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facilities the defendant agreed to pay thirty-that the contract was drafted in pursuance three and one-third per cent. of all moneys of negotiations between the two companies earned by it for the transportation of passen- and the draft was in "his office." An emergers between Long Island City and Brighton gency arose, which called for its completion, Beach, and thirty-five per cent. of all moneys and he, after consulting with Sharp, the earned by it for the transportation of passen- president, with him signed, sealed, and degers between Bushwick and Brighton Beach, livered it. "I expected," he ys, "to get a and certain other proportions for passengers ratification." Both of these officers were also between other stations. directors, and the witness says, "I intended It was also provided that "the party of the to call the board's attention to it, but forgot first part" (the Brooklyn, Flatbush & Coney it." The court committed no error in refusIsland Company) "shall begin to run trains ing to dismiss the complaint, or in refusing from Flatbush avenue to Brighton Beach, to charge the jury that the contract was not and the party of the second part" (the Long binding upon the company. Sharp, the Island Railroad Company) "from Long Island president, was not examined upon that point, City to Brighton Beach, on or before the 15th and whether the officers of the company did day of June in each year, and shall run every in fact exceed their authority, might have day thereafter, Sundays excepted, until the been, under the evidence, a question for the 1st day of October, at least twelve trains each jury. No request was made to submit it. way." Other payments were provided for, There was, however, abundant and conclugrowing out of these arrangements for the sive evidence that the contract was adopted use of each other's track; and it was agreed and ratified by the defendant in its corporate that full statements of the business done un-capacity. It was, as the secretary and counder the agreement should be given to each sel of the defendant testified, drafted in purparty by the other at stated intervals, and suance of negotiations had between the parthat the books of the several companies ties. It was acted upon by the defendant in should be open to the other's inspection. the management of its business. For one The receivership of the Long Island Rail-year the defendant complied with its terms, road terminated in October, 1881, and the road was restored to the company.

The questions at issue concern only the plaintiff, who represents the party of the first part in the agreement, and the defendant, the Long Island Railroad Company. The alleged breach consisted, in substance, of the failure of the defendant's receiver, and its own subsequent refusal, to run the trains of the Long Island Railroad Company over a certain portion of the plaintiff's road, as provided by the contract, and their omission to furnish depot facilities, as also therein provided. Issue was taken upon these allegations and a trial had. At the close of the evidence the defendant's counsel moved the trial judge to dismiss the complaint on the ground that the evidence was insufficient to show a contract between the plaintiff and defendant. The motion was denied, and the case submitted to the jury upon both issues. Their verdict was for the plaintiff, and it has been approved both by the trial judge in denying the defendant's motion for a new trial, and by the general term in affirming the order and the judgment entered upon the verdict.

The defendant's contention is that the contract was not binding upon it. It was, as is conceded, executed in the name of the corporation by its president and secretary. It was sealed with its corporate seal, affixed by its proper officers. It was therefore presumptively valid, and was binding upon the corporation until evidence to the contrary should be produced. If the seal was obtained fraudulently, or the officers acted without authority, either in executing the contract in their official character or in affixing the seal, it lay with the defendant to establish those facts. The evidence adduced for that purpose was from the secretary. He testified

and received for the entire period the benefit of a faithful performance on the part of the other contracting party. It necessarily affected the running of plaintiff's trains and the management of the business for which it was incorporated. As summarized by the learned counsel for the appellant, "it gave rights to another corporation [the plaintiff] to use the tracks and depots of the Long Island Railroad Company, and provided for a division of earnings;" and it is impossible to suppose that these things were suffered or enjoyed without full corporate knowledge of the contract obligations by which they were provided for. Moreover, the defendant received a pecuniary benefit under the contract, upon the assumption that the contract was valid. If they intended to disavow it, it was their duty to be active in so doing, and not remain willfully passive, in order to profit by an omission or mistake on the part of their own officers, and which they might have prevented. The appellant argues that the object of the parties might have been attained by two contracts as well as by one, and therefore the defendant is at liberty to adopt so much as makes for its benefit, and reject the rest. It may be that two separate contracts could have been framed in such manner as to meet the views of the parties, and in that case one might have been rejected at the party's risk, and the other performed; but only one was prepared, and that recites that, "in consideration of the mutual covenants and agreements" therein "contained," the parties have agreed and do agree as therein expressed. The provisions are reciprocal. can not say, "I have got all I bargained for," and, without liability, repudiate the mutual obligation which enabled it to do so, and formed the consideration of the bargain.

One party

One promise was the consideration for the plaintiff's assignee became the owner of 10 other, and together they constituted a bind- of such bonds, with the unmatured coupons ing agreement. If in fact the formal execu- thereto attached; and on the 1st day of July, tion of the contract was unauthorized, it is 1883, he detached the coupons falling due on plain the agreement was one the company and prior to that day, and presented them for had power to make, one which they intended payment, and they were not paid. Subseto make, supposed they had made, and which quently, on the 7th day of July, 1883, the dewith knowledge, or full means of knowledge, fendant duly exercised its option to redeem of its terms, they acquiesced in, and ratified the bonds, and in the same morth deposited by acting under it so long as it was profit- the money in the Bank of America for their able, and refusing to do so only when it payment, and notified him that the money seemed otherwise, but receiving the benefit was there for the payment of the bonds, and of it at all times. It is now argued that the the interest thereon to August 1st, and that question of ratification should have been it was ready to pay the bonds and all the inpassed upon by the jury. It is a sufficient terest to that date upon the surrender of the answer that no request was made to have it bonds and the coupons. The holder was willsubmitted to them; but it may be furthering to take payment of the bonds and the insaid that upon that point the evidence was all one way, and conclusive in the highest degree. We find no legal merit in either of these points.

The other questions raised by the appellant have been examined. So far as they require particular observation, the remarks of the general term are sufficient. We find none which requires other discussion. Upon the assumption that the contract bound the defendant, the plaintiff's way was clear, and his right to a recovery certain. The reasonableness of the amount actually given to him is not for us to determine. The judgment appealed from should be affirmed. All con

cur.

(115 N. Y. 297)

BAILEY v. BUCHANAN COUNTY. (Court of Appeals of New York. Oct. 8, 1889.)

PAYMENT-TENDER-COUPON BONDS.

An offer of payment of a coupon bond, with interest to date, in pursuance of a right reserved, is a valid tender, and will stop the running of interest on the bond, though a condition annexed to the offer was the surrender of the bond and all its coupons then in the hands of its holder.

Appeal from superior court of New York city, general term.

Action by Francis D. Bailey against the county of Buchanan, in the state of Missouri. Judgment was rendered for plaintiff for $83.33 by special term, and was reversed and new trial ordered by general term. Defendant appeals.

James W. Perry, for appellant. Henry Parsons, for respondent.

terest thereon to August 1st, and to surrender the bonds and unmatured coupons; but he did not present for payment, and was unwilling to surrender, the past-due coupons. Subsequently the defendant paid the bonds and the coupons falling due on and prior to July 1st, and after January 1, 1884, the holder transferred the coupons falling due January 1st to the plaintiff, who then commenced this action to recover the amount due thereon. At the trial term the court held that the tender of payment made in July, 1883, was sufficient to stop the running of interest upon the bonds, and that the plaintiff could only recover the interest for the month of July. Upon appeal by the plaintiff to the general term, the court reversed the judgment, holding that the defendant had not the right at the time of such tender, as a condition of payment, to demand the surrender of the coupons then past due, and that therefore the tender was not good, and that the plaintiff was entitled to recover the full amount of interest falling due January 1st, as if no tender had been made. The plaintiff took the coupons after their maturity, and with notice of the facts affecting them in the hands of his assignor, and hence his position for the maintenance of this action is no better than would have been occupied by his assignor if he had brought this action.

The sole question for our determination, then, is whether the defendant could, as a condition of its tender and payment, in July, 1883, rightfully demand the surrender of the bond and all the coupons then held by the assignor of the plaintiff. It was held at the EARL, J. The defendant, on the 1st day general term that the coupons past due and of July, 1869, made and issued a large num-detached from the bonds at the time of the ber of bonds, each for the payment to the St. tender were independent negotiable instruLouis & St. Joseph Railroad Company, or ments, and that the defendant therefore had bearer, of $1,000, on the 1st day of July, no right to demand their surrender for pay1889, with interest, payable semi-annually, ment as a condition of the payment of the at the rate of 10 per cent. per annum, on bonds, and that the tender was not good, bepresentation of the coupons thereto attached cause it was not an unqualified offer to pay at the Bank of America in the city of New the bonds and the interest thereon for the York, with the right, however, at the option month of July. We are of opinion that the of the defendant, to redeem the bonds at any learned general term fell into error. time after 10 years from their date. Some true that past-due coupons payable to bearer, time prior to the 1st day of July, 1883, the when detached from the bonds, are for many purposes independent, separate instruments. They may be negotiated, and may be sued

i 1 Reversing 22 Jones & S., 237.

It is

Appeal from supreme court, general term, second department.

Action by David A. Scott against Harrison Mills. Judgment was rendered at special term for plaintiff, an affirmed by general term. Defendant appeals.

E. Countryman, for appellant. M. H. Hirschberg, for respondent.

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upon by the holder without the production of is an indenture between the assignor and asthe bonds. Murray v. Lardner, 2 Wall. 110; signee, the subscription and acknowledgment of City v. Lamson, 9 Wall. 477; City of Lex-corded is a sufficient assent. the deed by the assignee before it has been reington v. Butler, 14 Wall. 289; Clark v. Iowa City, 20 Wall. 583; Amy v. Dubuque, 98 U. S. 470; Evertson v. Bank, 66 N. Y. 14; McClelland v. Railroad Co., 110 N. Y. 469, 18 N. E. Rep. 237. But the coupons, nevertheless, always have some relation to the bonds. Their force and effect and character may be determined by reference to the bonds. They are secured by the same mortgage, and, although unsealed, are specialties like the bonds, and are governed by the same stat- FINCH, J. The validity of the debtor's asute of limitations which is applicable to the signment is assailed on the sole ground that bonds. Until negotiated, or used in some the assent of the assignee was not manifested way, they serve no independent purpose; and in the manner now provided by law. The while they are in the hands of the holder statute requires that "the assent of the asthey remain mere incidents of the bonds, and signee, subscribed and acknowledged by him, have no greater or other force or effect than shall appear in writing embraced in or at the the stipulation for the payment of interest end of or indorsed upon the assignment becontained in the bonds; and while they re- fore the same is recorded, and, if separate main in the ownership and possession of the from the assignment, shall be duly acknowlowner and holder of the bonds it can make edged. Laws 1877, c. 466, § 2; Laws 1888, no difference whether they are attached to or c. 294, § 2. The assignment here in question detached from the bonds, as they are then was in the usual form, and was executed and mere evidence of the indebtedness for the in-delivered to the assignee on the 20th day of terest stipulated in the bonds. It is not dis-January, 1885, who thereupon took possesputed that one liable to pay money secured by a written instrument has the right, as the condition of tender and payment, to demand the surrender of the instrument which is the evidence of his debt; and thus, if the coupons which had matured on the 1st of July, 1883, had remained attached to the bonds, the defendant would have had the undeniable right to demand as a condition of their payment the surrender of the bonds and all the coupons. It could not have been obliged to make payment of a part of its debt, leaving a portion thereof unpaid, and to be discharged by an independent transaction. It is a reasonable and consistent rule to hold that the defendant at the time of its tender owed the plaintiff's assignor upon each bond but one debt, and that was the amount of the bond, with the interest thereon. Its obligation would have been precisely the same if no coupons had been executed. It had the right to tender the payment of the entire debt, and to demand the surrender of all the securities by which it was evidenced. The tender was therefore sufficient, and stopped the running of interest. The order of the general term should be reversed, and judgment of the trial term affirmed, with costs. All concur.

(115 N. Y. 376)

SCOTT v. MILLS.1 (Court of Appeals of New York. Oct. 8, 1889.)

ASSIGNMENT FOR BENEFIT OF CREDITORS. Under Laws N. Y. 1877, c. 466, § 2, and Laws 1888, c. 294, § 2, requiring that "the assent of the assignee, subscribed and acknowledged by him, shall appear in writing embraced in or at the end of or indorsed upon the assignment before the same is recorded, and, if separate from the assignment, shall be duly acknowledged, "when the assignment 1Affirming 45 Hun, 263.

sion of the property; and was subscribed and acknowledged, both by the assignor and assignee, before its record in the proper office, which was on the day after its execution. Certain creditors of the assignor thereafter caused a levy to be made upon the property assigned, and the sheriff has been sued for an unlawful taking of the goods. His levy has been adjudged wrongful, and judgment has gone against him for the value of the property so seized.

The levy is sought to be justified upon the ground that the signature of the assignee to the assignment was not such an assent in writing as the statute requires. The criticism is that the assent manifested by the signature of the assignee is a matter of inference merely, while the statute requires it to be expressed in writing. The objection is extremely narrow and technical, and not justified by the language of the statute. That does not require that a formal assent in any particular words or language shall be written out in the instrument, or outside of it, but that the assent of the assignee subscribed by him "shall appear" in writing embraced in or at the end of or indorsed upon the assignment, unless manifested by a separate paper. When the assignee subscribes the assignment his assent to its terms does "appear." not matter of inference, but an expressed assent, which appears upon the face of the paper. If a formal acceptance had been written out on a separate paper his signature to that paper would be an assent to its terms, and so his signature to the assignment is an assent to its terms; and when those terms provide that the property shall be assigned to him in trust, to be disposed of by him in a certain way, he assents by his signature to the duty and the trust which the instrument imposes

It is

court to modify the judgment by providing that the receiver should pay the claim out of any funds which are in, or may hereafter come into, his hands" as receiver.

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Appeal from supreme court, general term, fifth department.

Sprague, for respondents.
Sherman S. Rogers, for appellant. E. C.

upon him, and that assent is as clearly expressed as if he had assented by a separate paper. The statute does not require such separate assent. It may be "embraced in" the assignment, and is embraced in it when the assignee appends his signature. In the face of that he could not deny the acceptance of the trust, he could not say that he had not assented to the transfer of the property to PECKHAM, J. This action, which was himself for the purposes and upon the condi- brought by the plaintiff against the defendant tions of the deed, or assert that he never as receiver of the Erie Railway Company, agreed to accept the transfer. What more terminated in favor of the plaintiff, after a does the statute require? The assignment is trial before a court, whose decision was filed an indenture. It describes itself as such. April 28, 1879. Pursuant to that decision, It purports to be made, not by Lawson, the an interlocutory judgment in favor of the assignor, alone, but between him and the as- plaintiff was entered on the 25th of June, signee, and so explicitly declares that there 1879. Subsequently, and on the 28th day of is a contract on both sides,-acts done or to August, 1879, the interlocutory judgment be done and covenants to be performed by was modified by consent, so that it was deeach party. The indenture then goes on to termined by it that the defendant Jewett, as specify what these are. The assignor trans- receiver of the Erie Railway Company, under fers the property, but upon trusts which im- the several orders appointing him such repose duties and obligations towards the as-ceiver, should pay into the Metropolitan Nasignor and his creditors upon the assignee. tional Bank, of the city of New York, the The signatures of the two parties express interest due and unpaid upon the mortgage their assent to all that is contained in the in- bonds of the Erie & Genesee Valley Railroad strument, and therefore to an agreement to Company, maturing on the 1st day of July, do and perform each for himself the duties 1875, and thereafter maturing while he operand obligations which on the face of the paper ated the Erie & Genesee Valley Railroad, pertain to each respectively. I do not agree being until the 24th day of April, 1878, with | with the learned counsel for the appellant interest on the coupons attached to said bonds. that the design of the statute was to dispense during the period aforesaid, from the time with a delivery of the instrument after its they respectively became due until the timeproper execution and acknowledgment, but I of the judgment in this action. That paydo agree with him in his further statement ment, it was also adjudged by this interlocuthat the apparent object was to compel the tory judgment, was to be made from any parties to produce written evidence that funds which the receiver had received, or would prove of itself all the essential acts to which were in his hands as such receiver at a perfect and complete transfer of the prop- the time of the sale of the property of the erty to the assignee. All that was fully ac- Erie Railway Company under the forecloscomplished in the present case. The record ure, applicable to the payment thereof, with of the assignment was presumptive evidence the costs of the action. For the simple purof its delivery, and the assent of the parties pose of ascertaining what amount of funds. to all its terms was manifested by the form had come into the hands or under the control of the indenture and the subscription of both of the receiver at the time of this foreclosure parties to it. No other question is raised on sale, or had been in his hands during the conthis appeal. The judgment should be af- tinuance of his receivership, applicable to the firmed, with costs. All concur. payment of this interest, as determined by the judgment, it was referred to a referee, to be agreed on by the plaintiff and the receiver, or appointed by the court, to take an account of the moneys received and disbursed by the receiver during his receivership, or remaining in his hands at the expiration of his ofIn an action against a receiver of a railway fice as such receiver, and to report to the court company an interlocutory judgment was entered the testimony taken by him, with his opinion for plaintiff, providing that he be paid from any thereon, to the end that a final decree might funds in the receiver's possession at a certain time, and that a referee be appointed to ascertain the be then made. This so-called "interlocutory amount of such funds. While the judgment was judgment" determined finally and forever, in force, an order was made discharging the re-in case the judgment stood, that the receiver ceiver and ratifying his transfer of all the company's property, without notice to plaintiff. On of the Erie Railway Company was liable to affirmation of the judgment by the court of appeals the plaintiff for the judgment of interest upon the referee found sufficient assets in the receiver's the mortgage bonds above mentioned, during possession at the time specified to pay plaintiff's claim, whereupon final judgment was entered di- the time above stated. There was no disrecting the receiver to pay the same. Held, that pute as to the amount of such interest, and the final judgment was proper; that the discharge the only question not finally determined by of the receiver was no defense thereto; and that the judgment was the amount of moneys in it was error for the general term of the supreme the hands of the receiver at the time of the 'Reversing 37 Hun, 205.

(115 N. Y. 267)

WOODRUFF v. JEWETT et al. (Court of Appeals of New York. Oct. 8, 1889.) JUDGMENT-AMENDMENT-RECEIVERS.

foreclosure sale, under the action brought for

the purpose of foreclosing mortgages executed | receiver is bound to pay nothing, because it by the company. For the simple purpose of is claimed that he has nothing at this time, determining that question, a reference was and that he never can have anything as reordered. As to all other questions, as I have ceiver by which to pay such sum. said, the judgment was absolute and final. We think the modification of the judgment It thus remained until upon an appeal taken was erroneous, and that the final judgment by the receiver, and in October, 1881, the entered upon the report of the referee was judgment was reversed, and a new trial proper, and in appropriate language. The granted. Woodruff v. Railway Co., 25 Hun, interlocutory judgment, as I have said, abso246. From the order granting that new trial lutely determined the rights of the parties an appeal was taken by the plaintiff to this and the facts in this case, with the single excourt, and the order was reversed, and the ception of the question which was by it reinterlocutory judgment affirmed, and the pro-ferred for investigation to a referee. That ceedings remitted to the supreme court. 93 question was as to the amount of funds in N. Y. 609. While this interlocutory judg- the hands of the receiver at a certain time ment stood in full force and effect, adjudging then past, or which he may thereafter have the liability of the receiver to pay the claim received. Being thus a final judgment as to of the plaintiff, and substantially adjudging those matters which it did determine, a rethe amount of that claim, the receiver made view of that judgment by the general term an application in the suit brought to foreclose was had simply upon the record then existthe mortgages given by the Erie Railway Com-ing. Upon that record the general term repany for a final discharge upon his final ac- versed the judgment, and granted a new counting as such receiver. That application trial; but upon an appeal to this court, and was made without any notice to the plaintiff, upon absolutely the same record, this court who, as it is seen, was at that time a judg-reversed the order of the general term, and ment creditor of the receiver, with a valid affirmed the judgment of the special term. judgment, determining absolutely and finally The effect then was that those facts which his rights as against such receiver, in full had been determined by the interlocutory force and virtue. An order discharging the judgment became, by the reinstatement of receiver was made on the 30th of December, the judgment by this court, of the same ab1879, and ratified transfers of property al-solute nature that they were when that judgready made by the receiver to the purchaser under the foreclosure sale heretofore mentioned. When the original judgment, which had been reversed by the general term, in this case, was affirmed by this court, and the proceedings had been remitted to the supreme court, a referee was appointed, pursuant to the provisions of that interlocutory judgment, for the purpose of ascertaining whether there were any funds in the hands of the receiver at the time of the foreclosure sale above mentioned, applicable to the payment of plaintiff's judgment. Upon the investigation which followed the appointment of the referee it was found that there was a sum sufficient to pay the amount of the judgment in this case in the hands of the receiver at the time just stated. No reasonable question can be made as to the correctness of that finding, and upon the coming in of the report of the referee final judgment was entered in accordance with its terms, directing the receiver to pay the amount of the indebtedness to the plaintiff out of the money in his hands at the time of the foreclosure sale, or thereafter, and applicable thereto. From that judgment defendant appealed to the general term, and the court modified the same by providing that the receiver should pay the amount out of any funds "which are in, or may hereafter come into, his hands" as receiver, applicable to that purpose. 37 Hun, 205. The receiver, having already turned over all the funds in his hands to the purchaser at the foreclosure sale, and having been finally discharged from his trust by an order of the court, such a modification of the judgment amounts to a statement that the

ment was first entered, and before its reversal by the general term. The directions contained in that judgment were to be carried out to the letter. In obedience to its commands, the special term, upon receiving the remittitur from this court, proceeded to carry out such directions, and appointed a referee, who found the facts upon the questions which were referred to him, and upon those facts the final judgment, in perfect accord with the directions of the interlocutory judgment, has been entered, and we see no reason at this time for changing or modifying the directions of that final judgment.

The claim that by reason of the discharge of the receiver between the time when the interlocutory judgment was entered and the time when it was affirmed by this court (although at time of such discharge the judgment was in full force) the modification was proper, we do not regard as an answer to the claim of the plaintiff that the final judgment should follow the interlocutory judgment upon all the questions which had been affirmed by this court. It is said that the discharge of the receiver, even without notice to the plaintiff in this action, was a complete and valid discharge by a court which had complete and full jurisdiction over the subject-matter, and over the parties, and that although it may have been unfortunate for the plaintiff that he was not notified at the time that application was made for the final discharge of the receiver in the foreclosure action, yet still that misfortune cannot change the character of the order as made by the court, and that, under such circumstances, where the receiver had

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