10 Barb. 576 ; S. C, 6 IST. Y. 
 107. 
 
rSUKY. 797 
 
 The statute -wkich limits the right of the dcibtor to sue within 
 one year, relates to those cases only in which a pre-existing usurious 
 debt has been paid ; and, if the property was delivered at the time 
 of making the usurious loan, or if money was usuriously paid at 
 that time, an action of trover, etc., will lie to recover the value of 
 the property, or an action may be maintained to recover the money 
 paid. lb. 
 
 The rules of pleading and of evidence in cases relating to usury 
 will be discussed in their appropriate place, and the important 
 cases will be noticed, so far as it will be proper to do so, in this 
 work. 
 
T98 INSURANCE. 
 
 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 
 have been codified, and are to be found in chapter 690 of the 
 Laws of 1892, which constitutes chapter 38 of the General 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 Tphich 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 ]Sr. Y. 131; Fowler v. New YorJc Indemnity Ins. Co., 26 N. 
 Y. 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. 398 ; 38 Barb. 297 ; Fowler v. New York Indemnity Ins. 
 Co., 26 ]Sr. Y. 422. But see Sullivan v. Spring Garden Ins. Co., 
 34 App. Div. 128. In case of an assignment of the policy before 
 loss, the complaint should show that the plaintiff or his assignor 
 
INSURANCE. 799 
 
 had an interest in the subject insured. Fowler v. New York In- 
 demnity Ins. Co., 26 N. 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 consequence. Cone 
 V. Niagara Fire Ins. Co., 60 N. Y. 619 ; Biggs v. C. M. Ins. Co., 
 125 N. Y. 7. 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. C. Ins. Co., 132 N. Y. 49 ; 
 Bohrhach v. Oermania Fire Ins. Co., 62 IST. Y. 47 ; National 
 Filtering Oil Co. v. Citizens' Ins. Co., 106 K Y. 535, 541 ; 
 Harvy v. Cherry, 76 E". Y. 436. 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 N. Y. 7. A person may insure against his liability 
 with reference to a certain property as well as his interest therein. 
 Berry v. A. C. Ins. Co., 132 IST. Y. 49. Thus, a tenant who has 
 agreed orally with his landlord to keep the demised premises in- 
 sured, 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. Ih. A common carrier may insure 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 negligence. Waters v. Monarch 
 F..& L. Ass. Co., 5 El. & Bl. 870; Stillwell v. Staples, 19 K Y. 
 401 ; De Forest v. Fulton 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. 
 
800 INSUEAIfCE. 
 
 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. 
 Herkimer v. Rice, 27 IST. 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 interes,t 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. Eoussel v. St. Nicholas Ins. Co., 52 How. 495 ; 
 9 Jones & Sp. 279. The owner in fee in possession of lands, 
 who has contracted for the erection of buildings thereon out of 
 materials to be furnished by the contractor, has an insurable in- 
 terest in the buildings while in the course of construction, although 
 he was not to pay for them until after completion, and in case of 
 their destruction by fire, before completion, would not be bound 
 to pay the contractor for the work done or materials furnished. 
 Foley V. Manufacturers' Fire Ins. Co., 152 !N^. Y. 131. 
 
 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 ~S. 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. Hiidson River Fire Ins. Co., 17 IsT. 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 K Y. 401. 
 
Il^SUEANCE. 801 
 
 An insurance effected by one partner on partnership property, 
 although made in his ovm name, and expressed to be on his sole 
 account, will protect his undivided interest so as to enable him 
 to recover the amount of that interest, in case there is a loss. 
 Irving v. Excelsior Fire Ins. Co., 1 Bosw. 508 ; Sharp v. Whipple, 
 id. 557. 
 
 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. 
 Glens Falls Ins. Co., 65 IST. Y. 6. Where a person takes 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 in whose name the policy was 
 obtained, although they were the owners of the property subject to 
 the interest of the mortgagee. Boussel y. St. Nicholas' Ins. Co., 
 52 How. 495 ; 9 Jones & Sp. 279. 
 51 
 
802 INSUEANCE. 
 
 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 
 it will be demurrable. Peabody v. Washington Co. Mutual Ins. 
 Co., 20 Barb. 339. The assignor of the policy is the real owner 
 of the property in such a case, 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. lb. 
 
 In an action by an assignee of a policy, or of a right to recover 
 the money due for the loss, it will not be sufficient for the plain- 
 tiff to allege his interest in the subject-matter of the action, and 
 of the assignment thereof, in general terms, without stating de- 
 tails as to either. Fowler v. iV. Y. Indemnity Ins. Co., 26 IST. 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 oc- 
 curs before the actual delivery of the policy to the insured. Whit- 
 aher v. Farmers' Union Ins. Co., 29 Barb. 312 ; Chase v. Hamil- 
 ton Mutual Ins. Co., 22 Barb. 527 ; Collins v. Phosnix 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. Rockwell v. Hartford Fire Ins. Co., 
 4 Abb. 179 ; Perkins v. Washington Ins. Co., 4 Cow. 645. And 
 see Lightbody v. North American Ins. Co., 23 Wend. 25, 18. 
 
 Construction of the policy. — If there is a discrepancy or a re- 
 pugnancy between the written and the printed portion of the 
 policy, the written portion will prevail over the printed part. 
 Harper v. Albany Mutual Ins. Co., 17 E". Y. 194; Sullivan v. 
 Sprin-g Garden Ins. Co., 34 App, Div. 128. 
 
INSURANCE. 80a 
 
 Where the stock in trade of a manufacturer is insured, the' 
 policy is construed to imply a license to him to keep on hand and 
 use all such articles as are necessary, and such as are ordinarily 
 used in the 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 Y. 200; Harper y. Albany Mutual Ins. Co., id. 194 j 
 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 IsT. 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 
 warranty ; and therefore if they are untrue, the policy issued upon 
 them will be entirely void. Smith v. Empire Ins. Co., 25 Barb. 
 497 ; Chaffee v. Cattaraugus Co. Mutual Ins. Co., 18 N. Y. 376 ; 
 Brown v. Same, id. 385 ; Murdoch v. Chenango Co. Mutual Ins. 
 Co., 2 N. Y. 210 ; Wilson v. Herkimer Co. Mutual Ins. Co., 6 N. 
 Y. 53 ; Wall v. East River Mutual Ins. Co., 7 N. Y. 370. 
 
 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. In^. Co. of Albany, 5 Denio, 326 ; Shoemaker v. Glens 
 Falls Ins. Co., 60 Barb. 84 ; Pierce v. Empire Ins. Co., 62 Barb. 
 636 ; Ripley v. ^trui Ins. Co., 30 N. 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 Relief 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 N". 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 
 
804 n^SUEANCE. 
 
 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 
 ]Sr. 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. N. Y. Central Ins. Co., 72 IST. 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 IST. Y. 495. And 
 see Sprague v. Holland Purchase Ins. Co., 69 'N. 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 
 cases the strict rule of warranty is relaxed, and any misstatement 
 in the policy, known to the agent to be false when the insurance 
 was effected, will not be allowed to prejudice the assured. See 
 Chase V. People's Fire Ins. Co., 14 Hun, 456; Van Schoic v. 
 Niagara Fire Ins. Co., 68 IN". 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- 
 erty insured or otherwise, have been held to be warranties. Com- 
 pare Alexander v. Germania Fire Ins. Co., 66 W. Y. 464; Maher 
 V. Hibernia Ins. Co., 67 N. Y. 283 ; Browning v. Home Ins. Co., 
 71 ]Sr. Y. 508 ; Woodruff v. Imperial Fire Ins. Co., 83 IST. 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 IST. Y. 554. The provision against stor- 
 
INSUEANCE. 805 
 
 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 JST. Y. 26. So, where the policy of insurance 
 tipon 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., 
 14Y E". Y. 478 ; Whitney v. Black 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 N. 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 N. 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. 
 Co., 134 ]Sr. Y. 28, 30. 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. Far- 
 mers' Fire Ins. Co., 64 App. Div. 367. If to the knowledge of 
 the agent at the time of the application for insurance the dwelling 
 was then vacant and unoccupied, a condition in the policy requir- 
 ing notice of and a special agreement indorsed on the policy in 
 case the building became vacant and unoccupied will be deemed 
 waived. Woodruff v. Imperial F. Ins. Co. of London, 83 N. Y. 
 133. 
 
 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. Jube v. Brooklyn Fire Ins. Co., 28 
 
806 INSURANCE. 
 
 Earb. 412 ; Jennings v. Chenango Co. Mutual Ins. Co., 2 Denio, 
 T5 ; 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. lb. 
 
 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 N. 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, 
 or from which a waiver follows as a legal result. A waiver cannot 
 be inferred from its mere silence. It is not obliged to do or say 
 anything to make the forfeiture effectual. It may wait until a 
 claim is made under the policy and then in denial thereof, or in 
 •defense of a suit commenced therefor, allege the forfeiture. But 
 it 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 
 agreement or estoppel. Titus v. Olens Falls Ins. Co., 81 N. Y. 
 410 ; Benningho-ff v. Agricultural Ins. Co., 93 N. 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 construc- 
 tion which works a forfeiture will be given it. Baley v. Home- 
 stead Fire Ins. Co., 80 N. Y. 21, 23 ; Darrow v. Family Fund 
 Society, 116 E". Y. 537; Moulton v. Mtna Fire Ins. Co., 25 App. 
 Div. 275. Slight evidence of a waiver of clauses or stipulations 
 
INSUKANOE. 807 
 
 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. 
 MarTeet Fire Ins. Co., 4 Bosw. 1Y9, 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 
 is valid ; but, if the company, by its duly authorized agents, pre- 
 vents an action from being commenced within that time, such 
 defense will not be available. A<mes v. N. T. Union Ins. Co., 14 
 K T. 254. 
 
 In the case last cited, the insured was induced to defer bringing 
 an 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. T. 305 ; 
 8. C, 18 Barb. 69. 
 
808 INSUEANCE. 
 
 Such a claiTse 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. Co., 25 Barb. 189. Such waiver 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. lb. 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 N. 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. Cattaraugus Co. Mutvxil Ins. Co., 18 !N. Y. 392. 
 
 But, if the application for insurance provides that the insurer 
 shall not be bound by any acts or statements made to any agents, 
 or by them, unless such statements are contained in the 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 E". Y. 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 N. 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. ISTo 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. Co. v. National Protection Ins. Co., 14 N. 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 
 
INSURANCE. 809 
 
 general agents of an insurance company may waive stipulations 
 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 N. Y. 389 ; Forivard v. Coni. his. Co., 142 N. 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 operate 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- 
 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 N. 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 has 
 no legal authority to bind the company by an approval of a sub- 
 sequent policy of insurance issued by another company. Wilson 
 V. Oenesee Mutual Ins. Co., 14 N. 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- 
 
810 mSUKANOE. 
 
 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., 6Y N. Y. 274; 
 Griffey v. N. Y. Cent. Ins. Co., 100 N. Y. 417 ; Matthews v. Am. 
 Cent. Ins. Co., 154 N. Y. 458 ; Solomon v. Continental Fire Ins. 
 Co., 28 App. Div. 213; 160 IST. Y. 595. The same construction 
 is given to a provision requiring immediate notice of loss. lb. 
 In one case, where the policy required 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. Ih. In another case, the 
 policy required that " immediate " notice of the loss should be 
 given. The ofiice of the company was located in the city of New 
 York, and the plaintiff resided in the city of Buffalo, where the 
 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 sufiicient compliance with the terms of the 
 policy. Savage v. Corn Exchange Fire & Inland Nav. Ins. Co., 
 4 Bosw. 1. So, in a case 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 sufiicient. 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 
 
INSUEANCE. 811 
 
 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 he 
 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 na^es 
 of 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 
 found until about fifty days after the fire, and notice was not 
 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 
 Brinh v. Hanover Fire Ins. Co., YO IST. Y. 593 ; 80 N. Y. 108 ; 
 Quintan v. Providence-Washington Ins. Co., 39 St. Eep. 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 IST. Y. 162 ; 
 Savage v. Howard Ins. Co., 52 JST. Y. 502 ; Underwood v. Farm- 
 ers' Joint-Stock 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 N. 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, 
 
S12 INSURANCE. 
 
 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 JST. Y. 594. But this doc- 
 trine must not be accepted without qualification. McM aster v. 
 Prest., etc., Ins. Co. of N. A., 55 N. Y. 222; Cummins v. Agri- 
 cultural Ins. Co., 67 N. Y. 260 ; Neill v. Popular Life Ins. Co., 
 10 Jones & Sp. 259. 
 
 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 office of the insurer, and also permit copies thereof to be 
 made, the insured must comply with such conditions, and if he 
 refuses to do so, after a proper demand made by the insurer or 
 his agent, he cannot recover. Juhe v. BrooJdyn Fire Ins. Co., 28 
 Barb. 412 ; O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108. 
 
 Compliance with such conditions will in some cases be excused. 
 And where such books, papers, accounts and vouchers are burned 
 by the fire which causes the loss, the insured will not be required 
 to do more than to furnish the best sworn statement of the facts 
 which he is able to make or furnish. Bumstead v. Dividend Mu- 
 tual Ins. Co., 12 ISr. Y. 81 ; Norton v. Rensselaer & Saratoga 
 Ins. Co., 7 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. 
 Ih. 
 
 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 JST. 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. 
 
INSURANCE. 813 
 
 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 
 refusal 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. Vos v. Bohinson, 
 9 Johns. 192; O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122; 
 Bodle V. Chenango Mutual Ins. Co., 2 E". Y. 53 ; Bilbrough 
 V. Metropolis Ins. Co., 5 Duer, 587 ; Peacoch v. N. Y. Life 
 Ins. Co., 1 Bosw. 338 ; 8. C, 20 N. Y. 293 ; Miller v. Eagle Ufe 
 and Health Insurance Co., 2 E. D. Smith, 268 ; Savage v. Com 
 Exchange Fire and Inland Nav. Ins. Co., 4 Bosw. 1 ; Bini v. 
 Smith, 36 App. Div. 463; McManus v. Western Assurance Co., 
 43 App. Div. 550; Titus v. Olens Falls Ins. Co., 81 N. Y. 410; 
 Brink v. Hanover Fire Ins. Go., 80 N". Y. 108 ; Keeney v. Home 
 Ins. Co., Vl N. 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 without 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 ; S. 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. Ins. Co., 136 K 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 ; 8. C, 22 N. Y. 402. 
 
814 INSURANCE. 
 
 But> merely taking a renewal of a policy of insurance which 
 was existing at the time of insurance, and which was mentioned 
 in the application of insurance, is not such another insurance as 
 to require notice. Brown v. Cattaraugus Co. Mutual Iris. 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 
 its parts. Bigler v. N. Y. Central Ins. Co., 20 Barb. 635 ; 8. C, 
 22 ]Sr. Y. 402. 
 
 But the policy will not cover articles which are not some part 
 of the property insured. And, therefore, a policy upon a vessel 
 upon the stocks, in the course of construction, will not cover 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 framework, and are lying in the yard in the proper place to 
 be conveniently used for that pui-pose, and are valueless for use 
 in any other vessel. Hood v. Manhattan Fire Ins. Co., 11 IST. 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. 36Y. The case contains an interesting 
 discussion upon the question, and it reviews numerous authorities. 
 
JUDGMENTS. 815 
 
 CHAPTER XX. 
 
 JUDGMENTS. 
 
 § 1. Actions Upon Judgments. 
 
 Justices of the peace have jurisdiction of an action upon a 
 judgment rendered in a court of a justice of the peace, or in a 
 district court of the city of New York, or in a justices' court of a 
 city, being a court not of record. Code of Civil Pro., § 2862, 
 subd. 6. They have no jurisdiction of an action rendered in any 
 other court. 
 
 The Code does not limit the jurisdiction of the justice in actions 
 upon judgments in respect to the amount of the judgment sued 
 on; and, therefore, an action may be maintained upon a judg- 
 ment rendered by one of the courts above mentioned, whatever may 
 be its amount, and whether rendered upon a trial or by confession. 
 Humphreys v. Persons, 23 Barb. 313. 
 
 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 
 where five years had not elapsed between the rendition of the 
 judgment and the commencement of an action thereon, except in 
 certain cases. This limitation no 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 entered 
 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 
 in which it was rendered. An action upon a judgment so docketed 
 
816 JUDGMENTS. 
 
 can be maintained in a justice's caurt against tte defendants 
 summoned, only in a like case, and with like effect, as if they were 
 the only defendants in the original action. Id. § 3021. 
 
 Although a judg-ment rendered by a justice of the peace, when 
 docketed in the county clerk's office, becomes a statutory judgment 
 of the County Court (id. § 3017), it is not a judgment " ren- 
 dered " in that court (Dieffenhach v. Boch, 112 N. 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 E". 
 Y. 374 ; Turner v. Bohy, 3 IsT. 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. 
 
FIXTUEES. 817 
 
 CHAPTER XXI. 
 
 FIXTURES. 
 
 § 1. Heir and Executors, etc. 
 
 The law in relation to fixtures is somewhat complicated, and 
 in 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 particular kind 
 of property, does not answer any very serviceable purpose, in 
 determining the rights of property; because although it may be 
 a fixture as to some persons, it is not so as to others ; and 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 
 subject, 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 
 estate; mortgagor and mortgagee of real estate; landlord and 
 tenant; execution creditors and persons claiming the property 
 either as mortgagee of real estate, or purchaser thereof by deed, 
 etc. ; or, by those who claim that the property is real estate, and 
 that it cannot therefore be sold as personal property on an execu- 
 tion. The question sometimes arises between the executor or ad- 
 ministrator of an estate, and the heir-at-law. As to such ques- 
 tions the statute declares that things annexed to the freehold, or 
 to any building for the purpose of trade or manufacture, and not 
 52 
 
818 -FIXTURES. 
 
 fixed into the wall of a house so as to be 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 
 death, and every kind of produce raised annually by labor and 
 cultivation, except growing grass and fruit ungathered, are deemed 
 assets and go to the executor or administrator to be inventoried, 
 applied and distributed as a part of the personal property of the 
 testator or intestate. lb. 
 
 Where, in the partition of real estate belonging to tenants in 
 common, and consisting in part of a woolen factory, the commis- 
 sioners treated part of the machinery found in the factory as 
 personal property and not as belonging to the realty, the court 
 on motion confirmed their report, it not appearing that the ma- 
 chinery in question was in any manner afiixed, or fastened to 
 the building or to the land. Walher v. Sherman, 20 Wend. 636. 
 
 The water wheels, running gear and bolting apparatus of a 
 grist and flouring mill, and other fixtures of the same character, 
 are constituent parts of the mill, and descend to the heirs-at-law as 
 real property; and do not pass to the executors or administrators 
 of the deceased owner of the mill, as part of his personal estate. 
 House V. House, 10 Paige, 158. So of cotton factories. Buchley 
 V. Buchley, 11 Barb. 43. 
 
 The grass and fruits growing upon landsi belonging to an intes- 
 tate at the time of his decease, are not assets belonging to the 
 administrator, but descend with the land to the heir. Kain v. 
 Fisher, 6 IST. Y. 597. The widow receiving the fruits and grass 
 which were growing on her husband's lands at the time of his 
 decease, is liable to the heir for their full value, and she cannot 
 retain one-third on account of her right of dower in the lands. Ih. 
 
 Growing crops are personal property and not a part of the real 
 estate upon which they are growing. Stall v. Wilbur, 75 N. Y. 
 158. 
 
 Poles used necessarily in cultivating hops, which were taken 
 down for the purpose of gathering the crop, and piled in the 
 yard with the intention of being replaced in the season of hop- 
 raising, are a part of the real estate, and go to the heir instead 
 of the executor or administrator; and a purchaser of such poles 
 
FIXTUKES. 819 
 
 from the executor or administrator, will not get any title to them 
 as against the heir of the testator or intestate, or as against his 
 mortgagee of the real estate. Bishop v. Bishop, 11 IST. Y. 123 ; 
 Sullivan v. Toole, 26 Hun, 203. 
 
 A pump and pipe, balances and scales and a beer pump are 
 prima facie personal property and will not descend to the heir 
 unless so annexed to the building as to come within the statute 
 before cited. Hovey v. Smith, 1 Barb. 372. 
 
 All the erections connected with a cotton factory, and other 
 mills propelled by water power, including the dams, water wheels, 
 and gearing, and machinery fastened to the ground or building, 
 are prima facie a part of the realty, and descend to the heir-at- 
 law of the owner, upon his death, and do not pass to his executors 
 or administrators as a part of his personal estate. Buckley v. 
 Buchley, 11 Barb. 43. They will also pass to the remainderman, 
 as between him and the tenant for life. Ih. But if a tenant for 
 life has put up fixtures for the purposes of trade or manufactures, 
 he is entitled to them in the same case that a tenant for years 
 would be. See Id. 61. 
 
 § 2. Landlord and Tenant. 
 
 Landlords and tenants not unfrequently differ in relation to the 
 right of the tenant to remove fixtures which he may have erected 
 upon the real estate during his term. In King v. Wilcomb, 7 
 Barb. 266, Haebis, J., stated the rule thus: " The ancient rule, 
 that whatever was attached to the freehold by the tenant became 
 a part of the freehold, and could not afterwards be removed by 
 him, has gradually been relaxed in favor of the tenant, until now, 
 I understand the general rule to be, that any one who has a 
 temporary interest in land, and who makes additions to it or 
 improvements upon it, for the purpose of the better use or enjoy- 
 mient of it, while such temporary interest continues, may, at any 
 time before his right of enjoyment expires, rightfully remove such 
 additions and improvements. If he omit to sever the addition or 
 improvement ujitil his right of enjo^Tuent ceases, such omission 
 is to be deemed an abandonment of his right, and thereafter the 
 addition or improvement he has made, becomes to all intents a 
 part of the inheritance, and the tenant as well as any other person 
 who severs it, becomes a trespasser. I think this may now be 
 stated to be the general rule, in respect to fixtures which a tenant 
 attaches to the freehold. To this extent, has the original rule of 
 
820 FIXTUKES. 
 
 tlie common law quicquid plantatur solo, solo cedit yielded to the 
 changed condition of society. Public policy, especially in this 
 country, requires that the tenant should be permitted so to use 
 the premises he occupies, as to derive from them the greatest 
 amount of profit and comfort, consistent with the rights of the 
 owner of the freehold. There may be exceptions to the general 
 rule I have stated, but I think they will be found limited to cases 
 where the removal of the additions or improvements made by the 
 tenant, would operate to the prejudice of the inheritance, by 
 leaving it in a worse condition than when the tenant took posses- 
 sion." In Dubois v. Kelly , 10 Barb. 496, 500, the same learned 
 judge delivered the opinion of the court, and reaffirmed the fore- 
 going views. And it was also held that the policy which has 
 created exceptions to the general rule, that whatever is affixed 
 to the freehold cannot be removed without the consent of the 
 owner of the inheritance, applies as well to erections for agricul- 
 tural and other purposes, as to erections for the purposes of trade ; 
 and that to constitute a fixture, there must be such an annexation 
 as to render removal impossible without injury to the freehold. 
 In the last case cited, it was held that a tenant who had built a 
 barn, stables, sheds and a storeroom for his accommodation, 
 might remove them at any time before the termination of his 
 tenancy. 
 
 As between landlord and tenant, the placing of niachinery or 
 other appliances by the tenant upon the leased premises for the 
 purpose of trade or manufacture to be carried on by the tenant, 
 does not make the property so affixed a part of the freehold, but 
 it still remains personalty to such an extent at least that the tenant 
 retains the right to remove it. Omhony v. Jones, 19 ~S. Y. 234; 
 Conde v. Lee, 55 App. Div. 401; Massachusetts Nat. Bank v. 
 Shinn, 18 App. Div. 276. The trade fixtures of a tenant, in other 
 words, remain personal property in the eye of the law so far as 
 the right of removal is concerned. Ih. 
 
 Time of removal. — In the absence of any agreement to the con- 
 trary, a tenant who has a right to remove a fixture must exercise 
 it while in possession of the demised premises. Dubois v. Kelly, 
 10 Barb. 496; BrooJcs v. Galster, 51 Barb. 196; 2 Smith's Lead. 
 Cas. 115. But, if the landlord should agree to give time for their 
 removal, or if he should agree that any fixtures which the tenant 
 should put on might be removed by him, then such removal may 
 be made after the expiration of the term. Dubois v. Kelly, 10 
 Barb. 496, 500. Such an agreement effectually rebuts the pre- 
 
FIXTUEES. 821 
 
 sumption that the tenant abandons the articles for the benefit of 
 the landlord. 
 
 So long as the tenant remains in possession of the deanised 
 premises, although after the expiration of his term, there can 
 be no presumption of an abandonment to his landlord of the fix- 
 tures he has placed thereon, and his right to remove them con- 
 tinues; and if the tenant is ejected in summary proceedings be- 
 cause of holding over after the expiration of his term, if he 
 claims and is refused the right to take such fixtures with him, he 
 may maintain an action for their conversion. Lewis v. O.N. & 
 P. Co., 125 N. Y. 341. But if a tenant, having the right to re- 
 move fixtures, acceptsi a new lease of the premises including the 
 buildings or other fixtures placed upon the premises by him, with- 
 out reservation of the same or mention of any claim thereto, and 
 enters into a new term under the new lease, the right of removal 
 is lost although the actual possession has been continuous. Lough- 
 ran V. Ross, 45 K Y. 792; Talbot v. Cruger, 81 Hun, 504; 151 
 K Y. IIT ; Stephens v. Ely, 162 K Y. 79. 
 
 What the tenant may remove. — The following articles have been 
 held to be removable by the tenant : A ballroom erected by the 
 lessee of an inn, resting on stone posts slightly imbedded in the 
 soil and removable without injury to the inheritance {Ombony v. 
 Jones, 19 IST. Y. 234; 21 Barb. 550); a cider mill and press 
 erected by a tenant holding from year to year (Holmes v. Tremper, 
 20 Johns. 29) ; a heater used in a tannery for heating liquors 
 (Raymond v. White, 7 Cow. 319) ; copper stills, kettles, steam 
 tubs, etc., erected by the tenant of a distillery (Reynolds v. Shuler, 
 5 Cow. 323) ; engines and machinery in a mill, though firmly 
 fixed to the building, put in by a tenant for years for the purpose 
 of carrying on his business (Cook v. Champlain, etc., Co., 1 Denio, 
 92; Globe Mills Co. v. Quinn, 76 IST. Y. 23); gas fixtures and 
 sitting stools put by the tenant in a shop or store and afiixed to 
 the building (Laiurence v. Kemp, 1 Duer, 363) ; rails built into 
 a fence by the tenant under an agreement with the landlord that 
 they might be removed (Matt v. Palmer, 1 IT. Y. 564) ; a boiler 
 and engine and the attachments put in by tenants for use in their 
 business and capable of removal without serious impairment of 
 the building (Conde v. Lee, 55 App. Div. 401; Kelsey v. Duvkee, 
 33 Barb. 410) ; a building erected for a restaurant and saloon on 
 blocks buried in the sand (Lewis v. 0. N. & P. Co., 125 E". Y. 
 341), and many other articles of like nature. There are numerous 
 other cases which relate to other articles that are affixed to the 
 
822 FIXTURES. 
 
 freehold by the tenant; but the same principle runs through all 
 the cases, which is, that a tenant who annexes or affixes personal 
 property to the land or buildings occupied by him, when such 
 annexation is made for the purpose of carrying on his business in 
 trade or manufactures, or for agricultural purposes, may remove 
 them by right without any agreement for that purpose, and that' 
 too, although the articles may be so annexed, that they would be 
 considered a part of the real estate were the question between 
 vendor and purchaser, or mortgagor and mortgagee, of real estate. 
 See Andrews v. D. B. Co., 132 K Y. 348. 
 
 § 3. Vendor and Purchaser of Real Estate. 
 
 As between vendor and purchaser of real estate, the rule is 
 quite strictly applied in favor of the purchaser. And the gen- 
 eral rule is, that all buildings, machinery, and other articles 
 affixed to buildings, and intended for permanent use in such 
 buildings, are considered as a part of the real estate, and will 
 pass to the purchaser by the deed of conveyance, although they 
 might be removed without injury to the premises. Yoorhees v. 
 McGinnis, 48 N. T. 278, 283; Pratt v. Baker, 92 Hun, 331. 
 Each case, however, has some peculiar circumstances of its own, 
 and there will, therefore, be many instances in which a given case 
 is taken out of the general rule. 
 
 The rule declared by statute, as between the personal represen- 
 tatives and the heirs of a deceased party, making the mode of 
 annexation the test whether the property retains its character 
 of personalty, is not controlling in cases between vendor and ven- 
 dee. In the latter class of cases, the criterion of a fixture is the 
 union of three requisites : First. Actual annexation to the realty 
 or something appurtenant thereto. Second. Application to the 
 use or purpose to which this part of the realty with which it is 
 connected is appropriated. Third. The intention of the party 
 making the annexation to make a permanent accession to the free- 
 hold. The purpose of the annexation, and the intent with which 
 it was made, is, in most cases, the most important consideration. 
 McBea v. Central Nat. Bank of Troy, 66 N. Y. 489 ; Potter v. 
 Cromwell, 40 N. Y. 28Y ; Voorhees v. McGinnis, 48 ]^. Y. 278 ; 
 Teaft V. Hewitt, 1 Ohio St. 511 ; Ward v. Killpatrick, 85 IS^. Y. 
 413, 419 ; Scohell v. Block, 82 Hun, 223, 
 
 The intent with which the annexation is made may sometimes 
 be presumed, or it may be inferred from circumstances. Tifft v. 
 
EIXTUKES. 823 
 
 liorton, 53 ¥. Y. 377, 382 ; McRea v. Central Nat. Bank of Troy, 
 66 K Y. 489 ; Voorhees v. McGinnis, 48 N. Y. 278 ; Matter of 
 Eureha Mower Co., 86 Hun, 309, 312 ; Pratt v. Balcer, 92 Hun, 
 331. The mode of annexation may, in the absence of other proof 
 of intent, be controlling. It may be in itseK so inseparable and 
 permanent as to render the article necessarily a part of the realty, 
 and, in case of less thorough annexation, the mode of attachment 
 may afford convincing evidence that the intention v^as that the 
 attachment should be permanent ; as, for instance, where the build- 
 ing is constructed expressly to receive the machine or other arti- 
 cles, and it could not be removed without material injury to the 
 building, or where the article would be of no value except for 
 use in that particular building, or could not be removed therefrom 
 without being destroyed or greatly damaged. McRea v. Central 
 Nat. Bank of Troy, 66 IST. Y. 489. When, however, there is an 
 agreement on the subject between the parties, then the intent of 
 the parties becomes one of interpretation and construction to be 
 determined by the general rules of construction; and if the lan- 
 guage of the contract is ambiguotis, the practical construction 
 given it by the parties may become important. Matter of Eureka 
 Mower Co., 86 Hun, 309. 
 
 Gas fixtures and mirrors, attached to the walls of a house by the 
 ordinary means, are merely chattels not appertaining to the build- 
 ing, and will not pass by a deed or under a mortgage of the prem- 
 ises. l^OT will a mere declaration of the owner that he intends 
 them to go with the house make them a part of the realty. Mc- 
 Keage v. Hanover Fire Ins. Co., 81 IS. Y. 38. 
 
 By a written contract between the plaintiffs and S. F. & Co., 
 certain machinery was to be manufactured by the former and set 
 up in the mill of the latter, and the plaintiffs were to remain own- 
 ers of the machinery until it was paid for. The machinery was 
 set up in the mill according to contract ; the mode of annexation 
 being such that it could be removed without injury to the build- 
 ing; in such a case, the machinery does not become part of the 
 realty, so as to pass by a deed thereof by S. ; but the title of the 
 machinery remains in the person who put it in the building, until 
 it is paid for. Godard v. Gould, 14 Barb. 662. See Tifft v. Hor- 
 ton, 53 ]Sr. Y. 377. 
 
 A building which is erected by one person upon the lands of an- 
 other is prima facie a part of the real estate; but if there is an 
 agreement on the part of the owner of the land that the building 
 
824 FIXTURES. 
 
 may be removed, it will be personal property. Smith v. Benson^ 
 1 Hill, 1Y6. But, in the absence of a valid agreement, or of an 
 exception contained in the deed, all articles which are usually 
 termed fixtures will pass to the purchaser by the deed, if the ven- 
 dor of the land is the owner of them at the time of the convey- 
 ance. 
 
 The following articles will pass to the purchaser of land by 
 virtue of the deed of conveyance : Fencing materials on a farm, 
 which have been used as a part of the fences, but are temporarily 
 detached, without any intention of diverting them from their use 
 as such, are a part of the freehold, and pass by a conveyance of 
 the farm to a purchaser. Ooodrich v. Jones, 2 Hill, 142. And 
 so of manure lying in a barnyard on the farm at the time of the 
 conveyance, although laid up in heaps. li. 
 
 As between vendor and vendee of land, all fixtures pass to the 
 purchaser, although they were erected by the vendor for the pur- 
 poses of trade or manufactures, or for agricultural purposes. Mil- 
 ler V. Plwmb, 6 Cow. 665. A building called a " shanty," about 
 twenty feet square, stood upon land fronting the street, and it 
 had a chimney, door and windows, was divided into two apart- 
 ments, and a garret, and occupied by a family; this was held to 
 be prima facie a part of the real estate. Fisher v. Saffer, 1 E. D. 
 Smith, 611. 
 
 Wheat and other growing crops will pass to the purchaser by 
 the deed of conveyance of the land; and a parol reservation of 
 them will not be permitted to be proved in contradiction of the 
 terms of the deed. Austvn. v. Sawyer, 9 Cow. 39. But as be- 
 tween vendor and purchaser of land, upon which there is a dwell- 
 ing-hoiise without a fireplace, and without a chimney, except from 
 the chamber fioor, it was held that a stove, from which a pipe wen\ 
 into the lower end of this chimney, did not pass to the purchaser 
 of the land as a fixture. Freeland v. Southworth, 24 Wend. 191. 
 
 Personal property, such as a steam engine and boilers, were 
 hired by a person and then wrongfully afiixed to his real estate, 
 which was sold to a purchaser of the land without knowledge of 
 the wrongful acts as to the steam engine, etc. ; and it was held 
 that the purchaser of the land could hold the steam engine, etc., 
 and that the remedy of the former owner of the engine was solely 
 against the person who wrongfully affixed them to the real estate. 
 Fryatt v. Sullivan Co., 5 Hill, 116; S. C, Y Hill, 529; approved 
 in Ford v. Col)b, 20 1^. Y. 351, upon the principle that they were 
 
FIXTURES. 825 
 
 so incorporated into the building as not to be removable without 
 destroying it. Shelves, drawers and counter tables, put up by 
 the owner to fit the building for the uses of a retail dry goods and 
 grocery store, and without which the building would not be adapted 
 to the business, are, as between vendor and purchaser, a part of 
 the freehold, and the vendor has no right to remove them after a 
 sale of such real estate. Tabor v. Bohinson, 36 Barb. 483. 
 
 § 4. Mortgagor and Mortgagee of Beal Estate. 
 
 A mortgagee and a purchaser of real estate stand upon a simi- 
 lar footing in relation to fixtures ; and such articles as a purchaser 
 may claim under his deed, will generally belong to a mortgagee 
 on a foreclosure. Lafiin v. Grifftihs, 35 Barb. 58. In fact, in 
 determining as between mortgagor and mortgagee whether articles 
 are or are not fixtures, the same rules prevail which are appli- 
 cable to cases arising between grantors and grantees. Snediker 
 V. Warring, 12 N. Y. 170; Gardner v. Finley, 19 Barb. 317; 
 Lafiin v. Griffiths, 35 Barb. 58 ; Robinson v. Preswick, 3 Edw. 
 Ch. 246 ; Main v. Schwarzwaelder, 4 E. D. Smith 273 ; McFadden 
 V. Allen, 134 N. Y. 489. And, as between mortgagor and mort- 
 gagee, the same rules are as applicable to articles placed on the 
 mortgaged premises after as before the execution of the mortgage. 
 Gardner v. Finle% 19 Barb. 317; Bice v. Dewey, 54 Barb. 455, 
 472 ; Sullivan v. Toole, 26 Hun, 203 ; Phoenix Mills v. Miller, 
 4 St. Eep. 787 ; McFadden v. Allen, 134 IST. Y. 489. A mortgagee 
 of real property is entitled to have his lien respected as to all that 
 was realty when he accepted the security ; also as to all accessions 
 to the realty, save, perhaps, when the accession is made under an 
 agreement with the party that its purchase price or expense shall 
 be secured and is secured by a lien thereon. Phoenix Mills v. 
 Miller, 4 St. Eep. 787. 
 
 The same rules apply to articles annexed to the premises by 
 a subsequent grantee or vendee in possession under an executory 
 contract to purchase. McFadden v. Allen, 134 JST. Y. 489. 
 
 It is a well-settled rule in this State that articles which would 
 ordinarily become fixtures on account of their nature and the 
 manner of their annexation to the realty, may retain their char- 
 acter as personal property by reason of a special agreement be- 
 tween the parties to that effect. Ford v. Cobh, 20 IST. Y. 344 ; Tip 
 v. Horton, 53 IST. Y. 377. The owner of land mortgaged to secure 
 future advances may purchase chattels under a written contract 
 
82G FIXTUEES. 
 
 that the title thereto shall not pass until paid for, and notwith- 
 standing the annexation of such chattels to the realty, the vendor 
 thereof, who has filed his contract as required by the Lien Law 
 (Laws of 1897, ch. 418, § 112), has a right to the chattels superior 
 to the mortgagee who has made advances under his mortgage in 
 reliance upon the increased value of the realty, without knowledge 
 of the reservation of title contained in the contract of sale. New 
 York Investment Co. v. Cosgrove, 4:7 App. Div. 35. 
 
 The intention with which a chattel is annexed to the freehold 
 is one of the various circumstances by which it may be determined 
 whether the personal character of the chattel is retained or lost. 
 If it is the intention that the chattel shall not, by annexation, be- 
 come a part of the freehold, as a general rule, it will not. Tifft v. 
 Horton, 53 N. Y. 3YY ; Voorhis v. McGinnis, 48 N. Y. 377. And 
 see Sisson v. Hihhard, 75 E". Y. 542; McRea v. Central Nat. 
 Bank of Troy, 66 IST. Y. 489. 
 
 In the absence of special circumstances changing the general 
 rule, the following articles will belong to a mortgagee of real 
 estate, or to the purchaser of them, on a foreclosure of the mort- 
 gage: Crops of every kind which are growing on the ground at 
 the time of the sale under the mortgage foreclosure {Lane v. King, 
 8 Wend. 584; Shepard v. PUlIbrick, 2 Denio, 174; Gillett v. 
 Balcom, 6 Barb. 370) ; hop poles necessarily used in cultivating 
 hops, though piled in the hop yard after picking the hops, but 
 intended to be used for the next crop {Bishop v. Bishop, 11 N. Y. 
 123; Sullivan v. Toole, 26 Hun, 203) ; a furnace for heating a 
 house so placed that it could not be removed without some injury 
 to the building in which it was placed {Main v. Schwarzwaelder, 
 4 E. D. Smith, 273. See Pratt v. Baker, 92 Hun, 331) ; a statue 
 erected as an ornament to the grounds and placed upon a perma- 
 nent artificial mound, constructed of cut stone laid up without 
 mortar, and affixed in no other manner than by its own weight 
 {Snedeker v. Warring, 12 IST. Y. 170) ; locomotive engines, pas- 
 senger, baggage and freight cars, hand ears, etc. {Farmers' Loan 
 & Trust Co. V. Hendrickson, 25 Barb. 484) ; and other articles 
 which, though ordinarily personal in their nature, have, by the 
 acts of the parties, lost their personal character and been converted 
 into realty. 
 
 On the other hand, it has been held that looms in a woolen fac- 
 tory, not connected with the machinery of the motive power in 
 any other manner than by leather bands, and not annexed or 
 affixed to the building in any other manner than by screws hold- 
 
FIXTUEES. 827 
 
 ing them to the floor for the purpose of keeping them steady while 
 working, and which could be removed without injury to them- 
 selves or to the building, are chattels and not real estate, and can- 
 not be claimed by the mortgagee of the real estate. Murdoch v. 
 Gifford, 18 N. Y. 28. 
 
 § 5. When Liable to an Execution. 
 
 An execution which is issued by a justice of the peace, cannot 
 be levied upon real estate, and, therefore, when any article is a 
 part of the real estate in the character of a fixture, it is generally 
 said that it cannot be sold upon such an execution. But it has 
 been seen that articles which are treated as fixtures in some cases, 
 are not so considered under other circumstances. 
 
 It may be stated as a general rule, that an execution may be 
 levied upon those articles which a tenant may claim as against his 
 landlord, a vendor against his purchaser, a mortgagor against his 
 mortgagee, or an heir against the executor, etc., if the execution 
 is issued against such tenant, vendor, mortgagee, or heir. To 
 enumerate all the articles which may thus be taken, to cite all the 
 adjudged cases upon the question, or to reconcile all the conflict- 
 ing decisions, will not be attempted. But a few of the more useful 
 cases will be noticed by way of illustration. 
 
 Machinery erected for manufacturing purposes, on timbers im- 
 bedded in the ground, or fastened to the timbers of a building by 
 bolts, screws, pins or cleats, if put up with a view to its being 
 removed without injury to the building, may be levied upon and 
 sold as personal property. Farrar v. CJiauffetete, 5 Denio, 527. 
 A heater, which is used in a tannery for heating liquors, may be 
 sold on execution. Raymond v. White, 7 Cow. 319. So of gas 
 fixtures owned by a tenant and placed in a store or shop. Law- 
 rence V. Kemp, 1 Duer, 363. So of machinery for spinning flax 
 and tow, and carding machines, used in a manufactory and at- 
 tached slightly by cleats, etc. Cresson v. Stout, 17 Johns. 116. 
 
 The other cases necessary to notice, have already been cited, in 
 relation to tenants, purchasers, mortgagees, etc. Whenever such 
 persons may claim the articles, they are liable to levy and sale 
 upon executions which are issued against them. But whenever 
 the landlord, or mortgagee, or purchaser of real estate, or the heir- 
 at-law may claim the property, as a part of the real estate, no 
 execution against personal property can be properly levied upon it. 
 
828 THE STATUTE OF EKAUDS. 
 
 CHAPTER XXII. 
 
 THE STATUTE OF FRAUDS. 
 
 § 1. Provisions of the Personal Property Law. 
 
 The object of the statute usually called the " Statute of Erauds " 
 is to prevent the perpetration of frauds and commission of per- 
 juries in attempting to establish and enforce pretended contracts 
 ■which were in reality never made ; and the mode in which it seeks 
 to eifectuate this object is to render void certain agreements unless 
 in writing and subscribed by the party to be charged or by his 
 lawful agent. 
 
 The operation of the statute, so far as it relates to contracts 
 for the sale of goods, chattels or things in action, has been suffi- 
 ciently discussed in the previous chapters treating of sales and 
 assignments. That branch of the subject will not be repeated 
 here, and that portion of the statute relating thereto will be 
 omitted. 
 
 The Personal Property Law, of which this statute forms a part, 
 provides as follows : " Every agreement, promise or undertaking 
 is void, unless it or some note or memorandum thereof be in writ- 
 ing, and subscribed by the party to be charged therewith, or 
 by his lawful agent, if such agreement, promise or undertaking: 
 
 1. By its terpis is not to be performed within one year from 
 the making thereof ; 
 
 2. Is a special promise to answer for the debt, default or mis- 
 carriage of another person; 
 
 3. Is made in consideration of marriage, except mutual prom- 
 ises to marry; 
 
 4. Is a conveyance or assignment of a trust in personal prop- 
 erty; 
 
 5. Is a subsequent or new promise to pay a debt discharged in 
 bankruptcy." Laws of 1897, ch. 417, § 21; General Laws, ch. 
 47, § 21. 
 
 In the prior chapter on the subject of sales, the requisites of 
 the note or memorandum which should have the eifect of removing 
 a case from under the ban of the statute have been pointed out. 
 It is sufficient to state, in this connection, that the note or memo- 
 randum, to be sufficient to take a contract out of the operation of 
 the statute of frauds, must state all the substantial and material 
 
THE STATUTE OF FKAUDS. 829 
 
 terms of the contract with reasonable certainty, and must show 
 upon its face what the whole agreement was, so far as it is execu- 
 tory, so that the names of the parties to the contract and the sub- 
 stance thereof may appear from the writing itself without recourse 
 to parol evidence. See Cheever v. Schall, 87 Hun, 32 ; Drake v. 
 Seaman, 2Y Hun, 63; 97 IST. Y. 230. If it is necessary to resort 
 to parol evidence to supply some term of the agreement omitted 
 from the writing, or to show who were the contracting parties, or 
 to limit a general statement in the writing so as to express the 
 actual agreement of the parties, the writing fails to answer the 
 requirements of the statute. 
 
 Expressing a consideration. — The question whether the memo- 
 randum must express the consideration has given rise to many 
 conflicting decisions due to changes in the statute and difference 
 of opinion in the courts as to the effect of those changes. Before 
 the Kevised Statutes went into effect, the consideration of an agree- 
 ment, within the statute of frauds, was required to be stated in the 
 memorandum, but the courts held the memorandum sufficient if 
 its language so indicated the consideration that it could be argued 
 out or inferred. This led to much nice criticism and narrow dis- 
 tinction, which the Revised Statutes sought to remedy by an 
 amendment requiring the consideration to be expressed. But the 
 question whether, in each case, the consideration was expressed, 
 or what was a sufficient expression, led to renewed and continual 
 • litigation, and the courts soon held that the words " value re- 
 ceived " satisfied the requirement. In fact, it was doubted whether 
 the amendment in any way changed the law. In 1863, the legis- 
 lature struck out the clause and restored the section to its old 
 form. The effect of the latter amendment has been the subject 
 of conflicting decisions. In one case it was held that the amend- 
 ment rendered it wholly and entirely unnecessary to insert any 
 statement of the consideration in the memorandum (Speyers v. 
 Lambert, 1 Sweeny, 335 ; 6 Abb. N. S. 309 ; 37 How. 315), while, 
 in another case, an exactly opposite conclusion was reached. Oas- 
 tle v. Beardsley, 10 Hun, 343. The present Personal Property 
 Law is, so far as relates to this subject, a substantial re-enactment 
 of the Revised Statutes, as amended in 1863, by leaving out the 
 words " expressing the consideration." The omission of this 
 clause in both acts seems to indicate a legislative intent to restore 
 the law to what it was before the omitted words were inserted, 
 and to adopt the construction which had been placed upon the 
 act by the courts before such insertion. It does not seem to have 
 
830 THE STATUTE OP FEAUDS. 
 
 been the intention of the legislature to dispense entirely with a 
 statement of the consideration, but merely to dispense with a defi- 
 nite expression of consideration, leaving the contract good if a 
 consideration can be implied or inferred from its terms. See 
 Castle V. Beardsley, 10 Hun, 343 ; Newberry v. Wall, 65 N. Y 
 484; Drake v. Seaman, 27 Hun, 63; 97 K Y. 230. 
 
 Mode of expressing consideration — The law does not prescribe 
 any particular manner in which the terms of an agreement shall 
 be expressed in a written instrument. It will be sufficient if, 
 from the face of the entire instrument, there is enough expressed 
 to authorize a court to adjudge as a matter of law that a valid 
 contract is contained in it. The statute formerly required a state- 
 ment of the consideration, or, in other words, it declared that the 
 agreement must express the consideration. But the statute, as it 
 now stands, since the amendment, reads like the English statute 
 in that respect, and is also similar to the statutes of this State 
 before the enactment of the Revised Statutes of 1830. By the 
 English law, and by the adjudications in this State before 1830, 
 every agreement in writing must have shown on its face that it 
 was founded upon a legal sufficient consideration. The statute 
 of frauds, which requires certain agreements to be in writing, 
 was construed by the courts to mean that the agreement must 
 contain the entire contract, including the consideration. Wain v. 
 Warlters, 5 East, 10 ; 2 Smith's Lead. Cas. 147, and the cases in 
 note. 
 
 The early cases in this State are explicit that a written memo- 
 randum under the statute of frauds must show a consideration, 
 or that it will be invalid, even when the statute does not require 
 in express terms that the agreement shall express the considera- 
 tion. Sears v. Brink, 3 Johns. 210 ; Stymets v. BrooTcs, 10 Wend. 
 207 ; Rogers v. Kneeland, 10 Wend. 219 ; S. C, 13 Wend. 114. 
 The cases do not require that the consideration shall be expressed 
 in any particular form ; since it is a general principle, applicable 
 to all instruments or agreements, that whatever may be fairly 
 implied from the terms or language of an instrument, is in judg- 
 ment of law contained in it. Ih. 
 
 There are frequently cases in which the statute requires a 
 written agreement, and in which there was a legal and sufficient 
 consideration in fact, but which was not expressed in the written 
 agreement; and the question then occurs, whether parol evidence 
 is admissible for the purpose of sustaining the written agreement 
 by showing what the actual consideration was. 
 
THE STATUTE OF EKAUDS. 831 
 
 It has been repeatedly held that it will be of no avail that there 
 was really a legal and sufficient consideration, if that consideration 
 is not expressed in the agreement itself. Brewster v. Silence, 8 
 K Y. 207; Draper v. 8now, 20 N. Y. 331 ; Gould v. Moving, 2S 
 Barb. 444. 
 
 In contracts of ^aranty or suretyship. — The contract of a 
 surety, or that of a guarantor, is a different one from that of the 
 principal debtor ; and although there may be a sufficient considera- 
 tion to render the contract valid between the principal and the 
 other contracting party, such consideration will not be sufficient 
 to sustain an action against the surety or guarantor This rule, 
 however, is applicable to those cases only in which the surety or the 
 guarantor enters into the agreement at some time after the prin- 
 cipal contract has been made, or when the agreements of the 
 principal and surety or guarantor are not both made at the same 
 time; and when there is no consideration existing except that 
 of the principal contract. In such cases, the consideration of the 
 contract between the principal and the other contracting party 
 is not any consideration as to the surety or the guarantor. Brew- 
 ster v. Silence, 8 IST. Y. 207 ; Draper v. Snow, 20 N. Y. 331 ; 
 Oould V. Moring, 28 Barb. 444. 
 
 There is one class of cases, however, which deserves, notice in 
 this place, and that is, when a principal is about to purchase 
 goods or property of another, and before the purchase, or the 
 delivery of the property, the guarantor or surety subscribes a 
 written guaranty or agreement to pay for the article so purchased 
 or delivered; this will be a valid and binding agreement upon 
 such guarantor or surety if the vendor sells or delivers the prop- 
 erty on the faith of such written guaranty and in compliance 
 with its terms and conditions. In such a case, the written agree- 
 ment is in the nature of a request to the vendor to sell or deliver 
 the property, which the vendor is not under any obligation to do 
 unless he agrees to do so ; but if in compliance with the request, 
 he does so sell or deliver the goods or property to the principal 
 debtor, the surety or guarantor will be liable to see the debt paid 
 in case the principal does not pay it. Church v. Brown, 21 N. 
 Y. 315, 328 ; Union Banh v. Coster's Executors, 3 IST. Y. 203 ; 
 Gates V. McKee, 13 IST. Y. 232 ; Bindge v. Judson, 24 N. Y. 64. 
 In all such cases, the consideration is expressed in the writing, 
 because the request and the promise constitute a sufficient con- 
 sideration if the request is complied with. Ih. In Church v. 
 Brown, 21 N. Y. 315, the facts were, that on the 1st day of 
 
832 THE STATUTE OE FEAUDS. 
 
 July, 1852, the plaintiffs made a contract with one White, which 
 was reduced to writing, and signed by the parties, by which the 
 plaintiffs agreed, during one year, to sell to White such articles 
 of hardware, from their store, as he might desire, upon a credit 
 of one year, with interest after six months from the time of the 
 purchase. Simultaneously with the execution of this agreement, 
 the defendant subscribed an instrument in the following form, 
 which was indorsed on the agreement : " I will be responsible 
 for all such goods as Mr. White shall buy of the Messrs. Church, 
 within one year from date, and which shall not be paid for ac- 
 cording to the terms of the within contract. July 1, 1852." In 
 pursuance of this arrangement, Messrs. Church sold and delivered 
 goods to White, and it was held that Brown was liable to see them 
 paid for, upon the ground that the instrument signed by him was 
 a request for the delivery of the goods to White. 
 
 Where a guaranty of the payment of rent to grow due upon 
 a lease, is expressed to be " in consideration of the letting," it 
 will be intended, for the purpose of giving a consideration to the 
 guaranty, if nothing to the contrary is shown, that the landlord 
 agreed to let in consideration of the promise of the surety; and 
 this, notwithstanding the guaranty bears date after the lease. 
 Gottsberger v. Radway, 2 Hilt. 342. In this case, the court said, 
 " That it (the guaranty) bears date after the agreement to let, 
 makes no difference. It sets forth that the letting is the consider- 
 ation for the promise made by the defendant, and it will be in- 
 tended, though the agreement of the surety bears date afterwards, 
 if nothing to the contrary is shown, that the plaintiff agreed to 
 let in consideration of the promise of the defendant afterwards 
 put in writing." 
 
 It has been held in several cases, and it may now be regarded 
 as settled, that the words " for value received," constitute a suifi- 
 cient expression of the consideration to satisfy the statute, even 
 where the statute requires the consideration to be expressed. 
 Miller V. CooTc, 23 N. Y. 495 ; S. C, 22 How. 66 ; Brewster v. 
 Silence, 8 IST. Y. 207; Cooper v. Dedrich, 22 Barb. 516; Wat- 
 son's Executors v. McLaren, 19 Wend. 55Y. So where the agree- 
 ment is under seal, this will be held to be a compliance with the 
 statute by sufficiently showing a consideration, because it is said 
 that a seal imports or implies a consideration. Livingston v. 
 Tremper, 4 Johns. 416 ; Douglass v. Howla/nd, 24 Wend. 35 ; BusTi 
 V, Stevens, 24 Wend. 256 ; Childs v. Barnum, 11 Barb. 14; Rosen- 
 
THE STATUTE OE EEAUDS. 833 
 
 laum V. Ounter, 2 E. D. Smith, 415; McKensie v. Farrell, 4 
 Bosw. 193. 
 
 When the contract of guaranty or other agreement is sealed, 
 it is not necessary that the body of the instrument should recite 
 or express any consideration in language, as the seal is held to 
 he sufficient to answer that purpose. 
 
 It must he regarded as settled that the attaching of a seal to 
 an agreement, or the insertion of the words " for value received," 
 sufficiently expresses the consideration to satisfy the statute; but, 
 although this is so, it is evident that neither of these modes really 
 and truly expresses the actual consideration upon which the agree- 
 ment is founded as the statute formerly required. 
 
 This general manner of expressing the consideration, seems to 
 be S'ufficient to cover and include all possible considerations, al- 
 though no particular consideration is expressed in the writing. 
 And where a guaranty recited the payment of one dollar, and it 
 was also imder seal, it was held that proof of the non-payment 
 of the dollar did not invalidate the guaranty, since there might 
 have been some other consideration which the seal would import. 
 Childs V. Bamum, 11 Barb. 14. The court held that in such a 
 case, a defense to be successful must show that there was no 
 consideration of any kind whatever. A party is always at liberty 
 to show that there is no consideration for his promise, and if it is 
 established by the evidence that there was no consideration for 
 such promise, the agreement cannot be enforced whether under 
 seal or not under seal. Tallmadge v. WalliSj 25 Wend. 107 ; 
 Johnson v. Miln, 14 Wend. 195, 199. The seal will stand for a 
 consideration until the existence of any consideration is nega- 
 tived. The statute which formerly required that the considera- 
 tion should be expressed in the agreement, did not, thereby, in 
 any manner change the character of the consideration itself. It 
 merely required that the evidence of the consideration should be 
 in writing, and it then left the value and sufficiency of it to the 
 ordinary rules of law applicable to the case. 
 
 Parol evidence in aid of the writing. — If a written agreement 
 does not show any consideration on its face, and there is no 
 extrinsic proof of any consideration in fact, the agreement cannot 
 be enforced upon common-law principles. And, in the cases in 
 which the statute requires a written agreement to render it valid, 
 if that is not done there cannot be any parol proof admitted to 
 show that there was really a sufficient consideration, and in such 
 cases the agreement will be void by the statute. Sackett v. Palmer, 
 53 
 
834 THE STATUTE OF FEAUDS. 
 
 25 Barb. 1Y9 ; Wood v. Wheelock, 25 Barb. 625; Brewster v. 
 Silence, 8 IST. Y. 207 ; Draper v. ^wom;, 20 IST. Y. 331 ; Gould v. 
 Moring, 28 Barb. 444; WiZsoK. v. Roberts, 5 Bosw. 100; Bennett 
 V. Prai^^ 4 Denio, 275 ; Doolittle v. Naylor, 2 Bosw. 206. 
 
 When an agreement is required by the statute of frauds, to be 
 in writing, there must be a compliance with the statute, and an 
 agreement which is partly in writing and partly by parol or ver- 
 bal, will be void. Wright v. Weeks, 25 IST. Y. 153. The con- 
 tract may be executed by an agent ; and a subscription to an agree- 
 ment, by an agent of the party to be charged, is valid under the 
 statute of frauds, although the name or the existence of the prin- 
 cipal does not appear upon the instrument. Dykers v. Townsend, 
 24 K Y. 57. 
 
 The law sometimes supplies, by its implications, the want of 
 express agreements between the parties, but it never destroys or 
 overrules the express agreements of the parties by implications. 
 Calkins v. Falk, 39 Barb. 620. If the meaning of an instrument 
 is uncertain, the intention may sometimes be ascertained by ex- 
 trinsic evidence, but it must be a meaning which may be distinctly 
 derived from a fair and rational interpretation of the words actu- 
 ally used. If it be incompatible with such interpretation, the 
 instrument will be void for uncertainty, and incurable inaccu- 
 racy. Ih. And see United Press v. N. Y. Press Co., 164 N. Y. 
 406. 
 
 § 2. Contracts not to Be Performed Within One Year. 
 
 It is the object and the policy of the law to ascertain what is 
 the actual truth in relation to disputed facts between litigant 
 parties; and in all cases of contracts, the intentions of the parties 
 are carried into effect so far as is consistent with the settled rules 
 of law. 
 
 But one of the most difficult of the questions which frequently 
 arise, is to ascertain and determine what was the actual agreement 
 of the parties. And when there is no dispute as to the facts, 
 there is frequently a wide difference of opinion between the par- 
 ties as to their legal rights upon the undisputed facts. But in 
 such cases, there is a mere legal question to be settled by the 
 courts. 
 
 The greater share of litigation, in such classes of contracts, re- 
 lates to the question what the actual contract is which it is al- 
 leged has been made. If the contract is reduced to writing, much 
 of this difficulty is obviated. Written contracts speak one Ian- 
 
THE STATUTE OF FKAUDS. 835 
 
 guage for all the parties, and they never add anything to the terms 
 of the original agreement, nor are they liable to the defects of 
 human memory by forgetting or omitting some of the important 
 provisions of the agreement. The object of the statute is to pre- 
 vent mistake, fraud or perjury in relation to such contracts as 
 may be of sufficient importance to require that their existence shall 
 be evidenced by writing. 
 
 Past experience has shown the danger which exists, and the 
 injuries which parties have suffered, in consequence of permitting 
 important contracts to rest in parol agreements. Transactions 
 which occcurred at a remote period of time may have been forgot- 
 ten wholly or partially; different witnesses who heard the same 
 contract made, or who saw the same transactions, may differ widely 
 in their recollections of the matter, or they may positively, but 
 honestly, disagree in their narration of the event, owing to the 
 fact that some of them may have forgotten what the others dis- 
 tinctly recollect; again, some of the most material circumstances 
 may have been forgotten by all the witnesses; so, some or all of 
 the witnesses may not recollect the language of the contract, but 
 merely the impression which they received when they heard it, 
 and that impression may have been very incorrect indeed ; further, 
 it is almost always the ease that different witnesses give different 
 versions of the same affair, even when the transaction spoken of 
 is a recent one ; and, finally, the absence or death of material wit- 
 nesses may seriously affect the rights of litigant parties. Such 
 considerations, and others of a similar character, show the im- 
 portance and the propriety of the statute; but when to this view 
 of the matter is added, that nothing can open a wider door for 
 frauds and perjuries than those cases which depend upon oral 
 evidence of the existence of the terms and conditions of agree- 
 ments which were made years before the litigation arose, it will 
 be seen that the rights of the citizen would be most unsafe in- 
 deed but for the provisions of this statute. 
 
 Contracts within the statute. — In the construction of a statute, 
 it is always important to recollect the object for which it was en- 
 acted; and the court will always so construe it as to prevent the 
 mischief, or to advance the remedy which was the object of its 
 enactment. The statute renders every verbal agreement void, if, 
 by its terms, it is not to be performed within one year from the 
 time when it was made. 
 
 It will be noticed that the statute does not render every agree- 
 ment void merely because it does not happen to be performed 
 
836 THE STATUTE OF FEAUDS. 
 
 within one year, but it relates to those cases in which the agree- 
 ment, by its terms, is not to be performed within one year. So, it 
 is evident that the statute was intended to reach those cases in 
 which the agreement, by its terms, provides that there is not to be 
 a complete performance of the entire contract within a year. 
 
 The statute, as interpreted by the courts, does not include agree- 
 ments which may or may not be performed within one year from 
 the making, but merely those which, within their terms, and con- 
 sistent with the rights of the parties, cannot be performed within 
 that time. If the agreement may, consistently with its terms, be 
 entirely performed within the year, although it may not be prob- 
 able or expected that it will be performed within that time, it 
 is not within the condemnation of the statute. Fenton v. Em- 
 Uers, 3 Bur. 1278; McLees v. Hale, 10 Wend. 426; Moore v. 
 Fox, 10 Johns. 244; Dresser v. Dresser, 35 Barb. 573; Kent v. 
 Kent, 62 IST. Y. 5Q0;McCabe v. Green, 18 App. Div. 625 ; Everitt 
 V. N. Y. Engraving & Printing Co., 20 Misc. 548 ; W. C. & M. 
 Co. V. HolhrooTc, 118 IST. Y. 586 ; Trustees of the First Baptist 
 Church V. Brooklyn Fire Ins. Co., 19 ISF. Y. 305 ; Van Woert v. 
 'Albany & Susquehanna R. R. Co., 67 N. Y. 538 ; Blake v. Voigt, 
 134 IST. Y. 69; Greene v. Northern Steamship Co., 11 Misc. 717; 
 Smith V. Conlin, 19 Htm, 234; Haines v. Thompson, 2 Misc. 385 ; 
 Burlingame v. Mandeville, 7 St. Hep. 858. 
 
 Ordinarily, there cannot be room for any substantial question, 
 whether the agreement is void by the statute, if the terms of the 
 agreement are undisputed. 
 
 Contracts of employment — When an agreement is made on the 
 first day of January in one year, and, by the terms of such agree- 
 ment, one person is to labor for another from the first day of May 
 following, until the first day of May in the succeeding year, it 
 is evident that such an agreement cannot be performed within 
 one year from the time of making it, and, therefore, it is void 
 by the very terms of the statute. In such a case, the parties ex- 
 pressly agree that the performance of the agreement shall not be 
 completed within one year. Wanamaker v. Rhomer, 23 Week. 
 Dig. 60 ; Billington v. Cahill, 51 Hun, 132 ; Levison v. Stix, 10 
 Daly, 229 ; Bracegirdle v. Heald, 1 Barn. & Aid. 722 ; Oddy v. 
 'James, 48 I^. Y. 685. Where an oral contract is made for the 
 employment of a person for one year, the employment to com- 
 mence on the following day, the contract is void as within the 
 provision of the statute of frauds in respect to contracts which, 
 by their terms, cannot be performed within one year from the 
 
THE STATUTE OF FRAUDS. 837 
 
 making thereof. Billington v. Cahill, 51 Hun, 132. The fact 
 that the contract calls for but a slight extension of the period of 
 one year from the making thereof for its complete performance 
 is unimportant, for, as was said by Lord Ellbnbokough, " if we 
 were to hold that a case which extended one minute beyond the 
 time pointed out by the statute did not fall within its prohibition, 
 I do not see where we should stop ; for in point of reason an 
 excess of twenty years will equally not be within the act." Brace- 
 girdle V. Heald, 1 Barn. & Aid. 722. 
 
 Where parties have entered into a verbal agreement by which 
 one was to enter into the employ of the other at a future day, and 
 continue therein for one year from that day, and the agreement 
 for the year has been kept and performed by both parties, if the 
 employee thereafter continues in such employment, receiving the 
 same compensation, it will be held that the contract has been re- 
 newed for another year. Ball v. Stover, 82 Hun, 460. An oral 
 agreement to retain the plaintiff in the defendant's employ for 
 one year commencing on the day of the contract is valid and not 
 within the statute. Schmerenhech v. Finke, 45 St. Hep. 30. But 
 where the oral contract is for services to commence at a future 
 day, and to continue for a year thereafter, a new contract must 
 be made when the services commence to take the case out of the 
 operation of the statute, and a simple reiteration of the former 
 contract at the time will not have that effect. Odell v. Weherv- 
 dorfer, 50 App. Div. 379. 
 
 An agreement on behalf of a turnpike company with the life 
 tenant of a farm that if he will close up a private road the occu- 
 pants of the farm shall forever be relieved from the payment of 
 toll is not void under the statute as being an agreement not to 
 be performed within a year. Great Western Turnpike Co. v. 
 Shafer, 57 App. Div. 331. 
 
 Construction of the agreement — There are many instances in 
 which the evident intention of the parties is, that the agreement 
 shall not be performed within one year, although this intention 
 is not expressed in direct language. If, however, the legal con- 
 struction of the agreement shows that it is really a contract which, 
 by its entire terms, is not to be performed within one year, it will 
 be void as clearly as though the terms were expressed in explicit and 
 unambiguous language. No evasion of the statute is to be per- 
 mitted, and every agreement which is made in violation of the in- 
 tent and spirit of the statute ought to be held void. 
 
838 THE STATUTE OF FRAUDS. 
 
 In all cases which can arise under this statute, the agreement 
 must be a verbal one, because the statute does not apply to writ- 
 ten agreements. And if there is a dispute as to the true terms 
 of the agreement, the question is one of fact to be determined 
 by a jury, or by the justice sitting in their place, upon all the 
 evidence on that question. If it is determined as a matter of fact 
 that the agreement was not, by its terms, to be performed within 
 one year, it is void; if, on the other hand, it is found that the 
 performance was to be complete within one year, the agreement 
 is valid. 
 
 Miscellaneous examples of void agreements A parol executory 
 
 agreement between an individual and a railroad company that the 
 cars of the latter shall continue to stop at a particular place adja- 
 cent to his property, as a permanent arrangement, is void by the 
 statute of frauds, because, from the nature and terms of the agree- 
 ment, it is not to be performed within one year from the making 
 thereof. PitUn v. Lmg Island B. B. Co., 2 Barb. Ch. 222. 
 
 So, where L. let the use of his mare for breeding purposes to 
 B., the owner of a stud horse, under the following parol agree- 
 ment: B. to pay a specified sum for the colt, if one should be 
 foaled, the mare to remain in L.'s possession, and he to keep the 
 colt until it became four or six months old. A colt having been 
 raised from the nfiire, B. demanded it after it became six months 
 old, tendering the agreed sum, but L. refused to let him have it, 
 whereupon B. brought an action of replevin ; but it was held that 
 the agreement was void, as being one which, from its nature, could 
 not be performed within a year, and that B., therefore, had no 
 right of action. Lockwood v. Barnes, 3 Hill, 128. The court said, 
 p. 131 : "As I understand the agreement in this case, the colt 
 was not to be delivered to the plaintiiBF until it was at least four 
 and perhaps six months old. This, added to the eleven months 
 for gestation, would make the whole period which was to elapse 
 before the contract could be completely executed ' fifteen or six- 
 teen months. It appears, then, that by the terms of the agree- 
 ment, it was not to be performed within a year, and the fact of 
 part performance within that time will not aid the case." And 
 see Van DyTce v. Clark, 46 St. Eep. 455. 
 
 The defendant, on the 17th or 18th of April, agreed with the 
 plaintiff, a boarding-house keeper, for rooms and board for him- 
 self and family for one year from the first day of May following, 
 at a certain amount per week for the rooms, and another sum per 
 week for board. 
 
THE STATUTE OF EKAUDS. 839 
 
 The defendant left before the end of the year, and the plaintiff 
 sued him to recover the stipulated price of the rooms to the end 
 of the year, but it was held that the relation of landlord and 
 tenant did not exist between the parties, and also that the contract 
 was void because it was not, by its terms, to be performed within 
 one year. Wilson v. Martin, 1 Denio, 602 ; Spencer v. Halstead, 
 1 Denio, 606. 
 
 The defendant, in January, agreed by parol to clear a piece of 
 woodland for the plaintiff, and partly to fence one end of it, 
 which the plaintiff was to complete, the whole to be done in one 
 year from the ensuing spring, when the defendant was to put in 
 a crop which, with the wood and timber, except that used for the 
 fences, he was to have for his compensation. 
 
 In an action against the defendant for the non-performance of 
 the agreement, it was held to be within the statute and void. 
 Broodwell v. Oetman, 2 Denio, 87. The court said : " The word 
 ' agreement,' as used in this section, signifies ' a mutual con- 
 tract on consideration between two or more persons,' and ex vi 
 termini (from the force of the term), includes the several parties 
 to the contract and their respective stipulations, every thing, in- 
 deed, which is to be done on both sides. In this case there were 
 mutual stipulations between the parties; the defendant was to 
 clear the land and in part make a fence at one end of the lot. 
 This fence was to be completed by the plaintiff, and he stipulated 
 that the defendant should have all the timber cut on the land 
 except what might be required for the fence, and also the use of 
 the land for a summer crop in 1842. As this agreement was 
 made in January, 1841, and could not be completely executed 
 until the close of the season of 1842, it was within the statute, 
 and not being in writing and signed, was void. Upon this point 
 it would seem to be difficult to raise a doubt upon the terms of 
 the statute. An agreement is an entire thing, and where that 
 cannot be completely executed, on hoth sides, until more than a 
 year has elapsed, the case falls within the express words of the 
 enactment. It is also within its spirit for ' the mischief meant 
 to be prevented by the statute, was the leaving to memory the 
 terms of a contract for a longer time than a year. The persons 
 might die who were to prove it, or they might lose their faithful 
 recollection of the terms of it.' " The court then notices a rule 
 which has been stated by some elementary writers, foimded upon 
 English decisions, which is, that " where all that is to be done by 
 one of the parties, is to be done within one year, the case is not 
 
840 THE STATUTE OF FKAUDS. 
 
 within the statute." The existence of any such rule in this State 
 is denied, and the court said : " Every verbal contract which is 
 not to be performed within a year from the making thereof, is 
 declared to be void. Although the terms of the agreement may 
 require full performance on one side within a year, I do not see 
 how this can exclude it from the statute, the other side being 
 incapable of execution until after the year has elapsed. The 
 agreement is entire, and if it cannot be executed fully on both 
 sides within the year, I think it is void. What difference does it 
 make, that one party can, while the other cannot, complete the 
 contract within a year ? Such an agreement is not, in terms, 
 excepted from the statute, and the reason for the enactment ap- 
 plies to it with full force. But it is unnecessary to pursue this 
 subject, and I dismiss it with the remark that, although where one 
 party has fully performed on his part within the year, the agree- 
 ment may be void, still he is not remediless, for he may maintain 
 a general indebitatus assumpsit against the party who refuses to 
 proceed further under the contract, and thus recover a compensa- 
 tion for what has been advanced and received upon it." Where 
 a verbal contract is made by one person to enter into the service 
 of another for one year, but the agreement is made a week before 
 the time for the commencement of the year's service, the con- 
 tract will be void. Nones v. Homer, 2 Hilt. 116. So, where the 
 contract is made two or three weeks or months before the time 
 for the commencement of the year's service, the contract will be 
 void. Amhurger v. Marvin, 4 E. D. Smith, 393 ; Little v. Wil- 
 son, 4 E. D. Smith, 422; Odell v. Webendorfer, 50 App. Div. 
 579. 
 
 A verbal agreement to work for another for several years is a 
 palpable instance of a void contract. McOluchy v. Bitter, 1 E. D. 
 Smith, 618 ; Drummond v. Burrell, 13 Wend. 307 ; Shuts v. Dorr, 
 5 Wend. 204. 
 
 An oral agreement to work land on shares for a period of five 
 years is in the nature of a contract for the hire of work, labor and 
 services to be paid for by a share of the product of the labor, and, 
 being an executory contract and not capable of performance in 
 one year, is void under the statute. Unglish v. Marvin, 55 Hun, 
 45. 
 
 A contract forming a partnership to be continued beyond one 
 year Is within the statute, and the partnership so formed is a part- 
 nership at will. Wahl v. Barnum, 116 N. Y. 87 ; Butler v. Dinan, 
 47 St. Kep. 363. 
 
THE STATUTE OF FRAUDS. 841 
 
 Where an agreement is void by this statute, no action can be 
 maintained by either party against the other for the recovery of 
 damages for the hreach of the agreement by a refusal to perform 
 it. Drummond v. Burrell, 13 Wend. 307 ; Broadwell v. Getman, 
 2 Denio, 87. 
 
 And if the parties agreed that the contract should be reduced 
 to writing, vphich -was not done, that -will not render the contract 
 valid, although the plaintiff may have reduced the agreement to 
 writing, and have tendered it to the defendant to subscribe, which 
 he refused to do before the suit was brought. Amhurger v. Mar- 
 vin^ 4 E. D. Smith, 393. And the rule is the same where the 
 agreement is reduced to writing, but it is not subscribed by the 
 parties, and the contract is void. Broadwell v. Getman,, 2 Denio, 
 87. 
 
 Part performance — A part performance of the agreement within 
 the year will not render it valid, so as to give a right of action for 
 damages for a refusal to perform the residue of it. Broadwell v. 
 Getman, 2 Denio, 87 ; Wilson v. Martin, 1 Denio, 602 ; Spencer 
 V. Halstead, 1 Denio, 606 ; Drummond v. Burrell, 13 Wend. 307 ; 
 Shute V. Dorr, 5 Wend. 204; Wahl v. Bamum, 116 IST. Y. 87; 
 BaJcer v. Codding, 44 St. Eep. 787. 
 
 And if one party has fully performed the agreement on his 
 part within the year, that will not render the contract binding 
 upon the other party. Lockwood v. Barnes, 3 Hill, 128 ; Broad- 
 well V. Getman, 2 Denio, 87 ; Lower v. Winters, 7 Cow. 263 ; 
 Bartlett v. Wheeler, 44 Barb. 162. 
 
 When the agreement is void by the statute, but one of the 
 parties has performed it partially on his part, and the other party 
 refuses to permit him to complete the contract, or if he discharges 
 him from service, if the contract is for personal labor, such per- 
 son so prevented or discharged may recover the actual value of 
 the services rendered, or the value of such performance so far as 
 it is completed, whatever that value may be. Nones v. Homer, 
 2 Hilt. 116 ; Little v. Wilson, 4 E. D. Smith, 422 ; Broadwell v. 
 Getman, 2 Denio, 87 ; Lockwood v. Barnes, 3 Hill, 128 ; Galvin 
 v. Prentice, 45 E". T. 162 ; Day v. N. Y. 0. B. R. Co., 51 IST. Y. 
 583. 
 
 So, where the agreement is void, but it has been partially per- 
 formed, and it is terminated by the assent of both parties, or 
 where the party who fails to perform the agreement does so in 
 pursuance of the original terms of the agreement, he may recover 
 
842 THE STATUTE OF FEAUDS. 
 
 the actual value of the services rendered. Shute v. Dorr, 5 Wend. 
 204. 
 
 Where the contract is entire and one party is willing to com- 
 plete the performance, and is not in default, no promise can be 
 implied on his part to compensate the other party for part per- 
 formance. To entitle the party to maintain an action for services 
 rendered in part performance of a void contract, he must show that 
 the defendant is in default. Oalvin v. Prentice, 45 N. Y. 162. 
 An implied promise to pay for part performance can arise only 
 when the party sought to be charged has had the benefit of part 
 performance and has himself refused to proceed, or otherwise pre- 
 vented or waived full performance, or where, after the making of 
 the contract, full performance has been rendered impossible by 
 death or otherwise without fault of the contracting party. Smith 
 v. Brady, 17 K Y. 173 ; Wolfe v. Hawes, 20 JST. Y. 197 ; GoMn 
 v. Prentice, 45 E". Y. 162. 
 
 In these cases in which there has been a part performance of 
 the agreement, and the party so performing lawfully quits the 
 work before its completion, with the consent of the other party, 
 or for any legal cause; or where he is wrongfully discharged by 
 the other party, he is entitled to recover what his services are 
 worth. Little v. Wilson, 4 E. D. Smith, 422. And in the absence 
 of any other evidence of value, he may recover according to the 
 contract price. Nones v. Homer, 2 Hilt. 116 ; McGlucky v. 
 Bitter, 1 E. D. Smith, 618 ; Lisk v. Sherman, 25 Barb. 433, 438 ; 
 Jejfery v. Walker, 72 Hun, 628. 
 
 Pleading the statute. — There has been no little confusion in 
 the cases as to the necessity of pleading the statute in order to 
 make it available as a defense. The mode of raising the question 
 in an effectual form will be understood by first considering the 
 nature of the defense. Contracts that, by their terms, are not 
 to be performed in one year were valid at common law, though 
 not in writing, but the statute enacted that thereafter such agree- 
 ments should be void unless reduced to writing, and, therefore, a 
 new defense was created with respect to such agreements as were 
 within the statute. The statute does not prohibit the making of 
 any agreement in any way that the parties may see fit nor render 
 the contract illegal or immoral if not made in some particular 
 way. It simply requires that certain agreements must be proved 
 by a writing. It introduced a new rule of evidence in certain cases 
 without condemning as illegal any contract that was legal before. 
 If proof is given of an oral contract that falls within the statute, 
 
THE STATUTE OF FRAUDS. 843 
 
 and the evidence is received without objection, the party offering 
 it has a right to insist that it be considered by the court or jury. 
 When the statute is set up as a defense, the objection to any other 
 mode of proof than that required by the statute is deemed as made 
 in advance, and the defendant may raise the question at any time 
 before the case is submitted to the jury. If the defendant neither 
 pleads the defense, nor objects to what may be called the com- 
 mon-law proof of the agreement, he will be deemed to have waived 
 the objection. When the complaint alleges an oral agreement 
 within the statute, and the defendant, by his answer, admits it 
 without pleading the statute as a defense, he is deemed to have 
 waived its benefits, although all that he admits in such case is the 
 existence of an oral agreement void by the statute. Cozine v. 
 Oraham, 2 Paige Ch. 177 ; Vanpell v. Woodward, 2 Sandf. Ch. 
 143 ; Harris v. Knickerbacker, 5 Wend. 638 ; Duffy v. O'Donovan, 
 46 K Y. 223 ; Marston v. Sweet, 66 N. Y. 206 ; Crone v. Powell-, 
 139 N. Y. 379, 386. There are cases to be found in this State in 
 which it has been intimated or decided that the defendant may avail 
 himself at the trial of the benefit of the statute, under the general 
 issue, by objection to verbal proof of the contract. See Patterson 
 v. Powell, 31 Misc. 250, 251. But these cases are no longer safe 
 to follow. If the defendant in an action for breach of a contract 
 within the statute, desires to avail himself of the benefit of the 
 statute, he must plead it. If the defect appears upon the face 
 of the complaint he must interpose the defense by demurrer. If 
 it does not so appear it must be presented by answer. If the ob- 
 jection is not taken in either way it will be deemed waived. Por- 
 ter V. Wormser, 94 IST. Y. 450 ; Wells v. Monihan, 129 N. Y. 161 ; 
 Crane v. Powell, 139 ]^. Y. 379 ; Horner v. Sidway, 124 IST. Y. 
 538 ; Matthews v. Matthews, 154 IST. Y. 288 ; Sanger v. French, 
 157 N. Y. 213. Where the complaint does not disclose whether 
 the contract was oral or in writing a general denial in the answer 
 does not raise any question under the statute of fratids, and does 
 not permit it to be raised on the trial by objection to the proof of 
 the oral contract. Matthews v. Matthews, 154 N. Y. 288. And 
 see Myers v. Dorman, 34 Hun, 115; Cheever v. Schall, 87 Hun, 
 32. 
 
 Contracts which may or may not be performed within a year. — 
 It has already been shown that the contract to be within the stat- 
 ute must be one which, by its terms, is not to be performed within 
 one year. If the performance of the contract depends upon a 
 
84i THE STATUTE OF EEAUDS. 
 
 contingency which may or may not happen within a year, the 
 contract will be valid. 
 
 Where a verbal contract was made on the first day of October, 
 1828, by which a party agreed to furnish timber, and build and 
 finish a house before the close of the year 1829, this was held to 
 be a valid contract, since the house might be built within the year ; 
 and, to render the agreement void, it must have provided that the 
 house should not be completed within the year. Plimpton v. Cur- 
 Uss, 15 Wend. 336. 
 
 So where, by the terms of a verbal promise, it was to be per- 
 formed as the promisor received the amount secured by a mort- 
 gage which he had against a third person, it was held, that the 
 promise was valid, though the mortgage did not become due 
 until more than a year thereafter. Artcher v. Zeh, 5 Hill, 200. 
 
 In that case the money might have been paid at any time by 
 an arrangement between the mortgagor and the mortgagee, and, 
 therefore, there was no agreement which, by its terms, was not to 
 be performed within one year. The defendant promised to pay 
 the plaintiff two dollars a year for his services as a minister ; and 
 it was shown that he had paid that sum in half-yearly payments 
 until two years before the action was brought, and that the plain- 
 tiff continued preaching until the action was brought. The jury 
 rendered a verdict for the plaintiff for four dollars, which was 
 affirmed by the Supreme Court. Moore v. Fox, 10 Johns. 244. 
 The court placed the right of recovery upon the ground that the 
 services were to commence immediately; that the payment of 
 the sums in half-yearly installments, authorized the jury to infer 
 that the agreement was to be performed each half year; and that 
 the circumstances were in the nature of a request that the plain- 
 tiff should preach, and that the defendant would pay the sum 
 agreed therefor. 
 
 An agreement was made between the overseers of the poor of 
 a town and an individual, by which the latter was to support a 
 bastard child until it arrived at the age of five or six years, or so 
 long as the child should remain chargeable to th,e town, at a 
 stipulated price per week, the payment for the support to be made 
 weekly if desired; and it was held, that such individual could 
 recover the value of such support so long as the child was kept 
 under the arrangement ; and it was also held, that either party 
 could terminate the contract by a notice to the other. McLees v. 
 Hale, 10 Wend. 426. 
 
 The court held that if the agreement had been that the child' 
 
THE STATUTE OE FEAUDS. 845 
 
 should be supported for five or six years, and that the whole sum 
 to be paid therefor had been made payable at the end of that 
 time, it would have been void. But the case was decided upon 
 the ground that there was a contingency upon which the contract 
 might be terminated at any time, viz., that the child might not 
 continue chargeable to the town, and also that the contract might 
 by its terms, be performed each week, since the payment was to 
 be made weekly if demanded. There is another ground upon 
 which the decision might have been founded, because the right 
 of recovery in the case did not depend upon the question, whether 
 the contract could have been enforced. It has been seen that 
 there may be a recovery for services which are rendered under a 
 contract which is void by the statute, although no action could 
 be maintained for a breach of stich an agreement. 
 
 The last two cases have been noticed more fully than would be 
 necessary, were it not for the fact that they are sometimes erro- 
 neously cited to prove that a contract which is not to be per- 
 formed within a year is valid, notwithstanding the statute, and 
 the various decisions under it. 
 
 An oral contract for the leasing of real estate for a year is valid, 
 although, by the terms of the agreement, the term is not to com- 
 mence until several months after the time of making the contract. 
 Young v. Dake, 5 N. Y. 463 ; Ooldberg v. LavinsM, 3 Misc. 607 ; 
 Herter v. Merser, 29 Misc. 641. The reason for this decision is, 
 that the case is governed by the statute in relation to the sale of 
 real estate, or of some interest therein, and that the statute as to 
 the performance of contracts within one year, has no application 
 to the case of a lease of real estate. 
 
 Several cases have decided that a parol agreement is valid, 
 although the time of the performance is limited upon the death 
 of one of the parties. The principle upon which the decisions 
 proceed, is, that the death of such party is a contingency which 
 may occur at any time, and that, therefore, the agreement is not 
 one which, by its terms, is not to be performed after the expiration 
 of one year from the time of making the contract. Quackenhush 
 V. Ehle, 5 Barb. 469, 473 ; Wells v. Horton, 4 Bing. 40 ; Thomp- 
 son V. Oordon, 3 Strobhart, 197. In another case, it was 
 held that a parol agreement by which the defendant, for a valuable 
 consideration, promised to furnish the plaintiff at his residence, 
 with proper and suitable board, clothing, care and attention, from 
 the time of making said agreement, during the plaintiff's natural 
 life, she being then about sixty-five years of age, was not void by 
 
846 THE STATUTE OF FEAUDS. 
 
 the statute of frauds, as being a contract which, by its terms, was 
 not to be performed within the year. Dresser v. Dresser, 35 Barb. 
 573. This construction may be consistent with the language of 
 the statute, but it is entirely evident that such contracts must 
 frequently permit the introduction of those very mischiefs which 
 the statute was designed to prevent. A parol agreement that a 
 fire policy shall be renewed from year to year, and until it is ter- 
 minated by a notice from either of the parties to the other, is valid. 
 First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305. 
 The court said, p. 307 : " It is not the meaning of the statute 
 that the contract must be performed within a year. If it can be so 
 performed consistently with the language in which the parties 
 have expressed themselves, in other words, if the obligation of the 
 contract is not by its very terms, or necessary construction, to en- 
 dure for a longer period than one year, it is a valid agreement, 
 although it may be capable of an indefinite continuance. An 
 agreement, which either party can terminate at any time by a 
 notice to the other, may be binding so long as the notice is not 
 given, but it is not within the language or policy of the statute." 
 
 § 3. Promises to Answer for the Debt, Default or Miscarriage of 
 
 Another. 
 
 The statute upon this subject has been already quoted. Ante, p. 
 828. This statute appears to be one which need not cause any great 
 difiSculty in its application to practice, and yet, few questions 
 have perplexed the courts more than those arising upon its true 
 construction. A careful examination of the subject will show 
 that the main difiiculties which have arisen in the matter, have 
 been created by the courts themselves, and have not been caused 
 by any inherent intricacy in the statute itself. 
 
 The statute renders void those oral promises which are made 
 for the answering for the debt, default or miscarriage of another 
 person. And, under this statute, the sole question which can 
 arise upon that point in any case, is, does the promise assume to 
 answer for the debt, default or miscarriage of another person ? 
 If such is the character of the promise, it is clearly within the 
 statute and void. 
 
 » 
 
 Original or collateral promise — In some of the early cases under 
 the English statute of frauds, the courts introduced two words into 
 the discussion, which are not to be found in the statute. Those 
 words were " original " and " collateral." And, instead of de- 
 
THE STATUTE OF EKAUDS. 847 
 
 termining whether a given promise was one which assumed to 
 answer for the debt, default or miscarriage of another person, the 
 inquiry made, was, whether the promise was an original or a 
 collateral one. If it was determined to be an original one, it was 
 held not to be within the statute, and was valid ; but if it was a 
 collateral one, it was held to be within the statute, and void. These 
 words are sometimes appropriately used to express the character of 
 the promise, but they are frequently ambiguous in their applica- 
 tion, and hence their use would inevitably lead to error. An orig- 
 inal promise properly signifies the first promise which a party 
 makes ; and, in its common use by the courts, the term was also em- 
 ployed to signify a promise which a person makes on his own 
 behalf, as distinguished from a promise to answer for some other 
 person. It will be evident, however, that courts cannot properly use 
 the word " original " as synonymous with the statutory language 
 " a promise to answer for the debt," etc., of another person. Sup- 
 pose that A. is indebted to B. in the sum of $100, and that subse- 
 quently, 0. enters into an oral agreement to pay this debt, for a 
 sufficient consideration advanced ; if C. was not originally a party 
 to the arrangement between A. and B. in the creation of the debt 
 of $100, nor liable for its payment, it is evident that the promise 
 of 0. to pay it is an original promise, in the sense that it is his 
 first promise ; but, although it is an original promise, it is none the 
 less a promise to pay the debt of A., a third person, and, therefore, 
 directly within the language and the spirit of the statute. 
 
 In such cases, it is useless to determine whether the promise is 
 an original one or not, so long as it is clear that it is a promise 
 to answer for the debt, etc., of another person. 
 
 The term collateral promise, properly signifies one which runs 
 with another promise, and as an auxiliary or guaranty. But the 
 statute does not use this word, and the language of the statute 
 is not synonymous with the word " collateral." 
 
 It is true, that in some instances, the word " collateral " will 
 properly express the nature of a given promise ; but that does not 
 by any means show that the word is synonymous in all instances. 
 If A. is about to purchase goods of B., and C. is present at the 
 time, and promises B. that he will pay for the goods delivered to 
 A. if he does not pay for them ; this may be said to be a collate- 
 ral promise with that of A. to pay for the goods. And, in this 
 instance, it is also a promise to pay for the default or miscarriage 
 of another person. But it is also an original promise, because 
 it is the first promise ; so that it is literally an original promise as 
 
848 THE STATUTE OF FEAUDS. 
 
 well as a collateral one. It is evident, however, that the courts 
 need not decide whether such a promise is an original or a col- 
 lateral one; since it is sufiScient to determine that it is a promise 
 to answer for the default of another person, whch renders it void 
 unless in writing. 
 
 The word collateral has been generally used by the courts to 
 signify a promise which is not for the liability of the promisor, 
 but for the debt, etc., of another person, and in that sense it will 
 not lead to the errors which have arisen from an improper use of 
 the word " original." The improper use of these words as substi- 
 tutes for the statute language naturally led to another error, 
 which is of most mischievous consequence in its effects upon the 
 construction of the statute. It is familiar legal learning that, at 
 the common law, and before the statute of frauds was enacted, a 
 promise by one person to pay the debt of another would not be 
 binding, whether verbal or written, unless there was a considera- 
 tion to support the promise. The statute of frauds has merely 
 required that the promise and the consideration for such promises 
 shall be stated in writing, and be subscribed by the party to be 
 charged upon such promise. But the statute does not require 
 this unless the promise made is one which assumes to answer for 
 the debt of another person. If the promise is made by a person 
 for the payment of his own debt, the statute does not apply. 
 The fallacy which the word original promise causes is, therefore, 
 evident ; because, if the courts hold that every original promise 
 is valid, because it is not within the statute, it is clear that every 
 j^romise which one person makes on assuming to pay the debt, 
 etc., of another person, is in one sense an original promise, and 
 it must, therefore, be valid because it is an original promise. But 
 this is not all, for the error was carried still farther. If an orig- 
 inal promise was founded upon a new consideration advanced 
 to the promisor, or for any other siifficient consideration, it was 
 called an original agreement and not within the statute. Two 
 material considerations are overlooked in such a construction of 
 the statute, for, in the first place, the new consideration is noth- 
 ing more than the common law required before the statute, and 
 in the second place, though the promise is original in the sense 
 that it is the first promise of the promisor, it is not the less a 
 promise to answer for the debt, etc., of another person, and, there- 
 fore, directly within the statute. Every promise which one person 
 makes to answer for the debt, etc., of another person, is a new or 
 original agreement on his part, and it is not binding unless it is 
 
THE STATUTE OF FKAUDS. 849 
 
 founded upon a sufficient legal consideration. But the statute 
 of frauds adds to this that the promise and the consideration 
 must be evidenced by a written subscribed agreement. The time 
 ■of making the promise is not in the least material, if the promise 
 is clearly one to answer for the debt, etc., of another person. The 
 promise may be made before the debt of the principal is created, 
 or at the same time, or subsequently to it, but the same rule of 
 construction applies in each case. 
 
 A promise to pay the future debt of another person which has 
 not yet been contracted, is none the less a promise to pay the debt 
 of a third person ; and so of a promise which is made at the time 
 the debt is created, or of one made subsequent to its creation. Two 
 classes of cases may be noticed here to prevent an erroneous im- 
 pression in relation to what has been said, though they will be 
 more fully explained in a subseqiient place. Ii A. promises to 
 pay a merchant for certain goods, if he will sell them to B. and 
 B. does not pay for them, this will be a good ground of action 
 against A., if the promise is reduced to writing, and the merchant, 
 on the faith of the promise, furnishes the goods to B. who does 
 not pay for them. So, if A. requests a merchant to deliver goods 
 to B., and A. orders them charged to himself, in this case he is 
 liable, because the sale of the goods is to himself, although the 
 delivery of them is to another person by his orders. 
 
 The construction which the courts have sometimes given to the 
 statute has promoted the very mischief which the enactment of 
 the statute was designed to prevent. The obvious intent of the 
 statute is, that no person shall be made liable to answer for the 
 debt, default or miscarriage of another person unless his 
 promise is reduced to writing and subscribed by hiiu, and also that 
 the written promise shall show a consideration for the promise. 
 If the intent of the statute is carried into effect, there will be little 
 danger of frauds and perjuries in charging one person with the 
 debts, etc., of another ; and the reason is obvious, since there must 
 be a written subscribed promise produced before the plaintiff can 
 recover ; so that forgery must be added to fraud and perjury be- 
 fore any person can be in danger of being compelled to pay the 
 debt, or answer for the default or miscarriage of another. But, 
 if the construction as to original promises is to obtain, as it has 
 been applied in some cases, the statute is a mere dead letter, so 
 far as its value relates to a prevention of frauds and perjuries. 
 
 Under such a rule, no fraudulent plaintiff would claim that the 
 defendant was liable upon a promise to answer for the debt, etc., of 
 54 
 
850 THE STATUTE OF EKAUDS. 
 
 a third person, because, in that case, a written subscribed promise 
 would be indispensable to a recovery; for it is clear that an ex- 
 press verbal promise would not make the defendant liable. 
 
 But, if it is established as a rule of law, that a promise to pay 
 the existing debt of another can be enforced through the medium 
 of an original, verbal promise, founded upon a new consideration, 
 the value of the statute must be materially impaired if not ren- 
 dered comparatively useless. Suppose that A. should trust B. 
 with goods, which are not paid for by B. as he agreed, it is clear, 
 from all the cases, that C. could not be made liable upon a verbal 
 promise to A. that he would pay for the goods if B. did not. If, 
 however, the rule is established that C. may be made liable to A. 
 upon the verbal promise to pay the debt of B., if the promise is 
 founded upon a new consideration, the statute is effectually re- 
 pealed by judicial construction, because, that was the rule at the 
 common law before the statute was enacted; and the sole object 
 of the statute was, to require such agreements to be reduced to 
 writing. Such a construction would let in all the mischiefs which 
 the statute would prevent if it was carried into effect according 
 to its actual intent. There would be nothing to prevent the grossest 
 frauds and perjuries in proving those so-called original promises, 
 and those new considerations, which would be made available 
 whenever it was desired to charge one man with the payment of 
 a debt due from another. Erom the foregoing remarks, it is 
 evident that the words' " original " and " collateral " ought never 
 to be used as a test to determine whether a given case is void by 
 the statute; but, that the sole inquiry should be, is the promise 
 one which assumes to answer for the debt, default or miscarriage 
 of another ; if it is, the promise is void unless reduced to writing 
 and subscribed by the party to be charged upon it. See opinion 
 of court in Mallory v. Gillett, 21 K Y. 414, 415, 416. The cases 
 which have been decided in relation to this statute, are very 
 numerous, and there are several of them which are not consistent 
 with other decisions nor with the statute itself. No attempt will 
 be made, therefore, to reconcile conflicting decisions', and no more 
 cases will be cited than are sufficient to show what the settled 
 rules of construction are in relation to the different classes of 
 ttases decided. The remarks which have been made will seem to 
 suggest the true test of the value of a decision which turned upon 
 the words " original " or " collateral " promise. 
 
 That class of cases which stands upon the principle that a verbal 
 promise to pay an existing debt of another person is valid if 
 
THE STATUTE OF FRAUDS. 851 
 
 founded upon a new consideration, cannot be supported unless the 
 statute is disregarded. To illustrate; suppose that A. owes B. 
 a debt which has been due for a year, and that C, in consideration 
 of one dollar paid to him by B., the creditor, verbally promises 
 to pay the debt of A., it is entirely clear that this promise is one 
 for the payment of the debt of another person, and, therefore, 
 void. There can be no doubt but that the agreement would be 
 binding if it were reduced to writing and subscribed by C., since 
 the consideration is legally sufficient. But a consideration may 
 consist of something else than a benefit to the promisor; for a 
 detriment to the person to whom the promise is made, is as valid 
 as one in which the promisor is benefited. And if a creditor 
 should forbear the collection of a debt of his debtor, at the request 
 of a third person, who should, in consideration thereof, promise 
 to pay the debt, this would be a sufficient consideration to. make 
 such third person liabl^; but this new consideration would not 
 make a verbal promise binding within the statute. 
 
 Nature of the consideration. — The law does not show any par- 
 tiality for any particular consideration for a promise, if the 
 particular consideration is a legal and sufficient one. And, there- 
 fore, there is not in reality any difference in principle as to con- 
 sideration, whether it is a benefit to the promisor, or a detriment 
 to the promisee. Any consideration which is sufficient to sustain 
 a promise to do any other act, is equally valid to sustain a promise 
 to pay the debt of a third person. But that still leaves the statute 
 in full force, which requires that the promise shall be in writing, 
 and showing a consideration, etc., or it is void. There are some 
 cases in which the effect of a verbal promise is to pay the debt of 
 a third person, and in which the promise is held to be binding 
 although it is merely verbal. Suppose that A. is indebted to B., 
 in the sum of one hundred dollars, and that A. then sells and de- 
 livers a horse to C, who in consideration of the horse promises 
 verbally that he will pay one hundred dollars to B. ; the agree- 
 ment, if performed, would be to pay the debt due from A. to B., 
 and it may be said, that the verbal promise of C. was to pay the 
 debt which A. owed to B. This, however, is not strictly the real 
 character of the promise. It is true that one effect of a perform- 
 ance of the promise would be the payment of that debt ; but that 
 is not a full statement of the transaction. For C, by the pur- 
 chase of the horse, created a debt against himself in favor of A., 
 which he was legally bound to pay to some one, and the law per- 
 mits the payment to be made to such, person as A. may designate. 
 
852 THE STATUTE OF FEAUDS. 
 
 For this reason an action may be maintained by B. against C, to 
 recover the purchase price of the horse, although the effect of such 
 transaction is to satisfy the debt due from A. to B. And such an 
 action could also be maintained by B. against C, although there 
 ■were no debt due from A. to B. The practical result of such 
 agreements is, that the party promising merely pays his own debt 
 in a particular manner, and the fact that it happens to pay the 
 debt of a third person, does not invalidate the transaction. 
 
 And it is settled by numerous cases, that when a debtor sells 
 property, or delivers money to a third person, in consideration 
 that he will pay an agreed sum to the creditor of such debtor, 
 such transaction is valid and the creditor may recover the sum 
 agreed upon. Barker v. BucJclin, 2 Denio, 45 ; Laivrence v. Fox, 
 20 "JST. Y. 268 ; Wyman v. Smith, 2 Sandf. 331 ; Farley v. Cleve- 
 land, 4 Cow. 432 ; S. C, 9 Cow. 639 ; Ellwood v. Monlc, 5 Wend. 
 235 ; Stillwell v. Otis, 2 Hilt. 148 ; Seaman v. Hasbrouck, 35 
 Barb. 151 ; Barlow v. Myres, 64 'N. Y. 41 ; Brown v. Curran, 14 
 Hun, 460 ; Ricard v. Sanderson, 41 N. Y. 1Y9 ; Freeman v. Auld, 
 44 N. Y. 50; Hutchings v. Miner, 46 IST. Y. 458; Burr v. Beers, 
 24 N. Y. 178 ; Little v. Banks, 20 Hun, 143. 
 
 Stranger to the consideration. — But a mere stranger cannot 
 iclaim the benefit of a contract between other parties. To give a 
 third party, who may derive a benefit from the performance of 
 the promise, a right of action on the promise, there must be, first, 
 an intent by the promisee to secure some benefit to the third 
 party; and, second, some privity between the promisee and the 
 party to be benefited, and some obligation or duty owing from the 
 former to the latter which would give him a legal or equitable 
 claim to the benefit of the promise, or an equivalent from him 
 personally. Vrooman v. Turner, 69 N. Y. 280 ; Smith v. Cross, 
 16 Hun, 487. Thus, a promise for a valid consideration by A. 
 to B. gives no right of action to C, he being neither privy to the 
 contract nor to the consideration unless it was made for his benefit, 
 and he was the party intended to be benefited; the fact that a 
 benefit would inure to him from the performance of the contract 
 is not sufficient. There must be an identification of the person 
 for whose benefit the promise is made to enable him to reap any 
 advantage from the promise. Thus, an unnamed creditor of a 
 firm cannot maintain an action upon an agreement made with 
 the firm, by one not a member, to pay one-quarter of the in- 
 -debtedness of the firm ; as no one creditor can show from the con- 
 
THE STATUTE OF EEAUDS. 853 
 
 tract that it was intended for his benefit or covers any part of his. 
 debt. Wheat v. Rice, 97 IST. Y. 296. 
 
 Promise must be valid as between promisor and promisee In 
 
 addition to the requirements above stated, the promise must be 
 valid as between the promisor and promisee. A person not a 
 party to the promise, but for whose benefit the promise is made,, 
 cannot maintain an action to enforce the promise where the 
 promise is void as between the promisor and promisee for fraud or 
 want of consideration, or failure of consideration. Dunning v. 
 Leavitt, 85 N. Y. 30. There must also be something in the nature 
 of an acceptance and adoption of the promise by the party to be 
 benefited, either by word or act, and this acceptance and adoption 
 must be during the existence of the promise as an enforceable 
 contract as between the promisor and promisee. See Wheat v. 
 Bice, 97 K Y. 296; Turh v. Bidge, 41 K Y. 206; Knicker- 
 hocher Life Ins: Co. v. Nelson, 78 K Y. 136, 151. 
 
 Promise must be in writing — Where the promise is to pay the 
 debt of another, the mere fact that it is supported by a good con- 
 sideration will not save it from the condemnation of the statute. 
 In addition the promise must be in writing, and no matter what 
 consideration exists, if the promise is collateral, a writing is the 
 only competent evidence to establish it. Mallory v. Gillett, 21 N. 
 Y. 412; Prime v. Koehler, 77 N. Y. 91. But where the promise 
 is not collateral, but original and independent, and arises out of 
 some new and original consideration moving between the newly 
 contracting parties, the promise is not within the statute and need 
 not be in writing. Leonard v. Vredenburgh, 8 Johns. 28 ; Mallory 
 V. Gillett, 21 K Y. 412; Sanders v. Gillespie, 59 N. Y. 250; 
 Prime v. Koehler, 77 N. Y. 91. In this class of cases the sub- 
 sisting liability of the original debtor is no objection to a re- 
 covery. And where the purpose of the promise is to secure a 
 benefit to the promisor by relieving his property from a lien, or 
 securing and confirming his possession, the promise isi original and 
 not collateral, although a third person may be personally liable 
 for the debt, and the promise may be in the form of a promise to 
 pay such debt, and although the performance of the promise may 
 result in discharging the debt. Farley v. Cleveland, 4 Cow. 432 ;, 
 Mallory v. Gillett, 21 IST. Y. 412 ; Prime v. Koehler, 77 N. Y. 91. 
 
 The rule is well settled but the application of the rule to the 
 facts of a case is not always easy. As an example of the applica- 
 tion of the rule above stated, suppose that the second indorser of 
 a promissory note, before its maturity, should say to the first 
 
851- THE STATUTE OF FEAUDS. 
 
 indorser of the same note, " If you will take and advance on this 
 note, I will see that the maker pays it," this would be a promise 
 to answer for the debt, default or miscarriage of the maker. But 
 if he says, " You are not now primarily liable to pay the debt, it 
 is not yours to pay; but if you will agree with me to become 
 primarily liable, if you make it yours to pay and pay it I will 
 repay you," and the promisee pays the note in compliance with 
 the request, here comes in a new and original consideration of 
 benefit or harm moving between the newly contracting parties, 
 and the case is not within the statute. Sanders v. Gillespie, 59 IST. 
 Y. 250. So, a promise by a purchaser of land incumbered by a 
 mortgage, that if the mortgagee will not take advantage of a 
 default by which the entire sum secured becomes due, but would 
 extend the time of payment of the interest then due until the 
 next installment became due, he would then pay both installments, 
 is not within the statute, but is an original undertaking on a new 
 and sufficient consideration, moving from the promisor to the 
 promisee and is binding, although the purchaser at the time of 
 the purchase did not assume the payment of the mortgage. Prime 
 V. Koehler, 77 1!^. Y. 91. 
 
 An agreement to forbear to sue a debtor is a good cons.ideration 
 for the promise of a third person to pay the debt; but to render 
 the promise obligatory it must be in writing unless the promise 
 has for its object a benefit to be derived from the forbearance by 
 the promisor. See Watson v. Randall, 20 Wend. 201 ; Stern v. 
 Drinker, 2 E. D. Smith, 401. Eor example, if A. promises to 
 pay the debt of B., in ease O. will discontinue a suit for its re- 
 covery against B., and 0. discontinues the suit in consideration 
 of the promise, C. cannot maintain an action on the promise 
 against A., as it is void by the statute of frauds. Duffy v. 
 Wunsch, 42 IST. Y. 243. So, a promise by a third person to pay 
 a judgment in consideration that the plaintiff in execution will 
 abandon a levy upon the property of the judgment debtor, is void 
 by the statute of frauds. Stern v. Drinker, 2 E. D. Smith, 401. 
 
 In one case, the defendant represented to the creditor that the 
 debtor had placed sufficient property in his hands to pay the debt 
 of such debtor, and he promised that if the creditor would extend 
 the time of payment of such debt, he would sell the property and 
 pay the debt, also that the property should sell for enough to pay 
 the debt. The creditor forbore accordingly, and the defendant 
 was held liable to pay the debt. Lippincott v. Ashfield, 4 Sandf. 
 611. 
 
THE STATUTE OF FRAUDS. 855 
 
 The court said, p. 615 : " The promise is not, however, as 
 defendant's counsel insists, to pay the debt of another. There 
 are two promises: one to apply property in defendant's hands to 
 pay the debt ; and the other, that the property shall sell for enough 
 to pay it. Neither of these promises is a promise to pay the debt 
 of another. The promise by a third person to apply the debtor's 
 own property to pay his debt, is not a promise by the third person 
 to pay it himself. The guaranty added to this promise, that the 
 property shall sell for enough to pay it, is not a promise to pay 
 it. Neither are both promises taken together a promise to pay the 
 debt, although their effect may be to render the promisor liable 
 for so much of it as the property should be insufficient to pay." 
 See Barker v. Buchlin, 2 Denio, 45, and cases cited; Cock v. 
 Moore, 18 Hun, 31. 
 
 A promise by a third person to assume and pay a sum due to 
 the plaintiff in consideration of the discharge of the original debtor, 
 is held to be an original and not a collateral promise, and need 
 not be in writing to be valid and enforceable. Barker v. Bradley, 
 42 K Y. 316. 
 
 The contract of a commission merchant, whereby he assumes 
 the responsibility of a factor upon a del credere commission, is 
 not within the statute of frauds relating to promises to answer 
 for the debts, etc., of a third person, and is, therefore, valid, 
 though by parol. -Sherwood v. Stone, 14 N. Y. 267; Wolff v. 
 Koppel, 2 Denio, 368 ; 8. C, 5 Hill, 458. A factor who sells 
 goods under a del credere commission is liable to pay his principal 
 the value of all goods sold. / 
 
 And if he sells goods to insolvent purchasers he is still liable 
 to pay the amount to his own principal. Slich a promise is not 
 a promise to pay the debt of the purchaser. The factor assumes a 
 trust when the goods are placed in his hands that he will not 
 sell to irresponsible persons, and that he will in any event pay 
 the amount of such sales as he may make. In such a case, he is 
 merely guaranteeing his own conduct, not that of a third person. 
 lb.; Cartwright v. Oreen, 47 Barb. 9. An agreement between 
 parties prior to or cotemporaneously with their executing a written 
 obligation as sureties, by which one promises to indemnify the 
 other from loss, is not required to be in writing to be valid. 
 Barry v. Ransom, 12 JST. Y. 462. The reason is that the party 
 promising is already bound as an original promisor by the signa- 
 ture to the instrument, and the indemnity promised is to secure 
 his own default and not the default of another. 
 
856 THE STATUTE OE EEAUDS. 
 
 A parol promise, made without consideration, to indemnify 
 and save the promisee harmless from all damages, by reason of his 
 becoming bail for a third person, is void as being within the 
 statiTte of frauds. Kingsley v. Balcome, 4 Barb. 131 ; overruling 
 Chapin v. Merrill, 4 Wend. 657. See Bvrkmyr v. Darnell, 1 
 Smith's Lead. Cases, 134 or 371, 383-385, top paging, 5th ed. 
 
 The statute is not limited to cases in which one person assumes 
 to answer for the debt of another, but it extends to every special 
 promise to answer for the default or miscarriage of another person. 
 There are numerous cases in which parties agree to perform some 
 labor, erect some building, or to do some specified act ; so there 
 are many instances in which some surety is required for the faith- 
 ful conduct of a clerk, agent, etc. In all such cases, a promise to 
 answer for the default or miscarriage of such clerk, etc., or for 
 the performance of the special contract, must be by an agreement 
 in writing or it will be void, notwithstanding there may be a valid 
 legal consideration for the promise. The same rule applies to 
 actions of tort. And a verbal promise that a third person will 
 use a hired horse properly, will be void as a promise to answer 
 for the default or miscarriage of another person. 
 
 A mere written promise which does not show any considera- 
 tion, and which is not in the nature of a request, will not be 
 sufficient to create a liability to answer for the debt, default or 
 miscarriage of another. Brewster v. Silence, 8 'N. Y. 207 ; 
 Draper v. Snow, 20 IST. Y. 331 ; S. C, 6 Duer, 662. 
 
 Question as to whom credit was given When it is sought to 
 
 charge one person with the value of goods delivered to another 
 person, it must be shown that the sole credit was given to the per- 
 son sought to be charged, and if it appears that the credit was 
 given to the principal and the surety jointly, or that the surety 
 was not to be liable unless in case of a default by the principal, 
 the surety will not be liable, and his promise is void by the statute, 
 if the promise is a verbal one. Allen v. Scarff, 1 Hilt. 209 ; 
 Brady v. SacTcrider, 1 Sandf. 514; Dixon v. Prazee, 1 E. D. 
 Smith, 35 ; Carville v. Crane, 5 Hill, 483 ; Brown v. Bradshaw, 
 1 Duer, 199 ; Knox v. Nutt, 1 Daly, 213 ; Coiudin v. Gottgetreu, 
 55 N. Y. 650. 
 
 It is always a question of fact to determine to whom the credit 
 was given. And, if the evidence is conflicting upon that quesition, 
 the finding of a jury, or of the justice in their place, will be con- 
 clusive. Flanders v. Crolius, 1 Duer, 206; Chase v. Day, 17 
 Johns. 114. 
 
THE STATUTE OF FKAUDS. 857 
 
 But, if it appears by uncontradicted evidence, that the goods 
 were furnished to B. on his application, and that they were charged 
 in account to him, no action can be maintained against A. for the 
 price, notwithstanding A. may have paid a part of the debt, and 
 a verdict against A. in such a case, will be set aside asi being 
 against evidence. Brown v. Bradshaw, 1 Duer, 199 ; Brady v. 
 Sachrider, 1 Sandf. 514. The fact that the creditor charged the 
 goods directly to the promisor, is not conclusive on the latter. 
 Cowdin V. Oottgeireu, 55 N. Y. 650. 
 
 New contract and abandonment of the old There is a class of 
 
 cases in which a promise may be binding if it is made before the 
 work is completed. The defendant employed one Cavenagh to 
 excavate a vault, in front of his house, and Cavenagh hired the 
 plaintiff to do the work. The plaintiff commenced the job and 
 after working one day, he went to the defendant and declined 
 going on with the job unless the latter would pay him. The de- 
 fendant told him to go on and finish the job and " he should be 
 paid." A verdict was rendered for the plaintiff at the circuit, and 
 the general term affirmed a judgment thereon. Devlin v. Wood- 
 gate, 34 Barb. 252. In another case, the plaintiff was employed 
 by G. to build, for one S., a machine for crushing ore; S. having 
 previously arranged with D. & Co. for payment, and commenced 
 work on the machine. Subsequently D. & Co. refused to pay for 
 the machine, and the plaintiff, on being informed of such refusal, 
 declined proceeding under his contract ; whereupon the defendant 
 promised, verbally, that if the plaintiff would go on and complete 
 the machine, he, the defendant, would pay for it. The plaintiff 
 completed the machine and the defendant was held liable to pay 
 for it. Quintard v. De Wolf, 34 Barb. 97. The court held also, 
 that the first contract was terminated, and that the agreement of 
 the defendant was a contract made on his own behalf, and not a 
 promise to answer for the debt of another person. So, where A. 
 had contracted to build a house for B., to be paid for when finished, 
 and A. refused to go on and perform the contract because B., 
 after the materials were collected and the building framed, had 
 absconded, and the plaintiff was induced to proceed and finish 
 the building upon the representation of C. that he had purchased 
 the interest of B. in the work, and upon his promise that he would 
 pay A., it was held that C was liable to pay for the work done. 
 King V. Despard, 5 Wend. 277. So, where a materialman refused 
 to furnish materials for a house until the owner promised to pay 
 for them, which the owner did, he was held liable to pay for the 
 
858 THE STATUTE OF FEAUDS. 
 
 materials obtained by tbe contractor who bargained with the de- 
 fendant to build his house. Dwrlington v. McCunn, 2 E. D. 
 Smith, 411. These cases which have been cited, all showed that 
 the work was not completed so as to create a debt in favor of the 
 laborer against the person who made the original contract ; or that 
 the original contract was abandoned by the laborer, and that the 
 work was performed under the new agreement. In most of the 
 cases, it appeared, too, that the work done was for the particular 
 advantage of the person who promised to pay for it. They were 
 cases, too, which had been submitted to a jury, who had found 
 these facts upon proper evidence, and, as we have seen, their ver- 
 dict was conclusive upon the questions of fact, if sustained by 
 sufficient evidence. 
 
 Compliance with request of promisor. — A collector of a school 
 district, levied upon certain property by virtue of a warrant duly 
 issued by the trustees of the district, and the defendant agreed 
 with the collector that if he would leave the property in the pos- 
 session of the defendant, that he would produce the property or 
 pay the tax; the collector thereupon delivered the property to the 
 defendant, who did not produce it because it had been removed; 
 and it was held that the defendant was liable to pay the amount 
 of the tax to the collector, and that the case was not within the 
 statute of frauds. HilUard v. Austvn, 17 Barb. 141. 
 
 Where the defendant signs a written instriiment which requests 
 the plaintiff to deliver property to a third person, or, if the paper 
 promises to pay for property delivered to a third person, in case 
 the plaintiff will deliver it, such paper contains a sufficient ex- 
 pression of the consideration ; and the defendant vdll be liable to 
 pay for the goods if they are delivered in puTsuance of such 
 request or promise. Church v. Brown, 21 IST. Y. 315 ; reversing 
 8. C, 29 Barb. 486. And see Bailey v. Freeman, 11 Johns. 
 221. A letter written by the defendant to Gr., stating that if the 
 owner of a specified house will let it to G. at a rent named, he 
 will become security for G., and directing G. to state the sum and 
 to send the papers to the writer for execution, inures to the benefit 
 of the owner on his demising the house to Q. on the faith of the 
 letter, at the terms^, specified ; and he can maintain an action upon 
 the promise on the defendant's refusing to execute the proper 
 security, and the letter expresses on its face a sufficient considera- 
 tion to sustain the promise within the statute of frauds. Water- 
 hury V. Graham, 4 Sandf. 215. A request by the defendant to 
 the plaintiff, to attend, as a physician and surgeon, upon a third 
 
THE STATUTE OF FEAUDS. 859 
 
 person, and a promise by the defendant to the plaintiff that, if he 
 will so attend, the defendant will pay therefor, and the bestowing 
 of such attendance by the plaintiff upon such request, and relying 
 solely upon such promise, render the defendant liable to pay what 
 such attendance is reasonably worth, and his promise need not be 
 in writing to render him liable. Hanford v. Higgins, 1 Bosw. 
 441. But the defendant, in such a case, may, at any time, give 
 notice to the plaintiff, that he will not be liable for attendance or 
 services subsequently rendered, and on so doing, the plaintiff can 
 make no claim on him for services or attendance subsequent to 
 such notice. Ih. In an interview between the plaintiff, the de- 
 fendant and one H., it was agreed by parol between the three, that 
 H. should do certain work for the defendant, for which the plain- 
 tiff should pay H. in goods, and that the defendant should pay 
 the amount to the plaintiff in lumber. The work having been 
 done, it was held in a suit by the plaintiff on the defendant's 
 promise, that it was made upon a good consideration and was 
 binding, and also that the promise need not be in writing within 
 the statute of frauds. Mather v. Perry, 2 Denio, 162. 
 
 Transfer of notes, etc. — It not unfrequently happens that an 
 individual owes a debt which he desires to pay, by tiirning out or 
 assigning a note or account against some third person, in discharge 
 of his own debt, with a guaranty that such note or account is 
 valid and collectible. If the creditor chooses to accept such a note 
 or account as an actual payment of the debt of his debtor, that 
 vrill operate as a payment of the debt and a discharge of the 
 debtor. But it is not usual for a creditor to accept of such a note 
 or account as an actual payment, although the creditor frequently 
 accepts of such demands when accompanied with a guaranty of 
 payment. The law is now well settled in relation to such trans- 
 action?. 
 
 The statute of frauds relating to promises to answer for the 
 debt, default or miscarriage of another, applies only where the 
 promisor stands in the relation of a surety for some third person, 
 who is the principal debtor ; and where, in an action on a written 
 promise to guarantee the payment of a chattel note, it appeared 
 that the defendant transferred the note to the plaintiff, and made 
 the guaranty in consideration of moneys paid by the plaintiff for 
 the defendant at his request ; it was held that the promise was 
 valid, though it expressed no consideration. Johnson v. Gilbert, 
 4 Hill, 1Y8. So, where the payee of a note indorsed the same to 
 the defendant, and the latter transferred it to the plaintiff for a 
 
860 THE STATUTE OF FRAUDS. 
 
 valuable consideration advanced by him at the time, and the de- 
 fendant executed a guaranty of the payment of the note, upon 
 a separate paper which did not express any consideration; it 
 was held that the plaintiff could recover on the guaranty, or that 
 he could recover for money lent and advanced upon an im- 
 plied assumpsit. Tyler v. Stevens, 11 Barb. 485. The plain- 
 tiff sold a horse to the defendant, upon an agreement of the latter 
 to deliver to the plaintiff, a good and collectible note of some 
 third person, who was responsible for the amount, which was $200. 
 The defendant subsequently sent to the plaintiff a note made by 
 one P., a stranger to the plaintiff. The plaintiff took the note 
 and laid it away, remarking that he did not know the man. 
 When the note became due, P. was insolvent. It was held, that 
 the note was not received and taken by the plaintiff in absolute 
 payment of the price of the horse, but as a conditional payment; 
 and that the note proving to be worthless, the plaintiff could 
 recover the price of the defendant. Torry v. Hadley, 27 Barb. 
 193. The defendant on making a purchase of a horse agreed to 
 deliver, in part payment, the chattel note of a third person for a 
 wagon, and the defendant told the plaintiff that such third per- 
 son was good, and he would warrant that the plaintiff would get 
 the wagon when the note became due. The wagon was not de- 
 livered, and it was held, that the defendant was liable to pay the 
 ajnount agreed; that the verbal agreement was valid; that the 
 acceptance of the note without a written guaranty was sufficient, 
 and no waiver of the verbal agreement ; and that the guaranty 
 was to be construed as a guaranty of the payment of the note, 
 and not that it was collectible. Cardell v. McNiel, 21 IST. Y. 336 ; 
 Fowler v. Clearwater, 35 Barb. 148 ; Bruce v. Burr, 67 N. Y. 
 237. 
 
 The acceptance by a creditor from his debtor of a bill or note 
 made by a third person on account of the debt, does not satisfy it 
 unless the parties agreed that it should be received as payment. 
 Noel V. Murray, 13 N. Y. 167. Where the note or bill is received 
 on a precedent debt, the presumption is that it was not taken as 
 payment, and the burden of establishing that it was agreed to be 
 taken in payment, is upon the debtor. lb. But where it is re- 
 ceived cotemporaneously with the contracting of the debt, the pre- 
 sumption is that it was taken in payment, and the burden of 
 proving the contrary rests on the creditor. Th. And see Torry v. 
 Hadley, 27 Barb. 192, 196 ; Gibson v. Tobey, 46 IST. Y. 637. 
 
 When the agreement is required to be in writing, it must always 
 
THE STATUTE OF FEAUDS. 861 
 
 be legally sufficient to show on its face that a valid contract exists. 
 Weivcomb v. Clark j 1 Denio, 226. 
 
 § 4. Sale of an Interest in Land, Etc. 
 
 The preceding sections of this chapter relate to the validity 
 of agreements considered with regard to some of the provisions of 
 the so-called statute of frauds embraced in the Personal Property 
 Law. Certain other of the provisions of that statute found in the 
 same connection will be noticed hereafter. It is proposed to con- 
 sider in this section such of the provisions of the statute of frauds 
 as relate to the leasing or sale of real property or of an interest in 
 real property. These are to be found in chapter 547 of the Laws 
 of 1896, constituting chapter 46 of the General Laws, and known 
 as the Real Property Law. 
 
 Estates in lands are deemed to be of such importance that the 
 law requires that the transfer shall be in writing and under seal. 
 And there are but few interests in lands which can be created 
 or transferred without writing. The provisions of the statute 
 are very explicit, and are quite plain when carefully read. 
 
 " An estate or interest in real property, other than a lease for 
 a term not exceeding one year, or any trust or power, over or 
 concerning real property, or in any manner relating thereto, can- 
 not be created, granted, assigned, surrendered or declared, unless 
 by act or operation of law, or by a deed or conveyance in writing, 
 subscribed by the person creating, granting, assigning, surrender- 
 ing or declaring the same, or by his lawful agent, thereunto au- 
 thorized by writing. But this section does not affect the power 
 of a testator in the disposition of his real property by will; nor 
 prevent any trust from arising or being extinguished by implica- 
 tion or operation of law, nor any declaration of trust from being 
 proved by a writing subscribed by the person declaring the same." 
 Laws of 1896, ch. 547, § 207; General Laws, ch. 46, § 207. 
 
 " A contract for the leasing for a longer period than one year, 
 or for the sale of any real property, or an interest therein, is void, 
 unless the contract, or some note or memorandum thereof, express- 
 ing the consideration, is in writing, subscribed by the lessor or 
 grantor, or by his lawfully authorized agent." Id. § 224. 
 
 The term " conveyance " includes every instrument, iij writing, 
 except a will, by which any estate or interest in real property is 
 created, transferred, assigned or surrendered. Id. § 205. 
 
 Conveyance, and agreement to convey, distinguished. — The title 
 to lands may be transferred from one person to another by opera- 
 
862. THE STATUTE OF FEAUDS. 
 
 tion of law, as where the lands of a deceased person descend to 
 his heir-at-law. So trusts may arise by operation or implication 
 of law. And lands may be devised by last will and testament, 
 which need not be under seal. But the general rule is, that there 
 cannot be a transfer of the title to real estate by way of sale, un- 
 less it be by a deed or other conveyance in writing, and under 
 seal. There is, however, a distinction between an actual convey- 
 ance of the land, and an executory agreement to convey it. A 
 mere executory agreement to convey must be in writing, but it 
 need not be under seal. So there is also a distinction between 
 the authority of an agent to convey lands, and his authority to 
 make an executory agreement for such sale. 
 
 Authority of agent to sell, etc — The authority of an agent to 
 sell and convey lands must be in writing. But an authority to 
 make an executory agreement of sale or for making any other 
 executory agreement by an agent, in relation to lands, need not 
 be in writing. Lawrence v. Taylor, 5 Hill, 113. The agreement 
 itself for the sale or transfer of lands, or of an interest therein, 
 must be in writing, although the agent of the contracting parties 
 need not be authorized in writing to act as such agent in making 
 the contract. Newton v. Bronson, 13 IST. Y. 587 ; Worrall v. 
 Munn, 5 IST. Y. 229 ; Coleman v. Garrigues, 18 Barb. 60 ; Pringle 
 V. Spaulding, 53 Barb. 17 ; Moody v. Smith, 70 IST. Y. 598 ; Briggs 
 V. Partridge, 64 IT. Y. 357, 364. An authority to sell given to a 
 real estate broker, authorizes him to sign the contract and bind 
 his principal. Pringle v. Spaulding, 53 Barb. 17 ; Haydoch v. 
 Stow, 40 IST. Y. 363. The authority to sell may be established by 
 parol or may be inferred from the adoption by the principal of 
 the act of the agent. Pringle v. Spaulding, 53 Barb. 17. A con- 
 tract which is made by an agent without any authority, may be 
 subsequently ratified by the principal, and it will then become 
 binding upon him. If the authority of the agent would have 
 been valid without writing, the ratification will be valid without 
 writing. Worrall v. Munn, 5 IST. Y. 229, 240-246. And if the 
 authority of the agent ought to be in writing and under seal, then 
 the ratification must be under seal. Newton v. Bronson, 13 'N. Y. 
 587. 
 
 An executory contract under seal for the purchase of land, 
 executed by an agent in his ovsti name for an undisclosed principal, 
 cannot be enforced against the latter on proof of parol authority of 
 the agent to enter into the contract, and of the agency, at least 
 in the absence of proof of ratification by the principal. Briggs v. 
 
THE STATUTE OF FRAUDS. 863 
 
 Partridge, 64 IST. Y. 357. But this does not result from the ope- 
 ration of the statute of frauds, as that statute does not apply 
 to the contract of the vendee, but only to the contract of the party 
 hy whom the sale is to be made, or his agent lawfully authorized. 
 The vendee's contract need not be in writing. Ih.; McCrea v. 
 Purmort, 16 Wend. 469. 
 
 Exchange of lands, etc. — Where a party obtains title to real 
 estate upon a verbal agreement to transfer to the grantor in pay- 
 ment of the lands, other property, real or personal, the statute of 
 frauds does not apply and equity will enforce the agreement. 
 Poberge v. Winne, 144 IST. Y. 709, 711 ; Sprague v. Cochran, 144 
 ]S^. Y. 104 ; Beardsley v. Duntley, 69 K Y. 577 ; Miller v. Ball, 
 64 E". Y. 286. 
 
 Interest in lands — Where the parties intend to transfer the 
 title to lands by the instrument made, or where the agreement is 
 an executory one for a future conveyance of lands, there is gen- 
 erally no question made whether the contract relates to an in- 
 terest in lands. But, there are many cases in which parties can- 
 not agree upon the question whether the particular agreement 
 which they have made relates to an interest in lands. The diffi- 
 culty arises from the fact that the parties disagree upon the point 
 whether the subject-matter of the agreement is an interest in real 
 estate. The interest of a person who purchases a pew in a church, 
 although it is a limited and qualified estate, is an interest in real 
 estate, and the contract must be in writing to be valid. 
 
 Pews were sold at auction according to a plan of a church, 
 which had not then been built, and the plan showed the location 
 and the number of the pews, and there was a written or printed 
 paper exhibited, showing the conditions of the sale. The defend- 
 ant bid off one of the pews at a specified price, which was written 
 upon the plan together with the name of the bidder, by a person 
 who acted as clerk of the auctioneer. The bidder refused to ac- 
 cept a deed of the pew, and to pay the price which he had bid at 
 the sale, and it was held that the contract of sale was not binding 
 upon him, because such a memorandum, to be valid, must contain 
 everything necessary to show the contract between the parties, 
 so that there need not be any parol proof to explain the intention 
 of the parties or the terms of the agreement ; and it was held that 
 the conditions of the sale did not constitute a part of the memoran- 
 dum made; that the memorandum did not show that a pew was 
 sold, nor the names of the parties, nor the terms or time of pay- 
 
864 THE STATUTE OF FRAUDS. 
 
 ment, and that the agreement was therefore void. First Baptist 
 Church V. Bigelow, 16 Wend. 28. And see Wright v. Weeks, 25 
 N. Y. 153. 
 
 In another case, the defendant agreed to purchase a pew in a 
 church, and he gave his promissory note for the amount agreed 
 upon as the purchase price. The bargain was verbal on the part 
 of the defendant. The entire agreement on the part of the trus- 
 tees who sold the pew was printed, and the names of the trustees 
 were printed at the end of the agreement, and not subscribed in 
 writing. This agreement certified that the defendant had pur- 
 chased a certain pew, giving the number of it, and that the de- 
 fendant would be entitled to a deed on payment of the promis- 
 sory note given therefor. It was held that the sale of a pew in a 
 church is a sale of an interest in real estate ; that the memorandum 
 of such sale must show the consideration of such sale ; that the 
 agreement must be subscribed by the vendors at the end of the 
 agreement ; and that a printed signature like the one employed 
 was not a valid signature by the trustees ; that such signatures 
 must be in writing or they will be void ; and that, therefore, there 
 was no consideration for the promissory note given by the defend- 
 ant, and that no action could be maintained upon it. Vielie v. 
 Osgood, 8 Barb. 130. An agreement for a lease of a pew in a 
 church for a term longer than for one year must also be in writ- 
 ing or it will not be binding. The trustees of a religious society, 
 incorporated under the general act relative to the incorporation 
 of religious societies, have no power to execute an absolute deed 
 of a pew in a church, in fee, without reserving any rent. lb. 
 
 The terms " estate " and " interest in real property," as used in 
 the present statute, include every such estate and interest, free- 
 hold or chattel, legal or equitable, present or future, vested or 
 contingent. Laws of 1896, ch. 547, § 205 ; General Laws, ch. 46, 
 § 205. 
 
 Agreements to purchase for benefit of ajiother Where a pur- 
 chaser at a foreclosure sale undertakes to purchase for the benefit 
 of the mortgagor, and thus acquires the title at a price greatly 
 below its value, he will be deemed in equity the trustee of the 
 mortgagor, and on tender to him of the purchase money and in- 
 terest, he will be compelled to convey to the party equitably en- 
 titled. Ryan v. Dox, 34 IST. Y. 307. It is no objection that the 
 agreement by which the purchaser undertook to purchase for the 
 benefit of the mortgagor was not in writing. The law makes him 
 a trustee ex maleficio. Ih. The exercise of the equitable juris- 
 
THE STATUTE OF EKAUDS. 865 
 
 "diction of the court in such case does not proceed upon the theory 
 that the case does not come within the letter of the statute of 
 frauds, but upon the broader ground that a court of equity will 
 not permit the statute of frauds to be used as an instrument of 
 fraud. See Bobbins v. Bobbins, 89 N. Y. 251 ; Wood v. Babe, 
 96 ]Sr. Y. 414. The fraud which will convert the purchaser at the 
 sale into a trustee ex maleficio, must be .a fraud at the time of sale. 
 The mere refusal to perform a parol agreement void under the 
 statute of frauds is in no sense a fraud either in law or equity. 
 lb.; Wheeler v. Beynolds, 66 N. Y. 22Y; Levy v. Brush, 45 N. Y. 
 589 ; Cauda v. Totten, 87 Hun, 72. A parol agreement in refer- 
 ence to lands not authorized by the statute of frauds is void as 
 well in equity as in law. Wheeler v. Beynolds, 66 IST. Y. 227. 
 
 A. made a verbal agreement with B. for the purchase of certain 
 lands owned by the latter, and the purchase price which he was 
 to pay was $8,000. 0. desired to purchase the same lands, and 
 he made a verbal agreement with A. for their purchase, at the 
 price of $8,250, free from all liens or incumbrances. O. paid 
 the purchase money as follows: $8,000 to B. and $250 to A. By 
 agreement of the parties, B. deeded the lands directly to C, 
 instead of deeding them to A., and then A. deeding to C At 
 the time of this agreement between C. and A., and at the time 
 of the execution of the deed from B. to C, there was an incum- 
 hrance of $152.24 on the lands, which C. was compelled to pay. 
 And 0. then brought an action against A. to recover the amount 
 paid; but it was held that the agreement was void because not 
 in writing, and that no action would lie. Baldwin v. Palmer, 10 
 jST. Y. 232. A party to a contract, void by the statute of frauds, 
 who has voluntarily performed a part of it, cannot, therefore, be 
 compelled to perform the residue, and this is so although he has 
 performed all that part of the contract which is within the statute, 
 and the residue, upon which the action was brought, was void 
 only from its connection with the part already performed. lb. 
 And see Ehle v. Judson, 24 Wend. 97. After a sale of A.'s land 
 to B., upon an execution, and before the sheriff had executed a 
 deed to the purchaser, it was verbally agreed by C. with A. and 
 B. that 0. should take the land of B., the purchaser at the sheriff's 
 sale, and that C. should pay $600 to A., of which sum C. paid 
 $200, as agreed, and the sheriff executed a deed of the land to B., 
 who conveyed it to C, and the latter afterwards sold a part of 
 the land for $600. In an action by A. against C. to recover the 
 $400 unpaid, it was held that the agreement was void by the stat- 
 55 
 
866 THE STATUTE OF FEAUDS. 
 
 ute, and that no action could be maintained. Van Alsiine v. 
 Wimple, 5 Cow. 162. But, besides this objection, there is an- 
 other which is insurmountable, for intermediate the sale on the 
 execution and the delivery of the deed to the purchaser, though 
 the naked fee remains in the debtor, yet this is not an interest of 
 any value, and, therefore, it is no consideration for a promise. Ih. 
 
 Where land has been sold by loan officers for the amount due 
 on the mortgage, the property of the owner is altogether divested ; 
 and he cannot, afterwards, compel the purchaser to reconvey the 
 land to him, on repaying the purchase money; and where there 
 has been a previous agreement between the owner and the pur- 
 chaser, the latter cannot be deemed to have purchased as a trus- 
 tee for the owner; and if there were a parol agreement to that 
 effect, it would still be void by the statute of frauds; and, there- 
 fore, where the owner of lands sold by loan officers paid the pur- 
 chaser a sum of money to release his interest, which was done, he 
 cannot maintain an action for money had and received, to re- 
 cover it back as received unconseientiously, whether there were a 
 previous parol agreement or not, in relation to the subject. Sher- 
 rill V. Crosby, 14 Johns. 358. 
 
 Contracts in respect to crops, trees, etc. — A verbal agreement 
 between A. and B., whereby A. is to cut the wood and brush upon 
 the land of B., and to heap the brush, for the wood, A. being al- 
 lowed until the ensuing winter to draw the wood away by sleigh- 
 ing, is within the statute of frauds, and void as an agreement, 
 although it may operate as a license, which is revocable at any 
 time. Bennett v. Scott, 18 Barb. 347. Although a parol con- 
 tract to grant an easement in land is void, yet in certain cases 
 it may be sustained as a license. Cayuga R. B. Co. v. Niles, 13 
 Hun, 170. 
 
 Where, under a parol contract for the sale of land, the vendee, 
 with the consent of the vendor, in pursuance of the terms of the 
 contract, enters into possession and puts in crops, the invalidity 
 of the contract to sell and convey does not affect the vendee's 
 title to the crops ; and if the vendor refuses to perform and evicts 
 the vendee, the title of the latter to the crops is not thereby di- 
 vested. In such case the crops, as between the parties are not 
 a part of the realty, but chattels. Harris v. Frink, 49 IST. Y. 24. 
 An agreement for the sale of growing trees, with the right to en- 
 ter on the land at a future time and remove them, is a contract 
 for the sale of an interest in lands, and to be valid must be in 
 writing. Oreen v. Armstrong, 1 Denio, 550; Vorebeek v. Boe, 50 
 
THE STATUTE OF FEAUDS. 86T 
 
 Barb. 302; Goodyear v. Yosburgh, 57 Barb. 243; 39 How. 377; 
 Killmore v. Hewlett, 48 E". Y. 269 ; Warren v. Leland, 2 Barb. 
 613; Thomson v. Poor, 57 Hun, 285. Tbe distinction between 
 the two classes of cases is in the nature of the subject of the agree- 
 ment. Growing trees, fruit or grass and other natural products 
 of the earth are a parcel of the land and can be transferred only 
 by a contract in' writing ; while growing crops and other natural 
 productions raised by cultivation of the earth and the industry of 
 man are personal chattels not within the statute. Green v. Arm- 
 strong, 1 Denio, 550; Harris v. Frinh, 49 JST. Y. 24; Bank of 
 Lansinghurgh v. Crary, 1 Barb. 542 ; Warren v. Leland, 2 Barb. 
 613 ; Silvernail v. Cole, 12 Barb. 685 ; Pierrepont v. Bernard, 5 
 Barb. 364; 6 N. Y. 279. 
 
 In an action by a landlord against a tenant for waste in cutting 
 down trees, evidence of a parol consent that the tenant might cut 
 the trees down and have the wood on condition that the tenant 
 would clear and seed down the land where the trees were cut, 
 is not admissible ; such consent being a mere license, and requiring 
 a writing to give it validity. McGregor v. Brown, 10 N. Y. 114. 
 Contracts to pay in land — An agreement between two persons 
 that one of them shall labor for the other, and that such labor shall 
 be paid for in land, is void as to the land, even though the services 
 are fully performed. King v. Brown, 2 Hill, 485 ; Lish v. Sher- 
 man, 25 Barb. 433 ; Burlingame v. Burlingame, 1 Cow. 92 ; Camp- 
 hell V. Campbell, 65 Barb. 639. See Moody v. Smith, 70 IsT. Y. 
 598. 
 
 The plaintiff aided the defendant in negotiating the purchase 
 of land, under a parol agreement that he should be compensated 
 for his services by a permanent lease of the land, at an annual 
 rent of eight per cent, upon the purchase price; this agreement 
 was held to be void under the statute. Erben v. Lorillard, 19 
 N. Y. 299. 
 
 In such cases the value of the land cannot be shown for the 
 purpose of determining the amount which the person is entitled 
 to recover for his services, because the measure of damages is 
 limited to the value of the services and not to the value of the 
 land. lb. 
 
 The cases of King v. Brown, 2 Hill, 485, and Burlingame v. 
 Burlingame, 7 Cow. 92, are overruled so far as they hold that the 
 value of the land is the measure of damages. lb. 
 
868 THE STATUTE OF FRAUDS. 
 
 Recovering back payments made on void contracts. — Where there 
 is a verbal agreement to sell land, and the purchaser pays a part 
 or all of the purchase money, he cannot recover it back from the 
 vendor, if he is willing to convey the lands as he agreed. The 
 agreement is void in the sense that the purchaser could not be 
 compelled to pay the purchase price; but if he voluntarily pays 
 the money, the contract though invalid is not illegal, and, there- 
 fore, the purchaser cannot maintain an action to recover back 
 the money paid. Ahbott v. Draper, 4 Denio, 51 ; Battle v. 
 Bochester City Bank, 5 Barb. 414; 8. C, 3 K Y. 88; Collier 
 V. Coates, 17 Barb. 471 ; Goelth v. White, 35 Barb. 76. But if 
 the vendor, in such a case, refuses to convey the lands as he 
 agreed, or if he rescinds the agreement in pursuance of a right 
 reserved in a written contract of sale, then the purchaser may 
 recover back the money which he has advanced upon the con- 
 tract. Utter V. Stewart, 30 Barb. 20 ; Laivrence v. Taylor, 5 Hill, 
 107 ; Wood V. Shultis, 4 Hun, 309 ; Harris v. Frink, 49 IST. Y. 24. 
 
 Where parties have entered into a contract for the sale of lands, 
 and the vendor has subsequently orally agreed that the vendee may 
 pay the purchase money in work and labor, if the vendor, after the 
 performance of the work and labor, refuses or is unable to per- 
 form, the vendee may recover the value of the work and labor by 
 action. In such case the statute of frauds has no application. 
 Moody V. Smith, 70 li. Y. 598. 
 
 So, where the seller is guilty of false representations as to the 
 nature of the property, and of the incumbrances upon it, and 
 the purchaser has paid a part of the purchase money upon the 
 faith of these representations, he may recover it back, notwith- 
 standing the seller is willing to convey his interest in the prem- 
 ises. Fraud as to a material fact, in such cases, is sufBcient to 
 entitle the purchaser to recover his money, although there could 
 not be such a recovery in the absence of such fraud. Hellman v. 
 Strauss, 2 Hilt. 9. Where a party, by a fraudulent representa- 
 tion that he was the owner of land, induced another to bestow 
 labor upon it, in the expectation of enjoying the property as joint 
 owner, the latter, on discovering the fraud, may abandon the con- 
 tract under which the labor was performed, and recover the value 
 of the work done, although the agreement is a verbal one. Rickard 
 V. Stanton, 16 Wend. 25. An agreement to exchange lands is as 
 much within the statute as an agreement to sell them, and it is 
 governed by the same rules of law. Bice v. Peet, 15 Johns. 503. 
 
THE STATUTE OE FKAUDS. 869 
 
 Part performance of void agreement. — A part performance of a 
 parol agreement for the sale of lands does not render the agree- 
 ment binding and valid, so as to take it out of the statute. Bald- 
 win V. Palmer, 10 IST. Y. 232. A voluntary part performance of a 
 contract void by the statute of frauds, will not give an action to com- 
 pel performance of the residue, even where there has been a per- 
 formance of all that part of the contract which is within the statute, 
 and the residue upon which the action is brought is void only from 
 its connection with the part already performed. Ih.; Harsha v. 
 Eeid, 45 IST. Y. 415, 420 ; Cagger v. Lansing, 43 N. Y. 550. The 
 cases where a recovery is permitted for money paid or services per- 
 formed upon a void contract are those wherein the action is brought 
 in disaffirmance of the contract, and not in affirmance with a view 
 of enforcing it. Baldwin v. Palmer, 10 IsT. Y. 232. A contract 
 void by the statute is void for all purposes. It confers no right 
 and creates no obligation as between the parties to it ; and no 
 claim can be founded upon it as against third persons. It cannot 
 be enforced directly or indirectly. Dung v. Parker, 52 IST. Y. 494. 
 
 There are cases where a part performance of a parol contract 
 is allowed by a court of equity to dispense with the requirement 
 of the statute. This right is recognized by the statute itself. Laws 
 of 1896, ch. 547, § 234. It is not always easy to determine 
 whether there has been such part performance as to have that 
 effect. The general rule is that nothing is to be considered as part 
 performance which does not put the party into a situation which 
 is a fraud upon him unless the agreement is fully performed. 
 Malins v. Brown, 4 IST. Y. 403 ; Miller v. Ball, 64 IST. Y. 286 ; Lud- 
 wig V. Bungart, 48 App. Div. 618. See Winchell v. Winchell, 100 
 N. Y. 159. Full payment of the purchase money is not, of itself, 
 such part performance as will justify a court of equity in enforc- 
 ing a verbal contract for the sale of land. Cooley v. Lobdell, 153 
 N. Y. 596. But whatever power a court of equity has in the mat- 
 ter of dispensing with the requirement of the statute, no such 
 power is vested in a court of law. Baldwin v. Palmer, 10 IST. Y. 
 232. 
 
 Requisites of the note or memorandum. — A note or memorandum 
 sufficient to take the contract out of the operation of the statute of 
 frauds must state the whole contract with reasonable certainty, so 
 that the names of the parties thereto, and the substance thereof, 
 may be made to appear from the writing itself without recourse 
 to parol evidence. Cheever v. Schall, 87 Hun, 82 ; Mentz v. New- 
 
870 THE STATUTE OF EEAUDS. 
 
 witter, 122 IST. Y. 491. It must be " subscribed " by the lessor or 
 grantor or by his lawfully authorized agent. The term " sub- 
 scribe " means that the grantor or lessor or agent shall sign under- 
 neath or at the end of the agreement. Davis v. Shields , 26 Wend. 
 341 ; James v. Patten^, 6 IST. Y. 9, 16. The consideration must 
 be expressed. Laws of 1896, ch. 547, § 224. If the contract 
 is subscribed by the person by whom the interest is to be trans- 
 ferred, it will be sufficient to bind him, although the agreement 
 of the purchaser is merely verbal. National Fire Ins. Co. v. 
 Loomis, 11 Paige, 431 ; Edwards v. Farmers' Fire Ins. Co., 21 
 Wend. 467 ; 8. C, 26 Wend. 541 ; McCrea v. Purmort, 16 Wend. 
 460. 
 
 If the contract is subscribed by the purchaser but not by the 
 vendor, the statute will not be complied with, because it in ex- 
 press terms declares that the agreement shall be void unless it 
 is subscribed by the person by whom the sale is to be made. Vielie 
 V. Osgood, 8 Barb. 130; Champlin v. Parish, 11 Paige, 406. 
 
 If the contract, in such case, is not binding upon the vendor, 
 there would not be any mutuality of consideration, and it would 
 Tiot be binding upon the purchaser for that reason. Townsend v. 
 Hubbard, 4 Hill, 351 ; McWhoHer v. McMahan, 10 Paige, 386 ; 
 Champlin v. Parish, 11 Paige, 406. 
 
 This memorandum need not be subscribed by the parties in per- 
 son, it will be equally valid, if subscribed by an agent duly author- 
 ized for that purpose. An auctioneer who sells lands at public 
 auction, is an agent within the meaning of the statute, for the 
 purpose of making a valid memorandum. The owner of several 
 lots of land wished to have them sold, and wrote a letter to the auc- 
 tioneer, stating the terms of sale. At the time of making the sale, 
 the auctioneer read the terms of sale to the bidders from this letter, 
 which was, at that time, pinned in his sale-book. The auctioneer 
 also made the other entries in his sale-book necessary to make a 
 proper and sufficient memorandum if the letter was to be con- 
 sidered a part of the entry, and then subscribed his name to such 
 raemorandum ; it was held, that the letter was a part of the memo- 
 randum, and that the contract was valid. Tallman v. Franklin, 
 14 K Y. 584; Hagadom v. Lang, 34 App. Div. 117. 
 
 Where the name of the principal is stated in the body of the 
 memorandum, that is sufficient, although the auctioneer subscribes 
 lis own name merely, without any reference to his principal. 
 PincJcney v. Hagadom, 1 Duer, 89 ; Tallman v. Franklin, 14 IST. 
 T. 584; Dykers v. Townsend, 24 K Y. 57. 
 
THE STATUTE OF FEAUDS. 871 
 
 A sale of lands by an auctioneer at a public auction, is a mere 
 agreement to convey the lands by deed at a subsequent time ; and 
 such agreements need not be under seal; and, for that reason, 
 the authority of the agent need not be in writing, nor under seal. 
 So, for the same reason, the contract is valid, if subscribed by the 
 agent in his own name, if the contract shows that it is made for 
 his principal. 
 
 § 5. Agreements not Within the Statute. 
 
 There are numerous cases which relate to land, and to things 
 growing upon it, which are not within this statute. A sale of 
 crops of any kind which are raised by annual cultivation, such as 
 wheat, corn, rye, oats, barley, potatoes, and the like, is not a sale 
 of an interest in lands, although the crops are growing at the time 
 of the sale; and such agreement need not, therefore, be reduced 
 to writing, so far as it is affected by the statute relating to a sale 
 of an interest in lands. Austin v. Sawyer, 9 Cow. 39 ; Whipple 
 V. Foot, 2 Johns. 418, 422; Stewart v. Doughty, 9 Johns. 112. 
 And see ante, p. 867 ; Oreen v. Armstrong, 1 Denio, 550. 
 
 A mortgagor of real estate released the equity of redemption 
 to the mortgagee, who agreed, in consideration thereof, to sell the 
 mortgaged premises; and that, after deducting the amount due 
 to himself, he would pay the surplus of such sale to the mort- 
 gagor; this agreement is not void by the statute; and after a 
 sale of such premises for more money than enough to pay the 
 debt due to the mortgagee, an action will lie by the mortgagor to 
 recover the surplus. Hess v. Fox, 10 Wend. 436. Such an action 
 lies immediately after the sale; and it is no defense that the 
 mortgagee sold the land on credit, and, therefore, has not received 
 the funds to pay with. li. The action in such a case is not 
 founded upon a verbal sale of an interest in lands, nor upon a 
 verbal promise to purchase lands, or an interest therein; and it 
 would lie without any such agreement, if there had been a fore- 
 closure and sale of the lands, and a surplus remained in the hands 
 of the mortgagee. It is analogous to those cases in which lands 
 are conveyed in pursuance of a verbal agreement, and in which 
 the purchaser accepts the deed ; in such case, he will be compelled 
 to pay the purchase money, although the agreement on his part 
 was not in writing. By accepting the deed, the whole contract is 
 performed, except the payment of the money, which may be com- 
 pelled by an action at law. Thomas v. Dichinson, 12 N. Y. 364; 
 
872 THE STATUTE OF FEAUDS. 
 
 'Amhler v. Owen^ 19 Barb. 145 ; Shephard v. Little, 14 Johns. 
 210; Bowen v. Bell, 20 Johns. 338. 
 
 An oral agreement by the vendee of real property to pay off and 
 discharge, as part of the purchase price, certain mortgages upon 
 other property of the vendor, is not void under the statute of 
 frauds. Purdy v. Collyer, 26 App. Div. 338. An oral lease of 
 lands for a single year is valid and not within the statute, though 
 the term is to commence at a future day. See ante, p. 845. 
 
 A verbal agreement to open a road to its original width, by re- 
 moving the fences, is not within the statute, and it is valid. Storms- 
 V. Snyder, 10 Johns. 109. Where a highway is laid out in pursu- 
 ance of the statute, the consent of the owner of the land that the 
 road may be laid through his land is valid, although such consent 
 is merely verbal. Noyes v. Chapin, 6 Wend. 461 ; People v. Good- 
 win,, 5 IST. Y. 568; Baker v. Braman, 6 Hill, 47. Such consent, 
 however, is revocable at any time before the road is laid out, and 
 a sale and conveyance of the land, in good faith, before the laying 
 out of the road, revokes the verbal consent. People v. Goodwin, 
 5 N. Y. 568. 
 
 A parol agreement between the owners of adjoining lands that 
 one of them will, for an adequate consideration, erect and keep 
 up the division fences between them, is not within the statute of 
 frauds, which renders void an agreement not to be performed 
 within a year; nor within the statute relating to the conveyance 
 of lands or of an interest in them. Talmadge v. Rensselaer, etc., 
 R. R. Co., 13 Barb. 493 ; Adams v. Van Alstyne, 25 K Y. 232; 
 S. C, 35 Barb. 9. 
 
 The subject of sales of personal property, and the manner in 
 which they are affected by the statute of frauds, has been suffi- 
 ciently discussed. Ante, p. 726. 
 
 § 6. Fraudulent Sales, Assignments, Judgments, Etc. 
 
 In sales and transfers of property, the law may regard them as 
 fraudulent in reference to the rights of creditors, for either of two 
 causes : first, the transaction may be void on account of an actual 
 and fraudulent intent in the disposition of the property; or, 
 second, because the instrument which conveys the property, or 
 the manner of conveying it, may be in contravention of the settled 
 policy of the law, or of some of its rules. 
 
 The law does not attach any importance to the form of the 
 conveyance by which a fraudulent disposition of property is made. 
 
THE STATUTE OF FKAUDS. 873; 
 
 A bill of sale, chattel mortgage, assignment, or a judgment fraud- 
 ulently confessed, or permitted to be recovered, will be treated as 
 nullities, whenever it is established that they are founded in fraud, 
 and the rights of creditors are thus impaired or destroyed. 
 
 "A transfer of personal property, made in trust for the use of 
 the person making it, is void as against the existing or subsequent 
 creditors of such person." Laws of 1897, ch. 417, § 23 ; General 
 Laws, ch. 47, § 23. 
 
 " Every transfer of any interest in personal property, or the 
 income thereof, and every charge on such property or income, made 
 with the intent to hinder, delay or defraud creditors or other per- 
 sons of their lawful suits, damages, forfeitures, debts or demands', 
 and every bond or other evidence of debt given, suit commenced, 
 or decree or judgment suffered, with such intent, is void as against 
 every person so hindered, delayed or defrauded." Id. § 24. 
 
 " Every sale of goods and chattels in the possession or under 
 the control of the vendor, and every assignment of goods and 
 chattels by way of security or on any condition, but not constitut- 
 ing a mortgage nor intended to operate as a mortgage, unless 
 accompanied by an immediate delivery, followed by actual and 
 continued change of possession, is presumed to be fraudulent and 
 void ae against all persons who are creditors of the vendor or per- 
 son making the sale or assignment, including all persons who are 
 his creditors at any time while such goods or chattels remain in 
 his possession or under his control or subsequent purchasers of 
 such goods and chattels in good faith; and is conclusive evidence 
 of such fraud, unless it appears on the part of the person claiming, 
 under the sale or assignment, that it was made in good faith, and 
 without intent to defraud such creditors or purchasers. But this 
 section does not apply to a contract of bottomry or respondentia, 
 or to an assignment of a vessel of goods at sea or in a foreign 
 port." Id. § 25. 
 
 " The question of the existence of a fraudulent intent in cases 
 arising under this article, is a question of fact and not of law." 
 Id. § 26. 
 
 " A transfer or charge shall not be adjudged fraudulent as 
 against creditors or purchasers, solely on the ground that it was 
 not founded on a valuable consideration." Id. § 27. 
 
 " A transfer, charge, sale or assignment, or proceeding declared 
 by this article to be void, as against creditors or purchasers, is 
 equally void as against the heirs, successors, personal representa- 
 tives or assignees of such creditors or purchasers." Id. § 28. 
 
874 THE STATUTE OE EEAUDS. 
 
 " This article does not affect or impair the title of a purchaser 
 or incumbrancer for a valuable consideration, unless it appear 
 that such purchaser or incumbrancer had previous notice of the 
 fraudulent intent of his immediate vendor or of the fraud render- 
 ing void the title of such vendor." Id. § 29. 
 
 The statutory provisions, above quoted, are a part of the Per- 
 sonal Property Law. Similar provisions are contained in the 
 Real Property Law, allowance being made for the difference in 
 the nature of the property transferred, sold, assigned or incum- 
 bered. 
 
 " A grant of real property is absolutely void, if at the time of 
 the delivery thereof, such property is in the actual possession of 
 a person claiming under a title adverse to that of the grantor; 
 but such possession does not prevent the mortgaging of such prop- 
 erty, and such mortgage, if duly recorded, binds the property 
 from the time the possession thereof is recovered by the mortgagor 
 or his representatives, and has preference over any judgment or 
 other instrument, subsequent to the recording thereof ; and if there 
 are two or more such mortgages, they severally have preference 
 according to the time of recording thereof, respectively." Laws 
 of 1896, ch. 54Y, § 225; General Laws, ch. 46, § 225. 
 
 " A conveyance of an estate or interest in real property, or the 
 rents and profits thereof, and every charge thereon, made or created 
 with intent to defraud prior or subsequent purchasers or incum- 
 brancers, for a valuable consideration, of the same jeal property, 
 rents or profits, is void against such purchasers and incumbrancers. 
 Such a conveyance or charge shall not be deemed fraudulent in 
 favor of a subsequent purchaser or incumbrancer, who, at the 
 time of his purchase or incumbrance, has actual or legal notice 
 thereof, rmless it appears that the grantee in the conveyance, or 
 the person to be benefited by the charge, was privy to the fraud 
 intended." Id. § 226. 
 
 " A conveyance or assignment in writing or otherwise, of an 
 estate, interest, or existing trust in real property, or the rents or 
 profits issuing therefrom, or a charge on real property, or on the 
 rents or profits thereof, made with the intent to hinder, delay or 
 defraud creditors, or other persons, of their lawful suits, damages, 
 forfeitures, debts or demands, or a bond or other evidence of debt 
 given, suit commenced or decree or judgment suffered, with the 
 like intent, is void as against every person so hindered, delayed 
 or defrauded." Id. § 227. 
 
 " A conveyance, charge, instrument or proceeding, declared by 
 
THE STATUTE OF FRAUDS. 8Yo 
 
 this article to be void as against creditors, purchasers or incum- 
 brancers, is equally void as against their heirs, successors, personal 
 representatives or assigns." Id. § 228. 
 
 " The qiiestion of fraudulent intent in a case arising under this 
 article, shall be deemed a question of fact and not of law; and 
 a conveyance or charge shall not be adjudged fraudulent as against 
 creditors, purchasers or' incumbrancers, solely on the ground that 
 it was not founded on a valuable consideration." Id. § 229. 
 
 " This article does not in any manner afEect or impair the title 
 of a purchaser or incumbrancer for a valuable consideration, un- 
 less it appears that he had previous notice of the fraiidulent in- 
 tent of his immediate grantor, or of the fraud rendering void the 
 title of such grantor." Id. § 230. 
 
 "An executor, administrator, receiver, assignee or other trustee, 
 may, for the benefit of creditors, or of others interested in real 
 property held in trust, disaffirm, treat as void, and resist any act 
 done or transfer or agreement made in fraud of the rights of any 
 creditor, including himself, interested in such estate or property ; 
 and a person who fraudulently receives, takes, or in any manner 
 interferes with the real property of a deceased person, or an in- 
 solvent corporation, association, partnership, or individual, is 
 liable to such executor, administrator, receiver or other trustee 
 for the same, or the value thereof, and for all damages caused by 
 such act to the trust estate. A creditor of a deceased insolvent 
 debtor, having a claim or demand exceeding one hundred dollars 
 against such deceased, may, for the benefit of creditors or others 
 interested in the real property of such deceased, disaffirm, treat as 
 void, and resist any act done or conveyance, transfer or agreement 
 made by such deceased in fraud of the rights of any creditor, in- 
 cluding himself, and may maintain an action to set aside such 
 act, conveyance, transfer or agreement without having first ob- 
 tained a judgment on such claim or demand; but the same, if 
 disputed, may be established on the trial. The judgment in such 
 action may provide for the sale of the premises or property in- 
 volved, when a conveyance or transfer thereof is set aside, and 
 that the proceeds thereof be brought into court or paid into the 
 proper surrogate's court to be administered according to law." 
 Id. § 232. 
 
 Chattel mortgages void as against creditors, etc — The statute 
 which relates to chattel mortgages, has been already quoted. If 
 a chattel mortgage is executed in compliance with the requirements 
 of that statute, aS' to the delivery of the property, and as to filing 
 
876 THE STATUTE OF FEAUDS. 
 
 the mortgage properly, etc., such mortgage will nevertheless he 
 absolutely void, if it was made for the purpose, and with the in- 
 tent, to hinder, delay or defraud the creditors of the mortgagor. 
 The provisions of the statute referred to, were intended to apply 
 to such mortgages as were made in good faith, and for a lawful 
 purpose, and with a view to the protection of subsequent pur- 
 chasers or mortgagees in good faith, of the same property, from 
 the same mortgagor. But where the mortgage is intended as a 
 fraud upon the rights of creditors, no form, however solemn, and 
 no ceremony, however formal, will prevent the law from declaring 
 it fraudulent, if proper evidence of such fraud is given. In rela- 
 tion to chattel mortgages, as affected by the statute, one result of 
 a neglect of its provisions, will be to allow the creditors of the 
 mortgagor to take the property upon execution, even when the 
 mortgage was given in good faith and for full value; and so it 
 may be held by subsequent iona fide purchasers or mortgagees, 
 under similar circumstances. The provisions of the statute quoted 
 in this chapter, relate exclusively to those cases in which the dis- 
 position of the property is made with an actual fraudulent intent 
 for the purpose of hindering, delaying or defrauding the creditors 
 of Guch vendor, etc. ; and they relate to every species of property, 
 whether real estate, personal property, or things in action ; and so, 
 on the other hand, they relate to every form or species of convey- 
 ance by which the title to property can be transferred. In a work 
 of this character, however, no notice need be taken of the law so 
 far as it relates to real estate further than to give the statutes above 
 quoted, since a justice's court has no jurisdiction whatever in rela- 
 tion to it. 
 
 Bills of sale, etc., void as against creditors. — Every bill of sale 
 which is made with an intent to hinder, delay or defraud creditors, 
 will be absolutely void, notwithstanding a change of the possession 
 of the property. And a sale made with intent to hinder, delay and 
 defraud the creditors of the vendor is void, notwithstanding the 
 fact that it was made in liquidation of a valid debt. New York 
 Ice Co. V. Cousins, 23 App. Div. 560. A transfer of property 
 made by a husband to his wife in consideration of a bona fide debt 
 due to the wife from the husband, is void if made with intent to 
 hinder, delay or defraud creditors. Vogedes v. Beahes, 38 App. 
 Div. 380. The same rule applies to judgments and executions 
 which are fraudulently employed for the same purpose, and to 
 fraudulent assignments. And it may be stated generally, that 
 where there is an actual intent to defraud, no form in which the 
 
THE STATUTE OF FEAUDS. 877 
 
 transaction is put can shield the property so transferred from the 
 claims of creditors, even though a full and adequate consideration 
 be received for the same. Billings v. Russell, 101 E". Y. 226. A 
 purpose to hinder is as fatal as a purpose actually to defraud. 
 An assignment or transfer with intent to delay the collection of 
 a debt is condemned by the statute and the common law, no less 
 than a transfer or assignment into which the element of actual 
 fraud enters. Buell v. Rope, 6 App. Div. 113 ; McConnell v. 
 Sherwood, 84 IST. Y. 522, 530 ; Warner v. Lahe, U N. Y. Supp. 
 10, 12. 
 
 Assignments with preferences — The law not only permits an 
 insolvent debtor to make an assignment of his property for the 
 payment of his creditors, but even to make preferences within 
 certain limits. Under the General Assignment Act of 1877, as 
 amended, the wages or salaries actually owing to the employees 
 of the assignor at the time of the execution of the assignment for 
 services rendered within one year prior thereto, are preferred 
 before any other debt in the distribution of assets, even though 
 such preference may exhaust the entire proceeds of the assigned 
 estate to the exclusion of other creditors. See Laws of 1877, ch. 
 466, as amended by ch. 328, Laws of 1884; ch. 283, Laws of 
 1886 ; ch. 624, Laws of 1897. But a preference other than for 
 such wages or salaries of employees will be valid only to the 
 amount of one-third in value of the assigned estate remaining 
 after deducting such wages or salaries, and the costs and expenses 
 of executing the trust. Laws of 1877, ch. 466, § 30, as amended 
 by Laws of 1887, ch. 503. A preference in excess of the statutory 
 limit will not render the assignment void, but only the excess of the 
 preference. G. N. Bank v. Seligman, 138 N. Y. 435. 
 
 Independently of the General Assignment Act, a debtor, although 
 insolvent, has the right to sell and transfer the whole or any por- 
 tion of his property to one or more of his creditors in payment 
 of or to secure their debts, if that is his honest purpose, although 
 the effect of the sale or transfer is to place his property beyond 
 the reach of his other creditors and render their debts uncollectible. 
 Tomphins v. Hunter, 149 N. Y. 117, 121 ; Delaney v. Valentine, 
 154 ]Sr. Y. 692; Dodge v. McKechnie, 156 K Y. 514; Shotwell 
 V. Dixon, 163 'N. Y. 43. That right existed at common law as an 
 incident to the right of property, and still exists except as limited 
 by the provisions of the statute of 1887, and the decisions under 
 it. Ih. 
 
878 THE STATUTE OF EKAUDS. 
 
 The General Assignment Act relates only to assignments for the 
 benefit of creditors and to preferences created therein, and does 
 not, in terms, relate to any other transfers or transactions ; so that, 
 under its provisions, if the language employed was given only its 
 usual and ordinary meaning, it would seem to have no application 
 where the transfers were independent of the assignment. But 
 the decisions of the court of last resort have given it a broader 
 effect. And it is firmly established by the decisions of that court 
 that the statute of 1887 is not confined to preferences in the as- 
 signment itself, but also applies to those created by separate in- 
 struments in contemplation of an assignment ; and that where 
 there have been transfers of property of the debtor, followed by 
 a general assignment, and the evidence shows that such transfers 
 were made in contemplation of a subsequent assignment, and 
 with the intent of avoiding the statute, they will be held to be 
 within its provisions, provided it is proved that the creditors ac- 
 cepting the property had knowledge of such intent and purpose 
 on the part of their transferrer. But it is equally clear under 
 the decisions that transfers to creditors to pay their honest claims, 
 though followed by a general assignment, cannot be avoided or 
 held to fall within the statute unless the evidence fairly shows 
 a knowledge on their part that an assignment is contemplated, and 
 that the purpose of such transfers is to give a preference in excess 
 of one-third of the estate. See Berger v. Varrelmann, 127 iN". Y. 
 281 ; Manning v. Beck, 129 !N". Y. 1 ; Thalheimer v. Klapetzky, 
 129 N. Y. 647 ; Spelman v. Freedman, 130 IST. Y. 421 ; C. N. 
 Bank v. Seligman, 138 E". Y. 435 ; Ahegg v. Bishop, 142 IST. Y. 
 286; Shotwell v. Dixon, 163 N. Y. 43. A creditor's knowledge 
 that his debtor, at the time of a transfer in payment of his claim, 
 intended to make a general assignment for the benefit of creditors, 
 cannot be inferred from the mere fact that the transfer, together 
 with transfers to other creditors, was made the day before the 
 assignment. Ih. l^o relation or connection between several trans- 
 fers can be inferred from the similarity of the dates. Maass v. 
 Folk, 146 ]Sr. Y. 34. And where, without making or contemplat- 
 ing any general assignment for creditors, an insolvent debtor 
 makes an absolute sale and transfer of all his property, both real 
 and personal, at its full value, to a single creditor in payment of 
 a debt or of debts due him, such sale and transfer do not come 
 within the statute prohibiting preferences in assignments in ex- 
 cess of one-third of the value of the assigned estate. Tompkins 
 
THE STATUTE OF EEAUDS. 879 
 
 V. Hunter, 149 N. Y. 117. And see Delaney v. Valentine, 154 
 N. Y. 692, 699 ; Brown v. Guthrie, 110 N. Y. 435. 
 
 But there are numerous cases in which an assignment may 
 have been made without any actual fraudulent intent, and yet it 
 will not be sustained, because some of the provisions of the assign- 
 ment violate some principle of public policy, or contravene some 
 established rule of law. 
 
 A good illustration of the principle is seen in the case of chattel 
 mortgages, which may have been made in good faith, and yet 
 have been held invalid, because not filed, or because no transfer 
 was made of the possession of the mortgaged property. So there 
 are many cases in which a debtor has made an assignment with 
 an intention that his property should go as far as possible towards 
 the payment of his just debts, and yet some of the provisions which 
 were inserted in the assignment for that purpose, have been held 
 to be fatal to the validity of the instrument. An assignment may 
 be void for something which appears on the face of the instrument, 
 or for some reason extrinsic, and which relates to the intention with 
 which it was made. A fraudulent intention, in fact, is always 
 fatal to its validity, however fair it may appear upon its face. 
 When an assignment is impeached as being fraudulent upon its 
 face, the question is, whether the provisions of the instrument are 
 such, that when carried out, according to their apparent and rea- 
 sonable intent, they will be fraudulent in their operation. Eraud 
 cannot be presumed, where the instrument admits a contrary con- 
 struction. Kellogg v. Slawson, 15 Barb. 56 ; 8. C, 11 N. Y. 
 302 ; Brigham v. Tillinghast, 15 Barb. 618 ; Mann v. Witheck, 
 17 Barb. 388 ; Jacohs v. Allen, 18 Barb. 549 ; Banlc of Silver 
 Creeh v. Talcoit, 22 Barb. 550; Shultz v. Hoagland, 85 N. Y. 
 464. The rules governing the construction of such instruments 
 require such an interpretation as will render the instrument con- 
 sistent with innocence, and the general rules of law, in preference 
 to such as would impute a fraudulent intent to the assignor, or 
 defeat the general purpose and intent of the conveyance. Bagley 
 v. Bowe, 105 K Y. 171 ; Groolc v. Bindshopf, 105 N. Y. 477, 
 485 ; Ginther v. Richmond, 18 Hun, 232, 234 ; Bapalee v. Stewart, 
 27 ]Sr. Y. 315 ; Benedict v. Huntington, 32 IST. Y. 219 ; Townsend 
 V. Stearns, 32 IST. Y. 209 ; Bolerts & Go. v. Buckley, 145 IST. Y. 
 215. 
 
 An assignment made by a debtor, of his property, with the 
 fraudulent intent to hinder, delay and defraud his creditors, is 
 void, although his assignees are free from all imputation of par- 
 
880 THE STATUTE OF EKAUDS. 
 
 ticipating in his fraudulent designs, and they are themselves bona 
 fide creditors of the assignor, and are to take the entire avails of 
 the assigned property to pay their preferred debts. Bathbun v. 
 Plainer, 18 Barb. 272 ; Wilson v. Forsyth, 24 Barb. 106. But a 
 mortgagee who takes a mortgage of personal property from his 
 debtor to secure his debt in good faith, and without any notice 
 of an improper design on the part of the mortgagor in executing 
 the same, will be protected, although the object and design of 
 the mortgagor in executing the same, was to delay, hinder or de- 
 fraud his other creditors. Hall v. Arnold, 15 Barb. 599. An 
 assignment, executed by a man in embarrassed or insolvent cir- 
 cumstances, of his property, in trust for the benefit of creditors, 
 is valid, if it unconditionally and absolutely devotes the whole of 
 the assigned property to the payment of his debts, provided it is 
 made without any intent to hinder, delay or defraud his creditors. 
 And, if such assignment was valid in its creation, no subsequent 
 fraudulent or illegal acts of the parties can invalidate it. Brown- 
 ing V. HaH, 6 Barb. 91 ; Wilson v. Forsyth, 24 Barb. 106, 107 ; 
 Hardmann v. Bowen, 39 JST. Y. 196 ; American Exchange Bank 
 V. Webb, 15 How. 193. Such subsequent acts are admissible upon 
 the question of the intent with which the assignment was made, 
 but they are not conclusive. lb. 
 
 Declarations made by the assignor after the assignment, and 
 after he has parted with the assigned property, are not admissible 
 for the purpose of impeaching the assignment. Cuyler v. McCart- 
 ney, 40 K Y. 221 ; Peck v. Crouse, 46 Barb. 151 ; Roberts & Go. 
 V. Buckley, 145 K Y. 215. 
 
 Where an insolvent debtor makes an assignment of all his prop- 
 erty, and it provides that a portion of his creditors shall be paid, 
 and that then the surplus remaining shall be paid to the assignor, 
 without providing for the payment of the other creditors, such 
 assignment will be void on its face. Strong v. Skinner, 4 Barb. 
 546 ; Leitch v. Hollister, 4 N. Y. 211 ; Curtis v. Leavitt, 15 K Y. 
 12. The rule is the same where there is an assignment of a part 
 of the assignor's property, for the payment of a portion of his 
 creditors, and providing for a return of the surplus before all 
 the creditors are paid. Strong v. Skinner, 4 Barb. 546. The 
 reservation by the assignor of any benefit to himself, in addition 
 to the payment of his debts, is a fraud upon his creditors which 
 will make the entire instrument void ; and the giving of a prefer- 
 ence to certain creditors upon condition that they should accept 
 the sums received under the assignment in satisfaction of their 
 
TPIE STATUTE OF FRAUDS. 881 
 
 •entire debts, is such a benefit and will render the assignment void 
 as against creditors. Grover v. Wakeman, 11 Wend. 190. A 
 debtor may not, by secret agreement made with some of the cred- 
 itors in contemplation of the assignment and cotemporaneously 
 therewith, exercise his right of giving preferences so as to secure to 
 himself the future control of the property assigned or its proceeds. 
 Haydoch v. Coope, 53 N. Y. 68. See Clark v. Andrews, 46 St. 
 Eep. 399. 
 
 But an assignment which provides that, after all the creditors 
 ■ are paid in full, the surplus should be returned to the assignor, is 
 valid. Ely v. Cook, 18 Barb. 612 ; Van Rossum v. Walker, 11 
 Barb. 237; Wintringham v. Lafoy, 7 Cow. 735. 
 
 Where an insolvent, retiring partner of a firm, which is also 
 insolvent, makes an absolute and unconditional transfer of all his 
 interest in the partnership property, to the other partner, who, 
 thereupon, assumes the partnership liabilities, this will not render 
 the transfer void as against the individual creditors of the former, 
 from the mere fact that, as a part of the consideration of such 
 transfer, the latter agreed to employ the services of the former 
 and his wife and give them lodging upon the premises assigned, 
 and pay to the wife a share of the future profits of the business, 
 if any. Such an arrangement does not, necessarily, show an intent 
 by the retiring partner, to defraud his individual creditors ; nor 
 does it, by securing him the beneficial use of a part of the prop- 
 erty, create or reserve any fund for his benefit. Griffin v. Cran- 
 ston, 10 Bosw. 1. 
 
 A firm assignment so drawn that individual claims against the 
 partners may be paid out of the firm assets without first satisfying 
 all claims against the firm, is fraudulent as to firm creditors. 
 Booss V. Marion, 129 N. T. 536. 
 
 A voluntary assignment to a trustee for the benefit of creditors 
 containing a provision that the trustee shall not be accountable 
 for any loss sustained by the trust property, unless it shall happen 
 from gross negligence or willful misfeasance, is void. Litchfield 
 V. White, 7 K T. 438 ; 8. C, 3 Sandf . 545. 
 
 An assignment made by an insolvent, is not void on its face, 
 because it provides that the assignee may employ suitable agents 
 at a reasonable compensation, to be paid out of the effects assigned, 
 and that he shall adopt such measures generally in relation to 
 the settlement of the estate, as will, in his judgment, promote 
 the true interest thereof. Mann v. Witheck, 17 Barb. 388. But, 
 56 
 
SS2 THE STATUTE OF FEAUDS. 
 
 a provision in the assignment of an insolvent debtor, that the as- 
 signee, a lawjev, shall be allowed a reasonable counsel fee, over 
 and above the expenses and commissions for executing the trust, 
 is illegal and renders the assignment void. Nichols v. McEwen, 
 17 ISr. Y. 22 ; S. C, 21 Barb. 65. A provision in an assignment 
 for the benefit of creditors, authorizing either the assignor or the 
 trustees to declare future preferences, is fraudulent and void. 
 Sheldon v. Dodge, 4 Denio, 217 ; Strong v. Skinner, 4 Barb. 546 ; 
 'Averill v. Loucks, 6 Barb. 470. But where an assignment for 
 the benefit of creditors provided for a preference to those creditors 
 who were named " in the annexed schedule," which schedule was 
 not annexed until two days after the delivery of the assignment, 
 it was held that the assignment was valid where it was found that 
 there was entire good faith on the part of both assignor and as- 
 signee, in relation to the matter. Hotop v. Neidig, 17 Abb. 
 332. 
 
 A provision in such an assignment of all the debtor's property, 
 when a portion of it consists of unfinished machinery and materials 
 in process of manufacture, the completion of which was necessary 
 to an advantageotis sale, authorizing the assignees to complete 
 the manufacture and work up the materials at the expense of the 
 assigned fund, as in their judgment might be advisable, so as to 
 realize the greatest amount of money therefrom, renders the as- 
 signment fraudulent and void on its face, though an actual fraudu- 
 lent intent, except as thereby manifested, is disproved. Dunham 
 V. Waterman, 17 IST. Y. 9 ; S. C, 6 Abb. 357. And see Hitchcock 
 V. Cadmus, 2 Barb. 381 ; Woodhurn v. Mosher, 9 Barb. 255 ; Mur- 
 phy V. Bell, 8 How. 468 ; Brigham v. Tillinghast, 11 IST. Y. 215 ; 
 D'lvernois v. Leavitt, 23 Barb. 63. In all of such cases the judg- 
 ment of the assignee is substituted for and in the place of the 
 requirements of the law and the supervision and control of the 
 courts, and thereby renders the assignment void. But where, by 
 the terms of the assignment, the power or authority to complete 
 the work is made dependent upon the condition that it is " neces- 
 sary and to the better performance of the trust," the question as 
 to the necessity and advisability of completing the work is not 
 taken from the determination of the court, and the assignment is 
 not invalidated thereby. Roihins v. Butcher, 104 N. Y. 575. 
 And see Jessup v. Hulse, 21 N". Y. 168, 170. 
 
 An assignment which, in express terms, or which, by necessary 
 implication, provides for a sale of the assigned property on credit, 
 is fraudulent and void on its face as against creditors. Nicholson 
 
THE STATUTE OF FKAUDS. 883 
 
 V. Leavitt, 6 IST. Y. 510; Burdick v. Post, id. 522; PoHcr v. Wil- 
 liams, 9 K Y. 142 ; 8. C, 12 How. 107 ; BrigJiam v. Tillinghast, 
 13 E". Y. 215. An assignment is not void which jorohibits a sale 
 on credit, but requires the property to be sold for cash. Carpenter 
 V. Underwood, 19 N. Y. 521. When an assignment is not void 
 on its face, there ought to be clear evidence of a fraudulent intent 
 in making the assignment before it is declared void. Wilson v. 
 Forsyth, 24 Barb. 105, 106, 107. 
 
 "When the assignor retains the possession of the assigned prop- 
 erty, the assignment is presumptively fraudulent, and will be 
 void, unless the transaction is satisfactorily explained. Adams v. 
 Davidson, 10 K Y. 309 ; Pine v. Bihert, 21 Barb. 469 ; Connnh 
 V. 8edgwick, 1 Barb. 210. An assignment is not necessarily 
 fraudulent and void because the assignor omitted to pay over all 
 the money he possessed at the time of making the assignment, 
 and becatise he carried off a large sum of that money after the 
 assignjnaent was executed. Wilson v. Forsyih, 24 Barb. 105, 106, 
 107; American Exchange Bank v. Wehb, 15 -How. 193. A debtor 
 having made an assignment, and being apprehensive that ;it 
 might be held defective, subsequently gave a confession of judg- 
 ment to the assignees, who gave a declaration showing that the 
 judgment was held in trust for the creditors, and that it was to 
 be resorted to only in case the assignment should be held invalid ; 
 it was held that the judgment was void. Mackie v. Cairns, 5 Cow. 
 547 ; D'lvernois v. Leavitt, 23 Barb. 64, 81. 
 
 .V valid assignment for the benefit of creditors iixes their rights, 
 and those rights cannot afterwards, without their consent, be 
 varied by the assignor or the trustees. Bell v. Holford, 1 Duer, 
 58 ; Sheldon v. Smith, 28 Barb. 593. 
 
 Whether an assignment is void on its face on account of some 
 provision contained in it, is always a question of law for the court. 
 Sheldon v. Dodge, 4 Denio, 218 ; Edgell v. Hart, 9 IST. Y. 213 ; 
 Kellogg v. Slawson, 15 Barb. 56; 11 N. Y. 302; Dunham v. 
 Waterman, 17 JST. Y. 9. 
 
 But, whenever it is a question upon the evidence, whether the 
 assignment was made with an intent to hinder, delay or defraud 
 creditors, it is a question of fact for a jury. Seymour v. Wilson, 
 14 N. Y. 567; Thompson v. Blanchard, 4 IST. Y. 303 ; Hanford v. 
 Artcher, 4 Hill, 271. 
 
 A judgment which is confessed for the purpose of hindering, 
 'delaying or defrauding creditors, is void. Mackie v. Cairns, 5 
 Cow, 547. But the fraudulent intent of a failing debtor in con- 
 
884 THE STATUTE OF FRAUDS. 
 
 fessing judgment for a valid debt will not of itself render the 
 judgment void where the creditor was ignorant of such intent 
 and in no way participated in the fraudulent scheme of the debtor. 
 Qalle V. Tode, 148 N. Y. 270. 
 
 Where property is sold on an execution, and it is bid off by the 
 plaintiff in the execution, the sale will be presumptively fraudu- 
 lent as to creditors, if the property is left in the possession of 
 the defendant in the execution. Fonda v. Gross, 15 Wend. 628 ; 
 Gardenier v. Tubhs, 21 Wend. 169; Farrington v. Caswell, 15 
 Johns. 430. 
 
 But this presumption may be rebutted, and where the condi- 
 tion of the property is such as to furnish a su.fficient excuse, as 
 where it consists of unthreshed oats in a barn, and beans, some 
 of which were in a mow in the barn, and some of them in a field 
 ungathered, the property need not be immediately removed. 
 Wood-worth v. Woodworth, 21 Barb. 343; Wyman v. Hart, 12 
 How. 122 ; Brown v. Wilmerding, 5 Duer, 220. The mere fact 
 that a judgment confessed, is confessed to secure as well a debt 
 owing to a creditor other than the plaintiff, as one owing to the 
 latter, does not render it fraudulent and void as against creditors. 
 Paton V. Westervelt, 2 Duer, 362. 
 
 The law does not presiime any transaction fraudulent without 
 some evidence of its existence; and, therefore, a judgment will 
 not be presumed to be fraudulent ; and it will be held to be valid 
 until proof of fraud is given by the party attacking its validity. 
 Dunham v. Waterman, 3 Duer, 166, 180. 
 
 A bona fide purchaser from a fraudulent vendee will obtain a 
 valid title to the property as against the creditors of the vendor. 
 But a purchaser with notice of the fraud, or without value, will 
 not hold the property as against the creditors of a fraudulent 
 vendor. Geortner v. Trustees, etc., 2 Barb. 625 ; Beals v. Gurn- 
 sey, 8 Johns. 446. 
 
 The mere knowledge that there is a judgment against a debtor 
 will not render a purchase from him void, if there Avas no intent 
 to defraud creditors. Beals v. Gurnsey, 8 Johns. 446 ; Waterhury 
 V. Sturtevant, 18 Wend. 353. But where the purchaser has notice 
 of the judgment, and purchases the goods with intent to defraud 
 such judgment creditor, the purchase will be void. Wichham, v. 
 Miller, 12 Johns. 320 ; Beals v. Gurnsey, 8 Johns. 446 ; Water- 
 hury V. Sturtevant, 18 Wend. 353. 
 
 To invalidate a sale on the ground of fraud, tangible facts must 
 be proved from which a legitimate inference of a fraudulent in- 
 
THE- STATUTE OE EEAUt)S. 885 
 
 tent can be drawn. It is not enoixgh to create a siispicion of wrong, 
 nor should a jnry be permitted to guess at the truth. The fraudu- 
 lent intent of the vendor will not of itself invalidate the sale. The 
 vendee must also be connected with the fraud and this cannot be 
 done by mere proof of inadequacy of price. Jaeger v. Kelley, 53 
 N. Y. 274. And where a creditor purchases property from his 
 debtor for the sole purpose of receiving payment of an honest debt, 
 the fact that the creditor had knowledge that the debtor sold with 
 intent to hinder and delay his creditors, will not make the sale void 
 as to such creditors in the absence of proof that the vendee partici- 
 pated in the fraudulent intent. Dudley v. Danforth, 61 i^. Y. 
 626. 
 
 The payment by the purchaser of a fair consideration upon the 
 sale of property affords strong evidence of the good faith of the 
 transaction, and while not conclusive, requires clear evidence of 
 the existence of a fraudulent intent to overcome the presumption 
 of honest motives arising from that fact. Billings v. Russell, 101 
 jST. Y.,226; N^igent v. Jacobs, 103 K Y. 125. 
 
 Under the statute, a creditor assailing a transfer of property 
 as fraudulent may succeed by simply showing a fraudulent intent 
 upon the part of the vendor or such an intent on the part of the 
 vendee. If, however, the vendee shows that he paid a valuable 
 consideration for the property transferred to him, then the proof 
 of the fravidulent intent of the vendor only is not sufficient ; then 
 there must be proof also of fraudulent intent on the part of the 
 vendee or that he had notice of the vendor's fraudulent intent. 
 Direct and positive proof of the latter fact is not required. It 
 may be proved like any other fact in the case by circumstances 
 and proper and legitimate inferences to be drawn from the whole 
 transaction. Starin v. Kelly, 88 N. Y. 418. 
 
 Where a defendant in an action of replevin seeks to justify the 
 seizure of goods, under legal process, upon the ground that they 
 were at the time of the seizure the property of the party against 
 whom the process issued and subject thereto, and relies upon the 
 statute relating to fraudulent conveyances as a defense, it is not 
 necessary that he should specifically refer to the provisions of that 
 statute in his answer to avoid the imputation of having waived 
 the benefits' of the statute by not pleading it. It is sufficient for 
 the defendant to allege that the goods levied upon were the prop- 
 erty of the person against whom the process was issued, or that 
 he had a leviable or attachable interest therein. The portions of 
 
886 THE STATUTE OE FKAUDS. 
 
 the statute of frauds that are waived, unless pleaded, relate to con- 
 tracts which, although previously capable of valid proof by parol 
 evidence, are declared void by the statute unless in writing. Dear- 
 ing V. McKinnon Dash & Hardiuare Co., 165 'N. Y. 78. 
 
 Some of the provisions of the statute relating to assignments 
 for the benefit of creditors have been referred to incidentally in 
 the foregoing pages. No attempt has been made to set forth in 
 detail the causes which would render an assignment under that 
 act invalid, as space will not permit such course. For a treatise 
 on the subject of assignments, see Headley on Assignments. 
 
INDEX. 
 
 ACCEPTANCE: Page. 
 
 Term defined, as applied to bills of exchange 513, 574 
 
 Not required in case of cheeks 541 
 
 Of orders for the delivery of goods 548 
 
 Of bUls of exchange 574 
 
 (See Bill of Exchange.) 
 
 Unconditional written promise to accept a bill 575 
 
 Presentment of bills for acceptance 577 
 
 Proceedings on non-aeoeptance of bills 581 
 
 Notice of dishonor of bill by non-acceptance , 587 
 
 Protest for non-acceptance 592 
 
 EflFect of acceptance of goods not conforming to contract 701 
 
 In ease of a sale with an express warranty 701 
 
 Of property purchased, to remove case from statute of frauds 730 
 
 ACCEPTOR: 
 
 Defined 513 
 
 Contract of an acceptor of a bill of exchange 574 
 
 ACCOMMODATIOir PAPER: 
 
 Accommodation party defined 554 
 
 Liability of such party to holder for value 554, 555, 561 
 
 Not liable to party for whose aecommodation made 561 
 
 Presumption that indorsee is a bona fide holder for value 555 
 
 When holder not obliged to prove a valuable consideration 555 
 
 When holder must show that he parted with value 555, 556 
 
 When fraudulently negotiated or put in circulation 555, 556 
 
 Fraudulent diversion of accommodation paper 556 
 
 What is a sufficient payment of value 556, 557 
 
 Defenses not available to drawer of check 557 
 
 Defenses not available to maker 557 
 
 Eight of accommodation party to indemnity 561 
 
 Right to recover money paid on such paper 562 
 
 Agreements against liability 554, 555 
 
 ACCOUNT: i 
 
 Duty of agent to account 235 
 
 Representatives of deceased partner may compel survivor to account, 321 
 
 ACT OF GOD: 
 
 Rendering performance of contract impossible excuses non-perform- 
 ance 26 
 
 Carrier not liable for goods lost through act of God 413 
 
 What is meant by the term " act of God" 413 
 
 ADMISSIONS: 
 
 By a partner in respect to partnership business 334 
 
 ADVANCES: 
 
 Mortgages to secure future advances 96 
 
 Lien of commission merchant for advances 227, 228 245 
 
 Principal bound to indemnify agent for advances 265 
 
888 I^T]3EX. 
 
 AGENCY: (See Principal and Agent.) 
 
 AGENT: (See Prikcipal and Agent.) 
 
 AGISTER: Page. 
 
 Lien of 439, 440 
 
 Liability of agisters . 349, 395 
 
 ALTERATION: 
 
 Of a sealed agreement under a parol authority 50, 210 
 
 Of principal's contract discharges surety 494 
 
 APPEAL: 
 
 Liability on undertakings given on appeal 56, 57 
 
 ARBITRATION: 
 
 Liability of agent entering into submission in his own name 269 
 
 Liability of person entering into submission without authority 269 
 
 ASSENT: 
 
 Of parties to an express contract indispensable 30 
 
 Must be to the same thing in the same sense 30 
 
 Must be to the contracting parties as well as to terms 31 
 
 Time of giving assent 32 
 
 ASSIGNEE: (See Assignments.) 
 
 Liability of assignee for the benefit of creditors for rent 169 
 
 Liability of the assignee of a lease 170 
 
 Of lease, may assign his interest and terminate his liability 171 
 
 Rights of the assignee of the landlord's interest in a lease 193 
 
 Rights of general assignee as against holder of unfiled mortgage .... 78 
 
 Eights of assignor of a debt secured by mortgage 84 
 
 Eights of assignee of interest of one of several partners 302 
 
 Eefusal by assignee to deliver property sold his vendor conditionally, 477 
 
 What passes to an assignee under an assignment 629 
 
 Actions by assignees of policies of insurance 802 
 
 ASSIGNMENTS: 
 
 What may be assigned 620, '621, 622, 623 
 
 Ordinary meaning of the term " assignment " 620 
 
 Provisions of the Code as to what may be transferred 620, 621 
 
 What cannot be assigned 620, 621 
 
 Claim of damages for a personal injury 621 
 
 Demand for damages for breach of contract to marry 620, 623 
 
 Demands upon grants void by statute, etc 620, 623 
 
 Demands which are by statute made non-transferable 623 
 
 Statute prohibiting sub-letting of contracts 623, 624 
 
 Statute prohibiting transfer of claims against United States.... 624 
 
 Where the assignment would be against public policy 625 
 
 Executor's commissions 625 
 
 Fees or salary of a public officer 625 
 
 Liens upon property other than mechanic's liens 626 
 
 Special guaranty 626 
 
 Right to re-enter for breach of condition subsequent 626 
 
 Mere license under a patent 626 
 
 Unwritten play 626 
 
 Contract with municipal corporation 626 
 
 Debts against the assignor 626 
 
 Of rights of action for breach of contracts 626, 627 
 
 Of a mechanic's lien 463 
 
 Of part of an entire debt or obligation 627 
 
 Splitting demands 629 
 
 Of a judgment on contract or for tort 627 
 
INDEX. 88& 
 
 ASSIGHMENTS— (Continued): Page. 
 
 Of a verdict for a personal tort 627 
 
 Requisites of an assignment 627 
 
 Valid, tliough made without any consideration 627, 628 
 
 Inquiry as to consideration in action by assignee 628 
 
 Oral assignment of choses in action 628, 629 
 
 What passes to the assignee under the assignment 629 
 
 Eight of action passes subject to defenses before notice 629 
 
 Assignment of debt carries collateral securities 629 
 
 Assignment of judgment carries the debt and mortgage security, 630 
 
 On assignment of contract by a sub-contractor 630 
 
 Matters not mentioned which pass by assignment 630 
 
 Rights acquired by the assignee of a mortgage 630, 631 
 
 Power of single partner to assign the firm property. 336 
 
 Subject to what defenses the assignee takes title 631, 632 
 
 Assignment of a paid claim is a, nullity 632 
 
 Reassignment without writing 632 
 
 Proof of assignment need not be given after reassignment 632 
 
 Proof of debt not required, though assignment is as security for debt, 632 
 
 Notice of the assignment 633 
 
 Object and necessity of notice 633, 634 
 
 Recording of assignment of a mortgage, as notice 633 
 
 Remedy of assignee against assignor for act rendering demand worth- 
 less 634 
 
 Fraudulent assignments of personal property 872, 876 
 
 Transfers of personal property in trust for the use of the person 
 
 making it 873 
 
 Transfers with intent to hinder, delay or defraud creditors, etc. . . 873 
 Assignment of goods and chattels unaccompanied by delivery. . . 873 
 
 Fraudulent intent a question of fact and not of law 873 
 
 Want of consideration, not per se a badge of fraud 873 
 
 Assignment void as against creditors, etc., is void as against 
 
 heirs, etc 873 
 
 Fraudulent assignments of interests in lands, etc 874 
 
 Who may impeach the assignment 875 
 
 Assignments with preferences 877 
 
 Preferences authorized by the General Assignment Act 877 
 
 Preference in excess of statutory limit, void only as to excess. . 877 
 Common-law right of insolvent debtor to turn out all his prop- 
 erty to a creditor 877 
 
 Preferences created by separate instrument in contemplation of 
 
 assignment 878 
 
 Transfers made without contemplating assignment, are valid. . . 878 
 Proof of knowledge of creditor that an assignment was contem- 
 plated 878 
 
 Fraud in making an assignment cannot be presumed 879 
 
 Instrument construed in favor of innocence of fraudulent intent 879 
 
 Assignment with intent to hinder, delay and defraud creditors is 
 
 void 879 
 
 Freedom of assignees from fraudulent design does not cure the vice, 879 
 
 880 
 Assignment valid at its creation, not vitiated by subsequent acts. . . . 880 
 
 Provision for part payment and return of surplus to assignor 880 
 
 Reserving benefit to assignor in a general assignment 8~80, 881 
 
 Fraudulent assignments of co-partnership property 881 
 
 Provisions in a general assignment rendering it void 881, 882 
 
 Retention of the assigned property by the assignor 883 
 
 Rights of creditors under valid assignment cannot be varied by as- 
 signee J 8S3 
 
 Whether an assignment is void on its face is a question of law 883 
 
 Whether it was made with fraudulent intent is a question of fa,ct. . 883 
 
 Assignment by tenant of his interest in a lease 16-5 
 
 Disfinction between underletting and assignment 166 
 
390 INDEX. 
 
 ASSIGNMENTS — ( Continued ) : Pas^. 
 
 Effect of the assignment of a lease < 167 
 
 Liability of the assignee of a lease 169, 170 
 
 Of rent due under a lease 193 
 
 Assignment by partner dissolves the firm 341 
 
 ATTACHMENT: 
 
 Levy under attachment enables creditor to impeach chattel mort- 
 gage , 89, 90 
 
 ATTORNET: 
 
 Not liable without demand for money collected 238 
 
 Accounting by attorney for his client's money 238 
 
 Lien of attorney for services 449 
 
 Payments to attorney holding mortgage 197 
 
 3 AG-GAGE: (See Common Cakkiees.) 
 
 Carriers are insurers of passengers' baggage 428 
 
 Payment of fare includes carriage of baggage 428 
 
 Passenger who has not paid fare entitled to safe carriage of baggage, 429 
 
 Obligations of railroad companies as to carriage 429 
 
 Carrier liable for ordinary baggage only 429 
 
 Loss of baggage in the passenger's custody 429, 430 
 
 Delivery at point of destination 430, 431 
 
 Checks for baggage 431 
 
 Liability of connecting carriers for loss 431, .432 
 
 Liability of innkeepers for loss of baggage of guest 400, 401, 402 
 
 What is included in the term baggage 404 
 
 Lien of carriers, innkeepers and boarding-house keepers on baggage, 444 
 
 BAILMENT: 
 
 General definitions 349 
 
 Bailor defined 349 
 
 Bailee defined 349 
 
 Degrees of care required of bailees 349 
 
 Classification of bailments 350 
 
 Depositum or deposit 350 
 
 Mandatum or gratuitous commission 350 
 
 Commodatum or gratuitous loan 350 
 
 Pignus, or pledge 350 
 
 Locatio, or hiring 350 
 
 Depositum or deposit 350 
 
 Nature of the transaction 350 
 
 Must be a delivery to the bailee 351 
 
 Must be a consent on the part of the depositary 351 
 
 Care required of the depositary 352 
 
 Liability of depositary for gross negligence 352 
 
 Depositary not liable for ordinary negligence or loss by theft. . . . 352 
 
 What -will amount to gross negligence 352 
 
 j Nature of the deposit as affecting the question of negligence 352 
 
 Whether there has been negligence is a question for the jury. . . . 353 
 
 Loss of property of depositary as a test of negligence 353 
 
 Negligence of bailor in selection of depositary 354 
 
 Bailor may maintain trover against purchaser of deposit 354 
 
 Use of the deposit by the depositary 354 
 
 Liability of officer for destruction of goods levied on 355 
 
 Liability of a receiptor 355 
 
 Depositary bound to deliver deposit to true owner 355, 356 
 
 Right of depositary to reasonable time for determination of 
 
 ownership 355 
 
 Joint deposit cannot be revoked by one of the depositors 355 
 
 Demand for property jointly deposited must be by all the de- 
 positors , 355, 356 
 
INDEX. 891 
 
 3A1LMENT— (Continued) : 
 
 Depositum or deposit— (Continued) : Page. 
 
 Depositary must return deposit on demand with its increase. ... 358 
 l^epositary not bound to deliver the accessory without the prin- 
 
 T,"P^1 ■••1 ■ ... 358 
 
 JJeuvery to true owner or seizure under legal process an excuse 
 
 tor non-delivery , 358 
 
 Place of return '. .'.".'.'.*.".'.'.'.'.'.'.'.'.'.".".'.' 356, 357 
 
 Mandatimi ag^ 
 
 Nature of the contract of the mandatary.' .!.'!!.'.".' .' .' .' ." ." .' '. '. '. '. ', '. '. 357 
 
 Express and implied mandate '. 357 
 
 Mandate must be gratuitous ." . ' 357 
 
 When the contract is revocable and when complete 357, 353 
 
 Liability of the mandatary in respect to the custody of the thing 
 
 bailed 359 
 
 Care required of the mandatary 359 
 
 Liability of mandatary for negligence 359 
 
 Mandatary not liable for loss by robbery 359 
 
 When loss unexplained raises presumption of negligence 360 
 
 Liability of skilled mandatary for injury to thing bailed.. 360, 362 
 
 Liability of unsldlled mandatary 360, 361 
 
 Implied contract of mandatary receiving money for investment, 360 
 
 Liability of attorney for want of skill in making investment 361 
 
 Care required where the bailment is of living animals 361 
 
 Wearing apparel temporarily laid aside in a store, restaurant, 
 
 theater or bath room 362 
 
 Question of gross negligence usually one of fact 362 
 
 Degree of skill required of mandatary 362 
 
 Liability of farrier, physician or surgeon for unskillful gi-atuitou3 
 
 treatment 363 
 
 Care of paintings or perishable goods 363 
 
 ■Commodatum, or gratuitous loan 363 
 
 Distinction between mutuum and commodatum 363 
 
 Care and diligence required of a borrower and his liability for 
 
 neglect 365 
 
 Borrower not responsible for inevitable accidents 365 
 
 Liability for placing thing borrowed in a dangerous place 365 
 
 "Care required in the custody and use of a borrowed horse. . 365, 366 
 Negligence of bailor in intrusting property to improper person. . 366 
 Duty of borrower as to return of property in case of loan by way 
 
 of mutuum 366 
 
 Demand of return before action ,. . . . 366, 367 
 
 Transfer of right of property in the thing bailed by way of 
 
 mutuum 367 
 
 Bailee must make good a loss in case of loan by way of mutuum, 367 
 
 When the contract is not a mutuum but an exchange or sale 367 
 
 Liability for failure to return on demand property loaned by 
 
 way of commodatum .^ 367 
 
 Borrower cannot claim right to detain the property for debt or 
 
 expenses 367 
 
 Nature of ordinary deposits of money with bankers 367 
 
 Title to the money deposited in a bank 367, 368 
 
 Liability of a banker for refusal to honor a check 368 
 
 Pledges or pawns 368 
 
 Distinction between a pledge and a chattel mortgage .... 64, 65, 66 
 
 Nature of the contract of pledge 368, 372, 373 
 
 General definitions 369 
 
 Distinction between a contract of pledge and of hypothecation. . . 369 
 By a pledge the right of possession is altered but not the right of 
 
 property 369 
 
 Pawnee has a special property and pawnor the general property 
 in the pledge 369 
 
892 IiXDEX. 
 
 BAILMENT— (Continued) : 
 
 X'ledges or pawns — (Continued) : Page. 
 
 What may be pledged tt 309 
 
 Pledges by persons without title or right 369, 370 
 
 Pledges by persons having only a limited interest 370 
 
 Pledge by mortgagor of chattels 75, 372 
 
 Right of factor to pledge the goods of his principal 24t 
 
 Pledge of firm property by one of several partners 337 
 
 Borrower, with privilege of purchasing, has no power to pledge. . 370 
 Implied undertaking of pledgor that he is owner of the property 
 
 pledged '. 370 
 
 Pledgee may restore property to lawful owner when pledged 
 
 without right 370 
 
 Pledgee may plead return to lawful owner when sued by pawnor, 370 
 
 Undertaking by pawnee to return property pledged 370 
 
 Kights of the parties where the pledge is for a definite time, 371, 374 
 Rights of the parties where the pledge is for an indefinite time. . 371 
 
 374 
 Rights and remedies of the pledgor on payment or tender of the 
 
 debt 371 
 
 Property pledged for a particular debt cannot be held for an- 
 other debt 371 
 
 Title to property pledged remains in pledgor after default and 
 
 until sale 372 
 
 Pledgor may sell property pledged subject to lien of pledgee ;)72 
 
 Purchaser from pledgor entitled to redeem 372 
 
 The interest of pledgor may be taken and sold on execution 372 
 
 Purchaser at execution sale entitled to redeem 372 
 
 Rights of the pledgee on failure of the pledgor to redeem 373 
 
 Implied agreement that the pledge shall be available for pay- 
 ment of the debt 373 
 
 Right of pledgee to appropriate pledge to payment of debt, 372, 373 
 
 Demand of payment and notice of sale 372, 373, 374 
 
 Objections of the pledgee as trustee for the pledgor 373 
 
 Contracts authorizing sale without notice and purchase by 
 
 pledgee 373, 374 
 
 In the absence of agreement, pledgee cannot sell without notice, 373 
 
 374 
 Ordinarily a sale without notice will not cut off right to redeem, 374 
 
 When a sale without notice is a conversion 374, 375 
 
 Rights of pledgor after sale without notice or demand of pay- 
 ment 375 
 
 Pledgee not bound to wait for favorable market before sale 375 
 
 Waiver of forfeiture and rights of pledgor thereafter 375 
 
 When a sale of the property pledged is necessary 375 
 
 When no sale of the property pledged is necessary 375 
 
 Collection of money becoming due on securities pledged 375 
 
 Aeeoimting for proceeds of sale, and payment of surplus to 
 
 pledgor 376 
 
 Accounting for the increase, fruits and profits of the pledge 376 
 
 Possession of the pledge does not suspend right of pledgee to sue 
 
 on the debt 376 
 
 Care required of the pledgee in the keeping of the property 
 
 pledged 376 
 
 Liability of pledgee for negligence 376 
 
 Loss of goods pledged by robbery, theft or accident 376, 377 
 
 Use of the pledge 377 
 
 Rights of action against stranger unlawfully interfering with the 
 
 pledge ■ 377, 378 
 
 Letting and hiring of personal chattels 378 
 
 Implied warranty upon the letting of chattels 378, 379 
 
 Upon whom the duty rests of keeping the chattel hired in order 
 and repair 379 
 
INDEX. 893 
 
 BAILMENT— (Continued) : 
 
 Letting and hiring of personal chattels — (Continued) : P^ase. 
 
 Duty to keep hired horse shod or to pay for expenses of sickness, 379 
 Implied authority to hirer to make necessary expenditures, 379, 380 
 Recovery from owner of moneys so expended in action for money 
 
 paid 380 
 
 Care required of the hirer of a chattel and duty to return it in 
 
 good order 380 
 
 Who must bear or make good the loss of or injury to the chattel, 380 
 Use of the chattel must be confined to the purpose for which it 
 
 was hired 381 
 
 Loss of or injury to a hired horse 380, 381 
 
 Burden of proof in action for injury to property hired 381, 382 
 
 What acts of the hirer put an end to the bailment 382 
 
 Retention of property after the stipulated period 382 
 
 Locatio, or letting and hiring of work 383 
 
 Distinction between a sale and a bailment 383 
 
 Illustrations 384, 385 
 
 Implied obligations of the employer to the employee 385 
 
 Refusal by employer to permit the workman to perform .... 385, 386 
 
 Time, when of the essence of the contract 386 
 
 Failure to complete the contract within the time specified 386 
 
 Destruction of the work before completion, upon whom the loss 
 
 falls 387, 388, 389, 393 
 
 Unskillful or negligent performance of work requiring art or 
 
 skill 389 
 
 Representation and undertaking implied from public profession 
 
 of an art 389 
 
 Obligations of a person entering into a contract to perform a. 
 
 particular task 390 
 
 Delay in commencing work or in completing the task 390 
 
 When workman may employ others to perform his contract 390 
 
 When the workman impliedly undertakes to perform personally, 390 
 
 Undertaking of every workman, mechanic or artist 391 
 
 Contracts for personal services requiring skill 391 
 
 Degree of care and diligence required from the workman 391 
 
 Responsibility of workman for negligent and unskillful per- 
 formance 393 
 
 Undertaking of members of learned professions 391 
 
 Responsibility for gross ignorance or gross negligence 391 
 
 Employer bound to ordinary care and judgment in selection of 
 
 the employee 392 
 
 Rights of bailor to return of materials furnished, on counter- 
 mand of order 392 
 
 Tender of payment for the work done at the time of counter- 
 mand 392 
 
 L'en of the workman for labor done before termination of con- 
 tract 392 
 
 Responsibility of the bailee for delivery to wrong person by mis- 
 take 392 
 
 Retention or return of a chattel bailed by several joint owners, 392 
 
 393 
 Care of the property in custody of bailee and liability for loss . . 393 
 
 Care required of persons keeping goods of others for hire 393 
 
 Proof required to sustain action against warehouseman for loss 
 
 of goods ' 394 
 
 Duties and responsibilities of wharfingers. . .'. 394 
 
 Liabilities of agisters 394, 395 
 
 Implied undertaking of livery-stable keepers 395 
 
 Care required of factors in the custody of goods consigned 396 
 
 Innkeepers, duties and liabilities of 395, 405 
 
 (See Innkeepers.) 
 
894 INDEX. 
 
 BAILMENT— (Continued) : Page. 
 
 Common carriers 405-435' 
 
 (See Common Cabeieb.) 
 
 Receiptor's agreement 435 
 
 Action against receiptor for refusal to redeliver on demand 435 
 
 Receiptor estopped from claiming property receipted for 435 
 
 Statement of agreement in complaint 436 
 
 Proof on the part of the plaintiflf, and the amount recoverable. . . 43(J 
 
 Liens of bailees 437 
 
 (See Lien.) 
 SAKE: 
 
 Ownership of money on general deposit in a bank 367, 368 
 
 Relation of banker and depositor that of debtor and creditor 368 
 
 Duty of banker to honor customer's check 368 
 
 Not liable on certification of a check drawn by its president 232 
 
 Liability for overdrafts 250 
 
 Liability on checks certified by cashier 252 
 
 Notice to an ofiicer, when notice to the bank 247 
 
 Banker's lien 448, 449 
 
 Prohibition against exercise of banking powers by other corporations, 284 
 
 BAHKRUPTCY: 
 
 Revival of liability after discharge in bankruptcy 11 
 
 Property of principal not affected by bankruptcy of agent 227 
 
 Of one or more members of a firm dissolves the partnership 341 
 
 BASTARD: 
 
 Defined 58 
 
 Bastardy bonds .- -.-. . . 63 
 
 BILL OF EXCHANGE: (See Peomissort Note: Check.) 
 
 Governed by the negotiable instruments law and the law merchant. ... 511 
 
 Definition and general nature 511 
 
 Inland and foreign bills 512 
 
 Checks 539 
 
 Is often termed a draft 512, 514 
 
 Parties to the bill 512, 514 
 
 The relation of the parties to the bill and to each other 512, 513 
 
 The several contracts of the diiTerent parties Sl.S 
 
 Capacity of the parties to contract 514 
 
 Primary or secondary liability of the parties 515 
 
 Referee in case of need 518 
 
 Accommodation parties 554 
 
 Requisites as to negotiability 515 
 
 Must be in writing and signed by the drawer 515, 531 
 
 Writing includes print 517, 531 
 
 Mode of writing not material 532 
 
 May be on paper or other substitute 532 
 
 Signature may be by the full name or by initials 532 
 
 May be by figures as a substitute for a name 532 
 
 Signature by mark 532 
 
 When signer deemed an indorser 532 
 
 Signing in a, trade or assumed name 532 
 
 Only the person signing liable on the bill 532 
 
 Signature by agent 532, 533, 534 
 
 Porged signature 534 
 
 Must contain an unconditional order to pay a stun certain in 
 
 money < 516 
 
 What constitutes certainty as to sum 516 
 
 What constitutes an unconditional order 516 
 
 Effect of order to do an act in addition to payment of money, 516 
 
 524, 525 
 Must be payable in money and not in goods or other property, 526- 
 
IXDEX. 89& 
 
 BILL OF EXCHANGE— (Continued) : 
 
 Kequisites as to negotiability — (Continued) : Page. 
 
 Must be payable on demand or at a fixed or determinable future 
 
 time 515. 
 
 What instruments are deemed payable on demand 517 
 
 What constitutes a determinable future time 516 
 
 Not negotiable if payable on a contingency 527, 528 
 
 Happening of the event does not cure the defect 527 
 
 Where payment is dependent on event certain to occur 52S 
 
 Must be payable to order or to bearer 515, 52S 
 
 Bill payable to bearer named, not negotiable until indorsed, 523 
 
 Instruments payable to ordei 517 
 
 Naming or indicating payee in such ease 517, 522 
 
 Instruments payable to bearer 517 
 
 Drawee must be named or indicated with reasonable certainty, 516 
 
 521, 522 
 
 Effect of uncertainty as to drawee 521 
 
 How addressed to more than one drawee 511 
 
 Bills payable to fictitious or non-existing persons 517, 521 
 
 522 
 Bills payable to holder of an office for the time being, 517, 521 
 Bills payable to a person named or his successor in office. . . 521 
 
 Additions or omissions not affecting negotiability 516, 517 
 
 Omission of date 516, 519, 520 
 
 Ante-dated or post-dated bills 520 
 
 Failure to specify where drawn or where payable 517 
 
 Addition of a seal 517, 534 
 
 Designating the kind of money in which payment is to be 
 
 made 517, 526 
 
 Effect of designating the fund to be debited, etc., 516, 518, 529 
 
 530, 531 
 
 Form of a bill of exchange 518 
 
 When the holder may treat the instrument either as a bill or a note, 518 
 
 519 
 Distinction between a bill of exchange and an order for goods, 526j 548 
 
 Delivery of the bill 535 
 
 Bill revocable before delivery 535 
 
 Has no inception before delivery 535, 537 
 
 Presumption as to delivery 535, 537 
 
 Conditional delivery 535, 538 
 
 Authority of holder to fill blanks in incomplete instrument 537 
 
 Insertion of the amount in blank space 538 
 
 Deviations from authorized mode of completing the bill 538 
 
 Completion and negotiation without authority 539 
 
 Bills of exchange in a set 548 
 
 Form of a set of three parts 543 
 
 Statute in regard to bills in sets 542, 543, 544 
 
 Non-negotiable bills 544, 545 
 
 Are valid contracts but subject to equities 544 
 
 Orders for goods 526, 546, 547 
 
 Acceptance of order 547, 548 
 
 Order for the payment of money out of a particular fund . . . 547, 548 
 
 Consideration of bills of exchange 552 
 
 Necessity of a consideration as between original parties 552 
 
 Sufficiency, validity or legality of consideration as between the 
 
 parties .■ 553 
 
 Inadequacy of consideration as a defense 553, 560 
 
 Failure of consideration 553 
 
 Presumption of consideration 553 
 
 What constitutes a valuable consideration 553, 556, 557, 560 
 
 Who are deemed holders for value 553 
 
 Alleging or proving consideration 553, 554 
 
 Liability of an accommodation party 554, 555, 
 
R96 IISTDEX. 
 
 BELL OF EXCHANGE — (Continued) : 
 
 Consideration of bills of exchange — (Continued) ! Page. 
 
 Want of consideration as a defense -. .-. . . 654, 559 
 
 Rights of bona fide holder 655, 658 
 
 Who is deemed a bona fide holder 560, 561 
 
 Proof in action on bill fraudulently put in circulation 556 
 
 Fraudulent diversion of accommodation paper 556, 558 
 
 (See Accommodation Paper.) 
 
 Fraud in obtaining a bill 559,560 
 
 Guaranty of bills of exchange 562 
 
 (See GUABANTIBS.) 
 
 Negotiation of bills of exchange 565 
 
 When and how a bill is negotiated 665 
 
 When payable to bearer, by delivery 566 
 
 When payable to order, by indorsement 565 
 
 Indorsement of bills of exchange 565 
 
 Not binding before delivery with the instrument indorsed 565 
 
 Requisites of a valid indorsement 566 
 
 Must be of the entire instrument 566 
 
 Special indorsement or indorsement in full 566, 567 
 
 Indorsement in blank 566 
 
 Conversion of blank indorsement into special indorsement 566 
 
 Restrictive indorsement 567 
 
 Qualified indorsement • 567 
 
 Conditional indorsement 567 
 
 Of a bill payable to two or more 568 
 
 Of paper held by a partnership 568 
 
 Of paper negotiated to or by a bank 568 
 
 By a person wrongly designated or whose name is misspelled .... 568 
 
 By persons acting in a representative capacity 568 
 
 Presumption as to time of indorsement j 569 
 
 After dishonor 569 
 
 Transfer without indorsement 569 
 
 Liability of person indorsing in blank before deliverv 570 
 
 Warranty by person indorsing paper 571, 572, 573 
 
 Indorsers liable prima facie in order of indorsement 573 
 
 Acceptance of bills 574 
 
 Contract of acceptor 574 
 
 Contract of the drawer 574, 577 
 
 Drawee not liable before acceptance or agreement to accept 574 
 
 Mode of acceptance 575 
 
 Right of the holder to have the acceptance written on the bill .... 575 
 
 Acceptance not written on the bill, and its effect 575 
 
 Unconditional written promise to accept a bill to be drawn 575 
 
 Drawee has twenty-four hours in which to decide upon accept- 
 ance 575 
 
 Effect of destruction or retention of the bill by the drawee 575 
 
 Acceptance of unsigned, incomplete, overdue or dishonored bill. . . 575 
 
 General acceptance 576 
 
 Qualified acceptance, and its effect on the rights and liabilities of 
 
 the parties 576 
 
 Duty of agent presenting bill for acceptance 576 
 
 Parol evidence not admissible to change terms of acceptance. . . . .' 576 
 
 Acceptance by an executor 576 
 
 Place of payment, and demand of payment at that place 577 
 
 Acceptance of a forged bill 577 
 
 Presentment of bills of exchange for acceptance 577 
 
 Duty of the payee in respect to presentment for acceptance 577 
 
 When presentment for acceptance is necessary 578 
 
 Presentment must be within a reasonable time 578 
 
 Delaying presentment at request of the drawer 578 
 
 Time of presentment 578, 579, 580 
 
II^DEX. 897 
 
 BILL or EXCHANGE— (Continued): 
 
 Presentment of bills of exohange for acceptance — (Continued) : Page. 
 
 To whom the bill must be presented 579 
 
 Place of presentment 580 
 
 When presentment is excused and the bill may be treated as dis- 
 honored 580 
 
 In case of lost bills , 608, 609 
 
 Proceedings on non-acoeptance 581 
 
 Presentment for payment 581 
 
 Demand of payment not necessary to charge persons primarily 
 
 liable 581 
 
 When not necessary to charge the drawer, or an indorser . . . 583, 584 
 
 Place of demand ; 582 
 
 Time of demand 582, 583, 580 
 
 When the bill is payable or, a holiday 586 
 
 Person authorized to d.emand payment 582, 583 
 
 Surrender of the bill on payment 583 
 
 In case of lost bills 608, 609 
 
 Delay in presentation for payment, when excused 584 
 
 When presentment for payment is dispensed with 584 
 
 Dishonor by non-payment 585 
 
 When the bill is payable 586 
 
 What constitutes payment in due course 586 
 
 I>rotice of dishonor 587 
 
 By whom given 587, 588, 590, 591 
 
 Requisites of the notice 588, 589 
 
 To whom given ,. . 689 
 
 When to be given 590 
 
 Notice by mail 690 
 
 Place to which notice must be sent 591 
 
 Waiver of notice -. 591 
 
 When notice is dispensed with 591 
 
 Delay in giving notice, when excused 591 
 
 When notice to drawer or indorser not required 592 
 
 Protest of bills of exchange 692 
 
 Not required except in case of foreign bills 592 
 
 Protest for non-aeceptance or non-payment 592 
 
 Time, mode and place of protest 593 
 
 Where the acceptor has been adjudged a banlcrupt, etc 593 
 
 When dispensed with 593 
 
 When delay in protesting is excused 593 
 
 Waiver of protest 594 
 
 ■Rights of the holder of a bill of exchange 594 
 
 Who are deemed bona fide holders or holders in due course 594 
 
 Who is not a holder in due course 594 
 
 Notice of infirmity in the instrument or defect of title 594 
 
 What constitutes such infirmity or defect 594 
 
 Rights of holder in due course 595 
 
 Other holders take subject to defenses 595 
 
 Presumption that the holder is a holder in due course 595 
 
 Donee takes subject to equities 596 
 
 Discharge of negotiable instruments 597, 598 
 
 Payment by bill of exchange 598-603 
 
 (See Payment.) 
 
 Iiost bills, and the procedure to recover thereon 603 
 
 Undertaking by the plaintiff 604 
 
 Approval by the judge 604 
 
 Form of undertaking 605 
 
 Proof required on the trial 606 
 
 When no indemnity is required 607, 608 
 
 Proceedings to charge an indorser , 608, 609 
 
 Giving notice of loss 609 
 
 Notice to acceptor to pay only to the owner 609 
 
 57 
 
898 INDEX. 
 
 BILL OF LADING: P«S«. 
 
 Authority to pledge bills of ladino; .-. .-.-.-!■.-<.• 221 
 
 Possession of the bill as a badge of ownership 221, 222 
 
 BILL OF SALE: 
 
 When treated as a chattel mortgage 62, 63, 64 
 
 May be shown to be a mortgage by parol evidence 63, 102 
 
 Failure to take possession of the property conveyed 113 
 
 BLANKS: 
 
 Execution of bonds in blank 60 
 
 Filling blanks in bonds ......<..>..!..'..: 50 
 
 Authority to fill blanks in negotiable instruments 537 
 
 BOARDING-HOirSE : 
 
 Distinction between boarding-house and inn 39ft 
 
 Lien of boarding-house keeper 444 
 
 BONDS: 
 
 Defined 49 
 
 Parties to bonds 49 
 
 Eequisites of a valid bond 49 
 
 Form of unimportant 49 
 
 Date not essential 49 
 
 Place of signatui-e and seal 49 
 
 Failure of the principal named in the bond to sign it 49, 50 
 
 liability of surety executing but not named in the bond 50 
 
 Conditional delivery of a bond 50 
 
 Filling blanks under a parol authority 50 
 
 Bonds taken in pursuance of a statute 50, 51 
 
 Act for the protection of holders of coupon bonds, etc. . , 219 
 
 Indemnity bonds 51 
 
 Object of an indemnity bond 488 
 
 Jurisdiction in actions upon bonds taken by a justice, 51, 56, 67, 58 
 When the right of action upon a bond of indemnity is complete, 52 
 
 489 
 
 Distinction between different covenants for liability 52, 488 
 
 Bond for the performance of an act or to indemnify against lia- 
 bility 52 
 
 Bond to save harmless from damages by reason of liability. . 52, 488 
 
 Code provision respecting suits upon bonds 52, 53 
 
 Damages recoverable in actions upon indemnity bonds 63, 753 
 
 Suit upon a bond of a village collector 63 
 
 Bonds to indemnify a city or town for support 63, 54 
 
 Indemnity against loss from advances made 54 
 
 Bond conditioned for the maintenance of a person for life, etc ... 54 
 
 Liability on a bond to pay costs " on demand " 54 
 
 Indemnity against claim to property attached 54, 55 
 
 Indemnified ofiicer not bound to defend suit against him 55 
 
 Officer not bound to advance money before suing on his bond, 489, 498 
 
 When constable may sue on bond given to indemnify him 489 
 
 Amount recoverable by constable on indemnity bond 489 
 
 Amount recoverable by sheriff on bond in attachment case 489 
 
 Eecovery of costs of a defense -. 490 
 
 Collusively preventing indemnitors from presenting a defense . . 490 
 
 Right of indemnitors to defend in place of sheriff 490, 491 
 
 Bond to indemnify against a past trespass 491 
 
 Bond to indemnify against an illegal act 54, 491 
 
 Notice to indemnitor to defend suit 55, 56 
 
 Effect of failure to give such notice 65, 504 
 
 , Liability on covenant of indemnity against recovery of judg- 
 ment 55, 56, 504 
 
INDEX. 899 
 
 BONDS— (Continued) : P»«e- 
 
 Surety bonds and undertakings under the Code -.-• 56 
 
 Jurisdiction of justice in action upon administrator's bond 54 
 
 Requisites of undertaking given on appeal to a county court.... 56 
 
 Consideration need not be expressed in the undertaking 56 
 
 Extent of liability on iindertaking given on appeal 67 
 
 Bastardy bonds 68 
 
 Bastardy defined .-. . .:. 6S 
 
 Liability for bastard's support 68 
 
 Indemnity against liability to support bastard 58 
 
 BOBEOWER: (See Bailment.) 
 
 Care and diligence required by a borrower 365, 366 
 
 Liability for negligence 365 
 
 Return of the article borrowed 366, 367 
 
 Who is not a " borrower " within the statute against usury 786, 787 
 
 BROKEK: (See Principal and Agent.) 
 
 Distinction between a factor and a broker 219 
 
 Nature of a broker's employment 219, 220 
 
 Responsibility of principal for false representations of broker.. 226, 227 
 
 Cannot be both agent to buy and to sell 234 
 
 May act for both parties who have notice of double employment 235 
 
 Commissions of brokers 239 
 
 Statutory limit of commissions for procuring a loan 239, 240 
 
 ' When failure to effect a sale does not forfeit commissions. ..... 240, 241 
 
 Evidence necessary to establish right to commissions 240, 241, 243 
 
 When commissions are or are not earned 241, 242 
 
 When commissions are forfeited by misconduct 242, 243 
 
 Liability of a broker negotiating an instrument without indorsement, 669 
 
 BTJIXDINGf: 
 
 Failure of substantial performance of a building contract 39, 138 
 
 Is prima facie a part of the realty 67, 823 
 
 May by agreement be treated as a chattel 67, 823 
 
 Erection for agricultural purposes on leased land , 820 
 
 Right of a tenant to remove buildings erected by him 821 
 
 Eights to buildings as between vendor and purchaser 822 
 
 BY-LAWS: 
 
 Power of corporations to make by-laws 283 
 
 How far binding on the public generally 289 
 
 Validity of by-laws imposing fines or penalties 289, 290 
 
 CARRIER: (See Common Carkiee.) 
 
 CHARTER: 
 
 Of a corporation, as a limitation upon its powers ..-. 284 
 
 CHATTEL MORTGAGES: 
 
 Who may make a chattel mortgage... 59 
 
 Validity and effect of mortgages by infants 59 
 
 By tenants in common or joint tenants 60 
 
 By agent .i. .: 60 
 
 What is a chattel mortgage 60, 63 
 
 May be sealed or unsealed 60 
 
 Agreements resting in parol 60 
 
 Delivery of property to surety as indemnity 60, 61 
 
 Instruments not under seal 62 
 
 In the form of a bill of sale 62, 63, 64 
 
 In the form of a pledge or lien 63, 64, 65, 66 
 
 Distinction between a pledge and a mortgage 64, 65, 66 
 
 ' Contracts constituting a pledge and not a mortgage 65, 66 
 
900 INDEX. 
 
 CHATTEL MOETGAGES— (Continued): 
 
 What is a cliattel mortgage — (Continued) : Page- 
 Nature of the contract of mortgage 63, 72 
 
 Need not be in any special form of words C3 
 
 Instrument construed as a conditional sale 66, 67 
 
 What may be mortgaged 67 
 
 Choses in action 67 
 
 Tenant's fixtures and buildings 67, 68 
 
 Grass and growing crops 68 
 
 Crops not yet planted ordinarily not the subject of mortgage, 68, 69 
 
 Legal title to property not in existence, not transferable. . . . 68, 69 
 
 Effect given in equity to such transfers 69 
 
 Mortgage of chattels having a potential existence 68, G9 
 
 Contract to give a lien on crops incorporated in a lease 69, 70 
 
 Contract giving a lien on articles to be manufactured 71 
 
 Mortgage covering stock on hand and to be thereafter acquired, 71, 74 
 
 Mortgage of rolling stock of a railroad company 72 
 
 Eights of the mortgagor 72 
 
 Legal title to the mortgaged property is in the mortgagee 72 
 
 Right of the mortgagor to possession until default 72 
 
 Invalidity of clause permitting sales by mortgagor 73 
 
 Invalidity of collateral agreements to the same effect 73 
 
 Agreements for sale and application of proceeds on debt se- 
 cured 73, 74 
 
 Agreements for sale and purchase of other property with the pro- 
 ceeds 74 
 
 Transfer to mortgagee of the property mortgaged in payment of 
 
 the debt secured 74, 75 
 
 Purchase of the mortgaged pro^jerty from the mortgagor before 
 
 default 75 
 
 Right of the mortgagor to sell, and title of the purchaser .... 75, 78 
 Remedy of the mortgagee in case of sale by the purchaser from 
 
 the mortgagor 75 
 
 Seizure and sale of the mortgaged property under execution 
 
 against mortgagor 75 
 
 Mortgagor cannot pledge the property to prejudice of the mort- 
 gagee 75 
 
 Title to mortgaged property after default is in mortgagee 7R 
 
 Mortgagor has no interest subject to levy after default 76 
 
 Remedy of creditors of the mortgagor after default 76 
 
 Where no time of payment is mentioned it is due immediately. . . 76 
 Mortgage of exempt property not a waiver of exemption as to 
 
 sheriff ■ 76, 77 
 
 Tender after default will not reinvest title in mortgagor. . 77, 80, 100 
 
 Right of mortgagor to redeem s f ter forfeiture 84 
 
 Mortgagor may transfer the right to a purchaser 84 
 
 Sale by mortgagee of sufficient property to pay debt, interest, etc. 77 
 
 Right of mortgagor to surplus after such sale 77 
 
 Remedies of the mortgagor after excessive sale and purchase by 
 
 mortgagee 87 
 
 Action by mortgagor to redeem mortgaged property 77 
 
 Claiming right to redeem when sued for conversion 78 
 
 Failure to file cannot be taken advantage of by general assignee 
 
 of mortgagor 78 
 
 Right of receiver in supplementary proceedings to set aside un- 
 filed mortgage 78 
 
 Rights of the mortgagee 79 
 
 Has absolute title after default 72, 79, 80, 83 
 
 May cut off equity of redemption by sale 79, 84 
 
 After default in the payment of an installment 80 
 
 Where the property mortgaged has been changed, and default is 
 
 made 80 
 
 Right of action by mortgagee against third persons 80, 81, 82 
 
INDEX. 901 
 
 CHATTEL MOETGAGES— (Continued): 
 
 Eights of the mortgagee — (Continued) : Page. 
 The law of place as affecting the rights of the parties to a mort- 
 gage 82 
 
 Levy on mortgaged property under execution against mortgagee. . 83 
 
 Title of the mortgagee absolute after default without sale 83 
 
 When the mortgage gives right of possession before default. . 83, 99 
 
 When the mortgagee may sell at private sale 83, 84 
 
 Accounting for proceeds of sale 84 
 
 Mortgagee may maintain action in equity to foreclose 84 
 
 Eefiling of mortgage does not affect rights of mortgagee as against 
 
 mortgagor 100 
 
 Assignment of the debt secured, passes interest of mortgagee. ... 84 
 
 Eight of action for wrongful taking passes to the assignee 84 
 
 Eight of mortgagee to replevy chattels sold on execution against 
 
 mortgagor '. 85 
 
 Transfer of overdue mortgage transfers the property mortgaged. . 85 
 Eights under a mortgage to several persons to secure several 
 
 debts 85 
 
 Effect of fraudulent intent of mortgagor in executing the mort- 
 gage 85 
 
 When the mortgagee may sue upon the mortgage for the debt 
 
 secured 86 
 
 Covenant by the mortgagor to warrant and defend the property . . 86 
 
 Liability of mortgagor for deficiency after a sale 86 
 
 Priority as between unfiled chattel mortgages 86 
 
 Effect of knowledge of prior unfiled mortgage 86, 87 
 
 Mortgagee may purchase at the sale of the property mortgaged. . 87 
 Eemedies of mortgagor after excessive sale and purchase by mort- 
 gagee 87 
 
 Statutory penalty for sales by mortgagor with intent to defraud 
 
 mortgagee 87 
 
 Eights of creditors of the mortgagor 88 
 
 Provision of the statute requiring mortgages to be filed 88 
 
 Who are "creditors" within the protection of the statute.... 88, 91 
 
 Creditor at large cannot avail himself of omission to file 88 
 
 Judgment creditor, with lien by execution, protected 88 
 
 Judgment by confession and execution thereon suiBcient 88 
 
 Attaching creditor protected 89, 90 
 
 What passes to the purchaser at a sale under an execution against 
 
 the mortgagor 90 
 
 After default, property may be sold under execution against 
 
 mortgagee 90 
 
 Assignment of contract intended to operate as a mortgage, 
 
 requisites of 90, 91 
 
 Creditors with knowledge of unfiled mortgage not protected 91 
 
 When the interest_of the mortgagor is liable to sale under exe- 
 cution 92 
 
 Eights of purchasers in good faith 93 
 
 Void bills of sale 93 
 
 Who are " purchasers in good faith " 93, 94 
 
 Only subsequent purchasers in good faith protected by the 
 
 statute 94 
 
 The question of fraudulent intent 94, 95 
 
 Form and requisites of a mortgage 95 
 
 The consideration ._• 95 
 
 Mortgage given for pre-existing debt 95 
 
 Mortgage to secure future advances 96 
 
 Time when payment is due by the terms of the mortgage 97 
 
 Demand, where the mortgage is payable on demand 97, 99, 100 
 
 Description of the property mortgaged 97 
 
 Eeferenee to a schedule as annexed 98 
 
 Tender of the amount due on a mortgage of chattels 77, 80, 100 
 
S02 INDEX. 
 
 CHATTEL MORTGAGES— (Ck)ntinued) : P«8e. 
 
 Eefiling does not operate to extend credit or waive forfeiture 100 
 
 Acceptance of mortgagoi-'s notes no waiver of the mortgage security, 101 
 
 Creditor may take all the securities the debtor will give 101 
 
 Taking second mortgage on same property to secure same debt 101 
 
 Second mortgage to secure the same and additional indebtedness. . . . 101 
 Judgment confessed as collateral does not extinguish prior mortgage, 101 
 
 Eenewal notes secured by mortgage given to secure originals 101 
 
 When mortgage debt satisfied by taking possession of the property, 102 
 
 Parol evidence to show that bill of sale is a mortgage 102 
 
 To vary or contradict the mortgage, not admissible 102 
 
 Thai the sum specified in the condition is more than is due 103 
 
 That an assignment of the mortgage was not intended as such. . . 103 
 
 To apply a description to its subject-matter 103 
 
 Validity of chattel mortgages 104 
 
 Though void as against creditors, valid as between parties 104 
 
 Persons authorized by statute to impeach a mortgage 104 
 
 Fraudulent as to creditors, if made to hinder, delay or defraud 
 
 them 105 
 
 Sales or assignments presumed by statute to be fraudulent 105 
 
 Must be filed, or an immediate delivery and actual and continued 
 
 change of possession 105, 106, lOT 
 
 Mortgage not filed may be void, though not tainted with vice. . 107 
 Mortgage, though filed, may be actually fraudulent and void. . 107 
 
 Decisions under former statutes 107, 108 
 
 Object of requiring immediate deliveiy, etc 107 
 
 What is meant bv immediate delivery 108 
 
 Change of possession must be actual, not constructive. . .' 108 
 
 What is meant by actual change of possession , 108, 109 
 
 Effect of permitting mortgagor to retain possession, etc... 108, 109 
 
 When the statutoiy presumption of fraud is conclusive 109 
 
 When failure to make immediate delivery is excused 109 
 
 Proof of good faith, to rebut presiimption of fraud 109, 110 
 
 Proof of a good and valid confideration 110, 111 
 
 Continued change of possession required Ill 
 
 Fraudulent intent of mortgagor and acts subsequent to mortgage. . 112 
 
 Piling chattel mortgages 112 
 
 When a mortgage is invalid if not filed 112 
 
 When filing not essential 112, 113 
 
 As between the parlies 112 
 
 As against purchaser with notice 112, 113 
 
 As against prior purchasers 113 
 
 As against a wrongdoer 113 
 
 Where the transaction is not in effect a mortgage flS 
 
 Corporate mortgages recorded as mortgages of real property 174 
 
 As against holder of fraudulent judgment 114 
 
 Time when the mortgage should be filed 114 
 
 Must be filed within a reasonable time 114, 115 
 
 Where the mortgage must be filed 115, 118 
 
 Where the mortgage is on partnership property 116 
 
 How the mortgage should be filed 116 
 
 Leaving moiiEgage at the clerk's office to be filed 117 
 
 Effect of subsequent taking mortgage from the files 117 
 
 Fees for filing 118 
 
 Eefiling of chattel mortgage 118 
 
 Necessary to validity after one year as against creditors, etc 118 
 
 Two modes of procedure provided by statute 118, 123 
 
 Time of refiling 118, 122 
 
 Place of refiling 118, 119, 122, 123 
 
 Making new mortgage as substitute for refiling 119 
 
 Who may or may not take advantage of omission to refile, 119, 120 
 
INDEX. 903 
 
 CHATTEL MORTGAGES— (Continued) : 
 
 Eefiling of chattel mortgage— (Continued) : Pago. 
 
 Meaning of the term "subsequent" as used in the statute 119 
 
 Meaning of the term " purchaser " 120 
 
 Eights of creditors where there is a failure to refile 120, 121 
 
 Refiling after the expiratioh of a year 121 
 
 How to refile 123, 124 
 
 Certified copy of tTie mortgage as evidence 124 
 
 Taking property under an inaccurate copy 124, 125 
 
 Discharge of chattel mortgages 125 
 
 •CHATTEL NOTES: ! 
 
 Are not negotiable '. 545 
 
 Torm of a chattel note 545 
 
 Notes payable in goods or money are not chattel notes 546 
 
 Are valid obligations 546 
 
 May be assigned and enforced by assignee 512, 546 
 
 Assignee takes subject to equities 546 
 
 Proof of consideration 546 
 
 The time when and place where payable 549 
 
 When the note is made by a mechanic, manufacturer, merchant 
 
 or producer 549 
 
 When there is no time or place of payment mentioned 550 
 
 When payable on demand, but no place of payment is specified. . 551 
 
 When the note specifies both time and place of payment 552 
 
 CHECK: (See Bill of Exchange.) 
 
 Is a bill of exchange drawn on a bank payable on demand 512, 539 
 
 Form of a check 539 
 
 Delivery of check a representation that the drawee has funds for 
 
 payment 540 
 
 Contract of the drawer of a check 540 
 
 Obligation of the holder to present it for payment in reasonable 
 
 time 540 
 
 Effect of delay in presentment 540 
 
 Time for presentment under the law merchant 540 
 
 As to indorser, insolvency, etc., of drawer no excuse for delay in 
 
 presentment 540 
 
 As between holder and drawer, presentment may be made at any 
 
 time 541 
 
 Forwarding check for presentment 541 
 
 Delay on the part of collecting agent in making presentment 541 
 
 Presentment must be made during banking hours 541 
 
 Waiver of rights acquired through delay in presentment 541 
 
 Does not require acceptance 541 
 
 Certification, and its effect 252, 541, 542 
 
 Does not operate as an assignment of funds to credit of drawer 542 
 
 Bank not liable to holder 542 
 
 Payment by check . .^. 598-603 
 
 (See Payment.) 
 
 Liability of drawer of accommodation cheek 557 
 
 For baggage 429 
 
 CHOSE IN ACTION: ', 
 
 When assignable 620 
 
 COLLECTION AGENTS: 
 
 Are liable for the acts of attorneys employed by them 214 
 
 Are liable for negligence causing loss to principals 214 
 
 Duty to pay over to principal the money collected 235 
 
904 INDEX. 
 
 COMMISSION MERCHANT: (See Factor.) Page. 
 
 Usually performs the business of a factor 220' 
 
 Eights, duties and liabilities when acting under a del credere com- 
 mission ^ 220, 223, 224, 228 
 
 Duty to furnish statement of property received and sales made 236 
 
 Title to the property until sold 227 
 
 When he must pay over proceeds of sales 237 
 
 Proceeds of sales, whatever their form, are the principal's property. . 237 
 
 Commissions 239 
 
 Reimbursement for advances 244 
 
 Lien 244 
 
 COMMISSIONS: 
 
 Of factors, brokers, and commission merchants 220, 223, 224, 239 
 
 COMMODATUM: (See Bailment.) 
 
 Nature of the bailment , 363 
 
 Distinction between a mutuum and a oommodatum 363 
 
 COMMON CAERIEK: 
 
 What persons are classed as common carriers 405, 406, 407 
 
 Must carry for all persons 407 
 
 Liable for refusal to carry without legal excuse 407 
 
 Tender of freight or readiness to pay 408 
 
 Railroad company must carry all passengers or property offered 408 
 
 Must ordinarily carry goods in the order of their receipt 408 
 
 Exception in case of perishable property 408, 409 
 
 Contracts as to compensation for carriage 409 
 
 Bound by contract to carry for a stipulated price 415 
 
 Must carry on tender of tte usual or a reasonable sum 409 
 
 Must convey goods to and from such places as he professes to carry 
 
 them 409 
 
 May protect his lien for advances by replevin 409 
 
 Cannot dispute title of persons contracted with as owners 409 
 
 When the responsibilty of the carrier, as such, commences. . 409, 410, 411 
 
 416, 417 
 
 What delivery to or acceptance by him necessary to liability. . 409, 410 
 
 411, 416, 417 
 
 Title in a third person as a defense to an action against carrier 411 
 
 Duty of the carrier to deliver to the person entitled to the delivery. . 411 
 
 Liability for a wrong delivery 411, 412 
 
 Liability for refusal to deliver to person entitled to delivery 412 
 
 Wrong delivery deemed a conversion by the carrier 412 
 
 Surrender of goods to sheriff in replevin without notice to holder of 
 
 bill of lading 412 
 
 Liability of carrier does not rest on his contract, but is imposed by 
 
 law 412 
 
 Liable for losses not occasioned by his fault or negligence 412, 418 
 
 Insures against loss not arising from the act of God or public enemy, 41S 
 
 411^. 
 
 Limitation of the rule when applied to the carriage of live stock. . . . 419 
 
 Distinction between " act of God " and " inevitable accident " 413 
 
 Meaning of the phrase " act of God " 413 
 
 When liable for loss of live stock carried 419 
 
 Liability for loss of goods by intense cold 419 
 
 Liability for acts of agents or employees 415, 416 
 
 Liability on contracts made on Sunday for carriage to commence 
 
 on Sunday 417 
 
 Liability for loss through theft and robbery 418 
 
 Not liable for loss occasioned by defective packing or inherent defect, 419 
 Presumption of negligence from depreciation in weight of goods de- 
 livered 420 
 
INDEX. 905 
 
 COMMOIT CAKRIEB— (Contiimed) : Page. 
 
 Not liable for loss to wliich the conduct of aonsignor has in any way 
 
 conduced 420 
 
 Concealment of the value of the goods carried, effect of 420, 421 
 
 Shipping brittle or perishable goods as ordinary merchandise 421 
 
 Duty to carry acoording to agreement or instructions or directions.. 421 
 
 422 
 
 Compensation for carriage 413 
 
 Implied contract of consignor to pay a reasonable sum for carriage. . 413 
 
 Right of carrier to demand prepayment of freight 413 
 
 When delivery must precede action to recover freight 413, 414 
 
 When freight paid in advance may be recovered back 413, 414 
 
 Not entitled to freight on goods thrown overboard or destroyed by 
 
 fire 414 
 
 May refuse to deliver until freight is paid 414 
 
 Lien for carriage, and how lost 414, 415, 444 
 
 Has no lien on goods carried for compensation for delay iu unloading 
 
 car- 443 
 
 Counterclaim for damages in action for freight 415 
 
 May act as factor to sell goods for the owner 415 
 
 Liability of carrier continues until delivery or its equivalent 422 
 
 Duty to hold goods when oonsignee cannot be found or is a swindler, 415 
 
 Duty of carrier when goods are refused by consignee 415 
 
 Liability for the value of goods shipped C. O. D 423 
 
 When the carrier may warehouse the goods and liability thereafter. . 423 
 Notice to consignee of arrival of goods, and to remove them. . . 423, 424 
 
 425 
 Loss of goods after tender of delivery or notice to remove them, 423, 424 
 
 Place of delivery 422 
 
 When the carrier is a railroad company 424 
 
 Where the carriage is by water 425 
 
 When the carriage is by express 422, 423 
 
 Time of delivery 422, 425 
 
 Liability for delay, and the nature thereof 426 
 
 Carrier bound only for exercise of due diligence 425 
 
 May excuse delay by accident or misfortune 425 
 
 Delay caused by fault of another 425 
 
 Delay caused by strike of employees 426 
 
 Delay caused by mob violence 426 
 
 Freezing of canal or river, and duty of carrier thereon 426 
 
 Carriers of passengers not insurers of their safety 426 
 
 Degree of care required of such carriers 427 
 
 Liability for delay in carriage of passenger 428 
 
 Duty to protect passenger from violence 428 
 
 Carrier of passengers is an insurer of baggage 428 
 
 Passenger's fare includes carriage of his baggage 428 
 
 Passenger who has not paid his fare entitled to safety of his bag- 
 
 gage J^'' 
 
 Por what baggage the carrier is liable 429 
 
 Not liable for baggage retained in custody of carrier 429, 430 
 
 Liability for property inadvertently left by passenger in a ear. . 429, 430 
 Exemption of owners, etc., of steamboats from liability for loss of 
 
 jewelry, etc ; ^^^ 
 
 Delivery of baggage at passenger's destmation 431 
 
 Checks for baggage . . ■•■•■•■•••;• tl] 
 
 Duration of carrier's liability for baggage ............... . . . 431 
 
 Ricrhts and liabilities of connecting Imes of steamboats and railroads, 431 
 ° 433 
 
 Bawgage lost during transit over connecting roads 432 
 
 RiSits of action by passenger sustaining such loss 432 
 
 Rights of action for damage to baggage 4d^ 
 
 Presumption as to the condition of the baggage before receipt by 
 ' last carrier "~ 
 
S06 INDEX 
 
 COMMON CABKIEE— (Contimied) : Page. 
 
 Liability of carrier contracting to carry baggage to its destination. . 432 
 
 Liability of subsequent connecting carrier 433 
 
 Double responsibility as carrier and as bailee of goods 434 
 
 Power of carrier to restrict his common-law liability 433 
 
 Cannot restrict liability by mere notice 433 
 
 May limit or exempt himself from liability by express contract. . 433 
 
 Requisites of a contract to have the latter ^eot 433, 434 
 
 When relieved from liability as a carrier he is still liable as 
 
 bailee 434 
 
 May stipulate for exemption unless claim is presented in a speci- 
 fied time 434 
 
 Has an insurable interest 799 
 
 Delivery to carrier when delivery to purchaser 664 
 
 COMPLAINT: 
 
 In action for work done under a special contract 133 
 
 In action upon a judgment 818 
 
 COMPOUND INTEREST: (See Interest.) 
 
 Contract for compound interest not usurious 756 
 
 When and when not recoverable 757, 758 
 
 When reservation of compound interest is usurious 785, 786 
 
 COMPROMISE: 
 
 Of a doubtful claim, a good consideration for a note 14, 15 
 
 Of a wholly unfounded claim 15 
 
 Authority of agent to receive payment, no authority to compromise. . 197 
 Adoption of statements made by agent effecting compromise 209 
 
 CONDITIONS: 
 
 Conditional delivery of bonds 50 
 
 In bonds of indemnity 52 
 
 In policies of insurance 804, 807 
 
 (See Insurance.) 
 Precedent or independent 34 
 
 CONDITIONAL SALES: 
 
 How viewed at common law 476 
 
 Were valid as between the parties 476 
 
 No title passed to purchaser before performance of condition .... 476 
 
 Purchaser took no leviable interest 476 
 
 Purchaser could transfer no title to a bona fide purchaser, 476, 477 
 
 Object of the statute to change the common-law rule 477 
 
 When and as to what sales the statute has no application 474, 475 
 
 Duplicate of entire contract must be given vendee tio bring case within 
 
 the exception 475 
 
 Title to goods sold under contract for conditional sale since the 
 
 statute 476 
 
 When sale deemed absolute as against subsequent purchasers, pledgees 
 
 or mortgagees 478 
 
 Statute has not changed the relations between conditional vendor and 
 
 vendee 477 
 
 Sale or mortgage by conditional vendee a conversion of vendor's 
 
 chattel 477 
 
 Conversion by assignee of vendee by failure to deliver the propa1;y 
 
 after default 477 
 
 Waiver of condition that goods must be paid for on delivery. . . . 477, 478 
 Contracts on condition that the goods may be returned, carry title 
 
 to buyer 478 
 
 Filing of contracts for conditional sale 478 
 
 Where filed 478 
 
 Only iona fide purchasers, etc., can take advantage of failure 
 to file 479 
 
INDEX. 907 
 
 CONDITIOlTAIi SALES— (Continued): Page. 
 
 Eights of the vendor on default 479 
 
 Default in the payment of installments 480 
 
 Right of vendor to take possession of the property 479 
 
 Rights of the parties after default as defined by the statute... . 480 
 
 Purchaser may waive the benefit of the statute 480 
 
 Waiver of forfeiture 480, 481 
 
 Effect of taking note for the purchase money and suing on the 
 
 note 481 
 
 Salfi of the property and disposition of the proceeds 481 
 
 Time within which the sale must be made 480, 482 
 
 Notice of sale to be served upon the vendee or his successor in 
 
 interest 482 
 
 Sale must be at public auction 482 
 
 Disposition of the proceeds of sale 482 
 
 Statute as to conditional sale of railroad equipment and rolling 
 stock: 475 
 
 CONSIDERATION: 
 
 Indispensable to a valid contract »...!, 6 
 
 Not essential to executed contract 7 
 
 Contract for sale of stocks, etc 7 
 
 Written sealed agreement need not express consideration 7 
 
 Of unsealed agreement must appear on its face or be alleged and 
 
 proved 7 
 
 Parol evidence of consideration 8 
 
 Kinds of consideration 8 
 
 Sufficiency of consideration 8, 9 
 
 Part payment of a debt due 9 
 
 Performance of an act the promisor was legally bound to per- 
 form 9 
 
 Must be valuable 10 
 
 Moral obligation unconnected with prior legal liability 10, 11 
 
 Meritorious consideration 10 
 
 Adequacy of consideration unimportant 12 
 
 Distinction between inadequacy and failure of consideration.... 12 
 
 Prevention of litigation 14 
 
 Settlement of a doubtful claim 14 
 
 Compromise of an unfounded claim 15 
 
 Forbearance in prosecuting claim 16 
 
 Labor and services rendered 17 
 
 Services rendered without request or expectation of payment. . 18, 19 
 
 Services rendered for near relatives 18 
 
 Gratuitous or voluntary services 18, 19, 20 
 
 Promise for a promise 20 
 
 In case of voluntary subscriptions 22, 23 
 
 Rewards offered • • • ; 24 
 
 Recovery where consideration is void in part 25 
 
 Illegality of consideration 26 
 
 Impossible considerations 26 
 
 Failure of consideration 27 
 
 Stranger to the consideration 28, 852 
 
 Time of the consideration 28 
 
 Impeaching consideration 29 
 
 Not necessary to support a gift 30, 610 
 
 Of surety bonds and undertakings under the Code 56 
 
 Of an assignment . ; 627 
 
 Inquiry as to consideration given by assignee 628 
 
 Warranty made after sale is without consideration 707 
 
 Statement of consideration in memorandum of sale 728, 829 
 
 Statement of consideration to satisfy requirements of statute of 
 
 frauds 728, 829 
 
 Mode of expressing consideration 830 
 
908 INDEX. 
 
 CONSIDERATION— (Continued) : 
 
 Statement of consideration, etc. — (Continued); Page. 
 
 In contracts of guaranty and suretyship 831 
 
 Parol evidence of consideration 833 
 
 In case of pix>mise to answer for debt or default of another 851 
 
 On sale of an interest in land 861 
 
 Transfer not adjudged fraudulent for want of consideration only.... 873 
 
 CONSTABLE: 
 
 Not liable for loss by fire of goods levied on 355 
 
 CONSTRUCTION: 
 
 Of contracts generally 42 
 
 Of contracts of suretyship 485 
 
 Of contracts of guaranty 501 
 
 Of contracts of sale 643 
 
 Of policies of fire insurance 802 
 
 Of agreements which may or may not be performed within a year. .. 837 
 
 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 2 
 
 Mutuality of contract or liability 2 
 
 Curing want of mutuality by performance 2 
 
 General definitions and classification 1, 2 
 
 Contract defined 1 
 
 Unilateral or bilateral contracts 2 
 
 Principal or accessorial 2 
 
 Executory or executed 2 
 
 Express or implied 2, 3 
 
 Nature of an implied promise 3 
 
 Entire or severable 4 
 
 Sealed or unsealed, oral or written 4 
 
 Parties to contracts 4 
 
 Must be parties to every contract 4 
 
 Capacity or incapacity to contract 4 
 
 Married women may contract as if sole 5 
 
 May contract through agents, attorneys, etc 5 
 
 Change of parties 5 
 
 Joint or several liability of parties to contracts 5 
 
 Joint or several rights under a contract 5 
 
 Joinder of parties jointly interested 5, 6 
 
 Splitting joint demands 5, 6 
 
 Contribution 6 
 
 Consideration of contracts 6 
 
 (See Consideration.) 
 
 General rule requiring a consideration 6 
 
 Statutory exception in favor of stock contracts 7 
 
 Necessary to executory contracts only 7 
 
 Need not be expressed in sealed agreements 7, 33 
 
 Must be expressed in other agreements or alleged and proved ... 7 
 
 Not necessary to a gift 30 
 
 Want of consideration of promissory notra 8 
 
 Parol evidence of the consideration of contracts 8 
 
 Kinds of consideration 8 
 
 Sufficiency of the consideration of a contract 12 
 
 Prevention of litigation as a consideration 14 
 
 Forbearance as a consideration 16 
 
 Labor and services as a consideration 17 
 
 Promise for a promise 20 
 
 Subscriptions and contributions 22 
 
INDEX. 9D9 
 
 CONTRACTS— (Continued) : 
 
 Consideration of contracts— (Continued) : Tuge. 
 
 Rewards offered ^ _ 24 
 
 Considerations void in part .'.*.*.'.".'.'.*.'.'.*.'.*.*!!!!! 25 
 
 Illegality of the consideration '.'.'.'...'.'.'...'.'.'.'.'.','.'. 26 
 
 Impossible considerations !'.*..'!.'.!!'.!!!!, 26 
 
 Failure of consideration , 27 
 
 Stranger to consideration 28 
 
 Time of the consideration !!...,. 28 
 
 Impeaching the consideration of a contract 29 
 
 Assent of parties to the contract 30 
 
 Mutual assent essential to existence of a contract 30 
 
 Assent must be with knowledge of the offer 30 
 
 Assent must be to the same thing in the same sense 30 
 
 Acceptance must be as broad as the offer 30 
 
 A modified or qualified acceptance deemed a rejection of an offer, 31 
 
 A proposition not accepted as proposed, creates no contract 31 
 
 The assent must go both to the terms and to the parties 31 
 
 When a party is estopped from denying assent to the contract. . 31 
 
 Assent not essential to contract implied by law 32 
 
 Time of giving assent 32 
 
 When the time for acceptance is expressly limited 32 
 
 When the proposal is by mail 32, 33 
 
 Written sealed agreements 33 
 
 Need not express a consideration 7, 33 
 
 Seal only presumptive evidence of consideration 34 
 
 Covenants 34 
 
 Conditions precedent defined 34 
 
 Independent covenants 34 
 
 Mutual or dependent covenants 34 
 
 Allegations and proof in actions upon dependent covenants. . 35, 36 
 
 Allegations and proof in actions upon independent covenants. . 35, 36 
 
 Illustrations of the rule as to allegations and proof 37 
 
 Construction of covenants in contracts for the sale of lands 38 
 
 Construction of executory contracts for the sale of chattels 3? 
 
 Presumption as to time of payment where there is no provision 
 
 for credit 38 
 
 When full performance by the vendor precedes the right to pay- 
 ment _. 39, 40 
 
 When recovery may be had without complete performance 38 
 
 Effect of failure fully to perform a building contract 39 
 
 When there must be complete performance of contract for 
 
 labor 40, 41 
 
 Sickness or death as an excuse for non-performance 41 
 
 Wliere complete performance is impossible by act of the law. ... 41 
 
 Where the contract has been changed or modified 41 
 
 Pleading excuse for non-performance 42 
 
 Construction of contracts 42 
 
 When a question of fact, and when a question of law 42 
 
 How far the intention of the parties is controlling 43, 44 
 
 Giving a broad interpretation to the words used 43 
 
 Agreements to perform "as soon as possible," construed 43 
 
 The subject-matter of a contract as affecting its construction ... 43 
 
 Imputing a technical sense to the words used 43 
 
 Situation of the parties and the property as indicative of inten- 
 tion _• 44 
 
 When the terms of the contract do not permit of construction. . . 44 
 Construction pi-eferred which will make the contract legal and 
 
 operative ... 44 
 
 Court will not so construe a contract as to place one party at 
 
 the mercy of the other 44 
 
 Presumptions as to the intended sense or meaning of the terms 
 
 used 44, 45 
 
910 IJSTDEX. 
 
 CONTEACTS— (Continued) : 
 
 Construction of contracts — ( Continued ) : Page. 
 Ihe whole contract must be considered to determine the mean- 
 ing of its parts 45 
 
 Construing different instruments as one contract 45- 
 
 Kecitals as aids to construction 45 
 
 Effect to be given to all the parts and to all the language used. . 49 
 
 To be strictly construed as against the party giving the contract, 46 
 
 Grammatical rales may be disregarded in construction 46 
 
 Preference given to the written over the printed matter 46 
 
 Practical interpretation by the parties 46 
 
 Giving the same meaning to words wherever found 46 
 
 Supplying defects by implication 47 
 
 Contract deemed to contain whatever may be fairly implied.... 47 
 
 Expressing an obligation which the law would imply 47 
 
 Presumption of intent to bind personal representatives 47 
 
 Presumption that several parties intend a joint obligation 48 
 
 Custom or usage and its effect on construction 48 
 
 Bonds 4» 
 
 (See Boi?DS.) 
 
 Money bonds 49 
 
 Indemnity bonds 51 
 
 Surety bonds and undertakings under the Code 56 
 
 Bastardy bonds 58 
 
 Cha.ttel mortgages 59 
 
 (See Chattel Mortgages.) 
 
 Special contracts to 1 abor 126 
 
 Complete performance as a condition precedent 126 
 
 Certificate of architect, when a condition precedent 127 
 
 - Alleging and proving performance of conditions precedent 128 
 
 Building contracts 127, 128 
 
 Eorieiture of wages by leaving employment 128, 129, 130 
 
 Contract to saw logs into boards within a specified time 129 
 
 Failure to perform contract within the time limited... 129, 130, 137 
 
 When partial performance gives a right of action 130, 136 
 
 Contracts to work a year, payments monthly 130 
 
 Sale of grain to be paid for as each load is delivered 130 
 
 Where employee has been wrongfully discharged ". 131 
 
 Liability of employer for wrongful discharge 131, 136 
 
 Remedies of servant wrongfully discharged 131, 132 
 
 Pleading the special contract 133 
 
 When deviation from contract precludes party from setting it up, 136 
 
 Contracts for personal services of infants 133, 134 
 
 Continuance in service beyond time fixed by the contract 134 
 
 Contracts conditioned upon " satisfaction," etc 134 
 
 Rights and liabilities under such contract 134, 135 
 
 Liability where order for work has been countermanded 132 
 
 Deviations from original contract for services 136 
 
 Measure of damages where contract is departed from 137 
 
 Recovery where there has been a failure to perform in time. . 137 
 
 Recovery where employer responsible for the delay. .. . 137, 138 
 
 Immaterial variations from the terms of the contract 139 
 
 Leases ^^^ 
 
 (See Landlord and Tenant.) 
 
 Liability of principal on contracts of agent 195, 248 
 
 (See Peinoipal and Agent.) 
 
 Power of corporations to contract 284-290 
 
 (See Corporations.) 
 
 Partnership agreements and agreements to form a partnership 299 
 
 (See Partnership.) 
 
 Contracts of bailment 349 
 
 (See Bailment.) 
 
INDEX. 911 
 
 CONTRACTS— (Continued): Page. 
 
 Contracts for the conditional sale of goods and cEaltels 474 
 
 (See Conditional Sales.) 
 
 Contracts of suretyship • 483 
 
 (See Pkincipal and Surety.) 
 
 Bills of exchange and promissory notes 511 
 
 (See Bills and Notes.) 
 
 Contracts of assignment 62(> 
 
 (See Assignment.) 
 
 Contracts of sale 635 
 
 (See Sale.) 
 
 Contracts to pay interest 547 
 
 ' (See Interest on Monet.) 
 
 ; Contracts void for usury 765 
 
 (See Usury.) 
 
 Contracts of fire insurance 798 
 
 (See Insurance.) 
 
 Judgments 815 
 
 How affected by the statute of frauds 828 
 
 (See Statute of Frauds.) 
 
 CONTRIBtra?ION: |See Sureties.) 
 
 Origin and nature of the right 499 
 
 When the right exists between co-suretiea 499, 500 
 
 CORPORATIONS: 
 
 May sue or be sued in a justice's court ; . . . . 275 
 
 Cla.ssifioation and definitions 275, 276 
 
 Subscriptions for stock 277 
 
 Agreements to form a corporation and subscribe for its stock... 277 
 
 Mutual agreements to subscribe at some future time 277 
 
 By whom enforceable 277 
 
 Subscriptions for stodc of company actually incorporated 278 
 
 Payment of 10 per cent, of the amount subscribed 278 
 
 What must be shown to establish the relation of stockholder. . . . 278 
 
 Subscriptions upon an express condition not performed 278 
 
 Conditional subscriptions, when not enforceable 278 
 
 Secret collateral contract that the subscriber shall not Be bound, 279 
 Secret contract, varying the terms of the subscription, is void . . 279 
 Issuing of certificate of stock to subscriber not essential to lia- 
 bility 279 
 
 What is a sufficient subscription 279 
 
 Transfers of stock 279 
 
 Action against corporation for refusing to permit transfer. . 279, 280 
 
 Directors cannot, by by-laws, restrict transfer of stock 280 
 
 How stock may be made non-transferable 280 
 
 Assignment of a certificate of stock in blank 28T 
 
 Assignee of certificate may fill blank with his name 281 
 
 Transfer not in conformity to by-laws passes interest of trans- 
 feror 281 
 
 Transfer upon forged power of attorney 281 
 
 When action lies for purchase price of stock sold for future 
 
 delivery 281 
 
 Assignee of stock takes subject to equifies against assignor 282 
 
 Right to dividends after transfer 282 
 
 Gifts of stock of a corporation 282 
 
 General powers of all corporations 282 
 
 Statutory limitation 282 
 
 General powers conferred and declared by statute 283 
 
 Decisions limiting and defining powers of a corporation 284 
 
 Power to contract debts and make notes, drafts or accept- 
 ances ; 284, 294 
 
 Municipal corporation may issue negotiable paper for a debt. . . . 284 
 
912 INDEX. 
 
 CORPORATIONS— (Continued) : 
 
 General powers of all corporations — (Continued): Page. 
 
 Same rule applies to all corporations, public or private 284, 285 
 
 Incidental powers possessed by corporations 285, 286 
 
 Power of trustees or agents to contract 285 
 
 Statutory directions as to mode of acting must be followed .... 285 
 
 Cannot indorse for other persons or corporations 285, 294 
 
 May indorse paper which it owns 285 
 
 Power of the president to borrow money in name of company ... 285 
 
 Incidental powers of corporations to borrow money 286 
 
 Banking corporations cannot purchase stocks for sale 286 
 
 Agreement of company to purchase its own stock is void 286 
 
 Cannot create a debt against itself except for authorized pur- 
 pose 286 
 
 Bank may lawfully sell property received for debt 286 
 
 Person contracting with corporation cannot question capacity to 
 
 contract 286 
 
 Liability upon express or implied agreements 286, 293 
 
 Eatification of unauthorized act of agent or officer 287 
 
 Failure to disaffirm unauthorized act within a reasonable time. . . 287 
 
 Power to purchase implies power to sell or mortgage 287 
 
 Corporate seal 287 
 
 Affairs of the corporation to be managed by the directors 288 
 
 Quorum for the transaction of business 288 
 
 Directors may make by-laws 288 
 
 Directors may delegate authority to agents ...., 288 
 
 Power to appoint officers and agents and fix com.pensation 289 
 
 Appointment and powers of an executive committee 289 
 
 Validity of by-laws, and the persons bound by them 289 
 
 Power to impose fines or penalties by a by-law 289, 290 
 
 By-laws of municipal corporations having the effect of a statute, 290 
 Power to manufacture goods implies power to sell and collect 
 
 price 293 
 
 Liability of corporations 290 
 
 Corporations cannot have any intent 290 
 
 For wrongful acts of officers or agents 290, 291 
 
 Liability in action for slander .j_. . 291 
 
 How far liable for wUlful acts of its servants 290, 291 
 
 Proof that the wrongdoer was the agent of the corporation. . 291, 292 
 
 For negligence of agent in discharge of his duties 292 
 
 Ejectment will lie against a corporation aggregate 292 
 
 Acts which would forfeit charter no defense to action by cor- 
 poration 292 
 
 When estopped from disputing official character of trustees 293 
 
 Eight of person dealing with a corporation to assume that it is 
 
 acting within its charter 293 
 
 Liability upon an implied promise 293 
 
 Liability for services rendered and accepted 293 
 
 Liability for unauthorized acts of officers or agents 294 
 
 Liability upon a contract not in writing 294 
 
 How far bound by declarations or acts of a director 294 
 
 Liability upon indorsements 294 
 
 Assignment of corporate property 294, 295 
 
 Notice to agent, when notice to corporation 246, 295 
 
 Persons dealing with officers of a corporation bound to know 
 
 their powers 251 
 
 Personal liabilities of an agent 295 
 
 Liability of stockholders 296 
 
 Where the capital stock is not fully paid 296 
 
 For debts due and owing to laborers, servants, etc. 296 
 
 Holders of stock as security, or as executors, etc 296 
 
 No action against stockholder before judgment and execution 
 against corporation 296, 297 
 
UsTDEX. 913 
 
 CORPOEATIONS — (Continued) : 
 
 Liabilityof stockholders — (Continued) : Page. 
 Limitation of time of commencement of action against stock- 
 holder, etc 297 
 
 Cannot plead usury '...'...'.'...'.'.,... 788 
 
 Same rule applied to receiver, surety, guarantor or indorser .... 789 
 
 Stockholder has an insurable interest in corporate property 799 
 
 COSURETIES: (See Sureties.) 
 
 Eights of cosureties as against each other 497 
 
 COVElTANrS: (See Contracts.) 
 
 Are the stipulations or promises contained in sealed instruments 34 
 
 Mutual or dependent '34, 35, 36 
 
 Covenant in chattel mortgage to warrant and defend 86 
 
 Tor quiet enjoyment, in a lease 159 
 
 Against underletting or assignment 165, 166 
 
 Breach of covenant to repair 189 
 
 To pay taxes and to renew a lease 191 
 
 CREDITOK: 
 
 Rights of creditors in respect to chattels mortgaged 88 
 
 When a creditor may impeach a chattel mortgage 88 
 
 CROPS: 
 
 Mortgage of growing crops 68 
 
 Clause in lease giving a lien upon crops 71 
 
 Eight of tenant to emblements 193, 194 
 
 Sale of crops to grow 643 
 
 Growing crops are personal property 818 
 
 Growing crops pass to purchaser of realty 824 
 
 Pass under sale upon foreclosure 826 
 
 May be transferred by oral agreement 867 
 
 CUSTOM: 
 
 Distinction between custom and usage 48 
 
 Influence upon contracts ;......< 48 
 
 DAMAGES: 
 
 Recoverable for breach of an indemnity bond 63 
 
 DATE: 
 
 Not essential in a bond • 49 
 
 Want of date does not affect validity or negotiability of a bill or 
 
 note '. 516, 519 
 
 Kote may be ante-dated or post-dated 520 
 
 Eight of holder to insert the true date 520 
 
 DAYS OP GRACE: 
 
 Have been abolished 586 
 
 DEATH: 
 
 Of person making subscription to a charitable object 23 
 
 Of either party terminates contract of employment 41 
 
 Of an agent terminates the agency 272 
 
 Authority of the agent ceases on death of his principal 272 
 
 Exception in case of an agency coupled with an interest 273 
 
 DECLARATIONS: 
 
 Of a director, how far binding on a corporation 294 
 
 58 
 
91-i INDEX. 
 
 DELIVERY: Page. 
 
 Of bonds . . • • 49 
 
 Conditional delivery of bonds 50 
 
 Of goods to carrier for transportation, what delivery is sufficient 409 
 
 Carrier must make complete delivery before he is entitled to freight. . 413 
 
 When delivery to a carrier is a delivery to the purchaser 664 
 
 Of negotiable instruments to give tliem a, legal inception 535 
 
 Of the subject of a gift, and what will be a sufficient delivery 613 
 
 Time of delivery of a gift 617 
 
 Conditional delivery of property sold 649, 665 
 
 What is a sufficient delivery of property sold 661 
 
 When tender of delivery is excused 662 
 
 When delivery to a carrier is a delivery to the purchaser 664 
 
 Time of delivery of property sold 665 
 
 Place of delivery 668 
 
 When complete delivery precedes right to payment 672 
 
 DEMAND: 
 
 Of payment of mortgage payable on demand, when necessary, 81, 97, 100 
 
 Of rent before commencing summary proceedings 158 
 
 Before commencement of action against agent 235, 236, 237 
 
 Before suit against factor 237 
 
 Before suit against attorney for money collected for client 238 
 
 Of payment of debt before sale of a pledge 374 
 
 Of principal when necessary to charge surety 509 
 
 Of property specified in a chattel note 549 
 
 DEPOSIT: 
 
 Ownership of money deposited in a bank 367, 368 
 
 DEPOSITTJM: (See Bailment.) 
 
 Nature of the bailment 350 
 
 DESCMPTION: 
 
 Of chattels mortgaged. 97 
 
 Of premises leased 147 
 
 Distinction between words descriptive of article sold and a warrranty, 704 
 
 DIRECTORS: 
 
 Business of corporations transacted by directors 288 
 
 Powers of directors 288, 289 
 
 Notice to directors, when notice to corporation 295 
 
 DISCHARGE: 
 
 Of chattel mortgages 125 
 
 Of a mechanic's lien 465 
 
 Of a lien for labor on stone 469 
 
 Of sureties 491 
 
 Of negotiable instruments 597 
 
 DISHONOR: 
 
 Of a bill by non-acceptance 581 
 
 Notice of dishonor of a bill or note 587 
 
 DISSOLT7TIOW: (See Partnership.) 
 
 Of partnerships 339 
 
 Necessity of notice of dissolution , 318 
 
 ELECTION: 
 
 Of remedies on breach of contract of sale 686, 687, 688, 689 
 
 EMBLEMENTS: 
 
 Eight of tenant to emblements , .■ I93 
 
INDEX. 915 
 
 EQUITIES: Page. 
 Assignee of mortgage takes subject to equities 631 
 
 EQUITY or REDEMPTION: 
 
 Of mortgaged chattels, how cut off 84 
 
 Eight to redeem a pledge, how divested 374 
 
 ESTOPPEL: 
 
 Leases by estoppel 145 
 
 Disputing landlord's title 145, 146 
 
 When insurance company estopped from claiming a forfeiture 807 
 
 EVICTIOKT: (See Landlord and Tenant.) 
 
 Defined 179 
 
 Actual and constructive 179, 180 
 
 What constitutes an eviction 180, 181, 182, 183, 184 
 
 Eights and remedies of evicted tenant 185, 186 
 
 EVIDENCE: 
 
 Bill of sale may be shown to be a mortgage bv parol 102 
 
 Parol evidence inadmissible to change terms of a mortgage 103 
 
 Absolute assignment of mortgage cannot be contradicted by parol .... 103 
 
 Parol evidence to apply description to subject-matter of a mortgage. . 103 
 
 To support the validity of a chattel mortgage 110 
 
 Certified copy of a chattel mortgage as evidence 124 
 
 Possession of negotiable paper as evidence of ownership 537 
 
 Of consideration where none is stated in a writing 833 
 
 EXECUTION: 
 
 Sale of interest of mortgagor of chattels under execution. . 75, 77, 91, 92 
 
 Levy on interest of mortgagee of chattels 83 
 
 Eesponsibility of a sheriff or constable for goods levied on 355 
 
 Sale of interest of pledgor under execution 372 
 
 Fixtures, when liable to an execution 827 
 
 EXECUTOR: 
 
 Eight to fixtures as between executor and heir 817 
 
 FACTOR: (See Pkincipal and Agent.) 
 
 Factor and broker distinguished 219 
 
 Duty of factor to obey instructions 211, 212 
 
 The factor's act, and its object and application 220, 221, 222 
 
 Validity of sales by factors 220, 221 
 
 When liable for loss of goods by fire 222 
 
 Assumption of the purchaser's debt bv factor 222 
 
 Eight to maintain replevin for the goods consigned 223 
 
 Eisk of remittances by factor to consignor 223 
 
 Contract of factor acting under del credere commission need not be 
 
 written 224 
 
 Taking note payable to himself or bearer and receiving payment 225 
 
 Has no authority to pledge the goods consigned 227 
 
 Eelation between factor and the consignor 227 
 
 Title to the specific proceeds of sale is in the consignor 227, 237 
 
 Title to the goods consigned remains in consignor 228 
 
 Lien of factor under advances or who guarantees sales 228 
 
 Demand i^°fore suit by principal 235, 236, 237 
 
 Liability of joint factors 236 
 
 When liable to pay over money to principal 237 
 
 Commissions of factors 239 
 
 Lien of factors 228, 244, 245, 447 
 
 Eight to sue in his own name'. 264 
 
 Care required of factor in custody ''f the iroods consigned , 395 
 
 Set-off of demands against factor in action by principal 447 
 
916 INDEX. 
 
 PILING: (See Chattel Mortgages : Conditional Sale.) Page. 
 
 Of chattel mortgages 88, 112, 125 
 
 Of contracts of conditional sale 478 
 
 TIXTURES: 
 
 ]\Ieaning and common use of the term 817 
 
 As between heir and executor 817 
 
 Growing crops 818 
 
 Grass and fruits 818 
 
 Hop poles 818 
 
 Machinery, etc 818, 819 
 
 Pump, pipes, scales, etc 819 
 
 As between landlord and tenant 819 
 
 Machinery, etc., placed on leasJd premises by tenant 820 
 
 Right of removal by tenant 819 
 
 Time of removal 820 
 
 What the tenant may remove 821 
 
 As between vendor and purchaser of real estate 822 
 
 Tests as to whether property is personal or real 822 
 
 Purpose and intent of the annexation the principal test 822 
 
 Intent may be presumed or inferred 282 
 
 Mode of annexation as evidence of intent 823 
 
 Gas fixtures and mirrors 823 
 
 Machinery in a mill 823 
 
 Buildings 823, 824 
 
 Fencing materials and manure on a farm 824 
 
 Erections for the purpose of trade, manufacture, or agriculture. . . 824 
 
 Growing crops 824 
 
 Steam engine, boilers, etc 824 
 
 Shelves, counters, drawers and tables of a retail store 82.5 
 
 As between mortgagor and mortgagee of real estate 825 
 
 Time when the articles were placed on the premises immaterial . . 825 
 
 Special agreement that articles shall remain personal 825 
 
 Rights as between mortgagee and conditional vendor 825, 826 
 
 Intention in annexation 826 
 
 Articles held to pass to the mortgagee 826 
 
 When liable to execution 827 
 
 Bight to mortgage fixtures 68 
 
 TOOD: 
 
 Warranty on sales of articles of food 709 
 
 TOEBEABANCE: 
 
 As a consideration for an agreement 16 
 
 TOBECLOSTJRE: 
 
 Of chattel mortgages 84 
 
 Of liens upon chattels 470 
 
 Of mechanics' liens 453 
 
 Of vendee's interest under a conditional sale 479 
 
 Of the right of redemption of the pledgor of chattels 372 
 
 TOKFEITTJBE: 
 
 Of a lease 17S 
 
 Waiver of forfeiture of purchase imder conditional sale 481 
 
 Waiver of forfeiture from breach of conditions in a policy SOO 
 
 Is not favored 806 
 
 When insurer estopped from claiming forfeiture 807 
 
INDEX. 917 
 
 POBMS: Page. 
 
 Of a bill of exchange 513 
 
 Of a negotiable promissory note 519 
 
 Of a joint and several note 520 
 
 Of a note payable at a bank 520 
 
 Of a cheek 530 
 
 Of a bill of exchange drawn in a set 543 
 
 Of a non-negotiable note 545 
 
 Of a chattel note 545 
 
 Of an undertaking in action on a lost note 605 
 
 rRATJD: 
 
 Liability of principal for fraud of ag«nt 253, 255, 256 
 
 Liability of partners for fraud of a inember of the firm 358 
 
 Of the shipper of merchandise in concealing character of goods 421 
 
 Recovery upon notes obtained by fraud 536 
 
 Title of purchaser from vendee who obtained goods by fraud 660 
 
 Sale or delivery procured by fraud 677 
 
 (See Sale.) 
 
 Rescission of a contract procured by fraud 690 
 
 Lien of carrier continues where delivery has been procured by fraud. . 414 
 
 FRAUDULENT COUVEYAITCES: 
 
 Form of a fraudulent disposition of property not regarded by the law 872 
 Statutes respecting the fraudulent disposition of personal property.. 873 
 
 Statutes respecting the fraudulent disposition of real prop^erty 874 
 
 Persons authorized by statute to impeach a fraudulent conveyance .... 875 
 
 Chattel mortgages void as against creditors 104, 105, 875 
 
 Bills of sale, etc., void as against creditors 876 
 
 Assignments with preferences 877 
 
 ■ (See Assignments.) 
 
 Transfers of property in contemplation of assignment 878 
 
 Assignments made with intent to hinder, delay and defraud creditors 
 
 are void 879 
 
 Innocence of assignee of fraudulent design is immaterial 879, 880 
 
 Acts of assignee subsequent to a valid assignment are immaterial, 880, 883 
 
 Reservation of benefits to the assignor 880 
 
 Void assignments of partnership property 881 
 
 Provisions in an assignment rendering it void 881 
 
 Retention of the assigned property by the assignor 883 
 
 When the validity of an assignment is a question of fact 883 
 
 When the validity of an assignment is a question of law 883 
 
 Fraudulent confessions of judgment 883, 884 
 
 Fraudulent sales under execution 884 
 
 Rights of purchaser from fraudulent vendee 884 
 
 Proof to invalidate a sale on the ground of fraud 884, 8S5 
 
 Answer justifying seizure of property fraudulently conveyed 885 
 
 FREIGHT: 
 
 When carrier may sue for and recover freight 413 
 
 Recovering back freight paid in advance 413 
 
 Refusal to deliver until payment of freight 414 
 
 GIFTS: 
 
 Nature, definition and classification ....... 610 
 
 Gifts inter vivos and gifts causa mortis distinguished 610 
 
 Parties to gifts 611 
 
 Capacity to make a gift 611 
 
 Gift by wife to husband 611 
 
 Gift by husband to wife 611 
 
 Power of corporations to take by gift 283 
 
 Property which is the subject of gift 612 
 
918 INDEX. 
 
 GIFTS — ( Continued ) : Tage. 
 
 Essentials of a valid gift ^^3 
 
 Delivery to the donee 613 
 
 Intention to give not sufficient 613, 617 
 
 Mere words insufficient 613, 617 
 
 What constitutes delivery 613, 614 
 
 Donor must part with his entire title and interest 614 
 
 Return of property to donor after delivery to donee 615 
 
 Deposit by husband in name of himself and wife 615 
 
 Loan of money by husband and taking note payable to himself 
 
 and wife -V 615 
 
 Gift of a pass-book, when a gift of money in bank 615, 616 
 
 Delivery must be unconditional 616, 617 
 
 Delivery not required when donse already has possession 017 
 
 Delivery subsequent to the declaration of gift 617 
 
 Acceptance by the donee 618 
 
 Proof of gift 618 
 
 Essentials of a gift causa morlis ._ 610, 618 
 
 Eevocation of gifts 618 
 
 Consummated gift inter vivos is irrevocable 618 
 
 Before delivery may be recalled 619 
 
 Gift causa mortis may be revoked by donor 619 
 
 Recovery from sickness revokes gift causa mortis 610, 619 
 
 GRAVESTONES: 
 
 Liens for labor upon gravestones, monuments, etc 468 
 
 GUARANTY: 
 
 Defined 562 
 
 By a partner, when binding on the firm 333 
 
 Continuing guaranties 501 
 
 Construction of guaranties 501 
 
 Examples of continuing guaranties 502 
 
 Of collection or payment 506 
 
 Liability on a, guaranty of collection 506 
 
 Conditions precedent to liability of guarantor 506 
 
 What constitutes due diligence on the part of the creditor 507 
 
 Diligence required on guaranty of collection from an estate 507 
 
 That a note is collectible 507 
 
 Of the collection of notes 508 
 
 Of the payment of a debt 508 
 
 Who may enforce a guaranty 509, 563 
 
 When and what guaranties are assignable 510, 564, 565 
 
 Of bills find notes 562 
 
 Transfer of guaranties indorsed upon notes 563, 564 
 
 Guaranty cannot be enforced in action on the note 565 
 
 Guarantor not entitled to notice of dishonor 565 
 
 GtTEST: 
 
 Who are deemed guests at an inn 398 
 
 HEIR: 
 
 Rights to fixtures as between executor and heir 817 
 
 HIRING: (See Bailments.) 
 
 Letting and hiring of personal chattels 378 
 
 HOLDER: ( See Bin OF Exchange : Pbomissort Note.) 
 
 Rights of a holder of a negotiable instrument 594 
 
 Who is a holder in due course 594 
 
 Rights of holder -in due course 595 
 
 HOLDING OVER: 
 
 Rights and liabilities arising from holding over by a tenant 151 
 
INDEX. 919 
 
 HTTSBAND AND WIFE: P»se' 
 
 Gifts from husband to wife or wife to husband 611, 615 
 
 IDIOTS: 
 
 Want of capacity to contract * 
 
 ILLEGALITY: | 
 
 Of consideration 26 
 
 INDEMNITY: (gee Bonds.) 
 
 Bonds of indemnity 51 
 
 Implied promise of principal to indemnify surety 4&7 
 
 INDORSEMENT: (See Bill of Exchange: Promissoky Note.) 
 
 Defined 513, 506 
 
 Negotiation of bills or notes by indorsement 565 
 
 Requisites of an indorsement 566 
 
 Kinds of indorsements 560 
 
 Special . . .' 566, 567 
 
 In blank 566 
 
 Restrictive 567 
 
 Qualified 567 
 
 Conditional 507 
 
 Without recourse 507 
 
 By two or more 56S 
 
 By a partner in the firm name 568 
 
 By an officer of a corporation 568 
 
 By person in representative capacity 
 
 By indorser or payee whose name is misspelled, etc 568 
 
 Presumptions as to time and place of indorsement 569 
 
 After dishonor 569 
 
 Transfer without indorsement 569 
 
 Person signing other than as maker, drawer or acceptor deemed an 
 
 indorser 570 
 
 Liability of an indorser in blank 570 
 
 Warranty on negotiation by qualified indorsement^ 571, 572 
 
 Warranty on indorsement without qualification 571, 572 
 
 Order of liability of indorsers 573 
 
 Conditions upon which an indorser's liability depends 584 
 
 Proceedings to charge an indorser 587 
 
 Protest of foreign bills 592 
 
 INFANTS: 
 
 Want of capacity to contract 4 
 
 Note made by infant voidable but not void 11 
 
 Liability on contracts for necessaries 59 
 
 Chattel mortgage made by Infant, voidable 59 
 
 Liability for services rendered by an infant 133, 134 
 
 May act as agents 195 
 
 Infant partner not liable for firm debt 300 
 
 INN: 
 
 What is or is not an inn 396 
 
 INNKEEPEBS: 
 
 Who are deemed common innkeepers 395 
 
 Who are not innkeepers 395, 396 
 
 A restaurant or eating-house is not an inn 396 
 
 Combination of lodging-house and restaurant may be an inn 396 
 
 Distinction between an inn and a boarding-house 396 
 
 Keeper of Raines law hotel may be held liable as an innkeeper 396 
 
 Lodging-house, another name for a boarding-house 396 
 
 • Distinction between an innkeeper and a lodging-housekeeper 396 
 
920 INDEX. 
 
 INNKEEPERS— (Continued) : Page. 
 
 Proof necessary to charge a person as an innkeeper 397 
 
 Obligation of innkeeper to entertain all comers 397 
 
 Race, creed or color no ground for refusing privileges of an inn 397 
 
 Liability for refusal to receive a guest 397 
 
 Not bound to furnish accommodations for carrying on a trade 397 
 
 Character of the accommodations that may be required by a guest. . 398 
 
 Liability extends only to such persons as are guests 398 
 
 What is necessary to constitute one a guest 398, 399 
 
 Who cannot claim the rights of a guest 398, 399 
 
 When a traveler ceases to be a guest 399 
 
 Are insurers of the property of their guests 400 
 
 Modification of the common-law liability by statute 400 
 
 Statutory notice of safe for deposit of money, jewels or ornaments. . 400 
 A watch is neither money, jewel nor ornament, and is not within the 
 
 statute 403 
 
 Statutory exemption cannot be extended by implication 402 
 
 Innkeeper may waive the protection of the statute 401 
 
 Oral notice of safe for deposit of valuables equivalent to posted notice, 401 
 
 To what losses the statute does not apply 402 
 
 Statutory exemption from loss through destruction of outbuildings 
 
 by fire 401 
 
 Statutory limitation as to value of animal destroyed by fire 401 
 
 Except as liability is modified by statute, innkeepers are insurers ... 401 
 
 Commencement and duration of liability for baggage of guest 402 
 
 Not liable for money lost through gross negligence of guest 402 
 
 Not chargeable with loss through theft of servant of the guest 403 
 
 Loss through use of hotel by guest for immoral purpose 403 
 
 Not liable for safety of goods in room used for sales-room 403 
 
 Innkeeper liable for larceny committed while he was sick 403 
 
 Loss of goods of guest left in outhouse or shed 404 
 
 Liabilit " for loss of packages sent to a guest 404 
 
 Liability for goods left until called for 404 
 
 Money, as a part of a guest's baggage 404 
 
 Responsibility for dishonesty of other guests 404, 405 
 
 Loss of goods as sufficient proof of negligence of innkeeper 405 
 
 Demand not necessary before suit 405 
 
 Lien of innkeepers upon baggage, etc., of guest 444, 445 
 
 INSTJRANCE: 
 
 Contracts of fire insurance and actions thereon 798 
 
 Insured must have an insurable interest in the property insured . 798 
 
 Averment of such interest in the complaint -798 
 
 Who are deemed to have an insurable interest 799 
 
 Stockholders in a corporation 799 
 
 Tenant under obligation to insure 799 
 
 Common carrier or warehouseman 799 
 
 Charterer of a vessel who has contracted to insure 799 
 
 Insurers of buildings may reinsure their interest 800 
 
 Administrators of insolvent estates 800 
 
 Agents, commission merchants, etc 226, 800 
 
 Not the duty of the commission merchant to insure at his peril. . 222 
 
 Mortgagor and mortgagee of chattels 800 
 
 Owner of lands on which buildings are being erected 800 
 
 Officer holding property under execution, etc 800 
 
 Person in possession of property to be manufactured 800 
 
 Partner insuring partnership property in his own name 801 
 
 Who must sue in case of destruction of mortgaged property 801 
 
 Action by assignee of the policy 802 
 
 Agreements for insurance 802 
 
 Liability for loss occurring before delivery of policy 802 
 
 Construction of the policy 802 
 
INDEX. 921 
 
 INSTmANCE — ( Continued ) : Page. 
 
 Statements in the application 803, 808 
 
 When treated as warranties '.'.....' 803* 808 
 
 Conditions in the policy .......'.'.'.'.....' 804 
 
 Against other insurance without notice and consent. ........'.'..'. 813 
 
 Against storage of specified articles 804 
 
 Against contingency of building becoming vacant or unoccupied. . 805 
 
 Violations of conditions prevent recovery on the policy 805 
 
 Waiver of forfeiture from breach of condition 806 
 
 When company estopped from claiming forfeiture 807 
 
 Conditions as to the inception of the contract 807 
 
 Conditions as to payment of premium 807 
 
 Waiver of such conditions 808, 809 
 
 Conditions as to transfers of the policy or property 813 
 
 Notice of loss 809 
 
 Time within which the notice must be given 809 
 
 Meaning of the terms "forthwith" and "immediate" 809, 810 
 
 Proofs of loss 811 
 
 Must be furnished within the time specified in the policy 811 
 
 How far conclusive on the insured 811 
 
 Inspection of books of account, etc 812 
 
 Examination of insured under oath 812 
 
 Certificates of third persons 812 
 
 Pointing out defects in preliminary proofs 813 
 
 What the policy covers 814 
 
 Agent of insurance company cannot act for himself and principal. . . . 231 
 
 INTOXICATION: 
 
 Contracts made by person intoxicated 4 
 
 INTEREST: 
 
 Xature and rate of interest 747 
 
 When payable by virtue of contract and when as damages . . .& 743 
 
 Rate of interest, when payable as damages 749 
 
 How affected by the law of place 749, 750 
 
 On bonds issxied to refund bonded indebtedness of a municipality . . . 750 
 
 Demands upon which interest is recoverable 750, 751, 752 
 
 When interest may be charged upon an implied agreement to pay it. . 751 
 
 When payment of the principal bars recovery of interest 752 
 
 When interest may be recovered although principal has been paid .... 753 
 
 In an action upon a bond of indemnity 753 
 
 In action against surety 753 
 
 In action upon open, running account for goods sold 754 
 
 Evidence of custom and usage 754 
 
 Where moneys are repaid on failure to perform contract 755 
 
 Upon cash sales 755 
 
 Unliquidated accounts for work, labor and services 750 
 
 In actions for tort 756 
 
 When life tenant refuses to pay interest 757 
 
 Compound interest or interest upon interest 757, 758 
 
 Ti'rom what time interest commences to run 758 
 
 Not payable before principal unless otherwise agreed 758 
 
 No general principle of law requiring annual payment 758 
 
 On contracts for the payment of money 759 
 
 Charging interest from the time of default 759 
 
 Judgment bears interest from entry 759 
 
 Where judgment directs money refunded or repaid 759 
 
 Upon a pecuniary legacy 759, 760 
 
 Income of trust fund 760 
 
 Upon award in condemnation proceedings 760 
 
 Upon balance of an account 760 
 
 Upon amount agreed to be paid as a compromise 761 
 
 Upon chattel note 762 
 
922 INDEX, 
 
 INTEREST— (Continued) : 
 
 From what time interest commences to run — (Contimied) : Page. 
 
 Upon notes and bills of exchange 762 
 
 In action for money received 762 
 
 When sheriff liable for interest 763 
 
 Computation of interest 763 
 
 In case of partial payments 763 
 
 Tender, to stop running of interest 764 
 
 Where payment has been enjoined 764 
 
 INVESTMENTS: 
 
 Skill and diligence contracted for by agent to make investments .... 215 
 
 JOINT DEBTOR: 
 
 Composition with creditors, and its effect 335 
 
 One or more joint debtors may confess judgment for joint debt 335 
 
 JOINT-STOCK: 
 
 Joint-stock companies 324 
 
 Liability of the members for the debts of the concern 325, 326 
 
 Subscription to articles of association 325 
 
 Action for dissolution 325 
 
 Articles of association 326 
 
 Officers 326 
 
 Action brought by or against president or treasurer 326, 327 
 
 Joint-stock corporation may mortgage its property 60 
 
 JOINT TENANTS: 
 
 May join in mortgaging their property 60 
 
 JUDGMENTS: 
 
 Actions upon judgments 815 
 
 .Jurisdiction of actions in justice's court upon judgments 815 
 
 In action against persons jointly indebted on contract 815 
 
 Suits upon judgments docketed in the clerk's office 815, 816 
 
 Statement of jurisdictional facts in the complaint 816 
 
 Proof necessary to sustain action upon a judgment 816 
 
 Fraudulent confessions of judgment 883, 884 
 
 When such judgment may be successfully impeached 884 
 
 Confession of judgment by one of several partners 335 
 
 Confession of judgment by joint debtors 335 
 
 Bear interest from entry 759 
 
 JURISDICTION: 
 
 Of a justice of the peace in actions on contract 1 
 
 On bonds required and taken by a justice 61 
 
 On the official bond of an administrator 54 
 
 On surety bonds 56 
 
 LABOR: 
 
 When performance of labor furnishes cause of action 17 
 
 Gratuitous services furnish no ground of action 18 
 
 When the law will imply a promise to pay for services 18 
 
 Services rendered by member of family presumed to be gratuitous, 18, 19 
 
 Services rendered by a woman supposing she was a wife 19 
 
 Services rendered by - minor under void indentures 19 
 
 Services by employee presumed to be under contract of employment, 19 
 
 Services rendered in extinguishing fires 19, 20 
 
 Recovery under entire contract to labor 40 
 
 Sickness or death excuses non-pevformance of entire contract 41 
 
INDEX. 923 
 
 LABOR — (Continued) : Page. 
 
 Special contracts to labor 126 
 
 Complete performance as a condition precedent to recovery 126 
 
 Performance of building contracts 127 
 
 Agreements to work for a specified time - 40, 128 
 
 Agreements to complete job in a specified time 128, 129, 130 
 
 When part performance gives a right of action 130 
 
 Discharge of servant without CAuse 131, 136 
 
 When the act of tlie employer caused the default 132, 137 
 
 Pleading special contract 133 
 
 Services rendered beyond the specified time 134 
 
 Contracts conditioned upon satisfaction, etc 134 
 
 Deviations from original contract 136 
 
 Amount recoverable as damages for breach of the contract 137 
 
 Improper, negligent and unskillful execution of the work 138 
 
 Immaterial variations from the .contract 139 
 
 Liens for labor on stone 468 
 
 LAITDLOIID AND TENANT: 
 
 Creation of the relation of landlord and tenant 140 
 
 By an oral or written lease 140 
 
 (See Lease.) 
 
 What constitutes a lease 140 
 
 What is a lease and not an agreement for a lease 141, 142 
 
 What is not a lease 142 
 
 What is a mere agreement for a lease 143 
 
 Words of present demise essential to create a letting 145 
 
 Eelation does not exist whei'e party goes into possession under a 
 
 contract to purchase ; 143 
 
 Eelation not created by agreement to work land on shares 144 
 
 When the relation is that of master and servant and not land-- 
 
 lord and tenant 144 
 
 Lease by estoppel 145 
 
 Landlord cannot deny ownership of land demised 145 
 
 Tenant cannot deny landlord's title 145, 146 
 
 Tenant may show eviction vmder title paramount 146 
 
 Tenant may show that landlord's title has terminated 146 
 
 Description or identity of the premises demised 147 
 
 Duration of the term 148 
 
 Statutory provision for the city of New York 148, 149 
 
 Examples of the construction of leases with reference to the 
 
 term 149, 150 
 
 Covenants to renew a lease 150, 151 
 
 Holding over by the tenant 151 
 
 Landlord may treat ■ tenant holding over as a trespasser or 
 
 tenant 151, 154 
 
 Continuance in possession implies contract to renew tenancy for 
 
 a year 151 
 
 Where the landlord does not object, assent of both parties pre- 
 sumed 151 
 
 Option to regard tenancy as continuing rests with the landlord, 151 
 Tenant holding over cannot throw off the character of tenant. . . 152 
 Notice to landlord of renting of other premises does not change 
 
 the rule 152 
 
 Exception where the holding over is in consequence of sickness. . 152 
 
 Where a possible holding over was provided for in the lease 152 
 
 When the holding over is presumed to be upon tlie original 
 
 terms 151 
 
 When the terms of the original holding are not controlling 152 
 
 Landlord's remedy when he elects to treat the holding over as 
 
 wrongful 153 
 
 Tenant liable for rent when his sub-lessee holds over 153 
 
 Reletting of the premises, an election not to hold original tenant, 154 
 
924 IISTDEX. 
 
 LANDXOED ANB TENAMTT— (Continued) : 
 
 Holding over by the tenant — (Continued) : ?a^. 
 
 Whether there has been a holding over may be a question of fact, 154 
 
 Holding over after notice of intention to quit 154 
 
 Holding over after notice to quit 157 
 
 Occupation under a lease void by the statute of frauds 155 
 
 Parol lease for a period longer than a year is absolutely void. . . 155 
 
 Eitlier party may repudiate the lease as soon as made 155 
 
 Such lease vests no term in the lessee 1 55 
 
 Lessee bound to pay only for the time he has occupied 155 
 
 Landlord may recover for use and occupation 155 
 
 Lessee is merely a tenant at will 155 
 
 Tenancy at will may be converted into yearly tenancy by a new 
 
 contract 155 
 
 New contract may be implied from circumstances 155 
 
 Effect of holding over a year under void lease 155, 156 
 
 Lease of premises for unlawful purposes, void and not enforceable... 156 
 
 Agreement void because not to be performed within a year 156 
 
 Notice to quit 157 
 
 To terminate a tenancy at will or by sufferance 157 
 
 Eemedies of the landlord who has served the notice 157 
 
 To terminate an estate for life or for years 157 
 
 Penalty for holding over after notice 157 
 
 Notice in summary proceedings 157 
 
 Who will be deemed a tenant at will 157, 158 
 
 Requisites of notice to terminate a tenancy at will 158 
 
 Notice in case of default in payment of rent 158 
 
 When a month's notice must be given 158 
 
 Where the parties have stipulated as to the length of the notice, 158 
 
 No notice necessary when tenancy ends on a day certain. . . . 158, 159 
 
 Waiver in ejectment of notice to quit 159 
 
 Eights and obligations of the parties 159 
 
 Implied agreement of the lessor to give lessee possession 159 
 
 Implied covenant for quiet enjoyment 159 
 
 Action lies for breach of such implied agreement and covenant. . 159 
 
 Damages recoverable in action for refusal to give possession.... 159 
 Implied covenants of title and for quiet enjoyment not warranties 
 
 against acts of strangers 159 
 
 Remedy of lessee is against former tenant holding over 159 
 
 When the lessor cannot recover rent for premises held adversely, 160 
 
 Liability of lessor for letting infected premises 160 
 
 Concealment of the fact that demised premises had been used for 
 
 prostitution 160 
 
 Farm tenant bound to cultivate in manner required by good 
 
 husbandry 160 
 
 Right of tenant to remove fixtures 819 
 
 (See FiXTUEES.) 
 
 When the manure belongs to the farm 160 
 
 When the tenant may remove the manure 161 
 
 Tenant must use the premises for the purpose for which they were 
 
 leased 161 
 
 Landlord may recover his damages if used for other purposes. . . . 161 
 
 Liability of tenant for making material alterations 161 
 
 Rights of several tenants in the demised premises 161, 162 
 
 Liability of one of several tenants for negligent use of water 
 
 pipes 162 
 
 Duty of landlord of apartment-house to keep water pipes in re- 
 pair 162 
 
 Liability of both landlord and upper tenant for injuries from 
 
 water 162 
 
 Right to surrender premises rendered untenantable by fire, etc. . 163 
 
 Rule at common law 163, 164 
 
 Remedies of tenant for breach of agreement to repair 164 
 
INDEX. 925 
 
 LANDLORD AND TENANT— (Continued) : Pase. 
 
 Underletting and assignment 165 
 
 Right of tenant to underlet or assign in the absence of covenants 
 
 to the contrary 165 
 
 Eight of action for breach of covenant against underletting, etc. . 165 
 
 Covenant not broken by change in firm of the lessees 165, 166 
 
 Covenant is broken by general assignment by lessee 166 
 
 Distinction between underletting and assignment 166 
 
 What is a sub-lease and not an assignment 166 
 
 What is an assignment and not a sub-lease 167 
 
 Lessor cannot sue undertenant upon lessee's covenant to pay rent, 167 
 
 Implied agreement by undertenant to pay rent to lessor 167 
 
 Liability of assignee of the term for rent 167 
 
 Presumption that party in possession occupies as assignee 168 
 
 Liability of assignee for benefit of creditors for rent 169 
 
 Requisites of assignment of a lease for a term exceeding one year, 170 
 Remedies of grantee of leased property, etc., for violation of 
 
 covenants in lease 170 
 
 Remedies of lessee of real property, etc., for breach of covenant 
 
 in lease 170 
 
 Obligation of person taking an assignment of a lease 170 
 
 Liability of an assignee of a lease 170, 171 
 
 Liability of the lessee who has assigned his lease 171 
 
 Sub-tenant may pay rent to lessor to protect his possession 172 
 
 Rent cannot be reserved out of chattels personal ' 172 
 
 When rent goes to heir of lessor and not to executor 172 
 
 Apportionment of rent 172 
 
 Surrender of the farm 172 
 
 Surrender defined 172 
 
 Mode in which the surrender of a term exceeding one year may 
 
 be made 172 
 
 Requirements of the statute of frauds 173 
 
 Surrender by operation of law 173, 174 
 
 By creating the relation of vendor and vendee 174 
 
 By a new lease of the premises 174, 176, 177, 178 
 
 Surrender of sealed lease may be by unsealed instrument 175 
 
 Surrender of written lease by parol 175, 178 
 
 Surrender of an unwritten lease by parol 176 
 
 Acceptance by landlord of key of demised premises 175, 176 
 
 Underletting or assignment not a surrender of original lease. .. . 178 
 
 Forfeiture of the lease 178 
 
 Forfeitures not favored in law 178 
 
 Must be a clear case before forfeiture will be decreed 178 
 
 By violation as to condition as to payment of rent 179 
 
 Forfeiture in part operates as forfeiture in toto 179 
 
 Mere words do not work a forfeiture of an estate for life or 
 
 years 179 
 
 Waiver of forfeiture by acceptance of rent 179 
 
 Eviction 179 
 
 Defined 179 
 
 May be actual or constructive 179 
 
 Bars lessor's action for rent 180 
 
 Requisites of a constructive eviction 180 
 
 Must be an actual expulsion from or abandonment of the prem- 
 ises 180 
 
 What will justify an abandonment of the premises..,. 180, 181, 182 
 
 185, 191 
 
 Waiver by tenant of his right to quit 181 
 
 Partial eviction 181, 184 
 
 Acts of landlord equivalent to an eviction 181, 182, 184 
 
 Continuance in possession after injury has .ceased 182 
 
 Acts not amounting to an eviction 183, 184 
 
 Recovery of rent accruing before dispossession 185, 186 
 
926 INDEX. 
 
 IiANDLOBD AETD TENANT— (Continued) : 
 
 Eviction — ( Continued ) : Pase- 
 
 No liability for rent of the quarter in which eviction occurred. . 185 
 
 Recovery of damages arising from eviction 185 
 
 The obligation to repair 186 
 
 Landlord not bound to repair in absence of agreement to repair, 186 
 
 Statutory exception in respect to flre-escapes 186 
 
 Duty of landlord of a flat to keep stairways in repair 186 
 
 Lessor does not warrant that a dwelling is tenantable 187 
 
 Lessee rents at his peril 187, 190 
 
 Want of repair no defense in action for rent 187 
 
 Oral agreement to repair not incorporated in written lease 188 
 
 Oral agreement to repair subsequent to the lease 188 
 
 No warranty that premises shall continue fit for purpose demised, 188 
 
 Remedy of tenant for breach of agreement to repair 18& 
 
 Duty to keep sinks and privies in order 189, 190' 
 
 Tenant not bound to rebuild building destroyed by fire 190 
 
 Knowingly renting a house unfit for human habitation 191 
 
 Remedy of adjoining proprietor injured by failure of landlord to 
 
 repair 191 
 
 Covenants to pay taxes, to renew, etc 191 
 
 Taxes no part of rent reserved in a lease 191 
 
 Liability of a tenant under a covenant to pay assessments 192 
 
 Right of successor of lessee to enforce covenant for renewal 192: 
 
 Breach of covenant to renew a lease 192, 193 
 
 Assignment by landlord of rent or interest in lease 193 
 
 Rights and liabilities of grantee of lessor 193 
 
 Emblements 193 
 
 Right of tenant to crop as emblements 193, 194 
 
 When purchaser under foreclosure entitled to crops 194 
 
 Fixtures Sl» 
 
 (See Fixtures.) 
 
 Right of removal as between landlord and tenant 819 
 
 Time of removal 820 
 
 What the tenant may remove i 821 
 
 liAW OF PtACE: 
 
 Governs as to validity and effect of contract in relation to chattels, 82, 749 
 
 793 
 
 LEASE: (See Landlord and Tenant.) 
 
 Effect of clauses in a lease giving a lien on chattels as security for 
 
 rent 70, 71 
 
 What constitutes a lease 140 
 
 May be oral or in writing 140 
 
 If for longer than one year must be in writing 140, 861 
 
 Contracts which are not a lease but mere agreements for a lease. . 141, 142 
 
 Occupation under a lease signed by lessee only. 142 
 
 By estoppel 145 
 
 Description or identity of the premises leased 147 
 
 Duration of the term 148 
 
 Occupation under a void lease 155 
 
 Implied agreement by lessor to give possession 159 
 
 Implied covenant for quiet enjoyment 15^ 
 
 Implied covenant for cultivation in manner required by good hus- 
 bandry ' ] 60 
 
 Covenants against underletting and assignment 165 
 
 Forfeiture of the lease 17» 
 
 No implied covenant or warranty that a dwelling is tenantable 187 
 
 Written lease presumed to contain entire agreement of the parties. . . 18*? 
 
 Rights of tenant on breach of covenant to repair 189, 19.? 
 
 Effect of covenant to surrender premises in good condition, etc ■ 190 
 
 Covenants to pay taxes to renew, etc 191 
 
INDEX. 927 
 
 LEGACY: Page. 
 
 When payable 759 
 
 When interest is payable on a legacy 759 
 
 Defined 437 
 
 May exist at common law or by virtue of a statute 437 
 
 May exist where recovery of the debt secured is barred by statute. . . 437 
 
 Particular and general liens 437 
 
 For work done on a, chattel at request of the owner 437, 439 
 
 Particular lien of workman, etc., for labor or money expended 43S 
 
 Of a shipwright for repairs 438 
 
 Of a printer on the paper to be printed 438, 439 
 
 Of a miller on grain ground at his niill 438 
 
 Of a sawyer on the logs in the mill-yard 438 
 
 Of a livery-stable keeper on animals boarded or trained .... 438, 440, 442 
 
 Of a, carrier for carriage of goods 414, 415 
 
 Of an innkeeper on the baggage of a guest 444, 445 
 
 Of a, boarding-house keeper or lodf;ing-house keeper 444, 445 
 
 Of a warehouse company or of a warehouseman 446, 451 
 
 Of factors 244, 447 
 
 Of insurance brokers 448 
 
 Of bankers 448, 449 
 
 Of attorneys 449, 450 
 
 Of a laundryman 45 1 
 
 Of a wharfinger 451 
 
 To what property the lien of a manufacturer, etc., extends 438 
 
 Possession necessary to give a lien 439, 440 
 
 Mere custody by one person, the right of possession in another, gives 
 
 no lien 440 
 
 Claim of lien must be consistent with contract for service 440 
 
 Farmer has no lien for pasturing horses 441 
 
 No lien for past debt on property received under new employment 441 
 
 Dealing upon credit inconsistent with claim of lien 441 
 
 Discharge of lien by agreement to look to personal credit of employer 
 
 for payment 441 
 
 Taking security for the debt secured bv the lien 441 
 
 Refusal to deliver goods upon grounds other than a lien 441 
 
 Claim of ownership of goods bars subsequent claim of lien 442 
 
 Claim of lien upon one ground bars claim of lien upon another 
 
 ground 442 
 
 Lien not lost by mere failure to mention it when goods are demanded . . 442 
 
 Claim of lien for an excessive amount 442 
 
 Claim of lien upon too many grounds 442, 443 
 
 Relation of employer and employed essential to existence of a lien .... 443 
 Carrier has no lien for compensation for delay of consignee in unload- 
 ing ear 443 
 
 Mere trespasser or wrongdoer cannot give a lien as against true owner, 443 
 Only persons authorized to contract for services can create lien there- 
 for 443 
 
 Of a keeper of a hotel, inn, boarding-house or lodging-house under the 
 
 statute 444 
 
 Innkeepers had no lien at common law 444 
 
 boarding-house keeper had no lien at common law 444 
 
 What constitutes a boarding-house within the statute 445 
 
 Lodging-house keeper had no lien at common law 445 
 
 Upon what property the lien a ttaches 444, 445 
 
 General liens 440! 
 
 Defined 437, 446 
 
 Upon what the risrht depends 446 
 
 Burden of establishing the right 44R 
 
 Proof of custom and usaffe 446 
 
 General lien of warehousemen 446, 451 
 
928 INDEX. 
 
 LIEN— (Continued) : 
 
 General liens — (Continued) : Page. 
 
 General lien of factors 447 
 
 Of insurance brokers 448 
 
 Of bankers 448, 449 
 
 Of attorneys and counselors 449, 450 
 
 Eight of workman to stipulate for a general lien 450, 451 
 
 Of laundrymen '. 451 
 
 Loss of lien by voluntarily parting with possession of the property. . . . 451 
 
 Change of possession acquired by fraud, etc 452 
 
 Right of lien is personal and cannot be transferred 452 
 
 Taking goods on execution in favor of the lienor 452 
 
 Mechanics' liens 453-466 
 
 (See Mechanics' Lien.) 
 
 Liens on vessels 46C 
 
 For what debts given 466, 467 
 
 For damages caused by another vessel 467 
 
 Notice of lien, and filing 467 
 
 Lien on monuments, gravestones and cemetery structures 468 
 
 Provisions of the statute in relation thereto 46S 
 
 Liens for labor on stone 468 
 
 For what labor given 468 
 
 Filing notice of lien 468, 469 
 
 Requisites of the notice of lien 469 
 
 Service of a copy of the notice 469 
 
 Action must be brought to enforce lien within three months 469 
 
 Liability of owner when contract was with contractor 469 
 
 Discharge of the lien 469 
 
 Liens for the services of stallions 470 
 
 Enforcement of liens on personal property by sale 470 
 
 Remedy provided by the Lien Iiaw not exclusive 471 
 
 What is requisite to give a right to sell under the statute 471 
 
 Notice to be served upon the owner and its contents 471 
 
 Mode of sale 472 
 
 Publication of notice of sale 472 
 
 Redemption by owner before sale 472 
 
 Disposition of the proceeds of sale 472, 473 
 
 LOAH: (See Bailment.) 
 
 Gratuitous loans 363 
 
 LOCATIO: 
 
 Letting and hiring of work 383 
 
 LODGING-HOUSES : 
 
 Distinguished from inns 394 
 
 Lien of lodging-house keeper 444, 445 
 
 LOSSES: 
 
 Agreement to share in losses as a requisite of a partnership 304 
 
 Division of profit and loss between partners 314 
 
 LOST BILLS AND NOTES: 
 
 No action would lie on lost negotiable uatter at common law COS 
 
 Statutorv provisions as to recovery upon lost negotiable paper 604 
 
 Undertaking to be given by the plaintiff 604, 607 
 
 Form of the undertaking 605 
 
 Statut" does not apply to paper destroyed intentionally 606, 607 
 
 No undertaking required in case of accidental destruction 607, 609 
 
 Proof on the trial 600 
 
 Proceeding's to charge the indorser of a lost negotiable note 608, 600 
 
 Protest of lost bills 609 
 
 Nitice of loss, and to stop -Davment 609 
 
 Recovery upon lost non-negotiable paper 603, 606 
 
INDEX. 929 
 
 LtTNATIC: Page, 
 Incapacity to contract ; 1 
 
 Revocation of agency by principal becoming a lunatic 274 
 
 MANDATUM: (See Bahment.) 
 
 Nature of the bailment 357 
 
 MARBIEB WOMEN: 
 
 Capacity to contract under the present statutes 5 
 
 Services rendered for supposed husband under a void marriage 19 
 
 May act as agent for husband or for third parties 195 
 
 Refusal by wife to deliver property, not a refusal by husband 195 
 
 MASTER AND SERVABTT: (See Labor.) 
 
 Part performance of contract to work for a specified time 40 
 
 Sickness or disability of employee excuses non-performamee 41 
 
 Death of either party terminates employment 41 
 
 Occupation of servant of house of master not that of a tenant 144 
 
 Power of servant to warrant on a gale for the master 253 
 
 Liability of master for torts of agent 255 
 
 MECHANICS' LIEN: 
 
 Eight of lien given by the Lien Law 453 
 
 Procedure for the enforcement of the lien given by Code of Civil Pro- 
 cedure 453 
 
 Jurisdiction of a iustice's court to enforce the lien 453 
 
 To whom, for what, on what, and against whom the lien is given 453 
 
 Definition of the terms used in the statute 454, 455, 456 
 
 Consent of the owner to the doing of the work or furnishing of 
 
 materials 455 
 
 Consent may be implied 455 
 
 What will not amount to consent 455, 456 
 
 Extent of the lien given by the statute 456 
 
 Liens for public improvements 456 
 
 Liens upon railroads 456 
 
 Effect of attempts to evade the statute by advance payments, etc., 457, 458 
 Statement of terms of contract, etc., to be punished by owner on de- 
 mand 457 
 
 Penalty for refusal to furnish such statement or for false statement. . 457 
 
 Lien becomes operative from time of filing notice of lien 458 
 
 Requisites of the notice of lien 458, 459 
 
 Verification of the notice 459 
 
 Effect of untrue statement of facts in the notice 459, 460 
 
 Error in statement of amount 460 
 
 Notice need not be signed if name of lienor appears 460 
 
 Failure to state the name of the true owner, etc 460 
 
 Eilin? notice of lien 460 
 
 Time of filing 460 
 
 Place of filing 460 
 
 Entry in lien docket 460 
 
 Lien not affected by death of owner before filina; 461 
 
 Lien filed after expiration of time limited is void 461 
 
 Filing where lien is for public improvements 401 
 
 Service of copy of notice of lien upnn the owner 461 
 
 Priority of lien over conveyance, judgment or other claim 462 
 
 Over advances made on the contract 462 
 
 Priority as between several lienors 463 
 
 Assignment of the lien, and its effect 463 
 
 Assignment of contract, or of money due or to become due thereafter, 463 
 
 Filing of contract and assignment 463, 464 
 
 Duration of the lien 464 
 
 Order co^itinuing the lien 464, 465 
 
 Modes of dischargin"- the lien 465 
 
 59 
 
930 INDEX. 
 
 MECHANICS' LIEN— (Continued) : Page. 
 
 Execution, acknowledgment and filing of cqntract for a building loan, 465 
 
 Mechanics' lien law to be construed liberally 466 
 
 Substantial compliance with the statute is sufficient 406 
 
 MEMORANDUM: 
 
 Sufficiency of memorandum of agreement to satisfy statute of frauds, 726 
 
 86D 
 MONUMENTS: 
 
 Lien given by statute on monuments, etc 468 
 
 MOETGAGEE: (See Chattel Mortgage.) 
 
 Title of mortgagee after default in payment of chattel mortgage, 76, 79 
 
 Rights of a mortgagee in a chattel mortgage 7!) 
 
 Right of mortgagee to maintain action on policy of insurance 801 
 
 Right to fixtures as between mortgagor and mortgagee 825 
 
 MORTGAGOR: (See Chattel Mortgage.) 
 
 Rights of mortgagor who has given a mortgage of chattels 72 
 
 Right to maintain action upon an insurance policy 801 
 
 Rights in fixtures as between mortgagor and mortgagee 825 
 
 MUNICIPAL CORPORATION: 
 
 Territorial divisions of the state included in the term 276 
 
 Act for the protection of purchasers of its bonds 219 
 
 MUTUALITY: 
 
 Essential to executory contracts 21 
 
 Need not exist at inception of contract , : 21 
 
 MUTUUM: (See Bailment.) 
 
 Nature of the bailment 363 
 
 NAME: 
 
 Partnership agreement may be valid though no name of firm is agreed 
 
 upon 311 
 
 Statutory limitation upon right to use words " and Company " or " & 
 
 Co." 311 
 
 Who are protected by this statute 311 
 
 Statutory provisions as to carrying on business under assumed name, 312 
 When the name of a partner cannot be used as the firm name 313 
 
 NEGLIGENCE: 
 
 Liability of principal for negligence of his agent 254 
 
 Liability of agent to principal for loss through negligence 262 
 
 Liability of a corporation for negligence of its agents 291, 292 
 
 Partner is liable for negligence of his co-partner or servant 338 
 
 Degrees of negligence 349 
 
 When the question of gross negligence is a question of fact 362 
 
 Liability of pledgee for negligent loss of pledge 376 
 
 How far a common carrier may contract against liability for negli- 
 gence 433 
 
 NEGOTIABLE INSTRUMENTS: (See Bill of Exchange, etc.) 
 
 Governed by "Negotiable Instruments Law" and the law merchant, 511 
 
 General principles and definitions 511 
 
 Parties to negotiable instruments 514 
 
 Form and requisites of negotiable instruments 515 
 
 Eorm of a bill of exchange 518 
 
 Form of negotiable promissory notes 519, 520 
 
 Requisites as to negotiability 515 
 
 Specifying payee or drawee 521 
 
 The promise to pay 523 
 
 Writing, signing, sealing, etc 531 
 
 Delivery ^. 535 
 
INDEX. 931 
 
 NEGOTIABLE INSTBUMENTS— (Continued) : Page. 
 
 Incomplete negotiable instruments 537 
 
 Filling blanlcs 537 
 
 Unauthorized negotiation of incomplete instrument 539 
 
 Cheeks 539 
 
 Bills of exchange in a set 542 
 
 Bills and notes not negotiable 544 
 
 Chattel notes 545, 546, 549 
 
 Orders for goods 547 
 
 Consideration 552 
 
 Guaranty of bills or notes 562 
 
 Negotiability of the contract of guaranty 563 
 
 Negotiation of bills and notes 565 
 
 Indorsement of bills and notes 565 
 
 Acceptance of bills 574 
 
 ' Presentment of bills of exchange for acceptance 577 
 
 Proceedings on non-acceptance 581 
 
 Presentment of negotiable instruments for payment 581 
 
 When due and payable 585 
 
 Notice of dishonor of a bill or note 587 
 
 Protest of bills of exchange 592 
 
 Rights of the holder 594 
 
 Discharge of negotiable instruments 597 
 
 Payment by bill or note 598 
 
 Lost bills or notes and actions thereon 603 
 
 How far bills of lading are negotiable 684, 685 
 
 NEGOTIATION: i 
 
 Of bills and notes 565 
 
 NOTICE: 
 
 Officer indemnified is not obliged to give notice of suit 55 
 
 Effect of failure to give such notice 55, 490 
 
 Effect of failure to defend after such notice 504 
 
 Purchaser with notice of unfiled mortgage not a purchaser in good 
 
 faith 93, 112 
 
 Notice to quit 157 
 
 When notice to agent is notice to his principal 246 
 
 When notice to a director is notice to the corporation 295 
 
 Publication of notice of dissolution of a partnership, when sufficient, 343 
 
 When actual notice of dissolution must be given 343 
 
 Of sale, etc., by vendor after default on conditional sal« 482 
 
 Of acceptance of a proposed suretyship, when necessary 487 
 
 Effect of disregard by creditor of notice by surety to collect 492 
 
 Notice to principal not always notice to surety 505 
 
 Of dishonor of a bill or note 587 
 
 Of assignment, when necessary to protect the assignee 633 
 
 Notice of loss under fire insurance policy 809 
 
 Notice to insurer of other insurance 813 
 
 Of sale of property pledged 373 
 
 By innkeeper, etc., of a safe for de])osit of valuables 400 
 
 Of mechanic's lien 458 
 
 Of assignment of a mechanic's lien 463 
 
 Of sale of chattels under the Lien Law 471 
 
 OKDEKS: 
 
 For the delivery of goods, acceptance of 517 
 
 PXBENT AND CHILD: 
 
 When no promise to pay for services will be implied between 18, 19 
 
 Stepfather not bound to support step-children 19 
 
 When parent not liable for support of his child 10 
 
932 INDEX. 
 
 PARTIES: Page. 
 
 To contracts 1, 4 
 
 Must have legal capacity to contract 4 
 
 Joint or several liability of parties 5 
 
 Assent of the parties 30 
 
 To bonds 49 
 
 To chattel mortgages 59 
 
 To copartnership agreements 298 
 
 To contracts of suretyship 483, 484, 485 
 
 To bills of exchange and promissory notes 512, 513, 314 
 
 To gifts ; 611 
 
 PAROL EVIDEETCB: (See Evidence.) 
 
 PARTIAL PAYMENT: 
 
 When and where not a consideration for a promise 9 
 
 Of debt secured by mortgage after default 77 
 
 Of the purchase money removes sale from statute of frauds 732 
 
 Rule for the computation of partial payments 763 
 
 PARTNERSHIP: 
 
 Statutory definition of a partnership 298 
 
 Partnerships may be general or limited 298 
 
 Who are partners 293 
 
 Ostensible partners 298 
 
 Nominal partners 298 
 
 Dormant partners 298, 316 
 
 Secret partner 316 
 
 Ownership of the partnership property 298, 299 
 
 Partnership is a tenancy in commo7i but every such tenancy is not a 
 
 partnership 299 
 
 Mere community of interest does not create a partnership 299 
 
 Agreements to form a partnership and agreements creating a part- 
 nership 299 
 
 Who may enter into a contract for a partnership 300 
 
 Infant partners 300 
 
 Number of partners not limited by law 301 
 
 Members of joint stock associations liable as partners 301 
 
 No person can become a partner without consent of all 302 
 
 Purchase of partner's interest does not make purchaser a partner . . . 302 
 Assignment for benefit of creditors does not make creditors partners, 302 
 
 Test of a partnership is the intention of the parties 302 
 
 Sharing in profits as a test of partnership 303, 304 
 
 Interest in profits as a compensation for services, etc 303, 304 
 
 Liability as partners to third persons 304 
 
 Persons not partners between themselves may be liable as such to 
 
 others 305 
 
 Participation in profits as a return for capital advanced 306 
 
 Liability as a partner from permitting use of name 306 
 
 Liability of one holding himself out as member of a firm. . . 306, 307 
 
 Presumed liability of each member of a firm 307 
 
 Dealings with notice of restricted liability of a partner 307 
 
 What is not a partnership as to third persons 308 
 
 Agent paid a share of gross profit's, not a partner 308, 309 
 
 What is a tenancy in common and not a partnership 309 
 
 Form of the partnership agreement 310 
 
 May be by parol, or in writing, sealed or unsealed 310 
 
 Parol agreement for a longer period than one year creates part- 
 nership at will 310 
 
 Agreement should be reduced to writing 310, 311 
 
 Name of the firm 311, 317 
 
 Unlawful use of the name of a person or the words " and com- 
 pany " 311 
 
 Statutory provision for protection of those giving credit only 311 
 
INDEX. 933 
 
 PABTNERSHIP — (Continued) : 
 
 Form of the partnership agreemen't — (Continued) : Page. 
 
 Statutory provisions as to carrying on business under an assumed 
 
 name 312 
 
 Limitation of the right to use name of partner as the firm name, 313 
 Action for breach of agreement to form a copartnership 313 
 
 To what business the partnership extends 313 
 
 Division of profits and losses 314 
 
 Law presumes they are to be divided equally 314 
 
 Parties presumed to be equally interested in partnership funds. . 314 
 
 Agreements for unequal division of the profits 314, 315 
 
 Partner may stipulate for exemption from losses 313 
 
 No partnership where there is no joint interest in the profits .... 316 
 
 Retiring partner 317 
 
 Liability for continuing to share in the profits 317 
 
 Liability to creditors of the old firm 317 
 
 Agreements by some of the partners to assume firm debts 317 
 
 Notice of retirement and eflfeut of omission to give notice, 317, 319 
 
 Continued use of the name of the retiring partner 318 
 
 How notice of dissolution must be given 318 
 
 Effect of allowing unliquidated interest to remain in the business, 318 
 Relations between partners when one takes the property and as- 
 sumes the debts 319 
 
 Effect of taking the individual note of the partner assuming the 
 debts 319 
 
 Survivorship 320 
 
 Partners are joint tenants in stock in trade without right of sur- 
 vivorship 320 
 
 Interest of each partner in the partnership property 320 
 
 Eights of the survivor on death of partner 320 
 
 Duty of survivor to representatives of deceased partner 320 
 
 Law allows survivor no pay for closing up firm business 321 
 
 Eight of representatives of deceased partner to require survivor to 
 
 account 321 
 
 Survivor cannot bind representatives by contract 321 
 
 Liability of survivor for losses and to account for profits 321 
 
 Legal nature and incidents of lands purchased with partnership 
 
 funds , 321, 322 
 
 Property in the good will of ihe business 322 
 
 Duties and liabilities of purchaser of interest of survivor 322 
 
 Limited partnership and special pa rtners under the statute 323 
 
 Statutory provisions as to limited Dartnerships ...,'. 323, 324 
 
 Joint-stock companies 324 
 
 Contracts and agreements between the parties 325 
 
 Liability of the members 325 
 
 Subscription to articles of association 325 
 
 How the association differs from a corporation 325 
 
 Dissolution . . .-. 325, 326 
 
 Individual liability of the members 326 
 
 Suits by a member against the association 326 
 
 Statutory provision as to the articles of association 326 
 
 Actions brought by or against ihe president or treasurer 326 
 
 Eights, duties and liabilities of partners 327 
 
 Dutv of a partner to devote himself to the interests of the firm, 327 
 
 Ouffht not to engage in any other business 327 
 
 Not entitled to compensation except by share in profits 327 
 
 inrreement may provide for compensation 328 
 
 Partner cannot bind firm bv acts outside firm business 328, 329 
 
 Fntire firm bound by act of a partner in the firm business 328 
 
 Oneral powers of a partner in respect to firm business. . . . 328, 329 
 
 Iririnrsement of accommodation paper 329, 330 
 
 Liability of firm on note in firm name but not in firm bisiness, 330 
 
 , 331, 332 
 
934 INDEX. 
 
 PABTNERSHIP — (Continued) : 
 
 Eights, duties and liabilities of partners — (Continued); Page. 
 
 Partner not authorized to bind firm by guaranty of debt of third 
 
 person 333 
 
 What guaranties are or are not binding on the firm 333 
 
 Indorsing notes of third person given in exchange for firm notes, 333 
 
 Partner may give receipt in name of the firm 333 
 
 Admissions of a partner as evidence against tlie firm 334 
 
 Ratification by firm of unauthorized act of a partner 334 
 
 Partner cannot bind firm by agreement under seal 334 
 
 Partner may assign chose in action belonging to the firm 33f> 
 
 Compounding for a partnership debt 335 
 
 All the partners must Join in a submission to arbitration 335 
 
 One partner cannot bind firm by confession of judgment 335 
 
 Power to assign partnership property for payment of firm debts . . 33(1 
 Insolvent partner may devote his individual property to pay- 
 ment of firm debts 336 
 
 Insolvent partner must respect statute as to preferences 336 
 
 Firm property cannot be assigned to pay individual debts. . . 336, 337 
 
 Firm may make preferences among its creditors 337 
 
 Partner may transfer all of firm property to a creditor of firm, 337 
 
 Fraudulent assignments of copartnership property 881 
 
 Conveyance by one partner of firm real property 337 
 
 Partner cannot sell firm property to himself 230 
 
 Pledge of partnership property for a firm debt 337 
 
 Insurance of partnership property by single partner 801 
 
 Liability of partner for f raiid of copartner 338 
 
 Liability of partner for negligence of employee 338 
 
 Firm liable on warranty made by one partner 338, 339 
 
 Concealment of firm interest on sale of firm property 339 
 
 Proof of partnership in action against the firm 839 
 
 Admissions of a partner may be given in evidence 339 
 
 Partnership debts must be first paid from firm property 339 
 
 Dissolution of the partnership 339 
 
 Partnership at will may be dissolved at pleasure of a partner. . 339 
 
 Dissolution may be implied from circumstances 340 
 
 Damages recoverable for dissolution before the time limited 340 
 
 Dissolution will not operate retrospectively. 340 
 
 Death of partner effects a dissolution 340 
 
 Dissolution by war between countries in which partners reside.. 341 
 
 Dissolution by insanity of a partner 341 
 
 By bankruptcy of the firm or of a partner 341 
 
 Rights of assignee of bankrupt partner 341 
 
 Sale of interest of partner under an execution 341 
 
 By assignment bv partner for benefit of his creditors 341 
 
 Rights of assignee of partner 342 
 
 Ri2;hts of partners after dissolution 342, 344 
 
 Effect of failure to give notice of dissolution 318, 343 
 
 Dissolution does not discharge from liability for firm debts 343 
 
 Revival of debts barred by statute of limitations 344 
 
 Actions, how brought after dissolution 344 
 
 Actions by partners against each ctlier 344 
 
 When no suit at law will lie in favor of one partner against a 
 
 copartner 344, 345 
 
 Suits by one partner against another upon implied promise, 345, 346 
 
 For conversion of partnership assets 346 
 
 For receiving money without right after dissolution 346, 347 
 
 To recover amount paid by partner in excess of his share 347 
 
 On promise to pay balance found on settlement 347 
 
 For breach of copartnership agreement 347 
 
 On promise to pay for extra services rendered for the firm 347 
 
 By one firm against another having a common number 347 
 
 Partnership cannot be proved by general reputation 348 
 
INDEX. 935 
 
 PARTNEBSHIP — (Continued) : Page. 
 Admission by one partner in the absence of the other not evidence. . . 348 
 Presentment of negotiable instrument to partners for payment 583 
 
 PATENT RIGHT: 
 
 Requirements of the statute as to notes given for patent right 596 
 
 PAYMENT: 
 
 I'ayment upon a debt before due as a consideration for a promise 9 
 
 Part payment of a debt due no consideration for a promise 9 
 
 Failure to specify time of payment makes mortgage due immediately, 73 
 
 97 
 Part payment of mortgage after default does not put title in mort- 
 gagor 77 
 
 Extending time of payment discharges surety 494 
 
 Presentment of negotiable paper for payment 581 
 
 Payment by bill or note 598 
 
 When the giving of a note is not regarded as a payment 598 
 
 Giving of a bill or note by debtor does not extinguish the debt. . . 599 
 
 Acceptance by creditor of bill or note of a third person 599 
 
 Presumption from receipt of bill, note or check on precedent debt, 599 
 Presumption from receipt of such instrument at time of contract- 
 ing debt 599 
 
 Receipt of guaranteed bill, note or check at time of creation of 
 
 the debt 600 
 
 Effect of taking note of some of several joint debtors 600 
 
 Effect of taking note of one of several partners 600 
 
 Acceptance of check given " in full payment " 601 
 
 Receipt of negotiable note extends time of payment of original 
 
 demand 601 
 
 Agreement to accept note of third person ■who becomes insolvent, 602 
 
 Duty of a party receiving bill or note of third person. 602 
 
 Forged negotiable paper, no payment 603 
 
 PENALTIES: 
 
 How far by-laws imposing penalties are valid 289 
 
 PLACE, LAW OF: (See Law of Place.) 
 
 PLEDGE: (See Bailment.) 
 
 Distinction between a pledge and a chattel mortgage 63, 64 
 
 Mortgagor cannot so pledge as to impair rights of mortgagee 75 
 
 Transfer of a chattel mortgage as collateral, is a pledge 113 
 
 By a factor 221, 227 
 
 Nature of the bailment 368 
 
 Eights, remedies and liabilities of the parties to the contract 368-378 
 
 Possession of the property essential to a pledge 65 
 
 POSSESSION: 
 
 Of the property pledged essential to a pledge 65 
 
 Of mortgaged chattels by the mortgagor necessitates filing 73 
 
 Character of the possession by mortgagee required by statute 108 
 
 Of the vendor of chattels equivalent to an affirmation of title 717 
 
 POWERS: ] 
 
 Of agents tt 95 
 
 General powers of corporationa 282 
 
 PRESENTMENT: 
 
 Of bills of exchange for acceptance 577 
 
 Of negotiable instruments for payment , 581 
 
936 INDEX. 
 
 PRESTTMPTIONS: Page. 
 
 That the parties to a contract intended to hind representatives 47 
 
 Of fraud from continued possession of moi tj;a<!;ed property 109 
 
 That occupation of demised premises is as assig;nee of lessee lOB 
 
 Of an agent's authority from his acts 207, 208 
 
 That credit was given principal on purchase by ^ Itnown agent -25 
 
 Negotiable instrument presumed to be taken on credit of names 
 
 thereon 2(51 
 
 Against intent of carrier to contract for exemption from no'.'ligence, 433 
 
 That purchaser from fraudulent vendee purchased in pood faith 083 
 
 That partners are equally interested in partnership funds , . . . 314 
 
 PEINCIPAL AND AGENT: \ 
 
 Authority of an agent 195 
 
 Who may act as an agent 1 H5 
 
 Wife as the agant of her husband ] !)5 
 
 General agents, and their powers 196, 251 
 
 Special agents, and the limits of their authority 196, 205, 251 
 
 Person dealing with special agent must ascertain his powers 196 
 
 Persons deal with special agent at their peril 198 
 
 Power of agent to sell to warrant 196, 198, 253 
 
 Power to accept a bill for one sum will not authorize acceptance for 
 
 another 197 
 
 Authority to purchase a certain amount, not authority to purchase 
 
 less '. 197 
 
 Agent to solicit orders not authorized to receive payment 197, 213 
 
 Agent authorized to sell mortgage not authorized to foreclose 197 
 
 Authority to receive payment not authority to compromise 197 
 
 Agent authorized to deposit not authorized to draw 197 
 
 Authority of attorney to receive payment upon a mortgage 197 
 
 Authority to receive interest not authority to receive principal 198 
 
 Clerk has no authority to sign note in name of his employer 198 
 
 Authority of agent to make note on behalf of corporation 198 
 
 Powers implied from a general authority to do an act or acts 213 
 
 Mode of appointing an agent 199 
 
 Authority to execute a deed must be und3r seal 199, 211 
 
 Authority to sell and convey lands or to contract to sell 862 
 
 Officer serving process not the agent of the party 199 
 
 When a public agent becomes the agent of a party 200 
 
 Agent acting under a power of attorney 200 
 
 Notice that the agent is acting in excess of his powers 200 
 
 Person may be bound bv act of assumed agent 200 
 
 Apparent authority, when equivalent to actual authority 200, 201 
 
 Assumed authority of agent of railroad corporation 201, 202 
 
 Implied authoritv to si^n from omission to renndiate forgeries 202 
 
 Authority of clerk to siam name of firm implied from repeated acts. . . . 202 
 
 That a person is reputed to he an agent, no proof of agency 203 
 
 Authoritv to do an act inferred from nature of employment 203 
 
 What does not constitute apparent authority 204 
 
 Authority to sell and collect not authority to make deductions 205 
 
 Recovery from agent of money borrowed for county 205 
 
 Ratification of unauthorized contracts by agents of the State 206 
 
 Powers of trustees of school district as agents of the district 200 
 
 Transfer by agent in excess of power passes no title 206 
 
 Special agent for a particular line of business is a general agent 
 
 therein 206 
 
 Powers of an agent co-extensive with the business intrusted to him. . . 206 
 
 Responsibility of insurance company for acts, etc., of local agent 206 
 
 Presumption as to powers of general agent of foreign insurance com- 
 pany 207 
 
 Duties of incorporated companies in respect to control of acts of 
 agents 207 
 
IJTDEX. 937 
 
 PKINCIPAL AND AGENT — (Continued) : Page, 
 
 Presumption of authority of agent of a corporation acting openly at 
 
 its oflSce 207 
 
 When school district is estopped from denying legal employment of a 
 
 teacher 207 
 
 Undisclosed restrictions upon powers of general agent not eflFective. . 207 
 
 Facts from which assent to purchase by agent will be presumed 208 
 
 Acts of principal necessary to disaffirmance of purchase by agent. . . . 208 
 Presumption of authority of agent from general character of his acts . . 208 
 Presumption of agency from previous acts adopted and confirmed .... 208 
 Acceptance of benefits estops principal from denying agent's authority, 208 
 
 Subsequent ratification equivalent to prior authority 208, 210 
 
 Ratification must be with knowledge of the facts to be binding. . 208, 210 
 
 There must be an intention to ratify ' 209 
 
 Duty of principal to disavow unauthorized act of agent 209 
 
 Disavowal of acts of a mere volunteer 209 
 
 Ratification by acceptance of benefits 209, 210 
 
 Of unauthorized arbitration 209 
 
 Of a usurious loan 209 
 
 Of representations made 209 
 
 Ratification of a part of a transaction a confirmation of the whole. . . 210 
 
 Ratification of one act not ratification of a subsequent act 210 
 
 Alteration of sealed instrument under a parol authority 210 
 
 Contracts to be binding on corporation must be within power con- 
 ferred by charter 210 
 
 Directors cannot ratify acts in excess of corporate powers 210, 211 
 
 Parol ratification of an instrument under seal ;•.... 211 
 
 Duties of agents 211 
 
 To obey instructions of his principal 211, 215 
 
 Of carriers of goods to forward them as directed 211 
 
 Of factor to follow instructions as to sales 211, 212 
 
 In the absence of instructions, agent must exercise a sound dis- 
 cretion 213 
 
 Agent must be diligent in the discharge of his duties. 214 
 
 Liability of collection agents for loss occasioned by negligence. . 214 
 
 Agent bound to possess requisite skill and knowledge, 214 
 
 Skill and diligence required of agent to make investment 275 
 
 Diligence, care and judgment required of agent to make sales.. 215 
 
 216 
 
 Sales by agents on credit 215 
 
 Must act with sole regard to interests of his principal 215, 216 
 
 Agent must act in person and not by substitute 216 
 
 Agent cannot delegate his authoritv 216, 217 
 
 Agent cannot act for himself and for principal at same time .... 229 
 
 Agent employed to purchase cannot be the seller 229, 230 
 
 Partner cannot sell firm property to himself 230 
 
 Clerk in a store cannot sell to a firm of which he is a member. . . . 230 
 Agent taking convevance in his own name holds for his principal, 230 
 Agent cannot bind his principal where he is actinsr for himself. . . 231 
 
 Insurance agent cannot contract for insurance with himself 231 
 
 President of a bank cannot certify check drawn bv himself. . 232, 253 
 Principal may authorize agent to so act that he may reap a 
 
 benefit 232 
 
 The authority to so act must be clearly expressed 232 
 
 Same rules apply to acts of directors of corporations, etc 232, 233 
 
 Person cannot be agent for two opposite parties 233 
 
 Affent to collect a mortgage cannot be purchaser at sale 233 
 
 Person employed to purchase an estate cannot purchase for him- 
 
 self ■. ; 234 
 
 Asent to obtain a loan may see that lenders obtain valid security, 234 
 Undisclosed double agency of broker defeats claim for commis- 
 sions 231, 234 
 
 If double agency is known commissions may be recovered 235 
 
938 INDEX 
 
 PRINCIPAL AND AGENT— (Continued) : P««e. 
 
 Duty of agent to account 235 
 
 . Duty of collecting agent to pay over money collected 235 
 
 When a demand is necessary before action by the principal. . 235, 236, 237 
 Statement of sales of agricultural products by commission merchants, 236 
 When money is due to principal from factor or commission merchants, 237 
 Proceeds of sale by commission merchant are property of the principal, 237 
 Duty of treasurer to keep money of principal distinct from his own. . 237 
 
 Agent must obey instructions as to the mode of remitting funds 238 
 
 When money collected by an attorney for his client must be demanded 
 
 before suit 238 
 
 Notice to agent, when notice to his principal 246 
 
 Duty of agent to notify principal of facts affecting principal's in- 
 terest 246 
 
 Law presumes that agent has notified his principal 248 
 
 Corporations chargeable with knowledge of entries in corporate 
 
 books 248 
 
 Banking corporation chargeable with knowledge possessed by 
 
 cashier 246 
 
 Time of acquiring knowledge by the agent as affecting the rule. . 246 
 
 247 
 Knowledge not coming to agent in the course of his employment. . 247 
 
 Exceptions to the general rule 243 
 
 Liability of principal for acts of his agent 248 
 
 Principal liable for acts of agent within scope of apparent au- 
 thority 248 
 
 How far bound by acts of agent in excess of authority 249 
 
 General power of attorney to draw or indorse checks not author- 
 ity to overdraw 250 
 
 Kule that principal rather than innocent third persons must 
 
 suffer 250, 252 
 
 Persons dealing with agents of corporations bound to know extent 
 
 of their powers 251 
 
 Authority of agent must be proved in order to charge the princi- 
 pal 252 
 
 Liability of bank on check certified by cashier in violation of 
 
 duty ■ 252 
 
 Liability of the principal for the torts of his agent, 252, 254, 255, 257 
 
 Liability of principal on contracts made by agent 224, 261 
 
 Eight of principal to sue on contract made by agent. . 224, 225, 261 
 
 Person not a party to a note cannot be charged thereon 261 
 
 Authority of the agent, how exercised 257 
 
 Authority conferred on several must be exercised by all 257 
 
 Exception in case of public agents 257 
 
 Agent should execute authority in name of his principal 257 
 
 Proper mode of execution of papers by agent 257, 258 
 
 Execution of sealed instruments by agents 258 
 
 Note to bind a principal must be executed in his name 258, 259 
 
 Execution of instruments by agents of corporations 259, 260 
 
 Liability of the agent to his Drincipal 262 
 
 Por want of skill and diligence, causing loss 262 
 
 For improper investment of his principal's money 262 
 
 For failure to give notice of non-acceptance of a bill 262, 263 
 
 Agent not liable in tort for acts of omission 233 
 
 Collecting agent liable for act of attorney employed by him 263 
 
 Liable for failure to return goods on demand after revocation of 
 
 agency 264 
 
 Dealings in his own behalf in hostility to principal's interest. . . . 264 
 
 Rebate on bills paid by agent belongs to principal 264 
 
 Actions by agents on their contracts 264 
 
 Agent contracting in his own name for benefit of his principal 
 may sue 264 
 
INDEX. 939 
 
 PRINCIPAL AND AGENT— (Continued) : 
 
 Actions by agents on their contracts — (Continued) : Page. 
 
 Principal may sue on such contract 265 
 
 If the contract is under seal the agent only can sue 261 
 
 Compensation of agents 265 
 
 Eight to reimbursement for advances 265 
 
 Eight to reimbursement for costs, charges or damages incurred ... 265 
 May recover the value of the use of his property in proper ease . . 265 
 
 266 
 
 Liability of agents to third persons 266 
 
 Not generally liable on contract made for a known principal 266 
 
 Principal question is as to whom credit was given 267 
 
 Agent should disclose name of his principal to avoid liability. ... 267 
 Agent liable unless other party had actual knowledge of the 
 
 agency 267 
 
 Liability in damages if he makes an unauthorized contract 268 
 
 Grounds of liability of assumed agent 268, 271, 272 
 
 Agent not liable for entering into an unauthorized void contract, 269 
 Agent does not warrant that his principal has capacity to con- 
 tract 269 
 
 Agent contracting as such, may contract for personal liability. . . 269 
 Agent submitting to an arbitration in his own name, bound by 
 
 the award 269 
 
 Liability of agent neon contracts executed in his own name, 269, 270 
 Liability of agent for money mispaid to him for use of his prin- 
 cipal 270 
 
 How far payment over to principal nrotects agent receiving 
 
 money 270, 27 1 
 
 Payment to principal of money to which he was not entitled, as 
 
 a defense 279, 271 
 
 Agent of carrier not liable for refusal to deliver property before 
 
 payment of charges 271 
 
 Indorsement in official capacity by officer of corporation creates 
 
 no personal liability , 271 
 
 Agent purchasing at execution sale liable on his bid 272 
 
 Contract in name of agent cannot be changed to contract of prin- 
 cipal by parol testimony 272 
 
 Eemedy of third persons injured by failure of agent to perform a 
 
 duty owed to his principal 272 
 
 Termination of the agent's authority 272 
 
 By death of the agent , 272 
 
 By death of the principal 272, 273 
 
 By revocation of authority 273 
 
 Public agents 217 
 
 Liability on contracts made in behalf of government. ....... 217, 218 
 
 Personal liability of public officers 218 
 
 Statutory liability under act for protection of holders of coupon 
 
 bonds 219 
 
 Factors, brokers and commission merchants 219 
 
 (See Factors: Bkokees: Commission Meechants.) 
 
 Factors and brokers distinguished 219 
 
 Business of factors usually done by commission merchants 220 
 
 The factor's act and its application 220, 221, 222 
 
 Factor's responsibility for losses 222, 223 
 
 Eelation between a commission agent and his principal 227 
 
 Ownership of the specific proceeds of sales 227, 237 
 
 When a broker may properly act for two principals 234, 235 
 
 Eemittanee by foreign factor or commission merchant 236 
 
 Statute requiring statement of receipt and sales of agricultural 
 
 products 236 
 
 When the proceeds of sales are due from factor to principal 237 
 
 Commissions of factors, brokers, etc 239-244 
 
 Lien of agents, factors, etr . 24t 
 
940 IXDEX. 
 
 PBINCIPAI, AND StTRETY: (See Suketibs: Gitakantt, etc.) Page. 
 
 When the relation of principal and surety exists 483 
 
 How the relation may be created 483, 484 
 
 Consideration necessary to the contract of suretyship 483 
 
 Who are sureties '. 483, 484, 485 
 
 Liabilities of sureties 485 
 
 The obligation of a surety is measured by his contract 485 
 
 Contract cannot be extended by implication 485 
 
 Interpretation of the sureties' contract 485, 48(5 
 
 Notice of acceptance 487 
 
 Sureties in indemnity bonds 51, 487-491 
 
 (See BoKDS.) 
 
 Discharge of sureties 491 
 
 By delay of the creditor in proceeding against the principal .... 492 
 
 Taking other securities 493, 494 
 
 By extending the time of payment 493. 494, 495, 496, 497 
 
 By change or alteration- of the principal's contract 494 
 
 By surrender of collateral securities held by the creditor, 495, 496, 498 
 
 Eights of a surety against his principal 497 
 
 Implied promise by the principal to indemnify the surety 497 
 
 Right to benefit of collateral securities held by the creditor, 497, 498 
 Remedy of surety is by action for money paid for his principal. . . 493 
 
 Amount recoverable against principal 498, 499 
 
 Rights and liabilities of cosureties 499 
 
 Contribution 499, 500 
 
 Continuing guaranties 501 
 
 Rights of sureties against third persons 503 
 
 Guaranties of collection or of payment 506 
 
 ' Notice to principal not always notice to sureties 505 
 
 PEOPITS: 
 
 Sharing in profits and losses essential to partnership 303, 304 
 
 Taking share of profits renders party liable to third persons 306 
 
 Agent paid a share of gross profits not a partner 308 
 
 Division of profits between partners 314 
 
 PROMISSOET NOTE: (See Chattel Notes.) 
 
 Governed by " Negotiable Instruments Law " and the law merchant. . 511 
 
 Defined 512 
 
 Relation of the parties to the note and to each other 513 
 
 Parties to a note 513, 514 
 
 Capacity of the parties to contract 514 
 
 Parties primarily and secondarily liable 514, 515 
 
 Form and requisites of negotiable instruments 515 
 
 Must be in writing and signed by the maker 515 
 
 Writing includes print 517, 531 
 
 Mode of writing not material 532 
 
 May be on paper or other substitute 532 
 
 Signature may be by name in full or by initials 532 
 
 Signature by mark 532 
 
 When uncertain as to intent, signer deemed an indorser. . . . 532 
 
 Signing in a trade or assumed name 532 
 
 Only the persons whose signatures are on the note are liable, 532 
 
 Signature by agent 532, 533, 534 
 
 Liability of one signing as agent or in a representative char- 
 acter 533 
 
 Liability on notes signed by agents or officers of corporations, 533 
 
 Signature by " procuration " 534 
 
 Forged signatures 534 
 
 Seal does not destroy negotiability 534 
 
 Absence of revenue stamp does not invalidate note 534 
 
INDEX. 941 
 
 PROMISSORY NOTE— (Continued) : 
 
 Torm and requisites of negotiable instruments — (Continued) ! Page. 
 
 Must contain unconditional promise to pay a sum certain in 
 
 money 615 
 
 What constitutes certainty as to sum 516 
 
 What constitutes an unconditional promise . .-. 516, 525 
 
 ' Effect of promise to do an act in addition to payment of 
 
 money 516, S23, 525 
 
 Express promise not necessary, where promise may be im- 
 plied 523, 524 
 
 Due bills having the effect of formal notes 524 
 
 Guaranties to pay or to be accountable for a specified sum, 524 
 Promises to pay in money or goods at option of the holder, 524 
 Promise to pay in money or goods at the option of the 
 
 maker 527 
 
 Conditional promise renders note non-negotiable 526 
 
 Must be payable in money only 526, 527 
 
 Specifying the kind of money in which payment is to be 
 
 made 526 
 
 Must be payable on demand or at a fixed or determinable future 
 
 time 515 
 
 What notes are deemed payable on demand 517 
 
 What constitutes a determinable future time 516 
 
 May be payable in installments 527 
 
 Not negotiable if payable on a contingency 527, 528 
 
 Happening of the event on which payment depends 527 
 
 When payment is dependent on an event certain to occur.. 516 
 
 528 
 
 Notes payable after death of the maker 528 
 
 Must be payable to order or to bearer 515, 521 
 
 Notes payable to order, must be to a payee named or identi- 
 fied 517, 522 
 
 Notes deemed payable to bearer 517 
 
 Notes payable to an officer for the time being 517, 521 
 
 Notes payable to an officer named or his successor 521 
 
 Notes payable to either of two persons in the alternative . . . 522 
 
 Notes payable to the .order of fictitious persons..' 522 
 
 Leaving blank as to name of payee 526 
 
 Additions or omissions not affecting negotiability 516, 517 
 
 Omission of date 516, 519, 520 
 
 Ante-dated or post-dated notes 520 
 
 Omission to state that it was given for value 517 
 
 Addition of a seal 517, 534 
 
 Stating or omitting to state the amount in figures 538 
 
 Specifying place of payment 521 
 
 Designating fund from which payment is to, be made 530 
 
 Designating fund to be charged or debited, 516, 518, 529, 530, 531 
 Designating kind of money in which payment is to be made, 517 
 
 526 
 Statement that bonds have been deposited as collateral.... 53n 
 
 Instruments which may be treated as notes or as bills 518, 519 
 
 Form of a negotiable promissory note 519 
 
 Form of a joint and several note 520 
 
 Form of a note payable at a bank 520 
 
 Delivery of promissory notes 535 
 
 Presumptions as to delivery 535, 537 
 
 Note not dated considered dated as of the time of delivery, 519, 520 
 
 Note has no inception before delivery 535, 537 
 
 Conditional delivery 535, 536 
 
 Delivery upon condition that the maker should not be liable .... 654 
 Presumption of ownership from possession 537 
 
942 IXDEX. 
 
 PBOMISSOBY NOTE — ( Continued ) : Page. 
 
 Incomplete negotiable notes • . . . . 537 
 
 Implied authority of holder to fill blanks 537, 538 
 
 Negotiation of incomplete note without authority 539 
 
 Non-negotiable notes 544 
 
 May be assigned 545 
 
 Form of note not negotiable 545 
 
 Form of note payable in chattels 545 
 
 Enforcement of chattel notes 546 
 
 When and where chattel notes are payable 549-552 
 
 Consideration of notes 552 
 
 Question of consideration open between original parties .... 552, 553 
 
 Presumption of the existence of a valuable consideration 553 
 
 Necessity of alleging or proving consideration 553 
 
 Where the note is not negotiable 554 
 
 Liability of an accommodation party 554, 555, 561, 562 
 
 (See Accommodation Paper.) 
 
 Defense of want of consideration 554, 559, 560 
 
 Fraud in obtaining the note 559, 560 
 
 Inadequacy of consideration no defense to action on note 560 
 
 Guaranty of collection or of payment of notes 506, 562 
 
 Relation of the guarantor to the note 563 
 
 Negotiability of the contract of guaranty 563, 564 
 
 Guaranty passes to purchaser of the note 563 
 
 Who may sue on the guaranty 563, 564 
 
 Joinder of guarantor as a party defendant 565 
 
 Guarantor not entitled to notice of dishonor 565 
 
 Negotiation of promissory notes 565 
 
 Negotiation of incomplete note without authority 539 
 
 By delivery 565 
 
 By indorsement 565 
 
 Mode of indorsing promissory notes 566 
 
 The indorsement must be of the entire instrument 566 
 
 Special indorsement, or indorsement in full 566, 567 
 
 Indorsement in blank 566 
 
 Changing a blank indorsement into a special indorsement 566 
 
 Restrictive indorsement 567 
 
 Qualified indorsement 567 
 
 Conditional indorsement 567 
 
 Limit of liability of a special indorser 567 
 
 When the indorsement must be by all the payees 568 
 
 Indorsement by one of several partners 568 
 
 Indorsement of a note to or by a bank 568 
 
 Indorsement by person whose name is wrongly designated, etc. . 568 
 
 Indorsement by person in a representative capacity 568 
 
 Presumption that note was indorsed before overdue 569 
 
 Indorsement after dishonor 569 
 
 Striking out all indorsements except the first 569 
 
 Transfer of note payable to order without indorsement 569 
 
 Assignment of note payable to order 569 
 
 Assismee of note takes subject to equities 569 
 
 Liability of agent or broker negotiating note without indorse- 
 ment _ 569, 570 
 
 Reissue of a note negotiated back to prior party 570 
 
 Person signing other than as maker deemed an indorser 570 
 
 Liability of one not a party to note who signs in blank before de- 
 livery 570 
 
 Warranty by person negotiating note by delivery or qualified 
 
 indorsement 571 
 
 Warranty bv nerson indorsing without qualification 571, 572 
 
 Order of liability as between indorsers 573 
 
 Joint payees or indorsers deemed to indorse jointly and severally, 573 
 
INDEX. 943 
 
 FKOmSSOKY NOTE— (Continued) : 
 
 Negotiation of promissory notes — (Continued) ; Page. 
 
 Transfer of usurious note and rights of transferee 573 
 
 Indorsement of non-negotiable note by person not a party 573 
 
 Presentment of promissory note for payment 581 
 
 Not necessary to charge persons primarily liable i 581 
 
 Action against maker is a sufficient demand 581 
 
 Holder not bound to allege and prove demand at particular place, 582 
 
 Effect of readiness to pay at the place specified 582 
 
 Necessary to charge indorser 582 
 
 When presentment must be made 582 
 
 By whom it must be made 582 
 
 Place of presentment for payment 582, 583 
 
 Exhibiting note and delivery upon payment 583 
 
 Where the note is payable at a bank 583 
 
 When the maker is dead and no place of payment is specified. . . 583 
 
 When the note was made by a firm and no place specified 583 
 
 Where several persons not partners are liable on the note 583 
 
 Not required to charge indorser on note made for his accom- 
 modation 584 
 
 Omission of demand and notice not excused by insolvency of 
 
 maker 584 
 
 Excusing delay in presentment ; 584 
 
 Holder charged with default of agent .' 584 
 
 When presentment for payment is dispensed with 584 
 
 Waiver by indorser of demand and notice 584, 585 
 
 What constitutes dishonor, and the rights of the holder thereon, 585 
 
 When a note becomes due and payable ; 585 
 
 Days of grace abolished 586 
 
 Holidays and half-holidays : 586 
 
 Rule for computing the time when a note becomes due. ........ 586 
 
 Payment in due course, what is such payment 586 
 
 Notice of dishonor 587 
 
 Must be given to the indorser or he will be discharged'. 587 
 
 In what cases notice need not be given an indorser. 592 
 
 By whom given 587 
 
 When dishonored in the tiands of an agent 587, 588 
 
 Eequisites and sufficiency of the notice 588, 589 
 
 To whom given 589, 590, 591 
 
 Time within which the notice must be given 590 
 
 Notice by mail 590 
 
 To what place the notice must be sent 591 
 
 Waiver of protest waives presentment and notice of dishonor. . . 591 
 
 In what eases dispensed with 591 
 
 Excusing delay in giving notice 591, 592 
 
 Rights of the holder of a promissory note 594 
 
 Right to sue in his own name 594 
 
 Payment to holder in due course discharges the note 594 
 
 Who are holders in due course 594 
 
 Who are not holders in due course 594 
 
 Rights of a holder in due course 556, 595 
 
 Other holders take subject to defenses 595 
 
 When holder succeeds to title of a prior holder in due covirse, 595, 596 
 
 Everv holder deemed prim,a facie a holder in due course 595 
 
 Shifting of the burden of proof in case of fraud in inception of 
 
 the note 556, .595 
 
 Negligence of the holder in taking the note 595, 596 
 
 Donee takes subject to equities ._ ._ 596 
 
 Price paid by holder of a valid note is not material 596 
 
 Note purchased after maturity is subject to equities 596 
 
 Patent right notes 596 
 
 Notes dven for the purchase price of farm products for speculative 
 purposes 597 
 
944 INDEX. 
 
 PROMISSORY NOTE — (Continued) : Page- 
 Discharge of promissory notes 597 
 
 As to persons secondarily liable 597 
 
 Payment by party secondarily liable and rights of such party. . . 598 
 
 Renunciation by holder of his rights against a party 598 
 
 Intentional cancellation of the note by the holder 597 
 
 Unintentional cancellation, and burden of proof of the fact 598 
 
 Material alteration, and what alterations are material 598 
 
 Payment by note 598-603 
 
 (See Payment.) 
 
 Lost notes 603 
 
 At common law 603 
 
 Statutory provisions for recovery on a lost note 603, 604 
 
 Undertaking on the part of the plaintiff 004, 606, 607 
 
 Form of the undertaking 605 
 
 Statute applies only to negotiable instruments 606 
 
 Proof that the note was negotiable 606 
 
 Statute does not apply to notes deliberately destroyed 606, 607 
 
 Proof to charge indorser of lost note 608, 609 
 
 Giving notice of loss to all the parties to the note 609 
 
 PROOFS OP LOSS: (See Insubance.) 
 
 Duty of insured to furnish proofs of loss 811 
 
 PUBLIC OPFICBIl: 
 
 Not the agent of the party whose process he executes 199 
 
 Liability on contract i 218 
 
 PURCHASER: 
 
 Eights of purchasers in good faith of mortgaged property 93 
 
 Eights of purchaser from fraudulent vendee 660 
 
 Eight to fixtures 822 
 
 RAILROADS: (See Common Carrier.) 
 
 Liability for loss of baggage or goods on connecting lines 305, 432 
 
 Conditional sale of railroad equipment and rolling stock 475 
 
 Are common carriers 432 
 
 RATIFICATION: 
 
 Eatification of act of assumed agent equivalent to prior authority. . 208 
 
 Must be with knowledge of all the material facts 208 
 
 Evidence of ratification 208, 209 
 
 Eatification of part of unauthorized transaction, ratification of the 
 
 whole 210 
 
 Eatification of one transaction not a ratification of a subsequent one, 210 
 Authority by ratification extends back to time of original transac- 
 tion 210 
 
 Of unauthorized contract with officer of a corporation 287 
 
 Corporation cannot ratify an act in excess of its powers 287 
 
 REASSIGNMENT: 
 
 May be without writing 632 
 
 Original assignment need not be proved in action by original owner. . 632 
 
 RECEIPTOR: 
 
 Not liable without demand 355 
 
 Eeceiptor's agreement 435 
 
 RECEIVER: 
 
 In supplementary proceedings, power to impeach chattel mortgage.. 78 
 
INDEX. 945 
 
 RECITAL: Page. 
 Of a consideration in subscription paper does not bar proof to contra- 
 dict 23 
 
 Of a consideration in mortgage, wlien sufficient as proof of the fact. . Ill 
 
 BEDEMPTIOU: 
 
 Mortgagor may commence action to redeem at any time before fore- 
 closure 77, 102 
 
 Claiming right to redeem in action against mortgagor 78 
 
 KEFILING: 
 
 Of chattel mortgages 118 
 
 BENEWAI,: 
 
 Mortgage to secure original note, secures note given in renewal 101 
 
 Renewal notes tainted with usury of the original 783 
 
 Covenant for the renewal of a lease , 192 
 
 KENT: (See Landlord and Tenant.) 
 
 When due and payable in the city of New York 149 
 
 Possession precedes liability for rent 150 
 
 Dispossessing tenant for non-payment of rent 158 
 
 Not collectible after destruction of demised premises. 163 
 
 What wiU or will not free tenant from liability for rent 185, 186 
 
 HEPAIBS: 
 
 Duty to make repairs where premises are occupied by several tenants, 162 
 
 Remedy of tenant for breach of landlord's agreement to repair 164 
 
 The obligation to repair 186-191 
 
 BEQUEST: 
 
 For the rendition of services raises implied promise to pay 18 
 
 RESCISSION: (See Sale.) 
 
 Of contracts of sale 686 
 
 REVOCATION: 
 
 Of an agency 273, 274 
 
 Of gifts 618 
 
 REWARDS: 
 
 Offers of rewards, and right to the reward offered 24 
 
 SALE: (See Conditional Sales.) 
 
 What constitutes a sale 635 
 
 Intention of the parties that the title shall pass. 635 
 
 What is a bailment instead of a. sale 637, 638 
 
 Sales in gross 638, 63!) 
 
 Requisites of a valid sale 639 
 
 Parties having capacity to contract 639, 640 
 
 Must be a meeting of minds on all the essential matters 640 
 
 Must be an offer and unconditional acceptance 640 
 
 Bv agent, binds principal 641 
 
 Must be subieet-matter of sale 642 
 
 Property not in existence at time of sale ' 642, 643 
 
 Property must have an actual or potential existence 043 
 
 Construction of contrnets of sale 643 
 
 Wag-pring contracts 644 
 
 Intention to be collected from while writing 644 
 
 Tost wb"t'i'"- fTio r-nntrnct ' nv'>nited or executory.... 645, 647, 648 
 
 Sfllp of Toorlc tr, arrive 645, 646 
 
 Time of p"^''^ '+ 648 
 
 / ^ 60 
 
9 10 I^TDEx. 
 
 SALE— {'Continued) : Pa»e- 
 
 When title passes on contract of sale 648 
 
 Where the property is to be manufactured by the vendor 649 
 
 When the title will pass without delivery 649, 656 
 
 When the title will not pass before payment 649, 650, 656 
 
 Waiver of conditions 650, 651 
 
 Where some act of the vendor is required to complete delivery. . . 653 
 Upon a sale of a quantity of grain, etc., in a mass, 653, 654, 655, 656 
 
 Sale or return 657 
 
 Where the title rests upon such sales 658 
 
 Sales by persons without title 658 
 
 Thief cannot transfer title to stolen goods 658, 659 
 
 By conditional vendee 659 
 
 No person can transfer greater title than he has 653 
 
 Exception in ease of bank bills and negotiable paper 659 
 
 Effect of vesting another with the evidence of title 660 
 
 Purchase from fraudulent vendee 600 
 
 Delivery of the property sold 661 
 
 Mode of delivery depends upon contract and nature and situation 
 
 of property 661, 667 
 
 Of ponderous and bulky articles 661, 663 
 
 Of goods in warehouse, etc 661, 662 
 
 Of goods in possession of bailee of vendor 662 
 
 Refusal to receive excuses omission to tender delivery 002 
 
 Delivery to a carrier, when delivery to purchaser 664 
 
 Proving delivery conditional 665 
 
 Time of delivery 665, 666, 667 
 
 Partial delivery 666 
 
 Place of delivery 668, 669, 670 
 
 Amount to be delivered 666, 670, 671, 672, 673 
 
 Condition of the property delivered 673, 674 
 
 Sale of articles to be manufactured 675 
 
 When the title passes 675, 67(5 
 
 Delivery and acceptance necessary to pass the title 675, 676 
 
 Sale or delivery procured by fraud j, 677 
 
 No title passes if the vendor elects to rescind the sale 677, 680 
 
 Title is in fraudulent vendee until sale is rescinded 680 
 
 Eights of the defrauded vendee 677, 679, 680, 681, 688, 689 
 
 Sale procured by false and fraudulent representations 677 
 
 Purchase by insolvent 677, 678 
 
 When failure to disclose insolvency amounts to fraud 673 
 
 Evidence of declarations made to other persons to show fraudu- 
 lent intent 679 
 
 Right of defrauded vendor to follow the property 679, 680, 681 
 
 Rights of a bona fide purchaser from the fraudulent vendee 682 
 
 Rights of iona fide mortgagee or consignee who has made ad- 
 vances ^ 682 
 
 Rights of purchaser from such consignee 682 
 
 Presumption of good faith in purchasing from fraudulent vendee, 683 
 
 Bona fide purchaser from a thief gets no title 683 
 
 Bills of lading fraudulently obtained 684, 685 
 
 Sale of certificate of stock fraudulently or feloniously obtained. . 685 
 Sale of chattels tortiously obtained without delivery by owner. . 685 
 When a purchaser is put upon inquiry 683 
 
 Rescinding contracts of sale 686 
 
 Risrhts and remedies of the vendor when the vendee refuses to take 
 
 the goods 686, 687 
 
 Rescission when the vendee has obtained possession by fraud .... 688 
 
 When the contract of sale was procured by fraud 677, 686 
 
 Election of remedies by defrauded vendor 688, 689, 696, 697 
 
 Breach of warrajity no ground for rescinding sale 690 
 
 Party rescindinsr must act promptly 690 
 
 Restoration of benefits received under the contract rescinded, 686, 689 
 
 690. 691. 692. 694. 695 
 
INDEX. 947 
 
 SAXE — (Continued) : 
 
 Rescinding contracts of sale — (Continued) : Page. 
 
 When omission to return the property received is excused . . . 692, 69S 
 
 697 
 
 By an infant 694, 695 
 
 Where there is a total failure of title 695 
 
 Entire contract must be rescinded 695, 696 
 
 Of contract of sale or return 696 
 
 Defrauded party may elect to treat the contract as valid and en- 
 force it 696 
 
 When the goods were sold with a warranty 690, 696, 697 
 
 Action in equity for a rescission of the contract 697 
 
 Warranty on sales of personal property 696 
 
 (See Warranty.) 
 Distinction between breach of principal contract of sale and of col- 
 lateral warranty 700, 701 
 
 Acceptance of goods which were not as represented 701 
 
 The doctrine of caveat emptor 712 
 
 Purchaser not obliged to accept goods not in accordance with his order, 719 
 Want of title in the vendor, when no defense to action for purchase- 
 money : 719, 720 
 
 Duty,of vendor, with notice of suit, to indemnify his vendee 721 
 
 Sale of spurious goods by an auctioneer without warranty 721 
 
 Parol negotiations merged in written contract 721 
 
 Stoppage in transitu 722 
 
 Where the sale was on credit and vendor found to be insolvent. . 722 
 
 Origin and nature of the right 723 
 
 Who maj exercise the right 72:) 
 
 When the right ceases 72.3 
 
 Delivery that will defeat the right 72.'5 
 
 Where the goods are in a public store 72.) 
 
 How affected by the statute of frauds 726 
 
 (See Statute of Frauds.) 
 Sales of goods of the value of fifty dollars and upwards. . . . 726, 736 
 
 The object or purpose of the statute 726 
 
 Agreements that must be in writing and signed by the person 
 
 charged 726 
 
 Requisites of the memorandum of the agreement 727 
 
 The subscription to the memorandum 72S 
 
 The acceptance which will take the case out of the statute 730 
 
 Part payment which will have the same effect 732 
 
 Application of the statute to executory contracts of sale 735 
 
 Agreements held not to be within the statute'. 737, 738, 739 
 
 Bights and remedies of parties to contracts of sale 739 
 
 Where, by the terms of sale, the goods are to be paid for on de- 
 livery 740, 743 
 
 When the contract is silent as to the time of payment 740 
 
 When the goods are sold on credit 740 
 
 When the time of delivery and the time of payment are not the 
 
 same • ; '40 
 
 When the note of a third person is to be taken in payment 741 
 
 When the purchaser gives his note for the purchase price 741 
 
 When the vendor refuses to receive and pay for the goods . . 686, 687 
 
 744 
 When there is a breach by the vendor of his contract to deliver . . 744 
 Proof to sustain action by vendee for breach of contract to de- 
 liver 744, 745 
 
 Allegations and proof where a party has refused to perform 74,5 
 
 When demand of performance or tender of price not required 745 
 
 Of property by conditional vendor after default 481 
 
 Of property pledged to cut off rights of pledgor 372 
 
 Of property for the enforcement of a Uen 470 
 
943 IITDEX. 
 
 SATISFACTION": P»S^- 
 Contracts conditioned upon " satisfaction," etc. 134 
 
 SEAL: 
 
 Imports a sufficient consideration ', 33 
 
 Consideration of sealed contracts may be impeached '-9 
 
 Written sealed agreements considered 33 
 
 Bond must be under seal 4i) 
 
 Chattel mortgage need not be sealed 60, 62 
 
 Execution of sealed instruments by agents 258, 262 
 
 Of a corporation 283, 287 
 
 Seal does not destroy negotiability of instruments 531 
 
 SERVICES: (See Labor.) 
 
 SIGNATTTEE: 
 
 Place of signature to bonds, unimportant 49 
 
 To negotiable instruments 532, 570 
 
 SKILL: 
 
 Required of an agent 214, 215, 262 
 
 Kight of principal to its exercise 229 
 
 Responsibility of principal for want of skill of agent 254 
 
 Required of one undertaking a work of art 380, 391 
 
 Required of professional men 391 
 
 SPECIAL CONTRACTS: (See Conteacts.) 
 
 Special contracts to labor 126 
 
 STALLIONS: 
 
 Liens for services of stallions 470 
 
 STATUTE OP FRAUDS: 
 
 When sales of chattels of the value of (pSO or more are within the 
 
 statute 726 
 
 When the contract is deemed entire, though for a nimiber of articles, 735 
 
 736 
 
 When there must be a written memorandum of the agreement 72G 
 
 Object and purpose of the statute 720 
 
 Applies to sales of things in action 727 
 
 Requisites of the memorandum 727 
 
 Must show on its face the whole agreement so far as executory. . 727 
 
 Must show who are the contracting parties 72S 
 
 Entire agreement need not be contained in one writing 728 
 
 Several instruments may be construed together 72S 
 
 Subscription to the memorandum 728 
 
 Statement of the consideration 728, 829 
 
 Sales by brokers, and the memorandum of agreement thereon .... 729 
 
 Acceptance of part of the property to take the case out of the statute, 730 
 
 735 
 
 Must be both receipt and acceptance 730 
 
 Time of receipt and acceptance 730 
 
 Evidence of receipt and acceptance 731, 732 
 
 Acceptance and retention of bill of lading 732 
 
 Selection, separation and marking of part of a flock of sheep. . . . 732 
 
 Marking logs 732 
 
 Retention and use of the property 732 
 
 Promise to remove ponderous property and attempts to sell it. . 732 
 
 Question of acceptance for the jury 732 
 
INDEX. 949 
 
 STATUTE OF FBiATJDS— (Continued) : Page. 
 
 Part payment which will take a ease out of the statute 732 
 
 Time of making part payment 732, 733 
 
 Giving purchaser's note is not part payment 733 
 
 Crediting purchase price on precedent debt 733, 734 
 
 Payment may be in money or property 735 
 
 Payment to an agent of the vendor 735 
 
 The payment must be for the goods sold by the contract to be 
 
 enforced 735 
 
 Statute applied to sales of several articles at same time 735, 736 
 
 Agreements void in part and good in part 736 
 
 Application of statute to executory contracts of sale 730 
 
 Agreements not within the statute 737 
 
 For articles to be manufactured 737, 738, 733 
 
 For sale of wood to be cut from standing trees 739 
 
 Contracts of commission merchants upon del credere commission, 224 
 
 Expressing a consideration in the memorandum 728, 829 
 
 Decisions under former and present statutes 829 
 
 Mode of expressing consideration 830 
 
 In contracts of guaranty and suretyship 831 
 
 Parol evidence of a consideration 833, 834 
 
 Parol evidence in aid of the writing 833, 834 
 
 Contracts not to be performed within one year 834 
 
 Contracts within this branch of the statute 835 
 
 Agreement which may be performed within a year not within the 
 
 statute 836 
 
 Contracts of employment 836 
 
 Construction of the agreement 837 
 
 Miscellaneous examples of void agreements 838 
 
 Part performance within the year 841 
 
 Pleading the statute 842, 843 
 
 Contracts which may be performed within the year 836, 843 
 
 Oral contract for leasing of real property , 845 
 
 Performance limited upon the death of one of the parties 845 
 
 Promise to answer for the debt, default, or miscarriage of another . . 846 
 
 Original or collateral promises considered 846-851 
 
 Nature of the consideration ; 831 
 
 Stranger to the consideration 852 
 
 ■ Promise must be valid as between promisor and promisee 853 
 
 Promise must be in writing 853 
 
 When the promise is or is not within the statute 853-856 
 
 Question as to whom credit was given 856 
 
 Where there has been an abandonment of a contract and a new 
 
 one made _• •_ 857 
 
 Compliance with request of promisor as a consideration 858 
 
 Promises made on transfer of notes, etc. 859 
 
 Sale of an interest in lands, etc ;•.•••• ^^^ 
 
 Statute requiring a deed or conveyance in writing 861 
 
 Conveyance, and agreements to convey, distinguished.. 861 
 
 Authority of agent to sell and convey must be in writing 862 
 
 Authority to make agreement for sale may be oral 862 
 
 Evidence of authority of the agent 862 
 
 Enforcement of contracts made by agents 862 
 
 Verbal agreement to transfer property in payment of lands 863 
 
 What is deemed an interest in lands 863, 864 
 
 Agreements to purchase for the benefit of another 864 
 
 Contracts in respect to crops, trees, etc 866, 867 
 
 Contracts to pay in land, etc _. 867 
 
 Eight to recover back payments made on void contracts 868 
 
 Part performance of a void agreement 869 
 
 Eequisites of the note or memorandum under this branch of the 
 
 statute 869 
 
 Subscription to the memorandum 870 
 
 Agreements not within the "iatute 871, 872 
 
950 IXDEX. 
 
 STATUTE OP FEATJDS— (Continued) : I*"**- 
 
 Fraudulent sales, assignments, judgments, etc 872 
 
 Statute declaring such sales assignments, etc., void . . . 873, 874, 875 
 
 Fraudulent transfers of personal property 873, 874 
 
 Fraudulent transfers of real property 874, 875 
 
 Persons authorized by statute to impeach such transfer 875 
 
 Chattel mortgages void as against creditors, etc 112, 875 
 
 Bill of sale, etc.. void as against creditors 874 
 
 Assignments with preferences 877 
 
 Transfers made in contemplation of assignment 878 
 
 Proof of fraudulent intention 879, 880 
 
 When a general assignment is valid or otherwise 879 
 
 STATUTE or LIMITATIONS: 
 
 Partner, after dissolution, cannot revive debt barred by statute 344 
 
 Is a valid defense by a surety 509 
 
 STOCKS: (See Cokpoeations. ) 
 
 Stock corporations • 275, 276 
 
 Subscriptions for stock 277 
 
 Transfers of stock i 279 
 
 Obtaining certificate of stock by a felony or tort 685 
 
 No implied warranty as to value on sale of stocks 713 
 
 STOCKHOLDER: (See Coeporations. ) 
 
 Liabilities of stockholders 296 
 
 STOPPAGE IN TRANSITU: (See Sales.) 
 
 The right and its origin 722 
 
 SUBSCRIPTIONS: 
 
 When supported by a sufficient consideration 22 
 
 How far voluntary subscriptions are binding 22 
 
 For stocks 277 
 
 SUMMARY PROCEEDlNTJS: 
 
 Remedy given by the Code to eject tenant holding over , . 153 
 
 Notice to tenant in case of resort to this remedy 157 
 
 SURETIES: (See Guaeanty.) 
 
 When the relation of principal and surety exists 483 
 
 Contract of suretyship must be in writing and sub'scribed 483 
 
 Not necessary that the name of the surety should be in body of con- 
 tract 485 
 
 Consideration to support the contract 483, 831 
 
 How the relation of principal and surety may be created 483, 484 
 
 Indorsement of an accommodation note 484 
 
 Signing a note as a joint maker 484 
 
 Acceptance of a bill of exchange makes the drawer and indorsers 
 
 sureties 574 
 
 By one partner assuming the debts of the firm 484 
 
 Wife mortgaging her lands to secure debt of husband 484 
 
 Assumption bj' grantee of lands of payment of mortgage 484 
 
 Liabilities of sureties 485 
 
 Liability measured by the terms of the agreement 485 
 
 Contract of surety cannot be extended by construction 485 
 
 Contract to be construed strictly and favorably to surety 485 
 
 Ordinary rules of interpretation apply to the contract 485 
 
 Application of the principle of strictissimi juris 486 
 
 Words of severalty cannot be interpolated into joint contract. . . 486 
 
lADEX. 951 
 
 SURETIES— (Continued) : 
 
 Liabilities of sureties — (Continued) : Page. 
 
 . . Any alterutiou of the principal's contract discharges the surety.. 486 
 
 Notice of acceptance of a proposition to become a surety 487 
 
 Liability of sureties in indemnity bonds 487 
 
 (See Bonus.) 
 
 Discharge of sureties 491 
 
 Not discharged by mere delay of the creditor in prosecuting 492 
 
 By neglect to sue upon request 492 
 
 Not discharged by the taking of other security by the creditor, 493 
 
 494 
 Distinction between taking security as collateral and as a pay- 
 ment 49o 
 
 By release or surrender of securities held by the creditor. . 495, 49(i 
 By extending time of payment of the demand against principal, 493 
 
 494, 495, 496, 597 
 
 Taking new note payable at a future day 493, 494 
 
 ^ Extension of time for one day releases the surety 494 
 
 Actual injury to the surety by the extension not material. . 495 
 Agreement to extend time must be valid and on valid con- 
 sideration 496 
 
 Agreement must be with knowledge of the suretyship 496 
 
 Reservation of remedies against the surety 496 
 
 Usurious consideration for agreement extending time . . 496, 497 
 
 By alteration of the principal's contract 486 
 
 Eights of a surety against his principal 497 
 
 Implied promise of indemnity 497 
 
 May recover moneys paid on a judgment subsequently reversed, 497 
 
 Payment by surety before action against principal 497 
 
 Limit of the sureties' recovery against liis principal 497, 498 
 
 Eight of surety, on payment, to benefit of collateral securities 
 
 held by creditor , 497, 498 
 
 Eemedy of the surety on payment is by action for money paid. . 498 
 
 Surety may pay debt for which he is liable without suit 498 
 
 May recover against principal costs and expenses of a defense.. 498 
 
 Has no right to defend against a claim known to be just 498 
 
 Judgment by default not evidence of amount of principal's lia- 
 bility : '. 498 
 
 Eights of contribution between sureties 499 
 
 Origin of the right 499 
 
 On payment of a note 499, 500 
 
 Wliere the parties are bound jointly or severally 500 
 
 Where they become bound by different instruments or at dif- 
 ferent times 500 
 
 Knowledge of the contracts of other sureties not material to 
 
 the right 500 
 
 Eequisites of the right of contribution 500 
 
 Effect of promise of indemnity by cosurety 500 
 
 Effect of the release of securities held by a cosurety 500, 501 
 
 Surety suing for contribution must account for money, etc., re- 
 ceived 500 
 
 No subrogation as between cosureties to rights of creditor 501 
 
 Discharge of surety in bankruptcy releases him from contribu- 
 tion 501 
 
 Continuing guaranties ^ 501 
 
 Eights of sureties against third persons 503 
 
 How far bound by a judgment in suit between principal and cred- 
 itor 503, 504, 505 
 
 May set up usury as a defense 503 
 
 Not concluded by fabricated account of their principal 504 
 
 Eights as to notice of suit against principal 504, 505, 506 
 
 Guaranties of collection or of payment 506 
 
953 IKDEX. 
 
 SURETIES — ( Continued ) : Paee- 
 
 Statute of limitations as a defense in behalf of surety 509 
 
 Cannot revive debt against principal when barred by the statute... 509 
 
 SURRENDER: 
 
 Of the term created by a lease .•• 172 
 
 SURVIVOR: (See Partneeship. ) 
 
 Eights of the survivor or survivors of a copartnership 320 
 
 TAXES: 
 
 Covenants to pay taxes in a lease 191 
 
 TENANTS IN COMMON: 
 
 May sell or mortgage their property or interests 60 
 
 What is a tenancy in common and not a partnership 309 
 
 TENDER: 
 
 Of the money due on a mortgage will not reinvest title after default,77, 80 
 Refusal of tender after default and sale of mortgaged property not 
 
 conversion 80 
 
 Tender and acceptance of part of mortgage debt will not reinvest 
 
 title 100 
 
 Of delivery to vendee, when excused 662 
 
 Of bulky articles 667 
 
 THIEE: 
 
 Cannot transfer any title 658 
 
 TRESPASS: 
 
 How far principal is liable for trespass of agent 255 
 
 Liability of corporations for trespass of agent 290, 291 
 
 UNDERLETTING: (See Landlord and Tenant.) 
 
 Distinction between underletting and assignment 166 
 
 UNDERTAKINGS: 
 
 Substituted by the Code for many indemnity bonds 51 
 
 Undertaking given on appeal need not be under seal 56 
 
 No consideration necessary to uphold Code undertakings 56 
 
 Liability on undertakings given on appeal 57 
 
 Required in action upon lost negotiable paper 604 
 
 Form of such undertaking 605 
 
 USAGE: 
 
 Distinguished from custom 48 
 
 Not allowed to contradict what is plain in a contract 48 
 
 USURY: 
 
 Statutes prohibiting usury 765, 766, 767 
 
 Every contract intended to violate this statute is void whatever its 
 
 form 765 
 
 What constitutes usury 765, 767 
 
 Must be founded on the loan or forbearance of money 767 
 
 Must be a corrupt purpose or intent to take illegal interest, 767, 769 
 
 Must be a lender and borrower 767 
 
 Must be a piirpose to loan on usurious terms and to borrow on 
 
 such terms 767 
 
 Loans other than of money not within the statute 767, 779 
 
 WTiat is or is not a. loan 767 
 
 If the principal is put in hnzord there is no loan and no usury. . 767 
 Must be a certain gain exceeding the legal rate of interest, 768, 770 
 
INDEX. 953 
 
 USURY— (Continued) : 
 
 Whsut constitutes usury — (Continued): Page. 
 
 If the payment beyond legal interest is at option of borrower, 
 
 there is no usury 788 770 
 
 Both parties must be cognizant of the facts which constitute 
 
 usury 769 
 
 Ignorance of the law is no excuse 769 
 
 Agreements to pay interest on money subsequently advanced, 769, 770 
 
 Gifts from borrower to lender 769 
 
 Sharing in profits of copartnership by partner advancing the 
 
 capital 770 
 
 Sharing in profits by employee who contributes money and ser- 
 vices 770 
 
 Contracts for compound interest not usurious 771 
 
 Reserving compound interest against the will of the debtor. .... 785 
 
 Taking interest in advance 771 
 
 Loans or discounts by banks 771, 772 
 
 Compensation to factor for accepting and paying bills 772 
 
 Paynienit for trouble and services of the lender 773 
 
 Bonus paid agent of the lender 774 
 
 Incidental advantage to the lender 768, 775 
 
 Mistake in computing interest ....'.' , . 775 
 
 Eeeeiving advantage from difference in exchange ; . . . 776 
 
 Sales on credit 777 
 
 Charge for indorsement of notes 777 
 
 Exchange of notes and sale at a discount 778 
 
 Loans on condition that the borrower purchase property 780 
 
 Purchase of negotiable paper at a discount and recovery of face 
 
 value 780, 781 
 
 Sale at a discount of notes, etc., having no legal inception 781 
 
 Recovery upon valid original debt for which no usurious security has 
 
 been given 782, 783 
 
 Abandonment of usurious contract and making new contract... 783, 785 
 
 Renewal notes tainted with usury of originals 783 
 
 Collateral securities for usurious debt are void 784, 785 
 
 Agreements to pay more than lawful interest to prevent foreclosure, 784 
 Distinction between usurious premiums paid and agreed to be paid. . 784 
 
 Who may plead the defense of usury .-. 786 
 
 Only the borrower, or his sureties, heirs, devisees or personal 
 
 representatives '. 787 
 
 Right of surety to defend on this ground 503 
 
 Purchasers of mortgaged property 786, 787 
 
 Subsequent lienholders 788 
 
 Corporations and receiver of a corporation cannot 788 
 
 Sureties, guarantors or indorsers for a corporation 789 
 
 Judgment creditors 789 
 
 Who are estopped from setting up the defense 789-792 
 
 Contracts that usury shall not be pleaded are void 792 
 
 Lender cannot avoid his own contract on ground of usury 792 
 
 Rights of iona fide holder of a usurious note 792 
 
 How affected by the law of place 793 
 
 VESSELS: 
 
 Statute giving a lien upon vessels 466 
 
 WAIVER: 
 
 Of forfeiture by acceptance of mortgage debt and interest 100 
 
 Of carrier's lien by delivery to consignee 414 
 
 Of notice of dishonor of negotiable paper 591 
 
 Of protest 591 
 
 Of forfeiture of contract of insurance ,. . 806 
 
954 INDEX. 
 
 ■WABEHOtrSEMAlir: Pa«e- 
 
 Care required of a warehouseman -.- .-. . . 393 
 
 Proof necessary to charge him for loss of gfoods i 394 
 
 Lien of warehousemen 44G 
 
 WARRANTY: 
 
 Upon sales of personal property 697 
 
 Independent stipulations in all contracts of sale with a warranty. . . . 09'J 
 
 Breach of warranty no ground for rescinding contracts of sale C90 
 
 When the purchaser has an election between rescission and action for 
 
 breach 690 
 
 Action lies for breach of warranty even after sale by plaintiff without 
 
 warranty 697 
 
 Distinction between causes of action for fraud and for breach of war- 
 ranty 69S 
 
 Need not be expressfed in any particular form of language 699 
 
 Not necessary to the contract that the word " warranty" be used. . . . 699 
 
 What statements constitute an express warranty 699, 700 
 
 The intention to warrant or not to warrant not important 700 
 
 Interpretation of the language used by the vendor 700, 703, 704 
 
 Distinction between breach of principal contract of sale and of col- 
 lateral contract of warranty 700, 701 
 
 Words merely descriptive of the articles sold, and words constituting 
 
 a warranty 700, 701, 704, 705, 706 
 
 Executory contract of sale may be accompanied by a warranty 701 
 
 Bight of action for breach of express warranty survives acceptance of 
 
 the goods ' 701, 710 
 
 When no return or offer to return the thing warranted is necessary. . 701 
 
 702, 710 
 May relate to the quality, condition or character of the thing sold. . . . 702 
 
 Illustrations of warranties on sale or exchange of horses 702, 703 
 
 Assertions as to quality of the chattel sold 703 
 
 Expressions of opinion by the vendor 704 
 
 On sales of articles purchased for a known purpose 706 
 
 On sales of a manufactured article by the manufacturer.. 706, 707, 710 
 
 Must be made at the time of sale 707 
 
 If made after time of sale is without consideration 707 
 
 Does not ordinarily extend to open and visible defects 708, 709 
 
 May be so worded as to cover visible or known defects 708, 709 
 
 On the sale of food for consumption ^ 709 
 
 On the sale of provisions as merchandise 710 
 
 By person negotiating a bill or note 571, 573 
 
 Implied warranty 710 
 
 Implied warranty survives acceptance only as to latent defects 711 
 
 Not necessary that all the representations should be false if a part are, 711 
 
 Positive affirmation of a part, a warranty 711 
 
 Cannot be implied from payment of a sound price 712 
 
 Of goodness of the article sold, not implied ifrom custom or usage. . . 712 
 
 The doctrine of caveat emptor 709, 712, 713 
 
 On sales by sample 713-716 
 
 That goods shall be merchantable 716 
 
 On sale " with all faults " 717 
 
 Of title to the goods sold 717 
 
 On sale of a chose in action , 718 
 
 On transfers of negotiable instruments 571, 572. 718 
 
 No implied warranty of kind or quality as a general rule 719 
 
 Sale of spurious goods by auctioneer without warranty 721 
 
 Written bill of sale containing warranty merges parol agreements. . . . 821 
 May be an implied warranty, though contract of sale is in writing. . . . 721 
 
 Parol evidence of a warranty, when admissible 722 
 
 By agent of his authority to contract for his principal 208 
 
 Warranties in statements made on application for insurance 803 
 
 Liability of the firm on warranty of a partner 338 
 
 Power of agent to sell with a warranty 253 
 
I