tion of costs in each action separately, and was in no way objectionable, because the subject considered and the points involved related to each one of the litigations. And, thirdly, as to the necessity for a demand, it must be said that there can be no doubt, as already suggested, that the order was one to pay money into court, and therefore the order to show cause, if any demand were necessary, was a sufficient performance of that ceremony.

There is nothing in sections 2267, 2268, and 2269 of the Code, on such a state of facts as existed here, requiring that a demand should be made before proceedings to punish for a contempt could be instituted. Section 2268 evidently refers to an order requiring the payment of money to a person eo nomine, and not to an order directing its payment into court, or to an officer selected by the court to receive it. All the contentions as to the necessity of a demand, therefore, in the points relating to that subject, are answered by this suggestion. The allowance of the sum of $250 for counsel fee, and the costs and disbursements, are justified by section 2284 of the Code. People v. Railroad Co., 76 N. Y. 294; Van Valkenburgh v. Doolittle, 4 Abb. N. C. 72. The learned counsel for the appellant regards the proof as to the amount of the counsel fee as too meager to justify its allowance. But in this he is mistaken. It may be said that the judge, in consideration of the motion, could himself determine with great accuracy the question as to value, and was in the best possible condition to know whether the evidence given on that subject was sufficient. The bulk of the record, containing, as it does, 175 pages of printed matter, would seem to indicate that the sum awarded was not an excessive compensation for the services rendered. The order should be affirmed, with $10 costs and disbursements. All concur

KAMPING . HORAN.

(Supreme Court, General Term, First Department. January 28, 1889.) BONDS-ACTIONS-PLEADING-BREACH OF CONDITIONS.

Where action is brought on a bond conditioned to be void on the payment of a sum of money secured by a chattel mortgage, according to the conditions of such mortgage, a complaint which does not set out the conditions of the mortgage, or allege any breach thereof, but merely alleges the non-payment of the sum named, shows no cause of action.

Appeal from circuit court, New York county.

Action by John A. Kamping against John A. Horan. From a judgment for plaintiff defendant appeals.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ.
R. J. Moses, Jr., for appellant. John A. Kamping, pro se.

VAN BRUNT, P. J. The complaint of the plaintiff alleged that the defendant on the 3d day of April, 1883, made his bond or writing obligatory, sealed with his seal, of which the following is a copy: "Know all men by these presents that I, John A. Horan, of the city of New York, am held and firmly bound unto John A. Kamping, of the same place, in the sum of $2,500, to be paid to the said John A. Kamping, his executors, administrators, and assigns, for which payment, well and truly to be made, I do bind myself, my heirs, executors, and administrators, firmly by these presents. The condition of this obligation is such that if the above-bounden John A. Horan or Fanny Mordaunt, hereinafter mentioned, his or her executors, administrators, or assigns, shall pay unto the said John A. Kamping, his executors, administrators or assigns, the just and full sum of $750, with interest, being the same sum which is secured by said Fanny Mordaunt unto the said John A. Horan by a certain chattel mortgage bearing date the 2d day of April, 1883, made between the said Fanny Mordaunt of the one part, and the said John A. Horan of the other part, according to and upon the several conditions therein

mentioned, and if the said Fanny Mordaunt shall well and truly perform all the conditions and agreements of the bond, obligation, or undertaking entered into by the said Fanny Mordaunt as principal, and Louis Gordon as surety, unto the people of the state of New York, mentioned and referred to in the said chattel mortage, then this obligation to be void; otherwise to be and remain in full force and effect." The complaint then alleged that the said John A. Horan, or Fanny Mordaunt, his or her executors, administrators, or assigns, have not paid unto said John A. Kamping, his executors, administrators, and assigns, the full and just sum of $750, with interest, or any part thereof, and that there was due to the plaintiff thereon the sum of $650, with interest from the 3d day of April, 1883, for which he claimed and asked judgment. The answer admitted the making of a certain bond, but alleged that the defendant had not sufficient knowledge or information whether the bond was in the words and figures as in said complaint set out. The answer further denied consideration for the execution of the bond, and alleged that the same was executed under certain circumstances set out at length in the answer. The answer admitted the non-payment of the $750 mentioned in the second paragraph of the complaint, and denied the indebtedness alleged in the third paragraph. Upon the opening of the case, the defendant's counsel moved to dismiss the complaint upon the ground that it did not set forth facts sufficient to constitute a cause of action. This motion was denied, and the defendant excepted. This ruling appears to have been error. There was nothing upon the face of the complaint to show that any money whatever was due under the bond sued upon. The condition of the bond is declared to be that "if the above-bounden John A. Horan, or Fanny Mordaunt, his or her executors, etc., shall pay unto the said John A. Kamping, his executors, etc., the full and just sum of $750, with interest, being the same sum which is secured by said Fanny Mordaunt unto said John A. Horan in and by a certain chattel mortgage bearing date the 2d day of April, 1883, made between said Fanny Mordaunt of the one part, and said John A. Horan of the other part, according to and upon the several conditions therein mentioned, namely, upon the several conditions named in said chattel mortgage, and if the said Fanny Mordaunt shall well and truly perform all the conditions of the bond entered into by said Fanny Mordaunt as principal, and Louis Gordon as surety, unto the people of the state of New York mentioned and referred to in said mortgage, then the bond was to be void; otherwise to be and remain in full force and effect." There is no allegation in the complaint of the breach of this condition. In the first place, we do not know what the terms and conditions of the chattel mortgage were. There are no allegations showing what those terms and conditions were in the complaint, and whether any money was due by reason thereof from Fanny Mordaunt to John A. Horan. We are unable to determine that fact, and until that was established no breach of that condition is made out. The next condition is that, if the said Fanny Mordaunt shall well and truly perform all the conditions and agreements of the bond entered into between the said Fanny Mordaunt as principal, and Louis Gordon as surety, mentioned and referred to in said mortgage, then this obligation to be void, etc. What those conditions were we are not informed, and there is no allegation of any breach thereof. Under these circumstances, there is no cause of action set out in the complaint, and as a consequence no recovery could be had. In fact the necessity for the establishment of the allegations in said chattel mortgage seems to have been apparent to the appellant upon the offering of the testimony. As part of his case he offered such chattel mortgage, not withstanding the objections of the defendant. Various errors in the admission of evidence seem also to have been committed, the learned judge below evidently overlooking the rule that upon the establishment of the relation between the plaintiff and defendant of attorney and client, every transaction between them unfavorable to the client is presumed

to be fraudulent, and therefore the defendant in this case had a right to show the relations existing between himself and the plaintiff, and to prove anything tending to establish the defense as mentioned in the offer. The judgment appealed from should be reversed, and new trial ordered, with costs to appellant to abide event. All concur.

LESSER v. PERKINS.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. SALE-WARRANTY-ACCEPTANCE-SUBSEQUENT CONTRACT.

Plaintiff sold defendant a quantity of scrap-iron, to be delivered to a vessel at H., weight and quality guarantied. It appeared that the iron was not all of the agreed quality, and that defendant, when he saw some of it laden on the vessel, objected to it on that ground. He did not accept it as complying with the contract, and negotiations, after repeated refusals to accept it, resulted in an agreement made at P., where the iron was unladen, that it should be culled at plaintiff's expense, and that defendant should take so much as filled the warranty, and the residue at what it was worth. Held, that defendant, up to the time of the arrival of the iron at P., had not waived his right to insist on the warranty, and that the rights of the parties were to be determined by the agreement then made.

2. SAME-PLACE OF DELIVERY-INSTRUCTIONS.

In such case, it is not error to refuse to charge that under the contract the place of delivery and acceptance was at H.

3. SAME-DEFICIENCY IN QUANTITY.

There being a deficiency of one-half ton in the weight of the iron delivered, it is not error to charge that the plaintiff could not recover if he delivered less than the agreed amount, which was 100 tons of No. 1 wrought scrap-iron, as the question of defendant's liability if the iron was of the agreed quality, and only deficient in weight by so small an amount, is not thereby raised.

Appeal from circuit court, New York county.

Action by Ulrice Lesser against F. E. Perkins, to recover for a lot of scrapiron sold and delivered. Verdict and judgment for defendant, and plaintiff appeals. For opinion on former appeal, see 39 Hun, 341.

Argued before VAN BRUNT, P. J., and BARTLETT and DANIELS, JJ.
Lewis Sanders, for appellant. Flamen B. Candler, for respondent.

DANIELS, J. The verdict was for the balance found by the jury to be due to the defendant upon the shipment to and receipt by him of a cargo of scrapiron. The plaintiff entered into a memorandum of an agreement for the sale and shipment of this iron. This agreement was in writing, subscribed by the defendant. It was dated on the 14th of April, 1881, at Hoboken, and by the language made use of the defendant: "Bo't this day of Mr. U. Lesser, Esq., for prompt delivery to vessel here, one hundred to one hundred and twenty tons No. 1 wro't scrap-iron, at twenty-eight and half dollars per ton of 2,240 lbs., weight and quality guarantied. Terms: 75 per ct., sight draft, with invoice and bill of lading attached, and balance on receipt and unloading of scrap at Providence. Mr. Lesser to give me answer for two hundred tons more next week, on same terms, etc. F. E. PERKINS." A vessel was sent by the defendant for the cargo, upon which about 993 tons were laden. Before the agreement was made a pile of iron in the yard of the plaintiff was exhibited to the defendant, from which it was proposed to make the sale; and it was understood between the parties that the iron would be mainly, if not wholly, taken from that pile. While it was being laden on board the vessel, the defendant was at the dock where she laid, and saw iron in the hold, and also upon the dock, which was then to be taken on board. What was on the dock was objected to by him as not being of the quality and description of the iron he agreed to purchase by the contract. The plaintiff was not present at the time, neither was the master of the vessel, but the objection was made to the mate having the lading of the vessel at that time in charge. The objection which is stated to have been made does not appear to have been acceded

to on behalf of the plaintiff, and the sheets upon the dock, which in fact were damaged steel, were either in whole or in part taken on board the vessel to make up this cargo. Before the vessel arrived at Providence, to which she was to transport the iron, the defendant by letter informed the plaintiff that he would consent to receive the iron only on the condition that he found it satisfactory to the parties with whom he was dealing. And it was added that "large sheets must be so that not more than two men can handle them at shears without trouble; otherwise they are not received as number one scrap." After the vessel had arrived, and on the 2d of May, 1881, the defendant wrote again to the plaintiff, stating that "some of the sheets of boiler, or kiers, are burnt, and will not be accepted as number one wro't scrap-iron. Regarding the balance of your scrap, will say I cannot take it, as the quality to be decided by the present cargo is bad, and not at all what you sold me. We will, however, take what we can pick out of this cargo number one, but don't want any more, to be obliged to cull.” Still later, the defendant wrote again: "I shall probably get out about forty to fifty tons number one, picking over all of it; and, if you do not make me whole, shall advertise the iron at once, and sell it for your account." After receiving this postal, the plaintiff proceeded to Providence, and upon his arrival the cargo was made the subject of conversation between himself and the defendant, and in the course of it the defendant testified that he informed the plaintiff "that I was then put to considerable expense, and if he would take his iron back, and pay me my eighteen hundred dollars, I would like to have him do it. I could not continue the expense." And the witness Pomeroy, who testified that he was present when the vessel was about half discharged, heard Mr. Perkins tell Mr. Lesser that the iron was no such iron as he bought, and that he should not take it, and have nothing to do with it." A paragraph contained in this letter to the plaintiff of the 3d of May was of the same import. In that he stated that, "taking it altogether, it's the poorest lot of scrap that I ever had sent here by any dealer, and, if you will return to me my eighteen hundred dollars and expenses, would be very glad to have you take the iron, as I very much doubt there being enough in this cargo to pay me." The precise objections made to the cargo was that it contained large steel sheets which had been burned in places, rendering them of inferior value, and to coils, and iron of a quality not equal to that mentioned in the agreement. This letter, and these objections and offers made by the defendant, are stated by him to have resulted in a further agreement between the parties, by which the defendant was to cull out the iron, and take that part of it which conformed to the description contained in the agreement, and at the price therein mentioned, and to charge the plaintiff for the expenses of making this assortment. The residue the defendant testified the plaintiff stated he would take back either to New York or New Jersey, but, if he did not return again in the course of a week, then for the defendant to allow him what he could for the light iron. He did not return, and the iron and steel rejected as inferior to the description contained in the agreement were sold, and the proceeds of the sale credited to the plaintiff. Of the iron selected from the cargo as of the quality mentioned in the agreement there was 511⁄2 tons, and that was accepted and appropriated by the defendant. And it was for the price of this iron, deducting the expenses of assorting it, and the money previously paid, and adding that received from the residue of the iron, that the verdict proceeded in favor of the defendant in the action; and it has been stipulated that this result was correct, if the plaintiff was not in fact entitled to recover for the price of the full cargo sent forward, and for which the defendant had undertaken to pay by the agreement.

The plaintiff, however, contended, and that position is urged as sustaining the appeal, that the iron was delivered and accepted when it was laden on the vessel at Hoboken, and the defendant then became liable for its price. With

out doubt it was there delivered, as it was to be by the agreement. But if the evidence given by the defendant himself proved reliable, then there was no acceptance of the iron at that time; but, on the contrary, the large steel plates, as well as other inferior portions of the cargo, were objected to as not being of the quality the defendant was entitled to receive. And this objection was repeated by the letter sent forward before the arrival of the vessel at Providence, and there it was again still further renewed by the defendant. There was accordingly, as a matter of fact, no acceptance of this iron up to that time; and, as the weight and quality which was to be delivered was guarantied by the contract, the defendant was at liberty to stand upon these objections after the arrival of the iron at Providence. If the cargo had been full, and of the quality mentioned in the agreement when it was laden on the vessel at Hoboken, the defendant would have been bound to receive and accept it. Mee v. McNider, 39 Hun, 345, 109 N. Y. 500, 17 N. E. Rep. 424. But from the conversations between the parties, as well as the statements contained in the correspondence, this cargo was not of that quality. It was in great part inferior to the article which the defendant was bound to receive and accept by way of performance of the contract; and, as this guaranty was given as a part of the agreement, he had the legal right to stand upon it, and refuse to accept the cargo after the delivery of the cargo, and it had arrived at its port of destination. Briggs v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51; Kent v. Friedman, 101 N. Y. 616, 3 N. E. Rep. 905; Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. Rep. 428.

These cases have so far entrenched upon the authority of those relied upon in behalf of the plaintiff as to render it unnecessary to consume any time in examining or referring to them. It did appear that a portion of the cargo had been sent to the parties who were finally to receive it before the interviews resulting in another agreement took place between these parties. But that circumstance can be of no benefit to the plaintiff, for the reason that evidence was given from which the jury could find, as they probably did, that it had all been returned to the wharf, and was there at the time when the defendant offered the cargo back to the plaintiff. In this respect the facts were similar to those in Briggs v. Hilton, supra, and they were not allowed to stand in the way of the defendant's right to damages, because of the defective quality of the property. The authorities referred to by the counsel for the appellant on this part of the case widely differ from these facts, for in them a portion of the property included in the sale had been sold and parted with by the vendee. Here no such sale had been made, for the transactions were wholly rescinded, and the property restored to the defendant, who had the ability to return to the plaintiff, at the time when the offers were made, the entire cargo of the vessel. Upon the facts, therefore, which had occurred down to the time when the offer of the defendant was made to return the cargo, he had neither waived nor lost his right to insist upon its inferior quality, and refuse to accept it as a performance of the agreement. And the rights of the parties were to be determined, therefore, wholly upon what passed between them at Providence, when the cargo had been partially unladen, as the fact is given by the defendant and his witnesses, or it had all been unladen, as is stated to have been the fact by the plaintiff in his evidence. In either view, the defendant was still entitled to insist upon the iron complying with the agreement, or to reject it altogether, and recover the $1,800 which he had paid upon the purchase, as well as his expenses.

An exception was taken to the refusal of the court to instruct the jury that Hoboken was the place for the delivery by the plaintiff and acceptance by the defendant of the iron. But, under the rule which has been settled by these authorities, this exception must be held to be unsupported. So must that which was taken to the refusal of the court to charge that the defendant's right to reject the iron ceased when his vessel sailed from Hoboken with the