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This action was commenced in the Cayuga county as to the injury, etc., as required by the insurance court, to recover damages for the conversion of a cow. company, but omitted to mention the second injury The defendant, among other things, demurred to com received about the 18th of September. Referee gave plaint on ground that complaint did not state that de- judgment for plaintiff for $236. Held, that the insurfendant was a resident of said county, etc. Held, that ance was good; that, failing to make out and deliver to confer jurisdiction on the county court the com a policy, the defendant might be liable either on the plaint must, upon its face, show that the defendant is agent's agreement to insure or upon his agreement to a resident of the county in which the action was com issue a policy. The measure of damages would be the menced, otherwise the court has not jurisdiction; that same in both forms of action. That, in the absence of the want of jurisdiction appears on the face of the any statutory provision requiring contracts of insurcomplaint within the meaning of section 144 of the code, ance to be in writing, they may be by parol. That it and the demurrer was the proper mode of presenting does not appear that the laws of Connecticut or New the defect. The order of special term overruling de York contain any provision prescribing the forin or murrer reversed, with leave to plaintiff to come in and manner of making contracts of insurance, and that, amend on payment of costs. Judge v. Hall.

therefore, a parol contract is valid, and that a lawfully

constituted general agent, in the absence of any limitaCOUNTY JUDGE.

tion on his power, might make a parol contract to Effect of new judiciary article on term of office.

insure. Rhodes v. The Passenger Issurance Co., of This action is in the nature of a quo warranto com

Hartford, Conn. menced and prosecuted to oust the defendant from the

2. That, had it appeared from the nature of the first office of county judge of Niagara county, and to install

injury on September 2d that the plaintiff would at the relator. Held, that for certain purposes the new

some time have become incapable of labor from it, it judiciary article of the constitution was adopted when

might be that the happening of the second injury about the State canvassers declared the result of the vote in

the 18th would not deprive plaintiff of the right to November, 1869; for other purposes the time of its

recover the damages sustained by him; but when it is adoption was when it went into effect, viz. : January 1,

shown that for sixteen days after the injury the plain1870; that defendant, having been elected in the fall of

tiff was able to labor, and that before he became 1869, was entitled to hold the office for the term four

incapable another and additional injury was sustained, years prescribed by the constitution of 1846, and that

it is impossible to hold that he ever becanie totally the new judiciary article did not affect him. Held,

incapable from the injury insured against. Judgment further, that the limitation of the new judiciary ar of referee reversed. Ib. ticle as to age, beyond which a judge cannot hold office, has no application to judges elected before the

MORTGAGE FORECLOSURE. first of January, 1870, and continued in office by the

1. Statutory foreclosure: error in note : when right to new judiciary article. The People ex rel. C. E. Davis

redeem barrcd. — Action to redeem certain property v. Gardner.

from a foreclosure sale. In July, 1811, Sawyer and EVIDENCE.

Alfred Hubbell acquired title to the land in question. 1. In an action for assault and battery, held, compe

On the 1st of December, 1816, they executed a morttent for defendant to prove threats on the part of the

gage to defendant to secure the payment of $7,000. In plaintiff "that he would beat defendant whenever the

February, 1818, they executed a mortgage to a bank in latter should furnish him with an excuse," on the

Rochester for $2,000, upon said premises, defendant ground that, in connection with the evidence of pre

agreeing at the time that the $2,000 mortgage should be vious difficulties between the parties, it would aid the

a prior lien to his. On the 12th of January, 1819, Alfred referee in arriving at a conclusion as to who was prob

Hubbell assigned all his property for the benefit of his ably the aggressor on the occasion of the affray.

creditors. On the 6th of January, 1851, the assignees of Murphy v. Dart.

Alfred Hubbell assigned their interest in the property 2. A witness who is asked whether he has ever been

to plaintiff, Alrick Ilubbell, who was a creditor of Alfred arrested for certain crimes has the right to explain

Hubbell. Proceedings to foreclose by advertisement why he was arrested; and, if his explanation involved

were commenced February 13, 1819, and premises were conversations with third persons, he was entitled to

sold on the 24th of May, 18-199, the sale having been posthave such conversations received in evidence. Ib.

poned from the 8th of May, 1819. This action was INSURANCE.

commenced on May 11, 1869. llell, that the object of 1. Accident insurance by parol. — Action to recover the statute for foreclosure by advertisement was to under a policy of insurance. Defendant, on the 2d of relieve the parties from the expense of a chancery suit, September, 1869, was a duly incorporated insurance and also to enable persons not learned in the law to company. One French was its agent at Auburn. On conduct such foreclosures, and that, therefore, the the day aforesaid plaintiff, on his way to the cars with construction of the statute should be liberal, and not his wife, met French and handed him fifty cents as technical. premium for insuring himself and wife for the term of After the notice of foreclosure and sale had been one day. French received the money and promised to published for nearly the required time, it was discovered make out a po as soon as he reached his office. that the bank mortgage was (lescribed as being for Plaintiff was in a hurry and would not wait for the $4,000 instead of $2,000. The error was corrected and tickets. On the same day (20 September) plaintiff the notice published as corrected for the remaining sprained his knee. He continued at his labor until the time from its first publication. Helil, the referee having 18th of September when he wrenched his knee in some found that the misdescription of the bank mortgage way, and from that time he was incapable to labor till was by mistake, that the correction was sufficient, and the following March. Shortly after the second injury the publication for twelve weeks after the correction plaintiff applied to said French for the policy, and was not necessary. Deli, further, that plaintiff's right French refused to deliver it. Plaintiff made the return of action to redeem was barred by ten years' limitation

in § 97 of the Code. Cases cited : 27 How. Pr. 145; 24 material of which, the said walk is to be repaired; and How. (U. S.) 284; 26 N. Y. 613, 617; 25 id. 194; 5 Barb. if such owner or occupant does not comply with the 511 Judgment affirmed. Hubbell v. Sibley.

notice, the trustees may cause the work to be done, and 2. Notice to subsequent purchaser : release. - Action the expense thereof assessed on, and collected out of, for foreclosure of a mortgage. In October, 1828, Mel the property adjoining the walk. The trustees are also len conveyed some land in Oswego county to Aspinwall, commissioners of highways of the village. Held, that who purchased for himself. Nott & Stevens each ad the trustees having, in pursuance of the above section vanced one-third of the purchase-money. Aspinwall, of the charter, caused a notice to be served on the while he held title, executed contracts for sale of por owner of the sidewalk in question to repair the same tions of said land to sundry persons, and afterward within sixty days, upon the expiration of the sixty conveyed two-thirds of his interest in said land to days it was their duty to repair the walk, and assess Stevens & Nott. The persons who purchased from A. the expense as provided above; and that, having negwent into possession. After the deed from A. to S. & lected to make such repair, and the accident in quesN., other parcels of said land were contracted to be tion having occurred after the expiration of the sixty sold, and deeds afterward delivered. In 1833 Nott con days, the defendant was liable. Haskell v. The village veyed his third interest to Stevens, and took back a of Penn Yan. bond and mortgage for $2,800 on all the said premises 2. Held, that the owner of the sidewalk would be originally conveyed to Aspinwall. In 1834 Nott assigned also liable. Ib. the bond and mortgage to plaintiff. After assignment, 3. Held, that the want of funds in the highway or Nott, without plaintiffs' knowledge or consent, released other fund of the village is no defense to this acto Stevens a portion of said mortgaged premises, and tion. Ib. Stevens thereupon conveyed the premises so released.

OFFICIAL BOND. The referee ordered judgment dismissing plaintiffs’ Liability of sureties on. — This action was brought to complaint as to lands sold prior to the mortgage, and as recover $35, on a bond given by W. B. Garrett as printo all lands released after the same was given, and cipal, and the other defendants as his sureties, by directs foreclosure and sale only of the remaining land. plaintiff as trustee of a school district. In October, Held, that, Nott having paid one-third of the purchase- 1868, defendant, W. B. Garrett, was elected collector of money, the conveyance to Aspinwall did not destroy the school district, and gave the bond in question. At his interest. By the statute then in force, a trust the expiration of the year he had $40 in his hands as resulted to Nott to the extent of one-third. That, as collector. At the annual meeting of the district in between A., S. & N., A. acted as agent for Nott in the 1869 defendant was again elected collector, and gave a sale of the lands, and he (Nott) was bound by the sales new bond, with new sureties. Shortly after the annual so made. That, if Nott was foreclosing, the defendants meeting plaintiff made an order on defendant, the colwould have a perfect defense to the action; but the lector, for $35, and payment was refused. This action plaintiff, being a bona fide purchaser of the mortgage was brought on the bond of 1868. Held, that the surefor value, is not chargeable with the notice which Nott ties in the official bond of an officer elected for one had of the rights and equities of the purchasers, but is year are not liable for any breach of the condition chargeable with constructive notice of the interest the happening after the expiration of his term, although purchaser had in the lands actually occupied by them. he may be continued in office under the same, or new That the occupancy which is suihcient to charge a sub

election or appointment. Overacre v. Garrett. sequent purchaser or incumbrancer with notice of occu

PRACTICE. pant's rights must be open and visible, and he must

Plaintiff claimed in complaint $100 damages; the actually improve the premises; fencing, pasturing or

jury rendered verdict for $200, and the court, after cutting timber is not such an occupancy as will charge an incumbrancer, etc., with notice. That the occu

verdict, granted plaintiff leave to amend, so as to con

form the complaint to the verdict. Held, that the pancy of those of the defendants who merely cut tim

court had no power to allow the amendment, and the ber on the land purchased and sold the same, or fenced

order is reviewable on appeal. Coulter v. The Am. or cleared the same, was not such an occupancy as to

Mer. Union Express Co. give plaintiffs notice of their rights. That the release by Nott to Stevens being executed after the assignment

SCHOOL DISTRICT. of mortgage to the plaintiffs, but before the same was 1. Conveyance to: action by or against. - The plaintiffs, recorded, was, in the absence of any proof of notice to as trustees of a school district, and defendants own Stevens of such assignment, operative to release the adjoining premises. This action is to recover possespremises described in it from the lien of the mortgage. sion of a strip of land now claimed by defendants. Judgment reversed and new trial ordered. The Trus

Appeal from judgment on report of referee in favor tees of Union College v. Wheeler.

of plaintiffs. Held, that a school district is a quasi cor

poration, and a conveyance to these persons described MUNICIPAL CORPORATION.

as trustees, and their successors, is a valid conveyance Liability for accidents on sidewalks. — This action of the title to the district; that the district must sue was brought to recover damages sustained by plaintiff and be sued in the names of the persons composing by reason of a fall on a defective sidewalk on Court the board of trustees, adding thereto the words: street, in the village of Penn Yan, in April, 1870. On “ Trustees of district number —,” Winchester et al. v. the trial the jury rendered a verdict for the plaintiff McKee et al. for $50. The trustees of the village, by the charter, 2. Where the individual names of the trustees formed have power to cause sidewalks to be repaired, etc., and no part of the legal title of the district, and land was to compel the owners and occupants of any lands to conveyed to the trustees in their individual names, – make such repairs. The trustees are also required to held, that the names may be treated as surplusage, and serve a notice on the owner or occupant to make such the intention to convey to the district might be shown repairs, etc., specifying the time within which, and the by parol. Ib.


liable under the State law would be liable to prosecuCOURT OF APPEALS ABSTRACT.

tion for penalties incurred before the passage of such

act of congress. Ib. 1. Checking baggage: duty of carrier as to baggage: 7. A person employing a pilot is not liable under the connecting lines of raihay: negligence. — The plaintiff statute to a separate penalty of $100 for each ship unpurchased a ticket at a station on defendants' road lawfully piloted by an unlicensed pilot, but only one for New York, and checked his baggage for that place. penalty for employing, no matter how many ships are The defendants' road extended only a portion of the so piloted by such pilot. Ib. route to New York, but passengers and baggage were

8. Prosecutions for aggregated penalties should not transported by a connecting road. On plaintiff's arri be encouraged. It is a wholesome rule not to allow a val at his destination he did not at once call for his recovery for aggregated penalties, unless the language trunk, but left it until the second day, when, on

of the statute clearly requires it. Ib. demanding it, it was discovered to be lost. Held, that

CONTRACTS. the fair construction of the contract was, that the

1. Construction of. — The defendants agreed to furdefendants agreed, for a consideration, to transport

nish the plaintiffs, and the plaintiffs to transport a plaintiff and his trunk to New York, and deliver the

cargo of coal, from Cow Bay, N. B., to another port. latter to him on its arrival, if called for; if not, that

In the charter party it was stipulated that a full cargo it should be properly stored and reasonable care exer

should be furnished on board. It was stated that there cised to prevent injury or loss until it was called for.

was eighteen feet of water at the wharf at Cow Bay, Burnell v. N. Y. C. R. R. Opinion by Church, C. J.

and that vessels drawing a greater amount must be 2. The connecting railroad company being the agents

loaded under the directions of the mining company at of the defendants in performing the contract, and the

that place, and was stipulated that the vessel should be contract of storage being a part of the original con

loaded according to the customary manner of loading tract of carriage, it follows that the defendants are

at Cow Bay, and that all lighterage required in loading liable, if any one is. Ib.

should be paid by the plaintiff. The vessel would 3. The failure of the connecting company to produce

draw, when loaded, twenty feet, and previous to the the subject of bailment, when demanded, prima facie making of the contract the practice of lightering had established negligence and want of due care. When

been discontinued at Cow Bay. The defendant took there is a total default to deliver the goods bailed on

his vessel to the wharf and received a part load, when demand, the onus of accounting for the default lies

a greater amount was refused, because it would sink with the bailee. Ib.

his vessel too deep. He then anchored away from the 4. To show that the bailee is generally careful does

wharf in deeper water, and asked the mining company not establish as a question of law that he was not care

to deliver the balance of the load by means of lighters less as to the particular article. Ib.

or schooners, which was refused. Held, that by the

terms of the contract the plaintiff was bound to furCONSTITUTIONAL LAW.

nish a full load, and that if it could not be taken on 1. Constitutionality of act relating to pilotage: effect

the vessel at the wharf he should have furnished lightof U, S. laros concerniny pilotage: effect of U. S. laws as

ers to deliver it; that the custom of the past of not to penalties incurred under State laws: aggregated pen

using lighters did not avail him, as he had expressly alties.—The act relating to pilotage (laws of 1853, chap.

agreed to furnish them if necessary. Nelson v. Odiorne. 467, as amended by laws of 1857, chap. 243) is not in con

Opinion by Andrews, J. travention of the State constitution (sec. 2, art. 10) in

2. The general intent of a contract is not to be set providing that three of the commissioners of pilots

aside upon doubtful words, and the separate clauses, shall be “electedby members of the chamber of com

unless plainly inconsistent, are to be construed in aid, merce, and the other two by the presidents, etc., of the

and not in contravention, of the minor purpose of the marine insurance companies. Sturgis v. Spofford.

parties appearing in the instrument. Ib. Opinion by Allen, J.

3. Impossibility of performance through act of party 2. The office of commissioners of pilots had no exist

in default.— When a party contracts to manufacture a ence at the time of adoption of the constitution of 1846.

certain article to be paid for upon its completion, and, They are neither county, city, town nor village officers,

in order to raise money, mortgages the uncompleted and may be appointed as the legislature may direct. Ib.

article to the vendee, he cannot claim that he is pre3. The use of the word “elected” in the act must be

vented by the vendor from completing it, if before construed to mean “appointed," and the power of

completion he makes default in his agreement under appointment need not be conferred on a body whose

the mortgage, in consequence of which the vendee officers are responsible to the people. Ib.

seizes the article and sells the same. Wallman v. 4. Though the whole subject of pilotage is within the

Society of Concord. Opinion by Andrews, J. powers conferred on congress, until that power is exercised by congress, it is competent to the several States

EVIDENCE. to exercise it themselves. Ib.

1. Presumption as to message coming over telegraph: 5. The act of congress of 1866 (14 U. S. Stat. at Large, direct testimony us against presumption. — The receipt 228), which included pilots in harbors as well as at sea, of a message at a telegraph office, and delivery by the suspended the laws of this State with relation to that telegraph company's agent to the person to whom it is matter, but on its repeal in 1867 (14 Stat. at Large, 411), addressed as coming from another office on the line, is those laws became again in force. Ib.

prima facic evidence as against the company that it was 6. While the rule is that quasi criminal prosecutions transmitted in the ordinary course of business from for penalties created by statute cannot be prosecuted the sending office. Elwood v. West. Union Telegraph or punished after the statute has been repealed, the act Co. Opinion by Rapallo, J. of congress in question did not have the same effect as 2. While the general rule is, that where unimpeached a repeal of the statute by the State itself, and a person witnesses testify distinctly and positively to a fact, and



are uncontradicted, their testimony should have the formed the plaintiff that he would not consent to be effect of overcoming a mere presumption, the rule is held liable as such guarantor for work done after the subject to many qualifications, such as improbability specified date. Ib. of statement, and interest. The general rules laid 6. There is authority for the proposition that a surety down in books were made at a time when interest dis cannot before breach, by his own act, terminate a subqualified a witness and assumed that witnesses were sisting suretyship for a third person, so as to exempt disinterested, and that qualification must now be himself from liability for future defaults of his princiadded. Ib.

pal; although an agreement to guarantee obligations 3. Where it was shown that in the ordinary course to be incurred may be revoked before it is acted upon. of business a telegraph message was received at one of After a breach which will justify the termination of the defendant's offices as coming from another, it was the contract, the surety has the right to require that proper to submit to the jury whether it was sent from the contract with the principal be terminated and the the latter office, although three of the operators therein claim against the surety be confined to the damages directly deny that such message was ever sent from then recovered. Ib. their office. Ib. See Common Carrier, 4.

What is : rights of owner of stolen property. The plaintiff sold one Carreras certain goods which were to

be shipped to New York and were to be paid for on 1. Effect of contract made to protect surety: printed delivery to Carreras there. The plaintiff, upon shipand written agreement: failure of notice to surety of ping the goods, took a receipt from the carrier for the default of principal. - A clause in a lease, that the same, which he gave to a clerk. The clerk waited upon sureties for the lessor should be notified of default on Carreras in New York, informed him of the arrival the part of the lessee in the payment of reut, and that of the goods and of his readiness to deliver them upon they should have the right to dispossess the lessee, payment. Carreras stated that he would pay at a later made independently of the sureties, forms no part of hour, and that he would like to examine the goods. the principal contract, and is not within the intent The receipt was given him “for the purpose of examinand meaning of the rule that a departure from the ing the goods." The clerk called twice for payment, terms of the principal contract will discharge the sure which, not being made, he made search for the goods, ties. Barhydt v. Ellis. Opinion by Rapallo, J.

when he found they had been removed by Carreras 2. In an agreement partly printed and partly writ and shipped for Havana on a vessel belonging to ten, it is only when the inconsistency between the defendant's testator. The vessel was at once visited written and printed parts is totally irreconcilable that and a demand made for the goods by the plaina discrimination will be made, as to which part shall tiff. Those in charge refused to give them up, on the be made to yield to the other. Ib.

ground that they were stowed in the hold, and it 3. In this State a guarantor is not, in general, enti would delay the vessel and cause great trouble to tled to notice of the default of his principal. But get them, but offered to give them up when the vesthere is no inconsistency in his being entitled to no sel should return from Havana. An action of replevin tice; and yet, the consequence of a failure to give was brought against defendant for the goods. Held, notice being to exonerate him only to the extent of that the receipt having been placed in the hands of the damage sustained by reason of the omission. Ib. Carreras only for the purpose of examining the goods,

4. Rights and liabilities of guarantor. — A contract his taking possession of and removing them was larwas made by the plaintiffs with one Crossley to do the cenous; that, never having parted with title, the carpenter's work on certain houses, and to complete owner could follow the stolen property, and take posthe work before October 15, 1861. Crossley was to fur session of it from any one, whether purchaser or bailee, nish the materials. The defendant guaranteed the ful and that the defendants were liable for their nonfillment of the contract on the part of Crossley. The delivery on demand. Bassett v. Spofford. Opinion by work was not completed at the agreed time, after which Allen, J. and before November 1st defendant notified plaintiffs

NEGLIGENCE. to complete the work before November 1, 1861, and 1. In passing over unsafe railroad crossing. – Where that he would not be responsible for Crossley after

the plaintiff led his horses across a dangerous railroad that time. The work was not done until June 1, 1862, cro on the highway, which the company, while and the default was on the part of ("rossley. Held, repairing, had delayed restoring to a passable condithat the defendant, if he had not consented to an

tion, when, by going a short distance in one direction, extension of time, would have been entitled to have

he could have secured a safe crossing, he was guilty of had the matter closed on the 15th of October. That

such negligence as will prevent his recovering damages the effect of the notice was to extend the time for

for injury to his team. Burdick v. The Erie Railway completion until November 1st, and that it did not

Co. Opinion by Peckham, J. operate as an extension of the time indefinitely, but

2. If the defendant kept the crossing out of order too that defendant had the right to insist that his liability long, the remedy of the plaintiff was by action for the as guarantor should be limited to the debt and dam- | injury and inconvenience thus caused, if any. Ib. ages which plaintiffs were entitled to claim as of the

See Common Carrier. date specified in his notice. Hunt v. Roberts. Opinion

PARTNERSHIP. by Rapallo, J.

1. Rights of surviving partner: presumption of pay5. The fact that defendant entered into an arrange ment of judgment.— The law vests in the surviving ment with the owner of the lots, where the buildings partner of a firm the legal title to the choses in action were, after Crossley's default with reference to the of the firm, and casts upon him the duty to get in the furnishing of the materials, and that he had an inter debts and settle the affairs of the partnership. The esi, in the completion of the buildings, did not affect jus accrescendi exists for this purpose. Daby v. Errichis rights as guarantor of Crossley, so long as he in son. Opinion by Andrews, J.

2. The right to assign is incident to the possession of nothing in the statute to prevent the parties from makthe legal title, and a defendant in an action by the ing a valid contract afterward, and adopting a part or assignee cannot question the consideration on which it the whole of the terms of the original void one. Ib. was made. The code has not changed the rule upon this 4. Void parol contract: where and how fur enforceable subject. Ib.

in equity. - The plaintiff brought action for a specific 3. The survivor takes the legal title with its incidents, performance of a verbal contract for sale of real however limited his equitable interest may be, and not estate, with mills and water privilege, and a quantity withstanding on an accounting nothing might remain

of growing flax, to recover compensation for certain to him. Ib.

deficiency in the quantity of the lands, and also for a The mere lapse of time between the rendition of a

breach of warranty in respect to the flax. The conjudgment and the commencement of a suit on it raises tract was entire for the sale of the realty and the flax no presumption that it has been paid. Ib.

for a sum in gross; the purchaser paid a part of the 4. When one partner can sue another at law.— The purchase price, and entered into possession of the plaintiff, defendant, one S. and others, composed a premises. Held, that, although the contract was not joint-stock association. For the purpose of raising in writing, the plaintiff having iụ part performed it, money for the uses of the company, the defendant and entered into possession of the premises, he was made his note payable to the order of S., by whom it entitled to an action for specific performance. Harwas indorsed. On maturity, it was paid by plaintiff sha v. Reid. Opinion by Allen, J. whom it was transferred. Held, that defendant is

5. The contract, which may be performed by the liable to plaintiff for the amount due on the note, and court, is the agreement to convey the land, and the cannot vary this liability by evidence of a verbal agree vendor is estopped in equity from insisting upon the ment made by plaintiff to pay one-third of the note statute of frauds as against the claim for specific perbefore or at the time of making the instrument. formance. Ib. Cruter v. Binninger. Opinion by Allen, J.

6. But a conveyance of the land would have com5. There is no rule forbidding one partner to sue pleted the performance of the contract by the vendor, another at law, in respect of a debt arising out of a and the plaintiff could have made no claim beyond partnership transaction, if the obligation is separate that. It was a single contract embracing the realty and distinct from all other matters in question between and the personalty, and was void as to every part of it the partners, and can be determined without going into and could not be the foundation of an action at law. Ib. the partnership accounts. Ib.

7. No action at law or equity could have been mainPRACTICE.

tained upon the warranty in respect to the flax. The 1. Finding of fact by referee, when not reviewable.—It plaintiff's right of a claim is not upon or for a breach is a legal error to find a material fact unsupported by of that warranty, and has no connection with the conany evidence, but when such evidence is given, show tract for the flax, except as incidentally connected in ing the probable truth of the fact, it must by this court the same agreement. Ib. be assumed to have been correctly found, irrespective 8. An existing cause of action in equity will not of any rebutting evidence given by the opposite party,

create and secure to the party an independent cause no matter what the weight of such rebutting evidence ef action, which would not exist and could not be enmay be. Burgess v. Simonson. Opinion by Grover, J. forced but for the equitable action. Ib.

2. Preference in court of appeals. — This court will 9. Verbal contract for the joint purchase of real estate : grant no preference in the hearing of a cause, on the trust resulting therefrom. - The plaintiff and defendant ground that the question involved therein has been made a verbal agreement for the joint purchase of cerdecided by this court. Bassett v. Bassett. Opinion tain real estate at auction. It was agreed that the by Grover, J.

defendant should do the bidding; that the bid should See Partnership, 4.

be taken in his name, but that the deed should be in STATUTE OF FRAUDS.

the joint name of the two parties as tenants in com1. Payment of money on void contract: valid contract mon, and that the bonds and mortgages pursuant to referring to terms of void one. — Moneys paid upon a the terms of sale should be executed by both parties. contract invalid by the statute of frauds cannot be The defendant bid off the property, but refused to let recovered back, provided the other party is ready and plaintiff participate in the purchase, though tenderwilling to perform the contract on his part. Allis v. ing to defendant a pro rata share of the payment, Read. Opinion by Church, C. J.

and offered to join in the required bond, etc. Held, 2. The plaintiffs made verbal agrement with the that an action will not lie by one party against another defendants for the sale of certain goods of considerable for the breach of a verbal agreement to unite with him value, giving bills of sale not signed, but containing the in the purchase of a designated piece of land, the title terms of the sale, including price and terms of payment, to be taken by them in common having been made. but nothing was paid, which contract was not valid. Such an agreement is within the statute, as no party At a subsequent time when a payment become due the can be charged for the breach of a contract to purchase parties met, at which time the plaintiff delivered to lands when there has been no sale. Lery v. Brush. defendant a note for $2,000, which was to be collected Opinion by Grover, J. and applied on the purchase price, consigned certain 10. When the defendant received the contract for the goods to defendants to be sold, the avails of which were purchase of the land, no trust attached thereto in favor likewise to be applied, and agreed that the defendants of the plaintiff. A trust in the defendant in favor of should sell all the property in their hands for plaintiff the plaintiff cannot be supported upon secs. 50 and 53, at a commission. Held, that the negotiations at the Vol. 1, R. S. p. 728, for the reason that the latter paid second meeting constituted a valid contract, although no part of the consideration money paid upon the conthey adopted the price stipulated in the original void tract. Ib. one. Ib.

11. The agreement in question does not constitute a 3. Although the original contract was void, there is partnership. Ib.

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