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in the case of obtaining property grab.” Another version given by by fraud and false pretenses. In the witness was that Q. said he such cases evidence of other trans- cut off the car and made a grab actions of a like nature indicating for the handle of the car, and there guilty knowledge or criminal in. was nothing there for him. The tent is admissible. But in a case sole ground upon which plaintiff of an actual rape these elements claims to recover is, that the car are wholly wanting.

he was directed to detach from the Judgment and order reversed train was not furnished with a and new trial granted.

horizontal grab handle on its end. Opinion by Boardman, J.; Har- Whether this was so or not, and din, P.J., and Follett, J., concur whether or not Q. met his death in result.

in the manner the witness testi

fied Q. said he did were contested NEGLIGENCE. EVIDENCE.

questions of fact which were sub

mitted to the jury. N. Y. COURT OF APPEALS.

Frank Loomis, for applt. Martin, admr., respt., v. The N.

Thomas P. Wickes, for respt. Y., N. H. & H. RR. Co., applt.

Held, That the evidence was Decided Dec. 17, 1886.

erroneously admitted; and it could In an action to recover for the death of not be claimed that it did no harm. plaintiff's intestate evidence of declara

After plaintiff's witness had testions of deceased, made after the accident, and while he was being conveyed tified as to the declarations of Q. away, as to the manner in which the ac- while being taken to the switchcident happened, were admitted. Held, house, defendant called two witError.

nesses, one of whom testified that An exception to the admission of testimony

is not waived by attempting to disprove Q. attributed the blame to one the matters testified to, or to prove facts

of his fellow workmen, and the inconsistent with them.

other, that when asked how he This action was brought to re- came to fall, he answered that he cover damages resulting to the did not know. next of kin of Q. from his death Held, That defendant did not from injuries received while in waive his objection and exception defendant's service. Plaintiff was by attempting to disprove the matallowed to prove, under objec- ters testified to, or to prove facts tion and exception, that after Q. inconsistent with them. had been taken out from under A party excepting to the admisthe car by which he had been in- sion of testimony is not bound to jured, and while he was being con- concede its truth, or to refrain veyed to the switch-house by his from combatting it, in order to fellow employees, some one asked retain his exception. him how the accident had happened Judgment of General Term, afand he replied: “I pulled the pin firming judgment on verdict for and made a grab for the car and plaintiff, reversed, and new trial there was nothing there for me to granted.

Opinion by Rapallo, J. All house receipts for certain goods concur, except Danforth, J., not imported by said firm. H. & S. voting.

made a general assignment for the benefit of their creditors, but the

assignee named by them was unDUTIES. ASSIGNMENT FOR

able to qualify. Certain of the CREDITORS.

creditors of H. & S. had turned N. Y. SUPREME COURT. GENERAL over to defendant the warehouse TERM. FIRST DEPT.

receipts held by them as collateral Robert J. Dean et al., respts., v.

security for their claims for the Horace K. Thurber, assignee, purpose of having defendant act applt.

as their agent in selling the goods,

and defendant suggested to plainDecided Oct. 21, 1886.

tiffs that if they should do the Plaintiffs were the holders of certain prom- same thing and have him appointissory notes made by the firm of H. & S.

ed assignee of the assets of H. & S. and also held as collateral security for the payment of the said notes warehouse loss might be averted by having receipts for goods imported by said firm all the goods under the control of and which were in U. S. bonded ware

one person. Plaintiffs agreed to houses. H. & S. made a general assign- this and defendant was appointed ment for the benefit of their creditors, but the assignee named by them was unable

assignee of H. & S. in pursuance to qualify and defendant suggested to of this arrangement, paid the duplaintiffs that they should institute pro- ties on the goods out of the funds ceedings to have him substituted as as

of the assigned estate, took possignee and should turn over to him, as

session thereof and sold them. had been done by other creditors of H. & 8., the warehouse receipts held by them

This action was brought for as collateral so that he could obtain and an accounting of these transsell the goods, and thus by concentrating actions. It was claimed by plainthe control of all the goods in one person

tiffs that the duties upon the goods prevent loss. This arrangement was carried out and defendant paid the duties

which had been pledged to them upon the goods out of the funds in his should be a charge upon the genhands as assignee of H. & S., and sold the

eral estate of the assignors, while goods. Held, That in accounting to

defendant claimed that such duties plaintiffs defendant was entitled to deduct from the price realized for the goods should be deducted from the price for which they had held warehouse re- realized for said goods and the balceipts the amount of duties thereon, and

apce only turned over to plaintiffs. that said duties were not a charge upon

The referee decided in plaintiff's the general funds of the assigned estate.

favor, for the reason, among Appeal from judgment entered others, that defendant after volupon report of a referee.

untarily paying these duties could Plaintiffs were the holders and not charge them to plaintiffs. owners of certain promissory notes More, Aplington & More, for made by the firm of H. & S., and applt. as collateral security for the pay- E. S. Hatch, for respts. ment of said notes they held ware- Held, That it was a conceded fact that though these goods came untary payment invoked by the into the hands of defendant as learned referee. assignee of H. & S., yet they came Judgment reversed and new charged with the previous rights trial ordered. of plaintiffs, and whatever interest Opinion by Macomber, J.; Bradefendant, as such assignee, had dy and Daniels, JJ., concur. in these goods so pledged to plaintiffs was subordinate to the title of plaintiffs, and defendant had no

CONTRACT. SALE. right to take the goods so pledged to plaintiffs and sell them and

N. Y. SUPREME COURT. GENERAL distribute the proceeds thereof

TERM. FIFTH DEPT. generally for the benefit of all the Edward J. Kelsey, respt., v. creditors. That, therefore, it was James Sargent, applt. difficult to see what equity plain

Decided Oct., 1886. tiffs would have in requiring the general funds of the insolvent firm Defendant, in consideration of 300 shares of

stock, contracted with the P. Co. to manuto pay the duties upon this portion

facture and put up in breweries, etc., all of the property. That what de

apparatuses that he could license in one fendant undertook to do was to year, and to guarantee the licensees for take the goods and sell them and

one year against all costs they might infrom what was realized therefrom,

cur growing out of any suit which might

be brought against them for using the after paying all the expenses of apparatuses during the year. Subseconverting them into cash, to pay quently, he agreed to transfer to plainthe indebtedness of H. & S. to

tiff a portion of said shares upon payment

of his note for the price, and upon deplaintiffs or so much thereof as

fendant's being discharged from the said proceeds would enable him to

guarantees given to said licensees purdo. That one of the largest items suant to said contract, and also to pay of expense attendant upon con

plaintiff a portion of the royalties accru

ing to him thereunder. Afterwards, the verting said goods into cash would

first mentioned contract was rescinded necessarily be the payment of the

by another one, under which licenses duties thereon, without which de- were issued and guaranteed by defendant, fendant could not take any step

but neither the licenses nor the guaran

tees were limited as to time, as provided whatever to possess himself of the

by the original contract. Held, That desubject matter of the contract, and

fendant could not refuse to transfer said without which he could not realize stock until he was released from liability anything for the benefit of plain? upon such guarantees. tiffs. That he was no more a vol- Appeal from interlocutory judgunteer than any agent who had ment, and motion for new trial undertaken to obtain certain prop- upon exceptions. Code, $ 1001. . erty for his principal, dispose of it, Action to compel surrender and and account therefor. That there

That there assignment of shares of stock of was no room under the facts of the P. Co., and to account for 1 this case for the application against of all the royalties, etc., received defendant of the principle of volby defendant under a contract

with the company. Nov. 20, 1882, | danger of loss from liability there. defendant purchased 300 shares of on no longer exists, he will surrenthe stock of said company for $5,- der said note and collateral securi000, and agreed to keep open the ties, and also transfer and assign company's office at his own cost to plaintiff said seventy-five shares and expense, hire sufficient help, of stock, and pay over to him 4 of establish agencies throughout the all the royalties which may accrue country, and to use his best efforts to him under his said contract of in soliciting orders and licensing Nov. 20. May 4, 1883, defendant, apparatuses, covered by certain without plaintiff's knowledge, enletters patent, to brewers, etc.; to tered into a further contract with make and put up at his own ex- said company whereby the conpense in breweries and wine cel- tract of Nov. 20 was canceled, the lars all apparatuses that he could company giving him its note for license to brewers, etc., in one $6,252, payable out of its first year from the date of the contract, receipts, etc. Thereafter, in Aug. and to give his individual guaran- and Oct., 1883, the company issued tee any time during the year end- licenses to several parties to use ing Nov. 20, 1883, when required its apparatus, and the company by the company, to indemnify and and defendant guaranteed to save save harmless the said licensees them harnıless, etc. for ope year against all costs they Plaintiff fully performed his might incur growing out of any part of the contract and paid his suits which might be brought note. against them for using the appa- Defendant contended that under ratuses during the year. Dec. 27, the contract with plaintiff he was 1882, defendant agreed to sell to not bound to surrender up the plaintiff seventy-five shares of the sixty-nine shares of stock held by stock so purchased by him for $1,- him as collateral security, or to 250, to be paid by note payable in assign the seventy-five shares sold one year, and secured by sixty-nine | to plaintiff, until he is released shares of the stock of said com- from liability upon the guarantees pany, which plaintiff agreed to given by him to the licensees of leave in the hands of defendant said apparatus. until plaintiff's note was paid, and J. & Q. Van Voorhis, for applt. until defendant was discharged Theodore Bacon, for respt. from his contract as guarantor to HAIGHT, J.--The trial court deusers and licensees of the appara- cided that defendant has not betus which he shall assume by vir- come liable as guarantor to the tue of his contract of Nov. 20, licensees of the company in pursudefendant agreeing that upon pay- ance of the contract of Nov. 20, ment of said note and of his being and this finding seems to be discharged from further liability sustained by the evidence, for it on his aforesaid guarantees, or appears that prior to the issuing sooner becoming satisfied that all of any licenses or the making of any guarantee the said contract tee, so far as the company was conwas canceled; and the guarantees cerned, occupied the relation of subsequently given by defendant surety; and plaintiff by virtue of were not in accordance with the his contract became surety to deguarantee provided for by that fendant.

4 by which the contract of Nov. 20 the company (May 4), without the was annulled, was without the knowledge of plaintiff, canceled knowledge of plaintiff; he was not the contract of Nov. 20, thereby a party. thereto, and therefore releasing the company from its claims the right to recover of the primary liability. By so doing he, royalties collected or to be collected consequently, under a familiar under the licenses issued by the principle of equity, released plaincompany, and he may be bound by tiff as his surety. any guarantee given by defendant Interlocutory judgment affirmed, for one year from the date thereof, and motion for new trial denied. in accordance with the provisions Smith, P.J.; Barker and Bradof the contract of Nov. 20.

ley, JJ., concur. It appears that this action was commenced more than one year after licenses were issued, and no

CORPORATIONS. OFFICERS. claim for damages had been pre- | N. Y. COMMON PLEAS. GENERAL sented at that time making de

TERM. fendant liable upon any of his

John M. C. Rodney, respt., v. guarantees. But the statute of

The Southern R. Assn., applt. limitations has not run, and it is said that claims may be presented.

Decided Dec. 6, 1886. But we are of opinion that plain. The contract for salary between the corpo

ration and one of its officers is not deemed tiff is no longer bound by such

to be canceled by a consolidation of such guarantees under another theory.

company with another, and the appointThe guarantees made do not con- ment of such officer as an officer of the form to the contract of Nov. 20. new company at an increased salary, Neither the licenses nor the guar

with his consent, where there are duties

performed for the old company by the antees are limited in time. They

officer, in virtue of his office, no matter may consequently run during the

how few or slight, provided they are subentire period of the patent; where- stantial and not merely nominal or trias, under the contract of Nov. 20 the fling. guarantee was to be for one year Appeal from judgment in favor only, with the right to sooner of plaintiff for $8,956.75, for salary terminate it upon giving thirty as treasurer of defendant. days' notice. Under said contract Defendant, the Southern Railthe company was primarily liable road Association, was chartered to protect and save harmless the by the State of Tennessee in order parties licensed to use the appara- that it might take leases of the tus, and defendant by his guaran- Mississippi Central RR. and con

Vol. 25–No. 9a.

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