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on the security of the coffee thus purchased, borrowed from the defendants Waterbury & Force $2,300, and then transferred the coffee to them. July 27th following, the Houstons failed, making a general assignment. On the next day, July 28th, the plaintiffs commenced this action, by means of which the coffee was taken from the possession of Waterbury & Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually deposited in the warehouse of E. B. Bartlett & Co., and had not as yet been weighed. The action came on for trial before Mr. Justice BARTLETT and a jury, and resulted in the direction of a verdict by the

would have been presented. It may now be| K. Huston & Co., of Philadelphia. The deregarded as settled that the jury, in cases of fendants Huston on the 24th day of July, upthis character, may take into account the pain and suffering that may reasonably be expected in the future, provided evidence has been given tending to show that the person injured will probably experience further pain as a result of the injury. Filer v. Railroad Co., 49 N. Y. 42; Turner v. City of Newburgh, 109 N. Y. 301, 309, 16 N. E. Rep. 344; Griswold v. Railroad Co., 44 Hun, 236, affirmed 21 N. E. Rep. 726, opinion by FINCH, J. This is upon the principle that adequate compensation may be recovered in a single action for all the natural consequences of the negligent act. So, where it is reasonably certain that medical attention will be needed in the future, the expense thereof may be consid-court in favor of the defendants. ered by the jury in assessing the damages, as William W. Goodrich, for appellants. Edit is a direct and natural result of the defend-ward N. Shepard, for respondents. ant's negligence. The judgment should be affirmed, with costs. All concur, except BROWN, J., not sitting.

(116 N. Y. 371)

PARKER, J., (after stating the facts as above.) The appellants contend that the title to the coffee in controversy did not pass to J. K. Huston & Co., and that therefore the transfer to Waterbury & Force dil not vest in

SANGER et al. v. WATERBURY et al.1 (Court of Appeals of New York, Second Divis-them the title or the possession. The sale

ion. Oct. 22, 1889.)
SALE.

is admitted; but as the coffee had to be weighed, in order to ascertain the amount to Upon a sale on credit of a certain number of be paid to plaintiffs, it is insisted that the bags of coffee by the pound out of a larger number title remained in the plaintiffs. In aid of this stored in a warehouse, where the bags are so contention is invoked the rule that where marked as to be easily identified, and nothing re-something remains to be done by the seller to mains to be done except to weigh the coffee in order to determine the price, title vests immediately in the purchaser.

ascertain the identity, quantity, or quality of the article sold, or to put it in the condition Appeal from a judgment of the general which the contract requires, the title remains term of the supreme court, second depart- in the vendor until the condition be complied ment, affirming a judgment in favor of de- with. The appellants cite a number of aufendants for $2,648.85, entered upon a ver- thorities which, they urge, so apply this rule dict directed by the court. The action is the as to make it applicable to the case here prepossessory action of replevin brought to re-sented. It is said in Groat v. Gile, 51 N. Y. cover the possession of 238 bags of coffee 431, that this "rule has reference to a sale, identified and described in the complaint as not of specific property clearly ascertained, follows: "89 bags, marked No. 6, H. L. B. & but of such as is to be separated from a larger Co., D. B. & Co.; 32 bags, marked No. 8, H. quantity, and is necessary to be identified beL. B. & Co., D. B. & Co.; 14 bags, marked fore it is susceptible of delivery. The rule or No. 10, H. L. B. & Co., D. B. & Co.; 29 bags, principle does not apply where the number marked No. 12, H. L. B. & Co., D. B. & Co.: of the particular articles sold is to be ascer68 bags, marked No. 14, H. L. B. & Co., D. tained for the sole purpose of ascertaining the B. & Co.; 6 bags, marked No. 16, H. L. B. & total value thereof at certain specified rates. Co., D. B. & Co." The complaint alleged, or a designated fixed price." This distincand the answer admitted, "that on or about tion is recognized and enforced in Crofoot v. the 22d day of July, 1885, the said goods Bennett, 2 N. Y. 258; Kimberly v. Patchin, * * * were sold by the plaintiffs to the 19 N. Y. 330; Bradley v. Wheeler, 44 N. Y. defendants John K. Huston and James E. 495. In Crofoot v. Bennett, supra, the court Huston, * * * on the credit of sixty says: "If the goods sold are clearly identified, days for one-half thereof, and of ninety days then, although it may be necessary to numfor the balance thereof." Upon the trial one ber, weigh, or measure them, in order to asof the plaintiffs testified that the goods seized certain what would be the price of the whole by the sheriff in this action were on the 22d at a rate agreed upon between the parties, the day of July sold by him to the firm of J. K. title will pass." This expression of the court Huston & Co. It appears that the plaintiffs, is cited with approval in Burrows v. Whitaon the 6th day of July, 1885, purchased of ker, 71 N. Y. 291, in which case, after a full Boulton, Bliss & Dallett 605 bags of coffee, discussion of the authorities, the court apthen stored with E. B. Bartlett & Co. On proved the rule as laid down in Groat v. the 22d day of July the plaintiffs sold the 238 Gile, supra. Now applying that rule to the bags of coffee herein before referred to to J. facts in this case, nothing remained to be done in order to identify the goods sold; because while, out of a larger lot, 238 bags of

1 Affirming 42 Hun, 657, mem.

coffee were disposed of, nevertheless, as ap-It does not appear that there is any collection pears from the complaint and the testimony of the surface water from the surrounding adduced, the bags were so marked that there territory other than that collected upon the was no difficulty about identifying the par- surface of the road-bed, or that the amount ticular bags sold. There remained, there- of water flowing in the gutter in front of the fore, nothing to be done except to weigh the plaintiff's premises is any greater than that coffee for the purpose of ascertaining the pur- which naturally flowed there. It is conceded chase price; for whether the 238 bags of cof- that the sewer is sufficient to carry off all the fee should prove to weigh more or less than water which accumulates and runs in the the parties anticipated was not of any con- street, and it is not claimed but that the sequence. Whatever the weight should prove grate is of sufficient size to permit all of the to be, for that number of pounds J. K. Hus- water to pass through it when it is not ton & Co. had agreed to pay. This case, clogged with leaves or other material. It therefore, does not come within the rule con- appears from the evidence that in case the tended for by the appellants, but, instead, is grate should be removed it would leave an governed by the principle enunciated in Groat open hole from the surface of the street into v. Gile. Having reached the conclusion that the sewer, which would endanger the safety the title and the possession passed to J. K. of the traveling public. Under these cir Huston & Co., it becomes unnecessary to cumstances, it appears to us that the trial consider any of the other questions discussed, court properly held that the village authorifor the plaintiffs are without title upon which ties should not be restrained from maintainto found the right to maintain an action. ing the grate. It is possible that some other The judgment appealed from should be af- device might be arranged so that the water firmed. All concur. would enter the sewer from the curb under the sidewalk, instead of from the bottom of the gutter; but in that case, if there was no grate maintained, the leaves and other ma

(116 N. Y. 224)

PAINE v. TRUSTEES, ETC., OF DELHI.1 (Court of Appeals of New York, Second Divis-terial would be carried directly into the

ion. Oct. 8, 1889.)

DEFECTIVE SEWERS-INJUNCTION.

Injunction will not lie to restrain the trustees of a village from maintaining an iron grating at the opening of a sewer, used to convey the surface water away from the road-bed of a street, on the ground that the accumulation of sticks and leaves at such grating obstructs the flow of water, and causes it to overflow on plaintiff's land.

Appeal from supreme court, general term, fourth department.

This was an action for an injunction brought by George H. Paine against the trustees and inhabitants of the village of Delhi. Judgment was rendered for defendants, which was affirmed by the general term. Plaintiff appeals.

O. W. Smith, for appellant. George A. Fisher, for respondents.

HAIGHT, J. This action was brought to restrain the defendants from obstructing the water in the village ditch, and to prevent it from damming up, and overflowing onto the plaintiff's premises. The plaintiff is the owner of a lot on the southerly side of Main street, on which there is a building used as a printing-office. On an adjoining lot there is a sewer constructed from the street to the river, from which the surface water flowing in the gutters of the street, is conveyed to the river. Over the entrance to the sewer in the gutter of the street is placed an iron grate, through which the water enters the sewer. Sometimes, in cases of unusual storms or floods, the leaves and other material gather upon the grate, and obstruct the passage of the water through it to the ditch, so that the ditch fills with water, which overflows the sidewalk onto the plaintiff's premises. 1Affirming 40 Hun, 635, mem.

sewer, and might serve to dam up and clog the flow of the water, and thus cause the same difficulty complained of. The grate is the device in general use in our principal cities and villages to prevent sticks, leaves, and other material from entering the sewers, and we are not prepared to hold that it should be disapproved of and removed. Some allowance must be made for the judgment and discretion of the municipal officers. In the case of Urquhart v. City of Ogdensburg, 91 N. Y. 67-71, MILLER, J., in delivering the opinion of the court, says that "the rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained; but when the discretion has been exercised, and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such a duty an action by the party injured will lie." The case of Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. Rep. 321, we do not understand to be in conflict with the rule as here stated. In that case the surface water had been collected from a large territory, embracing nearly 2,300 acres of land which had not theretofore been drained over the plaintiff's land, involving the principle which has uniformly been invoked to prohibit corporations from constructing sewers whereby the surface water of a large territory, which did not naturally flow in that direction, was gathered into a body, and thus precipitated upon the

premises of an individual, occasioning dam- | tract, by which the plaintiffs were to do polage thereto. See, also, Mills v. City of Brook-ishing, staining, and rubbing on the woodlyn, 32 N. Y. 489; Lynch v. Mayor, etc., 76 N. Y. 60.

work of two houses owned by the defendant, and also for certain extra work upon the same houses. The defendant denied that the contract had been performed by the plaintiffs, or that anything was due them from him. The contract provided that the work was to be done "in the best workman-like manner, under the supervision of William Packard, superintendent, and to the entire satisfaction of William Noble, the party of the first part, owner." The court.submitted the case to the jury under a general charge to which no exception was taken, and which, in substance, instructed the jury that, if the work under the contract was done in the best workman-like manner, the plaintiffs would be entitled to recover, and that the defendant could not defeat such recovery by unreasonably and in bad faith saying the work was not done to his satisfaction; that, while the contract provided that it was to be done to the owner's satisfaction, that clause must be regarded as qualified by the other provisions of the contract, that it was to be

As we have seen, in this case there was no collection of surface water other than from the road-bed. The entrance into the sewer was constructed with a grate, in accordance with the judgment and discretion of the officers of the village; and, even though we were of the opinion some better device might have been adopted, the municipality would not be liable for their errors of judgment. But we do not understand it to be seriously contended that the grate over the entrance to the sewer is improper, or that the damages arise from the maintaining of such grate. The trouble arises from permitting the grate to be covered with leaves and other debris, which prevents the free passage of the water through it. The duty devolves upon the municipality of keeping its streets and gutters in repair, and this duty is ministerial, and not judicial, and, if there is a neglect to perform it, an action will lie for damages for the injury sustained. But no such action is pending for our determination. The plain-done in the best workman-like manner, and tiff, instead of bringing an action for damages sustained on the ground of negligence in not keeping the grate or entrance to the sewer open and free for the entrance of the water, has brought an action in equity for an injunction, in which there is no charge of negligence in not keeping the sewer in proper repair. The authorities upon which the appellant chiefly relies were actions for damages on account of negligence in not keeping the sewer in repair. We are consequently of the opinion that the judgment should be affirmed, with costs. All concur, except FOL-quested the court to instruct the jury that LETT, C. J., not sitting.

(116 N. Y. 230)

DOLL et al. v. NOBLE.1

that was the test of a correct and full performance of the contract. The evidence was conflicting upon the question whether the work under the contract was done in a workmanlike manner, and also as to the extra work. The jury, however, found a verdict for the full amount claimed, and we must assume/ that the result was correct, unless the court erred in its construction of the written agreement. While no exception was taken to the charge of the court to which I have referred, the defendant, at the close of the charge, re

the defendant was entitled, under the contract, to have plaintiffs do the work "to his entire satisfaction, before the plaintiffs became entitled to the final payment." To which the court responded: "I so charge,

(Court of Appeals of New York, Second Divis- subject to the qualification which I have al

ion. Oct. 8, 1889.) CONTRACTS-PERFORMANCE.

In an action for work done under a contract which provides that the work should be done in the best workman-like manner, and to the entire satisfaction of defendant, the terms of the contract are fulfilled if it appears that the work was

done in the best workman-like manner, and defendant cannot defeat a recovery by unreasonably and in bad faith saying the work was not done to his satisfaction.

Appeal from supreme court, general term, first department.

This was an action by Charles Doll and others against William Noble to recover for certain work done by them. A judgment A judgment for the plaintiffs having been affirmed by the general term, the defendant appeals. John H. V. Arnold, for appellant. Samuel Untermeyer, for respondents.

BROWN, J. This action was brought to recover a balance due upon a written con

1Affirming 41 Hun, 645, mem.

ready made. He must not attempt to defeat
a just claim by arbitrarily and unreasonably
saying he is not satisfied. The work must
be done according to the contract."
ruling the defendant excepted, and this ex-
ception presents the principal question in

the case.

To this

The ruling of the court was correct. The question was directly presented in the case of Bank v. Mayor, 63 N. Y. 336. In that case the certificate of the "water purveyor" that the stipulations of the contract were performed was made a condition precedent to payment. completed and performed, but the "water purveyor" declined to give a certificate. The plaintiff was defeated in the supreme court, but in this court the judgment was reversed; the court saying: "It was necessary for them [the plaintiffs] either to prove upon the trial the making of such certificate by him, or to show that it was refused unreasonably, or in bad faith. It was unreasonable to refuse it

It was conceded that the contract was

funds had been exhausted in other necessary repairs; and to reject evidence tending to establish

that fact is not error.

3. The extent to which immaterial matters may be inquired into upon cross-examination rests in the sound discretion of the court in which the witness is being examined.

4. In an action against a municipal corporation to charge it with liability to one injured by a defective sidewalk, it cannot, as matter of law, be charged with notice of the defect that caused the injury, from the fact, merely, that it knew of the existence of a general defect in the same walk. To constitute knowledge of the general defect notice of the particular one, they must at least be of concomitant of the former. the same general character, or the latter a usual A notice given to a property owner by a municipal corporation to repair a sidewalk is not, as matter of law, notice of any other defect than the one stated in the notice, or of one so related to it that the existence of the latter, according to the usual course of affairs, may be reasonably inferred from the former. (Syllabus by the Court.)

Error to circuit court, Richland county.

if it ought, in the contemplation of the contract, to have been given. In such contemplation, it ought thus to have been given, when in very fact, and beyond all pretense of dispute, the state of things existed to which the water purveyor was to certify, to-wit, the full completion of the contract in each and every one of its stipulations." That, when the parties have made the certificate of a third person of the performance of the work a condition precedent to payment, such certificate must be produced, or its absence explained, is the general rule. Smith V. Briggs, 3 Denio, 74. But all the authorities recognize the exception that, when such certificate is refused in bad faith or unreasonably, the plaintiff may recover upon proof of performance of the contract. Smith v. Brady, 17 N. Y. 176; Thomas v. Fleury, 26 N. Y. 26; Wyckoff v. Meyers, 44 N. Y. 145: Nolan v. Whitney, 88 N. Y 648; U. S. v. Robe This action was brought by defendant in son, 9 Pet. 328; Smith v. Wright, 4 Hun, error in the Richland court of common pleas 652; Whiteman v. Mayor, 21 Hun, 121. to recover damages that she avers were susThe reason for the exception applies with tained by her from a fall caused by an unsafe much greater force where the work is to be and dangerous sidewalk within the village of done to the satisfaction of the party himself Shelby, plaintiff in error. She averred in her than to cases where the certificate of a third petition that the sidewalk in question had party is required. A party cannot insist on been improperly constructed, and, by reason a condition precedent when he has himself of the negligence of the village, had become defeated a strict performance. Butler v. unsafe and dangerous, because the boards Tucker, 24 Wend. 449. In this case Judge composing it, which were laid crosswise, had BRONSON Well says: "The defendant does become loose, of all which the village had nonot set up that part of the covenant which tice, and by reason whereof she was violentrequires the work to be done to his satisfac-ly thrown down and injured. The village, tion. * * * As to that, it would proba- by answer, put in issue, among other things, bly be enough for the plaintiff to aver that the work was in all other respects completed in pursuance of the contract; for, if the defendant was not satisfied with such a performance, it would be his own fault." See, also, Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. Rep. 749. None of the cases cited by the appellant hold a different rule. Many of them recognize the exception I have pointed out, and those that do not are easily distinguishable from the case under consideration. It is not deemed necessary to refer to them more specifically. We have examined the other question raised by the exception, but none of them are of sufficient importance to require discussion. The judgment should be affirmed, with costs. All concur.

(46 Ohio St. 549)
INCORPORATED VILLAGE OF SHELBY v.
CLAGETT.

the averments of negligence and notice, and averred that the defect which caused the injury was latent and unknown to it, although it had used due diligence in the premises; which averments of the answer were put in issue by the reply. The plaintiff below recovered a judgment in the court of common pleas, which, upon error to the circuit court, was affirmed, and thereupon this proceeding was brought by the village to reverse both judgments. The other facts necessary to understand the questions decided will be found in the opinion.

T. H. Wiggins, for plaintiff in error. Skiles & Skiles, for defendant in error.

BRADBURY, J., (after stating the facts as above.) It appears from the bill of exceptions taken in the court of common pleas, that Mrs. Clagett, accompanied by another lady, was passing along the sidewalk in question, when her companion stepped on a loose board, which tipped up, tripped and threw Mrs. Clagett. The walk was made by placing four 3x4 oak stringers on the ground,

(Supreme Court of Ohio. Oct. 29, 1889.) DEFECTIVE SIDEWALKS-OPINION EVIDENCE. 1. A non-professional witness, who has had opportunities to observe a sick or injured person, may give in evidence his opinion of the condition of such person, in respect of his being weak and help-lengthways with the walk, and nailing less or not, and of the degree of suffering which narrow boards across them. The two cenhe endured, provided such opinion is founded on ter stringers had settled more than the two his own observation of the person to whom his evi- outside ones, causing the walk to become dence relates, and is limited to the time that the person was under the observation of the witness. slightly dished, and at each of two places a 2. In an action against a municipal corpora- board had been nailed over the walk to cover tion to charge it with liability to one injured by a holes that had formed in it. The walk had defective sidewalk, the cost of repairing which been examined by the street commissioner a could have been charged upon the adjoining property, it is no defense to show that the corporate short time before the accident, and a report

made by him to the council that it needed repairs, and the council had notified the adjacent owner to repair it by June 6th, 11 days before the accident occurred, the notice stating that, if the owner did not repair by that day, the village would make the repairs at its expense; but neither the report of the street commissioner to the council, nor the notice given by it to repair, state the kind of repairs needed, and none were made up to the time of the accident. The plaintiff below strenuously contended that the sidewalk was in bad condition generally, and needed general repairs, and gave evidence tending to support that view. On the other hand, the defendant below insisted that the walk was in good condition generally; that its street commissioner had shortly before the accident examined it, and discovered no loose boards or other defect that tended to make it unsafe; and that there was nothing in the appearance of the walk up to the time of the accident to indicate that any of the boards had become loose, or that the walk was at all dangerous; and that the only defects in 'the walk were that it had become slightly dished, owing to the settling of the two middle stringers, and that at two places a board had been nailed over holes; and evidence was introduced tending to support this contention. The plaintiff in error insists that the great weight of the testimony supports its view of the condition of the sidewalk, and asked this court to review the case on the facts. This has been done by the circuit court, and we discover nothing in the case requiring us to depart from the rule that exempts this court from passing upon the weight of the evidence.

pain, so readily and clearly understood by those about the sufferer, cannot be reproduced so as to impress the jury as they did the witness; neither can those appearances that accompany and establish the fact of weakness and helplessness. Therefore, to say that those about a sick or injured person shall not be permitted to give in evidence their opinion, based on observation, of the condition or suffering of the patient, is to exclude from the jury the only efficient proof of those facts. The rule admitting such evidence is one of necessity. Where the fact to be established must "be derived from a series of instances passing under the observation" of witnesses, "which yet they never could detail to the jury," opinion will be received. McKee v. Nelson, 4 Cow. 357. See The Clipper v. Logan, 18 Ohio, 396, where this rule in 4 Cow. is quoted with approval. See, also, Stewart v. State, 19 Ohio, 307; Yahn v. City of Ottumwa, 22 Amer. Law Reg. 644, and note on page 653, 15 N. W. Rep. 257; 7 Amer. & Eng. Cyclop. Law, 492; Parker v. Steam-Boat Co., 109 Mass. 449. And when it is remembered that the intelligence, fairness, opportunities to observe, and other circumstances affecting the credibility of the witness, can be called out by a crossexamination, there remains but little solid objection to the reception of this class of testimony.

Counsel for the village offered in evidence the ordinance fixing the rate of taxation for the village for the year 1882, for the purpose of showing, in connection with evidence of the value of the taxable property within its limits, the amount of revenue collected for street purposes, and that all of it had been expended in other necessary repairs. This Defendant below excepted to certain rul- evidence was rejected by the common pleas ings of the court of common pleas, at the court, and exceptions taken. Counsel contrial, in admitting and rejecting evidence. tends this was error, because the evidence The evidence admitted over the objection of tended to rebut the charge of negligence in the defendant below related either to the con- omitting to repair the defect complained of; dition of Mrs. Clagett's health, or to the pain and cites in support of his contention the cases she suffered; and, as far as we deem necessa- of Rooney v. Inhabitants of Randolph, 128 ry to examine it, was given by non-profes- Mass. 580, and Monk v. New Utrecht, 104 sional witnesses, and partakes of the nature N. Y. 552, 11 N. E. Rep. 268. These cases of opinion, more than of fact. For instance, arose under statutes of their respective states, Mrs. Webber testified that "she [Mrs. Clag- and in each case the work was to be done at ett] was in a very helpless condition, never the public cost; and if it be conceded that in leaving her bed, except to have her bed made this state, when repairs are to be made at the each day, so far as I know;" and again: "Her expense of a municipal corporation, a want suffering was very intense, and often seemed of funds would be a defense against a liabilimore than she could bear.' These state-ty for damages for an injury caused by a negments, except that portion of the first one re-lect to repair, yet the principle could not be specting her "never leaving her bed," etc., applied to the present case, for the village are, in a strict sense, opinions or inferences could have discharged its duty in this respect drawn from what the witness had observed while in attendance about the person of Mrs. Clagett. Now, the witness could portray to the jury only in a faint and imperfect way the scene in the sick chamber as it presented itself to her, and upon which she based her statements that Mrs. Clagett "was very helpless, * * *" and "suffered intensely. The tones of voice, the expressions of the face, and the movements of the limbs, which are the natural language of

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by requiring the owner of the adjacent property to make the necessary repairs, or, upon his default, caused them to be made, and charge the cost upon that property; and the united credit of the village and the adjacent property would, no doubt, be sufficient for that purpose, though the village treasury was, at the time, empty. The evidence was therefore immaterial, and for that reason properly rejected.

During the cross-examination of the plain

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