human tribunals will admit.' So the plaintiff in this action was entitled to recover the proximate damages caused by the breach of contract made at Schenectady in December, 1858. It was for the jury to determine what that contract was, and in what respect it was broken. Then the amount of damages for such breach must be determined by the jury under the instructions of the court upon the evidence produced. The separation of that which is legal from that which is illegal must be made. Judgment and discretion must be exercised that truth and justice may prevail between the parties. So far as can be seen this has been done."

Judgment affirmed.

FOURTH DEPARTMENT.

GENERAL TERM, JUNE, 1874.

FERGUSON V. MORRIS, appellant.

Mortgage-consideration of.

M., B. and F. had dealings, and F. owed B. $3,400. F. offered to give B. a mortgage on land for that amount if M., at the same time, would give F. a mortgage on land for the same amount. This was accordingly done. Held, that the mortgage from M. to F. was void for want of consideration, unless it appeared that the debt due B. was one which M. was bound to pay as between F. and M.

APPEAL from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Betsey A. Ferguson and another, administratrices of the estate of Harriet Ferguson, deceased, against Mary Morris and another, to foreclose a mortgage. Risley & Stoddard, for appellants.

Richardson & Adams, for respondents.

MULLIN, P. J.

The opinion is devoted to a consideration of the facts. The headnote states all the points of any moment passed upon.

Judgment reversed and new trial granted.

VOL. IV, N. Y. REP.-87

DE ROE V. SMITH, appellant.

Usury cannot be set up by joint-stock company indorsers of such company's notes.

nor by accommodation

In an action on a promissory note against S. as president of the Rochester Towing Company and others as indorsers thereof, the defendants set up the defense of usury, alleging that the company was a partnership and not a joint-stock company, and that the indorsers were accommodation indorsers. Held, (1) that the company was a joint-stock company, possessing, under the statutes, certain powers of corporations (Robbins v. Wells, 18 Abb. 191; Waterbury v. Merch. U. Exp. Co., 3 Abb. N. S. 163); and (2) could not, therefore, interpose the defense of usury; and (3) as that defense was unavailing to the company, it could not avail the indorsers. Rosa v. Butterfield, 33 N. Y. 665; Belmont Br. Bank v. Hodge, 35 id. 65.

APPEAL from a judgment for plaintiff entered upon the report of a referee. The action was brought by George T. De Roe against Roswell B. Smith, as president of the Rochester Towing Company, and others, upon a promissory note made by said company, and indorsed by the other defendants.

W. & J. D. Kernan, for appellants.

C. D. Adams, for respondent.

GILBERT, J.

The head-note fully states the only points passed upon in the opinion.

Judgment affirmed.

PETTIS, appellant, v. PIER.

Trial-charge on matters not in issue when exceptions to charge not

necessary.

The judge at trial charged that if plaintiff's agent was negligent plaintiff could not recover, and stated that there was hardly any evidence of negligence. There was no evidence whatever of negligence. Held, that the charge was

error.

The court will grant a new trial because of errors in the charge, although txcepted to, when it can see that such errors were calculated to, and probably did, mislead the jury.

APPEAL from a judgment entered in favor of defendant upon the verdict of a jury and from an order denying a new trial. The

action was brought by William H. Pettis against Delos D. Pier and Edwin R. Murray, to recover the value of thirty bales of hops alleged to have been converted by defendants.

Ball & Searle and Charles Mason, for appellants.

Bagg & Collins, for respondents.

MULLIN, P. J.

The head-note states all the points of any importance passed upon in the opinion.

Judgment reversed and new trial ordered.

MATTER OF LAMOREE.

In this matter of the application against John J. Lamoree, the court held that the motion should be denied. "The allegations on which the motion was made seem to rest more upon the suspicions of the parties making them than upon satisfactory evidence, and they have, we think, been completely refuted by the evidence submitted by Mr. Lamoree."

GILBERT, J.

Motion denied.

FISHER V. BANTA.

Reference to compute amount due-order directing referee to carry out his

decision erroneous.

In an action brought by legatees for the construction of a will and for the payment of their legacies, the court, in the order for judgment, appointed a referee to inquire into and compute the amount of the estate, the moneys paid on the legacies and the amount due to the legatees on account thereof. The order further directed certain of the parties to pay over such assets of the estate as might be in their hands, and the referee to pay out the moneys received, to satisfy the legacies. Held, that so much of the order as made the referee receiver, with authority to carry out his decision, was not proper.

MOTION for a new trial upon exceptions taken to the findings of fact and conclusions of law of the court in an action tried at

special term. The action was brought in Erie county by Philena B. Fisher and others, against George Hubbell and others, among whom were the defendant Stanley A. Banta, to obtain the construction of two wills. The case, on a former hearing before the general term, is reported sub nom. Fisher v. Hubbell, in 1 N. Y. Sup. at page 97.

W. W. Rowley and De L. Crittenden, for plaintiffs.

Morse & Wells, for defendants.

E. DARWIN SMITH, J.

The head-note states fully the only point passed upon in the opinion.

Order for judgment modified.

WATSON, appellant, v. PARKER.

Contract-construction of.

In an action for goods sold, defendant alleged, in his answer, that he had delivered a quantity of grapes to H. at the plaintiff's request, which the latter agreed to apply upon his account against the defendant. The defendant proved that after having had a negotiation with H. about selling grapes to him, he told the plaintiff that H. wanted some grapes; that he asked the plaintiff if he could pay his account with the grapes he was about selling to H., trade out, or turn his grapes on his account, and allow his men to trade out part, or all of it, as he saw fit. To which the plaintiff replied in the affirmative; whereupon the defendant delivered grapes to H. amounting to over $330. It was proved that H. did not assume any liability for the defendant to the plaintiff, and that he was still liable to the defendant for the grapes sold to him, except a small portion which had been paid for. Held, that the plaintiff did nothing more than consent to take H.'s liability instead of the defendant's for the indebtedness of the latter; that the fair inference from the conversation was that if H. would assume the payment of the defendant's present and future indebtedness, the plaintiff would take that and give the defendant credit for that amount. Mallory v. Gillett, 21 N. Y. 415. Held, also, that the plaintiff was entitled to recover the amount of his

account.

APPEAL from a judgment in favor of defendant entered upon the report of a referee. The action was brought in Yates county by

William H. Watson against Erastus W. Parker, to recover for

grapes sold and delivered.

D. B. Prosser, for appellant.

Brown & Wood, for respondent.

GILBERT, J.

The head-note fully states the only points passed upon in the opinion.

Judgment reversed and new trial granted.

YORKS V. MOSHER, appellant.

APPEAL from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by William A. Yorks against Howell Mosher, to recover for barley sold.

H. L. Comstock, for appellant.

E. A. Nash, for respondent.

E. DARWIN SMITH, J.

Only a question of fact was involved.

Judgment affirmed.

WHITE V. TURNER, appellant.

Usury-sale of valid mortgage at a discount.

A valid mortgage for $1,000 was sold by the mortgagee at $50 less than its face. Held, not to make mortgage usurious.

APPEAL from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought in Chautauqua county by Allen White against Charles S. Turner and others, to foreclose a mortgage.

Julius A. Parsons, for appellants.

D. Sherman, for respondent.