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In his examination, Newcomb testified that, by the agreement of the parties? In each case “In making loans in this State, in the usual Stevens would get Newcomb's services and comcourse of business, a loan-agent, for the commis- pel the borrower to pay for them. There is no sion he gets, has to first find the money; learn and more familiar rule in the law, than that the usknow all about the property; often go on it; ex

ury laws cannot be evaded by mere pretences, amine the title and see to the collection of the shifts, or evasions.”

shifts, or evasions.” (See also Rogers v. Buckinterest and principal when due. If the title ingham, 33 Conn. 81; Algur v. Gardiner, 54 N. proves defective, and it is shown that the agent Y. 360; Gokey v. Knapp, 44 Iowa, 32.) has not been careful enough, or should have All of these cases recognize the rule that if the known about the defects before making the loan; bonus or commission is taken by the agent with or if the property is valued too high, whereby the authority, consent, or knowledge of the prinlosses ensue, it is understood that the agent makes cipal, and he ratifies the acts of the agent, the himself personally liable. * * * I had to loan will be tainted with usury; while some of submit to him (Stevens) the application for ev- the courts hold that if the agent of the lender in ery one of these loans, and afterwards sent him making the loan charge the borrower a commisPayne's letters. I became his agent immediate- sion or bonus in excess of legal interest, either ly after he agreed to make the loan, in looking with or without knowledge of the principal, the after it. I stated in my direct examination principal is affected by the acts of the agent. that if I made any mistakes in examining the reason is the employment affords the the title he would have held me for it.” He fur

of committing the injury – the ther testifies that he had been a loan agent since

business itself furnishes the

of 1854; that he commenced making loans to violating the law. And there is but one Stevens in that year, and had so continued up contract for the loan, and the commission or to the time he testified—more than twenty bonus is paid for that loan, no matter what the years.

form of the transaction may be. The agent, The court say: "From all of this testimony therefore, in regard to that subject matter, canwe are compelled to believe that Newcomb was not make a separate contract for himself and one the agent of Stevens from the time the applica- for his principal. Besides, the principal who tion was made for the loan. The whole transac- claims to recover on a contract made by his tion is not susceptible of any other construction. agent, takes it subject to such defences as the It is apparent that Stevens regarded and relied conduct of the agent, in making the contract, on Newcomb as his agent, and would have held make available. him liable for loss growing out of neglect of duty. In the case of Bennett v. Judson, (21 N. Y. 238), Newcomb testifies that Stevens would have held an agent of the vendor, upon false inforhim liable for a mistake in examining the title.mation, made false


in If so, then he was Stevens' agent, as well before regard to lands

regard to lands in Indiana and Illinois. as after the loans were made, and no such dis- In an action to recover for the fraud, the court tinction can be reasonably drawn as that New- say: “There is no evidence that the defendant comb was Payne's agent before, and Stevens' authorized or knew of the alleged fraud comafter the loan was made.

It is, how-mitted by his agent (Davis) in negotiating the ever, claimed that Stevens is not liable for what exchange of lands. Nevertheless, he cannot enNewcomb retained and charged for what is call- | joy the fruits of the bargain without adopting cd commissions; that he had the right to charge all the instrumentalities employed by the agent any sum he chose, and that would not render in bringing it to a consummation. If an agent the loan usurious. Had Stevens not known defrauds the person with whom he is dealing, that Newcomb was making such charges it may the principal, not having authorized or particibe that he would not have been affected by them. pated in the wrong, may no doubt rescind, when But here it was agreed between Stevens and he discovers the fraud, on the terms of making Newcomb that the latter should charge & com- complete restitution, But so long as he retains mission of the borrower to pay him for his ser- the benefit of the dealing he cannot claim imvices. Stevens obtained the services of New-munity on the ground that the fraud was comcomb; they were of value to him and no one mitted by the agent and not by himself.” (Elwell will pretend that Newcomb rendered them as a v. Chamberlain, 31 N. Y. 619; Fuller v. Wilson. gratuity. They were rendered for Stevens and 3 Ad. & E. (n. s.) 56; National Express Co. v. they were paid for by him, by indirectly charging Drew, 32 Eng. Law & Eq. 1.) And the rulo the amount to and requiring the borrower to pay above stated is general. Can any good reason be it, and this, too, by the express authority of given for excepting loans made by an agent Stevens. Had he directed Newcomb to loan at from the operation of the rule? The statute defifteen percent. for the first year, and ten per cent. clares that interest upon the loan or forbearance for each succeeding year, and to retain five per of money shall not exceed a given rate. The cent. on the loan for the first year, and two and language is plain and unambiguous, and there one-half

per cent. for renewals and extensions, is no room for construction. There can be no and to retain the extra per cent. above ten per doubt as to the meaning of the words. They cent. as compensation for his services, would apply to all contracts and persons. The law is any one say that was not usury? And in what the expressed will of the people through the does the transaction differ by the form given it | law-making power. 'By what authority does a




court interpolate words into the statute not neces- and solely and without direction from the plaintsary in construing it, nor sanctioned by its lan-iff managed the property. In October, 1872, at guage, or purpose, by limiting it to principals. the request and for the benefit and convenience If the law is wrong, if agents should not be in- of defendant, the plaintiff conveyed the premiscs cluded in its provisions, if any modification is to Fredrick J. Ferris and John Shillito, Jr., for desired, the remedy is with the law-making the consideration expressed on the conveyance power and not the courts. Let the Legislature of $100,000. To secure payment of part of this insert a provision in the law, "unless made by purchase-money they executed to the plaintiff an agent,” but until then the courts have a two bonds and mortgages upon the premises, one plain duty to perform — to enforce the law. In for $45,000, the other for $15,000. The $15,000 the language of the able opinion in Pearson v. bond and mortgage was subsequently, in July, Bailey, "No consideration arising out of the re- 1873, sold by the defendant for his own benefit, lation of principal and agent can divest the loan ard by his direction the plaintiff executed of its usurious character, or deprive the borrow- to the purchaser an assignment thereof, the deer of his right to set it up against the lender.” fendant then claiming to be the owner of the

ŠAMUEL MAXWELL. property and giving a reason (which involved Fremont, Neb., May 1881.

no immoral or illegal purpose) why he had the Southern Law Review.

title in his son's name, and the latter, altbough present, neither “contradicted, denied, or ques

tioned 'it.” The other bond and mortgage, TRUST-VERBAL TRUST-PART PER

which is the one now in question, were a few FORMANCE.

days after execution, with the knowledge and

consent of the plaintiff, delivered to the defendNEW YORK COURT OF APPEALS. ant, and have since remained in his custody.

These facts are found by the trial court. In NoROBBINS V. ROBBINS.

vember, 1879, the plaintiff demanded of his

father the bond, and being denied commenced

May 30, 1882. this action in February, 1880, for the purpose of A verbal trust will be enforced when it is partially per having it adjudged" that he is the sole owner formed.

and holder of the bond and mortgage," and entiIn September, 1869, the defendant, for $100, tled to the immediate possession thereof from 000, purchased lands in Rye, Westchester the defendant. Thus the facts which were not in County, and satisfied the price thereof. He, for writing have in a litigation moved by the reasons which do not appear, directed the deed plaintiff been found to exist, and upon them the therefor to be made out to one Fay, who was court is to say " whether the plaintiff bath title then in his employment, and who accepted the in conscience to recover or not.” conveyance at his request, and upon an oral

un- DANFORTH, J. In the first place it is obvious derstanding that he would hold the premises that a clear and absolute trust in the plaintift subject to the order and for the convenience of in favor of the defendant was established in rethe defendant. On December 9, 1871, at the re- gard to the premises conveyed to the former by quest of the defendant, and in execution of the Fay, which a court of equity would recogniz trust and confidence so reposed in him, and up- and enforce (McCartney v. Bostwick, 32 N. Y. 53 on no other consideration, Fay conveyed the unless prevented by the statute (s 51 and 6 premises to the plaintift, who is the son of the infra). But here we are to consider that the de defendant. The plaintiff gave no consideration fendant is not in court of his own motion. He is whatever either to Fay or the defendant for brought in by the plaintiff, who is compelled to such conveyance or the premises described come here and ask for relief which he cannot obtherein. At this time, the defendant was in the tain elsewhere. He concedes the defendant's habit of reposing great confidence in the plaint-case, but to defeat it relies upon the statute ($ 51, iff, and making or procuring to be made to him tit. 2, pt. 2, c. 1, art. 2, 1 R. S. 728), which deconveyances of lands belonging to or purchased clares that " where a grant for a valuable considby the defendant, in the trust and confidence eration shall be made to one person, and the conthat the plaintiff would dispose of such lands sideration therefor shall be paid by another, no and premises for the use and benefit of defend- use or trust shall result in favor of the person by ant, and as he might direct and request, and at whom such payment shall be made; but the title the time of the conveyance from Fay the plaint- shall vest in the person named as the alienee in iff expressly agreed with the defendant, al- such conveyance," subject to an exception in though not in writing, to hold the title to the favor of creditors of no importance here. premises described therein for his use, benefit, The existence of a state of facts embraced in and convenience, and subject to his order. The this provision, and but for which the defendant defendant, at the time of his purchase, went in- would have a clear case, is assumed by the to the actual possession of the premises, and not- learned counsel for the respondent, and the withstanding the conveyance to Fay, and that claim made that under these circumstances the from Fay to the plaintiff

, continued in possession defendant cannot make out a trust" except by 8 thereof by himself or his tenants, and received writing, declaring the trust and subscribed by at all times the proceeds and rent of the land, the plaintiff," relying in support of this proposi

tion upon $6, tit. 1, pt. 2, c. 7, page 1:34, vol. 2, R. ' his benefit and convenience, execute a deed to S., which prescribes these formalities in the cre- them. At the same time possession went to ation of certain interests in lands.

them from the defendant. The trust was exeIt may, however, be observed at the outset cuted, and whether the defendant could have that it is also provided by the silme statute ($10) compelled it or not, is immaterial. The plainthat the provisions of that title shall not be con- tiff responded to the call of his cestui quc trusl, strued to abridge the powers of courts of equity and from that moment had no further concern to compel the specific performance of agrec- or interest, real or apparent, in the property. ments, in cases of part performance of such agrec- lis whole duty as trustee was discharged. ments, and that it is the well settled doctrine Nothing then remained but a right to the purthat in cases of fraud, equity will relieve even chase-money, and this vested at once in the defendagainst the words of a statute. The question ant. Although the bond and mortgage in form ran then is, whether the plaintiff has such a right to the plaintiff, he took as trustee for the defendto the bond and mortgage in controversy is a ant by implication of law, if not by agreement. court of equity will enforce; or, to bring the Those securities were personal property only, question into narrower compass, whether pro- and had no relation to the statute. visions of law intended to prevent fraud can be It is not necessary to inquire whether the desuccessfully invoked to secure to a wrong-doer fendant could by any legal prceeding have comthe fruits of his iniquity. The answer is easy. pelled the plaintiff to convey the lands; he has See Reech v. Kennegal, 1 Ves. 123 ; Nelson v. done so in performance of his undertaking and Worrall, 20 Iowa 469; Haigh v. Kaye, L. R. 7 Chan. without compulsion. Nor is it necessary to inApp. Cas. 469. The same principle has fre- quire whether, if he had received the consideraquently been acted upon by this court. Ryan tion of the deed in money, it could have been v. Dox, 34 N. Y. 307 ; Wheeler v. Reynolds, 66 taken from him. He did not receive it, and is in a 1d. 227, in both of which cases a full and care

court of equity seeking to obtain it. We have ful examination was made of the reasons and au- found no ground upon which the claim can thorities on which it rests. Indeed, the decis- stand. ions are all one way. They establish as a fun- Judgment reversed, complaint dismissed, and damental doctrine of a court of equity that the bond and mortgage adjudged the property of the statute of frauds was not made to cover fraud. defendant. In the cases especially referred to the wrong doer was forced into court. In this

case he

CRIMINAL LAW. comes in voluntarily asking the court to ajil him in the perpetrating of his fraud, and with- SUPREME COURT OF NEBRASKA. out even the poor excuse found in other cases that by the conveyance to him that defendant

RAY v. STATE OF NEBRASKA. meditated a fraud on others.

June 22, 1882. In the next place the plaintiff is not entitled At the November term, 1880, of the district court of F. to have the statute (8 51 ante) strained in his county, T.J. W. was indicted, tried,and convicted of horse favor, and taken literally it does not cover his

stealing. On the same day Á. R. was indicted, tried, and

convicted for having concealed the said T. J. W. case. The grant to him was from Fay; and for shortly after he had stolen the said horse, knowing that no valuable consideration was paid; Fay him to be a horse thief. T. J. W. brought his case to conveyed because in common honesty and in

this court on error, when the judgment of the district

court against him was reversed and the cause remandfulfillment of his trust he was bound to convey. ed to the district court, in which last-named court the The plaintiff's claim is stricti juris. The statute said T. J. W. was discharged on his personal recogni

The case ($ 51 now in voked by the plaintiff, if operative

zance to appear at the next term of court.

of J. R. being also before this court on error, held, in such a case, and according to the plaintiff's without examining the errors assigned, that the judyclaim, was eftectual as between Fay and the de- ment of the district court be reversed. fendant and vested in the title so completely COBB. J. that the defendant had no legal or equitable in- The plaintiff in error was indicted, tried, conterest in the land. Garfield v. Hatmaker, 15 N. | victed, and sentenced for a term of six years in Y. 475. He had a right, however, to recognize the penitentiary for the offence of concealing his moral obligation and convey it to such per- Thomas J. Wells, an alleged horse thief. The son as he chose; Siemon v. Schurck, 29 N. Y. record is brought to this court on error. On the 598; Foote v. Bryant, 47 lb. 544; and upon such same day on which Ray was tried and convicted, conditions as the defendant thought fit to im- | Wells was tried and convicted of the crime of pose or prescribe. It was the plaintiff's promise stealing a horse, being the same offence of which to perform those conaitions yhich led to the ex- | it is alleged that Ray knew him to be guilty ecution of the deed to him..

when he concealed him. That case was brought But another and conciusive answer to the to this court on error, and the judgment of conplaintiff's case is that, as by his express agree- viction reversed. Wells v. State, 11 Neb. 409; ment he was to hold the title to the land con- The cause was remanded to the district veyed "for the use, benefit, and convenience, court, and Wells discharged on bis perand subject to the order, of the defendant,” he sonal recognizance. The spectacle is did, in consummation of the sale to Ferris and thus presented of a man serving as a felon Shillito, by direction of the defendant, and for in the penitentiary for concealing a horse thief, while by virtue of the judgment of this Minneapolis to Ossea, Which defendant was encourt the alleged horse thief hiinself has had the gaged in constructing, and that in order to conbrand of felony removed from him and is enjoy- struct the saine it was necessary to enter upon ing his liberty. While there is no bill of excep- plaintiff's land and dig, etc. This is in effect tions accompanying the record in this case, and an admission that the work constituting the acts so we cannot tell upon what testimony Ray was complained of was done under a contract entered convicted, yet it will be presumed that the rec- into by defendant, or in other words that deord of Wells' conviction and the judgment iendant had contracted for its performance, and against himn was a necessary and indispensable thereby directed it to be done. 'In such circumpart of it. That record has been pronounced stances defendant's liability is the ordinary liaorroneous, and reversed. I therefore concieve it bility of one who commands or directs the comto be the duty of this court, having jurisdiction mission of a trespass. The rule by which an of the cause by virtue of the petition in error, to employer is relieved from responsibility for the reverse the judgment in this case.

negligence of a sub-contractor working by the The judgment of the district court is therefore job, has no application here. reversed, and the cause remanded for further 2. This action is brought to recover damages proceedings in accordance with law.

for the trespass mentioned, and as a defence the answer sets up certain condemnation proceed

ings in which and on October 1, 1880, an award TRESPASS BY RAILROAD COMPANY.

was inade by commissioners for defendant's ap

propriation for its right of way of the strip of SUPREME COURT OF MINNESOTA. plaintiff's land upon which the trespasses were

committed. Defendant also alleges an acceptLEBER v. MINNEAPOLIS & N. W. Ry. Co.

ance by plaintiff of the amount awarded by a

jury upon appeal from the commissioners. It

July 3. 1882. appeared in the case that the plaintiff, although Mere silence, in the presence of a wilsul trespass upon he saw the trespassers at work upon his premione's property, waives nothing and consents to nothing. ses, remained silent. He testifies that he did so

The commencement of the ainstruction of its road by i railroad company upon the land of a privato person

from fear of violence, though this does not seem without his consent, or without first having paid or se- to be important, except, perhaps, to rebut any cured to him compensation, is a trespass for which a claim that his silence was intended as a sanction. right of action immediately accrues. In subsequent It is contended on defendant's behalf that condemnation proceodings by tho railroad company to acquire the right of constructing the road over such

plaintiff's silence and failure to institute proland it is not rogularly proper for the commissioners or ceedings were a waiver of his right to prepay. the jury, in case of appeal, to include in their assessment the damages which the land-owners suffered prior

ment of compensation for the appropriation of to the filing of the commissioners' award.

his property-a consent that the work might go For all such damagos the land-owner has his remedy on, or a license to that effect. as for trespass.

There is no rule of law that requires a propIf, however, the question of the damages thus suffered before the filing of the award is in fact litigated, in con- erty owner, in order to save his rights, to enter nection with the matter properly before the commis- into an argument with a wilful trespasser, or to sioners or tho appellant tribunal, as the case may be, forbid him to commit the trespass. He is under Bulvinitted for determination, passed upon, and the amount of the damages included in the award (as shown

no obligation of any kind to utter a word of reby the award itself) and payment thereof received by monstrance or objection, but may rely upon the the land-owner, tho result is a conclusive settlement law of the land for his redress. His mere silence and satisfaction of such damages, notwithstanding the irrogular character of the proceedings.

in the presence of the trespass waives nothing It seems, also, that, even if payment had not been re- and consents to nothing. In this state, where ceived, the damages would be regarded as res ad judi- the rule is that a railroad company has no speck cata. 'This being an action for the recovery of damages of tho character mentioned, viz., damages to plaintiff


of right to commence the constrution of its road trespass committed before the filing of an award in con- upon the land of a private person without his demnation proceedings, the following question was consent, or without first having paid or secured properly perinitted to be put to one of plaintiff's witnossos, who saw the plaintiff's land before the filing of

to him compensation, (Gray v. Railroad Co. 13 the award, and after defendant's trespass thereon: Minn. 315; Harsh v. Ry. Co. 17 Minn. 439,) it "Considering tho property as you saw it when you follows that the commencing of such work withwere there, with the cut through it,

what, in your opinion, would the market value of that property

out consent, payment or security, is a trespass be lessened at that time by reason of that cut through it, for which, as a matter of course, a right of action as it was then, supposing the defendant bad gone off and immediately accrues. ubandoned it afterwards ?"

The rule' first announced in this State in BERRY, J.

Winona R. Co. v. Denman, 10 Minn. 267, (Gil. 1. The plaintiff complains that between July 208,) and which has been steadily adhered to, is 1 and October 1, 1880, defendant, “with its that the assessment of compensation in condemagents, contractors, and large force of men, en- nation proceedings is to be made as of the time tered upon his land and committed trespasses by of the filing of the award of the commissioners digging,” etc. Defendant answers that the acts - that is to say, the assessment is to be made complained of were done by sub-contractors of a with reference to the value and condition of the railroad company with which defendant had premises at that time, (Sherwood v. Railroad Co., contracted for the construction of a railroad from 21 Minn. 122; Warren r. Railroad Co. Id. 424;

Carter v. Railroad Co. 22 Minn. 342;) and hence ion, would the market value of that property damages for any trespass upon the premises be lessened at that time by reason of that cut committed before that time are not regularly through it, as it was then, su pposing they [i. e. the proper to be taken into account in making up defendants had gone off and abandoned it afterThe award. From all this it follows that in this wards?” The time referred to in the question is state there is no such thing as a waiver of pre- the time at which the witness, as commissioner payment of compensation for property taken went upon the premises to examine them prior under the eminent domain upon any theory or to the making of the award. The defendant's idea that compensation for damages, whether by principal objection is to the latter part of the trespass, consent, or license, before the filing of question, viz., "supposing they had gone off and the award, can properly be included in the abandoned it." But we do not perceive that award, as such, and therefore the authorities these words really add nything substantial to which hold a contrary doctrine elsewhere are what precedes them. The object of the question not applicable here. It further follows that as was to find out what damage had been done to respects damages for trespass committed before the plaintiff's property when the witness saw it, the filing of the award, though committed in the As it was then" in the exact language of the incourse of the construction of the road, the land- quiry; that is to say, what damage had the deowners must have a remedy outside of the con- fendant suffered up to that time. The amount demnation proceedings and the award thereon, of that damage was a measure of plaintiff's reor he has none at all which he can enforce. Nev-covery, without reference to what the defendant ertheless, if the question of damages (by trespass, might do afterwards, upon taking proper conconsent, or license) suffered before the filing of demnation proceedings, or otherwise. the award is in fact litigated in connection with This seems to us to have been the scope of the the matter properly before the commissioner or question, and we think it was properly allowed. the appellate tribunal, (as the case may be), sub- It is, of course, not claimed that the defendant mitted for determination, passed upon, and the did anything subsequently to make the damage amount of the damages included in the award, any less than it then was. It is not perceived (as shown by the award itself,) and payment that the correctness of the ruling of the court thereof received by the claimant, the result is a in admitting the question is affected by what conclusive settlement and satisfaction of such .came out upon defendant's cross-examination of damages, notwithstanding the irregular charac- the witness. ter of the proceedings. Even if payment has not The order denying a new trial is affirmed been received, it is very likely that the damagos would be regarded as res adjudicata though this PROMISSORY NOTE-BURDEN OF PROOF. case does not necessarily call for a decision on that point. But unless the award shows upon

SUPREME COURT OF JOWA. its face that it includes the damages spoken of, it would be presumed that it included only what

DARROW v. BLAKE. it should properly include, namely, compensation for the appropriation of the claimant's land,

July 12, 1882. with sole reference to its value and condition at

Where the transferee of a franylulent note secka to rothe time when the award was filed, and it would

cover thereon, he has the burden of showing that he purnot be admissible to show by evidence dehors the chased it in good faith; and where the transferoo is s award that the damages mentioned were includ- partnership, the burden is on the partnership to show ed in it. We are therefore of opinion that upon

that all the members were ignorant of tho fraud at tho

time of the purchase. the trial of this action below, the court was right in excluding the evidence offered for the purpose

Action upon a promissory note. The defend

ant admits the execution of the note, but avers of showing that upon the trial in the condemnation proceedings a part at least of the grounds sideration, and by fraud. There was a trial by

that the same was obtained from him without conupon which damages are claimed in the present jury, and 'verdict and judgment were rendered action was submitted to the jury to be considered for the defendant. The plaintiffs appeal. by them in arriving at their verdict. No claim was made that the verdict, which was the award ADAMS, J of the jury, showed that it included any such The note was executed payable to the order damages, or was anything but the ordinary ver- of the maker, and indorsed by him in blank, dict, fixing the compensation to which the land and given to one Parsons, who transferred it beowner was entitled for appropriation of his land fore maturity and for a valuable consideration as of the date of the filing of the commissioners' to the plaintiffs, who are partners. The noto report.

was given under an arrangement whereby the This, we believe, disposes of all_the errors as- defendant was to become the agent of the Amersigned by defendant except one. R. P. Russell, rican Hog Cholera Cure Company, of Eureka, (one of the commissioners) called as a witness Iowa. Without setting out in detail the facts by the plaintiff, was asked the following ques- relied upon by defendant, it is sufficient to say tion, defendant excepting: “Considering the that there was evidence tending to show that property as you saw it when you were there, with the noto was procured by fraud, as the defendant the cut through it, * * * what, in your opin- avers. Upon this evidence the court instructed

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