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Held, 1st. That the action was rightly brought, inas

INSURANCE much as the agreement, if it did not constitute a part

1. Security insurance notes : statute of limitations.nership between the two companies, showed that the

Defendants made and delivered to the Columbian Ins. G. N. Co. became the agents of the defendants to

Co., four notes, one dated November 1, 1860, at twelve make the contract for the carriage of the cow. 2d. That

months after date for $500, another of same date at the condition in the contract did not relieve the

seven months after date for $500, another of same date defendants from liability for negligence on the part of

at seven months after date for $1,000, and another their servants in delivering the cow. 3d. (by Blackburn

dated January 14, 1861, at seven months after date for and Lush, JJ.; Mellor, J., dissenting.) That the

$1,330. The notes were delivered to the company as inference to be drawn from the facts was, that there

security notes, in advance of premiums to be earned was negligence on the part of the defendants' porter;

upon policies to be issued by the company to the and that they were, therefore, liable to the plaintiff

defendants, under the provisions of section 5, Laws of for the loss of the cow. Gill y. The Manchester, Shef

1849. No policies were issued to defendants, and no field, and Lincolnshire Railway Co., L. R., 8 Q. B. 186.

premiums earned by the company. The charter of the WILL.

company authorized it to receive notes for premiums

on policies thereafter to be issued, and make all notes Execution : mark: acknowledgment. — The evidence

thus received available for any purpose connected with of one attesting witness (the other being dead) proved

the business of the company, and provided that such that he was called into the room of the deceased, and

notes should be payable within twelve months from asked by a third party, who had the will in his hand

date. In January, 1866, the company became insolvent, at the time, to witness the signature of the deceased.

and plaintiffs, having become appointed receivers of its A mark or cross was then on the paper at the foot of

assets, began this action February 2, 1869. Osgood, etc., the will. The witnesses signed their names. The

Receivers of Columbian Insurance Co. v. Strau88. deceased was present, and within hearing, but did not

Opinion by Fancher, J. make any observation, and the will was not read to or

2. Defendants moved to dismiss the complaint on the by him in the presence of the witnesses. The writer

grounds that a recovery on the notes was barred by of the will, who had asked the witnesses to sign their

the statute of limitations, and that the note for $500, names, was not called, and no proof was offered of

at twelve months after date, was not such as the comhis death.

pany was authorized to take. The court allowed Held, that the evidence failed to prove that the

defendants' motion to exclude from the recovery the deceased acknowledged his signature in the presence

twelve months note for $500, since the days of grace of witnesses. Morritt v. Douglas, L. R., 3 Prob. and

extended its payment beyond the time allowed, but Div. 1.

denied the motion for dismissal, based on the defense

of the statute of limitations. The plaintiffs claim that GENERAL TERM ABSTRACT.

the notes are to be read in connection with their char

ter, and therefore did not become due until January, SUPREME COURT, FIRST DEPARTMENT, MAY, 1873. | 1866, when the cash capital of the company was exhaust

ed. On appeal from judgment in favor of plaintiffs EXECUTORS AND ADMINISTRATORS. Seo Wills. for the last-named three notes:

Held, that the position of plaintiffs is untenable. FRAUDULENT CONVEYANCES.

The statute gave the notes validity, and they were law1. When set aside.-Defendant G. owned certain land, ful obligations of the makers. The time of payment and on November 5, 1869, conveyed it to defendant K. is made absolute, according to the terms of the notes, to whom he was indebted in the sum of $2,300, by a , and they would be void if the plaintiffs' construction deed which recited the consideration as $20,000, of which | be adopted, for the time of payment would be extended a mortgage on the land for $10,000, which was assumed beyond the period allowed by statute. Judgment by K., formed part. Plaintiff recovered judgment reversed. Ib. against G. January 21, 1870, for $1,074.75, and in this 2. Rules given as to “assessment notes" do not action to set aside the said conveyance to K. had judg- apply to the notes in question. Ib. ment declaring the property to belong to G. and to be

Also, see Counter-claim. subject to the payment of his debt. K. also paid about $700 for interest on the mortgage, taxes and assess

LEASES. See Contracts; Negligence. ments, making the consideration for the land $13,000.

LEGAL TENDER ACTS. See Payments. Held, that there being no evidence to charge K. with a fraudulent intent, and conceding G. to have acted

MARRIED WOMEN. fraudulently, the judgment was erroneous. The con Notes and bills: obligation of married women not conveyance to K. was valid as between him and G.; plain-nected with separate estate. - Defendant, a married tiff was entitled only to have the land sold and his woman, carried on business in her own name, assisted claim paid with interest and costs. Judgment reversed by her husband as agent, and in that business her notes and new trial ordered. The case of Chautauqua County were sometimes made. Defendant's husband, with Bank v. Risley, 19 N. Y. 369, examined. Orr v. Gil her consent, applied for insurance on his own life, and more & Kissick. Opinion by Ingraham, P. J.

in payment of the first premium, drew a note to which, 2. Evidence of fraudulent intent.--The declaration of as agent, he signed defendant's name as maker and G. made after the conveyance were inadmissible except gave the note to C, who was to procure the policy for to show fraudulent intent on G.'s part; they were not | him. C did not take out a policy but converted the evidence to charge K. with fraudulent intent. Ib. note to his own use and sold it to plaintiff, who took

the same before maturity, bona fide and without notice FORFEITURE. See Corporations.

of want of consideration or of the misapplication by C. INDICTMENT. See Evidence.

| In an action on the note, which bore no evidence that

defendant charged or intended to charge her separate

NOTES AND BILLS. estate, the complaint was dismissed.

Undue influence to obtain indorsement.-In January, Held, that a married woman cannot make a note 1868, the plaintiff, while a partner of one 0., loaned unconnected with her separate business or property,

to him certain certificates of stock which 0. sold withand a person taking such a note, though bona fide and

out plaintiff's knowledge, and appropriated the profor value, cannot recover upon it against her. The case

ceeds. Plaintiff endeavored to collect the money of The Corn Exchange Ins. Co. v. Babcock, 42 N. Y.

without avail, and had 0. arrested, but released him 613, examined and distinguished from this. Judgment

on his wife's promise to have him at plaintiff's office the affirmed. Bogert v. Gulick. Opinion by Fancher, J.

next day. The next day O., his wife and wife's mother MORTGAGES. See Contracts.

came to plaintiff's office, where a note was made by the NEGLIGENCE.

wife and indorsed by her mother. The note was proLiability of lessee failing to comply with the covenant to tested and this action brought thereon against the inrepair.-Defendant leased Pier No. 34, North river, dorser. On the trial the defendant testified that plainand covenanted in the lease to make all ordinary re

tiff threatened to send 0. to the State's prison unless pairs to the premises, such as replacing spring spiles,

she indorsed the note. Plaintiff denied this, but a patching worn surfaces, etc., landlord to make all ex

letter written by him after the protest contained traordinary repairs, as sheathing the whole surface of said threat. The judge charged the jury that there the pier, etc. Defendant did not occupy the pier, but

was no evidence of duress or undue influence, and subrelet it. Plaintiff brings this action for injury sustained mitted to them: 1st, whether the note was given for by his horse on the pier. The judge charged the jury compounding of a felony ; 2d, if not given for the comthat “if defendant had complied with his covenant and

pounding of a felony, did plaintiff make false representhe horse's foot would still have gone through, he is not

tations in regard to his right to send 0. to State's responsible; it is for you to say whether, if defend

prison, and that, for the purpose of avoiding that supant had complied with his covenant, the horse's foot

posed right of plaintiff, defendant indorsed this note would have gone through." Plaintiff had a verdict.

and for no other purpose? On appeal from judgment Held, that the charge was correct. Judgment affirmed.

in favor of plaintiff: Clancy v. Byrnc. Opinion by Fancher, J.

Held, that the judge's charge was erroneous. The

question should have been submitted to the jury, NEW YORK CITY.

whether undue influence was used. The defense that 1. Tares and assessments: validily of contracts with city.

a note was obtained by unlawful duress is available to -On October 4, 1869, the board of assistant aldermen

the surety who united in executing it. Judgment reof the city of New York concurred in a resolution

versed and new trial ordered. Ingersoll v. Roe. theretofore adopted by the board of aldermen, direct

Opinion by Fancher, J. ing the paving of Fourth and Fifth streets in said city

Also, see Insurance; Married Women. from Bowery to Mangin street with a patent pavement. The resolution was vetoed by the mayor, but was

PARTNERSHIP. See Corporations. adopted by both boards of the common council on October 25. Pursuant to an advertisement by the Cro

PAYMENTS. ton aqueduct board, inviting proposals for said work, Legal tender acts: when subsequent adjudications the relator sent the only proposal received for the do not disturb payments made under previous ones.same, which was opened January 10, 1870, and the con Defendauts held a mortgage for $8,000 on premises in tract awarded to relator. On December 2, 1869, a res New York city executed September 27, 1860, and payolution was adopted by the common council and ap able with interest September 27, 1863. On April 14, proved by the mayor, which amended said ordinance | 1870, plaintiff, having previously become the owner of of October 25, 1869, by striking out “ Mangin ” street, the premises, offered to pay the mortgage in legal and inserting “Lewis" street. The commissioner of tender currency, but defendants demanded gold, public works refused to make the contract, and relator whereu pon the parties made a written agreement that applied for a mandamus to compel the execution of the plaintiff should deposit with the Union Trust Co. the same. Relator's proposal was submitted to the commis difference between the value of the mortgage in legal sioners appointed under the act of 1872, Chapter 580, as tender currency and that in gold, and that the quesan award of a contract from Bowery to Lewig street, tion whether the mortgage was payable in gold or and they certified that they were satisfied there had paper currency should be submitted to the supreme been no fraud in the award. The application for a court of the State of New York. Thereafter the parmandamus was denied and relator appealed.

ties agreed to delay the submission to the supreme Held, that the Croton board had no right to award court of New York, until after the decision by the a contract which had been made upon proposals to supreme court of the United States of the so-called do the work in a different way from that which was legal tender cases, and that in case such decision contemplated when the notice was published for receiv should reverse the case of Hepburn v. Griswold, plaining such proposals; no assessment made under such tiff should be entitled to the sum so deposited. The an award would have been valid. The commissioner's United States supreme court followed the decision in certificate was not given as to any contract then exist- | Hepburn v. Griswold, and on plaintiff's order the ing, or which had then been awarded, and gave no | deposit was paid to defendants. Subsequently the validity to the contract. The People ex rel. Trundy v. United States supreme court held that the legal tender Van Nort, Commissioner, etc. Opinion by Ingraham, act was constitutional, and that it applied to contracts P. J.

made before as well as after its passage (12 Wall. 457). 2. Contracts for patented articles.—The provisions Plaintiff brings this action to recover back the money which entitle the person making the lowest estimate to thus paid to defendants. have the contract awarded to him do not apply to Held, that since, when the payment was made, both estimates for patented articles or mode of work. Ib. I the New York and the United States supreme courts had decided against the constitutionality of the legal | of audit, created by chapter 9 of Laws of 1872, destroyed tender act, as it respects contracts made before its | his right to demand its payment from the moneys passage, the contingency had arisen on the happening | raised under that act, but did not work a forfeiture of of which the parties had agreed the money should be the salary itself. This case is distinguished from paid to defendants. There was no mistake of fact or Donovan v. The Mayor, 33 N. Y. 291. Drake v. Mayor, law when the payment was made. Judgment for etc., of New York. Opinion by Davis, J. defendants. Doll v. Earl et al., Ex'rs, etc. Opinion by

REFERENCE. See Corporations.
Fancher, J.

Also, see Sales.

1. What is delivery of goods sold: tender: attachPENALTIES. See Corporations.

ments. - B., H. & Co. agreed to sell to S. & Co. 100 POWERS IN TRUST. See Wills.

bales of cotton. They shipped it from Savannah to B. PRINCIPAL AND AGENT.

at New York, with directions not to deliver it if the Review of evidence of agency for undisclosed principal.

standing of S. & Co. was doubtful. B., not being satis

fied with the standing of S. & Co., presented to them Defendant was a civil engineer, and plaintiff's evi

a draft for the price, which they accepted, but it was dence was, that as such, he had often given orders for work to plaintiff, who allowed him commissions on

agreed that the cotton should not be delivered to them

till the maturity and payment of the draft, and if the such orders, and never knew him to be engaged in

draft was not paid at maturity, S. & Co. were to give building boats on his own account. Defendant having

up their claim on the cotton. S. & Co. failed to pay ordered from plaintiff the boilers for which this

at maturity, and B. sold the cotton to D. Flynn, who action was brought, plaintiff received from defend

procured from plaintiffs an advance thereon, plaintiffs ant a payment on account of said boilers, gave a

taking the cotton into their custody. On April 11th, receipt purporting to be on account of one W., and the

the sheriff levied on the cotton under an attachment account was entered in the ledger in the name of W.,

against the property of S. & Co. On April 3d, S. & and the boilers were delivered to vessels which W.

Co. sold 93 of said bales to T. Flynn, who on April 10th was building; that defendant did not disclose W.'s

tendered a check therefor; this was refused, and T. name when he ordered the boiler's in question, and

Flynn then brought an action against B. and the sherthat the bill to W. was rendered at defendant's re

iff, by which the coroner took from plaintiffs the said quest. There was testimony from defendant that he told plaintiff he wanted the boilers for vessels build

93 bales. Thereupon plaintiffs brought this action to

recover the cotton from T. Flynn and the coroner, and ing by W., that the work was furnished to W., that

had judgment. On appeal : plaintiff allowed him a commission on these boilers, that they told him they had presented a bill to W., and

Held, that the title to the cotton was never in S. & Co.,

and the levy by the sheriff or sale to T. Flynn transsaid they wished they could hold him for them. W.

ferred no title to either. The tender of payment by testified that the boilers were delivered at his shipyard. Plaintiff had a verdict.

T. Flynn was of no avail, because he only tendered for Held, that the verdict was against the clear weight

93 bales, because the tender gave him no right to the

property if B. refused to deliver, but left him to the of the testimony, and a new trial should be ordered.

action for damages, and because T. Flynn had no title In such cases a new trial is granted only on pay

to all the cotton even for S. & Co., his vendor. D. ment of costs. Murphy v. Haswell. Opinion by Ingraham, P.J.

Flynn obtained a good title. The correct rule of PUBLIC OFFICERS.

damages was its value at the time of taking and inter

est. Judgment affirmed. The New York Guaranty Police court clerks in New York city: construction of statutes. — Plaintiff was appointed police court clerk in

and Indemnity Co. v. T. Flynn et al. Opinion by Ingra

ham, P. J. pursuance of the Laws of 1858, chapter 264, section 6, by

2. Delivery does not waive mode of payment: counterone of the police justices, and the latter notified the board of supervisors of such appointment, requesting

claim. - Defendants bought, on joint account, of plainthem to fix his salary; said board passed a resolution

tiff, through the latter's broker C, 294 pounds of oil, which was approved by the mayor, fixing plaintiff's

agreeing to give therefor a note or draft at sixty days.

Defendants knew that C's business was that of salary “at the same amount as is now allowed police

broker, and that he did not have possession of the oil court clerks, to date from his appointment May 1,

at the time of the contract. They refused to give their 1870.” In an action for unpaid salary, defendants in

note as agreed, but tendered to C in payment, two sisted that the appointment of plaintiff was void as in

protested notes indorsed by C, claiming to set off these violation of section 3, chapter 382, of Laws of 1870, pro

notes against the oil. Plaintiff had judgment. hibiting the board of supervisors from “creating any

Held, that the unconditional delivery of the oil did not new office or department."

relieve defendants from the mode of payment specified Held, that the office was created by the police

at the time of purchase, the only effect of such a dejustice, and the action of the board of supervisors was

livery being a waiver of any right to receive payment merely an expression of opinion on their part, that

as a preliminary to passing the title to the property, if the "additional clerical help" appointed by the jus

the defendants sold it before payment to a bona fide tice was necessary, which was not within the prohi

purchaser. Plaintiff was still entitled to demand the bition of the act of 1870. The resolution of the board

notes, and if refused, to claim immediate payment. of aldermen passed December 20, 1869, which fixed the

The claim to set off the notes indorsed by C was propsalary of police court clerk at $4,000, was in violation of section 11, chapter 876, Laws of 1869, and void ; and

erly refused. Judgment affirmed. Smith et al. v. Milli

ken et al. Opinion by Ingraham, P. J. plaintiff's salary must be determined with reference to the ordinance of December 31, 1864, fixing the

SOCIETIES. See Sunday. amount at $2,500 per annum. Plaintiff's failure to

STATUTE OF FRAUDS. See Contracts. have his salary accruing in 1871 audited by the board! STATUTES OF LIMITATION. See Insurance.

STATUTES, CONSTRUCTION OF. See Public Officers; court for distribution, and the court can direct this to Evidences; Wills.

be done, either absolutely or in default of satisfactory STOCK. See Corporations.

security for the distribution. The court cannot take

the power from those to whom it was given, on failure SUNDAY.

to give the prescribed bond, and vest it in a trustee of Meetings of societies can act on Sunday: societies can its own nomination. The provisions of the Revised not expel members without proof of charges against Statutes relative to trusts (1 R. S. 730, 731, $s 70, 71, 72), them. – Where a benevolent society held business relate to the “Express Trusts" treated of in that meetings on Sunday, at which a member was expelled | article, and do not apply to this case. Ib. in pursuance of a notice to appear, which was also served on Sunday, such proceedings are not void as in

FOURTH DEPARTMENT - APRIL TERM. violation of our statute. Making a contract or agreement on Sunday is not forbidden, nor is it illegal to hold business meetings on that day. But such a mem

AGENCY. ber cannot be expelled merely because he did not

Where the defendants employed one C as their appear, and without proof of the charges against him. agent to purchase cheese, generally for cash, but occaThe People ex rel. Corrigan v. The Young Men's sionally short intervals of time elapsed between the Father Matthew Benevolent Society. Opinion by Ingra delivery of the cheese and the payment for it, and deham, P. J.

fendants acquiesced in that course of business, and TAXES AND ASSESSMENTS. See New York City.

plaintiff knew that C was the agent of the defendants,

and did not give credit to him personally, on default TENDER. See Sales.

in part payment by C for goods thus purchased as TRANSFERS. See Corporations.

agent for the defendants, plaintiff had judgment at TRUSTEES. See WIlls.

the circuit. UNDUE INFLUENCE. See Notes and Bills.

Held, that C had an implied authority to purchase

on credit, and defendants were liable. Judgment WAIVER. See Corporations.

affirmed. Morey v.Webb. Opinion by Smith, J. WILLS.

BAR --- EVIDENCE -- ESTOPPEL. 1. Construction of powers given in trust to executors.

1 1. Plaintiff brought an action in a justice's court, and Where a testator directed in his will that “at and

among other claims presented to the jury was a note after the decease of my wife all the remainder of my of $42. Defendant in that action insisted that for a real estate shall then be sold and conveyed," author

consideration the time for the payment of said note izing his executors to sell and convey the same, and

had been extended. The jury in that action found a divide the proceeds as specially directed :

rerdict in favor of plaintiff for a portion of the sum Held, that the words “at and after the decease of

claimed, and in their verdict stated "that the forty-two my wife" simply fix the point of time when the power

dollar note stand over till April next," the time to shall vest in the executors, and the words “shall then

which, by the proof, it had been extended. This action be sold and conveyed," leave no room to doubt that

was brought on said forty-two dollar note, and defendthe power was to be presently executed: its imme

ant claimed that it is barred by the former recovery. diate execution can be enforced by any or either of

On the trial of this action a juror in the former suit the beneficiaries, although a large majority of them

was called, who testified under objection that the jury desire its postponement, and the latter would be most

in said former suit found that the forty-two dollar beneficial to the estate. See 1 R. S. 734 S 96. Van

note was not due when their verdict was made. Boskerck v. Merrick. Opinion by Davis, J.

Held, that a judgment is not a bar to a second action 2. Powers in trust, by whom to be exercised : construc

for the same cause if at the time of the rendition of tion of statutes.- The executors under this will are

the former judgment the cause of action had not then grantees of a beneficial and irrevocable power in trust

accrued. Parol evidence is admissible to show that (1 R. S. 735, $ 108; id. 738, $ 135), which is vested in

the demand in the second suit was not recovered for them jointly as devisees or grantees thereof, and not

in the first, and the reason why. That the evidence as executors; both must unite in its execution, but if

of the juror in the former suit was for this purpose one be dead the survivor may execute it (1 R. S. 735,

competeut. Marcellus v. Countryman. Opinion by $ 112), and the execution must be by an instrument Mullin, P.J. with the formalities, and sufficient in law to pass the 2. That part of the verdict of the jury in the former estate as if the person executing the power were the

suit in relation to the note not being due, was incomactual owner (id. 735, 736, SS 113, 117). The court can

petent. The jury had no power to render any such not divest the executors in such a case of the power in

verdict, but as the fact was established by a competent trust devised to them by the will, because of their

witness, defendant was not prejudiced by it. Ib. non-residence or poverty, or inability to agree in the

3. That defendaut having succeeded in defeating a settlement of their accounts. Nor can the court

recovery in the first action, on the ground that the note hamper its execution by the imposition of bonds as

was not due, is estopped from insistiug on the falsity security for performance, and impose a forfeiture of

of that proposition in this action. He is bound by his the estate as a penalty for not executing the bonds.

position taken in the first action. If the finding of the The most the court can do is to compel them to

jury in the first action was not right, it should have execute the power by selling, and in that manner only, been corrected by appeal. It cannot be questioned now. in this case, can they be divested of the power;

Judgment affirmed. Ib. though while compelling the execution of the power by them the court can effectually secure the proceeds

BILL OF SALE - EVIDENCE. to the beneficiaries. The proper mode in cases of Between a stranger to a sale and any of the parties danger of loss is to require the money to be paid into I to it, it is competent to show that although a bill of sale was made to one person, the purchase was in fact fendants. Defendants' demand being illegal in part, made by another. Defendant is a married woman. | rendered the payment by plaintiff compulsory to the Her husband and son made arrangements to purchase extent of the illegal part. Judgment reversed. Briggs a canal boat for the son, who was a minor. Defendant | v. Boyd. Opinion by Mullin, P. J. gave her notes for the price, and the bill of sale was made out to the son. Plaintiff afterward purchased said

CONTRACT — EVIDENCE. notes and brings this suit to recover on one of them. Defendant is an elevating company in Buffalo. In The defense is that defendant is a married woman, 1869 defendant contracted with plaintiff to elevate and and the notes were not given for the benefit of her store for a certain time five hundred thousand bushels separate estate. On the trial the judge charged the of grain at a certain price. Plaintiff sold to L. & ('o, jury "that the contract of sale being in writing, and the right under the contract to elevate and store one having been read to the parties (the vendor and pur hundred thousand bushels of grain. Subsequently the chaser), it would be the height of presumption to elevating companies of Buffalo increased the rates for suppose that the vendor was so ignorant as not to know elevating grain one cent over the price fixed by plainthat the bill of sale conveyed the property to the de tiff's contract. Defendant then applied to plaintiff to fendant's son."

have the contract rescinded, and plaintiff agreed to Held, that the charge of the judge was equivalent to and did rescind the contract except as to the right to an instruction to the jury, that the bill of sale was elevate one hundred thousand bushels sold to L. & Co. conclusive evidence that the sale was to the son and L. & Co. after this sent an order to defendant for its not to the mother. The court also charged the jury, acceptance to elevate and store the one hundred thou“That if she (defendant) was informed that she would sand bushels of grain according to the terms of the be the purchaser and would give the boat to her son, contract. Defendant's agents refused to accept the then she might be regarded as the beneficial pur. order, and this action is brought for damages for such chaser.” That, as the court did not inform the jury refusal. It was not proved that at the time L. & Co. whose duty it was to give defendant this information, sent the order to defendants that they had any grain to it was erroneous; if she had authorized ber agent be elevated and stored. L. & Co. assigned their interto make the purchase she needed no information as est in said contract to plaintiff. The referee found for to the manner she might become the purchaser. If she plaintiff $1,000 damages, being the difference between did not authorize her agent to make the purchase for the price fixed in the contract for elevating and storing her, she could not be liable. Judgment reversed. and the price then fixed by the elevating companies. McArthur v. Soule. Opinion by Mullin, P.J.

Held, that plaintiff alone could sue. They could not

transfer their interest to several parties and enable COMMISSION - MERCHANTS' COMMISSIONS.

them to bring separate actions. Plaintiff might assign The plaintiffs were distillers, and in the winter of the contract to any number of persons, but only one 1871 shipped to defendants, who were commission mer action can be maintained for a breach of it. 2d. There chants, four hundred and ninety-seven barrels of being no provision in the contract forbidding it, plaintiff whisky, to be sold on a commission of two and one could accept the grain of any other persons and elevate half per cent. Defendants themselves sold eighty-four

it under the contract. 3d. The sale to L. & Co. was not barrels, and plaintiffs' traveling agents sold two hun the sale of any share or interest in the contract, but dred and twenty barrels of said whisky, which de merely an agreement to give them the right to elevate fendants forwarded as ordered, and entered the the grain according to the contract. 4th. That the sales on their books. Defendants also paid all the measure of damages adopted by the referee, under the taxes on all said whisky, and made advances on it from case of Ogden v. Marshall, 4 Seld. 340, was correct. time to time, and kept the account of said sales on Evidence of the sale to L. & Co. was objected to by their books. In the fall of 1871 there remained in plaintiff's counsel, but received. defendants' possession one hundred and ninety-three

Held, not error. That proof of the sale, although barrels of said whisky unsold. Plaintiffs demanded not necessary, was proper by reason of the agreement this whisky remaining, and defendants refused to de | to surrender plaintiff's interest in the contract except liver it until their commissions were paid. They de- as to the one hundred thousand bushels sold to L. & Co. manded commissions not only on what they sold, but Judgment affirmed. Nelson v. Plimpton Elevating Co. also on what was sold by the traveling agents of plain | Opinion by Mullin, P. J. tiffs, and on the one hundred and ninety-three barrels

CONTRIBUTORY NEGLIGENCE. still remaining in their (defendants) possession unsold. Plaintiffs in order to get possession of the whisky paid This action was brought by plaintiff to recover for the amount claimed for commissions, and bring this | injuries sustained by him by reason of the negligence action to recover it back.

of defendant's employees. Plaintiff was driving a pair Held, that defendants, under the agreement, were of horses attached to a lumber wagon. One of the entitled to their commission of two and one-half per horses was young and afraid of the cars. The road on cent on all bona fide sales of said whisky. That it was wbich plaintiff was driving was nearly parallel to denot essential that the sale should be made by themselves, fendant's track, and for seven hundred feet back from a sale by plaintiffs after a delivery of the whisky to them, the place of accident the sight of the track was obwhich sale the defendants completed by forwarding the | structed by buildings, etc., nearly the entire distance. property, was such a sale as entitled defendants to their The signal post is sixty-seven feet from the crossing, commissions. That the defendants were not entitled to and on the east of the highway there is an embanktw) and one-half per cent commission on the whisky ment so near the highway as to render it very difficult remaining unsold. But they were entitled to such a to climb the hill or to turn round without danger of proportion of it as the trouble and risk incurred bore tipping over. It was proved on the trial that plaintiff to the whole trouble and risk which would have been was driving on a trot, and that as he approached the incurred had the property been actually sold by de- | crossing he did not look either to the right or to the

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