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 le, 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, unler 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 conclu-: growing 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 and received for the entire period the benefit road was restored to the company.

of a faithful performance on the part of the The questions at issue concern only the other contracting party. It necessarily atplaintiff, who represents the party of the first fected the running of plaintiff's trains and part in the agreement, and the defendant, the the management of the business for which it Long Island Railroad Company. The alleged was incorporated. As summarized by the breach consisted, in substance, of the failure learned counsel for the appellant, “it gave of the defendant's receiver, and its own sub- rights to another corporation (the plaintiff] sequent refusal, to run the trains of the Long to use the tracks and depots of the Long IslIsland Railroad Company over a certain por- and Railroad Company, and provided for a tion of the plaintiff's road, as provided by the division of earnings;” and it is impossible to contract, and their omission to furnish depot suppose that these things were suffered or enfacilities, as also therein provided. Issue joyed without full corporate knowledge of the was taken upon these allegations and a trial contract obligations by which they were prohad. At the close of the evidence the defend- vided for. Moreover, the defendant received ant's counsel moved the trial judge to dis- a pecuniary benefit under the contract, upon miss the complaint on the ground that the the assumption that the contract was valid. evidence was insufficient to show a contract if they intended to disavow it, it was their between the plaintiff and defendant. The duty to be active in so doing, and not remain motion was denied, and the case submitted willfully passive, in order to profit by an to the jury upon both issues. Their verdict omission or mistake on the part of their own was for the plaintiff, and it has been ap- officers, and which they might have preventproved both by the trial judge in denying the ed. The appellant argues that the object of defendant's motion for a new trial, and by the parties might have been attained by two the general term in affirming the order and contracts as well as by one, and therefore the the judgment entered upon the verdict. defendant is at liberty to adopt so much as

The defendant's contention is that the con- makes for its benefit, and reject the rest. tract was not binding upon it. It was, as is It may be that two separate contracts could conceded, executed in the name of the cor- have been framed in such manner as to meet poration by its president and secretary. It the views of the parties, and in that case one was sealed with its corporate seal, affixed by might have been rejected at the party's risk, its proper officers. It was therefore pre- and the other performed; but only one was sumptively valid, and was binding upon the prepared, and that recites that, “in considcorporation until evidence to the contrary eration of the mutual covenants and agreeshould be produced. If the seal was obtained ments” therein “contained,” the parties have fraudulently, or the officers acted without au- agreed and do agree as therein expressed. thority, either in executing the contract in The provisions are reciprocal. One party their official character or in affixing the seal, can not say, “I have got all I bargained for, it lay with the defendant to establish those and, without liability, repudiate the mutual facts. The evidence adduced for that pur- obligation which enabled it to do so, and pose was from the secretary. He testified formed the consideration of the bargain.


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 conpons 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 further ing to take payment of the bonds and the insaid that upon that point the evidence was terest thereon to August 1st, and to surrender all one way, and conclusive in the highest the bonds and unmatured coupons; but he degree. We find no legal merit in either of did not present for payment, and was un. these points.

willing to surrender, the past-due coupons. The other questions raised by the appel- Subsequently the defendant paid the bonds lant have been examined. So far as they re- and the coupons falling dụe on and prior quire particular observation, the remarks of to July 1st, and after January 1, 1884, the the general term are sufficient. We find holder transferred the coupons falling due none which requires other discussion. Upon January 1st to the plaintiff, who then comthe assumption that the contract bound the menced this action to recover the amount due defendant, the plaintiff's way was clear, and thereon. At the trial term the court held his right to a recovery certain. The reason- that the tender of payment made in July, ableness of the amount actually given to him 1883, was sufficient to stop the running of is not for us to determine. The judgment interest upon the bonds, and that the plainappealed from should be affirmed. All con- tiff could only recover the interest for the

month of July. Upon appeal by the plaintiff

to the general term, the court reversed the (115 N. Y. 297)

judgment, holding that the defendant had BAILEY 0. BUCHANAN COUNTY.

not the right at the time of such tender, as a (Court of Appeals of New York. Oct. 8, 1889.) condition of payment, to demand the surrender

PAYMENT_TENDER_COUPON BONDS. of the coupons then past due, and that there

An offer of payment of a coupon bond, with fore the tender was not good, and that the interest to date, in pursuance of a right reserved, plaintiff was entitled to recover the full is a valid tender, and will stop the running of interest on the bond, though a condition annexed to amount of interest falling due January 1st, the offer was the surrender of the bond and all its as if no tender had been made. The plaintiff coupons then in the hands of its holder.

took the coupons after their maturity, and Appeal from superior court of New York with notice of the facts affecting them in the city, general term.

hands of his assignor, and hence his position Action by Francis D. Bailey against the for the maintenance of this action is no better county of Buchanan, in the state of Missouri. than would have been occupied by his asJudgment was rendered for plaintiff for signor if he had brought this action. $83.33 by special term, and was reversed and The sole question for our determination, new trial ordered by general term. Defend- then, is whether the defendant could, as a ant appeals.

condition of its tender and payment, in July, James W. Perry, for appellant. Henry 1883, rightfully demand the surrender of the Parsons, for respondent.

bond and all the coupons then held by the as

signor 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 true that past-due coupons payable to bearer,

learned general term fell into error. It is time time prior to the 1st day of July, 1883, the when detached from the bonds, are for many

purposes independent, separate instruments. | Reversing 22 Jones & S., 237.

They may be negotiated, and may be sued

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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- tbea deed by the assignee before it has been re

a ington v. Butler, 14 Wall. 289; Clark v. Iowa City, 20 Wall. 583; Amy v. Dubuque,

Appeal from supreme court, general term, 98 U. S. 470; Evertson v. Bank, 66 N. Y. 14; second department. McClelland v. Railroad Co., 110 N. Y. 469, Action by David A. Scott against Harrison 18 N. E. Rep. 237, But the coupons, never- Mills. Judgment was rendered at special theless, always have some relation to the term for plaintiff, ani affirmed by general bonds. Their force and effect and character term. Defendant appeals. may be determined by reference to the bonds. E. Countryman, for appellant. M. H. They are secured by the same mortgage, and, Hirschberg, for respondent. 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 sion of the property; and was subscribed and by a written instrument has the right, as the acknowledged, both by the assignor and ascondition of tender and payment, to demand signee, before its record in the proper office, the surrender of the instrument which is the which was on the day after its execution. evidence of his debt; and thus, if the cou-Certain creditors of the assignor thereafter pons which had matured on the 1st of July, caused a levy to be made upon the property 1883, had remained attached to the bonds, the assigned, and the sheriff has been sued for an defendant would have had the undeniable unlawful taking of the goods. His levy has right to demand as a condition of their pay- been adjudged wrongful, and judgment has ment the surrender of the bonds and all the gone against him for the value of the propcoupons. It could not have been obliged to erty so seized. make payment of a part of its debt, leaving a The levy is sought to be justified upon the portion thereof unpaid, and to be discharged ground that the signature of the assignee to by an independent transaction. It is a rea- the assignment was not such an assent in sonable and consistent rule to hold that the writing as the statute requires. The critidefendant at the time of its tender owed the cism is that the assent manifested by the sigplaintiff's assignor upon each bond but one nature of the assignee is a matter of inferdebt, and that was the amount of the bond, ence merely, while the statute requires it to with the interest thereon. Its obligation be expressed in writing. The objection is would have been precisely the same if no cou- extremely narrow and technical, and not juspons had been executed. It had the right to tified by the language of the statute. That tender the payment of the entire debt, and to does not require that a formal assent in any demand the surrender of all the securities by particular words or language shall be written which it was evidenced. The tender was out in the instrument, or outside of it, but therefore sufficient, and stopped the running that the assent of the assignee subscribed by of interest. The order of the general term him “shall appear” in writing embraced in should be reversed, and judgment of the trial or at the end of or indorsed upon the assignterm affirmed, with costs. All concur. ment, unless manifested by a separate paper.

When the assignee subscribes the assignment

his assent to its terms does “appear.” It is (115 N. Y. 376) SCOTT 0, MILLS.1

not matter of inference, but an expressed as

sent, which appears upon the face of the paper. (Court of Appeals of New York. Oct. 8, 1889.) If a formal acceptance had been written out ASSIGNMENT FOR BENEFIT OF CREDITORS.

on a separate paper his signature to that Under Laws N. Y. 1877, c. 466, § 2, and Laws 1888, c. 294, $ 2, requiring that “the assent of the paper would be an assent to its terms, and so assignee, subscribed and acknowledged by him, his signature to the assignment is an assent shall appear in writing embraced in or at the end to its terms; and when those terms provide of or indorsed upon the assignment before the same that the property shall be assigned to him is recorded, and, if separate from the assignment, in trust, to be disposed of by him in a certain shall be duly acknowledged,” when the assignment

way, he assents by his signature to the duty 1 Affirming 45 Hun, 263.

and the trust which the instrument imposes

upon him, and that assent is as clearly ex- court to modify the judgment by providing that pressed as if he had assented by a separate the receiver should pay the claim out of any funds

which are in, or may hereafter come into, his paper. The statute does not require such hands” as receiver. separate assent. It may be "embraced in "

Appeal from supreme court, general term, the assignment, and is embraced in it when

fifth department. the assignee appends his signature. In the

Sherman S. Rogers, for appellant. E.C. face of that he could not deny the acceptance

Sprague, for respondents. 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 asceiver, 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.

ich 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 time proper execution and acknowledgment, but I of the judgment in this action. That paydo agree with him in his further statementment, 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, (115 N. Y. 267)

or appointed by the court, to take an account WOODRUFF V. JEWETT et al.

of the moneys received and disbursed by the (Court of Appeals of New York. Oct. 8, 1889.) receiver during his receivership, or remain

JUDGMENT—AMENDMENT-RECEIVERS. ing in his hands at the expiration of his of

In an action against a receiver of a railway tice 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 funds in the receiver's possession at a certain time, thereon, to the end that a final decree might 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

There was no disclaim, whereupon final judgment was entered di- the time above stated. recting 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.

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 ment was first entered, and before its reverunder the foreclosure sale heretofore men- sal by the general term. The directions contioned. When the original judgment, which tained in that judgment were to be carried had been reversed by the general term, in out to the letter. In obedience to its comthis case, was affirmed by this court, and the mands, the special term, upon receiving the proceedings had been remitted to the supreme remittitur from this court, proceeded to court, a referee was appointed, pursuant to carry out such directions, and appointed a the provisions of that interlocutory judgment, referee, who found the facts upon the quesfor the purpose of ascertaining whether there tions which were referred to him, and upon were any funds in the hands of the receiver those facts the final judgment, in perfect acat the time of the foreclosure sale above cord with the directions of the interlocutory mentioned, applicable to the payment of judgment, has been entered, and we see no plaintiff's judgment. Upon the investigation reason at this time for changing or modifywhich followed the appointment of the ref- ing the directions of that final judgment. eree it was found that there was a sum suffi The claim that by reason of the discharge cient to pay the amount of the judgment in of the receiver between the time when the this case in the hands of the receiver at the interlocutory judgment was entered and the time just stated. No reasonable question time when it was affirmed by this court (alcan be made as to the correctness of that though at time of such discharge the judgfinding, and upon the coming in of the report ment was in full force) the modification was of the referee final judgment was entered in proper, we do not regard as an answer to the accordance with its terms, directing the re- claim of the plaintiff that the final judgment ceiver to pay the amount of the indebtedness should follow the interlocutory judgment to the plaintiff out of the money in his hands upon all the questions which had been at the time of the foreclosure sale, or there- affirmed by this court. It is said that the after, and applicable thereto. From that discharge of the receiver, even without nojudgment defendant appealed to the general tice to the plaintiff in this action, was a term, and the court modified the same by complete and valid discharge by a court providing that the receiver should pay the which had complete and full jurisdiction amount out of any funds “which are in, or over the subject-matter, and over the parmay hereafter come into, his hands” as re- ties, and that although it may have been ceiver, applicable to that purpose. 37 Hun, unfortunate for the plaintiff that he was not 205. The receiver, having already turned notified at the time that application was over all the funds in his hands to the pur- made for the final discharge of the receiver chaser at the foreclosure sale, and having in the foreclosure action, yet still that misbeen finally discharged from his trust by an fortune cannot change the character of the order of the court, such a modification of the order as made by the court, and that, under judgment amounts to a statement that the such circumstances, where the receiver had

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