Hopper agt. Smith.

plaintiff might rely upon it, and the defendant must keep ready to perform it. Neither party by, his own act simply could free himself from its obligations. The sale then by the defendant in March, 1878, was not of itself a conversion, and did not, against the will of the plaintiff, create a cause of action in his favor against the defendant for the conversion of the certificate, so as to require the plaintiff's damages to be the value of the certificate at that time with interest. On the contrary, the cause of action did not accrue until the demand and refusal, and the measure of damages is the value at that time.

But if I am wrong in this conclusion, and if the defendant by his wrongful act terminated the contract before existing in spite of the plaintiff, and left the plaintiff from that time no remedy but an action for the conversion of the certificate, it does not follow that the rule of damages adopted by the court was wrong.

The case of Baker agt. Drake (53 N. Y., 211) does not fix an unvarying rule that the measure of damages is in all cases the market value of the property at or near the time of the conversion, with interest.

The rule laid down in that case is, that the measure of damages is a just indemnity to the party injured, regardless of the form of the action. The object in all cases is to indemnify the injured party even to the extent, if necessary, of giving him the highest market-price to the time of the trial (Weple agt. Haviland, 69 N. Y., 448-450), and not to permit him to recover speculative or conjectural damages.

The rule which governs in such cases is so fully and accurately laid down by judge DUER of the superior court, that I need not discuss it (Suydam agt. Jenkins, 3 Sandf. S. C., 614-622; 624-629). In this case the property in suit was a chose in action, which entitled the holder to receive a certain sum and interest. Prima facie that was, I think, the value of it (Booth agt. Powers, 56 N. Y., 22; Thayer agt. Manley, 73 N. Y., 306). It is fair to suppose that if the defendant

Lane et al. agt. Arnold et al.

had retained it, as he ought to, the plaintiff would not have parted with the right to redeem it. The plaintiff had a right to suppose that he might redeem it, and he actually did apply to do so. A just indemnity to the owner would give him the

actual face value of the certificate and interest within the rule of Suydam agt. Jenkins.

The rule adopted in this case is precisely that which was adopted by KENT in the case of Cortelyou agt. Lansing (2 Cai. Cas., 199-215), as the rule of damages in a like case. Although the opinion of judge KENT in that case was not delivered, it has frequently been cited, and is stated by judge FOLGER to be a correct exposition of the law (Booth agt. Powers, 56 N. Y., 27, 28). The case has never been overruled, and I am content on this branch of the case to rest my decision on the authority of judge KENT.

It is not necessary to discuss the question as to the form of the action. The facts are stated in the complaint, and the law awards to the plaintiff a just indemnity whether his action be in contract or in tort (Baker agt. Drake, 53 N. Y., 211–220). Upon both grounds discussed I think the ruling at the circuit was right.

New trial denied, with ten dollars costs.

N. Y. MARINE COURT.

GEORGE LANE et al. agt. THEODORE E. ARNOLD et al. Partnerships-Continuation of firm name by survivors and legal representatives - Effect of statute — Laws of 1833, chapter 281.

The evident object of the statute (Laws 1833, chap. 281) which provides that "no person shall hereafter transact business in the name of a partner not interested in his firm," so as to protect the public from the fraudulent use of firm names, and not to invalidate contracts otherwise legal, except in cases where the policy of the statute has been violated. M. L and H. were copartners under the name and style of M. L. & Co. M. died, leaving a will, whereby he appointed C. and E. his executors

Lane et al. agt. Arnold et at.

and legal representatives, empowering them to represent, manage and carry on in his name, for the benefit of his estate, his interests in said business of M L. & Co. Pursuant to this power the surviving partners of said firm, in conjunction with said C. and E, continued the firm's business under the old firm name of M. L. & Co., and under such firm name sold goods and made contracts:

Held, that the case does not fall within the mischief which the statute was designed to suppress; nor is the transaction one which the law makers, by this highly penal statute, intended to punish and invalidate.

Special Term, March, 1882.

MCADAM, J.-The evidence shows that Pierre A. Mayor, George Lane and Victor A. Hardin were copartners, under the name and style of Mayor, Lane & Co. That thereafter Pierre A. Mayor departed this life, leaving a last will and testament, wherein and whereby he appointed Benjamin L. Coffin and Richard T. Edwards his executors and legal representatives, empowering them to represent, manage and carry on in his name, for the benefit of his estate, his interests in said business of Mayor, Lane & Co. Pursuant to this power the surviving partners of said firm - George Lane and Victor A. Hardin-in conjunction with said Benjamin L. Coffin and Richard T. Edwards, continued the firm's business under the old firm name of Mayor, Lane & Co., and under this name they sold and delivered to the defendants goods upon which a balance of $216.99, with interest, is now due. These facts being conceded, the question has been raised whether the transaction offends that provision of the statute (1833, chap. 281) which provides that "no person shall hereafter transact business in the name of a partner not interested in his firm." It being conceded that the plaintiffs do not come within any of the subsequent statutes permitting surviving partners, upon complying with certain conditions, to continue the use of the partnership name, an examination of those statutes becomes unnecessary, and reference need be made only to the one cited.

The evident object of this statute was to protect the public from the fraudulent use of firm names, and not to invalidate VOL. LXIII

6

Lane et al. agt. Arnold et al.

contracts otherwise legal, except in cases where the policy of the statute has been violated (See Verona Central Cheese Co. agt. Murtaugh, 50 N. Y., 314; Ward agt. Erie Railway Co., 72 N. Y., 196; Zimmerman agt. Erhard, 83 N. Y., ,74; S. C., 60 How. Pr., 163).

Pierre A. Mayor was, at the time of his death, a member of the firm, and as such interested therein. Upon his death he directed his executors to continue the business in his name. They united with the surviving members of the firm in carrying out this request, and thus Pierre A. Mayor's interest was continued in the firm and existed there at the time the transaction in question was had, as effectually to all intents and purposes as if Mayor himself were living (See Story on Partnership, sec. 319, a). The executors of Mayor were his legal representatives in respect to the firm's business. They legally represented his interest, not only in business, but in all his worldly affairs. The propriety or advisability of continuing a business in this way may be open to criticism, and give rise to many embarrassing questions, but these are matters not now necessary to discuss. The case at bar does not fall within the mischief which the statute was designed to suppress, nor is the transaction one which the law-makers, by this highly penal statute, intended to punish and invalidate. The policy of the law is to bring the property of the dead within its protecting ægis, rather than to declare it forfeited by a strict construction of a penal statute. The transaction not being within the spirit and intent of the statute, and the contract being otherwise legal, it follows that the plaintiff is entitled to judgment.

McIntyre agt. Strong.

N. Y. SUPERIOR COURT.

EWEN MCINTYRE, respondent, agt. WILLIAM E. STrong, appellant.

Limited liability companies — personal liability of stockholders-Laws of 1875, chapter 611, secs. 25 and 37.

In an action brought against a stockholder of a corporation organized under the act of June 13, 1875 (Laws of 1875, chap. 611, p. 755) to recover for the default of the company in payment of rent for five quarters, from the 1st day of February, 1877, to the 1st day of May, 1878, at the rate of $1,000 per annum, under a lease for the term of five years from the 1st day of January, 1876:

Held, that, within the meaning of sections 25 and 37 of the act, the rent payable within two years from the time of executing the lease and delivering the premises, is recoverable in such action; the rent accruing beyond that time is not a liability that can be enforced against the individual stockholders.

General Term, January, 1882.

Before RUSSELL and ARNOUX, JJ.

APPEAL from a judgment, entered on the verdict of a jury and from an order denying a new trial.

Adolphus D. Pape and Henry S. Bennett, for appellant.

William J. Gibson, for respondent.

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ARNOUX, J. — This action was brought against a stockholder of the Excelsior Grain Binder Company, limited, a corporation organized under the act passed June 13, 1875 (Laws 1875, chap. 611, p. 755) for the default of the company in payment of rent for five quarters from the 1st day of February, 1877, to the 1st day of May, 1878, at the rate of $1,000 per annum. Plaintiff, by lease under seal dated the 1st day of January, 1876, acknowledged before the subscribing witness on the 26th day of January, 1876, let to said cor