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Order of General Term, reversing order of Special Term, reversed, and order of Special Term affirmed. Opinion by Miller, J. All concur, except Folger, J., absent.

CONVERSION.

PURCHASER.

FIDE

BONA
PRACTICE.

N. Y. COURT OF APPEALS.

proceed to sell under his execution, This action was brought by S, and the purchaser will have the plaintiff's testator, against defendright to impeach the conveyance in ant as sheriff, to recover damages. an action at law to recover the for the alleged conversion of certair premises. 18 N. Y. 369, 375. He furniture. Defendant took the may, but is not bound to fill a cred-goods in question upon the requisitor's bill to set aside the convey-ition of H. Bros., in a replevin proance. 15 Abb. N. S., 168; 65 N. ceeding against one E., who had Y., 30; 74 id., 437. procured the furniture fraudulently. The furniture when taken by defendant was in the house occupied by E., but from which he was at the time temporarily absent. Plaintiff's proof tended to show that S. was in possession. Defendant was admitted by some person therein. There was upon the affidavit an indorsement giving defendant the same right to take the property as H. Bros. would have had. Upon the trial plaintiff produced, as the source of his title, a bill of sale executed by E. & wife, which recited a consideration. No proof of a consideration, independent of the recital in the instrument, was given. Defendant established by the admission of plaintiff on the trial, and by other evidence, the fraud of E. in obtaining the goods, and it was shown by the wife of E. that no consideration was paid by plaintiff at the time the bill of sale was executed. And it appeared that the consideration, if any, was a prior indebtedness of E. to S. Defendant's counsel, at the conclusion of the evidence, moved to dismiss the complaint, whereupon plaintiff's counsel asked to go to the jury on the question of plaintiff's possession of the property when it was taken. The court refused to submit the question

Stevens, exrx., et al, applts. v Brennan, sheriff, respt.

Decided Dec. 16, 1879.

In an action for conversion of goods taken by a sheriff in replevin proceedings against a third person, a fraudulent vendee, where it appeared that plaintiff claimed title under a bill of sale from such third person, but was Dot a bona fide purchaser, Held, That the

question as to his possession at the time of the taking was not important, and that the court properly refused to submit it to the jury. A transfer of goods by a fraudulent purchaser, as security for, or in payment of, a precedent debt, does not make the transferee a bona fide purchaser, so as to enable him to hold the goods against the original vendor. In a suit by the true owner to recover the goods against a person who claims under the

fraudulent vendee, the burden is upon the party claiming such title of proving that he is a purchaser in good faith and for value. A general objection to questions asked a witness applies only to the materiality of the facts sought to be proved, and not to the competency of the witness to testify upon the subject.

Vol. 9.-No. 14.*

to the jury, and dismissed the complaint.

John E. Burrill, for applt.
H. W. Bookstaver, for respt.

Held, Untenable; that the general objection could only be considered Held, no error; that the question as applying to the competency or in whose possession the goods were materiality of the facts sought to be when taken, as the case stood, was proved, and not to the competency not important; that H. Bros. or of the witness to testify upon the the sheriff had a right to take them subject; non constat, if the objection unless S. was a bona fide purchaser had been put on that ground, the for value; that if the recital of fact would have been proved by a consideration in the bill of sale other witnesses. was any evidence thereof as between S. and H. Bros, or the sheriff, the evidence given by the wife of E. destroyed any presumption arising from the recital, and a verdict that Opinion by Andrews J., All conthere was no new contemporaneous cur, except Folger and Rapallo, consideration would have been jus- JJ. absent.

tified.

A transfer of goods by a fraudulent purchaser, as security for or in payment of a precedent debt, does not make the transferee a bona fide purchaser, so as to enable him to hold the goods against the original vendor. There must be a fresh consideration at the time of the trans

fer to confer a good title as against
the true owner.
13 Wend., 570; 49
N. Y., 286.

In a suit by the true owner to recover the goods against a person who claims title under the fraudulent vendee, the burden is upon the party claiming such title of proving that he is a purchaser in good faith and for value.

Judgment of General Term, overruling plaintiff's exceptions, and directing judgment in defendant's favor, affirmed.

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This action was brought upon a promissory note made by defendant, who was editor of the Chicago Republican, a newspaper owned by a Plaintiff's counsel on the trial corporation, and in which defendinterposed a general objection to ant had been given stock to induce questions put to the wife of E., as to him to become editor. Defendant whether any money was paid by S. testified that the paper was out of when the bill of sale was given. No funds, and A., the publisher, who was ground of objection was specified. the general manager, and had charge It is now claimed that she was in- of its finances, went to Springfield competent to testify on the point to see W., plaintiff's president, both under section 399 of the old Code. of whom were stockholders, and

had established the paper. A. re- his first letter, dated March 17, 1868, turned and informed the defendant he gave a history of the notes subthat they had concluded to levy an stantially as above stated, and said assessment upon the stock, and the Republican Co. had settled one wanted him to pay his share, and note and that they were bound to that they agreed to furnish the settle the one held by plaintiff. money with a pledge of the stock. The answer to this was not proIt was also represented to, and un- duced. On March 24th defendant derstood by defendant, that W. had wrote that he did not wish to be paid his subscription to the stock sued for nothing, and if sued had in full; that there was to be an ad-" no recourse but to sue the Repubditional assessment upon all the lican Company and its individual stock, and that both W. and B. had stockholders," and referred to W., agreed to, and were to pay their as- plaintiff's president, as one of them, sessment. The note in suit and and offered to write to him or others another were made payable at plain- as advised. On Oct., 8, 1868, detiff's bank, because W., as defend- fendant wrote stating that he had ant testified, was the bank. W. tes- written to W. &. B. and other promtified that he owned a majority of inent stockholders that he should the stock. Under these circum- have to sue them if plaintiff sued stances, and by reason of the repre- him, as they were individually lisentations to defendant, the note in able. Oct. 9th defendant wrote to suit was given to A. to be forwarded W. that plaintiff had notified him of to plaintiff to raise the money. The the intention to sue him on the proof showed that W. had neither note, and stated that if he was sued paid his assessment nor fully paid he would be compelled to bring a for his stock. It was also proved suit in the U. S. Circuit Court that, when defendant's separation against the company and its stockfrom the corporation was agreed holders. A letter of plaintiff's cashupon at a meeting of all the stock-ier was introduced, dated July 8, holders, he proposed that the other 1869, which stated that plaintiff was stockholders should pay these notes unable to get B. or the Republican and at the same time pay him a Co. to settle, and proposed to save large sum of money, and defendant expense, and that if defendant would assign them the stock as a will sue the Co. for the performcondition of his giving up his con- ance of the contract in paying the tract. The stockholders thereupon note, plaintiff would divide the exagreed to assume the payment of penses of the suit with him, and the notes; defendant surrendered that if this proposition suited, it his stock, and was relieved from any would avoid the necessity of comobligation to pay such notes. It appeared that defendant, upon being advised that a claim was made against him upon the note, had a correspondence with plaintiff. In

mencing a suit upon the note. The
court directed a verdict for plaintiff.

Willard Bartlett, for applt.
Charles E. Emolt, for respt.
Held, error; that the letter of

plaintiff's cashier of July 8, 1869, although written some time after defendant's letters, if construed with them, might have been construed as an acceptance of the defendant's proposal, and the lapse of time between it and the others left a question of fact for the jury to determine whether it was in response to defendant's letters, and it was for the jury to decide, under the circumstances, whether there was not an entire acceptance of the full proposition of the defendant to sue both the company and the stockholders. The defendant was not bound to ask the court to submit the question to the jury.

While it is the province of the court to construe contracts, where the meaning is obscure and depends upon facts aliunde in connection with the written language, very much must be left to the jury. Phil. on Ev. (C. & H. Notes), 1420; 17 Barb., 551; 11 Wheat, 59; 8 Conn.,

to V., the company's medical examiner, with a request to take the application, which he accordingly did. In an action on the policy granted thereon, letters from C. to V., requesting the latter to interest himself in taking applications, and stating the compensation therefor, were put in evidence, and also envelopes enclosing letters from C. and V. purporting to come from defendant's office, on the backs of some of which C. was designated as general agent. Held, that the conceded fact that C. was agent, with the other circumstances proved, were sufficient to cast upon defendant the burden of showing the real facts as to V.'s agency, and upon its failure to do so to justify an inference against defendant.

If the insured answers the questions in the application truly, in the absence of fraud and collusion, he is absolved from responsibility for any errors or mistakes the insurer's agent may make in writing down such answers, and the insurer is estopped from denying their truth.

Affirming S. C., 7 W. Dig., 494.

This was an action upon a policy of insurance issued by defendant upon the life of F., plaintiff's intestate. It is reported upon a former appeal in 67 N. Y., 500. A material point upon this appeal is whether Judgment of General Term, af- the evidence was sufficient to justify firming judgment on verdict for the submission to the jury of the plaintiff, reversed and new trial question whether one V. is to be granted.

122.

Opinion by Miller, J. All concur, except Andrews and Earl, JJ., dissenting, and Folger, J., absent.

LIFE INSURANCE.

PEL.

regarded as defendant's agent to take and receive the application for insurance, so as to make defendant chargeable with his acts and omissions in performing that duty. It was not disputed that V. was deESTOP-fendant's authorized medical exam

N. Y. COURT OF APPEALS.

Flynn et al., admrs., respts., v. The Equitable Life Ass. Soc. of U. S., applt.

Decided Nov. 18, 1879.

iner, and that he made the medical examination upon which the policy in suit was issued. He was never appointed by defendant agent to solicit or receive applications. It appeared that he received the blank application from one C., who re

Defendant's agent, C., sent a blank application quested him to take the application.

C. was not produced as a witness by
defendant, and no reason was shown
why he was not.

Charles B. Alexander, for applt.
Robert Payne, for respts.

C. was an agent of defendant, but his power to appoint sub-agents or delegate his own powers was disputed. He is recognized as agent in the policy. It provided that the policy should not be binding until Held, That the conceded fact that delivered by defendant's "cashier or C. was defendant's agent, with the by its agent, A. B. Cory." A cer- other circumstances proved, were tificate was attached to the policy, sufficient to cast the burden upon signed by C., that he had received defendant of showing the real facts, the premiums and delivered the and upon its failure to do so to juspolicy-endorsed upon it, under the tify an inference against defendant. head of "notice to the assured," it Defendant claimed that there was is stated that the duties of agents a breach of warranty by the insured are simply the reception and trans- in several of the answers to quesmission of policies and premiums tions in the application. These under instructions of the defendant. answers were made warranties by Some letters were put in evidence the terms of the policy; some of the from C. to V., in which he approves answers were not strictly true. It of the manner of filling up the appli- seems that the questions, which cation of the insured, and requests were most in regard to the physical him, in substance, to interest him- condition of the insured, were read self in taking other applications, over to the insured by V., who had and specifies his compensation. been for years and was then his Nothing is said expressly about ap- family physician, and that V., upon pointing V. agent. An envelope was receiving the answers of the insured, also introduced, in which was en- wrote them into the application, closed a letter from C. to V., on the and that the insured did not see back of which is printed a direction them. V.'s evidence tended to show to the postmaster to return it to de- that the insured stated substantially fendant if not called for, and also the truth in respect to his physical another envelope sent by C. to V. condition and the diseases and ailto use, on the back of which was ments he had had, and that V. lithographed C's name, who was wrote the answers as he thought described, in printing, as defend- was right, and that he did it in good ant's general agent. V. at first tes- faith. tified that he was paid for taking the application, but a receipted bill was produced which was for the medical examination only. The letters written by C. to V. purported to come from defendant's principal office in New York, and the letters from V. in blank envelopes sent out by him were addressed to him at that office.

Held, That if the insured answered the questions truly, in the absence of fraud or collusion, he was absolved from responsibility for any errors or mistakes defendant's agent may have made in writing down the answers, and defendant is estopped from denying their truth. 18 N. Y., 392; 36 id., 550; 3 Keyes, 557;

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