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that it reduced their value to the extent of $250. The court also found that a private right of way existed over the premises at the time of the conveyance, but it had since been abandoned, and that plaintiff sustained no substantial injury by reason thereof, and awarded only nominal damages therefor.

Thompson & Spencer, for applts. John H. White, for respt. Held, That the findings were supported by the evidence, and that there was a breach of the covenant against incumbrances, in both

cases.

Judgment modified by striking out other items of damage.

Opinion by Corlett, J.; Smith, P. J.; Barker and Bradley, JJ.,

concur.

ASSIGNMENT. CONSIDERA

TION.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Seth G. Rowley et al., applts., v. The First M. E. Church of Medina, respt.

Decided Oct., 1884.

An order not drawn upon or designating any particular fund, nor specifying any amount to be paid, but merely directing the pay.

ment of "the amount of our account with them" (the payees), may, by virtue of a parol agreement between the drawer and payees, and notice thereof to the drawee, operate as an equitable assignment of moneys to become due, so far as may be necessary to satisfy the amount of the present and any future claims that may be due to the payees of the order.

An agreement to forego the payment of a present claim and to sell and deliver goods

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on credit, in consideration of such an order, and a parol agreement that the payees of the order shall be entitled to demand and receive certain installments to become due from the drawee, is a good consideration for a promise by the latter to pay such installments in satisfaction of the payees' claims, and renders him liable for a wrongful payment to the drawer. The promise is to pay his own debt.

The making of the agreement having been assumed on the trial, the insufficiency of the proof establishing it cannot be raised for the first time on appeal.

Appeal from judgment dismissing plaintiff's complaint.

Suit was brought to recover a certain amount due from defendant to L. & G., contractors for the erection of a parsonage, plaintiffs claiming under an alleged equitable assignment. L. & G. contracted to erect the builling for $1,950, to be paid in installments as the work progressed, and to be completed October 15, 1882. Work was commenced July 1, but was abandoned September 15, 1882. On the 20th July $700 was due the contractors, who were indebted to plaintiffs in the sum of $437 for materials used in the building of the house. It was agreed that L. & G. should receive the $700, and plaintiffs should wait until future payments fell due, which should be paid to plaintiffs until the future as well as present indebtedness to them for materials furnished and to be supplied should be fully paid; that plaintiffs should notify defendant of the amount which should be their due, as occasion required, and that L. & G. should give an order on defendant to carry out this arrangement. The order was dated the same day,

addressed to the "Committee of the M. E. Parsonage," and requested them to pay plaintiffs "the amount of our account with them," upon upon which plaintiffs wrote in pencil, "Amount of L. & G. account with us to this date, $437., R. & E.," and presented the same on that day (but after the $700 had been paid to L. & G.) to the committee and informed them of said arrangement, who agreed to pay plaintiffs in pursuance thereof, and kept the order. The next installment was paid to L. & G. without the knowledge or consent of plaintiffs, though they received the one following, leaving a balance due plaintiffs at the time of abandonment of the work. De fendant had been notified from time to time of the amount of plaintiffs' claim. Plaintiffs claimed that the order, under the circumstances, operated as an equitable assignment of future installments when they became due, and that defendant was not protected by such wrongful payment. The court dismissed the suit, on the ground that as no particular fund was designated in the order, it could not operate as an equitable assignment.

Brundage&Chipman, for applts.
S. E. Filkins, for respt.
Held, That the facts proved

89 id., 508, 518-9; 14 Hun, 355: 115 Mass., 374.

Plaintiffs' agreement to postpone the payment of their demand, and to continue to supply materials for the erection of the building, and to rely for payment out of future installments, constituted a good consideration for defendant's promise. The moment an installment fell due it equitably belonged to plaintiffs, and defendant had no right, after its agreement and the notice it received, to pay the money to the contractors. It had agreed to pay its own debt, when it arose, to plaintiffs.

Defendant contended that the only evidence given of the agreement between plaintiffs and the contractors was a conversation between plaintiffs and defendant at the time of the delivery of the order, and that the actual making of that agreement was not proven. But this point was not made at the trial, and it was assumed that plaintiffs truly stated the agreement to defendant's agents.

Held, Untenable on appeal. Judgment reversed and new trial granted.

Opinion by Corlett, J; Smith, P. J., Barker and Bradley, JJ., concur.

EVIDENCE.

established a good equitable assign- N. Y. SUPREME COURT. GENERAL

ment of the installments to become due so far as to satisfy plaintiffs' present and future claims against the contractors. 61 Barb., 489; 64 id., 593; 1 Keyes, 193; 25 N. Y., 239 60 id., 438; 77 id., 45; 81 id., 454; 83 id., 318;

TERM. FIFTH DEPT. Robert Gilbert, respt., v. John B. Manning, applt.

Decided Oct., 1884.

The admission, against objection, of a party's declarations in his own favor made to an

employee of his adversary, who had no authority to bind him by his answers, is such an error calculated to influence the jury and prejudice the adversary's case as calls for a reversal of the judgment, although the question put did not call for the whole conversation, and no objection was made to the admission of the employee's answers against his employer's interest.

Appeal from a judgment of the County Court upon the verdict of a jury.

Action brought to recover the price of ninety bushels of barley delivered, and damages for refusing to accept sixty bushels as agreed. The answer alleged that the former was of inferior quality and worth much less than the contract price, and denied any and denied any contract to purchase the latter. Plaintiff testified that he made a contract with defendant's foreman, at his malt house, to sell and deliver one hundred and fifty bushels of barley, at the market price, which should be ascertained by the quotations in the newspapers, which, on the day of sale, was $1.04 to $1.05 per bushel. That he delivered ninety bushels, and soon after offered the balance, but the foreman refused to accept, stating as a reason that the malt house was full, and thereupon plaintiff stored the barley. That afterwards he called at defendant's office and stated to a man there in charge that he had delivered ninety bushels of barley at the malt house, but the foreman refused to receive the balance and stated the reason why he refused it. He was then asked what that reason was, but defendant objected, on the ground that it had not

been shown that the man in the office had any anthority to act for or bind the defendant by any statements or admissions whatever. Objection overruled and exception taken. Witness said that the foreman refused the barley because the malt house was full; the man replied that "they haven't got much barley in there; I don't doubt but that Manning has stopped him from paying the high price they have been paying down there; I don't doubt that at all." Defendant's evidence tended to show that the contract called for barley of good quality, and that no more was purchased than the amount delivered; that it was examined the next day and found to be of inferior quality, not fitted for malting, and not worth more than seventy-five cents per bushel. The evidence was conflicting as to the weight, quality and value of the barley delivered and offered to be delivered. Verdict for plaintiff for $95.77, being the contract price of the ninety bushels of barley. H. C. Day, for applt. Giles E. Stilwell, for respt.

Held, That the question was improper, although it did not call for the whole conversation, and the evidence given was calculated to influence the jury and prejudice the case of the defendant. There being no proof that the man in charge of the office was authorized to hear plaintiff's statements and answer them, they were clearly inadmissible, as defendant could. not be bound by the answers given. It is fair to assume that the ques

tion was put either for the purpose of strengthening plaintiff's testimony that the foreman did assign such reason, or of getting the man's declarations into the case, or for both purposes. The man's declarations clearly imply that the foreman's statement was untrue; that the real reason for the refusal was that the price was too high, but not because of the inferior quality of the barley. It is no answer that the question did not call for the whole conversation, or that defendant's counsel did not object to the admission of the man's declarations. Plaintiff's declarations in his own favor were just as inadmissible as the rest of the conversation, and the whole must be treated as in the case by his own procurement against defendant's objection. For the admission of such evidence all the cases agree that the judgment should be reversed. 76 N. Y., 170-2; 78 id., 503; 54 id., 334; 71 id., 118–135; 12 N. Y. Weekly Digest, 334; 1 N. Y., 519; 9 Barb., 619.

Where the falsity of a statement in an appli-
cation filled in by one employed by the in-
surer to collect and report facts and infor-
mation as to conditions of risks is set up as a
defence, the insured may show that he
stated the facts correctly and recover with-
out demanding a reformation.
Where a building is insured as unoccupied it
is not necessary for the insured to obtain
the consent of the company that it may re-
main so, even though it may have been oc
cupied for a time after the policy issued.
Where the company retains the proofs of loss

without objection that timely notice was
not given, and bases its refusal on other
grounds, it waives the objection that the
insured failed to give immediate notice of
loss.

Appeal from judgment in favor of plaintiff, entered on the decision of a referee.

Action on a policy of fire insurance covering a building. Defend ant claimed, 1, that the policy never took effect because it was untruly stated in the application that the dwelling was then occu pied, when in fact it was unoccupied; 2, that it was not occupied at the time of the fire; and 3, that plaintiff failed to give immediate notice of the loss, as required by the policy. The application con

Judgment reversed and new trial tained the following question and

ordered.

Opinion by Corlett, J.; Smith, P. J., Barker and Bradley, JJ.,

concur.

FIRE INSURANCE.
N.Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Isaac W. Bennett, respt., v. The Agricultural Insurance Co. of Watertown, applt.

Decided Oct., 1884.

answer: "Q. For what is it occupied? A. Residence." The policy provided that if the dwelling is unoccupied at the time of effecting the insurance and it is not so stated in the application, the policy shall be null and void. At that time the building was unoccupied, and had been for two months.

The application was written by a solicitor who was without power to issue, or to alter or modify policies after they were issued. The complaint alleged that plaintiff in

formed the solicitor that the house | sured may show that he correctly stated the facts and recover, without demanding a reformation of the contract. 78 N. Y., 462; 80 id., 291.

was unoccupied and asked to have the contract reformed. The referee found, on conflicting evidence, that plaintiff so informed the solicitor, and decided that the application should be reformed so that the answer would read "Not occupied."

A. H. Sawyer, for applt. D. A. King, for respt. Held, No error. Under the facts found by the referee the rights and liabilities of the parties are the same as though the application had correctly stated that the building was unoccupied. When a person employed by an insurer to collect and report facts and information as to condition of risks writes a report of existing conditions and of the information received, which is signed by the insured in good faith, the insurer is estopped from showing the conditions or information to have been otherwise than reported, even though the insurer relied upon the truth of the report and issued a policy on the faith of it. This rule rests upon the plain reason that the person so employed is the agent of the insurer and is not the agent of the insured. The fact that the person so employed is not appointed by the insurer for that purpose is quite immaterial if the insurer knows the person is so acting and ratifies his acts by issuing policies on his reports. 36 N. Y., 550; Trans. App., 285; 7 Daly, 321; 74 N. Y., 360; 78 id., 568; 80 id., 281; 92 id., 274. When the insurer sets up the falsity of a report so made as a defence the in

Vol. 20.-No. 9b.

The question and the answer reported and the answer given relate exclusively to the condition of the building at the date of the application. The condition of the risk was a fact which the solicitor was authorized to ascertain for defendant by inspection or by questions put to and answers received from the insured. This solicitor had been accustomed, with defendant's approval, to write the answers in applications on which policies. were subsequently issued, and thus became, by the course of business, the agent of defendant for this purpose, and notice to him of this class of facts was notice to defendant, and his mistake was defendant's mistake.

The policy having taken effect as a valid contract of insurance upon an unoccupied building the insured was not required by the terms of the policy to obtain "written consent" that it might thereafter remain unoccupied. 90 N. Y., 16. Nor is the rule changed by the fact that after the policy took effect the dwelling was occupied for a time, then vacated and remained unoccupied until burned. The second defense is therefore unavailing and need not be considered.

Plaintiff gave notice of the fire to the solicitor and signed the proofs of loss, which he left with defendant's general agent. The following day said agent wrote

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