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Appellant contends that his motion for judgment on the special verdict should have been sustained, because (1) the findings on certain pivotal questions are mere conclusions, and not findings of inferential or ultimate facts; and (2) that the verdict contains such facts as show either a want of power or authority in appellee to make the contract, or which show that it was impossible for appellee to make the contract. In construing a special verdict so as to apply the law to the facts found, the court should look to the entire verdict, and not to isolated or detached parts of it. It may be truthfully said that some of the facts stated are mere conclusions, and that there are some contradictions in the verdict, as appellant contends; but these do not impair the verdict to such an extent that it will not support a judgment, if from the whole verdict the apparent contradictions can be reconciled, and, after eliminating what seems to be mere conclusions, there still remain sufficient inferential and ultimate facts, within the issues, upon which the judgment can rest. This proposition is so firmly fixed by the authorities that their citation and further discussion is useless. We have already set out in this opinion all material and essential facts as found, and we need not refer to them again in detail. We think, when considered as a whole, there are no fatal contradictions in the verdict, and, after eliminating everything that might be construed as conclusions, there still remains every essential fact requisite to the support of the judgment. It is found that the warrants were procured through fraud and false representations by appellant and Boyd; that, though they were issued in the name of Boyd, they were, in fact, the property of appellant; that appellant made Boyd his agent to negotiate them; that he represented that they were valid and binding obligations of the township, that they would be paid when due, and that, if they were not so paid, he would pay them himself. He guarantied their genuineness. Appellee relied upon his representations, purchased the warrants in good faith, and paid to him therefor nearly $3,000. The verdict further finds that appellee was a corporation, with a president and a board of directors: that the president appointed an executive committee for 1894, who had authority to act for the corporation during that year; that the negotiations between appellant, which resulted in the sale and purchase of the warrants, were conducted, on behalf of the appellee, by and through such executive committee; that the money paid for said warrants was paid pursuant to the authority and order of the board of directors of the appellee; that the warrants purchased were renewal warrants, which were issued for the purpose of paying off and canceling war

rants then outstanding; that they were 'ssued at the request of appellant, on his promise and agreement that he would have them cashed, and take up said outstanding warrants, and surrender them, and, failing to do so, he would return said renewal warrants; that he did not pay or take up such outstanding warrants, and did not return said renewal warrants. It is further found that, when said warrants became due, they were presented for payment, which was refused; that a demand was then made upon appellant for payment, which was also refused; and that there was no consideration whatever for said renewal warrants. It is the duty of a jury, in returning a special verdict, to find inferential or ultimate facts, and not evidentiary facts. Upon the résumé of the facts found, as we have just stated them, it seems to us that they are amply sufficient to support a judgment.

It is contended by appellant that it was a mere conclusion for the jury to find that the issuing of the renewal warrants was procured by fraud, etc., as found by the answer to interrogatory No. 29. The alleged fraud of appellant was a material fact charged, and appellee had the burden of proving it. The rule seems to be fairly established in this jurisdiction that, where fraud is an issuable fact, it is the duty of the jury to find fraud as an ultimate fact, and not the badges of fraud. Lockwood v. Harding, 79 Ind. 129; Morris v. Stern, 80 Ind. 227; Elston v. Castor, 101 Ind. 426; Caldwell v. Boyd, 109 Ind. 447, 9 N. E. 912; Stix v. Sadler, 109 Ind. 254, 9 N. E. 905; Jarvis v. Banta, 83 Ind. 528. This the jury did in a plain, unequivocal manner. We fail to find sufficient infirmities in the verdict to warrant a reversal of the judgment. On the contrary, the verdict, taken and considered as a whole, is remarkably clear, plain, and explicit. Courts are slow to lend their aid to those who have perpetrated frauds and grievous wrongs, to the injury of others, which frauds and wrongs have resulted to the material benefit of such wrongdoer, so that they may escape their just deserts, and will not do so unless, by so doing, it would prove a reproach to the law, and do violence to equity. As the questions arising under the motion for a new trial have been fully considered in discussing other questions, we need not notice them further.

Appellant's contention that the court erred in submitting certain interrogatories to the jury cannot be maintained. The question is properly presented by bill of exceptions, but, after a careful consideration of the interrogatories complained of, we are clearly of the opinion that there is no reversible error in the ruling of the trial court thereon. The judgment is right under the facts, and a correct conclusion reached. Judgment affirmed.

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1. An exception to a group of findings of fact made by the court upon a trial without a jury, unsupported by a case containing the evidence, is worthless for the purpose of raising any question for review.

2. A general exception to "the conclusions of law found" by the court on a trial without a jury-there being several such conclusions-is insufficient to raise any question for review.

3. An exception to the refusal of a trial court to find conclusions requested by the excepting party-such requests not being contained in the record-raises no question for review.

Appeal from supreme court, general term, Second department.

Action by John R. Drake against the New York Iron Mine and others. From a judgment of the general term (34 N. Y. Supp. 1005) affirming a judgment dismissing the complaint on the merits, plaintiff appeals. Dismissed.

Roger M. Sherman, for appellant. Frank E. Smith, for respondents.

GRAY, J. This action was brought by the plaintiff for the purpose of establishing and enforcing an equitable assignment of, or an implied trust and lien with respect to, a certain fund. The trial, which was, of course, by the court without a jury, resulted in a judgment for the defendant, dismissing the complaint upon the merits, and that judgment was affirmed at the general term. From that affirmance the plaintiff has appealed to this court.

The appeal is upon the judgment roll alone, and the record shows that the findings of fact and conclusions of law, constituting the decision by the trial court, were excepted to, after the entry of judgment, in the following manner, viz.: "The plaintiff herein excepts to the findings of fact found at the request of the defendants and numbered XXV., XXVI., XXXII., XXXIII., XXXVI., XXXVII., XXXVIII., XXXIX. He excepts to the conclusions of law found, and to the refusal to find each conclusion of law requested by the plaintiff." This notice of exceptions is quite unavailing to authorize this court to review any question upon which the appellant might desire to be heard. An appeal from a judgment presents only questions of law, and they must appear through exceptions to rulings. The exceptions in this case are in three classes, and are of a general nature. The first class relates to a group of findings of fact; but, inasmuch as no case has been made, containing the evidence, the exception is worthless. Its generality vitiates it, also, even if, under the contention of the appellant, some of the findings of fact referred to might be regarded as conclusions of law.

The second class is aimed at "the conclu

50 N.E.-50

sions of law found." It has been repeatedly held in this court that a general exception of that nature is insufficient to raise any question for review. Thompson v. Hazard, 120 N. Y. 634, 24 N. E. 278; Ward v. Craig, 87 N. Y. 55; Wheeler v. Billings, 38 N. Y. 263; Newell v. Doty, 33 N. Y. 83. The cases are all to the effect that an exception, in order to be of avail in invoking our power of review, must be specific in pointing out the error in a ruling by the referee, or by the court, where the trial is without a jury. That seems to be in plain accordance with those requirements of the Code which provide, upon the trial of an issue of fact by a referee, or by the court without a jury, for the taking of an exception to a ruling upon a question of law, after the cause is finally submitted, by filing a notice of the exception in the clerk's office, etc. Code Civ. Proc. 994. What is thereby contemplated is, not a general exception to the rulings, but “an exception to a ruling." The present case furnishes a good illustration of the untenability of a general exception; for, in the five conclusions of law, some of the rulings were clearly correct, within the appellant's argument. The court is not required to search through the case to find support for the appellant's general contention that the judgment is erroneous. It is not called upon to exercise its jurisdiction upon the review of a case, unless the question or questions of law are specifically pointed out by appropriate exceptions to the rulings made upon the trial, which define the error or errors relied upon to reverse the judgment.

The third class of exceptions referred to in the notice has to do with the refusal of the trial court to find conclusions of law requested by the plaintiff. It is sufficient to say with respect to that that no such requests are to be found in this record.

Nothing is presented for our review by the appellant's exceptions, and the appeal must be dismissed, with costs. All concur. Appeal dismissed.

GLENN v. ROSSLER et al. (Court of Appeals of New York. June 7, 1898.)

CONTRACT TO SELL LAND-CONSTRUCTION-INTENT OF PARTIES-DEPENDENT COVENANTS.

1. Upon a contract for the sale of land, in which the purchase price is payable by installments, and a deed is to be given after certain installments have been paid, the question whether the covenants to pay the installments and to give the deed are concurrent and dependent, and the price cannot be recovered without a tender of the deed, or are independent, depends upon the intention of the parties as gathered from the whole contract.

2. Defendants agreed to sell certain land to plaintiff for $138,347, of which plaintiff was to pay $26,000 in installments, the last of which was payable on October 1st; and the contract provided that defendants "shall, after the payments mentioned herein are fully made, * execute and deliver

a good and suffi

cient warranty deed and a tax and title search, * and at the time deed to said premises is executed" plaintiff "agrees to execute a bond and mortgage" for the balance of the purchase money. Held, that the covenants to pay the last installment and to deliver the deed were dependent, and defendants were not entitled to require the payment of the price without tendering a deed and a good title. Appeal from supreme court, general term, Fifth department.

Action by James S. Glenn against Charles Rossler and Richard R. Ditzell. From a judgment of the general term (34 N. Y. Supp. 608) affirming a judgment on a verdict, defendants appeal. Affirmed.

While the action as originally commenced included other purposes, it was finally treated simply as an action at law by the vendee of real property to recover the payments of purchase money made to the vendor. The property which was the subject of the sale consisted of about 125 acres of land located in the town of Tonawanda, Erie county, N. Y. On March 11, 1893, a contract was entered into between the defendants and the plaintiff by which the former agreed to sell the latter the premises mentioned for the price of $138,347, to be paid as follows: $1,- | 000 seven days from the date of the contract; $5,000 April 15, 1893; $10,000 July 1, 1893; $10,000 October 1, 1893,-with interest at the rate of 6 per cent. on all sums from time to time remaining unpaid, payable at the time of each payment. Then followed this provision: "The party of the first part shall, after the payments mentioned herein are fully made on this contract, at their own proper cost and expense, execute and deliver to the said party of the second part a good and sufficient warranty deed of said premises, and at the time deliver to the second party a tax and title search made by one of the guaranty search companies of the city of Buffalo, showing good and perfect title; and, at the time deed to said premises is executed and delivered by the first parties to the second party, the party of the second part agrees to execute and deliver to first parties a bond and mortgage for the sum of one hundred and twelve thousand two hundred and thirty-seven ($112,237) dollars, due and payable six years from October 1, 1892, with interest at the rate of 6 per cent. per annum, payable semiannually." The agreement contained a provision for the release of a portion of the premises from the lien of the mortgage upon certain payments being made, and then provided that the total price of the land was to be determined at the rate of $1,100 per acre, or a portion of an acre, the amount of which should be ascertained by an actual survey of the premises by a competent engineer.

The property was owned by Henry Landel in his lifetime, who left a will by which he devised it to his widow, Mary E. Landel, for her life, and upon her decease to his children in fee. He left eleven children, five

of whom were infants. The six adults quitclaimed their interest to their mother. Shortly before the death of Henry Landel, the defendants made an agreement with him to purchase the property, and paid $50 to apply thereon. After his death the defendants continued their negotiations for the premises with Mrs. Landel, and paid an additional sum of $1,450. A contract was drawn between them by which she agreed to convey the land for $1,000 an acre. That contract was in many respects similar to the contract in suit. When the latter was made, the defendants had no title to the premises and no interest in them, except under the contract with Mrs. Landel. While she was in a position to transfer six-elevenths of the property, the remaining five-elevenths she was unable to convey, and the title could only be obtained by proceedings for the sale of infant's real estate. Such proceedings were commenced, but were not concluded until long after this action was begun, and even then she failed to acquire the title to the five-elevenths owned by her infant children.

The plaintiff paid on his contract $1,000 March 17, 1893; $5,000 April 15, 1893; and $7,000 July 3, 1893. There was a subsequent agreement between the parties by which the payment of the remaining $3,000 due July 1st was postponed until October 1st of that year. October 1st was Sunday. On the preceding day the parties met and agreed that the contract should be performed on Monday. Upon that day they again met, and the plaintiff tendered to the defendants the sum of $17,330, which was the balance required to make up the sum of the payments due when a deed was to be delivered and a mortgage executed. When that tender was made, the defendants were unable to give the plaintiff title, and asked him to extend the time for the delivery of the deed. The plaintiff declined, and demanded a deed upon that day, which was not given. On the next day he demanded a return of the purchase price paid. The defendants refused to repay it, and several days after this action was commenced.

Frank R. Perkins, for appellants. Tracy C. Becker, for respondent.

MARTIN, J. (after stating the facts). That the defendants had no title to the premises, and were unable to convey them to the plaintiff when a deed was demanded, are undisputed. Whether the covenants in the agree ment in suit on one hand to pay, and on the other to give a deed, were concurrent and dependent so far as the payments to be made on the 1st of October were concerned, or whether they were independent, and the payment of the entire amount then due was a condition precedent to the right of the plaintiff to a conveyance of the property, or upon default to rescind the contract, is practically the only question in this case. The conten

tion of the appellants is that all the provisions of the contract relating to the payment of that portion of the consideration constituted independent covenants which the plaintiff was required to fully perform by paying the entire amount before he became entitled to a deed, and it was only within a reasonable time after such payments were made that the defendants were required to give him a conveyance of the property. As sustaining that contention, the plaintiff relies chiefly upon the language of the contract. It is to be observed that it, in terms, provides that, after the payments mentioned are fully made, the defendants shall execute and deliver a sufficient deed of the premises, and "at the time" deliver a tax and title search, and that "at the time" the plaintiff should execute and deliver a mortgage to the defendants. The appellants claim that this language should be construed as not requiring the delivery of the deed until a reasonable time after the payments were made, and, as sustaining that claim, they cite the cases of Morris v. Sliter, 1 Denio, 59; Britannia Co. v. Zingsen, 48 N. Y. 247; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130; and Loud V. Water Co., 153 U. S. 564, 14 Sup. Ct. 928. The language in the contract under consideration in Morris v. Sliter was very similar to that contained in this agreement, and it was there held that the plaintiff was not required to convey at the time of receiving the last payment, but must do so within a reasonable time after it was made. That case has been several times cited in the authorities to which the appellants refer, and in those particular cases a similar doctrine has been held. These authorities seem to some extent, at least, to sustain the contention of the appellants. But, upon an examination of the cases, it will be observed that in each case the decision was based upon the ground that it was the intention of the parties that the payment should precede the giving of the deed. The intention of the parties, when properly ascertained, must doubtless control in this case as in others involving the construction of written contracts. Moreover, in many of the subsequent cases, a principle adverse to that contended for by the appellants has been applied. Thus, in Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362, an executory contract for the sale of real estate was under consideration. There the vendee covenanted to pay the purchase money in installments, and the contract provided that, upon receiving a part of the consideration named, the vendor should execute and deliver a deed. It was held that the covenants for payments which were due before the time of the conveyance were independent, but that after the time of conveyance the payment and conveyance became dependent and concurrent acts, and that an action was not maintainable to recover a part of the purchase price without proof of a tender of the conveyance before suit brought. Grant v. Johnson, 5 N. Y. 247,

is to the effect that a covenant in such a contract which goes only to a part of the consideration is not necessarily independent; nor is it conclusive in this respect that the consideration is divisible in its own nature, or that a part of it has been received; nor will the circumstance that one or more covenants in an agreement are independent render others so, but the dependence or independence of such covenants is determined by the order of time in which, by the terms and meaning of the contract, their performance is to be required. In Beecher v. Conradt, 13 N. Y. 108, which involved the construction of a contract for the sale of land, the purchase price was payable in installments, and it was held that, when the last installment became due, the payment of the whole of the unpaid purchase price and the conveyance of the land became dependent acts. In James v. Burchell, 82 N. Y. 108, a contract for the sale of real property contained a covenant for the erection of houses thereon, and provided that, upon the price being paid either in cash or the bonds of the vendee secured by mortgages on the premises, the plaintiff should convey, and it was held that the covenants were dependent, and the execution of the mortgages or payment was to be simultaneous with the giving of the deed.

While an examination displays a want of harmony in the authorities upon this question when particular cases are examined and compared, yet it is quite obvious that they all recognize the principle that the intention of the parties is to control in determining the question of the dependence or independence of the covenants in such contracts. In the language of Lord Mansfield in Kingston v. Preston, 2 Doug. 690: "The dependence or independence of covenants was to be collected from the evident sense and meaning of the parties, and that, however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance." Hence the real question to be determined in this case, upon a reading of the entire contract between the parties, is whether it was their intention that the payments which were due October 1st and the delivery of the deed were to be simultaneous and concurrent acts. The rule, as stated by Thompson, J., in Bank v. Hagner, 1 Pet. 455, 464, is that, "in contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. A different construction would, in many cases, lead to the greatest injustice, and a purchaser might have payment of the consideration money enforced upon him, and yet be disabled from procuring the property for which he paid it." An application of these principles renders it quite evident that although a literal reading of a portion of the agreement may tend to sustain the contention of the appellants, still, when the whole agreement is read and

No

properly construed, the payments due October 1st and the giving of the deed were intended to be dependent and concurrent acts. The plain inference to be drawn from all its provisions is that the deed was to be executed and delivered at the time of the payment of the amount due October 1st. fair reading of it would justify the conclusion that the payment of the entire consideration then due, amounting to many thousands of dollars, was to precede the transfer of the title. We think the trial court properly decided this case, and that the judgment should be affirmed, with costs. All concur. Judgment affirmed.

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COURT OF APPEALS-CERTIFIED QUESTION-BrookLYN BRIDGE-POWER OF TRUSTEES.

1. A question certified to the court of appeals by an appellate division as arising upon an appeal will not be decided by the former court if no facts are disclosed in the record which show that it arose in the case. Grannan v. Racing Ass'n, 47 N. E. 896, 153 N. Y. 449, and Baxter v. McDonnell, 48 N. E. 816, 154 N. Y. 432, followed.

2. Under Laws 1897, c. 663, § 4, which empowers the trustees of the New York and Brooklyn Bridge to prepare such plans and specifications for the operation of cars upon the bridge as they shall deem best adapted to promote the public comfort and convenience, and provides that, except as otherwise provided by the trustees, the plans and specifications shall be in substantial conformity with those recommended by a board of expert engineers, the trustees have power to make plans and specifications which depart substantially from those recommended by the engineers; and such power is not affected by section 598 of the charter of the city of New York, declaring that the passageway of the New York and Brooklyn Bridge set apart for foot passengers shall remain free and open at all times.

Appeal from supreme court, appellate division, First department.

Action by William R. Hearst against John L. Shea, commissioner of bridges of the city of New York, and others. From an order of the appellate division (49 N. Y. Supp. 49) reversing an order of the special term continuing an injunction pending the action, plaintiff appeals. Affirmed.

The injunction was originally granted by Mr. Justice Giegerich, restraining the trustees of the New York and Brooklyn Bridge from further prosecuting the work of erecting or laying loops or tracks for the use of electric trolley railways across the passageway for foot travelers, which was in progress at the New York terminus. The grounds alleged in the complaint for relief by injunction were that the defendants were about to or were tearing up a portion of the roadway upon the bridge, to erect four loops or tracks to be used by electric trolley passenger cars;

such tracks were to be erected on grade

across the passageway used by pedestrians; that the tracks were being laid in pursuance of an agreement with certain electric railway companies; that, by the agreement between such companies and the trustees of the bridge, subways were to be constructed under such loops or tracks for ingress or egress of passengers crossing other than by trolley cars; that the trustees were intending to omit the construction of such subways, compelling passengers to cross upon such loops or tracks at grade; that, if built without the subways, it would endanger the lives of those passing over the tracks, to the injury, detriment, and loss of the taxpayers and residents of the cities of New York and Brooklyn; that the trustees were required by law to keep and maintain the bridge as a public highway, to render travel thereon safe; and that, unless restrained from continuing such work in that manner, it would result in waste and injury to the bridge, and in a menace to the lives of the inhabitants, for which there would be no adequate remedy at law. The relief demanded is that the trustees and other defendants be restrained from further prosecuting the work in the manner stated in the complaint. Thus the whole theory of the complaint, and practically the only illegality complained of, is the omission or threatened omission of the subways under the tracks or loops upon the passageway for pedestrians. It is not alleged or claimed that the laying of the tracks or loops upon the bridge is illegal, nor that the law authorizing it is for any reason invalid. The right to enjoin the trustees from continuing the work upon the bridge is based solely upon the ground that the trustees intend to build the loops or tracks across the passageway, without any subway under them for the safety of pedestrians. The special term, however, seems to have continued the injunction upon the ground that the trustees could only build, or permit the railroad companies to build, loops or tracks in substantial conformity with the plans rec ommended by the board of experts referred to in chapter 663 of the Laws of 1897, and that the trustees could only change the manner of construction in minor details.

The statute adverted to, so far as material, is as follows: Section 1 authorizes the trustees to abolish all fares upon the railways of said bridge, except as afterwards provided. Section 2, in effect, declares that the trustees may continue to maintain and operate the present railroad, and charge fares for the carriage of passengers, but not in excess of the present rate. Section 3 authorizes the trustees to contract with any surface or elevated railroad operating its roads either in the city of New York or Brooklyn, permitting its or their carriage of passengers across the bridge, but without any additional charge for fare, and with authority in the trustees to charge the corporation for each car crossing the bridge. Then follows section 4,

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