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in possession of the land, using it for agricultural purposes until his death in 1863; since then plaintiffs, who are his only children and heirs at law, continued in possession of said land and used the same for agricultural purposes until March 27, 1880, when defendant took possession of said land and excluded plaintiffs therefrom, claiming under a deed executed to him on a sale under certain executions against said cemetery corpo

ration.

John H. Bergen, for applt. Thomas E. Pearsall, for respt. Held, Plaintiffs were entitled to recover; that although the agreement contained express and technical terms by which the fee of the land was granted to the cemetery association, as on looking at the whole instrument it appears that it was not the intention of the grantor that it should be absolute, but merely conditional, and as the conditions are not subsequent but upon their performance the grantee's right depends, and as there has been no performance on the part of the grantee, it had no interest in the property to which judgments against it could attach, and consequently none that could be taken on execution.

The construction of a written instrument should be as near to the minds and apparent intent of the parties as possible, collected from the whole instrument. 1 N. Y., 96; 1 R. S., Edms. ed., 699, § 2.

Order of General Term, reversing judgment for defendant affirmed, and judgment absolute on stipulation.

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

STATUTE OF FRAUDS.

N. Y. COURT OF APPEALS. Drake, applt., v. Seaman et al., respts.

Decided Nov. 25, 1884.

A note or memorandum of an agreement to be valid under the statute of frauds must show on its face what the whole agreement is so far as the same is executory and remains to be performed and rests upon unfulfilled promises. Defendants agreed to hire plaintiff as salesman for three years and to pay him according to a writing signed by them which stated the salary to be paid, but said nothing as to the hiring. Held, That the memorandum was not sufficient and that the contract, being by parol for more than one year, was void.

Affirming S. C., 14 W. Dig., 374.

This action was brought to recover damages for an alleged breach of a contract of employ ment. It appeared that defendants agreed to hire plaintiff as salesman for three years and to pay him according to a writing signed by them in these words: "The understanding with Mr. Drake is as follows: $2,000 for the first year; $2,500 for the second year, sure; provided the increase sales shall warrant it he is to have $3,000; third year in proportion to business, as above." Plaintiff remained in defendants' employ for about two years, when they refused to employ or pay him. He tendered his services, and remained ready and willing to perform them during the remaining year of the

contract.

M. M. Waters, for applt.

Samuel Hand, for respts.

Held, That plaintiff was not entitled to recover; that the memorandum signed by defendants was not sufficient under the statute of frauds; that even if it were conceded that the consideration might be wholly omitted from it, it would still be requisite that it should contain all the essential and material elements of defendants' own agreement; as the memorandum omitted the very condition upon which they were to pay the subject-matter of the agreement was left out, and as the contract under which plaintiff was employed was by parol and not to be performed within one year it was void. 5 East, 10; 4 B. & Ald., 595; 3 Johns., 210; 13 id., 236; 10 Wend., 251; 13 id., 114; 25 N. Y., 159; 6 Abb., N. S., 399; 10 Hun, 343; 65 N. Y., 484; 68 id., 604; 72 id., 595.

man, 93 N. Y., 273, distinguished and limited.

Order of General Term, reversing judgment for plaintiff, affirmed, and judgment absolute on stipulation.

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

COSTS.

N. Y. SUPREME COURT. GENERAL
TERM. FIFTH DEPT.

Susan E. Hyland, respt., v. John H. Carpenter et al., exrs., applts.

Decided Oct., 1884.

Where no item of a contested claim against an estate is rejected and the amount actually due depends upon the mode of computation, or whether the claim bears interest, or from what time, Held, That an order for costs and disbursements to claimant on the ground of unreasonable resistance is not

error.

Plaintiff held against testator's estate a note made payable to The amendment of the statute of plaintiff after testator's death. frauds in 1863, Laws 1863, Chap❘ The claim was not allowed and 464, which declares certain con- was referred, and the referee sustracts void, unless in writing, and tained the validity of the note. which struck out the clause of An order was thereupon entered the Revised Statutes requiring the at Special Term allowing plaintiff consideration to be expressed, her disbursements and costs, on cannot be understood to destroy the ground that the action was unand annul the requirement that reasonably resisted and neglected. the note or memorandum must From that part of the order and contain all the substantial and the judgment of Special Term material terms of the contract be allowing costs and disbursements tween the parties. It must show the executors appeal. Notice for on its face what the whole agree- presentation of claims was duly ment is so far as the same is exec-published by the executors.

utory and remains to be performed and rests upon unfulfilled promises. Evansville Nat. Bk. v. Kauff

Plaintiff gave formal notice of her claim. Her moving affidavit states that within six months after the

notice was published she sent Carpenter a letter, directed to him at his post-office, and duly deposited the same in the post-office; that afterwards she and Carpenter had repeated conversations concerning payment of the claim, and that the only reason he gave for nonpayment was that he claimed an offset, which she declined to allow. Carpenter's opposing affidavit says that the claim was not presented within the prescribed time, but that after that time had elapsed he received a notice from plaintiff of her claim. The letter is not produced. | The referee allowed less than plaintiff's claim, he allowing interest, not from testator's death, but from a date beginning 18 months later.

D. B. Beach, for applts.
D. C. Feely, for respt.

Held, We think it proper, with out doubting the executor's truthful intent, to rely upon plaintiff's positive statements, that her claim was made in time, which was necessary to entitle her to costs. Code Civ. Proc., §§ 1835, 1836; 3 Denio, 261; 3 Wait's Prac., 533.

There was no necessity of verifying the claim. 2 R. S., (3d. Ed.) 152, 35; 3 Wait's Prac., 533.

When costs are allowed against the estate, disbursements follow as matter of course. 3 Wait's Prac.,

500.

The burden of proof was on defendants to show that the note had never become a complete contract by the act of delivery. The claim was unreasonably resisted under the rule.

Judgment and order affirmed, with costs and disbursements.

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

concur.

NON-SUIT.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

John Grant, applt., v. James Keef, respt.

Decided Oct., 1884.

Where there is a question of fact for the consideration of the court, a motion for non-suit should be denied.

Appeal from County Court judg. ment, affirming justice's judg ment.

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Action for alleged warranty on sale of hogs. At the close of plaintiff's testimony defendant moved for non-suit, on the ground that the evidence showed that plaintiff bought the hogs of Philip Keef, and not of defendant." The motion was granted. The justice would have been justi fied by the evidence in finding that the sale was made by defendant, and that it was so treated by Philip, who permitted plaintiff to understand that the hogs belonged to defendant. The evidence tended to prove that defendant affirmatively stated to plaintiff, to induce him to buy the hogs, that they had been castrated when young, when in fact that was not done until a short time before the sale; that this fact depreciated the value of the hogs, which plaintiff bought to butcher for the market. When plaintiff saw the hogs before com

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pleting the purchase they were in | Defendants, by written contract, agreed to

a dark pen; he then made his said inquiry and received defendant's statement; he paid for the hogs and took them away the same day and had them butchered; one of them was not fully healed, and when they were butchered the hams indicated that the castration had been recently done.

purchase of plaintiff certain iron to be shipped in December or January. No such shipments were made, and in February plaintiff told defendants he could give them the iron the following week, or give them the name of a vessel to sail that month. Defendants expressed themselves better satisfied with the latter arrangement, but before the vessel arrived rescinded the contract. Held, That the omission to furnish iron shipped in December or January authorized the rescission, and that the verbal arrangement subsequently made could not vary the substance of the contract and was not binding on defendants.

16

W. T. Byam, for applt. T. P. Heddon, for respt. Held, Error. Defendant must rely on the specific ground on which his motion was made. Hun, 683. That ground not being tenable, judgment should be reversed, unless there was no evidence that could in any view justify a conclusion in plaintiff's favor. 70 N. Y., 34, 37; 49 id., 671; 1 Abb. Dec., 432; 11 Abb. N. C., 305. The justice was authorized to find a warranty by defend53 Barb., 601; 19 Johns., 290; 10 Wend., 411; 51 N. Y., 198. It was a fair question of fact whether plaintiff was careless and within the rule of caveat emptor, 2 Cai., 202; 34 Barb., 367; and that question does not seem to arise on this appeal. 44 Barb., 536; 2 Cai., 48, 53; 1 Wend., 188-9; 5 N. Y., 98; 34 id., 120; 41 id., 488.

ant.

Judgment reversed.
Opinion by Bradley, J.; Smith,
P. J., Barker and Haight, JJ.,

concur.

CONTRACT.

N. Y. COURT OF APPEALS. Hill, applt., v. Blake et al., respts.

Decided Nov. 25, 1884.

This action was brought against defendants for not accepting a quantity of iron which plaintiff sold to them under a written contract, executed in the City of New York, by which defendant agreed to purchase at a price specified one hundred tons No. 1 Eglington Scotch iron, for shipment by sail, in December, 1879, or January, 1880, seller's option. The iron was not shipped as agreed. In Febru ary, 1880, plaintiff informed defendants that he could give them the iron in the week following or he could give them a vessel's name to sail from Great Britain that month. They expressed themselves as better satisfied with the later shipment. On February 26th the plaintiffs wrote defendants. "I am advised that the 100 tons Eglington pig iron sold last month is shipped per 'Enos Soule' from Liverpool (or London), reported as leaving 21st inst." He received no reply or other communication from defendants until April 8, 1880, when they gave him notice in writing that they had cancelled the contract for non-delivery according to its terms. The "Enos Soule"

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arrived with iron on board, and on the 23d of April it was tendered to defendants, but they refused to receive it, and plaintiff, after notice, sold the iron for $1,444.37 less than the price named in the contract, and now claims to recover that sum.

Thos. H. Rodman, for applt. Thos. Darlington, for respts.

Held, That plaintiff was not entitled to recover; that the omission to furnish iron shipped in December or January authorized defendants to rescind the contract. 89 N. Y., 540. The verbal arrangement subsequently made related to the thing sold or contracted for and is not binding upon defendants.

The substance of a contract valid only because in writing cannot be varied by parol.

No estoppel has arisen against defendants, there being nothing to show that plaintiff, in consequence of what was said, omitted to provide iron according to the contract, or that he could have provided it had no words passed with defendant.

It is not necessary to inquire whether the mere time of performance might be waived by parol, the only question being as to the identity of the thing sold. Judgment of General Term, General Term, affirming judgment of non-suit, affirmed.

Opinion by Danforth, J. All concur, except Ruger, Ch. J., and Earl, J., dissenting, and Rapallo, J., absent.

BASTARDY. AMENDMENT.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

William W. Ramsey, overseer, respt., v. David Childs, applt.

Decided Sept., 1884.

A Court of Sessions has no power to allow an amendment in a bond given on appeal to it by a defendant against whom an order of filiation has been made.

From an order of filiation made against him, defendant appealed to the Court of Sessions. He gave an undertaking for his appearance at that court, which was condi tioned that defendant should not depart the county without leave of said court. The proper condition is fixed by Code Crim. Pro., § 851, sub. 2: That defendant will appear at the next Court of Sessions of the county, to answer the charge and obey its order therein. Upon the ground of this defect respondent, at the Court of Sessions, got the appeal dismissed, and the Court denied the appellant leave to amend the undertaking. He appeals.

J. H. Bain, for applt. H. P. Gwinup, for respt. Held, That the undertaking was defective, and that the Court of Sessions had no power to allow an amendment. The undertaking is to be approved by the magistrate, and we see no authority for the court to accept a new undertaking. We doubt whether $729 and 730 of the Code of Civil Procedure apply. Another objection is that the offer to amend is by the defendant only. It does not appear

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