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The appellant proved an arrangement made and existing with R. & S., by which as their agent he was to purchase cheese for them, putting himself in funds by drawing drafts upon them which plaintiff discounted. It appeared that for a time he drew sight-drafts but later desired to draw on time, when plaintiff required an indorser or additional security, and that R. & S. gave it their bond with a surety, conditioned for the acceptance and payment of all drafts drawn by the appellant for cheese purchased for them. This bond. recited that the appellant was authorized to purchase cheese for their account and to draw drafts in payment thereof on them which were to be discounted and cashed by plaintiff. The appellant also testified that in the negotiations respecting the time drafts he told plaintiff's cashier that he could not for the small commissions he was drawing take any risk on the drafts, and that the draft in suit was drawn and its proceeds used to pay for cheese bought for the drawees. The referee found in favor of plaintiff.

J. A. Steele, for applt.
A. M. Mills, for respt.

Held, No error; that the finding of the referee, being upon evidence both contradictory and admitting of contradictory inferences, must control.

Judgment of General Term, affirming judgment for plaintiff on report of referee, affirmed.

Opinion by Finch, J. All concur, except Rapallo, J., absent.

CONTRACT. ESTOPPEL.

N. Y. COURT OF APPEALS.

Chase, applt., v. The Second Avenue RR. Co., respt.

Decided Nov. 25, 1884.

The law will not imply an unwritten contract which the parties to it could not make without writing.

Plaintiff entered into a written contract with defendant whereby he was to have the exclusive right to place advertisements in its cars for two years. It was claimed that defendant having allowed plaintiff to hold over after the expiration of the contract, it was thereby renewed for two years. Held, That a contract such as is sought to be implied would be void under the statute of frauds; that plaintiff by using the cars after the first term acquired no new rights, and that the case was not one where the doctrine of estoppel in pais could be invoked.

This action was brought to recover damages from defendant for the breach of an alleged valid agreement. It appeared that in August, 1876, plaintiff entered into a written contract with defendant whereby, in consideration of $1,200 per year, payable $100 a month, he was to have the exclusive right to place advertisements in its cars for two years from Dec. 30, 1876, and in pursuance of that contract he placed and kept advertisements in defendant's cars for two years. After the two years had expired, without any further agreement, plaintiff continued to place and keep advertisements in said cars, making monthly payments of $100, until May 1, 1881, when, in pursuance of a notice requesting him to remove the advertisements from the cars on or before that day, it

removed them froin its cars and refused to permit him to place any more in them. Plaintiff claims that defendant having permitted him to hold over after the expiration of the contract until Dec. 30, 1880, and from that date until May 1, 1881, and defendant having received pay from him as before, defendant must be held by implication to have renewed the original contract for a term of two years from Dec. 30, 1880, and that at least, by permitting him to enter upon another year in 1881, it was bound to allow him to keep his advertisements in the cars for the whole of that year.

John Brooks Leavitt, for applt. Austen G. Fox, for respt. Held, Untenable; that the law will not imply an unwritten contract which the parties to it could not make without writing. contract such as is sought to be implied in this case would be void under the statute of frauds.

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Also held, That this action being one to recover damages for the breach of an alleged valid agreement, to maintain it plaintiff must show a valid agreement.

Also held, That by using the cars after the expiration of the first term of two years plaintiff acquired no new rights. It was always in defendant's power to put an end to his occupancy of its cars at any time.

A landlord has the option to treat his tenant who holds over after the expiration of his lease as a trespasser or a tenant for another year, but if he takes rent or other wise assents to the holding over

the tenant has the rights of a tenant for another year. 51 N. Y., 309. This is a technical rule, applicable only to real estate. 33 N. Y., 47.

Also held, That this is not a case in which the doctrine of an estoppel in pais could be invoked. Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion by Earl, J. All concur.

BILL OF LADING. ESTOPPEL. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

The Bank of Batavia, plff., v. The N. Y., L. E. & W. RR. Co., deft.

Decided Oct., 1884.

Defendant's agent gave W. a bill of lading

for articles which were never delivered to defendant, and plaintiff, relying upon the bill of lading, discounted W.'s draft on the consignee named therein. The draft was not paid, and W. was not responsible. Held, That plaintiff's loss is chargeable to defendant, and the articles are presumed to have been as stated in the bill of lading, notwithstanding the presence therein of the phrase "contents unknown."

Motion by defendant for new trial on exceptions at Circuit, ordered heard at General Term in first instance.

Defendant's agent made and delivered to W. an instrument as follows: "N. Y., L. E. & W. RR. Co., Batavia Station, March 7th, 1881. Received from W. the following articles (contents unknown) in apparent good order, viz., 35 barrels beans. J. T. Comstock,

New York. Marked and numbered as per margin, which the N. Y., L. E. & W. RR. Co. agrees to forward from Batavia to New York upon the following conditions, *** and the acceptance of this receipt by the shipper constitutes the agreement for the transportation of the above described goods or property. P. J. Weiss, Agent." On the same day W. drew his draft on J. T. Comstock, New York, for $175, payable at fifteen days at the Bank of Batavia, annexed it to that instrument and delivered it to plaintiff which discounted it. Plaintiff sent the draft forward for collection, but it was not paid. The property mentioned in the bill of lading was not delivered to defendant. W. was W. was not responsible. Plaintiff brought this action for the amount of the draft. Verdict was directed for the value of the amount of beans mentioned in the bill of lading. Defendant's exceptions were taken to the denial of a motion for nonsuit and to the direction of a verdict.

E. C. Sprague, for deft.
George Bowen, for plff.

Held, There is conflict of authority as to the extent to which limitation may be applied to the powers of the agent in behalf of the principal as against one in good faith relying upon the agent's act purporting to be within the scope of his powers, but in fact, as between the latter and his principal, done without authority. That the principal is not chargeable, see 10 C. B., 665; 8 Exch., 330; 18 Eng. L. & E., 351; 16 C. B., 104;

2 Eng. L. & E., 323; 18 How., U. S., 182; 15 Otto, 7; 9 Fed. Rep., 129, 142; 44 Md., 11; L. R., 10 C. P., 562; 14 Moak, 420: 3 Allen, 103; 8id., 109, 118; see Dan. Neg. Inst., 3 eḍ., §§ 1733, 1733a. Directly in conflict is 10 Neb., 556; S. C., 35 Am. R., 488, and the cases first cited seem not to have the support on principle of the courts of this State.

It is the necessary mercantile usage for the shipper to obtain advances on his bills of lading. 5 Durn. E., 683; 111 Mass., 163; 124 id., 311; 22 Hun, 327; 48 N. Y., 1. The holder of a bill of lading is presumptively the owner of the property mentioned in it, but the person taking it from a third person is chargeable with notice as against its true owner, if the possession of the one from whom he takes it is unlawful. Nor can it be effectual to vest title in one who, not being the owner or entitled, takes the bill of lading from the carrier. 60 N. Y., 40; 13 id., 121; 16 id., 325; S. C., 24 id., 638; 11 Mass., 99; 20 Wend., 267; S. C. 32 Am. Dec., 541; 89 Penn. St., 155; S. C., 33 Am. R., 745; 3 El. & B., 622. But the carrier may be liable to one making advances in good faith in reliance upon it, as for negligently or wrongfully issuing it to a person not entitled to it. 72 N. Y., 188. Such liability depends, not upon privity, but on the consequences of the negligence or wrong that permits and induces the third person to proceed and part with value to his prejudice. 13 N. Y., 599, does not reach the question here. The doctrine in

this State seems to be stated in 34 N. Y., 30. See 61 id., 237; 72 id., 472, 478; 80 id., 162, 163; 65 id., 111; 72 id., 188; 55 id.. 456; 22 id., 535; 69 id., 440; 61 id., 88; 40 id., 299; 44 id., 398. Plaintiff is in the situation to which equitable estoppel will for his protection be applied, against defendant, within the well-established rule in

this State.

Although the carrier is not concluded by the terms of the bill of lading as to the amount of goods, 28 N. Y., 590; 51 id., 410; 90 id., 430; yet proof is required to show that the contents are different from those mentioned in the bill of lading. 12 Cush., 27; 12 Gray, 488. Plaintiff has the right to charge his loss to the consequences of the act of defendant through its agent, and to base it upon the value of the contents of the packages as they were represented in the bill of lading.

As defendant treated the questions presented by the evidence as questions of law only, and did not request submission of any question to the jury, the exception does not raise any question of fact for the jury. 12 N. Y., 18; 43 N. Y.,

85.

New trial denied and judgment ordered for plaintiff on the verdict. Opinion by Bradley, J.; Smith, P. J., and Haight, J., concur; Barker, J., not voting.

TOWN BONDS.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT Charles G. Alvord, admr., applt.,

Vol. 20.-Nɔ. 7a.

v. The Syracuse Savgs. Bk. et al., impld., respts.

Decided Oct., 1884.

An action cannot be maintained by a taxpayer under Chap. 161, Laws of 1872, or § 1925 of the Code, against a bondholder who is a mere private individual doing or threatening no special injury to the town.

Appeal from judgment dismissing plaintiff's complaint.

The action was brought by a taxpayer of the town of Salina to have canceled certain bonds issued by said town to the Syracuse Northern RR. Co. in exchange for its stock. The bonds were all issued as early as Dec., 1870, and interest was paid up to and includ ing Aug. 1, 1880. The defendants, the bank and S., were holders and owners of certain of these bonds and the trial court found that they are "each bona fide holders and owners of their bonds respectively."

The court held that the right of action was barred by lapse of time and dismissed the bill as to all the defendants. This appeal is taken from so much of the judg ment as was in favor of the bank and S., no appeal being taken from the portion in favor of the railroad commissioner, who did not appear in the action.

Cornelius E. Stephens, for applt.
Geo. F. Comstock, for respts.

Held, Prior to the passage of Chap. 161, Laws of 1872, plaintiff as a taxpayer could not have maintained this or any similar action. 23 N. Y., 318; 61 Barb., 121; 65 id., 460; 63 id., 224, 287. That statute was designed to put

a remedy in the hands of taxpay

ers not existing prior thereto and

to give that remedy against "pub

PRACTICE. CASE ON

APPEAL.

lic officers and agents" as it is N. Y. SUPREME COURT. GENERAL

phrased in the title to the act. The substance of the Act of 1872 is found in 1925, Code Civ. Pro.

Neither the statute of 1872 nor $1925 authorize a taxpayer of a municipality to maintain an action against a bondholder who is a mere private individual doing or threatening no special injury or damage to the municipality in which the taxpayer is interested.

Ayers v. Lawrence, 59 N. Y., 192, and Metzger v. Attica & Arcade RR. Co., 79 N. Y., 171, distinguished.

Therefore this appeal discloses an attempt to have this court declare invalid bonds held in good faith, bought in good faith, by two defendants at the instance of a taxpayer who has not made a town officer or agent a party to the appeal. We are of opinion that appellant has no standing in court which entitles him to have the questions raised upon the merits of his bill as between him and a town officer or agent considered.

Plaintiff is not in a situation to assert the rights of the town in the premises. If the action were by the town to have surrendered the bonds issued then the right to maintain the action would not rest upon the statute or code already referred to. 65 Barb., 597; 1 T. & C., 130.

Judgment, so far as appealed from, affirmed, with costs.

TERM. FIRST DEPT.

Susan Pettit, respt., v. Asa Pettit, applt.

Decided Oct. 8, 1884.

A justice out of court has no power to make

an order striking exceptions to the findings and refusals to find of the court in an equity case from the judgment-roll and case on appeal as filed. When the judgment-roll and case on appeal

has been filed, a motion to correct it should be made to the Special or General Term. It is proper for the clerk, to whom written exceptions to the findings and refusals to find of the court in an equity case are presented, after the filing of the judgment-roll within the time specified for that purpose by 994 of the Code of Civil Procedure, to file the same and annex them to the judgment-roll as part of his return on appeal; and it is not necessary that such written exceptions should be made part of the case to be passed upon on settlement by the trial judge.

Appeal from an order of a justice of the Supreme Court made out of court and entered with the clerk for the purposes of the appeal.

This action was an equitable one and was tried by the court at Special Term and judgment was rendered for the plaintiff.

The defendant presented divers proposed findings of fact and conclusions of law, all of which were endorsed by the court, "declined." Within ten days after entry of the judgment and notice thereof, the defendant's attorney filed exceptions to the findings and conclu

Opinion by Hardin, P. J.; Fol- sions as made by the court, and lelt and Vann, JJ., concur.

exceptions to the refusals to find

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