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Scott N. R., 205 ; 8 B. & C., 42; 1 Held, That such statutes are not id., 424; 2 B. & Ad., 792; 11 East, applicable to this case, as the ordi685.

nance prescribing the fee defendAlso held, That the fee of the ant should pay per car did not streets being in the city for public impose a fine or penalty. purposes and upon public trusts, Also held, That plaintiff's claim and the use of the streets being to recover does not rest on the orgiven to a private corporation for dinance alone, but depends upon private gain without compensation the statute which requires the payand the corporate authorities of ment of the license fees to the city the city being representatives of independent of any ordinance. the public in the assertion of their Also held, That it was proper to rights, above construction should allow interest on plaintiff's claim. be held to apply the same as be Judgment of General Term, aftween corporations and individ- | firming judgment for plaintiff, uals. The strictest rules of inter-affirmed. pretation can therefore be properly Opinion by Miller, J. All coninvoked.

cur, except Rapallo, J., absent. Also held, That defendant's contract arises from the provisions of its charter by which it agrees to SALE. CONTRACT. pay a certain sum reserved therein N. Y. SUPREME COURT. GENERAL in consideration of the privileges

TERM. IFTH DEPT. conferred thereby. It is neither a tax nor a penalty, and hence tech Mortimer Ely, plff., v. Leander nical rules as to penal actions or Phelps, deft. suits to recover a tax have no ap

Decided Oct., 1884. plication.

In case of a grant by legislative An agreement to sell personal property, fol. power the right to collect the

lowed by delivery and acceptance, passes

title unless by some express condition title amount fixed as a license confers

is retained by the vendor. express authority to enforce the Parol evidence is inadmissible to show that payment of the same, and in no the parties to a written agreement intended sense can it be considered as the something not embraced within the mean

ing of the language of the writing. imposition of a tax or a penalty which is without sanction of law. Motion for new trial, on excep

Mayor, &c., v. Second Ave. RR. tions, at Circuit, ordered heard at Co., 32 N. Y., 261 ; Mayor, &c.,v. General Term, in first instance. Third Ave. RR. Co., 33 id., 42; Plaintiff agreed, in writing, to distinguished.

sell T. a farm and certain cattle It was claimed that the power and other personal property for of the Common Council to impose $12,900, payable in specified inany penalty or fine beyond $10 stalments, the first of which in has been taken away by various money was $1,600, to be paid July statutes.

1, then next. On payment of

$6,000 of the purchase money erty passed by delivery under the plaintiff was to give a deed and agreement. To defeat that pretake back a mortgage for the resi- sumption plaintiff must make it due, and to give T. possession on appear that by the terms of the February 1, then next. The agree. agreement title was reserved and ment contained this provision : "It could not pass to T. until the oc. is hereby understood by and be- currence of some prescribed event tween the parties to these presents or the performance of some act that the party of the second part subsequent to the delivery. 2 (Towle) is to keep the stock above Hill, 326 ; 40 N. Y., 314; 77 id., mentioned intact until the sixteen 391 ; 23 Hun, 513. The phrase, re. hundred dollars above mentioned quiring the purchaser to keep the is paid.” Plaintiff delivered to stock "intact," does not give that T., and the latter took possession conditional quality to the agree. pursuant to the agreement, and ment.

To interpret words and prior to July 1 T. paid plaintiff phrases of the agreement reference $1,200 of the $1,600 and paid no may be had to all of its provisions more. Subsequently, defendant, and its purpose, so far as can be who was then sheriff, as such, ascertained from it, and by the levied upon a portion of said cat- light of legitimate extrinsic cirtle executions issued against the cumstances. 1 N. Y., 96; 13 id., property of T. upon judgments 569; 45 id., 601 ; 32 id., 703, 706 ; against him, and sold the property 47 id., 597, 605 ; 66 id., 611; 10 so levied upon. This action is to

This action is to Bosw., 428. recover for such alleged conver Also held, That the rejection of sion. Plaintiff was non-suited, on parol evidence offered to prove the the ground that title to the prop- negotiation and talk between the erty passed by the agreement of parties to the written agreement sale and delivery to T.

before it was drawn and executed, C. D. Murray, for plff.

for the purpose of showing what 0. W. Johnson, for deft.

the agreement made between them Held, No error; that an agree was, was correct.

The presumpment to sell personal property, fol. tion at law is conclusive that an lowed by delivery and acceptance of agreement reduced to writing, exeit, pursuant to the agreement, passes cuted and delivered, expresses the the title to the vendee, unless by ultimate sense of the parties, and some express provision by way of parol evidence is not admissible to reservation or condition in it the modify or alter it. But, to gire title is retained by the vendor. effect to words and phrases, evi104 Mass., 262; 117 id., 321 ; 16 dence may be given to show that Maine, 17; 3 Am. Dec., 630 ; 17 they have a peculiar meaning. Maine, 344; 35 Am. Dec., 262; | And aid may also be given by 3 Duer, 335; 2 T. & C., 380 ; 2 proof of extrinsic circumstances, N. Y., 153. Here the presumption within proper limits. 12 N. Y., is that title to the personal prop. 40; 18 id., 502 ; 4 Hill, 129 ; id.,

107 ; 10 Bosw., 428; 10 J. & S., contradictory and admitting of contradic517; 118 Mass., 242.

tory inferences must control. If the phrase in question may This was an action upon a draft be treated as an ambiguity, it is a made by the appellant and drawn patent one, and cannot be ex upon the firm of R. & S., which plained by parol evidence. 1 D. was protested for non-payment. Chip., 227; 6 Am. Dec., 728; 11 Plaintiff proved that the appellant Gill & J., 457; 37 Am. Dec., 74; kept an individual account with 11 M. & W., 561; 1 N. C. Law, it ; that he was buying cheese for 484; 6 Am. Dec., 547; 6 Mass., numerous parties; that on Mon435; 1 Johns. Ch., 231 ; 14 Johns.,

ins., day, which was market day, he 1. Although there are exceptions would purchase cheese of numerto this rule, yet it is not permisous parties, paying by his checks sible to prove by parol evidence upon plaintiff, which largely overwhat the parties intended to ex drew his account and left him press by certain words. 5 Pick., debtor to plaintiff ; that on ascer : 163; 55 N. Y., 200; 1 id., 102; 45 taining the amount of his overid., 601; 47 id., 605-6.

draft he would pay it and make it New trial denied, and judgment good by drawing drafts upon those directed for defendant.

for whom he had purchaseà ; that Opinion by Bradley, J.; Smith, plaintiff permitted this to be done P. J., and Haight, J., concur; so long as he drew sight-drafts, Barker, J., not sitting.

but when he desired to draw on defendants, R. & S., on time,

which would tend to accumulate a REFERENCE.

liability, security was demanded,

and in the negotiation the appelN. Y. COURT OF APPEALS.

lant was distinctly told by plainThe Herkimer Co. Natl. Bk., tiff's cashier that R. & S. were not respt., v. Rust, impld., applt. a strong firm and an indorser

would be required on time-drafts ; Decided Nov. 25, 1884.

that plaintiff would serve him as In an action on a draft plaintiff testified that it did the rest of the cheese buy. defendant was accustomed to overdraw his

ers, that is, hold him first as account to purchase cheese for R. & S. and

drawer and then the indorser ; would make it good by drafts on said firm; that when he began to draw time-drafts se

that the same statement was made curity was demanded and he was distinctly to him when renewals were asked. told that he would be held first as drawer, It was also proved that the cashier and that after the failure of R. & S. defend

cautioned the appellant to be careant said that he was abundantly able to pay these drafts. Defendant testified that R. &

ful because of the financial weakS. gave plaintiff their bond with surety ness of his drawees, and after the conditioned to pay these drafts, and that failure of R. & S. the appellant defendant told plaintiff's cashier that he could not afford to take any risk on the said, “I suppose I am in for it,” drafts. Held, That the referee's finding in and added that he was “abundfavor of plaintiff being on evidence both antly able to pay these drafts.”

The appellant proved an arrange CONTRACT. ESTOPPEL. ment made and existing with R. & S., by which as their agent he

N. Y. COURT OF APPEALS. was to purchase cheese for them, Chase, applt., v. The Second putting himself in funds by draw- Avenue RR. Co., respt. ing drafts upon them which plain

Decided Nov. 25, 1884. tiff discounted. It appeared that for a time he drew sight-drafts but the law will not imply an unwritten conlater desired to draw on time,

tract which the parties to it could not

make without writing. when plaintiff required an indorser Plaintiff entered into a written contract with or additional security, and that R.

defendant whereby he was to have the ex& S. gave it their bond with a clusive right to place advertisements in its surety, conditioned for the ac cars for two years. It was claimed that

defendant having allowed plaintiff to hold ceptance and payment of all drafts

over after the expiration of the contract, it drawn by the appellant for cheese was thereby renewed for two years. Held, purchased for them. This bond That a contract such as is sought to be imrecited that the appellant was au

plied would be void under the statute of

frauds; that plaintiff by using the cars thorized to purchase cheese for

after the first term acquired no new rights, their account and to draw drafts

and that the case was not one where the in payment thereof on them which doctrine of estoppel in pais could be in. were to be discounted and cashed

voked. by plaintiff. The appellant also This action was brought to retestified that in the negotiations cover damages from defendant for respecting the time drafts he told the breach of an alleged valid plaintiff's cashier that he could agreement. It appeared that in not for the small commissions he August, 1876, plaintiff entered was drawing take any risk on into a written contract with dethe drafts, and that the draft in fendant whereby, in consideration suit was drawn and its proceeds of $1,200 per year, payable $100 used to pay for cheese bought for a month, he was to have the exthe drawees. The referee found in clusive right to place advertisefavor of plaintiff.

ments in its cars for two years J. A. Steele, for applt.

from Dec. 30,1876, and in pursuance

of that contract he placed and A. M. Mills, for respt.

kept advertisements in defend. Held, No error ; that the finding ant’s cars for two years. After of the referee, being upon evidence the two years had expired, withboth contradictory and admitting out any further agreement, plainof contradictory inferences, must tiff continued to place and keep control.

advertisements in said cars, makJudgment of General Term, af- ing monthly payments of $100, unfirming judgment for plaintiff on til May 1, 1881, when, in pursureport of referee, affirmed.

ance of a notice requesting him Opinion by Finch, J. All con to remove the advertisements from cur, except Rapallo, J., absent. the cars on or before that day, it

removed them froin its cars and the tenant has the rights of a refused to permit him to place any tenant for another year. 51 N. more in them. Plaintiff claims Y., 309. This is a technical rule, that defendant having permit applicable only to real estate. ted him to hold over after the 33 N. Y., 47. expiration of the contract until Also held, That this is not a Dec. 30, 1880, and from that date case in which the doctrine of an until May 1, 1881, and defendant estoppel in pais could be invoked. having received pay from him as be Judgment of General Term, affore, defendant must be held by firming judgment dismissing comimplication to have renewed the plaint, affirmed. original contract for a term of two Opinion by Earl, J. All conyears from Dec. 30, 1880, and that cur. at least, by permitting him to enter upon another year in 1881, it

BILL OF LADING. ESTOPPEL. was bound to allow him to keep his advertisements in the cars for N. Y. SUPREME COURT. GENERAL the whole of that year.

TERM. FIFTH DEPT.
John Brooks Leavitt, for applt.
Austen G. Fox, for respt.

The Bank of Batavia, plff., v. Held, Untenable; that the law The N. Y., L. E. & W. RR. Co., will not imply an unwritten con- deft. tract which the parties to it could Decided Oct., 1884. not make without writing. A

Defendant's agent gave W. a bill of lading contract such as is sought to be

for articles which were never delivered to implied in this case would be void

defendant, and plaintiff, relying upon the under the statute of frauds.

bill of lading, discounted W.'s draft on the Also held, That this action consignee named therein. The draft was

not paid, and W. was not responsible. being one to recover damages for

Held, That plaintiff's loss is chargeable to the breach of an alleged valid

defendant, and the articles are presumed to agreement, to maintain it plaintiff have been as stated in the bill of lading, must show a valid agreement.

notwithstanding the presence therein of the Also held, That by using the

phrase “contents unknown.” cars after the expiration of the Motion by defendant for new first term of two years plaintiff trial on exceptions at Circuit, oracquired no new rights. It was dered heard at General Term in always in defendant's power to first instance. put an end to his occupancy of its Defendant's agent made and decars at any time.

livered to W. an instrument as A landlord has the option to follows: “N. Y., L. E. & W. RR. treat his tenant who holds over Co., Batavia Station, March 7th, after the expiration of his lease as 1881.

1881. Received from W. the fola trespasser or a tenant for another lowing articles (contents unknown) year, but if he takes rent or other in apparent good order, viz., 35 wise assents to the holding over / barrels beans. J. T. Comstock,

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