Imágenes de páginas

5. A condition in a policy of insurance, that

“if the interest of the assured in the prop-
erty be any other than the entire, uncondi-
tional and sole ownership of the property
for the use and benefit of the asssured, it
must be so represented to the company and
so expressed in the policy,” otherwise it
shall be void, is not broken by reason of
the existence of mortgages upon the prop-
erty, no questions having been asked in
reference thereto and there being no fraud-
ulent concealment.--Aldrich v. The Home

Ins. Co., 70.
6. Where the assured, immediately after the

fire, gave personal notice to the local agent,
who informed the company, and afterwards
the agent and the adjuster of the company
called and examined the ruins, and plaintiff
made a statement of his loss to them ; the
agent said it was not necessary to make out
proofs of loss, Ileld, A waiver of the con-
dition requiring written notice and proofs
of loss, and the company was estopped from

setting up the breach. - Id.
7. An informality in the proofs of loss may

be waived by retaining it without objection,
e. g., where the venue stated in the affidavit
was in one county and the officer who took

the allidavit resided in another.-Id.
8. When the application stated the premises

to be insured were incumbered $300, and
the proof of loss stated that at the date of
the fire the premises were covered by a

tgage for $600, the insured is not estop.
ped from showing that the mortgage was
originally for $600, and that before his ap-
plication he had paid $300.-Kelly v. The

Agricultural Ins. Co., 125.
10. Personal property owned by the wife at

her marriage, which has been used in com-
mon in the household, like the husband's,
is not covered by a policy upon the hus-

band's property.--Id.
11. In determining the meaning of a policy

regard must be had to the course of the
trade to which it relates, and the underwri.
ters will be presumed to have contracted
with reference to it.- Barnum et al., v. The

Merchants' Fire Ins. Co., 172.
12. Defendant issued a policy to plaintiffs on

their store, “to be occupied as a fancy
goods and Yankee notion store.” The
policy classed Yankee notions as extra haz-
ardous, and fireworks as specially hazard-
ous, and provided that if the premises were
used for the carrying on of any trade, or for
storing, etc., of any goods, etc., or for more
hazardous purposes than called for by the
original contract without consent of the
company, it should be void. Held, That
evidence was admissible to show that fire-
crackers and fireworks constitute an ordi-
nary, usual and recognized portion of a
stock of fancy goods and Yankee notions.
- Id.

13. The insurer may, by objecting to the

proofs of loss, impose on the assured the
duty of making them complete, and if it
chooses to do so the time limited by the
policy within which action may be com-

menced is thereby extended.--Id..
14. Where the falsity of a statement in an

application filled in by one employed by the
insurer 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.-Bennett

v. The Agricultural Ins. Co., 208.
15. Where a building is insured as unoccu-

pied it is not necessary for the insured to
obtain the consent of the company that it
may remain so, even though it may have
been occupied for a time after the policy

16. 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

17. Plaintiff applied for insurance to H., an

insurance agent, who employed E., a solici.
tor of insurance, to obtain the same. E
applied to defendant's agents, who issued
the policy, but stated to E. that it should
be subject to approval by the company,
and that if the company disapproved it the
policy was to cease; the company did dis-
approve, and H. and E. were so notified,
but no notice thereof was given plaintiff,
and the property insured was burned. Held,
That the company was bound by the policy.
--Hodge v. The Security Ins. Co., 234.

18. When one written instrument contains a

reference to another as the basis or founda-
tion on which the latter has been made, the
first is to be regarded as so far included as
to entitle it to be examined and considered
in order to discover the intention and rights
of the parties. The National Filtering Oil

Co., v. The Citizens' Ins. Co., 380.
19. When, by an agreement between two par-

ties, the second party is to pay the first a
certain royalty on every gallon of oil in fil-
tering which å patent process is used, and
such royalties are not to be less than $3,000
per year, and a policy of insurance on such
royalties recited that, whereas the insured
is to receive certain royalties which are
guaranteed to amount to $250 per month
the company will make good any diminu-
tion in such royalties caused by the injury
of the factory by fire, such insurance will
be held to apply to a diminution in the
amount of royalties over and above the

guaranteed sum of $250.-Id.
20. The right to receive royalties on goods

manufactured by certain patented ma-

chinery, which royalties may be diminished Held, Not such a variance as to make the
by the destruction or injury of the manu instrument inadmissible in evidence; por
factory by fire, is insurable, even though were any explanatory allegations required
the person entitled to receive such royalties to permit parol evidence of mutilation.-
has no interest in the manufactory or ma Id.

chinery so destroyed or injured.İd.
21. In an action on such a policy of insurance

to recover for a diminution of royalties

See Bar, 1.
caused by a fire in the factory it is no de-
fense that, if there had been no fire, the
same diminution would have occurred from

some other cause.-Id.

1. Complainant purchased certain bonds of

defendant, who agreed that, if plaintiff at

any time became dissatisfied with them, he
1. Plaintiff recovered judgment for the value would take them back on 30 days' notice,
of certain machinery in a sawing-mill which

and repay the price paid with interest.
was claimed to be personal property. It Two years afterward, default in the pay-
appeared that many of the articles, from ment of interest on the bonds being made,
the method of attachment, adaptation to plaintiff gave notice as agreed, but defend-
the use of the premises and intent of the ant refused to perform his agreement.
party affixing them, as shown by his insur-

Held, That the agreement was not within the
ing them for the mortgagee, were shown to statute of frauds; that the question whether
be part of the realty. Held, That a new the notice was given within a reasonable
trial was proper to cure the error in allow time was one of law, and that plaintiff was
ing plaintiff to recover for them.Bigler v. entitled to recover. - Fitzpatrick v. Wood-
The National B’k of Neuburg, 77.

ruff, 2.
2. The question whether a boiler and an engine 2. It was claimed that the interest of the

in a factory, resting upon trucks so they debtor in the premises in question arose from
could be drawn out of the building without an agreement by defendant in the convey.
injury thereto, is a fixture depends upon

ance that he should have the use of the
the intention of the proprietor who placed premises for three years. Held, That this
them there; and the question of intent is

created a parol lease for more than one year
for the jury.-Hart v. Sheldon, 286.

and was void.-Crouse et al. v. Frothingham

et al., 22.

3. Certain evidence held sufficient to sustain
See MORTGAGE, 1-3, 6-8, 12, 14, 15.

referee's finding that a certain conveyance

of real estate was not made with intent to

defraud creditors. The Third Nat'l B'k of
1. If it appears that a wife was not urged or

Buffulo v. Cornes et al., 30.
drawn to the commission of a crime by her

4. A purchaser of personal property delivered
husband, but was inciter of it, she is liable

in pursuance of an executory contract al-
as well as he. The People v. Ryland, 63.

leged to have been procured by fraud
2. On the trial of an indictment for forgery,

waives the objection he might otherwise
in the alteration and raising of a check, it

have to the contract by the acceptance of
appeared that defendant, a married woman,

the property sold after knowledge of the

fraud, and such acceptance precludes him
suggested the idea, procured the check by

from repudiating the contract in an action
false representations, and delivered it to
her husband; that it was altered in her

to recover the price of the article sold.-

Baird v. The Mayor, &c., of N. Y., 100.
presence, and that she received part of the
proceeds of the crime. Held, That she was

5. Since fraud without damage is not action.
liable as a principal.-Id.

able, and as no damage can accrue to an ac-
3. Certain evidence held sufficient to support

commodation endorser except upon default
a charge and conviction of forgery in the

of the maker or acceptor and due notice
third degree. - The People v. Dewey, 555.

thereof given, it follows that no cause of

action arising from the fraudulent procure-
4. It is sufficient, as a charge of forgery in

ment of the endorsement can arise until the
the third degree, that the instrument set out

endorser has become legally chargeable as
in the indictment and alleged to be forged

such, and, therefore, the time within which
contains a personal covenant to pay upon a

an action to recover damages for inducing
stated consideration.-Id.

the party to endorse by fraudulent repre-

sentations may be brought will commence
5. The indictment charged the forgery of an to run,' not from the making of the en-

instrument signed and sealed, and the in dursement, but from the time the endorser
strument produced on the trial was without has become chargeable.- Barnard v. Far.
signature or seal, they having been torn off. nam et al., 164.

ing as to the hiring. Held, That the mem-
orandum was not sufficient and that the
contract, being by parol for more than one

year, was void.-.
13. Exemplary damages are not allowed in an

action for fraud and deceit.Taylor v. Pal-
mer, 267.

6. If a grantee is innocent of any fraudulent

intent and without knowledge of outstand-
ing equities and pays a valuable considera-
tion he is entitled to protection at least to
the extent of the amount paid, as against
the creditors of the grantor, notwithstand-
ing there were other considerations that
were void as to creditors-e. g., agreeing to
support a parent grantor. In such cases the
conveyance should not be declared abso-
Jutely void as being in fraud of creditors,
but the most that can be done is to direct a
sale subject to the amount paid by the pur-
chaser; the creditors' remedy to be limited
to the value of the land beyond that.--- Vial
V. Matthewson, 168.

14. Plaintiff and defendant entered into a

joint venture for the purchase and sale of
potatoes, and plaintiff brought this action
for an accounting. It appeared that while
the potatoes were still unsold defendant
verbally sold his interest in the venture to
plaintiff for $500, but no part of it was
paid at the time nor did defendant deliver
the potatoes or do any act tantamount
thereto. Subsequently plaintiff paid $200,
but did not restate the terms of the sale.
Held, That the contract was void within the
statute of frauds and was not saved by the
subsequent payment; also, that the fact of
the action being for an accounting did not
affect the question.-Randall v. Randall,

7. Where the evidence on the part of the

grantee showed that he paid certain valu-
able considerations exceeding the value of
the land, and had no knowledge of plaintiff's
claim against the grantor, but the referee
omitted to find specifically whether all such
considerations were or were not paid, or
whether plaintiff had had such knowledge,
or to find the value of the whole land, but
found as a conclusion of law that the deed
as to a certain portion of the land was
fraudulent and void as to creditors because
one of the considerations was void, the re-

port was set aside.-Id.
8. The acceptance necessary to take a verbal

contract out of the statute of frauds must
be manifested by some act distinct from
and in addition to the words of the agree.
ment, and mere receipt does not necessarily
prove acceptance. In re assignment of

Hoover, 185.
9. Where the purpose of a promise to pay

the debt of a third person is to secure a
benefit to the one making the promise it is
an original undertaking and not within the
statute of frauds.-Humaston et al. v. Beek-

man, 238.
10. Where the evidence warranted the finding

that the grantee took the deed not merely
to cancel the grantor's debt to him, but also
to delay other creditors, Held, No error to
declare the deed fraudulent, and that the
deed cannot be treated as security for the
debt due the grantee, or for the purchase
money advanced by the latter, as against a
creditor who obtained judgment shortly
after the deed was made.- Nugent v. Jacobs,

15. By a parol agreement defendant agreed to

sell to plaintiff a mill and machinery and
receive in payment certain notes, etc., half
the stock in a store, and possession of the
store for the unexpired term, the rent for
which he agreed to pay to the lessor.' De-
fendant took possession and carried on bu-
siness in the store for a time and paid the
rent up to the time he left, but failed to pay
the balance of the term. Held, That de-
fendant's promise to pay the rent was upon
a new consideration, moving directly to
him, and was not void under the statute of

frauds.-Smart v. Smart, 385.
16. Defendants bought certain stock for

plaintiff, who supposed he had enough
money to his credit with them to pay for it,
and subsequently sold it without his au-
thority, failed and went into bankruptcy.
Plaintiff proved his claim, with an account
attached which did not show much money
of his in defendant's hands when the stock
was bought. In an action for the balance
of his claim over the dividend received,
Held, That the unauthorized sale of the
stock was a conversion, but did not consti-
tute a fraud under $ 5117, U. S. R. S.-
Stratford v. Jones et al., 409.

17. Both parties requested the court to direct

a verdict, which the court did in favor of
defendants. Held, That the parties sub-
mitted the questions of fact to the court
and waived the right to go to the jury, and
that the evidence did not entitle plaintiff to
a direction in his favor.-Id.

11. 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 re-
mains to be performed and rests upon un-
fulfilled promises. Drake v. Seaman et al.,

12. Defendants agreed to hire plaintiff as

salesman for three years and to pay him ac-
cording to a writing signed by them which
stated the salary to be paid, but said noth-

18. In an action to recover back the purchase

price of stock, on the ground of fraud and
deceit in representing it to be paid-up stock,
it appeared that a few months previously
plaintiff had sold to defendant unpaid stock
in the same company, but did not know


whether it had been afterwards paid up, taken to authorize the sale of real estate be.
and no particular shares were mentioned as longing to such infant, cannot convey said
the stock which defendant should transfer real estate to himself.-Buderus v. Immen,
to plaintiff, and defendant was secretary 88.
and treasurer of the company. Held, That
it was properly left to the jury to de- 3. When such a special guardian, acting in
termine whether plaintiff knew, or must

good faith, has conveyed such real estate to
have known, that the stock purchased was

himself and has subsequently conveyed the
not paid-up stock, and, therefore, did not same to a third person the defect in the
understand defendant representing

title of such third person may be cured by
otherwise, but simply that he would sub proceedings instituted upon the joint pe-
sequently pay the balance so as to make it tition of the guardian and the infant-said
paid-up stock.-Gavin v. Duckwitz, 422. infant having attained the age of seventeen

years in the interval-whereby the original
19. The administrator of one Q. ascertained proceedings are opened and the guardian

from the books of account of said Q. that a therein permitted and required to convey
claim existed in his favor, the amount of the interest of the infant to such third
which he computed from said books to be

$273, and which he assigned to one D. for
that sum.

D. subsequently claimed by 4. Where a will, of which M. was executor,
virtue of said assignment and collected

contained a wish that M. should also act as
from the debtor the sum of $3,785.80,

guardian of a child and that the child, the
with interest. Held, That there was no

sole devisee, should live with M., and the
fraud, such as to avoid the assignment, on

latter, omitting to be regularly appointed
the part of D. in failing to reveal the

guardian, furnished the child with necessa-
true amount of the claim. That the mis ries up to the time of his appointment and
take of Q.'s administrator as to the value

for some time thereafter, Hed, That M.,
of the claim was not a ground for equi-

upon his accounting, must be allowed for
table relief.- Deffendarfer v. Dicks et al.,

the whole period during which he furnish-

ed support; that it was error to allow him

only for the period after his appointment.
20. An agreement by which one party agrees, -Ìn re accounting of Miller, 303.

at the request of the other, to purchase
personal property, hold it and upon being

5. Where money has been received by a
reimbursed and paid for his trouble

guardian the statute of limitation does not
transfer it to the other, is not a sale nor

begin to run in his favor until some open
an agreement to sell the property between

notorious act of conversion and express
the parties and is not within the statute

repudiation of his trust takes place. -
of frauds.-Blair et al. v. Lynch, 575.

Skidmore v. Post, 349.
21. Defendant paid to plaintiffs half the

price agreed upon November 25, 1873,

and took an assignment of half the se-
curity. In an action brought November 1. Highway commissioners have power to
21, 1879, to recover the balance, Held, summarily remove a building which ob-
That the statute of limitations was not a

structs a highway, even though sufficient

space is left for teams to pass and repass,

and neither they nor those assisting them

can be held liable in damages for such

exercise of official power.— Van Wyck v.

Lent et al., 86.
See FRAUD, 2, 3, 6, 7, 10 ;- JUDGMENT, 5.

2. A municipality is liable for damages re-

sulting from the frightening of a horse by

a banner hung over the roadway, although

the banner was fastened to supports outside

of the roadway.-Champlin v. The Village
Paper, 3.

of Pen Yan, 134.

3. In an action for such damages it is compe-

tent to prove that on a former occasion a

similar banner frightened other horses.-
1. Where an order has been granted allowing Id.

an infant plaintiff to sue in forma pauperis,
from which order no appeal is taken, the 4. The liability of towns is not extended by
guardian will not be

required to file Chap. 700, Laws of 1881, to cases in which
security for costs.- Hays v. The Knicker the commissioners of highways were not
bocker Ice Co., 61.

liable prior to the passage of that act. –

Ereleigh v. The Town of Hounsfield, 210.
2. A special guardian of an infant of the age

of five years, appointed in proceedings | 5. In an action against a town to recover

collaterally.-Lawson v. The Town of Wood.
stock, 570.

damages for injuries alleged to have been
caused by the negligence of its agents and
servants in failing to repair a highway or
bridge, the complaint must allege that de-
fendant had funds or the means of acquir-
ing the same, or that its highway commis-
sioners had funds or means of acquiring

6. Dedication and acceptance of a highway

may be inferred from its continuous public
use for twenty years; and the question of
such use is for the jury.- Porter v. The

Village of Attica, 224.
7. Village authorities are not bound to pro-

vide facilities for abutting owners to go
into a street, nor are they bound to remove
inconveniences occasioned to such owners

by proper repair of the street.-Id.
8. A highway commissioner is bound to use

reasonable care and diligence to keep high-
way bridges in safe condition.- Amadon v.

Ingersoll, 294.
9. Plaintiff was damaged by the falling of a

bridge. Witnesses who helped repair the
bridge before the accident were allowed,
against plaintiff's general objection, to
state their opinions as to the sufficiency of
the stringers of the bridge. Held, No error.

10. In an action for penalty, under the Re-

vised Statutes, the summons was endorsed,
For a penalty imposed under and accord-
ing to the provisions of $ 19, Ch. 16, Tit. 1,
Part 1 of the several statutes relating to
overseers of highways and highway labor."
Held, That the endorsement was fatally de-
fective within Code of Civ. Pro., S 1897.
- Hitchman v. Baxter, 304.

1. The common law right of the husband to

take the entire personal estate of the wife
dying intestate and without descendants
extends to the partial intestacy created by
the lapse of a legacy bequeathed by her in
her will although the husband has taken
property by virtue of such will and has
taken out letters testamentary thereunder
and has never taken out letters of adminis.
tration upon the wife's estate. Robins v.

McClure, 193.
2. The law will not imply a promise on the

part of a wife to pay her husband the fair
and reasonable value of his services per-
formed in and about the carrying on of her
separate business where there is no under.
standing or agreement that he should be
compensated therefor ; and a receiver in
supplementary proceedings instituted
against the husband cannot maintain an
action against the wife to recover the value

of such services.-Lynn v. Smith, 459.


Defendant gave a bond to one S., commis-
sioner of highways, to indemnify him in an
action to be brought by him as such com-
missioner against C. & D. After that action
was begun and had been at issue several
years S., who was no longer commissioner,
died. An administrator was appointed wbo
stipulated in the action then pending that
it be dismissed, and judgment for costs
were thereupon entered against S., in favor
of C. & D. This claim for costs and the
bond for indemnity were assigned to plain-
tiff, who now seeks to recover here the costs
against defendant. Held, That there could
be no recovery ; that the administrator
could not enter into a stipulation of dismis-
sal ; and further that defendant was entitled
to notice of the proposed abatement that he
might prosecute the action if he chose to

do so.Pratt v. Seeley, 280.
2. In an action by a sheriff against the sureties

on a bond indemnifying him from the conse-
quences of levying upon and selling under
an execution certain goods claimed by a
third person to belong to him and not to the
judgment debtor, the fact that the sheriff
levied upon and sold more goods than was
necessary to satisfy the judgment is no de-
fense when the costs and expenses incurred
by the sheriff in an action for conversion
brought against him by such third person
amount to the penalty of the bond. - Reilly

v. Moffat et al., 390.
See CONVERSION, 1. 2 ; SHERIFFS, 5, 6.

11. A commissioner of highways can lay out

a highway only in the manner prescribed
by statute, i. e., by order. His acts or words
encouraging individuals to construct it and
his promise to recognize it officially when
completed are not sufficient to estop his
town.-In re bridge between Shawangunk and

Crawford, 503.
12. Where there has been no official recogni.

tion of a highway as such, a user of twenty
years is necessary to constitute it a highway
which the town is bound to maintain.-Id.

13. The duties and liabilities of highway

commissioners fall far short of those of the
authorities of a municipality in respect to
its streets. No negligence can be imputed
to them for not repairing a bridge unless
they knew, or ought to have known, it
needed repairs, and they have or might ob-
tain the means to do so. Under Chap: 700,
Laws of 1881, the test of a town's liability
is the negligence of its highway commis-
sioners. They are the sole judges of the
proper width and plan of a bridge, and
their determination cannot be reviewed

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