Louis Sachs et al. v. American Surety Company of New York.

secured their profit of $30,000, but would have suffered no additional loss upon their purchase money mortgage. Thus they would have reaped the full benefit of the contract which they made and to which they were entitled, but for the breach of the contract for performance of which this bond stood sponsor. Under such circumstances, the loss occasioned would furnish the measure of damage within the principle laid down in Kidd v. McCormick, 83 N. Y. 391.

In making disposition of this case we are authorized to assume that it would have been established, had this evidence been received, that the contract, if fulfilled, would have produced a property worth at least $400,000. This would furnish an equity over and above all incumbrances and expenses of $100,000, which would have belonged either to Hay or Jackson, or both. The defendant, having by objection caused this evidence to be erroneously excluded, is justly chargeable with the consequences, and is precluded from insisting that the judg ment be reversed because there is no evidence to support it. 2 Enc. Plead. & Practice, 528. The evidence was competent. Germain v. Patterson, 46 Barb. 12.

The defendant insists that it only stood a surety for Hay's performance of the contract, and that by reason of his assignment to Jackson and the consent thereto by the defendant became released. There are two answers to this contention. First, no such defense was pleaded; and, second, the obligation assumed by Hay was not personal, but could be performed by anyone else for him. The contract contemplated that it might be assigned, and was so in fact, but by such assignment Hay was not released from performance; on the contrary, he was held to the terms of the contract which he assumed. There are, therefore, no facts upon which a release could be predicted.

Louis Sachs et al. v. American Surety Company of New York.

The court awarded a recovery of interest upon the sums secured by the bond. In this we think it was in error. The condition of this bond was for the performance of an act, and not the payment of money. Under such circumstances a recovery is limited to the amount of the penalty, and interest only runs from the judgment (Polhemus Printing Co. v. Hallenbeck, 46 App. Div. 563). Sloan v. Baird (162 N. Y. 327) has no application. That was an executory contract for the sale of land. The bond in the present case is subject to the provisions of section 1915 of the Code of Civil Procedure, and furnishes the rule respecting the award of interest in contracts of this character.

It follows that the exceptions should be overruled and judgment directed in favor of the plaintiff for the amount of the penalty of the bond, without interest prior to the direction of the verdict. No costs in this court awarded to either party.

All concur.

Note on Section 1915, Code Civil Procedure-When Interest is Calculable. Where the breach is conditioned upon an act, no interest can be calculated. But if the bond is conditioned for the payment of money only, interest may be calculated. (Polhemus Printing Company v. Hallenbeck, 46 App. Div. 567.)

Interest in the former case, however, runs only from the judgment. (Sachs v. American Surety Company, 76 N. Y. Supp. 339; S. C. 72 App. Div. 66.)

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

EMMA J. RICHARDSON AND BENJAMIN NICOLL, AS ADMINISTRATORS, &c., OF JOSEPH RICHARDSON, DECEASED, APPELLANTS, v. EMILY EMMETT, RESPONDENT.

COURT OF APPEALS-APRIL, 1902.

§ 829.

Evidence. Construction of Section 829, Code of Civil Procedure. Section 829 of the Code, which excludes evidence by a party of a personal transaction with a deceased person, extends, also, to the exclusion of evidence from which an inference would necessarily be drawn of such a transaction.

When, therefore, for the purpose of establishing a gift from a deceased person to the defendant of certain securities which he had caused to be made out in her name but afterwards used for his own purposes, the defendant was permitted to testify, under objection, that she, in the meantime, had had possession of them at his home, whereupon the referee found that delivery was established, such evidence is reversible error.

(Decided April, 1902.)

Appeal from a judgment of the Appellate Division, First Department, affirming a judgment entered upon the report of a referee.

DeLancey Nicoll, for appellants.

Howard Taylor, for respondent.

PARKER, Ch.J.-This controversy directly involves about the sum of $10,000, being the surplus resulting from a sale by the Atlantic Trust Company of 200 shares of the capital stock of the New York, Lackawanna & Western Railroad Company, held by it as security for a loan made to Joseph

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

Richardson, now deceased, whose personal representatives these plaintiffs are. The defendant, Emmett, claiming to be the owner of these shares, demanded such surplus of the Atlantic Trust Company, which company, being sued by the plaintiffs for the money, successfully moved the court to substitute the present defendant in its place as a person claiming the fund.

Upon the trial it appeared that in October, 1882, the New York, Lackawanna & Western Railroad Company issued certificates of its stock for 350 shares to Joseph Richardson, which he paid for and owned. Nearly three years later, and on August 21, 1885, Richardson executed a power of attorney, in the usual blank form, indorsed on the back of the original certificates issued to him, which in form sold and assigned to Emily Emmett, this defendant, the shares of stock represented by the respective certificates, and appointed John J. Owen an attorney in fact to transfer the stock to her on the company's books. Owen, acting under these powers, caused the old certificates to be canceled and four new certificates for 350 shares, dated August 21, 1885, to be made out in the name of Emily Emmett. On the day following, these certificates were handed to Brayton Ives & Co., who were Richardson's stockbrokers, and two or three days later they came into Richardson's custody.

Emily Emmett was a niece of Richardson, and on the death of her parents, when she was about 5 years old, she went to reside with Richardson and his wife and continued to be member of his household ever after, although he, having married again toward the close of his life, personally went out of his own house, and, with his wife, lived in another house, leaving his daughter and this defendant and another niece to live in the old home, as they had before.

After the transfer of the stock upon the books of the company to Miss Emmett a dividend was declared payable on October 1, and for that dividend, as well as for each succeeding dividend, a check was made out to her by the

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

company, which she indorsed, and then, accompanied by Richardson's daughter, went regularly every quarter to Brayton Ives & Co., Richardson's stockbrokers, and delivered to them such checks, who thereupon, in every instance, credited the checks to Joseph Richardson's account.

November 11, 1890, Richardson filled up the power of attorney on the back of each certificate, signing at the end thereof the name "E. Emmett," which he caused to be witnessed by two witnesses, and on the same day these certificates of stock were surrendered to the railroad company, which issued new certificates of stock for 350 shares in the name of Mauriac & Bishop, who were then Richardson's stockbrokers, which shares were delivered to and held by them as security for his currrent indebtedness to them.

When the next dividend fell due Miss Emmett was informed, when she apppeared at the office of the company, that there was no dividend for her. Thereupon she told Miss Richardson, who informed her father about it. He said it was all right and that he would give Miss Emmett a note to go and get her dividend, and she says he did write her a letter, which was taken to the Lackawanna Railroad Company's office, requesting the company to pay the dividend due January 1, 1891, to her, which it did, and the testimony was to the effect that this course of business was followed on each subsequent quarterly period down to and including the dividend of April, 1892.

May 6, 1892, Mauriac & Bishop indorsed the certificates standing in their name and surrendered them to the railroad company, which thereupon issued new certificates in the name of Emily Emmett. These new certificates, on or about the date of their issue, were again indorsed by Joseph Richardson but in the name of "E. Emmett," which he signed to the power of attorney on the back, and these certificates thus indorsed in blank were handed over to Mauriac & Bishop as security for Richardson's account.

In May, 1894, two of these certificates for 100 shares each