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RESTITUTION. On the reversal of a judgment awarding possession of premises to plaintiff, restitution cannot be awarded to the defendants where the premises are actually in the possession of one not a party to the action under a lease for a term of years which is unexpired. Carter v. Anderson et al. (N. Y. C. P.), 795.
See RECEIVER, 2, 3.
REWARD. Defendant offered a reward for the recovery of the body of his son who had been drowned, and did not withdraw the offer. Plaintiff propos d to the defendant's agent to search for the body, as a diver, provided he was furnished a diver's suit and persons to assist in workiüg the apparatus. This was done and plaintiff finally found the body. The court below nonsuited the plaintiff upon the ground that he was in defenda t's employment by virtue of the materials, etc., furnished as above. lleld,error. The defendant had offered a reward and never had withdrawn it, and although willing to assist plaintiff in his effort it cannot be supposed that plaintiff because of this ceased to rely on the reward as an incentive or regarded himself only as defendant's agent. Bagnall v. Barnard (Sup. Ct.), 98.
SALE. 1. Plaintiffs, in pursuance of a contract, shipped certain goods to defend
ants, which were warehoused by them and so retained for three years, although they notified plaintiffs that they could not use them, but would accept them at a less price than that named in the contract. Ileld, following former opinion in 56 N. Y. Supr. Ct., 572; 23 N. Y. State Rep., 198. that a verdict in favor of plaintiffs for the purchase price was not against the weight of evidence. Adams & Co. v. Mayer et al. (N. Y.
Supr. Ct.), 83. 2. Plaintiff, in 1886, sold to defendant a steam pump on condition that the
latter might return it if not satisfactory after thirty days trial; otherwise he was to keep and pay for the same. He did not offer to return it unul October, 1888. In an action for the purchase price, it appeared that from January 1, 1887, to April, 1888, defendant used the pump at intervals, although complaining to plaintiff from time to time of its failure to work properly, and asking and receiving instructions how to remedy the defect complained of. Held, that his use of the pump and acts in relation thereto amounted to an acceptance thereof. Empire Steam Pump Co. v.
Inman (Sup. Ct.), 111. 3. Defendant was not allowed to testify as to whether the pump worked
satisfactorily when connected with the street water main or with the tank and reservoir. Held, no prejudicial error, as the time allowed for tests had passed, and the pump was not sold or represented to be capable of work
ing under pressure from the city water mains. Id. 4. Although the correspondence by which the parties enter into an agreement for the sale of goods leaves some of the particulars in doulit, acts of the parties which show that it was contemplated that the goods should be manufactured by the vendor take the agreement out of the statute of
frauds. Rutty v. Consolidated Fruit Jar Co. (Sup. Ct.), 121. 5. Plaintiff subsequently gaver rders for other goods and the machines for
making the same, but frequently communicated his wish that the first agreement should be fulfilled. 'Ield, that no abandonment of the first
contract was shown. Id. 6. Defendant wrote plaintiffs offering to sell them a grade of dried apples
called “ chops" at a price stated. Plaintiffs accepted by letter the offer at the price and added we do this of course on the presumption that the goods are of 'prime' quality and run 200 pounds net or more per barrel. Please send us sample at once and we will then give you shipping directions." Upon the day on which defendant received plaintiffs' letter, defendant received a better offer which he accepted. In an action for breach of contract, Held, that plaintiffs' letter, in view of its conditions about weight, quality and sample, was not an unqualified acceptance and that
there was no sale. Myers et al. v. Trescott (Sup. Ct.), 235. 7. Plaintiffs first brought an action in which they sought an attachment,
ratifying the sale of certain goods to defendant's assignor, but ignoring the credit given on the ground of their being obtained by fraud, and seeking to recover the purchase price of the property sold. The attachment being subsequently set aside, the suit was discontinued and this action begun, which repudiates the sale, claims the title and ownership of the goods themselves and seeks their recovery in specie. Held, that the plaintiffs made an election which ratified the sale of the goods to the assignor, and consequently cannot now maintain an action based upon the assump
tion that they still own the property. Bach et al. v. Tuch (Ct. App.), 363. 8. Where a party who has been induced by fraudulent representations to
sell his goods to another elects to ratify the sale after knowledge of all the material facts going to prve the fraud, such election will be conclusive, although at the time he makes it he is ignorant that his vendee had made similar fraudulent representations to others by which he had obtained
property from thein. oId. 9. Plaintiff having contracted to purchase hops of one D., the contract
providing that the bales were to weigh from 180 to 200 pounds each, defendant bought the contract of him but upon delivery of the hops refused to accept them on the ground that they were slack dried and unmerchantable. Plaintiff paid the contract price to D., and resold the hops. In an action for a deficiency, lleld, that the fact that some of the bales weighed less than 180 pounds, although the aggregate weight was correct,
was not available to defendant. Knox v. Schoenthal (Sup. Ct.), 595. 10. Plaintiff gave notice of the resale to an agent of defendant who was
duly authorized to make contracts in relation to purchasing, receiving and paying for hops, and who made the contract with plaintiff. The agency had then terminated, but of this plaintiff had no knowledge. Held, that plaintiff was justified in giving notice to such agent and that it was bind
ing on defendant. Id. 11. Where, upon the sale of a business by plaintiff to defendant, a bill of
sale was executed which stated the consideration to be the payment of the debts incurred by plaintiff in the business to date, Held, in an action for moneys loaned, where the rights of the parties depended largely upon this sale, that this covenant could not be attacked by parol evidence and that defendant could not thus show that the consideration, in fact, was a
smaller sum than the debts. Brockman v. Meyers (Sup. Ct.), 650. 12. Where anything remains to be done by a seller of merchandise to put
the same in deliverable shape so that the purchaser has an option of refusal to accept in case such things are not done, no title passes; and the only exception to this rule is that where goods are sold by weight and measure the exact quantity may be ascertained in order to fix the price to be paid.
Blossom v. Shotter (Sup. Ct.), 653. 13. In an action to rescind a sale of stock, procured by false representations,
the plaintiff failed to show any damages. lleld, that the action could not be maintained. The rule in equity upon this point is the same as at law, and in both it must appear that there is a substantial wrong to be re
dressed. Aron v. De Castro (Sup. Ct.), 716. 14. Plaintiffs sold goods to the firm of K. & F., relying on a report of a
commercial agency as to a statement made to it by K. & F. of their financial standing. Before the delivery of the goods the agent of said agency called on K. & F. for another report, but they refused to give one. The application was not made at the instance of plainiffs nor was the refusal communicated to them. Held, that the representation of solvency made to the agency was a continuing one, a recall of which was necessary to relieve K. & F. of liability to persons who extended credit in reliance thereon, and thut the refusal to mak" a new statement was not sufficient for that purpos. and did not affect plaintiffs' right to rescind because of
the falsity of the representation made. Claflin et al. v. Flack (N. Y. C.
P.), 728. 15. The plaintiffs, importers of diamonds, delivered diamonds to defendant
with a memorandum as follows : “The following goods are for your inspection and remain the property of Saunders, Ives & Co., until a correct invoice of those selected is sent to you.” Held, that such a contract gave defendant no title to the goods, and no right to sell them. Saunders
et al. v. Payne (N. Y. C. P.), 733. 16. Where the possession of the goods included in a bill of sale is allowed
to remain in the vendor, the burden of establishing that the sale was in. good faith and without intent to defraud creditors is upon the purchaser, although a good consideration is proved, and in this respect $ 5 of tit. 3 of chap. 7, part 2 of the Revised Statutes did not change the rule established by $5 of tit. 2 of said chapter, Carr et al. v. Johnson (Sup. Ct.),
is no proof to show a good consideration or that it was made in good faith
SERVICE. 1. Defendant was induced by a letter from plaintiff's agent to visit this
state for the purpose of aiding in settling a suit between plaintiff and a corporation aud with a view to his employment. The corporation had interposed an answer that plaintiff's only contract was with defendant. After two interviews which failed to bring about a settlement, plaintiff's agent served on defendant a summons which had been prepared on the day of his arrival. Held, that the facts were sufficient to show that the invitation to defendant to visit the state was given for the purpose of effecting a settlement, with his assistance, of the suit against the corporation, or to commence this suit if that failed; that such service was a breach of confi
dence and should be set aside., Allen v. Wharton (Sup. Ct.), 558. 2. A service of papers on an attorney by thrusting the same under his door
when it was locked is not regular or effective, but such irregularity is waived where the paper is retained and acted upon by the attorney.
Rogers v. Rockwood (Sup. Ct.), 919. 3. Where an answer served after the last day allowed for service thereof is
retained by the plaintiff's attorney he cannot thereafter avail himself of any irregularity in the service thereof. Id.
See BANKS, 7, 8.
SERVICES. 1. Plaintiff was employed by defendants to procure the placing with them
of the accounts of a manufacturing firm, which he procured to be done, the goods to be sold in defendants' name, for which they were to receive a certain commission. Thereafter a new arrangement was made by which defendants were relieved from the obligation to sell and received a smaller commission. In an action to recover for plaintiff's services, Held, that the question whether the accounts under the later arrangement were such as were within the contemplation of the parties at the time of the employment was one for the jury to determine. Metz v. Luckemeyer et al. (N. Y.
Supr. Ct.), 85. 2. Although the testimony of the defendant showed that there was to be
no compensation unless the taking of the accounts should be of value to them, yet where the preponderance of the evidence is that the accounts did prove of value to them it is not error for the court to charge that defend
ants were bound to pay the plaintiff something. Id. 3. The court properly refused to charge that plaintiff's compepsation de
pended on the actual labor spent by him in the performance of the ser
vices, as the jury in determining their value were bound to consider the
value to the employers of the benefits received by them. Id. 4. Defendant's warehouse having caught fire, plaintiff sent his boats,
which he kept for that purpose, to aid in extinguising the fire. On that evening he was told to remove the boats, but the following day, the fire having again broken out, he was regularly employed to extinguish it. Defendant was insured, and his warehouse contained goods of other persons. Held, that the rule that where a person renders services for another, and the other stands by and accepts the efforts of the first person, the law will infer a promise to pay a reasonable sum for such service was not applicable to the case ; that there was no reason why defendant should not have supposed that the boats were sent by one of the other parties interested in the property, and that defendant was under no implied obligation to pay for the voluntary services so performed. Merritt v. American Dock &
Trust Co. (N. Y. Supr. Ct.), 428. 5. Plaintiff assigned to defendants, by an instrument absolute in form, but
in reality as collateral security, a two-thirds interest in certain patents, defendants agreeing to furnish him with certain funds and with goods and provisions as long as they were satisfied to carry on business under the patents, and it was agreed that after a certain time, if satisfied that it would not be profitable to continue, they might terminate the agreement, retaining their interest as security for any indebtedness due to them. While the arrangement continued, plaintiff was employed by defendants to do certain work about and make improvements in the patents. In an action for a reassignment after termination of the agreement, Held, that while the agreement lasted defendants occupied the position of owners of two. thirds of the patents, and it was competent for them to employ plaintiff to do such work, and that their subsequent voluntary abandonment of such ownership furnished no ground for a claim that plaintiff should not be paid for his work. Barry v. Coville et al. (Sup. Ct.), 598.
See EVIDENCE, 16, 18, 19; EXECUTORS, ETC., 2.
SHIPS AND SEAMEN. The captain of a vessel during the voyage is the representative of the owners of the vessel, and not a mere fellow servant, and the managing owners are liable for an assault committed by him upon a member of the crew while upon the high seas, unless the act was done maliciously and was whelly unconnected with any duty he owed the owners at the time. Gubrielson v. Waydell et al. (N. Y. Supr. Ct.), 675.
SLANDER. 1. In an action for slander where the words spoken do not necessarily im
pute a crime or an attempt at a crime, the question of intent is for the jury.
Lally v. Emery (Sup. Ct.), 294. 2. In such an action where the plaintiff and defendant were United States
soldiers and the words were spoken to a member of the same company, Held, that the words were not absolutely privileged, and that the questions of good faith, belief in the truth of the statement and malice were for the
jury. Id. 3. Defendant, who was the principal of an institution for deaf mutes, com
plained to the executive committee of the board of trustees that plaintiff, a teacher therein, had sent to his wife an obscene circular, and plaintiff was thereupon discharged. Held, that his communication to the executive
committee was a privileged one. Hemmens v. Nelson (Sup. Ct.), 905. 4. On the trial of the action for slander, plaintiff testified from her knowl.
edge of defendant's handwriting that the circular was sent by him, based
on the supposition that the superscription on the envelope was in his handwriting. "Defendant denied that he had anything to do with the origin or sending of the envelope or circular, and other witnesses testified that none of the writing was his. Held, that the court did not err in directing a verdict for defendant. Id.
SPECIFIC PERFORMANCE. Equity will not enforce specific performance of an oral agreement to sign an instrument not wholly written out where the written portion required re-writing in order to conform to the wishes of the parties, and important blanks had been left, in reference to which no understanding existed. Kayser v. Arnold et al. (Ct. App.), 896.
STATE. In an action brought by the state upon contract, the defendant cannot set off damages by reason of the breach of other contracts by the state. To permit him to do so would be to allow him to do indirectly that which he could not do directly. People v. Corner (Sup. Ct.), 107.
STATUTE OF FRAUDS.
See SALE, 4.
STATUTES. 1. Section 19 of chap. 475, Laws 1889, amending, $ 106 of chap. 26, Laws
1885, limited the tax levy of Syracuse to a given sum and proceeded, "provided, however, that in the city tax levy for 1889 there may be included in addition,” etc., certain other amounts, among which was one for opening C. avenue. Later in the section was an absolute direction to include in the levy of 1889 a sum for a certain park. Held, that the item as to C. avenue was permissive and should not be construed as mandatory.
People ex rel. Comstock v. Mayor (Sup. Ct.), 296. 2. In determining whether the word “may,” in a statute, is equivalent to
the word "shall.” not only the language of the act, but the circumstances surrounding its passage and the object in view, must be considered; and where such language is held to be mandatory, tnere must be a definite public interest or a vested, well-defined private right to be subserved,
given or protected. Id. 5. Having regard to the circumstances surrounding the passage of this act,
it appeared that the relator was to deed the right of way for C. avenue to the city, and that he had presented to the common council a deed among other things containing a forfeiture clause, and that the common council had refused to accept the deed. Held, that this circumstance, if in point, tended to show that the words in question in this act were permissive. Id.
STOCK. 1. 0. C. & Co., stock brokers in Troy, purchased certain stock through
their N. Y. agents for defendant upon a margin. Defendant gave the brokers orders to sell at a price fixed, which they disregarded, although the shares could have been sold for that price at any time between August 15th and 20th. Subsequently 0. C. & Co. failed, and their N. Y. agents, to whom they were indebted, and who did not know the defendant in the transaction, closed out the stocks at a lower price than that fixed. Held, that defendant's measure of damages was the difference between the price he fixed and that at which the N. Y. agents sold. Allen v. McConihe (Ct.
App.), 262. 2. To induce plaintiff's intestate to purchase certain stocks, defendants
agreed that if at the end of a year he desired to sell the same, they would buy them for the amount paid, with interest. Held, that proof of an actual tender of the stock on the day fixed by the agreement to defendants at their places of residence, or their place of business if that would be