from Portland to Lewiston, and no agreements as to credit, was correct, objection to such want of proof. The tents were destroyed by fire at Portland. The answer admitted that the tents were manufactured according to agreement. On the trial defendant's attorney asked plaintiff if in prior transactions there had not been an agreement as to credit to be given. The question was excluded, and defendant excepted. Defendant excepted to the report of the referee in favor of plaintiff, for the reasons that there was a failure to prove notice of the completion of the tents and that the evidence showed that the tents were shipped to Portland and not to Lewiston. S. T. Freeman, for applt. Townsend & Weed, for respt. Held, That the object of requiring notice of the completion of an article is to give the purchaser an opportunity to examine the article and see if it complies with his order, and the answer admitting their completion in accordance with the contract removes the necessity for proof of such notice, and that an order for their shipment, subsequent to the time when it is admitted they were completed, must be regarded as an acceptance. That there being no evidence as to whether there was or was not a continuous line from Portland to Lewiston, looking at the bill of lading in the light of well known usages of commercial carriers to carry goods over their own roads and then deliver them to other forwarders, the referee was justified in finding that they were shipped to Lewiston, and that the rejection of evidence as to sales prior to that time, under special as the offer was not to show a general usage of sales on credit, but on the contrary special agreements which would be inconsistent with such a state of facts. Judgment affirmed with costs. Opinion by Davis, P. J.; Brady and Daniels, JJ. concurring. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Marianna Holten, applt., v. Annie Holten et al., respts. Decided May 21, 1877. In an action for dower, where it is sought to establish a marriage, not by direct proof, but by circumstances and acts from which a marriage might be presumed, it is error to exclude a question to one of plaintiff's witnesses as to what they understood from the conduct of the alleged husband and wife toward one another was their relation, and allow a witness for the defendant to answer from what she saw and heard, how she regarded plaintiff in the house, whether as a wife or servant. It cannot be said that the exclusion of affirmative proof in her favor, and the admission of similar negative proof against her, did not prejudice her. Appeal from a judgment on verdict of a jury in favor of defendant, and an order denying a new trial. This action was brought by plaintiff, who claimed to be the widow of Heinrich Holten, to enforce a right of dower in his estate. The evidence showed that she entered his house as a domestic, and it was not shown that any formal marriage ever took place. Plaintiff relied upon facts and circumstances from which a marriage might be presumed. It was shown that Heinrich Holten had, on several occasions, acknowledged plaintiff as his wife, that she performed duties consistent with such a relation, and it was also shown that while living in Charles Wehle, for applt. Held, That the questions were parallel. Both called for an opinion as to her status in the house of the deceased, and if such evidence was not admissible for, it certainly was not against her. This unequal application of the rules of evidence might have prejudiced the plaintiff's case. It cannot be said that the exclusion of the affirmative proof offered on her behalf, and the admission of similar proof, but of a negative, character on the same subject, could not have prejudiced her. For this reason there should be a new trial with costs to abide the event. CONTRACT. N. Y. COURT OF APPEALS. Kellam, applt., v. McKenstry et al., respts. Decided April 10, 1877. Where a contract for the sale of hemlock bark on certain growing trees, which provides that the vendees shall peel said bark, and have it all peeled, piled, measured, and settled for within a specified time, is not completed within the time limited, the right to peel and carry away the bark is terminated. In the absence of an extension of time, the contract is to be limited to such bark as had been peeled and paid for within the specified time. This was an action to recover the value of a quantity of hemlock bark by plaintiff, as assignee of a contract by which C. agreed to sell and convey to W. & B. all the hemlock bark on the trees standing and growing upon a certain tract of land therein described. The contract provided that W. & B. should peel said bark, and have it "all peeled by the 1st of September, 1864, piled, measured, and settled for in full." The contract also provided that W. & B. should have free ingress and egress to enter at any, and all times upon the premises for the purposes mentioned. The bark was not peeled or taken away within the time mentioned, and C. had the bark peeled, and sold it to J., who sold the same to defendants, who were purchasers in good faith and for a valuable consideration. H. & W. J. Welsh, for applt. Held, That this action could not be maintained; that unless the contract was completed within the time limitOpinion by Brady, J.; Daniels, ed, the right to peel and carry away J., concurring. the bark terminated; that in the ab sence of any extension or waiver of the time within which it was to be performed, the contract was to be limited to such bark as should be peeled and paid for within the time provided for. 2 Keyes, 323; 1 Sandf. Ch., 52; 2 Barb., 613. Judgment of General Term, affirming judgment for defendants, affirmed. Opinion by Miller, J. All concur. GIFT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Charles G. Child et al., ex'rs, applts., v. Don Alonzo Child, respt. Decided May 21, 1877. Whether there is an acceptance of a gift or not depends upon all the circumstances anterior and subsequent, and when these circumstances have been considered by the auditor, to whom the matter has been referred, and by the Surrogate, and have led them to the conclusion that there was an acceptance, their conclusions will not be disturbed where you can get from the claim over the expenses. It may be they want my address for the purpose of collecting costs, fees, &c." Defendant received the above amount on said claim, which was much more than either anticipated, and wrote to his father, saying that, as the amount was so large, he would not accept it as a gift, but would regard it as a loan, &c. Before the receipt of this letter by the testator, he had learned the amount, and wrote, asking what he intended to do with the money, and advising what he should do with it, also requesting the payment of a previous loan of $250, and after receipt of another letter, containing check for this amount, the father wrote, acknowledging its receipt, and giving still further advice as to the use of the money, but saying nothing about the son's accepting of it as a loan. William Dean and Truman H. there is evidence on which they might arrive Baldwin, for applts. at such decision. George W. Lockwood, Jr., for respt. Appeal from the decree of the Sur- Held, That the letter, written after rogate. The testator devised his re- the amount was ascertained, was siduary estate to be equally divided clearly confirmatory of the gift, and among his children, of whom the de-a repetition of it. That the payment fendant was one. The executors of the $250 by the defendant was evisought to charge against him a claim of $1,755.82, which they claimed should be regarded as an asset of the estate, it having been received by him under the following circumstances. The testator, while ill at St. Louis, received a letter from his attorneys, in reference to a claim against parties at Wheeling in their hands for collection, saying they had some progress to report. The testator forwarded it to his son, the defendant, saying, "Please attend to it, and you may have what dently regarded by him as a payment from his own funds. That whether there was an acceptance of the gift depends upon all the facts surrounding the presentation, and would include the antecedent and subsequent incidents connected with it. That the consideration of these facts by the auditor, to whom it was referred, and again by the Surrogate, having led them to the conclusion that the gift was complete, and that there was no charge against the defendant, there was evidence to sustain said finding, and the decree should be affirmed, but without costs. remained unpaid. The answer contained a general denial, and, by way of counterclaim, pleaded that by the Opinion by Brady, J.; Daniels, J., negligence and unskilfulness of Mr. and Davis, P. J., concurring. AUDIT. DEFENCE. N. Y. SUPREME COURT. GENERAL Decided May 21, 1877. Persons undertaking to perform services requiring a high degree of skill are required to possess such skill as is commensurate with the undertaking, and are responsible for any damages resulting from a want of such skill. The Supervisors of the County of New York in auditing a bill for services are not neces sarily called upon to pass upon the question whether such services are skilfully and carefully rendered, and consequently the County is not precluded from showing as a defense to an audited bill that they Kellum the defendants suffered damage in an amount greatly exceeding the plaintiff's demand. On the trial, defendants introduced evidence to show that the honest cost of the Court House was not over $2,600,000. Evidence was also given tending to show that by the use of different plans of construction, which ought to have been known to Mr. Kellum, much of the expense of construction could have been avoided. On the trial, the Court charged the jury that Mr. Kellum must be held to a knowledge of the rules which were in existence as to the use of iron at the time, and plaintiff excepted, also to the proposition in different were damaged by unskilful performance of parts of the charge to the effect that, the services covered by such bill. Appeal from a judgment for costs recovered by defendant on the verdict of a jury. Plaintiff as executrix of her deceased husband, John Kellum, sued to recover a commission of three per cent. upon the cost of the New Court House, under a special agreement, made with the Board of Supervisors, by which Mr. Kellum was to act as architect, furnish all plans, &c. Plaintiff alleged that she was informed that the Court House had cost $8,000,000, and that, if that was more than it should have been, she desired her claim correspondingly reduced. It was shown that $84,502.15 had been paid Mr. Kellum upon audits of the Board of Supervisors, and that on July 5, 1869, they audited a further bill of $26,669.30, which unless Mr. Kellum is shown to be entirely free from negligence in the particulars claimed, there must be a verdict for the defence. Plaintiff also claimed that the audit was conclusive and entitled her to a verdict for that amount, and that it could not be shown as a defence to this bill that the services, for which it was allowed, were unskilfully performed. Mann & Parsons, for applt. William C. Whitney, for respt. Held, That persons who undertake to perform services requiring a high degree of care and skill must exercise it in the discharge of their duties, and if they fail in this, the agreement is violated and they are responsible for any damage. The highest possible skill and care is not required, but only such as is commensurate with the undertaking to be performed. The point that unskilful performance of the services, for which the audited bill was allowed, could not be proven as a defence to that bill not having been raised upon the trial, is not before the Court (Code, § 348), but if it had been it could not very consistently be maintained that so broad an auditing as would be required for the investigation of collateral subjects of this nature had been exclusively conferred on the Board of Supervisors. The audit did not necessarily involve the question whether he had skilfully or carefully performed his agreement, and for that reason it could not conclude the County upon a subsequent discovery of the architect's misconduct. The charge of the learned justice at the trial did not put the burden of disproving the testator's unskilfulness or want of care upon the plaintiff. A remark capable of that construction was made toward the close, but he had previously stated to the jury that they must find such unskilfulness or want of care to be proven before they could allow this defence to prevail, and they could not have been misled by what was so evidently an inadvertence. The charge as a whole required the defendant to establish such facts before they could be considered as a defence. Judgment affirmed. Opinion by Daniels, J.; Davis, BOARD OF POLICE. Decided May 21, 1877. Board of Apportionment the right to fix the salaries of city officials and employees, does not give them the power to reduce the salary of the Fire Marshal, as a subsequent Act, Laws of 1871, p. 1278, § 5, especially pro-. vides that the salary of Fire Marshal, Assistant Fire Marshal and Chief and Assistant Clerks shall be regulated by the Board of Police. Appeal from order sustaining demurrer to the plaintiff's complaint. The plaintiff held the office of Fire Marshal of the City of New York, at a salary fixed by the Board of Police at $5,000 per annum. The Board of Apportionment reduced the salary to $4,000 per annum, and the salary at this reduced rate was paid several months. Plaintiff claimed that the Board had no authority to reduce his salary, and brought suit to recover the difference between the amount actually paid and the amount he should have received for the same period of service at $5,000 per annum. Elliot Sandford, for applt. Wm. C. Whitney, and D. J. Dean, for respt. Held, That Vol. 2, Laws of 1871, p. 1278, § 5, provided that the Board of Police should fix the salary of the Fire Marshal, the Assistant Fire Marshal and the Chief and Assistant Clerks, and that by this act these officers were specially excepted from the operation of the Act empowering the Board of Apportionment to fix the salaries of officers and employees of the City. Chapter 583, Laws of 1871, Vol. 2, Laws of 1871, p. 1270, § 3. The order should be reversed with costs, and the plaintiff should have judgment overruling the demurrer with leave to the defendant to answer The Act of 1871, Ch. 583, conferring on the upon the usual terms. |