Judgment of General Term, modifying judgment on report of referee, reversed, and judgment on report of referee affirmed. Opinion by Rapallo. J. All con he sought to recover herein; this fore, in the former action was not a fact the referee had refused to find. technical bar to B.'s action. It appeared from the evidence that the former action was brought to recover $2,000 money loaned, and $3,213.52 expenses incurred. The complaint therein alleged that the plaintiff had paid or advanced cur. $2,050 and claimed judgment against the defendant for a balance of $3,355.03. The answer did not set up any counterclaim, but consisted solely of a general denial. G.'s claims were for money lent and paid out for B.; B.'s claims were for dividends, and the money collected by G. as his agent. Wm. W. Niles, for respt. CONTRACT. N. Y. COURT OF APPEALS. Woodward, respt., v. Fuller, applt. Decided March 9, 1880. In an action on two contracts, one for altering a building, and one for building a piazza, and also for extra work, it was found that partial payments had been made on the principal contract, which had not been fully performed in some particulars, but that defendant had always been in possession of the work; that said contract had been undertaken in good faith and its conditions substantially complied with, and that nothing had been paid on the other contract or for the extra work. Held, That the money paid on the principal contract went upon that alone, and could not be set off against the other claims, and that plaintiff, having intended, in good faith, to comply with the principal contract, and having substantially done so, was entitled to recover the contract price, less the damages occasioned by the omis sions. If the defects ran through the whole work, and Held, That B, was not bound to set up in his answer in the former action his claims against G. for money collected by him as his agent, which form the subject of the present action, nor to avail himself of the credit G. proposed in his complaint to give him. B. had a right to reserve his own claims for a cross action, the conduct of which he could control, and to confine his defence in the action brought by G. to such matters as would defeat G.'s claims set up in that action; that B.'s claim did not constitute matter of defence against G.'s claims in such a sense, that they were barred by a recovery of those This was an action to recover the claims or any of them. B.'s claims unpaid part of the price agreed were matters of offset rather than upon in a builder's contract for the of defence, and the fact that G. en- altering of a dwelling, and the price tered all these matters in the same agreed upon in another contract for account does not so connect them building a piazza thereto, and the that they could not properly form value of work done not named in the subjects of individual actions by those contracts. Part of the comeach party. The judgment, there-pensation reserved by the principal were so great that the object of the work was not accomplished, the rule would be different. Affirming S. C., 7 W. Dig., 177. Samuel Hand, for applt. George L. Clark, for respt. contract was to be made, as the work progressed under it, in board of plaintiff and his workmen and fodder for his horse, and $200 or $300 of the residue, which was $550 be upheld for the price of the in all, was to be paid as the work piazza and for the value of the extra work, these being distinct from progressed, and the balance was to be paid, when the work was the principal contract and plaintiff's done, in money or in something performance having been complete plaintiff could use. The time for therein; that the money paid by defendant upon the principal conpayment for the piazza was not named. The extra work was to be tract went upon that alone, and canpaid for when it was done, and in not be set off or applied elsewhere, money to the amount of the worth nor can the damages for the defects of the work. The referee found that in the work done under the principlaintiff entered upon the work and pal contract be set off or applied to brought it to an end; that defend- them; that as to the principal conant made him the compensation not tract, full performance of it by reserved in money, and paid him plaintiff was a condition precedent upon the contract in cash and other- to his right to have payment unless wise, as the work progressed, $82.96; defendant accepted the work or that the extra work was done to waived such a performance, 9 N. Y., defendant's satisfaction, and was 93; 17 id., 173; that plaintiff havworth $90.50; that defendant has ing, in good faith, intended to comalways been in possession of the ply with the principal contract, and work done by plaintiff under the having substantially done so, he was entitled to recover the contract principal contract; that the contract was not fully performed by price, less the damage on account plaintiff in some particulars, but of such defects. 35 Barb., 602; 50 was undertaken in good faith, and N. Y., 666, 145; 62 id., 264; 67 id., all the conditions of it were sub- 563); that in a case where the destantially complied with, and the fects run through the whole work, omissions were the result of the in- or are so great that the object of advertence of plaintiff and of his the work is not accomplished, the workmen, and by the want of skill rule would be different. and judgment of the latter, and that defendant was damaged thereby. Nothing was paid upon the price of the piazza or for the extra work. A judgment was entered upon the report of the referee in favor of plaintiff for the amount of the two contracts and the value of the extra work, less the sum paid him and defendant's damages. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Per curiam opinion. All concur, except Rapallo, J., not voting. COLLATERALS. STOPPAGE N. Y. COURT OF APPEALS. Babcock, admr'x, respt., v. Bonnell, applt. Decided Feb. 24, 1880. Defendant, in 1870, being the holder of two notes on which the firm of B. & Co. were liable, procured from B. a policy on his life, and paid the first premium. Two months later he accepted payment of said notes at less than their face, and delivered them to B.'s agent. Held, That the policy was held as collateral security; that the indebtedness was discharged, and that the defendant could not hold the policy to indemnify him for the deficiency. Some years after B. expressed a desire not to be regarded as having an interest in the policy, and stated that the entire interest was in defendant. Held, That this did not have the effect of a release or create an estoppel. Previous to the issuing of the policy, B. & Co. had given defendant a note for a cargo of coal, but the coal was stopped in transitu by defendant, and he afterwards sold it and claimed to hold B. & Co. for the balance. He held the coal when the policy was issued. The policy was to secure a fixed indebted ness. Held, That defendant had no lien on the avails of the policy to secure the balance of said note. As to whether a stoppage in transitu is of itself a disaffirmance of the contract of sale, or an assertion of a right to enforce a lien for the purchase money, quaere. They being unable to pay, de- W. W. Niles, for applt. Held, That the facts justified the findings that the policy was held as collateral security; that the indebtedness of B. & Co. was discharged; the settlement with W. amounting to an executed accord, nothing remained execuThis action was brought to re- tory, and it operated as a full satisfaccover the proceeds of a policy of tion, 75 N. Y., 574; and that there beinsurance upon the life of plaintiff's ing no agreement to that effect, deintestate, which plaintiff claimed, fendant could not hold the policy to and the court found, was taken out indemnify him for the deficiency. and delivered to defendant as col- It appeared that some years after lateral security for an indebtedness the policy was issued, B. expressed of the firm of B. & Co. to him. In a desire not to be regarded as havFebruary, 1870, defendant held two ing an interest in it, and stated that notes on which said firm, of which the entire interest was in defendB. was a partner, was liable, which, ant. with interest, amounted to $4,678.48. Held, That this did not have the effect of a release or create an estop pel. All Opinion by Church, Ch. J. concur, except Earl, J., dissent Defendant also claimed that ing. the policy was held as security for the balance due upon another note CORPORATIONS. of B. & Co., given in November, TRUSTEES. EVIDENCE. 1869, for a cargo of coal, which was N. Y. SUPREME COURT. GENERAL shipped by defendant to B. & Co., but was stopped by him in transitu, to enforce, as defendant claimed, his lien for the purchase money. At the time the policy was issued the cargo was in defendant's possession. The insurance agent testified that the policy was delivered to secure a fixed indebtedness. Defendant sold the coal in May, 1870, and claimed the difference between the contract price and the amount the coal sold for. A letter of defendant, written in March, 1876, showed that he did not then suppose he had any legal indebtedness against B. & Co. The court found that defendant acquired no interest in the policy except as a creditor of B. & Co., and to the extent of his claim upon the two notes first mentioned against said firm. TERM. FOURTH DEPT. Decided April, 1880. In an action to charge the trustees of a corporation individually with its debts on the ground that the stock issued was in excess of the value of the property for which it was issued, under the Laws of 1853, chap. 333, and that the trustees had knowledge of such fact, Held, That evidence is admissible as to the representations of other parties to the trustees as to the value of such property transferred to the corporation in payment of its stock, on the question of notice to the trustees of its actual value, and that the question as to whether the trustees in good faith acted and relied on the opinions which they received, and believed the value of the property to be as represented, is to be determined by the jury. Appeal from an order denying a new trial, made on the minutes of the court, after a verdict. The action is against the defendant as president of "The Black River Iron and Mining Company," to recover on a due bill for $63.90 given by the corporation as a balance due plaintiff. The action is, in substance, against defendant as president and trustee of said corporation for not having made the annual report as required by section. 12 of the "Act to authorize the Held, That the evidence justified the finding, and that defendant had no lien upon the avails of the policy to secure the balance of the note given for the cargo of coal, even if B. & Co. were liable therefor. As to whether the stoppage in transitu by the vendor of goods sold and shipped to the vendee is of itself a disaffirmance of the contract of sale, or an assertion of a right to enforce a lien for the purchase money, formation of corporations for manquaere. Judgment of General Term, affirming judgment for plaintiff, affirmed. * * * pur ufacturing, mining, 333. in any way conclusive of the defendant's liability. What purported to be annual reports as required by said section 12, signed and verified, were duly filed, Also held, That the evidence given and plaintiff claimed to recover as to the representations of other under section 15 of said act, on the parties to the trustees as to the ground that said reports were false value of the property transferred to in material representations, and the corporation in payment for its that said defendant, who had signed stock was admissible on the questhem, knew the same to be false, tion of notice to the trustees of the and was therefore individually iiable actual value. for debts of the corporation. The trustees must, in many cases, The annual reports referred to depend upon the representations of showed, and it appeared in the case experts and others presumed to in fact, that the whole of the capital have a practical knowledge of the stock, $300,000, was issued in pay- property in question, and be compement for the mine, manufactory tent to judge of its actual value. In and other property of the corpora- such cases the question remains tion, and the action was tried and open to be determined by the jury submitted to the jury on the theory as to whether the trustees in good that if the property had been pur- faith acted and relied on the opinchased by the corporation for a ions which they received, and beprice in excess of its value, and if lieved the value of the property to the defendant knew at the time when be as represented. Order denying a new trial af he signed such reports that such was Opinion by Talcott, P. J.; Hardin and Smith, JJ., concur. MALICIOUS PROSECUTION EVIDENCE. Y. SUPREME COURT. GENERAL Leander W. Fiske, for applt. Larned & Warren, for respt. Held, That the questions as to the stock issued exceeding in value the property in "exchange for which N. it was issued," and as to the knowledge of the trustees of the real value of the property, and their deliberate over-valuation of it, and payment of an amount in stock for it which they knew to be in excess of its actual value, 73 N. Y., 100, were substantially submitted to the jury in this case, and that the inferences which the jury were entitled to draw from the facts developed by the evidence as opposed to the testimony given in behalf of the defendant were not Decided April 8, 1880. A person guilty of a crime cannot sustain an the defendant in the action for malicious |