certain percentage for their services. Held, That there was a good consideration for the agreement; that it was not affected by the act of Congress relating to said award, which prohibits and annuls liens, &c., for services covering any claim, nor by the subsequent dissolution of defendants' partnership.-Id.

7. When a party agrees to pay a sum when satisfied that a certain thing has occurred, the agreement is conditional, and no right to sue exists until the condition is fulfilled.Wilson v. Gould et al., 192.

8. Plaintiff sold to defendant's intestate certain stocks, and received from him an instrument in writing which stated that a certain price had been paid therefor, and that the understanding was that the plaintiff was to receive one-half of the price the same was sold for, when sold, over and above such price. Held, That the instrument imported an obligation to sell, the performance of which plaintiff could enforce.-Jones v. Kent, 194.

9. Defendant, at the request of one E., loaded the vessel of one S., with petroleum, and represented to S. and E. that it put 110 barrels on board, which was untrue. S. thereupon gave a bill of lading for 110 barrels to E., who sold it to a foreign firm. On the unloading of the vessel S. was compelled to pay the consignees for the deficiency. Held,

That he was entitled to recover back the sum so paid; the payment being a compulsory one, caused by the act of defendant, a promise on its part to repay the money will be implied.-Van Santen v. The Standard Oil Co., 199.

10. Plaintiff, after becoming director and president of a railroad company, purchased of B. and S. an interest in a construction contract theretofore made with said company. Subsequently plaintiff entered into a contract with B. & S., by which he agreed to assign to them all his claims against the company, his stock therein, and his interest in the contract, and to resign as director, and to induce the other directors to resign, and B. & S. agreed to pay to him his claims against the company, and to deliver to him 2,000 shares of full-paid capital stock of the company. Plaintiff performed on his part, and B & S. paid the claims and delivered the stock, which was afterwards discovered not to be full-paid stock. In an action for fraud, after showing these facts, plaintiff offered to show that the stock was issued without any valid consideration, and for the purposes of carrying out the contract. Held, That plaintiff had a cause of action; that the evidence offered was material; that, nothing having been done under the construction contract, and plaintiff's interest in it not having come in conflict with his duty as trustee, it could not be declared void as against public policy; it was, at most, voidable at the election of the corporation or its stockholders, and plaintiff

|

having assigned his interest before any performance of the contract was attempted, and before objection was made to his connection with it, and his assignees being competent to take, the assignment of it was valid.Barnes v. Brown et al., 227.

11. When plaintiff has completed his contract as far as possible, and the neglect of defendant prevents a perfect completion, he may sue for a breach of the contract, and may recover such damages as he can prove.—Lefler V. Sherwood, 243.

12. The fact that his complaint is drawn on the theory of a completed contract will not prevent his recovery.-Id.

13. Before a party can rescind a contract he must restore the other party to the condidition in which he stood before the contract was made, and this involves a restoration of everything received by him under the contract, whether money, goods or securities.— Gould v. The Cayuga Co. Nat. Bk., 278.

14. The fact that money received under a stipulation and agreement settling the claim of parties thereto is a portion of a debt due to one party from the other which could be enforced were it not for the stipulation, will not avail to make retention of such money consistent with recission of the stipulation. -Id.

15. Therefore, in an action for the debt, when plaintiff claims that the settlement is void for fraud, the retention of the money received under the settlement, although a portion of the debt sued for, negatives the rescission of the settlement by plaintiff, and makes the settlement a good defense.-Id. 16. Defendant entered into a contract with plaintiffs which stated that as plaintiffs were about to publish a book to be sold by subscription through their agents in all the states of the Union and in Canada, and were to insert an article relating to defendant in said book, defendant agreed to pay two cents for every copy sold by plaintiffs. Held, That plaintiffs, in order to recover on said contract, were not obliged to prove sales in every state and in Canada, but were entitled to recover for the number of books sold; nor were they obliged to establish an actual sale and delivery to individual subscribers.-Burr et al. v. The Am. Spiral Spring Butt Co., 281. 17. Plaintiffs were induced by fraud to sell one S. certain whiskey in bond, subject to the government tax. Defendant, in order to consummate the fraud, purchased the whiskey of S., paid the tax, and removed the whiskey. Held, That plaintiffs were bound, on rescinding the contract, to reimburse defendant for the advances or expenditures made by him.-Guckenheimer et al. v. Angevine, 313.

not

18. A contract for the sale of personal property provided that the property should be all delivered together at a certain time. A

portion was delivered before that time at de

fendants' request. Correspondence ensued between the parties as to the delivery of the balance, but in no part thereof did defendants claim they were not liable for the portion received unless the balance was delivered. Defendants subsequently declined to receive the balance on the ground that the time for delivery had expired. Held, That they thereby waived full performance, and were liable for the portion received.—Avery et al. v. Willson et al., 341.

19. To constitute a case sufficient to annul a contract for fraud there must be evidence showing a suppression of truth, or misrepresentation as to an existing fact forming an inducement, &c.; promises to do certain things under the contract have no relevancy. The validity of the contract cannot be made to depend upon the performance of such promises. Genet v. The Prest., &c., of the D. & H. C. Co., 386.

20. A written contract merges therein all prior and contemporaneous negotiations and oral promises in reference to the same subject.— Id.

21. To entitle a party to a judgment reforming a written contract, he must prove that it was the intention of both parties to make a contract, not as it appears but as he claims it should have been, and that this intent was frustrated by fraud or mutual mistake. There must be clear evidence of fraud or mutual mistake to authorize the reformation of the contract.-Id.

22. Where a collateral promise is made by one of the parties with respect to a written contract, the only remedy of the injured party in case of a breach of the collateral promise is an action for damages for a breach of the parol contract.-Id.

23. A complaint alleged that defendant sold out his business to plaintiff and agreed not to engage in that business in a certain place and vicinity without plaintiff's consent, and that defendant established an office for such business at such place. Held, That it alleged sufficient facts to constitute a cause of action.Miller v. Sheldon, 443.

24. In an action for breach of contract of sale the vendors have a right to determine the amount of their damages by a sale, and it is immaterial what the general market price was at any time before or on the day of the sale, except on the question of good faith and reasonable diligence, if they are questioned. -Harrington et al. v. Clark, 471.

25. Under a building contract, the owner is bound to notify the contractor of deiects that exist and give him an opportunity to remedy them before he is entitled to remedy them himself, and offset the cost thereof in an action for the contract price.-Mansfield v. Beard et al., 476.

26. Plaintiffs entered into a contract with deVol. 10.-No. 26.

fendant by which they were to convey to him certain premises, the deed to be given and purchase price paid at a certain date. Defendant was to erect buildings thereon in the meantime, and was to give mortgages for the purchase price and advances to be made by plaintiffs. The contract contained a covenant of title. On the following day plaintiffs conveyed the premises to a third party. Held, That this was a violation of the contract, and relieved defendant from any liability under it.-James et al. v. Burchell,

517.

27. A contract to drive horses for the owner in races or contests of speed competing for purses, prizes or premiums to be paid the winner is not illegal.-Harris et al. v. White,

541.

28. If there are special laws allowing rewards to be offered for contests of speed at certain places, it is not unlawful or against public policy to trot a horse there or to make and perform a contract to do so.-Id.

29. Entrance fees paid by the owner at races by associations for the improvement of horses, and driving parks, forined under particular statutes, and which offer prizes to the winner, which go into the treasury and are mingled with the receipts, are not bets and stakes within the meaning of the penal statute.-Id. 30. At the time the contract was made all but one of the entries were for races to be held in other states. Held, That what was done in other states could not be deemed in violation of the statute or against the public policy of this state. Id.

See BAR, 5, 6; CORPORATIONS, 4; Damages, 3; EVIDENCE, 5, 22; INFANT, 1; LEASE, 5, 6; LIEN, 2; MANDAMUS, 4; MARRIAGE. 1-4; MARRIED WOMEN, 1; MISTAKE; PARTNERSHIP, 10; SERVICES; SPECIFIC PERFORMANCE; STATUTE OF FRAUDS; USAGE; USURY, 4, 7.

CONVERSION.

1. Where, in an action against an officer for the conversion of goods taken by him by virtue of an execution, plaintiff proves that the goods are such as may be exempt under the statute, but fails to show that he claimed the exemption or forbade the sale, or that he had demanded the goods before the commencement of the action, although the officer gave him notice of his right to exemption, and an opportunity to claim it. Held, That the plaintiff was properly nonsuited upon the trial.-Turner v. Borthwick, 15.

2. A mere stockholder or corporator of a corporation has no right to maintain an action against a person who has wrongfully converted the property of the corporation, without showing a failure or neglect on the part of the corporation, or its board of directors, or proper officers, to take steps to prosecute for the alleged wrong, which are a common injury to all the members of the corporation. -Wertheim et al. v. Page et al., 26.

offices become vacant at the end of their term.-Van Amburgh et al. v. Baker et al.,

62.

6. A corporation, of which defendant was trustee, purchased certain patent rights of plaintiffs and one V., and issued stock to them in part payment, and promised to pay the balance in cash. On the same day V. was made trustee. Judgment having been rendered against the corporation, and an execution returned unsatisfied, and V. having assigned his interest to plaintiffs, Held, That no action would lie against defendant, as trustee, for failure of the corporation to file an annual report, or as stockholder, on the ground that the capital stock was not paid up, or a certificate filed, as V. was equally charged with the duty of seeing that these things were done.-Knox et al. v. Baldwin, 103.

7. An execution against a corporation was returned unsatisfied in 1869, and an action against one of the stockholders was commenced in 1876. Held, That more than six years having expired, the action could not be maintained.-Id.

8. P. and W. consented upon certain conditions to be trustees of a corporation organized in 1874, but neither of them were stockholders or subscribers for stock. Prior to the first meeting of trustees, W. resigned as trustee, and his resignation was accepted, and he never afterwards acted as trustee. In an action against W. and the other trustees to recover a debt due from the corporation, on the ground that no report was filed in January, 1875, Held, that W. was not liable, as he was not a trustee at the time of the default.Bruce et al. v. Platt et al., 150.

9. When a trustee resigns as such it is not necessary for him to give notice of his intention to the public, or to any one but his associates. Id.

10. The property of the corporation was sold on execution in December, 1874, and no business was thereafter done. Held, That it was practically dissolved before the time when a report could be required under the statute.Id.

11. 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.-Brockway v. Ireland,

159.

12. Where all the stockholders of a manufacturing corporation, incorporated under the Act of 1848, are sued, to recover for work, labor and services performed for the corporation, the release by plaintiff of one of the stockholders for a consideration, under the Act of 1838, chap. 257, does not discharge the remaining stockholders.—Herries v. Platt, 162.

13. In an action by stockholders to dissolve a corporation and to set aside a judgment of foreclosure and the mortgage held by the trustees as ultra vires and void, the complaint alleged that the consent of stockholders, required by statute, was not filed. This was denied by the answer. There was no evidence and no finding on that point. Held, That it must be presumed that the assent required was filed; that the judgment of foreclosure, unless impeached, was conclusive against the corporation and all its stockholders as to the validity of the mortgage.Denike et al. v. The N. Y. & R. Lime, &c., Co., 177.

14. A corporation may be dissolved by forfeiture; but such forfeiture, in the absence of a special provision by statute, can only be enforced by the sovereign, in a proceeding instituted in its behalf.-Id.

15. A portion of the stockholders of a manufacturing corporation cannot surrender the franchises of the corporation and work its dissolution.-Id.

16. A corporation does not commit an act of bankruptcy or insolvency by allowing its demand notes to remain outstanding and unpaid until payment has been demanded.—Id. 17. The fact that the property of the corporation has been leased gives the stockholders no standing to ask for a dissolution, whether the lease is lawful or not.-Id.

18. Where plaintiffs do not show themselves entitled to have a dissolution of the corporation, a receiver will not be appointed.-Id. 19. An action against the trustees of a manufac turing corporation to recover a debt against it, on the ground of a failure to file a report, may be commenced at any time within three years after such failure without regard to the time when the debt arose, provided such debt existed and could be made the subject of an action at the time of such failure; the action need not be commenced within three years after the debt arose.-Duckworth v. Roach et al., 195.

20. An action under section 23 of the Manufacturing Corporation's Act, making assenting trustees liable for debts in excess of capital stock, cannot be brought in behalf of a single creditor.-Anderson v. Spears, 304.

21. The action must be brought either in the name of all the creditors or else in their behalf.-Id.

22. A general appearance by a corporation de