works at Coney Island during the season, work within a time specified, a certain sum
and plaintiff agreed to erect for B. certain for each day that the time taken to com.
sheds suitable to be used in manufacturing plete such work exceeded the stipulated
and storing fireworks and to pay him about time. Held, Tbat the sum so forfeited was
$500 upon the execution of the contract stipulated damages and not a penalty.-
and $300 after each exhibition, and it was Reilley v, The Mayor, &c., of N. Y., 130.
also agreed that the cost incurred by plain-
tiff in erecting the sheds should be taken as 8. Plaintiff entered into a contract to varnish
representing the last payment, and that at cases to be furnished by defendant, the
the conclusion of the series of displays the work to be done on defendant's premises
sheds should be disposed of for the benefit and to be examined and pronounced satis.
of B. This contract was not carried out by factory by defendant before it was accepted
B., who gave only eight displays instead of and paid for. A fire occurred which de-
twelve. Held, That the title to the sheds stroyed the premises and contents, includ-
did not pass to B., and that the defendants, ing cases finished and partly finished by
who purchased the sheds from B. with plaintiff. Held, That lie was entitled to
knowledge of plaintiff's claim, acquired no recover on quantum meruit for the work
title. — Foote v. Warden et al., 28.
done although it had not been inspected. —
Whelan v. The Ansonia Clock Co., 137.
2. When it is usual for the ice in a certain
harbor to break up and navigation to open 9. Parol evidence is inadmissible to show that
in the last of February or first of March, the parties to a written agreement intended
the loading of a cargo on board a ship in something not embraced within the mean.
that harbor on the 3d of February is a ful ing of the language of the writing.-Ely v.
fillment of a contract entered into on the 2d Phelps, 147.
of February, requiring “prompt ship-
ment," although on account of the very
10. The law will not imply an unwritten con-
unusual severity of the winter the ice does
tract which the parties to it could not make
not break up and the ship leave port until without writing. - Chase v. The Second Au.
the 3d of April. --- Tobias et al. v. Lissberger, RR. Co., 150.
39.
11. Plaintiff entered into a written contract
3. A contract to deliver iron rails " per
with defendant whereby he was to bare
prompt shipment by sail from Europe" is the exclusive right to place advertisements
free from ambiguity and permits the shipper in its cars for two years. It was claimed
to take the entire range of European ports
that defendant having allowed plaintiff to
to obtain and ship the rails, and evidence hold over after the expiration of the cun-
showing what the phrase per prompt tract, it was thereby renewed for two years.
shipment from Europe" is understood to Held, That a contract such as is sought to
mean in the trade and that it is not intend be implied would be void under the statute
ed by it that the shipment should be made of frauds ; the plaintiff by using the cars
at a Baltic port is not admissible.-Id.
after the first term acquired no new rights,
and that the case was not one where the doc-
4. A contract for the exchange of lands pro. trine of estoppel in pais could be invoked. -
vided that “either party failing to comply Id.
with this agreement shall forfeit to the
other the sum of $1,000.” Held, That the 12. Where the offeree either in words or in
sum named was a penalty and not liqui effect departs from the proposition, or varies
dated damages, and that in case of a failure the terms of the offer, or substitutes for
to perform the measure of damage should
the contract tendered one more satisfactory
be įhe damage actually resulting therefrom.
to himself, there is no assent and no con-
-Lauren v. Bernauer, 76.
tract, unless the offerer actually signifies
his assent to the proposition as moditied or
5. An agreement made by parties having liens varied. An actual forbearance of the debt
upon property about to be sold at public for the time specified in the modified ac-
sale to refrain from bidding at the sale is ceptance of the offeree, but without any
not against public policy as preventing communication of assent to give such time,
competition at such sale, provided it was is not sufficient to constitute a contract and
fairly made to protect the lien of the par render the offeree liable.- Nundy v. Mat-
ties. — Meyers v. Doeman, 111.
theus, 161.
6. Such an agreement is sufficient considera 13. A subsequent recognition by the parties
tion to support a contract.-Id.
that a valid contract existed between them
is not, of itself alone, material, unless in
7. A contract with the city for the regulating fact such a contract had actually been
and grading of a certain street contained a made.-ld.
provision authorizing the city to retain out
of the moneys which might be due or be 14. An agreement to forego the payment of
come due to the contractor under the a present claim and to sell and deliver
agreement, as liquidated damages and not goods on credit, in consideration of an
as penalty for the non-completion of the order, and a parol agreement that the
payees of the order shall be entitled to written contract the evidence of a mistake
demand and receive certain installments to or fraud,, through which the instrument is
become due from the drawee, is a good different from what the parties intended it
consideration for a promise by the latter to should be, must be clear and unquestion-
pay such installments in satisfaction of the able. If there is any serious conflict of
payees' claims, and renders him liable for evidence upon this point equity will not
a wrongful payment to the drawer. The relieve. — Bartholomeu The Mercantile
promise is to pay his own debt. — Rowley et Marine Ins. Co., 289.
al. v. The First M. E. Ch., 205.
22. In an action to reform a contract by can.
15. The making of the agreement having celling a portion by which the plaintiffs
been assumed on the trial, the insufficiency were made members of a partnership and
of the proof establishing it cannot be raised agreed to pay the partnership debts, cred.
for the first time on appeal.-Id.
itors of the firm who are not parties to the
contract are not proper parties to the ac-
16. Where an agent, in violation of his in-
tion, and an appeal by them from judgment
structions, contracts debts in the name of
therein will not lie. - Wheat et al. v. Rice
his principal, he himself is liable therefor,
et al., 292.
and where the principal furnishes him withi
money to pay them the advance so made is 23. The defendants by letter fixed a price for
a good consideration for his promise to coal “for cash on order and for immediate
perform any lawful act.-Ilumaston et al.
delivery only.” Plaintiffs accepted the
v. Beekman, 238.
offer and stated they would send their boat
to the shipping point. They did so and
17. The measure of damage in an action for
also paid the purchase price ; they notified
breach of an agreement to perform a posi-
defendants that they were ready to load
tive act is not the consideration paid, but
and would hold them for delay. Owing to
the actual loss sustained, after reasonable
a custom at the coal port that boats should
care on the part of the injured party to
prevent its being unduly magnified. -I..
take their turn in loading at the chutes,
plaintiffs' boat was delayed ten days. They
18. A writing in the form of a promissory note
accepted the coal on its arrival, but recov-
was indorsed, “ The within to be paid when
ered of defendants for the difference in
M. pays a note of $70 to L. or bearer,
price of the same grade of coal which they
dated December 19, 1878.” Held, That the
were compelled to buy through the delay
instrument was not a promissory note, but
in shipping. Held, proper. - Sherman et al.
a mere agreement to pay the sum named on
v. Caldweł et al., 305.
its face at the time and in the event men-
tioned in the indorsement.--Stout v. Lidaell,
24. Under an agreement to work for a certain
247.
period if the parties should so long agree,
what evidence is sufficient to sustain a ver-
19. Defendants, by written contract, agreed dict for plaintiff, finding in effect a bona
to purchase of plaintiff certain iron to be fide disagreement, excusing his leaving the
shipped in December or January. No such service before the expiration of the term
shipments were made, and in February limited.—Tormon v. Holton, 443.
plaintiff told defendants he could give them
the iron in the following week, or give 25. Defendant agreed, in writing, to give
them the name of a vessel to sail that plaintiff a certain cow, she to have com-
month. Defendants expressed themselves plete delivery at the end of the year or
better satisfied with the latter arrangement, another cow as good. Before the year ex-
but before the vessel arrived rescinded the pired he sold said cow. In an action for
contract. Held, That the omission to fur its value, Held, That no demand previous
nish iron shipped in December or January to the commencement of the action was
authorized the rescission, and that the verbal necessary; that at most the agreement
arrangement subsequently made could not gave defendant the option to furnish
vary the substance of the contract and was another cow as good as the one transferred,
not binding on defendants.—Hill v. Blake which he failed to exercise. — Doner v. Wil-
et al., 263.
liams, 456.
20. B. was negotiating for a sale of chattels 26. In an action upon a land contract it is
to a partnership, one of the members of competent for defendant to sbow that such
which objected to certain terms of B.'s contract was abandoned and rescinded and
offer ; thereupon the other two members of that a new contract, as to other subject
the firm agreed orally with B. that if he matter, was accepted by plaintiff in full
would accede to their partner's wishes they satisfaction, and this may be done by parol.
would themselves pay B. according to the -Smith et al. v. Brady, 468.
objectionable terms. Held, That the oral
promise was a distinct contract and binding 27. Plaintiff and one H. by written contract
upon the promisors. —Pond v. Starkweather
granted the exclusive right to use their
et al., 265.
patent to the Clock Co., the latter agreeing
to pay royalties on each instrument manu.
21. Where one seeks the reformation of a factured under the patent. The contract
provided that on failure to make returns or
payments within a specified time the license
might be terminated It also provided that
the Clock Co. should pay at least $8,000
per year by way of royalties, and if it failed
to do so should forfeit the right to manu-
facture under the patent “if the parties of
the first part shall so elect by a notice in
writing to that effect within ten days after
the close of any year in which less than
that sum is paid. Held, That the only right
of election reserved to the patentees related
to a forfeiture and not to the payment of
the $8,000 ; that no contingency was pro-
vided for in which they could require more
than the schedule rates of royalties. — Wing
v. The Ansonia Clock Co., 496.
See ATTORNEYS, 5 ; BROKERS, 1, 2; CORPO-
RATIONS, 7, 8; EVIDENCE, 6, 7, 9, 10 ; Ex-
ECUTORS, 6; FRAUD, 4, 14 ; N. Y. CITY ;
PLEADING, 1 ; SALE ; TAXES, 9.
CONVERSION.
1. In an action against a sheriff and his in-
demnitors for damages for a wrongful levy
and sale of a lathe claimed by plaintiffs as
mortgagees, it was admitted ihat the sheriff
had an alleged execution in favor of the in-
demnitors against one C., but the indemni-
tors did not prove that they were creditors
of C. or that they had a judgment against
him. Held, That they were not in a posi-
tion to attack plaintiffs' title for fraud. -
McKinley et al. v. Boue et al., 13.
2. Plaintiffs proved that they gave notice of
their claim and forbid the sale; that one of
the indemnitors nodded to the auctioneer,
who announced that the purchaser would
get a good title, and knocked down the
lathe to the indemnitors. Held, Sufficient
to charge all the defendants with a taking.
-Id.
3. Plaintiff proved that he entered peaceably
upon certain land, felled timber, cut it into
logs and prepared to draw them away upon
roads made by him for the purpose. Held,
That plaintiff showed such a possession of
the logs as enables him to recover from de.
fendant, a mere intruder, who converted
the logs and timber to his own use. - Lyon
V. Sellew, 35.
See BROKERS, 2 : CHATTEL MORTGAGE, 4;
FRAUD, 16.
or purchaser with notice cannot set up the
failure to file the assent as a defense to the
prior mortgage.-Id.
3. A mortgage given to secure a loan with
which to pay debts is one executed to se-
cure the payment of debts of the corpora-
tion within the meaning of Ch. 517, Laws
of 1864, although not executed to the cred.
itors of the corporation.-Id.
4. Plaintiff, a private corporation, entered
into a contract with the village authorities
to supply the village with water for extin-
guishing fires, in consideration whereof
plaintiff was to receive a yearly rental and
to be exempted from all corporation taxes.
Held, That it was not exempt from taxation
for town, county and State purposes. -
The People ex rel. The Mills Waterworks Co.
V. Forrest et al., 20.
5. The validity of a consent given by a de-
fendant corporation to a third person or a
body cannot be adjudicated upon in a pro-
ceeding to which such person or a body is
not a party. - The People ex rel. The 2d Ave.
RR. Co. v. The Board of Comrs. of Public
Parks, 93.
6. The Park Board is not a corporation and
there is no statute authorizing actions
against it by its official name.-Id.
7. The plea of ultra vires should not prevail,
whether interposed for or against a corpo-
ration, when it would not advance justice,
but on the contrary would accomplish a
legal wrong.–The Rider Life Rafi Co. v.
Roach, 297.
8. R. & S. entered into a contract with plain
tiff by which they were to receive a part of
its capital stock, be elected trustees, furnish
means and carry on its business, &c. Held,
That the agreement was not ultra cires, and
that the contract of R. & S. being a joint
obligation there was a joint liability on
their part for moneys received by either. -
Id.
9. The right of action against trustees of a
manufacturing corporation for violations of
$ 12 of Chap. 40, Laws of 1818, prior to the
passage of Ch. 510, Laws of 1875, was taken
away by the latter act. — The Victory Webb
Printing Co. v. Ford et al., 310.
10. Funds drawn out of bank by the treas-
urer of a corporation, on express authority
of the board of directors, and thereafter
held by him apart from his own funds,
cannot be considered as held by him per-
sonally, but they are to be considered as in
the possession of the corporation or of him-
self
as treasurer of the corporation.-Butler
v. Duprat, 350.
11. In an action by the receiver of an insolv.
ent corporation, where the complaint al-
leges the receipt by the defendants of
certain moneys as commissioners to receive
1. A mortgage given by a corporation without
the assent of its stockholders is made valid
by a subsequent assent where no interven-
ing rights exist. — The Rochester Savgs. Bk.
V. Averill et al., 9.
2. It is not indispensable to the validity of
the mortgage that the assent should be filed
in the county where the mortgaged prop-
erty is situated. A subsequent mortgagee
action divers claims on the understanding
with the attorney that collections thereon
were to be applied in satisfaction of J.'s
claims, and the surplus to be paid to E. Of
this J. was aware. Thereafter the attorney
brought action in E.'s name on one of the
claims which resulted in a judgment for
costs against E. Neither this nor any ac-
tion was authorized by J., and he was
ignorant of it till a motion was made to
charge him with such costs. Held, That J.
could not be made liable for the costs, un-
der $ 3247, Code Cıv Pro., as the party
beneficially interested in the recovery. —
Elliott v. Lemcky, 348.
subscriptions for stock of the corporation,
and failure to pay the same over to the
company, and the answers deny the failure
to pay over said moneys and expressly
allege payment of the same, the plaintiff
must prove said non-payment in order to
sustain his action.- Andrews v. Moller et al.,
377.
12. Neither the continuance of default in
paying a debt nor subsequent omissions of
the company to make annual reports can
renew the liability of a trustee for such
debt, or create a new right of action. — The
Rector, &c., of Trinity Ch. v. Vanderbilt,
488,
13. A corporation lessee covenanted to pay a
certain sum as rent, and to pay the taxes
and water rates imposed for each year, and
if not so paid before the 1st of February
after they beconie due, then to pay on that
day all penalties, etc., as additional rent.
Held, That on default of payment of the
taxes and water rates no cause of action to
recover them accrued to the lessor until the
1st of February after they were due.-Id.
14. It is very questionable whether a debt
owing by a corporation for advances made
by one of its directors can be included in
the debts of such corporation in order to
render its directors personally liable for
them under § 22 of Chap. 611, Laws of
1875, upon the ground that such debts ex-
ceed the capital stock of the corporation.-
Robinson et al v. Thompson, impld., 557.
See MORTGAGE, 6.
COSTS.
1. In an action for the removal of an assignee
for the benefit of creditors and the appoint-
ment of a receiver of the assigned property
and in which an answer was interposed but
which was discontinued before trial upon
payment of costs, upon the application of
the plaintiff, Held, That there was no basis
upon which a computation for an allowance
could be properly made, and that the court
had no power to make an allowance. -
Meyer v. Rasquin, 98.
2. Where no item of a contested claim against
an estate is rejected and the amount actu-
ally due depends upon the mode of com-
putation, or whether the claim bears inter-
est, or from what time, Held, That an
order for costs and disbursements to claim-
ant on the ground of unreasonable resist-
ance is not error. -Hyland v. Carpenter et
al., 261.
3. Where a case is discontinued on payment
of costs after it has been moved for trial
but before the trial has actually commenced
the defendant is not entitled to a trial fee.
- Studwell v. Baxter, 340.
4. J. having sued E. to recover a just de-
mand, E. delivered to J.'s attorney in the
5. An award of separate bills of costs to
several defendants is not required by $ 3230
of the Code of Civ. Pro. to be made at the
time of the trial, and the confirmation by
the court of the taxation of such separate
bills, upon a motion to set it aside, operates
as such award. — Andrews v. Moller et al.,
377.
6. Under Chap. 237, Laws of 1878, prescrib-
ing a penalty for bringing skimmed milk to
a cheese factory, to be sued for by the per-
sons defrauded, the plaintiffs are entitled to
full costs although the penalty recovered
be less than fifty dollars. — Furman et al., v.
Cunningham, 416.
7. The water commissioners of a village made
a contract with defendants for certain ma-
chinery to be paid for by the village on
their acceptance of it, the title to remain in
defendants until full payment. This has not
been made. Plaintiffs, as taxpayers, by
this action sought to restrain the perform-
ance of the contract as ultra vires, but were
defeated, and defendants obtained an extra
allowance based on the contract price. Held,
Error ; that the true basis for such allow-
ance was the difference between the con-
tract price and the value of the machinery
to defendants after it had been thrown on
their hands by the failure of the village to
take it. — Mingay et al. v. The Holly Mfg.
Co., impld., 513.
8. If a complaint set forth two causes of ac-
tion, upon one of which plaintiff recovers,
but fails to establish the other cause of ac-
tion, the defendant is not entitled to costs
under $ 3234, Code Civ. Pro.-Barlow v.
Barlow, 561.
9. Plaintiff is not entitled to costs of an at-
tachment where the attachment is set aside,
--Id.
See APPEAL, 2, 3; ATTORNEYS, 1, 11, 12 ;
GUARDIANS, 1 ; REPLEVIN, 2 ; SUMMARY
PROCEEDINGS, 2-4.
CREDITORS' ACTION.
1. Where judgment debtors, after verdict
rendered' but before judgment entered,
transferred possession of the real estate to
a mortgagee, and also the title to a large GERY ; MURDER ; OLEOMARGARINE ; PER
amount of unencumbered personal prop JURY ; SUNDAY.
erty, but continued in possession as his
agent, by virtue of the agreement, and the
DAMAGES.
real estate was encumbered by apparent
liens nearly equal to the full value of the
See Civil DAMAGE ACT, 3 ; CONTRACT, 4, 8,
Jand, though some were alleged to have 17, 23; DEEDS, 20; EMINENT Domain, 8,
been paid, a complaint setting forth these
11 ; EVIDENCE, 13 ; FRAUD, 13; RAIL-
facts and alleging that the agreement or
ROADS, 8; SLANDER, 3; TRADE SECRET,
transfer was made with intent to hinder, 2; TRESPASS, 3, 5; WARRANTY, 1.
delay and defraud the plaintiff, and that
execution had been returned unsatisfied,
DEEDS.
and praying for a discovery, account and a
receiver, sets forth a good cause of action : 1. Defendant gave to one P. a deed of cer-
(1) for a discovery under section 1871 of tain property owned by bim, which though
the Code ; (2) there is no complete and
absolute upon its face was understood to be
adequate remedy at law under the section ; held as security for a debt owing by him to
(3) on the ground of collusion and fraud. -
P. P. subsequently gave a deed of the
Mead v. Stratton et al., 44.
said property to plaintiff, who had
knowledge of the character of the convey.
COUNTERCLAIM.
ance to P. In an action of ejectment, Held,
That the deed to P. operated only as a
See ATTORNEYS, 5; LIMITATIONS, 2 ; PLEAD-
mortgage and that the deed of P. to plain-
tiff was no more than an assignment of said
mortgage, and that the title to the property
COVENANT.
remained in defendant.-Berdell v. Berdell,
81.
See DEEDS, 7, 12, 19, 20.
2. The grantee named in a deed, the descrip-
CRIMINAL LAW.
tion in which erroneously omits a portion
of the premises intended to be conveyed, is
1. A criminal charge may be resubmitted to
the equitable owner of the portion of the
the grand jury under $ 270 of the Code of
Criminal Procedure as often as the court
premises so omitted, and the sale of such
premises upon the foreclosure of a mortgage
may so direct. - The People v. Lynch, 9.
upon them, executed by such equitable
2. A non-expert witness when examined as
owner, conveys to the purchaser upon such
to facts within his observation or knowl-
sale his equitable title and also a legal title
edge tending to show soundness or un-
acquired by him subsequently to the exe-
soundness of mind of another may char-
cution of the mortgage. -Smyth v. Rowe et
acterize as rational or irrational the acts
al., 98.
and declarations to which he testifies. — The
3. In 1848 the city deeded certain water lots
People v. Conroy, 242.
to the owners of the adjacent upland, the
3. Where an indictment consists of two
deed containing a covenant by the grantee
counts, only one of which is submitted to
to build, within three months after being
the jury, a reversal by the General Term
required to do so, and not until so required,
of a conviction thereon, on the ground of
bulkheads, wharves, streets, etc., and it
insufficiency of the evidence under that
also provided that on failure to do so the
count, will not be interfered with, although
city might do the work at the grantee's ex-
the evidence authorized a conviction under
pense or re-enter. The grantee and his
the other count.-Id.
successors proceeded to make and gain the
land for twenty years under the direction
4. The objection that an indictment does not of the city officials. Held, That the deed
conform to S$ 275, 276, Code Crim. Pro., conveyed an absolute title, subject only to
can only be taken by demurrer.-Id.
be defeated by a breach of the conditions ;
that a failure to fill in all the land was not
5. Upon the trial of an indictment the prisoner a defense to an action for eviction and in-
was not formally arraigned, nor did he for jury to the land; that the forfeiture might
mally plead. He was present with counsel be waived by the city or the time extended,
at the trial, made no objection to the failure and that there was such a waiver; that the
to arraign, nor did he request to plead. condition in the deed and the limitation in
After verdict these objections were first the ordinance of 1844 apply to the streets
raised by a motion in arrest of judgment. and not to the lands outside of them. -
Held, That they were untenable, no sub Duryea v. The Mayor, &c., of N. Y., 103.
stantial right of the prisoner having been
taken away, and that the question was not 4. The grantee gave to the city, without con-
a proper ground for a motion in arrest of sideration, a written license to change the
judgment. — The People v Osterhout, 293. outlet of a sewer so that it would discharge
over the land outside of the street. Plain-
See ABORTION; ASSAULT; BASTARDY; BAWDY tiff on becoming the owner revoked said
HOUSES ; BLACKMAIL ; BURGLARY; FOR license and proceeded to fill in his land,
|