time. The note was sold to plaintiff at a discount of 10 per cent. Held, That the sale and promise to deliver was a good consideration for the note, and that a subsequent violation of such agreement would not vitiate the note or subject it to a defense good only against one for which no consideration had been given, and that plaintiff was entitled to recover.

Affirming S. C., 12 W. Dig., 268.

This was an action upon a promissory note. It appeared that defendant was a dealer in leather and that the firm of R. & Co. dealt in hides. These parties had had dealings for several years, in the course of which defendant had purchased hides of R. & Co. and paid therefor. On November 27, 1878, when the note in suit was delivered, L., one of said firm, asked defendant "to accommodate him with a note so that he could raise money." This request was refused and an arrangement was made by which a note for $2,820, payable in four months to the order of R. & Co., which purported to be for "value received," was given to R. & Co. by defendant, and R. & Co. gave to defendant the following instrument:

"N. Y., Nov. 27, 1878.

C. H. Chatfield,
Bought of S. Rosenbach & Co.,
400 salted hides at 81, deliv.
Dec. 20, 1878.

Received payment, note twentyeight hundred and twenty.

It

S. Rosenbach & Co." The note was transferred to plaintiff on the day it was given at a discount of ten per cent. appeared that by legal proceedings, R. & Co. having made an assignment, defendant obtained possession of the hides and sold them

and received the price therefor. Plaintiff asked the court to direct a verdict in his favor. This request was refused.

S. B. Brownell, for applt.
M. L. Townsend, for respt.

Held, That the contract between defendant and R. & Co. was supported by a sufficient consideration, and the engagement of either could be enforced in favor of anyone to whom it had been transferred, although at a discount exceeding the legal rate of interest; that the instrument given to defendant by R. & Co. was a perfect bill of sale, having the note in suit as a consideration; that the sale and promise to deliver was not less a consideration than the actual delivery would have been; that the note, between its date and December 20th, the day the hides were to be delivered, was good and valid, even in the hands, of the payee. A subsequent violation of the agreement on which it then stood would not vitiate the note or subject it to a defense good only against one for which no consideration had been given. 24 Wend., 94; 17 N. Y., 230; 2 Den., 621.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Danforth, J. All

Defendants gave plaintiff a bill of sale on a

boiler as security for moneys advanced by him, which provided that he could sell it in a certain contingency. Before the contingency happened defendants sold the boiler. In an action for conversion of the proceeds defendants moved to dismiss the complaint on the ground that the proof established that the sale was made with the consent and at the request of plaintiff. This was denied. The existence of an authority to sell was not conclusively established. Held, No er

ror.

Affirming S. C., 12 W. Dig., 476.

Plaintiff was a stockholder in and treasurer of a mining company, of which defendants were also stockholders. In May, 1878, a draft was drawn on plaintiff by D. & Co., the financial agent of the company, for $5,000, which plaintiff, as treasurer, could not meet. He called upon defendants to assist him, and they agreed, if he would advance their share, $830, to give him a bill of sale of a certain boiler. The money was advanced by plaintiff and the bill of sale executed, dated May 11, 1878. It authorized plaintiff to hold the property as security until the company's mine should pay sufficient to reimburse plaintiff for the sum so advanced. It also provided that if the mine did not pay said sum in six months from date plaintiff should sell the property for that purpose at his option. The complaint also alleged that before the expiration of said six months defendants sold said boiler, and received therefor more than $830; that the mine had not paid, and plaintiff had not received any part of the money advanced by him. Both parties agreed that the action was well brought if the

sale was unauthorized. When plaintiff rested, defendants moved to dismiss the complaint, and renewed their motion at the close of the evidence, on the ground that the proof established that the sale of the boiler was made with the consent and at the request of plaintiff, and that an action for the conversion of the proceeds could not, therefore, be maintained. This motion was denied, and the jury found for plaintiff upon the question of authority. The existence of an authority to sell was not conclusively established. 0. E. Branch, for applts.

Warren G. Brown, for respt. Held, That the motions to dismiss the complaint were properly denied.

It was claimed on appeal that plaintiff, by demanding the proceeds and suing for a conversion, ratified the sale, and that hence defendants stand as mere agents, liable to account, but not for any tortious intermeddling with the property or its proceeds.

Held, That, in the absence of exception, this point cannot be taken on appeal. The existence of a present actual authority to sell was the point upon which the case depended, and upon this theory it is to be determined here.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Andrews, Ch. J. All concur.

PRACTICE.

were so found by the jury, the law would give plaintiffs an additional remedy against defendant, viz., to

N. Y. COURT OF APPEALS.

Decided Nov. 21, 1882.

While a trial judge cannot ordinarily be called upon as a matter of right by either party to instruct the jury as to the consequences which may flow from their verdict, he may in his discretion so instruct them. Affirming S. C., 11 W. Dig., 349.

This action was brought to recover for goods sold and delivered. The complaint contained no allegations of fraud. Defendant's answer alleged that the goods were bought on a credit of four months, and that the credit had not expired at the commencement of the action. On the trial defendant proved his allegation as to the credit, and then plaintiff's gave evidence, which was controverted by defendant, tending to show that at the time of the purchase, and to induce the credit, defendant made false representations as to his solvency. They also proved that before the expiration of the credit, and before the commencement of the action, defendant gave them notice that he would not be able to pay for the goods at the expiration of the credit. Plaintiffs claim that this was a waiver of the credit and discharged the mutuality of the contract, and that they could in consequence thereof at once commence this action. The trial judge submitted the question of fraud in the purchase of the goods to the jury. In the course of his charge he stated, that if the facts relating to the alleged fraud were true and

son and to incarcerate him in prison as a punishment, to a certain extent, for the fraud he has perpetrated upon Mr. Keller; and the question for you to determine is whether Mr. Keller is to have the right to imprison Mr. Strasburger as the result of your verdict, or he is simply to be remitted to his rights as creditor, and as such creditor procuring his judgment against the debtor and issuing his execution against his property. This portion of the charge was excepted to by plaintiffs' counsel. In taking the exception he stated that an order of arrest had been issued. It was not claimed that such order had not been executed.

A. J. Vanderpoel, for applts.
Morris Goodhart, for respt.

Held, That the exception was not well taken; that it must be assumed, as was assumed by the trial judge, that an order of arrest had both been issued and executed, and that being so the judge did not err in charging as he did. Code, 1487.

While a trial judge cannot ordinarily be called upon as matter of right by either party to instruct the jury as to the consequences which may flow from their verdict, yet he may in his discretion so instruct them.

Judgment of General Term, affirming judgment for defendant, affirmed.

Opinion by Earl, J. All con

cur.

In an action to recover for services in printing bonds ordered by defendant, where the defense was that defendant was only an agent, defendant testified that he called at plaintiff's office and procured samples and was told that S., one of the partners, since deceased, would call on him about it and that S. did call. He was then asked what S. said and whether he and S. conversed about bonds of another railroad subsequent

ly delivered by plaintiff's firm. Objections to these questions were sustained. Held, No error; that defendant was incompetent to answer the question.

This action was brought to recover of defendant for services in lithographing certain certain railroad bonds. Defendant set up in his answer that he ordered the work as agent of a railroad and not on his own account, which fact was known to plaintiffs. On the trial plaintiffs gave evidence showing that the work was ordered at their office by defendant and that the order for the work was given to the plaintiff M. and one of the employes of plaintiffs' firm. Defendant, as a witness on his own behalf, testified that he called at plaintiffs' office and procured samples of one of plaintiffs' employes and was informed that S., one of the partners, would call at his office and see him about it; that S. afterwards did call there. It appeared that S. died before the commencement of the action. Defendant was then asked: "What did S. say to you?" This was objected to on the part of plaintiff's

as being a conversation with a deceased partner, and the question was excluded. Defendant then testified that his brother was present and heard the conversation at his office between him and S. on two occasions before he gave the first order for 1800 bonds; that afterwards S. again called on him at his office and had another conHis counsel versation with him. asked him whether he and S. then conversed in relation to the 1200 bonds of another railroad subsequently delivered to defendant by the firm of which S. was a member. No explanation was then made of the aim of this question and what use could be made of the answer. The question was objected to and the objection sustained.

David McClure, for applt. Frederick Swarts, for respts. Held, No error; that this question, if material, called for a conversation of a deceased partner to which the witness was apparently incompetent to testify; hence at that stage of the case, in the absence of any further offer or of any explanation, the court was justified in excluding the question.

Defendant's brother was afterwards called by him as a witness, and he gave evidence, somewhat confirmed by another witness, showing that S. called at defendant's office several times in reference to the bonds, and there had conversations with defendant in which it was made known to him that defendant was simply acting for the railroad company and was in no case to be personally liable