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retain, a court of chancery will interfere, and correct that mistake, whether it arose from a misapprehension of the facts or of the legal operation of the deed." In Cooke v. Husbands, 11 Md. 492, a deed was executed, which by mistake of the draughtsman as to its legal effect conveyed a greater interest than was intended by the parties. Relief was granted.

that the block contained a surplus of land exceeding the area specified in the plat, and that the proper proportion of this, justly pertaining to the lots described, had not been conveyed by the deed. The plaintiff, "relying upon said representations, and believing the same to be true," made, executed and delivered to his former grantee a deed of release and quit-claim, whereby the plaintiff, for the acknowledged consideration of $5, granted, released and quit-claimed to his former grantee the premises described in the mortgage, which deed was recorded. It is alleged that this was without any consideration, and that the plaintiff never intended thereby to release or discharge theises to the wife and to her heirs, the parties supposing mortgage. After this the plaintiff's grantee, who is alleged to be insolvent, conveyed the premises to this defendant, who took the same with full notice and knowledge of these facts, and the defendant now claims to own the premises discharged of the lien of the mortgage.

The legal effect of the release and quit-claim to the mortgagor was to discharge the mortgage. Gille v. Hunt, 29 N. W. Rep. 2. The question is whether relief can be had in equity upon the ground of the mistake.

It is argued that even if the complaint be construed as showing that it was not the intention of either the grantor or grantee that the mortgage should be discharged, but that the mutual intention was only to convey land not conveyed by the former deed, yet equity will afford no relief because the mistake of the parties as to the legal effect of the instrument was a mistake of law, and for this there is no relief. It is a general rule, recognized in equity as well as at law, that mere mistakes of law, unattended by other circumstances affecting the case, do not afford ground for relief; but it is not a rule of universal application that equity will not hear parties to allege a mistake as to the law, or afford relief for its consequences.

In Canedy v. Marcy, 13 Gray, 373, an oral contract had been made by the plaintiffs, who had inherited certain real estate subject to a widow's dower, to sell two-thirds of the premises, it not being intended to include the reversionary interest of the heirs in the one-third which might be set off to the widow as dower. By mistake deeds were drawn in such terms as to convey also this reversionary interest of the plaintiffs. The terms of the deed were such as were intended to be employed, but both the scrivener who drew them and the grantors, and as it seems, the grantee as well, were mistaken as to the legal effect of those terms, supposing that they were only effectual to convey two-thirds of the premises. The grantee did not claim any greater estate; but he having reconveyed to the defendant, the latter asserted title to the whole estate. Equitable relief being sought in this action, it was allowed; Shaw, C. J., saying: We are of opinion that courts of equity in such cases are not limited to affording relief only in case of mistake of fact, and that a mistake in the legal effect of a description in a decd, or in the use of technical language, may be relieved against upon proper proof."

Stedwell v. Anderson, 21 Conn. 139, was a case where several sisters, owning land jointly, attempted, with their respective husbands, to make partition by deed. One of the husbands, who drew the deeds, by mistake and ignorance as to the proper form, made the husbands grantees with their wives, thus conveying a fee to the husbands contrary to the intention of the parties. In this action, many years afterward, relief was afforded, the court saying: "When property has been eonveyed through mistake, by deed, which the parties never intended should be conveyed, which the grantor was under no legal or moral obligation to convey, and which the grantee in good conscience has no right to

Clayton v. Freet, 10 Ohio St. 544, was for the correction of a deed. The parties were shown to have intended the conveyance to be of lands to a wife for life, with remainder to her children. By ignorance and mistake the deed was made conveying the prem

such a deed to have the desired effect. Relief was granted, although the mistake was one of law.

A similar case was presented in Evants v. Administrator of Strode, 11 Ohio, 480, and the same principle declared. See also to the same effect, McNaughton v. Partridge, 11 Ohio, 223.

The same principle was involved in Remington v. Higgins, 54 Cal. 620, which supports the proposition that a mistake of law as well as of fact may afford ground of relief in equity. So in McMillan v. New York WaterProof Paper Co., 29 N. J. Eq. 610, a mortgage by mistake drawn to certain individuals, and their "successors," instead of their heirs, was corrected. See further, Brown v. Lamphear, 35 Vt. 252; Larkins v. Biddle, 21 Ala. 252; Champlin v. Laytin, 1 Edw. Ch. 466; Green v. Morris & E. R. Co., 12 N. J. Eq. 165; Stover v. Poole, 67 Me. 217, 223; Worley v. Tuggle, 4 Bush, 168; Walden v. Skinner, 101 U. S. 577; Snell v. Insurance Co., 98 id. 85; Pitcher v. Hennessey, 48 N. Y. 415-424; Baker v. Massey, 50 Iowa, 399; Underwood v. Brockman, 4 Dana, 309; Willan v. Willan, 16 Ves. 72; Pol. Cont. 393, 395, 450; Leake Cont. 345, 346; 2 Pom. Eq. Jur. 842-847.

A careful consideration of the authorities has led us to the conclusion that the power of courts of equity to afford relief from the consequences of the mutual mistakes of parties to written instruments is not strictly limited to cases of mistake of fact, but extends also to mistakes of law; and while if nothing more than the bare mistake be shown as a reason for relief, it will rarely, if ever, be granted, yet equity will interfere where it further appears that the defendant, availing himself of the opportunities afforded by the mistake, will enforce an unconscionable advantage, without consideration; the defendant being in no position entitling him to equitable protection, and the plaintiff not being blamable. But this jurisdiction will be exercised with caution, and only very clear and convincing proofs will be sufficient to overcome the presumption that the written instruments which parties have executed for the purpose of evidencing and carrying into effect their agreements are in legal effect or in terms contrary to their intention.

The case of McKusick v. County Com'rs Washington Co., 16 Minn. 157, did not involve any material mistake. The plaintiff, relying upon representations that the land would be permanently devoted to a specified purpose, conveyed the fee by an absoluto deed, unqualified in terms, the legal effect of which the plaintiff knew. At least nothing was alleged to the contrary.

Neither did First National Bank of St. Paul v. National Marine Bank, 20 Minn. 63, present any such question as that involved in this case. The question there was whether a written contract of indorsement could be affected by a contemporaneous oral agreement that it should not have the effect which the law puts upon it. There was no mistake as to the legal effect of the written contract, but the very common case was presented of an attempt to vary the written agreement by parol. The court says: "Neither fraud,

mistake nor surprise in making the contract is alleged."

The rule ordinarily applicable in such cases is different when the question arises in a court of equity in a suit to avoid or to reform a written instrument for mistake, surprise or fraud.

in their minds, nor a subject concerning which they were dealing, or to which this quit-claim deed was supposed to relate; that this deed was given wholly without consideration; and that to now allow it to have effect as a release of the mortgage, contrary to the intention of the parties to it, would be a surprise resulting in a most unconscionable advantage-are enough to take the case out of the operation of the general rule that for mere mistakes of law, unaccompanied by other circumstances appealing to the equit

forded.

We have considered the complaint as showing a mutual mistake by the parties to the deed, the respondent (the plaintiff) claiming that it so appears, and it seeming probable that it was intended so to allege the fact, and that in the further progress of the cause the case may so appear to be. It is not however so alleged, nor is it necessarily inferable from what is alleged, and we have to consider whether, the plaintiff aloue being mistaken as to the effect of the deed, he may have relief in equity. The complaint does not allege fraud.

In Catlin v. Fletcher, 9 Minn. 85, the plaintiff, a widow, sought to secure the cancellation of a mortgage given by herself and husband to the defendant, and to enjoin a foreclosure by the defendant. It appears from the complaint demurred to that the plain-able discretion of the court, relief will not be aftiff's husband owed to the defendant the debt secured, and that Swift's liability was that of an indorser for Catlin's accommodation. The grounds upon which the plaintiff sought relief were that she had been induced by the defendant to execute the mortgage by his stating to her that Swift would not indorse the new note unless a mortgage were given; that if she would execute the mortgage, he (the mortgagee) would not enforce it, but would collect the debt from Swift, the indorser; and further, that Swift could not touch the mortgaged property. The court, after stating that the complaint did not show that this last representation was untrue, adds: "But assuming that the statement was not true, it was not a misrepresentation of a material fact, but one in regard to the legal effect of the conveyance; and such misrepresentations will not avoid the instrument." Such language, when read in view of the case then under consideration, is not necessarily opposed to our present conclusion. The mistake, if there was one, was not attended by such circumstances as would justify a court of equity to interfere in her favor. To have granted relief in that case because of the plaintiff's mistake as to Swift's power to avail himself of the mortgage, would have been to sanction conduct on the part of the plaintiff which was calculated to defraud Swift, whose indorsement she had knowingly assisted to procure by executing the mortgage which she afterward sought to avoid. We do not understand that the court meant that equity would never relieve from a mistake of law.

Assuming then that relief may be afforded, although the consequences sought to be averted have resulted from mistake of law, the case here presented is a proper one for the exercise of such jurisdiction. We are still assuming that the mistake was mutual, and that the complaint shows this to have been the case. It falls within the somewhat common class of cases, where in attempting to carry into effect a prior agreement, as in Canedy v. Marcy, supra, the instrument executed, by reason of mistake of the parties as to its legal effect, fails to express their real intention. It is apparent, as we think, from the complaint, that this deed of release and quit claim was intended to complete the conveyance of the lands previously sold, and which were supposed not to have been effectually conveyed by the former deed. But we think that the existence of a prior agreement is not absolutely necessary as a condition to justify equitable relief. If without any agreement having been made prior to the time of the execution of this instrument, the intention of the parties was, by the execution and delivery of this deed, to merely convey certain land, and if by mutual mistake or ignorance of the law, terms were employed which had the legal effect, not merely to convey such laud, but also to accomplish something entirely different, and relating to a different subject, to which their minds had not been directed, relief may be afforded.

The facts that the parties to this deed intended only to convey and to take certain land not included in the former deed; that the release of the mortgage upon the land which had been previously conveyed was not

In general the mistake of only one of the parties to an instrument does not justify a reformation of it so as to impose upon the other party thereby obligations which he never intended to assume, or to bind him to do or to receive what he never contracted for or contemplated. But while the instrument will not be reformed so as to effect such consequences, it may be rescinded or cancelled for the mistake of one only of the parties. Diman v. Providence, W. & D. R. Co., 5 R. I. 130; Dulany v. Rogers, 50 Md. 524; Hearne v. Marine Ins. Co., 20 Wall. 488, 491; Harris v. Pepperell, L. R., 5 Eq. 1; Brown v. Lamphear, 35 Vt. 252, 259. Of course this should not be done unless the parties can be replaced in their former position. This plaintiff appears to be entitled to such relief as shall in effect limit the operation of this deed to the conveyance of the premises intended. There having been no consideration for the release of the mortgage, no such release having been intended by the grantor, and the grantee having no equitable right to retain such an advantage, the complaint shows good cause for relief This defendant, with full notice aud knowledge of the plaintiff's equities, is in no better position to oppose the granting of a remedy than was his grantor. The order overruling the demurrer is affirmed.

INSURANCE-WARRANTY - REPRESENTA

TION.

SUPREME COURT OF ALABAMA, MAY 4, 1887.

ALABAMA GOLD LIFE INS. Co. v. JOHNSON.

An application for life insurance containing inconsistent expressions-one part tending to show an intention to make the answers warranties, and another treating them as representations-the court holds (1) that the answers are not absolute warranties, but in the nature of representations, or if warranties, only of an honest belief of their truth; (2) that any untrue statement or suppression of fact material to the risk will vitiate the policy, and thus bar a recovery, whether intentional or within the knowledge of the party or not; (3) that such statement of a material fact, though untrue, will not avoid the policy, unless the party knew it was false, or was negligently ignorant of it; and (4) that the inquiries as to the symptoms of disease were not intended to be absolutely material, unless they had existed in such appreciable form as would affect soundness of health, or have a tendency to shorten life. HE opinion sufficiently states the case.

THE

Overall & Bestor, for appellants.

swers, so that the answers of the assured, so often merely categorical, will be construed not to be a warranty of immaterial facts stated in such answers, but rather a warranty of the assured's honest belief in their truth; or in other words, that they were stated in good faith. The strong inclination of the courts is thus to make these statements or answers binding only so far as they are material to the risk, where this can be done without doing violence to the clear intention of the parties expressed in unequivocal and unqualified language to the contrary. In support of these deductions we need not do more than refer to the following authorities: Moulor v. American Life Ins. Co., 111 U. S. 335; National Bank v. Insurance Co., 95 id. 673; Price v. Phænix Mut. Life Ins. Co., 10 Am. Rep. 166, supra; Southern Life Ins. Co. v. Booker, 9 Heisk. 606; 24 Am. Rep. 344; Fitch v. American, etc., Ins. Co., 59 N. Y. 557; 17 Am. Rep. 372; Bliss Ins., § 34; Campbell v. New England Mul. Life Ins. Co., 98 Mass. 381; Fowler v. Etna Fire Ins. Co., 16 Am. Dec. note, 463-466; Piedmont, etc., Ins. Co. v. Young, 58 Ala. 476; Pars. Cont. *465, et seq.; Glendale Woolen Co. v. Protection Ins Co., 54 Am. Dec. 309, 320; Wilkinson v. Connecticut Mut. Life Ins. Co., 30 Iowa, 119; 6 Am. Rep. 657; 1 Phil. Ins., § 638; Ang. Ins., §§ 147, 147a.

William T. Johnson and J. L. & J. T. Smith, contra. SOMERVILLE, J. The question of most importance which is raised by the rulings of the court in this case is whether the answers made by the assured to the questions contained in the application for insurance are to be construed as absolute warranties, or in the nature of mere representations. The distinction between a warranty and a representation in insurance is frequently a question of difficulty, especially in the light of more recent decisions, which recognize the subject as one of growing importance in its relations, particularly to life insurance. As a general rule, it has been laid down that a warranty must be a part and parcel of the contract of insurance, so as to appear, as it were, upon the face of the policy itself, and is in the nature of a condition precedent. It may be affirmative of some fact, or only promissory. It must be strictly complied with, or literally fulfilled, before the assured is entitled to recover on the policy. It need not be material to the risk, for whether material or not, its falsity or untruth will bar the assured of any recovery on the contract, because the warranty itself is an implied stipulation that the thing warranted is material. It further differs from a representation, in creating on the part of the assured an absolute liability, whether made in good faith or not. A representation is not, strictly speaking, a part of the contract of insurance, or of the essence of it, but rather something collateral or preliminary, and in the nature of an inducement to it. A false representation, unlike a false warranty, will not operate to vitiate the contract or avoid the policy, unless it relates to a fact actually material, or clearly intended to be made material by the agreement of the parties. It is sufficient if representations be substantially true. They need not be strictly or literally so. A misrepresentation renders the policy void on the ground of fraud, while a non-compliance with a warranty operates as an express breach of the contract. The mere fact that a statement is referred to, or even inserted in the policy itself, so as to appear on its face, is not alone now considered as conclusive of its nature as a warranty, although it was formerly considered other-said, is the tendency of the more modern authoriwise. Whether such statement shall be construed as a warranty or a representation depends rather upon the form of expression used, the apparent purpose of the insertion, and its connection or relation to other parts of the application and policy, construed together as a whole, where legally these papers constitute one entire contract, as they most frequently do. Bliss Ins., § 43. et seq.; Price v. Phoenix Mut. Ins. Co., 17 Minn. 497; 10 Am. Rep. 166, 172.

In construing contracts of insurance, there are some settled rules of construction bearing on this subject, which we may briefly formulate as follows: (1) The courts, being strongly inclined against forfeitures, will construe all the conditions of the contract, and the obligations imposed, liberally in favor of the assured, and strictly against the insurer. (2) It requires the clearest and most unequivocal language to create a warranty, and every statement or engagement of the assured will be construed to be a representation, and not a warranty, if it be at all doubtful in meaning, or the contract contains contradictory provisions relating to the subject, or be otherwise reasonably susceptible of such construction. The court, in other words, will lean against the construction of the contract which will impose upon the assured the burdens of a warranty, and will neither create nor extend a warranty by construction. (3) Even though a warranty in name or form be created by the terms of the contract, its effect may be modified by other parts of the policy, or of the application, including the questions and an

Many early adjudications may by found, and not a few recent ones also, in which contracts of insurance and especially of life insurance, have been construed in such a manner as to operate with great harshuess and injustice to policy-holders, who acting with all proper prudence, as remarked by Lord St. Leonards in the case of Anderson v. Fitzgerald, 4 H. L. Cas. 487; 24 Eng. Law & Eq. 1, had been "led to suppose that they had made a provision for their families by an insurance on their lives, when in point of fact the policy was not worth the paper on which it is written." The rapid growth of the business of life insurance in the past quarter of a century, with the tendency of insurers to exact increasingly rigid and technical conditions, and the evils resulting from an abuse of the whole system, justify, if they do not necessitate, a departure from the rigidity of our earlier jurisprudence on this subject of warranties. And such, as we have

ties.

There are, it is true, in this case, some expressions in both the policy and the application (which, taken together, constitute the contract of insurance) that indicate an intention to make all statements by the assured absolute warranties. The application, consisting of a "proposal" and a "declaration," is declared to "form the basis of the contract "of insurance, and the policy is asserted to have been issued "on the faith" of the application. It is further provided that if the declaration, or any part of it, made by the assured, shall be found "in any respect untrue," or "any untrue or fraudulent answers, are made to the questions propounded, or facts suppressed, the policy shall be vitiated, and all payments of premiums made thereon shall be forfeited. So if there were nothing in the contract to rebut the implication, it might be held that the parties had made each answer of the assured material to the risk by the mere fact of propounding the questions to which such answers were made, and that this precluded all inquiry into the question of materiality. Price v. Phoenix Mut. Life. Ins. Co., 10 Am. Rep. 166, supra.

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On the contrary, the policy purports to be issued "in consideration of the representations" made in the application, and of the annual premiums. The answers are nowhere expressly declared to be warranties; nor is the application, in so many words, made a part of the contract so as to clearly import the answers into the terms and conditions of the policy.

Among numerous other questions, the assured was asked whether he had been affected since childhood with any one of an enumerated list of complaints or diseases, including "fits or convulsions," and whether he had ever been seriously ill," or had been effected with "any serious disease," To each of these questions he answered, "No." The concluding question is as follows: "(32) Is the party aware that any untrue or fraudulent answers to the above queries, or any suppression of the facts in regard to the party's health, will vitiate the policy, and forfeit all payments made thereon?" To this was given the answer, "Yes," It is significant, as observed in a recent case before the New York Court of Appeals, that the assured "is not asked whether he is aware that any unintentional mistake in answering any of the host of questions thrust at him, whether material to the risk or not, will be a breach of warranty, and vitiate his policy." Fitch v. American, etc., Ins. Co., 59 N. Y. 557; 17 Am. Rep. 372, supra. Then follows a declaration that "the assured is now in good health, and does ordinarily enjoy good health," and that in the proposal of insurance he "had not withheld any material circumstance or information touching the past or present state of health or habits of life" of the assured, with which the company "should be made acquainted."

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One part of the contract thus tends to show an intention to constitute the answers warranties, while the other describes and treats them as representations. There is thus left ample room for construction. What is to be understood by untrue answers, or " any suppression of facts?" Can they have reference to any disease with which the assured was alleged to have been afflicted, of which he knew nothing, and could not possibly have informed himself by the exercise of proper diligence? Are they intended as absolute warranties of the fact that he had never, since childhood, or during life, been afficted with diseases of which neither he nor the most skillful physician could have had any knowledge whatever? The case of Moulor v. American Life Ins. Co., 111 U. S. 335, is a direct and strong authority for the position that the word "untrue" in the above connection, in its broader sense, means knowingly or designedly untrue, or else recklessly so; that it is the opposite of sincere, honest, not fraudulent. As said in that case, it is reasonably clear that "what the company required of the applicant as a condition precedent to any binding contract was that he would observe the utmost good faith toward it, and make full, direct and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation or concealment of facts with which the company ought to be made acquainted, and that by doing so, and only by doing so, would he be deemed to have made fair and true answers.

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sibility have affected the contract. It is true the parties have a right," the court adds, "to make their own contract, and by its terms we must be governed; but before a court could hold a policy void, and all premiums paid thereon forfeited, because statements of this character in the application turned out to be untrue, they should be fully satisfied that such terms were fully and distinctly agreed to by the parties."

These views, in our judgment, announce the sounder and more just doctrine, and they meet with our approval, being supported by reason as well as by the more recent decisions in this country on the subject of life insurance. 3 Add. Cont. (Morgan's ed.), § 1223; Price v. Phoenix Ins. Co., 10 Am. Rep. 166, 174, supra; Fitch v. American, etc., Ins. Co., 17 Am. Rep. 372, supra.

So the declaration embodied in the application would seem to indicate that it is the inadvertent suppression or statement only of material circumstances or information with which the company should in good faith be made acquainted that will vitiate the policy and cause a forfeiture. It cannot be supposed that one, who for the purpose of procuring insurance, alleges himself to be in good health, shall be understood as warranting himself to be in perfect and absolute health; for this is seldom, if ever, the fortune of any human being; and "we are all born," as sa d by Lord Mansfield in Willie v. Poole, Park Ins. 555. "with the seeds of mortality in us." These inquiries as to symptoms of diseases, as made by Mr. Parsons, therefore must mean whether they "have ever appeared in such a way, or under such circumstances, as to indicate a disease which would have a tendency to shorten life;" and he adds: "It is with this meaning the question is left to the jury." 2 Pars. Cont. *468, *471; 3 Add. Cont. (Morgan's ed.), § 1223. It has accordingly been held in an English case, cited and approved by Mr. Parsons and Mr. Addison, that even a warranty that the party whose life is insured "has not been afflicted with, nor is subject to, vertigo, fits, etc.," would not be falsified by having had one fit. To forfeit the policy on this ground he must have been habitually or constitutionally afflicted with fits. Even then, adds Mr. Parsons, "we apprehend the materiality of the fact would be taken into consideration; that is, for example, the policy would not be defeated by proof that the life insured, long years before, and when a teething child, had a fit." 2 Pars. Cont. *471, *472; Insurance Co. v. Wilkinson, 13 Wall.

222.

There is nothing decided in Alabuma Gold Life Ins. Co. v. Garner, 77 Ala. 210, or in Alabama Gold Life Ins. Co. v. Thomas, 74 id. 578, which conflicts with the foregoing views. The cases of Jeffries v. Life Ins. Co., 22 Wall. 47, and Etna Life Ins. Co. v. France Ins. Co., 91 U. S. 510, are distinguished, if not modified, in the later case of Moulor v. American Life Ins. Co., 111 id. 341, supra.

The case of Southern Life Ins. Co. v. Booker, 9 Heisk. 606; 24 Am. Rep. 344, sustains the same view. There Our conclusion is that the following is a just and the policy, as here, was conditioned to be avoided by fair construction of the contract of insurance under "any untrue or fraudulent answer to the questions consideration: (1) That the answers of the assured in the application. The answers were not strictly true were not absolute warranties, but in the nature of as to the birthplace, residence and occupation of the representations; or if warranties, they are so modiassured. It was held that none of these being mate- fied by other parts of the contract as to be warranties rial to the risk, they would be construed as represen- only of an honest belief of their truth. (2) That any tations, although expressly declared to be "the basis untrue statement or suppression of fact material to of the contract of insurance. The court said: "It the risk assured will vitiate the policy, and thus bar a would seem to be gross injustice to allow this [mean- recovery, whether intentional or within the knowling the avoidance of the policy, and the forfeiture of edge of the assured or not. (3) If immaterial, such all payments made under it] in a case where the in- statement, to avoid the policy, must have been unsured bas acted in the utmost good faith, and hon- true within the knowledge of the assured; that is, he estly disclosed every fact material to be known, be- must either have known it, or have been negligently cause merely by inadvertence or oversight, an error of ignorant of it. (4) The terms of the contract rebut fact has been inserted in his application-an error the implication that all symptoms of diseases inthat is clearly immaterial, and that could not by pos- | quired about were intended to be made absolutely ma

terial, unless they had once existed in such apprecia-nothing for the lumber, but on the contrary, would ble form as would affect soundness of health, or have a tendency to shorten life, and thus affect the risk. It is very obvious that the rulings of the Circuit Court conformed to these principles, and for this reason we are of opinion that they are free from error. The evidence was sufficiently conflicting in its tendencies to justify the refusal to give the general charge requested by the defendant.

The judgment is therefore affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

ABATEMENT

merely have a further claim for breach of the contract. At the date of the contract, the added fact must be noted that the real claim of the defendant was unknown and unliquidated, and could not be finally ascertained until the proceeds of the shooks were determined by a sale. The debt was only liquidated in part. It was subject to reduction by the property already received from Hall & Co., but the proceeds of which were unknown. The right of offset therefore did not and could not arise at the date of the contract, and sprang up, if at all, at the date of delivery. But before that, notice of another ownership intervened. When the lumber came, and the vendee saw that the vendor, on a contract made with him as owner, was seeking to perform as agent, and instead of fulfilling his own obligation was substituting performance by another, such vendee could refuse the substituted performance in any case where his rights or interest would be injuriously affected by the change. Brett & Co., had been long dealing with Hall & Co., as owners, and in the process mutual accounts had been steadily debited and credited, and applied one upon the other. When the purchase was made, the balance, so far as ascertained, was largely against the vendor, and may have been made either as to quantity or

DEATH OF PARTY -SUBSTITUTION OF ADMINISTRATRIX — CERTIORARI. In certiorari to the fire commissioners of the city of Brooklyn for the improper dismissal of an employee of the department, the relator having a claim for salary in the event of his dismissal being set aside, and having become liable for costs in the Special and General Terms of the Supreme Court, wherein the commissioners' action was affirmed, pending appeal from which relator died, held, that relator's widow and administratrix was entitled to be substituted as relator in the New York Court of Appeals. May 10, 1887. People, ex rel. Fairchild, v. Commissioners of Department of Fire & Build-price for that very reason. In such a case the vendees ings of City of Brooklyn. Per Curiam.

AGENCY-SET-OFF SALE BY AGENT - NOTICE

EXECUTORY CONTRACT.- A vendee who has purchased goods from a vendor, with whom he has dealt as owner, and who is indebted to him on account of previous similar transactions, in part settlement of which indebtedness the goods are sold, cannot, if he is informed before delivery and acceptance of the goods that they are in fact the property of a person for whom the vendor is acting as agent, offset the amount due from the agent in an action by the real owner to recover the value of the goods. The reasoning of the learned counsel for the appellants is founded substantially upon the validity and binding force of the executory contract of purchase and sale at its date. He answers the authorities, which deny the right of offset when notice of an agency and different ownership is given, "before the contract is completed," Moore V. Clementson, 2 Camp. N. P. 22; "before they are delivered or paid for." Barb. Set-off, 135, 136; before the factor delivers goods in his own name, "Rabone v. Williams, 7 T. R. 360; "by something which transpired before the contract was completed," Hogan v. Shorb, 24 Wend. 463; by insisting that they relate to cases in which the sale and delivery are concurrent acts, and there is no contract without the delivery; and he claims that in the present case the rights of the parties were fixed when the contract itself was made; that the right of set-off at once aecrued; and when the| principal sued, and took the benefit of his agent's contract, he was liable also for its burdens. We think the error in this reasoning lies in the assumption that the defendant obtained a right of set-off at the moment the contract was made. We are unable to admit that proposition. The contract was executory. While it remained such, it created no debt due to Hall & Co., against which there could be a set-off. Out of that contract a debt due from the defendant might or might not arise, and until it did there was nothing upon which a counter-demand could be applied. The defendant was not at once liable for the purchase price of the lumber. Until its delivery or tender in accordance with the contract terms, the vendee was not bound to pay or give his note; and until those conditions performed created a debt, there was none so existing as even to raise the question of off-set. If the vendors did not perform, the vendees would owe them

undoubtedly had a right to refuse to come under obligations to the new creditor, and did not break their contract with Hall & Co., if they stand upon such refusal. But being at liberty to refuse, and to demand performance by Hall & Co., under the existing circumstances and relations in strict accord with their contract, they were also at liberty to accept the lumber, with the necessary consequence that the whole purchase price should become due to the real and disclosed owner, and none of it to Hall & Co., except as agents for that owner. And so it follows that the authorities stand upon just principles when they assert that the set-off is lost if the principal is disclosed before the goods are delivered or the payment made. The vendee is not then acting in the dark, and has his liberty of action remaining at least, where his interests may be affected by the change of creditors, and so can have no equity to use the goods of one man to pay the debt of another. If he refuses, as he may, his contract relation with his vendor remains, and all his rights and remedies under it. But if he accepts he cannot complain that his rights are changed and harmed, since the acceptance is his free and voluntary act, made with full knowledge, and without being misled. April 19, 1887. McLachlin v. Brett. Opinion by Finch, J.

APPEAL OBJECTION NOT RAISED BELOW-FOREIGN JUDGMENT EVIDENCE-CONFLICT OF LAWS-INTER

EST.-(1) Objections that the copy of a judgment roll of the court of a sister State was not properly exemplified, which might have been obviated if they had been made in the trial court, cannot prevail when taken for the first time in the appellate court. (2) A copy of the records of the courts of a sister State is admissible in the courts of New York, if proved in accordance with the laws of that State. (3) A judgment given in Utah, in 1877, provided for interest at the rate of ten per cent, which was the lawful rate there. A suit was brought upon it in New York, where by statute interest on judgments had been seven per cent prior to 1879, when it was changed to six per cent. Held, that as by the decisions of New York, interest on judgments was considered in the nature of damages, the lex fori must govern, and that the plaintiff should have seven per cent up to 1879, and after that six per cent. In Taylor v. Wing, 84 N. Y. 471, the mortgage in terms called for interest "at seven per cent until paid," and

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