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409; 87 id., 550. It was the re

CONTRACT. spondent's duty to see that the or.

N. Y. COURT OF APPEALS. der showed that the judgment was reversed upon the facts.

Whelan, respt., v. The Ansonia It appeared that defendant of Clock Co., applt. fered in evidence a deed from K.

Decided Nov. 25, 1884. and wife to O. & F., dated Febru

Plaintiff entered into a contract to varnish ary 21, 1848, and recorded Febru

·cases to be furnished by defendant, the ary 24, 1848, which conveyed cer

work to be done on defendant's premises tain premises, together with the aud to be examined and pronounced satismill and water privilege thereto factory by defendant before it was accepted belonging, and also all the right

and paid for. A fire occurred which de

stroyed the premises and contents including at all times to raise the mill-dam,

cases finished and partly finished by plainPlaintiff objected, on the tiff. Held, That he was entitled to recover ground that the rights of 0. in on quantum meruit for the work done alconnection with that dam were

though it had not been inspected. immaterial and irrelevant to the Affirming S. C., 15 W. Dig., 334. issue, and that plaintiff did not This action was brought to recomplain of any flowage froin the cover an amount claimed to be dam itself, and that deftadant due for work done by plaintiff could not give to another the right under a contract with defendant. to do on its land what it could not It appeared that in 1880 said condo itself. The objection was over tract was entered into for the varruled and defendant excepted. nishing by plaintiff of clock cases Several other deeds were then in- to be furnished by defendant. The troduced in evidence, showing title work was done in rooms of defendeventually in 0., all of them being ant’s factory by men furnished by received subject to the foregoing plaintiff. It was provided that objection. The objection was urged the work should be examined by on appeal that there was a want of defendant and pronounced satiscontinuity of the same claim for factory before it was accepted and twenty years. That objection was paid for. For a time plaintiff was not raised on the trial. Held, That paid on each of defendant's pay as if it had been raised on the trial days for the work that had been it might have been obviated it is inspected and pronounced satisnot available now.

factorily done. In November, Order of General Term, reversing 1880, defendant's factory and its judgment for defendant and grant- contents, including a great number ing new trial, reversed, and judg- of clock cases on which plaintiff ment for defendant affirmed. had performed labor, some being

Opinion by Miller, J. All con- finished and some unfinished, was cur.

destroyed by fire. Defendant claimed that plaintiff could not recover because the cases had not

been inspected. The Court held Vol. 20.-No. 6b.

was

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that plaintiff could recover on a dismissed as against him with quantum meruit, and a verdict for costs, and judgment accordingly $490 was rendered for him.

was entered. The Court held that Marshall P. Stafford, for applt. the husband

improperly J. D. Bell, for respt.

joined with his wife as defendant. Held, No error ; that defendant S. Hubbard, for applt. was liable for the work done, as James Wood, for respt. the clocks belonged to it, were in Held, Error. The question preits possession and under its con- sented, whether the husband may trol, and it was under an implied properly be joined as defendant obligation to furnish and keep with his wife in an action for the them in hand so that plaintiff tort of the latter having no relacould complete his work upon tion to the separate property dethem and thus earn his compensa pends upon the interpretation of tion.

$ 450 of the Code. Judgment of General Term, It has not been the policy of the affirming judgment on verdict for courts in this State to move in adplaintiff, affirmed.

vance of the clearly expressed leg. Per curiam opinion. All con islative purpose to remove the cur, except Rapallo, J., absent. common law liabilities, rights or

liabilities of coverture, or to mod

ify the marital relations. 57 Barb., HUSBAND AND WIFE. 9 ; 92 N. Y., 152. But see 65 III., SLANDER.

129 ; 16 Am. R., 578.

After an extended review of the N.Y. SUPREME COURT. GENERAL authorities, the result is reached TERM. FIFTH DEPT.

that the common law rule still reAnn Fitzgerald, applt., mains in force, and the husband is Charles Quirk Quann, respt. properly joined as defendant. See

3 Cow., 339; 6 Barn. & C., 253; 15 Decided Oct., 1884.

Johns., 403 ; 15 Wend., 361 ; 26 The husband is a proper party defendant N. Y., 606; 52 Barb., 141 et seq.;

with his wife in an action for slander | 3 Williams's P., 409, 411 ; 41 Vt., spoken by the wife.

311 ; 5 Harring, 441 ; 5 C. & P., Appeal from order setting aside 484 ; Married Wom. Acts of 1848, verdict in plaintiff's favor and dis- 1849 ; 18 How., 371 ; Code Civ. missing complaint, and from judg- Pro., $ 114; Acts of 1860, 1862 ; ment thereupon entered.

55 Barb., 417; S. C., 45 N. Y., Action for alleged slander by 230; 47 id., 577 ; 52 Barb., 141; respondent's wife, in which he and 57 id., 9; 77 N. Y., 369 ; 17 C. B. his wife were joined as defendants. N. S., 743; 5 Car. & P., 484; 11 Plaintiff had verdict at Circuit C. B. N. S., 265-6; 49 N. Y., 201; against both defendants, and on 2 Kent's Com., 149 ; 2 Bish. Mar. respondent's motion the verdict Wom., § 254; Cooley on Torts, was set aside and the complaint '115; Bac Abr., Baron & Feme,

V.

L.; 1 Black. Com., 442; 1 Wil him a writing as follows: "Can liams's P., 249, 257; 5 Barn. & andaigua, Nov., 14th, 1878. ReAdol., 303; S. C., 2 Nev. & M., ceived of Harris Andrews, 390 255; Bright, Hus. & W., 3; 8 bushels of wheat, in store. The Barn. & C., 1; S. C., 2 Man. & R., same is subject to him or option 124; 1 N. Y., 452; 110 Mass., to take price on or before the first 238-9; 62 Barb., 531; 92 N. Y., of May next. Richmond & 152; 21 Hun, 439 ; 1 N. Y. Civ. Smith." Before May 1st, plainPro., 278-9, notes; id., 360, 2 Mc tiff informed defendants that he Carthy's, 391 ; 65 How., 283; 3 N. would sell the wheat and take the Y. Civ. Pro., 388; 6 id., 51; Mass. market price. On receiving the St. 1871, Ch. 312; 110 Mass., 238 ; wheat, defendants put it in a bin 118 id., 58.

with some 200 or 300 bushels of Judgment and order reversed. wheat of the same kind and qual

Opinion by Bradley, J.; Smith, ity, owned by them, from which P. J., Barker and Haight, JJ., they were drawing every day for concur.

grinding. They informed defend

ant of their intention to so mix BAILMENT. SALE.

and manufacture the wheat. On

Jan. 27th the mill burned without N. Y. SUPREME COURT. GENERAL defendants' fault. . There were TERM. FIFTH DEPT.

then in the bin about 1000 bushels Harris Andrews, respt., v. Abell of wheat, of the same quality as Richmond et al., applts.

plaintiff's wheat and there had all

the time been more wheat in the bin Decided Oct., 1884.

than plaintiff delivered. Before Plaintiff delivered wheat to defendants, who the fire plaintiff had not demanded

were millers, and received the following a return of the wheat, nor had he receipt: “Received of A. 390 bushels of elected to make a sale and take wheat in store, subject to him or option to take price on or before May 1st." Defend

the market price. The trial court ants put the wheat in a bin from which

directed a verdict for $417.29. they drew every day for grinding. The

Comstock & Bennett, for applts. contents of the mill were destroyed by fire before May 1st. Held, Under the terms of John Callister, for respt. the receipt there was a bailment, and defendants are liable for the value of the

Held, That regarding the writwheat. If plaintiff consented to the mix ten instrument as embracing the ture and use of his wheat, there was a sale,

entire contract, defendants were and defendants are liable as before.

bailees, and were obliged to deAppeal from judgment on ver- liver on proper demand, the specidict at Circuit, and from order of fic wheat to plaintiff, unless they Special Term denying new trial. were relieved by an election by

Action to recover the market plaintiff to sell them the wheat, or price of certain wheat. Plaintiff it was destroyed without their delivered to defendants, who are fault. 4 Hill, 144 ; id., 107. In millers, some wheat, and they gave this view, the use of the wheat

before the fire was tortious, and | ties had been immorally intimate defendants are liable for its value. for two years before the promise

Conceding the contract to be was made, and that when it was that plaintiff consented that the made they were at a house of wheat might be mixed with de doubtful repute. Plaintiff testifendants' wheat and ground into tied that defendant said that if she flour which should belong to de- would stay all night with him he fendants, then the transaction was would marry her, and that she did a sale, and title passed to defend remain with him all that night. ants. Story Bailm., § 283; 4 On cross-examination she said : Comst., 76; 3 Seld., 433; 3 Mason, “He asked me if I was going to 478; 1 Blackf., 353 ; 2 Comst., 153; bed. I said no ; I was afraid. He 8 Greenl., 101; 1 Ohio, 244 ; Story said I need not be ; he would marBailm., $ 439.

ry me if I would go to bed with Plaintiff's mere consent to the him.” Q. Did you go to bed with mixture of the wheat was not in- him, under the circumstances ? A. consistent with a bailment. Story Yes, sir. Q. Had the subject of on Bailın., $ 40 ; 2 Black. Com., marriage ever been spoken of by 405 ; 19 N. Y., 334.

either one of you before that time? Ledyard v. Hubbard, 48 Mich., A. No, sir. 421; Inelson v. Brown, 53 Iowa,

C. Frost, for applt. 719; and Sexton v. Graham, Id., 181, distinguished.

E. D. Stokem, for respt. Judgment and order affirmed, Held, That the consideration with costs.

for the promise being illicit coOpinion by Barker, J.; Smith, habitation and vicious and immorP. J., Haight and Bradley, JI., al, is clearly void. 1 Parsons on

Cont.. 435; 16 Abb., N. S., 26.

That defendant is not precluded BREACH OF PROMISE. from raising this questioii on ap

peal by the fact that it was not N.Y. SUPREME COURT. GENERAL raised on the trial, because it could TERM. SECOND DEPT.

not have been obviated had it been Lina Lewis, respt., v. Eugene so raised. The fact was given by N. Goetschius, applt.

plaintiff and was understood.

Also held, That in view of the Decided Sept., 1884.

character and conduct of plainA promise of marriage made on condition of tiff and the facts disclosed the

illicit cohabitation is without consideration damages are plainly excessive. and void.

Judgment reversed and

new Appeal from judgment in favor trial granted, costs to abide event. of plaintiff.

Opinion by Dykman, J.; Pratt, Action for the recovery of dam- J., concurs ; Barnard, P. J., not ages for breach of promise of mar. sitting. riage. It appeared that the par

concur.

WILLS. PROBATE.

witnesses are all genuine and fully

authenticated, and no circumstanN. Y. SUPREME COURT. GENERAL

ces of suspicion appear against the TERM. SECOND DEPT.

will. The case, therefore, seems In re will of William S. Bogart, an eminently proper one for the deceased.

application of that wise provision

in the Code Civ. Pro., § 2620, that Decided Sept., 1884.

if a subscribing witness has forThe will in question was in the handwriting of gotten the occurrence or testifies

testator and contained the usual attestation against the execution of a will the clause. One of the witnesses testified that all the statutory requirements were com

will may be admitted to probate. plied with; the other testified that he signed By that section of the Code the at the request of testator, but did not know proof of the handwriting of the what the instrument was. Held, That the

testator and the subscribing witproof was sufficient to establish the will.

nesses seems to be given great Appeal from decree of surrogate prominence and importance. In admitting the will of Wm. $. Bo- addition to that proof we have gart to probate.

here the important fact that the The will was in the handwriting will itself is in the handwriting of of testator and contained an attes. the decedent, and that he held it tation clause as follows: “Signed, several months after its date besealed and published by the said fore he procured its attestation, so testator to be his testament in the that all opportunity for imposition presence of." G. and F. were the or misapprehension is effectually witnesses.

removed. Faultless compliance G. testified that testator told him with the statutory requirements is he wanted him to witness a paper established by one of the witnesses, which he had before him ; that and it is very significant that when testator pointed to it and said, the failing witness F. was called “This is my will and that is my in by testator he laid the paper signature ;" that witness read the down as he had done with the forattestation clause and put his name mer witness G., requested him to under it, and that testator re- sign it, and when he had signed it quested him to put down his ad requested him to add his residence dress. F. testified that when he precisely as he made the same resigned the paper he noticed the quest to G. It requires considersignatures of testator and G.; that able credulity to believe that he testator requested him to sign it did not at the same time publish and he did so, and that he asked his will and avow his signature. him to sign his residence, but that He knew its importance and neceshe did not know what the instru. sity, and relied upon F. for the ment was.

last witness to his will which was Held, That the proof was suffi. to dispose of his property. cient to establish the will. The All the presumptions arising handwriting of the testator and from the presence of the attesta

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