founded," and him but a single wheel of whose mental mechanism is out of gear, there is a world-wide difference, and yet both are classed as persons of unsound mind. We determine one's mental condition only from his words and acts; yet often how difficult it is to look through the outer life to the inner soul? The craziest reason correctly-speak and act sensibly -upon some subjects; while there are others so many of whose mental processes are rational, and so few unbalanced and in confusion, that we hesitate to declare them incapable of self control, and irresponsible for their actions and contracts. Is it strange, in respect to such a person, that when every thing seems to have been fairly done, and a full consideration passed, the courts have spoken lightly of the mental infirmities, and upheld the contract? On the other hand, when gross injustice has been done, especially when the mental incapacity is obvious and pronounced, the inclination has been to denounce the wrong, and protect the unfortunate imbecile from the rapacity of the willful spoiler. Such is this case. The defendant was of unsound mind. He received nothing. He knew not what he was doing. His contract was obtained by fraud and deception. There is not a single feature which would give the slightest excuse for upholding the transaction as between the immediate parties.

Does the plaintiff, as a bona fide purchaser, occupy any better position than the wrong-doer from whom it purchased? Doubtless it is entitled to all the protection given to such a purchaser of negotiable paper; but such protection does not extend to an indorsement like this. There was no valid contract of indorsement created by defendant's signature on the back of the paper. It was no better than a signature written in a state of somnambulism, or even than a forgery. No negligence is imputable, for one who is incapable of prudence cannot be guilty of negligence; nor can there be an estoppel. He who is legally disabled to act cannot be estopped from denying that he has acted. An estoppel creates no power; and while in favor of a bona fide purchaser inquiry is denied as to equities between prior parties, yet such protection does not cut off inquiry into the contractual capacity of those parties. Such at least is the better doctrine, although it must be conceded that there are authorities to the contrary, especially in the English

courts.

The case of Wirebach v. First Nat. Bank, 97 Penn. 543; S. C., 39 Am. Rep. 821, is a late case, in which this subject received consideration. In it we find this language: "The question now presented is, will an action lie on the accommodation indorsement of a promissory note by a lunatic? If the determination of this was not made, it was clearly indicated, in Moore v. Hershey, 9 Nor. 196. There the action was by an indorsee against the maker of a promissory note, and evidence was offered to prove that the maker had received no consideration for the note; which fact the plaintiff had admitted in conversation, proof having been made that the maker was insane. But the offer was rejected, the court below ruling that as the note in suit was commercial paper, and the plaintiff a holder for value, the consideration could not be inquired into. This was held to be error. Paxson, J., said: 'We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to commercial paper made by mad-men. * ** The true rule applicable to such cases is that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic however he may recover, provided he had no knowledge of the lunacy, and the note was obtained

without fraud, and upon a proper consideration. There must be a limit to the civil responsibility of persons of unsound mind; otherwise their property would be at the mercy of unscrupulous and designing men. If the holder could recover against one who was insane when he indorsed or made the note without consideration therefor, no wider door could be opened for the swindler to despoil such helpless persons of their estates. An infant who makes or indorses a note may, by his representative, plead his infancy as a complete defense. In like manner a lunatic may plead insanity and want of consideration. The consideration respects himself, not the holder who may have given value to the indorser. If the fact. that the holder had paid value were enough, the lunatic could not defend for fraud upon him, or for want of consideration. Then an innocent holder could recover, though the judgment would sweep away the lunatic's entire estate, and he had not been benefited a farthing; nor would a nominal sum be sufficient. It is said that the law protects those who cannot protect themselves; but it would be sorry protection if one holding a valid note against a helpless man for four thousand dollars could get it renewed for ten thousand dollars, aud recover the full amount of the renewal note.'

McClain v. Davis, 77 Ind. 419, was a case where a promissory note was obtained from an insane man to cure him of a disease, as in the case at bar. The note came into the hands of a. bank, for value, without notice. The court say: "There was nothing received in consideration of the contract under consideration of which it can be said that restitution should be made before a disaffirmance should be permitted; and it is no objection that the note had passed, before maturity, into the hands of an indorsee. Commercial paper is not an exception to the rule which permits a disaffirmance by any one who was of unsound mind at the time of becoming a party thereto. The purchaser of such paper takes with constructive notice of all legal disabilities of the party, such as infancy, coverture, and unsoundness of mind. 1 Pars. Notes & Bills, 149, 150: Edw. Bills, 63, 69."

See also 1 Dan. Neg. Inst., § 210, in which the author says: "No matter how perfect the note may be in form, it would be void in the hands of every person however innocent, as against the imbecile or lunatic." See also Burke v. Allen, 29 N. H. 106.

I think judgment should be entered on the special verdict in favor of the defendant.

[Compare Fay v. Burditt, 81 Ind. 433; S. C., 42 Am. Rep. 142; Rusk v. Fenton, 14 Bush, 490; S. C., 29 Am. Rep. 473.-ED.]

INNKEEPER-LIEN FOR BOARD-PROPERTY OF THIRD PERSON RECEIVED AS PROP ERTY OF GUEST.

OREGON SUPREME COURT, JUNE 1, 1886.

COOK V. PRENTICE.

An innkeeper who receives a piano in his character as innkeeper, and as the property of his guest, is entitled to his lien against the piano for board and lodging furnished his guest, although the piano is in fact the property of a third person.

Wm. Kaiser, for appellant.

stipulated, it is admitted that the relation of innkeeper and guest existed between the plaintiff and defendant when the plaintiff, at the request of the defendant, paid the freight charges on the piano, and took it into his custody; that the piano was in fact the property of a third person, who had consigned it to the defendant to sell on commission; but that the plaintiff did not know it was the property of such third person, but received it in his character as an innkeeper, and as the property of his guest.

Upon this state of facts we are to inquire whether the piano is chargeable with an innkeeper's lien for board and lodging furnished his guest. At common law the liability of an innkeeper for the loss of the goods of his guest is special and peculiar, and like that of the common carrier, is founded on grounds of public policy. It must not however be confounded with that of a common carrier; the liabilities, though similar, are distinct. Clark v. Burns, 118 Mass. 275; S. C., 19 Am. Rep. 456; Schouler Bailm. 259. Whatever controversy may exist in the judicial mind as to the true measure of the innkeeper's responsibility, it cannot be denied that his liability for the loss of the goods of his guest is extraordinary and exceptional. Schouler Bailm. 261, and notes; Coggs v. Bernard, 1 Smith Lead. Cas. (Am. notes) 401. Compelled to afford entertainment to whomsoever may apply and behave with decency, the law, as an indemnity for the extraordinary liabilities which it imposes, has clothed the innkeeper with extraordinary privileges. It gives him, as a security for unpaid charges, a lien upon the property of his guest, and upon the goods put by the guest into his possession. Overt. Liens, 129. Nor is the lien confined to property only owned by the guest, but it will attach to the property of third persons, for whom the guest is bailee, provided only he received the property on the faith of the innkeeping relation. Schouler Bailm. 292; Calye's case, 1 Smith Lead. Cas. 249; Manning v. Hollenbeck, 27 Wis. 202. But the lien will not attach if the innkeeper knew the property taken in his custody was not owned by his guest, nor had he any right to deposit it as bailee or otherwise, except perhaps some proper charge incurred against the specific chattel.

In Broadwood v. Granara, 10 Exch. 417, the innkeeper knew that the piano sent to the guest did not belong to him, and did not receive it as part of the guest's goods, and it was on that ground alone he was held not entitled to his lien. But in Threfall v. Borwick, L. R., 7 Q. B. 711, where the innkeeper had received the piano as part of the goods of his guest, it was held he had a lien upon it. Meller, J., said: "When having accommodation, he has received the guest, with his goods, and thereby has become liable for their safe custody, it would be hard if he was not to have a lien upon them; and under such circumstances, the lien must be held to extend to goods which he might possibly have refused to receive." Lush, J., said: "I am of the same opinion. The innkeeper's lien is not restricted to such things as a travelling guest brings with him in journeying; the contrary has been laid down long ago. It extends to all goods the guest brings with him, and the innkeeper receives as his. If he has this lien as against the guest, the cases have established, beyond all doubt, that he has the same right as against the real owner of the article, if it has been brought to the inn by the guest as owner." To the same effect, Quain, J., said: "There is no authority for the proposition that the lien of the innkeeper only extends to goods which a traveller may be ordinarily expected to bring with him. *** The liability, as shown by the old cases, extends to all things brought to the iun as the property of the guest, and so received, even a chest of charters or obligations,

and why not a piano-forte? If therefore the innkeeper be liable for the loss, it seems to follow he must also have a lien upon them. And if he has a lien upon them as against the guest, the two cases cited (and there are more) show that if the thing be brought by the guest as owner, and the landlord takes it-takes it in thinking it is the guest's own-he has the same rights against the stranger-the real owner—as against the guest." Upon appeal from the decision of this case, in Threfall v. Borwick, L. R., 10 Q. B. 210, it was held, affirming the decision, that whether the defendant, as innkeeper, was bound to take in the piano or not, having done so he had a lien upon it.

Although there are certain dicta, not necessary to the decision, in Broadwood v. Granara, supra, to the effect that the innkeeper was not bound to receive the piano, yet the real ground of the decision was based on the fact that the innkeeper knew that the piano sent to his guest was the property of a third person, and did not therefore receive it as part of his guest's goods; that the right to subject the piano to his lien was denied; but e converso, if he had not known the piano was the property of a third person, and bad received it as the property of his guest, would not his lien have attached? It is not material whether the innkeeper is bound to receive such property or not, although it is said the liability may be well extended, according to the advanced usages of society; yet if he does receive it as the property of his guest, and thereby becomes liable for it, he must be entitled to his lien. Threfall v. Borwick, supra. Whenever by virtue of relation of innkeeper and guest, the law imposes this extraordinary responsibility for the goods of the guest, it gives the innkeeper a corresponding security upon the goods put by the the guest into his possession.

It is true that the piano was shipped to the defendant in his name, but he brought it to the inn as his property; or at least it was brought there at his request, and upon his order, and put in the custody and possession of the plaintiff as the property of his guest. It is admitted that the plaintiff received it as an innkeeper, and safely kept it as the property of his guest; nor is it doubted but what he would have been liable for its loss; and in such case it is difficult to perceive upon what principle of law or justice he can be denied

his lien.

The judgment must be affirmed.

Waldo, C. J., concurring; Thayer, J., dissenting.

NEW YORK COURT OF APPEALS ABSTRACT.

EVIDENCE.

CLOUD ON TITLE JURISDICTION Plaintiff by his complaint alleged that he was the owner of premises in dispute, and asked that the defendant deliver up a tax deed under which the latter occupied, and that the clerk of arrears cancel it, and all records relating to it in his office. Plaintiff's only proof of title was a deed from one Foley, as referee duly appointed in a decree in partition entered at a Special Term, July 31, 1882. The complaint and the proof showed that defendant, Townshend, was at the time of the decree, and a long time prior, in possession under a deed dated September 13, 1873, from the comptroller of New York, under city assessment sale. Held, (1) that the proof was inadequate to establish any title in the plaintiff as against a stranger to the action in which it was given. (2) It is further urged by the appellant that the facts disclosed on the trial did not show any right on the part of the respondent to equitable relief. We think this point also is well taken. The only ground alleged from the relief demanded was the want of an adequate remedy at law, and yet the facts stated showed presumptively the existence of such a

remedy, and the falsity of the averment. No reason is averred in the complaint why the plaintiff could not obtain all of the relief to which he was entitled by an action of ejectment, and an examination of the findings and evidence shows that none in fact existed. Phillips v. Gorham, 17 N. Y. 270. The complaint was manifestly insufficient in this respect. Bockes v. Lansing, 74 N. Y. 443; Ocean Bank v. Olcott, 46 id. 19; Allerton v. Belden, 49 id. 378; Venice v. Woodruff, 62 id. 467. We have been unable to find any case where a party out of possession has been allowed to sustain an action quia timet to remove a cloud upon title, except when it was specially authorized by statute, or when special circumstances existed, affording grounds for equitable jurisdiction aside from the mere allegation of ownership of the legal title. Indeed the right to appeal to a court of equity in such cases was originally based upon the assumption that the legal title to the property in dispute had been esta lished by an action at law, and jurisdiction was entertained solely for the purpose of protecting the party in the enjoyment of rights in possession thus legally established; and while the jurisdiction has in the course of time been somewhat extended, it has never been stretched to cover cases brought merely to establish a legal title to recover possession alone. Spencer Eq. Jur. 658; Story Eq. Jur. (11th ed.), § 711; Adams Eq. 199; Pom. Eq. Jur., §§ 1395-1399. In all the cases cited to the effect that equity will entertain jurisdiction to set aside assessments and conveyances as a cloud upon title when the invalidity of the alleged title or incumbrance does not appear upon the face of the conveyance or proceeding, and requires extrinsic evidence to demonstrate its existence, the party bringing the action was in possession of the property, or other circumstances gave equitable jurisdiction. Scott v. Onderdonk, 14 N. Y. 9; Hatch v. City of Buffalo, 38 id. 276; Fonda v. Sage, 48 id. 173; Marsh v. City of Brooklyn, 59 id. 283. When the invalidity of the disputed title appears on the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever can be maintained in equity to set it aside, because it is said that a title obviously void does not constitute even a cloud upon the title of the true owner. Lattin v. McCarty, 41 N. Y. 107, and Remington Paper Co. v. O'Dougherty, 81 id. 474, distinguished. June 1, 1886. Moores v. Townshend. Opinion by Ruger, C. J.

CONTRACT-PUBLIC POLICY-AGENT FOR COMPETING PARTIES.-The plaintiff, a timber broker, learning that the Hamburg-American Packet Company was about to build a pier, requiring a large number of piles in its construction, and to advertise for bids from timber merchants to supply them, visited the several dealers in such materials in New York and Brooklyn and obtained prices therefor, and under the inducement that he would act for them respectively in securing a sale of piles, obtained promises from each that if he secured a sale for such dealer he should receive a commission of twenty-five cents on each pile sold. Не did not inform the dealers of the name of the intending purchaser, or the fact that a contract could only be obtained by competitive bidding, or that he had effected a similar understanding with other dealers. The company soon thereafter issued proposals for the supply of the piles, and sent invitations to dealers generally, among whom were the defendants, to compete for a contract for the piles required. A number of persons, among whom were the plaintiffs, the defendants and other dealers, submitted bids for such contract, and after a canvass of such proposals by the company's engineer, he awarded the contract to the defendants. The defendants having refused to pay the plaintiff's claim for commissions, this act was brought to recover

them. Upon the trial the plaintiff was nonsuited by the court below upon the ground that there was no consideration for the promise to pay commissions. We think the judgment was properly ordered upon that ground, and that it can also be sustained upon the ground of the fraudulent suppression of the material · facts by the plaintiff in making the contract, as well as that it was contra bonos mores. The plaintiff, while assuming to act for the defendants in obtaining the contract of sale, was in fact under equal obligations to competing dealers to assist them in effecting the same sale. Thus if plaintiff's services could have been of advantage to any one, he was under the necessity of being treacherous to one employer or another. An agent is held uberrima fides in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction, or omits to disclose any intent which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services. Story Agency, §§ 31, 334; Story Eq. Jur., § 315; Ewells Evans Agency, 368; Dunlap Paley Agency, 105, 106; Carman v. Beach, 63 N. Y. 97, 100. It is an elementary principle that an agent cannot take upon himself incompatible duties or characters, or act in a transaction where he has an adverse interest or employment. New York Cent. Ins. Co. et al. v. Pro. Ins. Co., 14 N. Y. 85; Ewell's Evans Agency, 14; Greenwood v. Spring, 54 Barb. 375; Neuendorff v. World Mut. Life Ins. Co., 69 N. Y. 389. In such a case he must necessarily be unfaithful to one or the other, as the duties which he owes to his respective principals are conflicting and capable of faithful performance by the same person. The plaintiff in this case was a bidder for the contract, and if he succeeded in obtaining it himself and had not the piles to fulfill it, he was under equal obligations to several different persons to employ their piles in its performance. Some or all of his principals must have been disappointed by him, and he would have been under the necessity of violating his obligations to some of his employers. Such conduct is violative of the plainest principles of morality and fair dealing, and cannot be sustained by a court of justice. Neither does the proof show that he rendered any service to the defendants in affecting the sale. His situation rendered him incapable of serving the defendants to advantage, even if he had desired to do so, but the evidence fails to show any effort on his part to sell the defendant's property. He did attempt to sell his own property or secure the contract for furnishing piles, but whether this was done for defendants' benefit or not does not appear. As we have seen, he was under contract obligations to others as well as to the defendants, and it does not lie in his mouth to allege that he intended to defraud others for the benefit of the defendants. There was no evidence showing a performance by the plaintiff of the obligations of his contract with the defendants, and he was therefore properly nonsuited on the trial. June 1, 1886. Murray v. Beard. Opinion by Ruger, C. J.

FROM

CRIMINAL LAW-LARCENY-DISTINGUISHED CONVERSION.-A fraudulent conversion of the proceeds of property placed in defendant's hands to enable him to procure a loan upon it, is not larceny of the property. June 1, 1886. People v. Cruger. Õpinion by Danforth, J.

DAMAGES-WHEN PARTY INJURED MUST LESSEN-POLICEMAN SUING FOR SALARY.-The plaintiff was a policeman in the city of Brooklyn, duly appointed to that office, and having entered upon the performance of his duties. He was attempted to be removed from office by the police commissioners, but upon a certiorari the order was reversed, and the plaintiff restored

to his office. Between the order of removal and that of restoration he rendered no service as policeman, because not permitted so to do, but during the interval resumed for a time his old occupation as a machinist, and that failing, engaged in work at Schutzen Park, the character of which is not disclosed; and from these two sources earned during the period of his removal the sum of $500. The defendant conceded that plaintiff was entitled to recover the unpaid salary of his office, but insisted that his earnings of $500 should be applied upon and deducted from it. The rule sought to be applied by the city to the claim of the plaintiff finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analogous to those existing between the officer and the State or municipality. The rule in those cases is founded upon the fact that the action is brought for a breach of contract, and aims to recover damages for that breach or compensation for the servant's loss actually sustained by the default of the master. That loss he is required to make as small as he reasonably can. His discharge without just cause is not a license for voluntary idleness at the expense of the master. If he can obtain other employment he is bound to do so, and if he engages in other service, what he thus earns reduces his loss flowing from the broken contract. But this rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and the State or municipality by force of which the salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown.

We think therefore it has no application to the case at bar, and the courts below were right in refusing to diminish the recovery by applying the wages earned. June 8, 1886. Fitzsimmons v. City of Brooklyn. Opinion by Finch, J.

INSURANCE-LIFE-PROOFS OF DEATH-SUICIDEBURDEN OF PROOF-CORONER'S INQUEST.-In an action to recover on a life policy the burden of proof is on the company to establish the defense of suicide. Defendant introduced in evidence the proofs of death, to the sufficiency of which no question was raised, and to which was attached a record of a coroner's inquest, showing that death was caused by suicide, the verity of which the plaintiff denied. No other proof as to the cause of death was offered. Held, that the statements were not prima facie evidence of death by suicide, and the ruling of the trial court to that effect, and that the burden of proof was on the plaintiff to show the contrary, was error. In the first place the complaint alleges and the answer admits the issuing of the policies, the death of E. during the life of the policies, that proof of his death was served upon the defendauts, and demand of payment made, as set forth in the complaint. So far there was a complete case conceded, and if the plaintiffs' title to recover had not depended upon their character as assignees, which was denied by the answer, no evidence could have been required on their part. Under the first policy the obligation of the defendants became perfect in sixty days after the death of E., and notice and proof of his death. No particular form of proof was specified in the policy, and the only reference to it is the clause which thus fixes the time when the money is to become payable. No doubt the company were entitled

The

to such proof as would afford reasonable assurance that their liability for loss existed, but where the policy does not require specific information, nothing more can afterward be required. The company did however prepare inquiries upon the points named in the policy, and they were answered. They had from the claimant the time of death, its remote and its immediate cause. They also had much other information, to which the terms of this policy make no allusion. They had from a friend of E., and from the undertaker who buried him, positive statements on oath as to his death and actual burial, and his identity with the person insured. They suggested no defect in these respects. Nor was any suggested on the trial. claim was that the copy of the proceedings on the inquest given, in addition to the proof required by the policy, made out a case of suicide, and required the plaintiffs to show the contrary. I can discover no principle upon which such a proposition can stand. The policy makes no provision for it. The original proceedings would not be evidence upon the issue. Its verity is not admitted by the claimant; it is denied. It could not have been required by the defendants; it was not adopted by the plaintiffs, but out of what must now seem ill-advised courtesy was furnished to the defendants at their request. It contained matter, which if properly substantiated, would have availed the defendants in maintaining an affirmative defense, but in no view suggested to us by the learned counsel for the respondents, could it, as now presented, change the burden from them to the plaintiffs. If by any process of reasoning any part could be taken as an admission of the plaintiffs, it must be taken as a whole, and so taken, is no concession of any fact, but a mere communication of hearsay evidence, the truth of which is at the same time denied, enough to put the defendants upon inquiry, but in itself is no answer to the plaintiff's claim, even in the first instance. Insurance Co. v. Newton, 22 Wall. 32, distinguished. The insurer raised no issue to the preliminary proofs of death, and they were in all respects complete without the statement as to the coroner's inquest. Its contents formed no part of the representations of the claimants; the statements were not sworn to by them, nor presented as worthy of belief. They were in no respect bound by them. June 1, 1886. Opinion by Danforth, J.

MARRIAGE-DIVORCE - FAILURE TO PROVE MARRIAGE. In an action for divorce it is incumbent on the plaintiff to prove that the parties to the suit are husband and wife. And if the evidence given by the plaintiff shows that their connection at first was illegal, and that its continuance depended upon nothing more binding than the will of the defendant, no divorce can be decreed. That the union between the parties was at first illegal is conceded; if a change occurred, it was followed by no formal celebration, nor is there evidence of any present agreement to take each other for husband and wife, and that they ever passed by contract or by mutual consent from the state of concubinage into that of marriage is made doubtful by the admission of the plaintiff, proven by the testimony of his sister, by that of the defendant's father and by other witnesses. If that testimony is true it is difficult to find that she herself regarded the connection as matrimonial, or that its continuance depended upon any thing more binding than the inclination or will of the defendant. It is true, that he assumed the character of husband and she of wife, and reported themselves in that relation to their associates and others, and there was enough in their conduct prima facie to entitle each to the civil rights which belong to the real character, but the testimony to which I have referred, and circumstances disclosed by