is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. The case and the rule were referred to and approved by this court in Shepardson v. The Milwaukee Gas Light Co., 15 Wis. 318, and afterward followed in Richardson v. Cheynoweth, 26 Wis. 656.

It cannot be said to assume that any amount of damages or any pecuniary loss or injury will naturally ensue or be suffered according to the usual course of things from the failure to transmit a message the meaning and import of which are wholly unknown to the operator. The operator who receives and who represents the company and may for this purpose be said to be the other party to the contract, cannot be supposed to look upon such a message as one pertaining to transactions of pecuniary value and importance and in respect of which pecuniary loss or damages will naturally arise in case of his failure or omission to send it. It may be a mere item of news or some other communication of trifling or unimportant character. Ignorant of its real nature and importance, it cannot be said to have been in his contemplation, at the time of making the contract, that any particular damage or injury would be the probable result of a breach of the contract on his part.

In this case the message was in cipher, its meaning wholly unknown to the operator, and no explanation given of its true character and import. It is true that the plaintiff testified, and his was the only testimony on the subject, that the employee to whom he delivered the message and the other persons engaged in the office at the time, knew that the message "pertained to stock because they knew my business to be that business." And it is true he likewise testified he informed the boy in the office that it was a telegram which required attention and promptness in the sending and that he left under belief that his request would be complied with. But these facts, however much they may tend to show negligence in the employee or operator, fail to bring the case within the rule for the assessment of damages above stated. They fail to show that it was made known at the office that the transaction was one relating to the purchase or sale of stocks, or if this had been made known, they fail to show that the agents of the company received any information as to the kind or quality of stock directed to be purchased.

For all that the operator knew, or was informed, it might have been some communication or inquiry concerning stocks, from the non-transmission of which no special damage would or could ensue. He cannot be said, therefore, to have contemplated a rise in the value of stock, by which the plaintiff became a loser, as the probable, or one of the probable or possible results of his failure to transmit the message, and consequent breach of the contract. To have put the company in a position of responsibility for the difference in the price of the stock between the opening of the New York Stock exchange on the next morning, when the message should have been in the hands of the plaintiff's agents in New York, and the hour-half past one in the afternoon - when the same was transmitted to and reached such agents, it was necessary that the agent or operator of the company at Milwaukee should have known the contents or meaning of the message, either by the same having been written out in plain

and intelligible words or having been otherwise explained to him. It might not, perhaps, have been necessary to have given a full and literal translation, but the value to the plaintiff of the message in a pecuniary sense, if we may be permitted so to speak, or the sum which the plaintiff was likely or liable to lose, or in which he might in the ordinary course of events be damaged in case the message was not accurately and speedily transmitted, ought at least to have been communicated to the agent or operator of the company.

Counsel for the plaintiff contend if the agent or operator was not apprised of the nature and importance of the communication that it was his fault, and that the duty rested upon him to have made inquiry of the plaintiff in this particular. They argue that the plaintiff was not bound to make explanation, but that it was incumbent on the agent or operator to make inquiry, if further information was needed for the protection of the company. If we accept the views expressed by the authors of the treatise upon The Law of Telegraphs (Scott & Jarnagin, 166 and note), counsel are without authority anywhere in support of this position, while the decisions and utterances which have come from the bench in numerous instances have been quite uniform and clear against it. We do not feel called upon to examine the cases seriatim, nor even to refer to them by name, upon this or any other point, since they have all been so conveniently and methodically collected and arranged in Allen's Telegraph Cases. The case of Rittenhouse v. The Independent Line of Telegraph, 44 N. Y. 263, Allen, 570, also relied upon by counsel, turned upon the ground that sufficient appeard on the face of the message to indicate its character and importance, and the courts said if the agents wished to understand it more fully they could have inquired of the senders. In analogy to the rule which prevails on the delivery of goods to a common carrier, where if his liability is not limited by a special notice, and if there are no improper means or artifice adopted by the person who sends the goods, to conceal the nature and value of the contents of the box or parcel so as to deceive or mislead the carrier, the person sending the goods is not bound to make the disclosure unless inquiry is made of him on the subject, the courts might, perhaps, have held in respect to these messages to be sent by telegraph that the duty of disclosure did not exist except upon inquiry made of the sender by the agents of the telegraph company. Ang. on Law of Carriers, § H. 4. But with regard to these messages in cipher, the signification and purport of which are wholly unknown to the agents and operators, the question would still have arisen whether they should not be looked upon as a means or artifice adopted by the sender to conceal the nature or importance of the communication, and thus have brought such messages within the operation of another rule or principle which exempts the common carrier from responsibility. Ang. §§ 258-263. The principle which relieves the common carrier on the ground of concealment of the owner of the goods, in respect to the nature, amount and value of them, seems to be that which is most nearly suited to the case or transaction in hand, and as it is the one which has been thus far acted upon and applied by other courts, we feel no hesitation in adopting it.

This cause was tried in the court below before the judge, without a jury, and all the evidence is certified up. The trial in this court is, therefore, a new or second one, both on the law and the facts, and the judgment of this court is final.

Another trial in the court below is not to be directed in such a case.

The judgment appealed from is reversed and cause remanded with directions to render judgment for the plaintiff for the sum paid by him for the transmission of the message, and that thereupon the costs be taxed and judgment entered therefor in the action as presented by law.

COURT OF APPEALS ABSTRACT.

CHATTEL MORTGAGE.

1. In an action for trespass it appeared that June 1, 1850, defendant sold to J. F. P. certain furniture, taking the purchaser's bond for the amount of the purchase-money, secured by a mortgage upon the furniture. Upon the day of its execution and in April, 1851, demand was made for payment of the bond. The mortgage was filed June 15, 1850, and was not refiled until July 3, 1851. July 2, 1851, the mortgaged property was levied upon under and by virtue of an execution, issued upon a judgment in favor of plaintiff's testator, against the mortgagor, and July 21, 1851, the sheriff sold "all the right, title and interest" of the mortgagor therein in one lot to plaintiff's testator. Subsequently defendant took possession of the mortgaged property and sold the same, under his mortgage, for which taking this action was brought. Held, that a mortgagee of chattels, to uphold his title as against creditors of the mortgagor, if the property remains in the latter's possession, must refile his mortgage within the year, as required by the provisions of chapter 279, laws of 1863, although default has been made in payment. Until reduced to possession, the mortgagee's title is founded solely upon the mortgage, and this ceases to be valid as against such creditors, unless refiled as directed. Porter, executrix, etc. v. Parmley. Opinion by Peckham, J.

2. A sale upon execution of all the right, title and interest of the judgment creditor, in chattels covered by a mortgage, valid as to creditors, is a sale of all that is vendable upon the execution, and gives the purchaser all the creditor's rights as against the mortgage. Ib.

3. By an agreement between the mortgagor and mortgagee upon default in payment, where the mortgagor is a member of a firm which is in possession of the mortgaged chattels, that a partner of the firm shall retain possession of the property for the mortgagee, the property remaining and being used as before, no change of possession is 'worked. Mere words will not effect a change in law, where there is none in fact. Ib.

CHECK.

Action upon a check drawn by defendant upon the Ocean National Bank to the order of D. It was delivered to the payee and discounted for him by plaintiff, who presented it to the drawee for certification, and it was certified as good. The drawer at that time had on deposit sufficient to pay the check, and the amount thereof was charged to him. Within an hour or two thereafter the drawee suspended, upon the same day the check was presented for payment, and payment being refused, was protested. Held, that as between the holder and the drawer the procuring of the certification was a payment, and the latter was discharged from liability on the check. The First National Bank Jersey City v. Leach. Opinion by Peckham, J.

HUSBAND AND WIFE.

1. Husband not entitled to damages for death of wife through negligence of others under acts of 1847 and 1849.Upon an appeal from the decree of the surrogate of Steuben county it appeared that on September 22, 1868, the wife of plaintiff died, from injuries received through the alleged negligence of the Erie Railway Company. She died intestate, leaving plaintiff, her husband, and defendants, her mother, brothers and sisters, her surviving. She left no children. Plaintiff was appointed her administrator, and February 4, 1869, commenced an action against the Erie Railway Company to recover damages for her death. September 30, 1870, the action was settled by the company paying $2,500. The surrogate, upon the settlement of plaintiff's accounts, decided that he was not entitled to any distributive share of such sum, and decreed distribution thereof among the next of kin of deceased. Held, that plaintiff was not next of kin of the wife, within the meaning of the act "requiring compensation for causing death," etc., (Chap. 450, Laws of 1847, amended by chap. 256, Laws of 1849) and prior to the amendment thereof in 1870 (Chap. 78, Laws of 1870) he was not entitled to a distributive share of any recover for causing her death under said act. Also held, that the amendment of 1870 did not change the rule of distribution in a case like this, where suit was commenced prior to the passage thereof, and that plaintiff was not entitled to a share of the sum received on such settlement. Drake, administrator, etc., v. Gilmore et al. Opinion by Andrews, J.

2. A construction of a statute which deprives one class of persons of the benefit of a recovery, given by a law, existing when the action was commenced, and transfers it to another, will not be adopted unless there is the clearest expression of such legislative intent. Ib.

HUSBAND AND WIFE.

Consideration for promissory note.-Defendant's intestate died, leaving no children, and leaving defendant,his widow, his father and three brothers,him surviving. Defendant presented a petition to the surrogate, claiming that she held a promissory note, made by her husband and given to her during his life-time, for $4,000 and interest, payable to defendant one day after date. The only consideration she claimed for the note, aside from her household duties, was, that she had aided deceased in the out-door work upon his farm, and that he gave her the note to provide for her support and maintenance. The surrogate allowed the note as a claim against the estate. Held, error. That the meritorious consideration arising out of the duty of a husband to support his wife, is not sufficient in equity to sustain a promissory note given to the wife by the husband, as against his collateral heirs. Whitaker, adm'r, etc., v. Whitaker, adm'r, et al. Opinion by Peckham, J.

1. This action was brought by a married woman, domiciled in the State of Maryland, and by the laws thereof holding property to her separate use, to recover damages for the loss of three packages and contents, delivered to defendant at New York, for transportation to Dunkirk. The packages were destroyed en route at the "Mast Hope" disaster. They contained, besides plaintiff's personal baggage, articles of merchandise. Held, that plaintiff, in seeking a remedy in this State, is governed by the laws thereof, and it was proper for her to bring the action in her own name. Stoneman v. Erie Railway. Opinion by Peckham, J.

2. Where a carrier of passengers in addition to passage money, demands and receives from a passenger compensation as freight for the transporation of packages containing merchandise and baggage, and in the absence of proof of fraud or concealment on the part of the passenger, as to the contents of the packages, such carrier, in case of loss, is liable for the merchandise as well as the baggage. Ib.

3. If the carrier is notified, or knows the character of the goods taken as baggage, and still undertakes to transport them, he is liable for their loss, although they are not travelers' baggage. Ib.

MECHANIC'S LIEN.

1. Action, under chapter 478, Laws of 1862, to foreclose a mechanic's lien for work and materials furnished for number of adjoining buildings, all owned by the same person. There was a statement in the notice of lien, that the claim was made against a third person, and that the work was done and the materials furnished at his request.

Held, that the buildings might be treated as one building, and a single proceeding was sufficient to enforce the claim against all. That where the notice stated who was the owner of the buildings, and it appears that the contract was in fact made with him, that the proceedings were good as against the owner, although the claim was made against a third person. Moran et al. v. Chase, impleaded, etc. Opinion by Rapallo, J.

2. The terms of $1, chap. 478, Laws of 1862, are sufficiently comprehensive to embrace a claim for flagging the sidewalk in front of a building. Ib.

3. Where the referee's report in such proceedings simply directs a sale of the premises, and a personal judgment is entered against the owner, the proper remedy is by motion to the supreme court to correct the judgment. The point cannot be raised on appeal. Ib. QUESTION FOR JURY.

1. This action was brought upon a memorandum of agreement signed by defendants, by which they agreed to deliver to plaintiff 1,000 rifles, at $18 each, cash on delivery. There was no consideration expressed, nor was there any proof of any positive parol promise on the part of plaintiff to accept and pay on delivery. Plaintiff gave evidence, tending to establish that such was the understanding, and defendants gave evidence that it was understood that plaintiff was to send a written order if he accepted the contract. A verdict for plaintiff was directed by the court below. Held, error, that it was a question of fact for the jury to determine, as to whether plaintiff had agreed to receive and pay for the rifles. Justice v. Lang, et al. Opinion by Allen, J.

2. Justice v. Lang, 42 N. Y. 493, limited and distinguished. Ib.

3. The right to draw presumption of the existence of one fact from another, which is established, is exclusively within the province of the jury. Ib.

4. A promise by one party is not, under all circumstances, to be implied from the fact that a promise has been made by another, to which that sought to be implied would be the correlative, and so the parties be placed under mutual obligations. Ib.

RAILROAD COMPANY.

Consolidation.- An action was brought against the M. S. & N. I. R. R. Co. and its officers, upon a contract with that company, which company was consolidated

with others into the L. S. & M. S. R. Co. The action was referred, and the referee made a report, directing judgment for the amount claimed, and restraining defendants from making any dividends until the amount was paid. A subsequent order substituting the consolidated company and its officers as defendants. Held, error, that this order made them liable upon the original contract, as it subjected them and all the funds and property of the consolidated company to the restraint adjudged against the old company.

Also, held, that upon the consolidation of two or more railroad companies, as far as the creditors of one of the original companies are concerned, the consolidated company is successor of the old company, but in respect to the properties of the other companies it is a new and independent company, and such creditors have no claims against it upon their original contracts, but only by virtue of its assumption of the obligations of the old companies.

The officers of the new company, so far as the trust devolves upon them of managing the property formerly of the old company, occupy in relation to its creditors the position of successors to the officers of the old company, and are bound by all proceedings had against them, but as to the properties formerly of the other companies they are successors to the officers of those companies, against whom such creditors have no right of action upon their original contracts. Prouty v. L. S. & M. S. R. Co. et al. Opinion per curiam.

STOCK CONTRACTS.

In an action to recover a balance of $1,249.19, alleged to be due plaintiff from defendants, it appeared that defendants, who were stock brokers, were employed by plaintiff to operate for him in stocks. Plaintiff was to furnish a margin and keep it good without notice. Defendants to look out for themselves if he did not. The transactions were all "short sales." Defendant's selling, deliverable the next day, and borrowing the stock to deliver until plaintiff directed a purchase to replace the borrowed stock. At the close of a transaction thus conducted, defendants had to the order of plaintiff, $1,249.19. The latter directed the sale of 100 shares of Michigan Southern. Defendants sold as ordered on account of plaintiff, borrowing the stock to deliver, and crediting plaintiff with the proceeds. The stock rose in the market and plaintiff's margin was exhausted; defendants notified plaintiff to furnish more, and upon his failure to do so bought in to replace the stock borrowed.

Held, that under plaintiff's order defendants were authorized to sell and borrow the stock for delivery, and upon plaintiff's failing to furnish the necessary margin, they had a right to buy on his account; that the purchase was so made, and therefore a finding that such purchase was not made for or on account of plaintiff was error. Knowlton v. Fitch et al. Opinion by Rapallo, J.

TOWN BONDING.

Withdrawal of consent.-This was a writ of certiorari, issued to review the decision of the county judge of Jefferson county, in proceedings to bond the town of Orleans in said county, under the provisions of the act permitting municipal corporations to aid in the construction of railroads (chap. 907, Laws of 1869, amended by chap. 925, Laws of 1870). The contestants presented upon the hearing before the County Judge a paper, signed by a number of the persons who had signed the

petition, requesting that their names should be struck from the petition, as not consenting to the same. The parties who signed this paper, appeared before the judge and requested that their names should be struck from the petition, which the judge declined to do. Without the names of these persons the petition would have been insufficient. The judge decided that the petitioners were a majority of the tax payers of the town and represented a majority of the taxable property of the town, and appointed commissioners as prescribed by the act.

Held, error; that petitioners have a right to withdraw their names from the petition, at any time prior to the final submission of the case to the county judge, and that upon such withdrawal their names and taxable property must be excluded from the calculation on the part of the applicants. People ex rel. Irwin et al. v. Sawyer, County Judge, etc. Opinion by Rapallo, J.

TURNPIKES AND PLANKROADS.

1. Inspectors: toll penalties. —Action to recover penalties alleged to have been incurred by taking toll at the gate of a plankroad company, organized under chap. 210, laws of 1847, after notice from the inspectors of turnpikes, appointed under chap. 43, laws of 1848, to open the gate. Held, that under the provisions of 1 R. S., §§ 44, 586, in reference to turnpike corporations, which imposes a penalty of $10 upon every keeper of a toll gate ordered to be thrown open by the inspectors, who shall not immediately obey such order, the aggrieved party is not limited to one penalty, but may recover the same for each and every offense. Foster v. N. Y. C. R. R. Co., 46 N. Y. 644, and Washburn v. McInvoy, 7 J. R. 135, distinguished. (Grover, J., dissenting.) Suydam v. Smith. Opinion by Rapallo, J.

2. Inspectors of turnpikes, formerly appointed under the Revised Statutes, and now under the act of 1848, providing for such appointment (chap. 45, laws 1848), are the proper officers to inspect toll roads, upon complaint that they are out of repair, and to serve notice to discontinue all tolls in case of failure to repair. Ib. 3. The inspectors mentioned in the act of 1847, providing for the incorporation of plankroad and turnpike road companies (§ 33, chap. 210, laws 1847), are confined to a preliminary inspection of toll roads before the companies are allowed to exact toll thereon. They have no power to act upon complaints for want of repair. Ib.

WILL.

This was a case submitted under §372 of the Code, to obtain the construction of the will of H., the provisions of which were substantially as follows: 1st. It directed the executors to sell all his real and personal estate. 2d. It gave to his wife an annuity of $175. payable yearly out of the rents and income of his estate, so long as she remained his widow, provided she accepted the same in lieu of dower. 3d. It gave one-seventh of the residue of the balance of the rents and income to B. upon certain trusts; and 4th, it directed all the balance of the rents and income to be equally divided among six legatees named. Held, that by the first clause the whole estate was equitably converted into personalty; that the last clause was an absolute gift of one-sixth of the remainder of the estate-to each of the legatees named, and that the acceptance of the annuity only barred the widow's claim to be endowed of the real estate, and did not affect her right to the personal property. Hatch v. Bassett. Opinion by Grover, J.

GENERAL TERM ABSTRACT.

SUPREME COURT-FIRST DEPARTMENT.

ATTACHMENT. See Undertakings. ATTORNEYS. See Specific Performance. BILLS, NOTES, ETC.

-

1. Consideration. This action is upon a promissory note. The defenses are a want of consideration, and that the note is an accommodation note. Appeal from a judgment entered on referee's report in favor of plaintiff. It appeared that plaintiff and defendants, Hartshorn and Brand, entered into a contract together with one McKendrick for the purchase of malt. McKendrick paid for his one-third share thereof. Hartshorn and Brand could not pay for their share, and plaintiff proposed to use their note to raise money for that purpose. They accordingly gave their note to plaintiff for $8,864, and he had the same discounted, and with the proceeds paid for the malt. When the note was nearly due Hartshorn told plaintiff they could not pay the note, and thereupon plaintiff agreed to advance them $6,000 on receiving from them $8,000 in four notes. Accordingly he advanced them $6,000, and they took up their first note when it became due, by paying it with this money and $2,864 of their own funds. During this time the malt was stored in the house of Hartshorn and Brand, but previous to the time when the four notes became due plaintiff, upon an order from them, obtained his share and took it into his possession.

Held, that the only sum due plaintiff from defendants was $1,593.06, as the only amount of consideration which plaintiff in reality had paid on the notes, together with interest, from the day of payment of the malt by plaintiff, this being the difference between $2,864, the amount paid by defendants on account of the first note out of their own funds, and $4,457.06 the amount they should have paid originally for their third of the malt. As plaintiff took up the notes when they became due they were only securities for the $6,000 he advanced thereon, and, as between defendants and himself, subject to his third of the malt. The value of the malt subsequently delivered could not have been the subject of a counter-claim, as it always belonged to plaintiff, and was held on storage by defendants. Its delivery showed that the notes were not an advance on that property. It is unnecessary for the defendants to be put to another action to recover back the amount overpaid by them. The judgment should be reversed unless the plaintiff consent to reduce the judgment to $1,593.06, and interest from 17th September, 1870, in which case the judgment is affirmed for that sum. Gordon v. Titus et al. Opinion by Ingraham, P. J.

2. Ib. The delivery of the malt to plaintiff by defendants Hartshorn and Brand was at the suggestion of the latter, to break up the joint contract and accept the share, which met with no objection on the part of plaintiff. If the plaintiff could have met the testimony to that effect, and shown outstanding equities in relation to the joint contract, he would have been awarded the benefit arising therefrom. The present constitution of the courts permit the application of legal and equitable maxims in every case, and plaintiff cannot equitably recover more than the proofs show him entitled to. Ib. Opinion by Brady, J., concurring.

four notes in the common pleas, and that and the present action were tried before the same referee, whose report in both actions was in favor of plaintiff. On appeal to the general term of the common pleas the judgment was affirmed. (Gordon v. Boffe et al.) That litigation being on substantially the same question, and between substantially the same parties, that decision should now be followed. The rights of the parties under a final settlement of the joint purchase are matters of affirmative defense, by way of counterclaim, or payment or the like, and they have not been so set up. The matter of the purchase cannot be satisfactorily disposed of in this action. Ib. Opinion by Learned, J., dissentiente.

1. Interpretation of contracts: certificate of surveyor, when conclusive: evidence of usage. — Plaintiff seeks to recover the amount of a verdict rendered in the Circuit, where exceptions were taken and ordered to be heard in the first instance at General Term. The claim is made for work under a contract with the defendants in regulating and grading a portion of First avenue, in New York city. Plaintiff was paid for all the work except for rock excavated outside the perpendicular lines of the avenue, and it is said that this is not within the contract. The learned judge examines the provi- | sions of the contract, and holds: That no provision is made for this work. The evidence that rock slopes were necessary is only to the effect, that it was impossible to do the work without slopes, "unless you cut with hammer and chisel." This evidence only proves that it was easier and cheaper to do the work with slopes. The work done falls within the provision, "that, in case any other work is required to be done in order to carry out the provisions of the agreement," the contractor "will do the same without any claim for extra compensation therefor." The plaintiff is also bound by the provisions of the contract, that the return of the City Surveyor shall be the account by which the work done shall be computed, and that plaintiff shall not be entitled to receive payment without proper certificate of the surveyor. In the absence of evidence of fraud, collusion or unreasonable refusal, this certificate is a condition precedent to any right of the plaintiff to recover. If given in good faith, it concludes the rights of both parties. (3 Den. 73; 44 N. Y. 144; 4 Duer. 308; 24 Wend. 449, cited.) If a certificate is fraudulently or unreasonably refused, the plaintiff, on proof of such facts, may recover on a quantum meruit. (17 N. Y. 176; 9 Peters, 319, 375; 26 N. Y. 33, cited.) No such refusal was shown here. There being nothing ambiguous in the contract, nor any intention respecting it which remains to be supplied, proof of an alleged custom among contractors to include rock slopes is inadmissable. It was competent for the parties to make the contract, as the surveyor testifies they did, "different from ordinary contracts." Whenever the terms of a contract indicate an intention different from the usage in similar cases, the terms must prevail. (34 N. Y. 422, and other cases cited.) Verdict set aside. Voorhis v. Mayor, etc., of New York. Opinion by Fancher, J.

2. Waiver: interpretation of contracts: principal and

agent.-Action to recover for alleged breach of contract. The written contract was as follows: "Daniel L. Sturgis, Hemp Broker, &c. New York, May 19, 1870. Sold for account of 'plaintiffs to defendants' 431 bales jute hemp, to arrive from London per ship 'Robena,' in good order, free from damage, at 5% cents per pound, gold, cash, payable fifteen days from delivery along side of vessel-purchaser to advance gold sufficient to pay duties." Signed by D. L. S., Broker, and accepted by defendants. When the "Robena" arrived she brought only 343 bales. The remainder arrived about a month later by another ship. On the arrival of the "Robena" the plaintiffs delivered to Sturgis an order for the delivery of 344 bales to defendants. By means of this order Sturgis procured the delivery of the jute to him, and stored it, in his name, in a public store. On the arrival of the "Robena" the defendant Furnwal examined the jute on the dock, and told Sturgis that it was not the hemp he had agreed to purchase, and refused to take it on that ground, assigning no other reason. He had no knowledge that the whole number of bales contracted for had not then arrived. The referee further finds, that neither the whole or any part of the jute was ever offered or tendered to defendants by plaintiffs. He finds that the jute was merchantable. Appeal from judgment in favor of defendants. Held, that it is apparent that Sturgis was not the agent of the defendants, and, therefore, none of his acts constituted a delivery to or acceptance by them. This was an executory contract to deliver certain goods to arrive by a designated vessel, and, to recover thereon, plaintiffs must show the delivery, or a readiness and offer to deliver, the whole quantity. (Baker v. Higgins, 21 N. Y. 397, cited.) As defendants did not know that but a part had arrived, they waived nothing. Plaintiffs were not then in a condition to perform, and unless defendants knowingly waived the inability, plaintiffs cannot insist that the defendants should carry out a contract, that they cannot. The findings of fact of the referee being on a conflict of testimony cannot now be disturbed. Judgment affirmed. Newberry et al. v. Furnwal et al. Opinion by Learned, J.

3. Evidence: reason of the rule for the exclusion of evidence of collateral facts. —On cross-examination of Sturgis, one of plaintiffs' witnesses, he testified that he told one of defendants that plaintiffs could not deliver the full number of bales at the agreed time. Defendant was afterward called, and contradicted this statement. It was urged that this was error, within Crounse v. Fitch, 6 Abb. N. S. 185, etc. The reason of the rule preventing the contradiction of a statement made by a witness, as to a collateral matter, on crossexamination, is not that the party cross-examining has made the witness his own, but to prevent the trial of numerous collateral issues such as the opposite party could not have expected to try. The matter here, however, was material, as there could have been no waiver, unless the defendant had knowledge of plaintiffs' inability. Ib.