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ment provided for the issuing of
bonds and stock of the new com-
pany, and apportioning them
among the holders of the mort-
gage bonds, actually issued, of the
old company and among certain
other specified classes of creditors;
that in pursuance of the agreement
the property was purchased for
less than the amount of mortgage
bonds held by the parties to the
agreement and was afterward trans-
ferred to the new company, its
stock and bonds issued, and distri-
buted as stipulated; that the old
company was indebted to plaintiff
upon a contract for iron rails fur-
nished to lay its tracks, and, under
the contract of purchase, plaintiff
was equitably entitled to its mort-
gage bonds for the balance claimed.
This claim was unprovided for in
the creditors' agreement.
Plain-
tiff was a party to that agreement,
he holding a large amount of the
mortgage bonds provided for
therein, and he received their pro-
portion of the bonds and stock of
the new company. Plaintiff claim-
ed that the bonds to which he was
equitably entitled should be con-
sidered as issued at the time of
making the creditors' agreement,
and that the property in the hands
of the new company was subject
to the trust of providing for them,
as other mortgage bonds were pro-
vided for in that agreement. There
was no allegation of any fraud in
the agreement, or that any of the
stockholders of the old company
derived any benefit thereunder, or
that the foreclosure or sale were
collusive. On demurrer,-Held,
that the creditors who entered into
the agreement were bona fide pur-
chasers, and took the property
clear of any trusts in favor of
other creditors; that although as
between the old company and its
creditor equity would consider
that done which ought to have
been done, the rule did not affect
the rights of third parties (as be-
tween each other) who had con-
tracted in reference to what the
company had actually done, and
especially where the one claiming
the benefit of it was a party to
that contract, assented to its terms
and received its benefits; and that,
therefore, the facts stated did not

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4. At a time of continued and ex-
treme drouth, while a strong wind
was blowing from the land of the
defendant toward the adjoining
woodland of the plaintiff, coals
were negligently dropped from one
of defendant's engines, which set
fire to a tie; the fire was commu-
nicated to an accumulation of
weeds and grass and rubbish which
defendant had suffered to gather
by the side of its track; thence it
spread to the fence and on to
plaintiff's woodland, burning and
destroying his growing forest
trees, etc. In an action for the
damages,-Held, that the questions
as to whether defendant was negli-
gent in the use of its property, and
as to whether the injury was a
probable consequence of the negli-
gent acts and omissions, were pro-
perly submitted to the jury, and
that the evidence was sufficient to
sustain a verdict for plaintiff. Id.

5. The complaint set forth a lease of
certain hotel property in Omaha,
which lease contained the follow-
ing clause: "A lien to be given by
the said lessees to said lessors, to
secure the payment thereof (i. e.,
the rent), on all the furniture that
shall be placed in said hotel by
said lessees." It then alleged the
taking possession by the lessees,
and their placing in the hotel a
large amount of furniture, and
their subsequent abandonment of
it, they being utterly insolvent.
It is then alleged that defendant
took possession of the furniture,
sold the same, and converted the
proceeds, leaving a large amount
of rent unpaid, in fraud of the
rights of plaintiff (who claimed as
assignee of the lessor), and who
was thus prevented from enforc-

ing his lien thereon. The com-
plaint further alleged that defend-
ant had in its possession the avails
of the sale of said furniture, which
justly belonged to plaintiff by vir- /
tue of the alleged lien, and wrong-
fully withheld the same from the
plaintiff, to his great damage, etc.
Upon demurrer,-Held (ALLEN, J.,
FOLGER and RAPALLO, JJ., con-
curring), that it was immaterial
whether plaintiff's right was based
upon a legal title to the property,
or upon an equity entitling him,
as against defendant, to pursue
the avails thereof; that the clause
in the lease did not create a lien,
but was a covenant to do so, and
one of which a court of equity
would decree a specific perform-
ance; that if the property had re-
mained unchanged in defendant's
possession, plaintiff could have
followed it in equity, and that, as
these remedies are lost by the
wrongful act of the defendant,
plaintiff could acquire, claim and
have a lien upon the avails in place
of the property itself; and that,
therefore, the complaint contained
a sufficient cause of action. Hale
v. O. National Bank, 626.

6. Defendant and S. were engaged
in stock speculations through T.,
a broker. The arrangement with
T. was made, and the account was
kept, in the name of defendant
alone, S. acting ostensibly as agent.
Plaintiffs made an agreement with
S. that they might purchase stock
in the name of defendant, and
under his arrangment with T.
Defendant did not know of this
agreement at the time, but was
advised of it soon after, and did
not object; he also knew that the
stocks purchased for plaintiffs in
his name were charged in his
general account, and the moneys
advanced by plaintiffs as margins
were credited to him. Subse-
quently, by agreement between
defendant and S., the latter as-
sumed the stock transactions on
joint account, but defendant's
name, with his knowledge, was
still used, and the account kept as
before; he also notified T. that
the account was under the man-
agement and subject to the direc-
tion of S. Under plaintiffs' or-

ders, given through S., their stock
was sold, and the balance coming
to them thereon was credited_by
T. in defendant's account. The
stocks purchased by defendant and
S. had greatly depreciated, and
this balance was retained by T. as
security thereon. Defendant hav-
ing refused to pay over the bal-
ance upon demand,-Held, that
plaintiffs were entitled to recover
the amount thereof in an action
for money had and received. Jay-
cox v. Cameron.
645.

See COMMON CARRIER, 5

CORPORATIONS, 1.

VENDOR AND VENDEE, 6, 7.
Wetmore v. Candee (Mem.), 667.
Beatson v. Elwell (Mem.), 678.

CERTIORARI.

from

A departure by assessors
the standard fixed by statute for
estimating the value of property
placed upon the assessment roll
cannot be corrected upon certio-
rari, nor can their failure to assess
the property of a corporation, as
required, be so corrected. The
court may reverse the assessment
as made, and direct a reassess-
ment; but after the roll has been
delivered to the board of super-
visors and the power of the as-
sessors over it has ceased, a certio-
rari should not be allowed, and, if
allowed, should be quashed even
after return made. People ex rel. v.
Delaney.
655

CHATTEL MORTGAGE.

1. A mortgage of personal property
executed by an infant is voidable
at his election at any time before
he arrives of age and within a
reasonable time thereafter, and is
avoided by any act which evinces
that purpose. An unconditional
sale and delivery of the property
to a third person is such an act.
Chapin v. Shafer.
407

2. One C., an infant, executed a
chattel mortgage upon his horse
to defendants to secure a prior
indebtedness. Upon the same day

he sold and delivered the horse to
plaintiff, and refused to deliver it
on defendants' mortgage. After
the mortgage became due defend-
ants took the horse from plaintiff's
possession; shortly after C. be-
came of age, and then ratified the
bill of sale to plaintiff by indorse-
ment thereon. In an action to
recover possession of the horse,
Held, that defendants were tres-
passers in taking the horse, and
plaintiff was entitled to recover.
Id.

CHARTER PARTY.

See Beatson v. Elwell (Mem.), 678.

CIRCUIT COURT OF THE
UNITED STATES.

See REMOVAL OF ACTIONS.

CIVIL WAR

See PARTNERSHIP, 1.

CLAIM AND DELIVERY OF
PERSONAL PROPERTY.

1. The chapter of the Code entitled
"Claim and Delivery of Personal
Property" (chap. 2, title 7, §§ 206
to 217, inclusive) was intended to
supply the provisional relief there-
tofore obtained in the action of
replevin. It does not change the
requisites to maintain the action.
Schofield v. Whitelegge.
259

2. The complaint must show a right
of property and of possession in
plaintiff. An allegation of wrong-
ful detention is not sufficient.
The latter is a conclusion of law;
the former, the facts upon which
it is based. The facts must be
pleaded, and without them the
conclusion of law is an immaterial
statement.
Id.

3.

An omission to allege these facts
in the complaint is not cured by
an averment in the answer, deny-

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advances, or to pay any indebted-
ness, he may or may not com-
ply with this contract. He may
ship to C. or to B. upon conditions,
but if he ships to B. in pursuance
of his contract the title vests in B.
upon the shipment. The highest
evidence that he has so shipped
is the consignment and uncondi-
tional delivery to B. of the bill of
lading; but if A. retains the bill
of lading, and notifies B. by letter
that he has shipped the property
for him in pursuance of the agree-
ment, or if in any other manner
the intent thus to ship is evinced,
the title passes as effectually, as
between them, as if the bill of
lading had been delivered. Bailey
v. H. R. R. R.
70

2. Where, therefore, goods are so
shipped, and the carrier receipts
for the same, and agrees to trans-
port safely and deliver to B., the
former is chargeable with know-
ledge of the rights of the latter,
and if by the subsequent direction
of A. he delivers the goods to
another person, he is liable to B.
for a conversion thereof.
Id.

3.

When one who is not in business
as a common carrier, but who is
the owner of a canal boat used
generally in the transportation of
freight for himself, applies to a
common carrier who has know-
ledge of the facts and receives a
load of freight, such owner is not
subject to liability as a common
carrier. The fact that the com-
mon carrier, as such, contracted
with others for the carriage of the
freight, and that the owner of the
boat was aware of this, does not
affect the liability of the latter.
His liability is determined by the
business in which he is engaged,
and the character of his own
employment, not that of his em-
ployer. Fish v. Clark.
122

4. To sustain an action against a
common carrier for a failure to
deliver goods the plaintiff must
be the owner thereof, or have
some special interest in them.
Thompson v. Fargo.
188

5. Prima facie, the consignee is the
owner. If the goods are ordered

of the consignor by the consignee | 8. In an action against a common
stating where, but not how, to
send them, the consignor has suf-
ficient title to maintain the action.
Id.

carrier, the question as to what is
reasonable time for a consignee of
goods to remove them after notice
of their arrival, where there is no
dispute as to the facts, is a ques-
tion of law for the court. A sub-
mission of the question to the jury
is error, and, in case the jury finds
different from what the law de-
termines, it is ground for reversal.
223
Hedges v. H. R. R. R.

6. A common carrier of animals is
not an insurer against injuries re-
sulting from their nature and pro-
pensities, and which could not be
prevented by foresight, diligence
and care. Where they are trans-
ported under a special agreement,
the liability of the carrier is to be
determined by the agreement. He
is only liable for the performance
of the duty undertaken thereby,
or for some wrongful act either
willful or negligent. Penn. v. B.
and E. R. R. Co.
204

7. Defendant received from plaintiff
five car-loads of cattle, to be trans-
ported from Erie to Buffalo under
a written agreement, by the terms
of which plaintiff assumed all
risks of injuries "from delays, or
in consequence of heat, suffocation
or the ill effects of being crowded
upon the cars;" the agreement
provided that plaintiff should load
and unload the cattle at his own,
risk, the defendant furnishing
assistance as required; an agent
of the owner was to ride free
and to take the care and charge
of the stock; the cattle were in
charge of such agent. At Dun-
kirk the train was detained by
a snow storm three days. The
cattle could have been unloaded
by constructing a platform; this,
defendant declined to do, and
they remained in the cars twenty-
four hours, in consequence of
which three of the cattle died
and others were injured. Held,
that under the contract the duty
of defendant had respect simply
to the transportation and not to
the care of the cattle while in
transitu; that the provision for
loading and unloading had refer-
ence to the terminus of the trans-
portation and not to an intermedi-
ate station, and defendant was not
required to unload at Dunkirk or
furnish facilities for so doing;
that the injury was attributable to
the negligence of plaintiff's agent.
(PECKHAM, J., dissenting.)
Id.

9.

A consignee cannot, after notice
of the arrival of property for him,
defer taking it away while he at-
tends to his other affairs. It is his
duty, at once, and with diligence,
to act upon the notice, to seek
delivery, and continue until de-
livery is complete. So much time
as he gives to his other business,
to the neglect of taking charge of
the property and removing it from
the custody of the carrier, cannot
be allowed to him in estimating
what is a reasonable time in which
to take delivery.
Id.

10. Where, by the contract with
a common carrier, he is exempted
from liability for loss or damage,
unless the same be proved to have
occurred by fraud or gross negli-
gence of him, his agents or ser-
vants, in an action against such
carrier the onus is upon the plain-
tiff of proving such fraud or negli-
gence. Negligence must not only
be shown, but it must appear to
have caused, or at least contributed
to the injury. A defendant in
such an action has a right to rely
upon his exception to an erroneous
ruling of the court as to the burden
of proof, and to decline to intro-
duce further evidence, and the
decision will not be sustained upon
the ground that the evidence as it
stood showed negligence. Cochran
v. Dinsmore.
249

11. Defendant received of plaintiff
at Newark a car-load of sheep, to
be transported to Albany under a
contract which contained a clause
by which plaintiff agreed to go or
send some one with the sheep,
"who should take all the risks of
personal injury from whatever
cause, whether of negligence of
defendants, its agents, or other-

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