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ment than water; and when there is, as in this State, already existing and now imposed by statute upon no danger of a presoriptive right being acquired in them, which is only confirmatory of the common law. wiudows, the reason assigned by Wasbburn and others The decree of the court below is affirmed with costs for the distinction between the two elements, light of both courts. and water, is not applicable. See Washb. Easem. 489; Sherwood, J., concurred; Campbell, C. J., and Mahan v. Brown, 13 Wend. 264. If a man has no right Champlin, J., dissenting. to dig a hole upon his premises, not for any benefit to himself or bis premises, but for the express purpose of destroying his neighbor's spring, why can be be per- NEW YORK COURT OF APPEALS ABSTRACT. mitted to shut out air and light from his neighbor's windows, maliciously and without profit or benefit to CRIMINAL LAW – KOMICIDE -- APPEAL- EVIDENCE himself. By analogy it seems to me that the same -- FORMER ACQUITTAL.-(1) Under the lawo of New principle applies in both cases, and that the law will York, 1887, chap. 493, allowing an appeal from a coninterpose and prevent the wanton injury in each in- viction, in a capital case, directly from the trial court stance. In Phelps y. Nowlen, supra, it is stated that to the Court of Appeals, and providing that a new the doctrine is settled in New York “that if a man trial may be granted in such case where the court is has a legal right, courts will not inquire into the mo- satisfied that the verdict is against the weight of evi. tive by which he is actuated in enforcing the same. A dence, or that justice requires a new trial, po power is different rule would lead to the encouragement of liti- conferred on the Court of Appeals to grant new trials gation and prevent, in many instances, a complete and for any other or less reasons than those governing the full oujoyment of the right of the property which in- Supreme Court in similar cases, but said court in simheres to the owner of the soil. Au idle threat to do ply invested with the same jurisdiction in that rewhat is perfectly lawful, or declarations which assert spect as was formerly possessed by the Supreme Court. the intention of the owner, might often be construed (2) There was evidence of previous threats and strong as evincing au improper motive and a maliguant motives to commit the crime, and a number of disinspirit, when in point of fact they merely stated the terested witnesses testified that defendant followed actual rights of the party. Malioe might be easily in deceased, her husband, on the street and shot him ferred sometimes from idle and loose declarations, from behind, as he was walking along apparent y uncon and a wide door be opened by such evidence to de- 1 scious of her presence; while the uncorroborated testiprive an owner of what the law regards as well-defined mony of defendant was that she had just been assaulted rights." But it must be remembered that no man has by deceased with a razorand shot him in self-defense, a legal right to make a malicious use of his property, which was wholly inconsistent with the facts as stated not for any benefit or advantage to bimself, but for by the other witnesses and with other circumstances. the avowed purpose of damaging his neighbor. To hold | Held, that the verdict of guilty of murder in the first otherwise would make the law a convenient engine, degree should not be set aside as against the weight of in cases like the present, to injure and destroy the evidence. (3) After the prosecution had rested, by peace and comfort and to damage the property of one's mutual consent of defendant, the district attorney neighbor for no other than a wicked purpose, which 1 and the court, the jury was discharged, and the dein itself is or ought to be unlawful. The right to do fendaut withdrew her plea of not guilty, and by leave this cannot in an enlightened country exist, either in of the court pleaded guilty of murder in the second the use of property or in any way or manner. There degree, but no sentence was pronounced. Later in the is no doubt in my mind that these uncouth screens or term, defendant, by consent of the court and distriot "obscurers" as they are named in the record, are a attorney, withdrew her plea of guilty and again nuisance, and were erected without right and for a pleaded not guilty. Held, that the acceptance of the malicious purpose. Wbat right has the defendant, in plea of guilty of murder in the second degree was not the light of the just and beneficent principles of equity, 1 an acquittal of the charge of murder in the first deto shut out God's free air and sunlight from the win gree and was no bar to a conviction therefor. It would dows of his neighbor, not for any benefit or advantage bea complete answer to this claim in point of law that to himself or profit to his land, but simply to gratify the defense of former acquittal must be pleaded, and his own wicked malice against his neighbor? None that in the absence of a plea setting it up, the question whatever. The wanton infliction of damage can never cannot be raised. This was the rule before the enactbe a right. It is a wrong and a violation of right, and ment of the Code of Criminal Procedure, and is recogis uot without remedy. The right to breath the air nized by that statute. People v. Benjamin, 2 Park. and to enjoy the sunshine is a natural one; and no Crim. 201 : Code, SS 332, 339. See also Stato v. Barnes. man can pollute the atmosphere or shut out the light | 32 Me. 230; 2 Bish. Crim. Proc., $S 806, 813. But in a of heaven, for no better reason than that the situation capital case, if it was made to appear that there had of his property is such that he is given the opportu- | been a former acquittal, wo should deem it our duty nity of so doing, and wishes to gratify his spite and under the statute of 1887 to take notice of the fact, malice toward bis neighbor. It is said that the adop- although not presented by a formal plea. The contion of statutes in several of the States making this tention that the acceptance of the plea of guilty of kind of injury actionable shows that the courts have murder in the second degree on the former trial wag Do right to furnish the redress without statutory au- | in law an acquittal of the higher offense, notwiththority. It has always been the pride of the common standing its withdrawal at the instance of the defeudlaw that it permitted no wrong with damage without ant, is placed on the supposed analogy with those cases a remedy. In all the cases where this class of injuries in which it has been held that where a defendant inhave ocourred, proceeding alone from the malice of dioted for murder is put on trial for that crime, a conthe defendant, it is held to be a wrong acoompanied viction of murder in the second degree, or of manby damage. That courts have failed to apply the | slaughter, 19 an acquittal of any Digner degreo of the remedy has never been felt a reproach to the adminis- crime than that for which he was convicted; and tration of the law; and the fact that the people have

I that, although the defendant succeeds in procuring a regarded this neglect of duty on the part of the courts reversal of the judgment convicting him of the lenger 80 gross as to make that duty imperative by statutory offeuse, he does not thereby waive the benefit of the Jaw furnishes no evidence of the creation of a new former verdict as an acquittal for the higher offense, right or the giving of a new remedy, but is a severe but may insist upon it, and he cannot thereafter be criticism upon the courts for an omission of duty tried for any higher degree of the orime than that of

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which he was formerly convicted. The prepouder- the higher crime. lì left tbe case without any plea
ating weight of authority sustains the geveral princi- whatever until the defendant again interposed her
ple as above stated. Slaughter v. State, 6 Humpb. 411; general plea of not guilty to the whole indictment;
State v. Ross, 29 Mo. 3:2; People v. Gilmore, 4 Cal. 378; and in a criminal case an arraignment and plea are
State v. Ho rosby, 8 Rob. (La.) 588; State v. Kittle, 2 esseutial to a valid trial and judgment. People v.
Tyler, 472. In Ohio a different rule prevails. Jarvis Braduer, 107 N. Y. 9, aud cases cited. The waiver
v. State, 19 Ohio St. 585. In this State the same doc wrought by the withdrawal of the plea involved
trine is recognized in cases of inferior offenses. Guen the waiver of all which depended on the plea,
ther v. People, 24 N. Y. 100; People v. Dowling, 84 id. and this included a waiver of the benefit of the impli-
478. The question has not arisen in this State, so far cation which existed, so long as the plea remained, of
as we know, on an indictment for murder; but a for an acquittal of the higher crime. We think that
tiori, if the doctrine contended for is applicable in neither upon reason or principle can the defense of
chse of minor offenses, it is to those of the higher former jeopardy be maintained. As to waiver in
grade. In determining whether the principle of these criminal cases see Pierson v. People, 79 N. Y. 479, and
decisions is applicable in the present case, the ratio cases cited. The case of Kring v. Missouri, 107 U. S.
decidendi is to be considered. The doctrine that a 221, does not, we think, decide the question now pre-
man once tried and convicted or acquitted of a crime sented. Iu that case there was a confession of the
on a valid indictment, by a court of competent juris crime of murder in the second degree, followed by
diction, cannot be tried again for the same offense, sentence and judgment in the State court of Missouri.
has its foundation in the principles of justice, and was The sentence was set aside by the appellate court of
a very ancient doctrine of the common law. It is em the State, because in violation of an understanding be-
bodied in that provision of the Constitution of our tween the prosecuting officer, the defendant and the
State (art. 1, $ 6,) which declares that “no person court as to the length of sentence in case the defend-
Bhall be subject to be twice put in jeopardy for the ant should plead guilty, and the appellate court re-
same offense.” In declaring the application of this manded the case to the lower court for further pro-
constitutional pripciple, it is well settled that an ac- ceedings. When the cause was again moved the de-
quittal or conviction by verdict of a jury, although fendant stood on his plea of guilty of murder in the
pot followed by judgment or sentence, is an aoquittal second degree, and its acceptance by the court, and
or conviotion which protects an accused person against refused to withdraw it. The court thereupon directed
another trial, provided there was a competent court a plea of not guilty to be put upon the record, against
and a lawful indictment, or in case of conviction, so the defeudant's protest, and he was thereupou tried
long as the judgment remains unreversed. And and convicted of murder in the first degree. The
whether the conviction was on confession or by ver judgment was reversed by the Supreme Court of the
dict, the rule was the same. Shepherd v. People, 25 United States. In the present case there was neither
N. Y. 406, and cases cited. But in this State and gen sentence nor judgment on the plea, and the defendant
erally elsewhere a party convicted is permitted, in voluntarily withdrew the plea and pleaded over to the
some form, to have a review for the purpose of cor indictment. It is quite clear from the prevailing opiu-
recting any errors of fact or law which may have been ion in the Kring case that the absence of these circum-
committed on the trial; and it became a settled quali stances in that case had a controlling influence. We
fication of the doctrine that a party could not be twice are of opinion therefore that the defense of former
tried for the same offense, that by seeking and obtaiu acquittal, if properly pleaded, could not have pre-
ing a new trial for error, he thereby waived the con vailed. Juue 5, 1888. People v. Cignurale. Opinion
stitutional protection, and could be agaiu tried for the by Andrews, J.
offense of which he formerly was convicted. United - INCEST — BETWEEN FATHER AND ILLEGITIMATE
States v. Keen, 1 McLean, 435; People v. Dowling, | DAUGHTER - INDICTMENT – MISNOMER. -- Under the
supra. But this doctrine in turn was limited so as to Penal Code, $ 302, providing that “persons, being
protect a defendant who secured a reversal and new within the degrees of consanguinity within which
trial from being again put on trial for a higher grade marriages are declared by law to be incestuous and
of the same offeuse or for another offense included in | void, * * * who shall commit adultery or fornica-
the same indictment, of which higher grade or of |tion with each other, shall, upon conviction, be pun-
which other offense the first conviction was by infer | ished,” etc., a father who has sexual intercourse with
ence an acquittal. So it was held that a verdict of his illegitimate daughter is guilty of incest. The law
couviction of one of several offenses charged in an in draws no such distinotion. If it did, we should be
dictment or of a lesser degree of a single offense, im. ashamed of it, for the offense, although committed
plied, although the verdict was silent on the subject,

with a daughter born out of wedlock, is not by that that the jury found the defendant not guilty of such

faot mitigated or coudoned. She stood related to him other offenses, or of the higher degrees of the same by consanguinity within the farbidden degrees. That offense. It was on the theory tbat the verdict was

she had no inheritable blood for the purposes of deBeparate and divisible, being both a verdict of acquit scent and distribution does not alter the actual and tal and conviction, and that there was no inconsist. natural relation. Kent says, while speaking of the enoy between a claim that the defendant was not general legislation relative to bastards:"This relaxaguilty even of that of which he was convicted, and I tion in the laws of so many of the States of the sethe claim that the verdict still stood as an aoquittal of verity of the common law rests upon the principle the other matters charged in the indictment, that the l that the relation of parent and child, which exists in defendant was permitted on a new trial to urge the this unhappy case in all its native and binding force, former verdiot as an acquittal of all the matters ought to produce the ordinary legal consequences of charged other than that on which the conviction was

that consanguinity.” 2 Kent Comm. *213. It was had. The reason of the rule has, we think, no appli- I early held to be unlawful for a bastard to marry within cation to the present case. The confession of guilty the Levitical degrees (Hains v. Jeffel, 1 Ld. Raym. 68), of murder in the second degree having been volun. a doctrine which of necessity recognized relationship tarily withdrawn by the defendant on her application and consanguinity. But our statutes leave ud room to the court, removed, as is justly claimed by the for any reasonable doubt. The Penal Code enacts assistaut district attorney in his very able argument, (section 302) that “persons being within the degrees the only proof which sustained alike the conviction, I of consanguinity within which marriages are deplared as also the constructive acquittal of the defendant of by law to be incestuous and poid, who shall pter

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marry with each other, or who shall commit adultery | analogous nature, and that it would not make the or fornication with each other, shall, upon conviction, vendor liable for said tax. A covenant in a deed that be punished," etc. This enactment is taken from the the premises were “free, clear, discharged and uniuRevised Statutes (part 4, chap. 1, tit. 5, art. 2, § 12), cumbered of and from all charges, taxes, assessments and its reference is to the provision as to marriage aud incumbrances, of what kind and nature soever," (part 2, chap. 8, tit. 1, art. 1, $ 3). That declares mar does not make the grantor liable for an annual tax on riages between parents and children incestuous avd the premises assessed before, but not confirmed until void, and specially includes illegitimate as well as after the execution of the deed. Dowdney v. Mayor, legitimate children. Since therefore the consanguinity 54 N. Y. 186; Barlow v. Bank, 63 id. 399; Fisher between father and daughter, although the latter be v. Mayor, 67 id. 73, and Association v. Mayor, etc., 104 illegitimate, is by law declared to make their mar- id. 581. The case of Rundell v. Lakey, 40 id. 513, also riage ipoestuous and void, the provision of the Penal cited by appellant, was decided by a divided court, Code applies to the same relation and describes the and was the subject of consideration by Andrews, J., crime of incest. Beyond its utter want of merit the in Barlow v. Bauk, supra. While some of the expreg. defense has no foundation in the law. An indictmeut sions of Grover, J., who delivered the opinion in Runfor incest described the female as “Georgiana Towne, dell v. Lakey, may seem to conflict with our views in commonly known as 'Georgiana Lake.'It appeared this case, we are iuclined to adopt the principles laid that her real name was Georgiana Jeanette Lake, and | down in Barlow v. Bank. Iu that case the question that she was generally spoken of as “Nettie Lake." discussed was whether there was a breach of the coveHeld no variance, there being no question as to the naut against iucumbrances. Andrews, J., who renidentity of the female. Juue 5, 1888. People v. Lake. dered the opinion, refers, in the first place, to the case Opiniou by Finch, J.

of Rundell v. Lakey, and says (page 400): “Iu RunPARTNERSHIP-LIMITED - GOOD FAITH-QUESTION

dell v. Lakey, 40 N. Y. 513, the plaintiff, to whom the FOR JURY - PUBLICATION OF NOTICE - VARIANCE. —

defendants, intermediate the completion of the Where plaintiff, seeking to hold defeudant as a gen

assessment roll and the levying of the tax by the board eral instead of a special partyer, contends that de

of supervisors, bad conveyed certain premises, with lendant's actual payment of money into the firin,

covenant for quiet enjoyment, was called upon by the which is requisite to constitute him a special partner,

collector of the town, after the tax had been leried, was not made in good faith, and certain facts, if unex

and the warrant for its collection had been issued, to plained, support his contention, and plaintiff calls de

pay it; and at the request of the defendants, and upon Tendant as a witness, the fact that the latter in his tes

their agreement to refund the amount to him in case timony offers a possible explanation of the matters con

they were legally liable to pay it,' paid the tax, and cerning the payment does not preclude plain

afterward brought his action against them to recover tiff from going to the jury on the issue of the

the amount paid * * * Five judges concurred is good faith in the payment. Becker v. Koch, 104 N.

the result. Grover, J., who delivered the only opinion Y. 394. When the certificate of a limited partner

in the case, places his judgment upon the effect of the ship is recorded October 1st, and publication is not

agreement, considered in connection with the fact made until October 10th, there is still compliance

that, under the tax laws, the owner of real estate rewith the Revised Statutes of New York, part 2, chap.

siding in the town or ward where it is situated, and to 4, tit. 1, $ 9, requiring partners to publish the terms of

whom it is assessed, is primarily liable for the paythe partnership, when requested for at least six weeks

ment of the tax subsequently imposed under the "immediately" after the recording of the certificate.

assessment, although he may bare parted with his title There is no material variance between the certificate

after the completion of the assessment roll by the of formation of a limited partnership expressing the

assessors, and before the lesying of the tax by the nature of the business to be “a general commission

board of supervisors. Hunt, C. J., and Mason and business, buying and selling grain, flour and produce

James, JJ., were of opinion that the plaintiff was enon commission," and the published notice stating the

titled to recover, independently of the agreement, business to be “for the purpose of conducting a gen

upon the covenant in the deed. Daniels, J., was for eral commission business." June 5, 1888. Manhattan

affirmance, upon the ground that the tax could hare Co. v. Phillips. Opinion by Danforth, J.

been collected by the collector from the defendants,

and that they were liable to pay it within the meanVENDOR AND PURCHASER - CONSTRUCTION OF CON ing of the agreement. Lott, J., dissented, and WoodTRACT - TAXES – COVENANTS AGAINST INCUMBRANCES ruff, J., did not vote.” Judge Andrews, in his opin- TAXES ASSESSED, BUT NOT LEVIED.-A contract of ion, held that “po lien or incumbrance ou the lands sale of improved city real estate, dated Augnst 4th, assessed is created by the act of the assessors. The provided that the deed, whicb was to be executed Au assessmevt is the basis upon which the board of supergust 23d, should contain full covenants, and should visors act in apportioning the tax, but it is in no sense couvey the property " free and clear from all incum- | the imposition of a charge upon the land described in brances,” except certain mortgages, and that “the | the roll. This is one of the preliminary steps which calculations and adjustments of the exact amounts to result in taxation. So is the election of assessors; be paid as to rents, interest, etc., shall be made the aud taxation of the lands within the town is as cersame as if this contract were actually carried out on tain to take place before the assessors commence September løt, at 12 M.," and tbat the rents, issues and making the roll as after it is completed. The arrangeprofits of the premises earned before September 1st ments of the statute necessarily lead to the in position should go to the vendor, and those earned after to the of taxes at each annual meeting of the supervisors. vendee. An annual tax was assessed at the time of The roll, when completed, fixes the value the execution of the contract, but was not confirmed property to be taxed, but it does not determine the until August 29th. On the day of the execution of the 1 amouut of the tax, and the most which can be claimed deed an adjustinent of rente, interest, gas charges and is that it renders more certain and definite the liaInsurance premiums was made, without any taxes be-| bility to taxation, which levertheless existed before ing taken into consideration. Held, that the symbol the assessment was made. The language of the cove"&c.," after the words "rent" and "interest,” re nant in the defendant's deed is that the premises are Ierred only to the current and accrued earnings and free and clear from all incumbrances whatsoever.' liabilities of the premises, and could only add to the The covenant against incumbrances is a covenant in expressed items of rent and interest something of an præsenti, and like the covenant of seizin, if broken

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at all, is broken as soon as the deed is executed. 4 every one has a right to select and determine with Kent Comm. 471; Rawle Cov., $ 89; Horton v. Davis, whom he will contract, and cannot have another person 26 N. Y. 495. The right of action accrues at once, and thrust upon him without liis consent. In the familiar unless an action will lie immediately there is no phrase of Lord Denman: “You have the right to the breach of the covenant. The covenantee, suing upon benefit you anticipate from the character, credit and such a covenant, may be restricted to nominal dam substance of the party with whom you contract.” ages, where he has not been subjected to actual loss Humble v. Huvter, 12 Q. B. 310, 317; Winchester r. (Delavergue v. Norris, 7 Jobus. 358; Hall v. Dean, 13 Howard, 97 Mass. 303, 305; Ice Co. v. Potter, 123 id. id. 105), but the right of action, when it exists at all, is 28; King v. Batterson, 13 R. I. 117, 120; Lansden . complete the moment the covenant is made. If the McCarthy, 45 Mo. 106. The rule upon this subject, as plaintiff had brought his action the day after he took applicable to the case at bar, is well expressed in a rehis deed, could he have maintained it? I think not. cent Euglish treatise: “Rights arising out of contract The answer would have been perfect that the entry of cannot be transferred if they are coupled with liabilithe land in the assessment roll constituted no incum ties, or if they involve a relation of personal confibrance." In a very recent case, of Association v. dence such that the party whose agreement conferred Mayor, etc., 104 N. Y. 581, Peckham, J., said, as to the those rights must have intended them to be exercised lien of a tax, where plaintiffs took title by deed dated only by him in whom he actually confided." Pol. July 31, 1877, and the tax was not confirmed until Cont. (4th ed.) 425. The technical rule of law, recog. October, 1877 (page 588): “In questions arising under nized in Murray v. Harway, 56 N. Y. 337, cited for the covenants in deeds as to incumbrances, it has been de plaintiff, by which a lessee's express covenant not to cided that no lien or incumbrance by reason of a tax assign bas been held to be wholly determined by one existed until the amount thereof was ascertained or assignment with the lessor's consent, has no applicadetermined." And again: “It may be conceded that | tion to this case. The cause of action set forth in the technically there was then no lien.” June 5, 1888. complaint is not for any failure to deliver ore to BilLathers v. Keogh. Opinion by Gray, J.

ling before his assignment to the plaintiff (which -- RESCISSION OF CONTRACT-TITLE.-W. assigned might perhaps be an assignable chose in action), but a lease to defeudant upon, as the assignment stated, "a

it is for a refusal to deliver ore to the plaintiff since consideration of one dollar, and other good and valu.

this assignment. Performance and readiness to perable considerations." The assignment was recorded, form by the plaintiff and its assignors, during the and thereafter plaintiff agreed to purchase the lease periods for which they respectively held the contract, from defendant, aud paid part of the purchase price.

is all that is alleged; there is no allegation that Billing Prior to the consummation of the purchase W. made an

is ready to pay for any ore delivered to the plaintiff. assignment for benefit of creditors, and judgments In short, the plaintiff undertakes to step into the shoes were docketed against him. Plaintiff thereupon re

of Billing and to substitute its liability for his. The fused to complete the purchase "without releases from defendant had a perfect right to decline to assent to W.'s general assignee and from his judgment credi. this, and to refuse to recognize al party, with wbom it tors.Held, that the court having found that defend.

had never coutracted, as entitled to demand further ant's title was good.that the assignment was made for deliveries of ore. The cases cited in the careful brief a valid consideration and not to defraud creditors, and

of the plaintiff's counsel, as tending to support this the consideration mentioned in the assignment not action, are distinguishable from the case at bar, and showing otherwise, plaintiff could not recover the the principal ones may be classified as follows: First. amount paid on account of the purchase, although Cases of agreements to sell and deliver goods for a such releases were not obtained. June 5, 1888. Baylis fixed price, payable in cash on delivery, in which the v. Stimson. Opinion by Danforth, J.

owner would receive the price at the time of parting
with his property, nothing further would remain to be
done by the purchaser, and the rights of the seller

could not be affected by the question whether the UNITED STATES SUPREME COURT AB.

price was paid by the person with whom he originally STRACT.

contracted or by an assignee. Sears v. Copover, *42

N. Y. 113; 4 Abb. Dec. 179; Tyler v. Barrows, 6 Robt. ASSIGNMENT — WHAT ASSIGNABLE —PERSONAL CON- | 104. Second. Cases upon the question how far execuTRACTS.-Defendant contracted to deliver 10,000 tons tors succeed to rights and liabilities under a contract of lead ore from its mines to the firm of B. & E., at ! of their testator Hambly v. Trott, Cowp. 371, 375; their smelting works, at the rate of fifty tons per day, Wentworth v. Cock, 10 Adol. & E. 42; 2 Perry & D. to become the property of B. & E. as soon as delivered. 251; 3 W. Ex’rs (7th ed.) 1723-1725. Assignment by The price was not fixed, but as often as 100 tons had operation of law, as in the case of an executor, is quito been delivered the ore was to be assayed by the par different from assignment by act of the party; and ties, or if they could not agree, by an umpire; and the one might be held to have been in the contemplaafter that and according to the result of the assay, and tion of the parties to this contract, although the other the proportions of lead, silver, silica and iron thereby was not. A lease, for instance, even if containing an proved to be in the ore, the price was to be ascer express covenant against assignment by the lessee, tained and paid. During the time between the do. | passes to his executor. And it is by no means clear livery of the ore and the ascertainment of the price, that au executor would be bound to perform, or would defendant had no security for its payment, except in be entitled to the benefit of such a contract as that the character and solvency of B. & E. Held, that the now in question. Dickinson v. Calaban, 19 Penn. St. contraot was personal iu its nature, and that plaintiff, 227. Third. Cases of assignments by contractors for claining as assignee, could not compel defendant to public works, in which the contracts and the statutes continue delivering the ore. At the present day, no under wbich they were made were held to permit all doubt, an agreement to pay money or to deliver goods persons to bid for the contracts and to execute them may be assigned by the person to whom the money, through third persons. Taylor v. Palmer, 31 ('al. 240, is to be paid or the goods are to be delivered, if there 247; St. Louis v. Clemens, 42 Mo. 69: Philadelphia v. is nothing in the terms of the contract, whether by re Lockhardt, 73 Penn. St. 211; Devlin v. New York, 63 quiring something to be afterward done br him, or by N. Y. 8. Fourth. Other cases of contracts assigned some other stipulation, which manifests the intention by the party who was to do certain work, not by the of the parties that it shall not be assignable. But party who was to pay for it, and in which the question

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was whether the work was of such a nature that it dred and seventy-seven 13-100 dollars, value received, was intended to be performed by the original con- / and charge same to account of Belleville Nail Mill Co. tractor only. Robsou v. Drummond, 2 Barn. & Adol. Wm. C. BUCHANAN, Pres't. JAMES C. WaUGI, Sec'y. 303; Waggon Co. y. Lea, 5 Q. B. Div. 149; Parsous v. ! To J. H. lieper, Treas., Belleville, Mlinois,''-was held Woodward, 22 N. J. Law, 196. Without considering to be the bill of the company and not that of the indiwhether all the cases cited were well decided, it is vidual signers; and it was also held that a declaration sufficient to say that none of them can control the de- thereon against the latter as drawers, setting forth cision of the present case. May 14, 1888. Arkansas the instrument, and alleging it to be their bill of exValley Smelting Co. v. Belden Min. Co. Opinion by cbange, was bad on demurrer. Iu Carpenter y. Farng. Matthews, J.

worth, 106 Mass. 561, a check drawii on the Boston

National Bauk, a copy of which is as follows: “$19.20. CARRIERS — OF PASSENGERS - TICKET CONTAINING

Ætna Mills. Boston NATIONAL BANK, BOSTON, SepCONDITIONS. -Defendant, a railroad corporation, sold

tember 9, 1879. Pay to L. W. Chamberlain or J. E. plaintiff a tioket to a point beyond its own line upon

Carpenter or order nineteen and twenty one-huna contract containing among other conditions, the fol

dredths dollars. I. D. FARNSWORTH, Treasurer,''lowing: That in selling the ticket defendant acted

was held to be the check of the Ætna Mills, and thereonly as agent of the carrier beyond its own line, and

fore binding upon the corporation, and not the treaswas not responsible beyond that point; that it was

urer, Farnsworth, personally. In Sagre v. Nichols, 7 not good for a return passage, unless the holder iden

Cal. 535, a draft. of which the following is a copy : tified himself at the office of the second carrier, and

“$3,000. No. 2,123. ADAMS & Co.'s EXPRESS AND unless the ticket was properly stamped, etc.; that

BANKING HOUSE, MORMON ISLAND, February 21, 1855. plaintiff should identify himself whenever required by

Pay to A. G. Sayre, or order, three thousand dollars, conductors or other agents of the road; and that no

value received, and charge same to account of this agent had authority to alter the terms of the contract.

office. C. P. NICHOLS, per G. W. COREY, Agts. To Plaintiff presented himself for identification at the

Messrs. Adams & Co., Sacramento.” Indorsed: “A. required place and at a proper time before the de.

G. SAYRE, G. W. (.'-was held to be the draft of parture of a train, but no agent was present.to per

Adams & Co., and not the personal draft of the perform the services or stamp the ticket. After reach

sons who signed it as agents in this case. In Garton ing defendant's road, plaintiff was ejected from the

v. Bank, 34 Mich. 279, it was said: "A promissory note cars because his ticket was not properly stamped,

made payable to C. T. Allen, cashier, or order, indialthough he offered to identify himself to the con

cates that it was made to him not as an individual, ductor who expelled him. Held, that defendant was

but as a bank officer, and that it was a contract with not liable, as it was under no obligations to accept the

the bank; and in a suit upon it by the bank no inticket, according to the contract, until plaintiff had it

dorsement by such cashier is necessary to the admisproperly stamped, and as it was not by defendant's

sion of the note in evidence.” To the same effect see failure that no agent was present to stamp it at the

Mott v. Hicks, 1 Cow. 513, and cases there cited; place of departure on the return trip. Townsend v.

Bank r. Bank, 19 N. Y. 312, and authorities cited in Railroad Co., 56 N. Y. 295; Shelton v. Railway Co.,

Story Ag, $ 154. In 1 Pars. Notes & B. 92, it is said: 29 Ohio St. 214; Frederick v. Railroad Co., 37 Mich.

“If the agent sign the note with his own name alone, 312; Bradshaw v. Railroad Co., 135 Mass. 407; Mur

and there is nothing on the face of the note to show dock v. Railroad Co., 137 id. 293, 299; Railroad Co. v.

that he was acting as agent, he will be personally Fleming, 14 Lea, 128. May 14, 1888. Mosher v. St.

liable on the note, and the principal will not be liable. Louis, I. M. & S. Ry. Co. Opinion by Gray, J.

And although it could be proved that the agency was NEGOTIABLE INSTRUMENTS - CONSTRUCTION - PA disclosed to the payee when the note was made, and ROL EVIDENCE.-The following note: “ $1,061.24. DE that it was the understanding of all parties that the TROIT, MICH., August 4, 1880. Four (4) months after principal and not the agent should be held, this will date we promise to pay to the order of Geo. Moebs, not generally be sufficient, either to discharge the sec. & treas., ten hundred sixty-one & 24-100 dollars, | agent or to render the principal liable on the note;" at Merchants' & Manufacturers' National Bank, value citing Stackpole v. Arnold, 11 Mass. 27. That case was received. PENINSULAR CIGAR CO., GEO. Morbs, Sec. | an action against the defendant as maker of three & Treas.” Indorsed: “Geo. Morbs, Sec. & Treas. :" promissory notes. The notes were signed by another Held to be unambiguous, and in terms the note and person iu his own name, and there was nothing on the indorsement of the Peninsular Cigar Company; and face of them to indicate any agency, or that the dethat parol evidence was not admissible to show that | fendant had any oonnection with them. At the trial tbe indorsement was intended to be that of Moebs per the person who signed the notes testified that they sonally. Upon this question it may be said that the were given for premiums upon policies of insurance authorities are not entirely harmonious. Indeed procured by him in the office kept by the plaintiff, at there is much conflict among them. We do not find the request and for the use of the defeudant, on propit essential or even useful to discuss minutely every erty belonging to him, and that the witness acted authority cited by the respective parties to this con merely as the factor of the defendant, and intended troversy, some of which are believed to have little to bind him by the premium notes. The judge inrelevancy to the subject under consideration. A dis- | structed the jury that, “if they believed the notes to cussion of a few of the leading ones which are believed have been made and signed for and in behalf of the to embody all the principles involved in this case, and defendant, the verdict ought to be for the plaintiff.” to control it, will perhaps be sufficient. Hitchcock v. It was held that the evidence was improperly admitBuchanan, 105 U. S. 416, is a case much in point on ted, and the instruction was erroneous. The converse this subject. Indeed it was considered by the learned of the rule laid down in the last two cases cited district judge below (who nevertheless disapproved of | would seem to be identical with that contended for the ruling therein, and dissented from the opinion of | on behalf of the defendant in error. On the other the court below) as practically controlling this case | hand authorities to sustain the view of the case conadversely to the plaintiffs in error. Iu that case a bill

tended for on beball of the plaintiffs in error are not of exchange, as follows: "85.477.13. OFFICE OF | winting, either in number or in pertinence. In Kean BELLEVILLE NAIL MILL Co., BELLEVILLE, ILL., De: v. Davis, 21 N. J. Law, 683, a bill of exchange of the cember 15, 1875. Four months after date, pay to the

following purport, addressed to William Thomson, order of John Stevens, Jr.. cashier. fifty-four hun. | Esq., Somerville, N. J., and indorsed, “THE ELIZA

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