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the District of Columbia, p?f. in that general rule, it seems clear that error, v. William H. Ward (October, the proposition of the defendant 1879).

must be sustained. Sh. & Red. on

Neg., $ 215; 17 C. B., N. S., 194; In the absence of fraud and collusion, an attor

ney employed to search the title to real see also 4 Macq., H. of L. Cas., 167, estate is only liable to the person who em

209; 37 N. J. Law, 5; 10 M. & W., ploys him.

109; 81 Pa. St., 256. Proof of usage will not make a contract where Where the wrongful act is not -the parties have made none, and it can only immediately dangerous to the lives be admitted to interpret the meaning of the of others, the negligent party, unless language employed.

he be a public agent in the performError to the Supreme Court of ance of some duty, is in general the District of Columbia.

liable only to the party with whom Action to recover damages for he contracted, and on the ground alleged negligence of defendant in that negligence is a breach of the examining and reporting upon the contract. L. R., 3 C. P., 496. title to certain real estate.

Satisfactory proof is exhibited that The complaint alleged that plain-'the defendant was duly employed tiffs employed defendant to examine by the pretended owner of the lot to the title to certain real estate upon examine his title to the same, and it which they were about to make a is conceded that he did so, or that loan ; that he reported that the his son made the search for him, title of the borrower was good and and that he made and signed the unencumbered, whereas the borrow- certificates in question, and that he er was insolvent and had no title, as was paid for his services by his emappeared by a prior recorded con- ployer, nor is it questioned that the veyance.

title was defective as alleged. ConIt appeared by the evidence that cede that, and it follows, as an indefendant was employed by the plication of law, that the defendant borrower; that he made the report assumed to possess the requisite to his employer; that he never knowledge and experience to percame in contact with plaintiffs, or the form the stipulated service, and that brokers employed to negotiate the he contracted with his employer loan, and had no knowledge of what that he would use reasonable care use was to be made of his report. and skill in the performance of the

No fraud or collusion was alleged duties. For a failure in either of or proved.

these respects, if it resulted in There was a verdict and judgment damage to his employer, he, the emfor defendant.

ployer, is entitled to recover comHelt, no error. Beyond all doubt pensation. 70 III., 268. the general rule is that the obliga- Decisions of the courts of the tion of the attorney is to his client highest authority support that propand not to a third party, and unless osition, but the difficulty in the way there is something in the circum- of plaintiffs is that they never emstances of this case to take it out of ployed the defendant to search the records, examine the title, or make over or nullify the express prothe report, and it clearly appears visions of the contract. So, where that he never performed any such there is no contract, proof of usage service at their request or in their will not make one, and it can only behalf, and that they never paid be admitted either to interpret the him anything for the service he did meaning of the language employed perform in respect to that trans- by the parties, or where the meanaction, nor is there any evidence ing is equivocal or obscure. 5 Wall., tending to show any privity of con- 663, 679. tract between them and the defend- Suffice it to say these parties ant, within the meaning of the law, never met, and there was no comas expounded by the decisions of munication of any kind between the the court.

defendant and the brokers, or the Every imputation of fraud is dis- lenders of the money. Nothing of claimed, and it is clear that the the kind is pretended, the only sugtransaction is not one immediately gestion in that direction being that dangerous to the lives of others. it may be held that the applicant for Where there is fraud or collusion, the loan, when he employed the the party will be held liable, even defendant, may be regarded as the though there is no privity of con- agent of the plaintiffs. Such sugtract, but where there is neither gestion being entirely without evifraud or collusion nor privity of dence to support it, is entitled to no contract, the party will not be held weight, especially as it appears that liable unless the act is one im- the principal certificate was prominently dangerous to the lives of cured several days before any interothers, or is an an act performed in view upon the subject of the loan pursuance of some legal duty. 2 M. took place between the brokers and & W., 519, 530.

the plaintiffs. Testimony was introduced at the Judgment affirmed. trial tending to show that there is a Opinion by Clifford, J.; Waite C. local usagelin the district that the J., Swayne and Bradley, JJ., disattorney examining the title of such sent. an applicant for a loan shall be considered as also acting for the lender TRUSTEE. CONTEMPT. of the money, and complaint is made N. Y. COURT OF APPEALS. that the court below did not submit

Williams, respt., v. Thorn et al., that evidence to the jury, with applts. proper instructions.

Decided June 15, 1880. Held, no error. Evidence of usage Where in an action by a judgment creditor of is not admissible to contradict or

the beneficiary a judgment is rendered fixing vary what is clear and unambiguous, the surplus income of a trust estate, and dior to restrict and enlarge what re- recting the trustees to pay the debt and quires no explanation. Omissions

costs out of such surplus, the trustees are

bound by the judgment, and if they disobey may be supplied in some cases by

its command become personally liable for such proof, but it cannot prevail the debt.

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This action was brought by plain- did not have the money on hand, or tiff, a creditor of B., against defend- that they paid it over to the wife of ants, who hold an estate as trustees, the cestui que trust, in pursuance of for the benefit of B., under the will a decree, in an action for divorce, of his father, to collect his debt out made before the judgment in this of the trust estate. A judgment case was rendered. We must assume was rendered in favor of plaintiff, that that fact was considered, and fixing the surplus income of the an- duly weighed, and the surplus denual fund accruing during the three creed is unaffected by it. While years after the suit was commenced the trustees were not, in the first at $2,572.48 and directing that the instance, personally liable for the debt and plaintiff's costs be paid by debt, they have become so by disthe trustees out of that sum. No obeying the command of the judgappeal was taken from this judg- ment. ment. It was duly entered in the Order of General Term, affirming proper office on August 6, 1879. order directing execution to issue, On the same day a copy was served affirmed. on defendants' attorney, and, on Opinion by Finch, J. All concur, August 28, on the trustees, and on except Rapallo and Danforth, JJ., that day a formal demand also dissenting. served upon them, requiring them to pay pursuant to the terms of the

REFERENCE. APPEAL. judgment. On October 13 a notice of motion was served on behalf

N. Y. COURT OF APPEALS. of plaintiff, asking for leave to issue Catlin et al., applts., v. The Adian execution against the trust estate, rondack Co., respt. or against the trustees individually,

Decided June 8, 1880. as a punishment for their contempt in disobeying the mandate of the An order reversing a judgment entered on a court. This motion was granted,

referee's report, and granting a new trial,

does not of itself vacate the order of referso far as to permit a precept to be

ence; that stands, unless otherwise specificissued for the collection of plaintiff's aly provided. debt out of the property of the An appeal will not lie to the Court of Appeals trustees. This order was affirmed

from such an order.

See S. C., 9 W, Dig., 180. by the General Term, and an appeal taken to this court.

This was an appeal from an Nicholas E. Kernan, for applts.

der of General Term, affirming an A. C. Coxe, for respt.

order of Special Term denying a Held, That the order was within motion to set aside a judgment the power and discretion of the herein. The action was referred by court; that defendants were bound stipulation; the referee reported in by the judgment; it determined favor of plaintiff, judgment was enthat they had the money applicable tered upon the report of the refto the payment of the debt, and eree, which was upon appeal rethey cannot now claim that they versed, and a new trial granted,

*

nothing being said in the order of the children of I., the son of another deceased reversal as to the referee; and de

daughter, and his sons. Held, That the

residuary legatoes took per stirpes, and not fendant thereupon noticed the cause

per capita. for trial before the same referee, Affirming S. C.. 9 W. Dig., 50. and plaintiff not appearing, the ref

This appeal involves only the coneree dismissed the complaint. This

struction of the residuary clause of motion was based on the ground that the referee having once tried the will of F. The testator had five the cause his power ceased on filing children, Irene, Isabella, Anita, his report, and he had no jurisdic- Joseph and Henry : Irene married

and died, leaving five chrildren. tion again to try.

Isabella married and died, leaving Marshall P. Stafford, for applts.

one child. Henry is a physician, A. Pond, for respt.

and the will, among other things, Held, That the reversal of the contains bequests in these words: judgment on the report of the ref-" To my dear daughter Anita * eree, and the granting a new trial, fifty thousand dollars to be invested did not of itself vacate the order of in her name in some good security, reference; that stands, unless pro-she having the benefit of the intervision is made to the contrary, or est thereof, but not the capital, and the order is vacated on motion. The after her death she can will the practice has been to construe the amount either to her husband or order granting a new trial as direct- the children of Irene, and no other." ing such new trial before the same To the children of Irene, $50,000; to referee, unless otherwise specifically Henry, the doctor, $25,000; to Josprovided; therefore, even if the eph $5.00. After some other direcpowers of the referee were ex- tions follow these words: “If, after

, hausted when he filed his report, realizing all my investments, and they were revived by the order to paid all my bequests, there shall be try the case.

That the order was a remainder after paying all expensnot appealable, and the appeal es, commissions, &c., I wish the same should be dismissed, with costs. to be divided equally between Anita, Appeal dismissed.

the children of Irene, the son of Per curiam opinion. All concur. Isabella and Henry, the doctor.

William B. Putney, for applts.
WILLS.

F. R. Coudert, for respts.
N. Y. COURT OF APPEALS.

Held, That the legatees named in Ferrer et al., respts., v. Pyne et al.,

the residuary clause took per stirpes, exr's., applts.

and not per capita; that the fact that

the testator does not speak of the chilDecided June 1, 1880.

dren of his dead daughters by name, Testator, by his will, bequeathed $50,000 to his but as “the son of Isabella,” or “the

daughter A., and the same amount to “the children of Irene,” shows an intenchildren of I.," a deceased daughter; and after other bequests, he directed the remain. tion to designate them not as inder of his estate to be divided between A., dividuals, but as a class, as repre

sentatives of their parents, and as lowed the rent up to the commencement of substitutes for them. An intention

the action. Held, No error ; that the con

tract, for the purposes of the action, must be to treat the children of Irene as a

treated as then performed. class may fairly be deduced from the words to the children of Irene

Affirming S. C., 8 W. Dig., 20. $50,000,” and we may conclude that

This action was brought to forehe used the same words which oc- close a mechanic's lien under chapcur in the residuary clause with the ter 379 of the Laws of 1875. Desame signification and intent. fendant P. owned the premises

Judgment of General Term,revers- against which the lien is sought to ing decree of surrogate, affirmed. be enforced. In June, 1876, he

Opinion by Danforth, J. All con- contracted with one G. to make cercur.

tain alterations and repairs in and

additions to such premises, for which WECHANICS' LIEN. he agreed to pay him $5,000. G. V. Y. COURT OF APPEALS.

leased certain premises of P., and it

was agreed that the rent accruing Heckman, respt., v. Pinckney, before the completion of the conimpl'd, applt.

tract should be credited to P. on Decided June 1, 1880.

the contract, this was to be per

formed within two months accordThe Act of 1875, in relation to mechanics' liens in the City of New York, supersedes, and ing to certain plans and specificaby necesary implication repeals the Act of tions, and it was agreed that in 1863.

case G. failed to perform within the By § 1 of the Act of 1876, sub-contractors, as time specified, P. should be released well as contractors, are given a lien for la

from the contract. G. employed bor and materials. The words“ liable to pay at the time” in the plaintiff to do the carpenter's work.

restrictive clause of § 1, mean liability to P. bases his defense on the ground pay, by virtue of the contract, either pre. that G. failed to perform his contract. sently or in futuro, and cannot be confined The referee found that G. did not to the amount actually payable by the terms' of the contract at the time the lien is filed.

make cornices and put centre pieces Defendant made a contract with G. by which in certain of the rooms as agreed,

the latter was to repair and alter certain and that the material used for deadpremises for a specified sum, and if he failed

ening the floors did not contain hair to perform within a certain time, it was agreed defendant was to be released from the as required by the contract, and contract. In an action to foreclose a lien, that one of the lintels was cracked the answer did not allege damage from G.'s and had not been replaced by a whole failure to perform within the time specified, one. The referee also found that the but defendant testified that he sustained

contract was substantially performed damage to a certain amount in loss of rents. The referee found a substantial performance and that in the matters complained of the contract, a waiver of defects, and also of performance had been waived. of failure to perform in time, and refused to He also found that a performance of find that the damage for delay was any spe- the contract within the time speci

fied amount. Held, No error, G.'s rent for premises occupied by him was to fied was waived. P. did not allege

be allowed on the contract. The referee al- in his answer that he had sustained

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