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Opinion of the Court, per GROVER, J.

to indemnify them. If it was, the record was competent evidence; otherwise not. (The Bridgeport Ins. Co. v. Wilson, 34 N. Y., 275.) The inquiry is whether the proof showed that the defendant was so bound. The evidence showed that the plaintiffs were bankers and commission merchants residing at Bremen, in Germany. That the defendant was a merchant residing in New York. That Grundmun & Co. were manufacturing chickory meal and other commodities, residing and carrying on their business at Nienburgh, in Germany. On the 18th December, 1858, the defendant wrote the plaintiffs a letter, inclosing one to Grundmun & Co., containing an order for fifty barrels coarse-ground chickory meal, of from four to five hundred pounds each, and for fifty barrels of like meal mixed with acorns, which he requested the plaintiff to forward to Grundmun & Co., and in case of the acceptance and execution of the order by them, to accept drafts of Grundmun & Co. for the price, upon the receipt by the plaintiffs of the goods at Bremen, which goods the plaintiffs were requested to ship as directed to the defendant at New York. Upon receipt of the letter, the plaintiffs forwarded the one inclosed for Grundmun & Co. in a letter of their own, to that house, by which they requested them to execute the order of the defendant, and promised to honor their draft at three or four months afterthe date of the invoice. Directly after the receipt of these papers, Grundmun & Co. wrote the plaintiffs, acknowledging their receipt and promising to execute the order. This constituted a valid contract between the defendant and Grundmun & Co. for the purchase by the former and sale by the latter of the goods specified in the order, and a contract by the plaintiffs to accept the drafts of Grundmun & Co. for the price, as surety for the defendant. It is insisted by the counsel for the appellant that it was not a valid contract, for the reason that the price of the goods was not fixed, nor the proportions of chickory and acorns in the mixture were not specified. When an order is sent to a merchant or manufacturer for goods in which he deals, silent as to the price, and the order is accepted and executed, or simply accepted, the law fixes

Opinion of the Court, per GROVER, J.

the price at the current rate at which they are sold, and the party ordering the goods is equally bound to pay this price as if it had been so stated in the order. Giving an order for fifty barrels of chickory meal mixed with acorns to a manufacturer of this article, without specifying the proportions of each, empowers the manufacturer to compound the same in the usual manner in which the mixture is prepared for market. That, it appears, was the course pursued by Grundmun & Co. in the execution of the defendant's order.

It is further insisted by the counsel, that the plaintiffs departed from the instructions of the defendant by undertaking to accept drafts at three or four months from the date of the invoice, instead of the receipt of the goods by them, as directed by the defendant. The answer to this is, that the undertaking by the plaintiffs related only to the time at which the bills were to bear date and time when the term of credit should begin to run, and not to the time of actual acceptance. The course pursued in regard to the fifty barrels of coarse chickory meal which were delivered, forwarded to the defendant and paid for, shows that there was a perfect understanding by all parties upon this point. A valid contract having been proved, there is nothing found in the vast amount of subsequent correspondence tending to show a release of any of the parties from its obligation. The fifty barrels of pure chickory flour were promptly delivered by Grundn:un & Co. and paid for in pursuance of the contract. Grundmun & Co. proceeded with diligence to manufacture the mixture as ordered and notify the plaintiffs thereof and of their readiness to deliver the same pursuant to the contract. The plaintiffs refused to accept the same, and the correspondence shows that their refusal was pursuant to the directions of the defendant.

He cannot, therefore, complain of this. The correspondence, instead of showing any release or modification of the original contract, shows that Grundmun & Co. were at all times insisting upon its performance and endeavoring to arrange details so as to produce this result. It follows that the proof showed that the plaintiff, at the request of the defendant, had entered into

Opinion of the Court, per GROVER, J.

a valid contract to accept and pay bills as surety for him.
That they had failed to perform this contract by direction of
the defendant. That for this breach a suit was commenced
against them in the Tribunal of Commerce of Bremen, in
which, upon appeal to the Superior Court of Appeals of the
four free German cities, the court of last resort, judgment
was given in favor of Grundmun & Co. against the plaintiffs,
and they were thereby compelled to and did pay for the fifty
barrels of mixture. When one party, at the request of
another, enters into a contract as his surety, the law implies
a promise of indemnity. The plaintiffs gave the defendant
notice of the suit of Grundmun & Co. against them. The
record under these facts was competent evidence against the
defendant in favor of the plaintiffs. A foreign judgment has
the same effect in this respect as one of our own courts.
(Note to Andrews v. Herriot, 4 Cow., 520.) The position of
the counsel, that an underwriter is not bound by a suit brought
against the party he is bound to indemnify, in the absence of
& provision in his contract to that effect, cannot be sustained
either upon principle or authority. The law is otherwise.
(Fire Ins. Co. v. Wilson, supra.) The fact proved that one
of the members of plaintiffs' firm died during the pendency
of the action of Grundmun & Co. and before the rendition
of judgment therein, does not vitiate the judgment. By the
common law, the entire legal liability survived against the
burviving member who was a party, and against whom the
judgment was given. Continuing the name of the deceased
was a mere nullity, not vitiating the judgment against the
survivor. Whether the law of Bremen is the same, it is not
necessary to determine. It was proved that the interest of
the deceased in the plaintiffs' firm passed to his widow, who
still owned the same. She was, therefore, not only a proper,
but necessary party to the action. The judgment must be
affirmed, with costs.

All concur.
Judgment affirmed.

Statement of case.

HENRY T. ROMERTZE, Appellant, v. The East RIVER

NATIONAL Bank, Respondent.

Where a party proposes to impeach a witness by proving inconsistent writ

ten statements, it is sufficient to show the witness, or read to him, the paper, and, if its genuineness is admitted, the party can introduce it when he has the case and the right to put in evidence; and it is not the legal right of the other party or the witness to enter into any explanation of the contents of the paper until after it has been introduced in evidence. It is within the discretion of the court, however, to vary the order of proof.

(Argued May 23, 1872; decided June 4, 1872.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial.

The action was brought to recover the value of twelve United States bonds of $1,000 each, deposited by plaintiff with defendant about May 12, 1865. The answer admitted the deposit, but alleged a return thereof to plaintiff. The facts pertinent to the questions decided sufficiently appear in the opinion.

E. W. Stoughton for the appellant. The deposition of the witness, Newell, was improperly excluded. (2 Phillips' Ev., 962–965 ; 2 Brod. & Bing., 286; 8 Wend., 598; 24 N. Y. R., 301 ; 5 Denio, 285.)

William Fullerton for the respondent. The court will not review the testimony to see whether, as a question of fact, the verdict was correct. (East River Bank v. Kennedy, 4 Keyes, 279; Ostrander v. Fellows, 30 N. Y., 350; Wiltsie v. Eaddie, 4 Abb. Pr. [N. S.], 393; Booth v. Bierce, 38 N. Y., 463, reversing 40 Barb., 114; Van Blarcom v. Broadway Bank, 5 Trans. App., 132; Westerlo v. De Witt, 36 N. Y., 340.) The deposition of the witness Newell was properly excluded. (Lemoine v. Ganton, 2 E. D. Smith, 343; Hub


Opinion of the Court, per CHURCH, Ch. J.

bard v. Briggs, 31 N. Y., 518; Stephens v. The People, 19 id., 519; Newcombe v. Griswold, 24 id., 298.)

CHURCH, Ch. J. There is no legal ground of complaint as to the disposition which the jury made of the case upon the evidence submitted. The evidence was conflicting as to the main fact in controversy, and the decision of the jury, if no legal error has been committed, is final between the parties. The result was largely dependent upon the credibility of the witnesses for the respective parties, some of whom were attempted to be impeached and others contradicted. The only question of law which seems to deserve attention relates to the attempt to prove that the witness Newell, called by the defendant, had made statements on another occasion inconsistent with those testified to by him on the trial. His evidence had been taken de bene esse in the same action, and, on cross-examination, the deposition was shown to him, and he stated that he signed it, and that it was read over to him before he signed it.

After the defendant rested, the plaintiff's counsel proposed to read the deposition, "for the purpose of showing that he made statements therein inconsistent with his testimony given on the stand in court on this trial.” The court excluded it, on the ground, as we must presume, from the objection, and what took place subsequently, that a proper foundation had not been laid for the purpose of reading the deposition to contradict the witness. We think the court erred in rejecting the deposition. The paper was shown to the witness; he verified the signature and stated that it was read over to him before he signed it. It is to be presumed that he understood it. What more should have been done? It was not competent to repeat particular sentences and ask if he testified to them, because the paper was the best evidence of what it contained. It was not incumbent upon the plaintiff's counsel to ask for explanations, nor to introduce the paper in evidence at that time. If he desired to ask the witness questions with reference to it, the court might, in its

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