for which sum, with costs, he directed judgment. M. M. Waters, for applt. H. C. Miner, for respt. Held, That, in the admission of the testimony given by the plaintiff, there was manifest error. That it was improper to permit the witness to give an aggregate estimate, grouping together labor of himself and his servants and employees, and also materials used in repairs, and fixing upon an average amount per year, or a gross amount for thirteen years. That these expenses should have been itemized by regular entries in the partnership books. That, although they were not so entered, the party would be allowed to prove the items and their amount. Still, the items of labor and materials should be proved, with reasonable certainty, before an allowance could be properly made for them. two stacks of hay for $190. Plaintiff then said, "The hay is yours," and defendant said, "Yes." The hay was in sight at the time. A few days afterwards defendant paid $25 to bind the contract. The hay was not removed, but soon after was burned with plaintiff's barn. In an action for the balance of the purchase price, Held, That the sale was void by the statute of frauds; that the payment called for by the statute to take a contract out of its operation must be made at the time of entering into it. Appeal from a judgment entered upon the report of a referee. The action was brought to recover $165, the balance claimed to be due from the defendant to the plaintiff on the sale and delivery to him by the plaintiff of two stacks of hay for the sum of $190. The defense interposed was the statute of frauds. The contract of sale was made early in April, 1873, by parol, the parties being near and in sight of the two stacks. The contract was to this effect: That the defendant should pay the plaintiff $190 for the hay, and if he should do well with it, then that he should pay the plaintiff $10 more. The plaintiff then said, "The hay is yours;" the defendant replied, "Yes." The plaintiff testified: "This is all that was said that night. this time the defendant was in the road, in his sleigh, about five or six rods from the stacks, and in sight of one of them. No part of the hay was taken away at this or any other time. The referee found that thereafter, viz: on the 10th day of the same month, the defendant paid to William T. Hallenbeck, respt., V. the plaintiff $25 upon such parol Francis Cochran, applt. That the evidence bore directly upon an important issue in the case, and must be presumed to have been influential with the referee. Judgment reversed; new trial granted; costs to abide the event; and reference discharged. Opinion by Bockes, J.; Learned, P. J., and Boardman, J, concurring. STATUTE OF FRAUDS. v. Decided April 8, 1880. Plaintiff and defendant entered into a parol contract, by which defendant was to purchase At contract, and with the purpose and intent to expressly bind such contract, and did make such payment in renewal and reaffirmation thereof. That on the night of the 20th of the DECLARATIONS OF AGENT. › same month of April, the plaintiff's N. Y. SUPREME COURT. GENERAL barn took fire, and the same, together with the said stacks of hay, was entirely consumed. The referee TERM. THIRD DEPT. Henry W. Winne et al., respts., v. Decided April 8, 1880. found, as matter of law, that the The Niagara Fire Ins. Co., applt. parol contract between the parties, and the payment of $25 thereon by the defendant, became a legal and binding contract between the parties, and the title to the hay was thereby vested in the defendant, and it was his property at the time of its destruction by fire. R. E. Andrews, for applt. Declarations of an agent can be received in evidence against his principal only when made at the time of the transaction to which they relate. Appeal by the defendant from a judgment entered upon the report of a referee. The action was brought upon an Held, That there was no such de- alleged agreement of the defendant livery and acceptance of the proper- to insure property of the plaintiffs. ty as was necessary to take the case Two questions were in issue and out of the statute of frauds. That litigated before the referee: 1st. there was nothing but words; and Whether the plaintiffs were aware words alone are not enough to sat- of the fact that Fredenburgh, the isfy the statute. agent, had no right to make the agreement sued on, or had sufficient notice of his want of authority, in that respect, to put them upon inquiry; and, 2d. Whether he did, in fact, make an absolute and consummated agreement for insurance with them. Upon these questions. That the payment called for by the statute of frauds, to rescue a contract from its operation, must be made at the time; that is, at the time of entering into it. That the payment in this case having been made at a time subsequent to the contract, and simply on the evidence was conflicting, and account of "that hay," or "towards very evenly balanced, the referee that hay," without any settlement deciding in favor of the plaintiffs. or re-affirmance of, or even reference to, the contract, save by implication, was insufficient to avoid the effect of the statute. Judgment reversed, new trial granted, and reference discharged. Opinion by Bockes J.; Learned, P.J., and Boardman, J., concurring. It was urged that a letter from Fredenburgh, the agent, written about four months after the happening of the occurrences in issue, was improperly admitted in evidence; and that in a case like this, where the evidence was so nearly balanced, the unsuccessful parties had a right to insist that it should stand before the referee unprejudiced by even the slightest evidence of an improper character by which the scales might be turned against it. John J. Linson, for applt. delivered, the receipt of such portion by defendants without objection, and without exreceiving such portion of the goods to the acting the balance, subjects the defendants payment of the amount due for the quantity which they receive. The defendants, however, may interpose as a defense such damages as they may show resulted from the failure of plaintiffs to deliver the balance contemplated by the contract. Action to recover the price of certair coal sold and delivered to the defendants on the 5th of January, 1877. The proofs show that the The rule of law applicable to the defendant ordered from plaintiff question presented is this: that the 150 tons of stove coal, 20 tons of declarations of an agent, in order egg coal, and 80 tons of nut coal, at to bind his principal, must form a a certain price. Of this amount, 80 part of the res gestre. Hence, that tons of nut coal was not delivered, they can be received in evidence the remaining amount was delivered against his principal only when to and accepted by the defendants, made at the time of the transaction but not paid for. in question. They must be made, not only during the continance of the agency, but in regard to the transaction depending at the very time. That the letter being incompetent evidence, and probably influential against the defendant, its admission was an error. Judgment reversed, new trial granted, costs to abide the event, and reference discharged. Opinion by Bockes, J., Learned, P. J., and Boardman, J.; concurring. Geo. H. Fletcher, for respts. Davies, Whitehead & Suydam, for applt. Held, Assuming that the contract in reference to the coal, a part of which only was delivered, was an entirety, yet the receipt of such portion of it as was delivered to the defendants without objection and without exacting the balance, subjects them to the payment of the amount due for the quantity which they received. The only defense available to defendants, so far as the case reveals, would be the damages they GOODS SOLD AND DELIV- might show to have resulted from ERED. TERM. FIRST DEPT. William H. Whitney, applt., v. Alfred Leonard, respt. Decided April 7, 1880. the failure to deliver the balance contemplated by the contract, which they assert was made, and which was not complied with. This action is not brought upon the contract, but to recover for coal delivered to and received by the Where a portion only of an order for goods is defendants. Judgment reversed; new trial of substance is conferred by sec. ordered; costs to abide event. Opinion by Brady, J. AMENDMENT OF UNDER- N. Y. SUPREME COURT. GENERAL James P. Irwin v. William T. Judd. Decided April 7, 1880. The power to amend an undertaking even in matter of substance is conferred by sec. 730 of the Code of Civil Procedure. Appeal from order of the Special Term denying motion to vacate order of arrest on condition of undertaking being amended,'and granting leave to file an amended undertaking, approved nunc pro tunc, as of the 31st day of October, 1879. The motion made by defendant to vacate order of arrest was made upon the papers upon which the order of arrest was granted, and was based, partly, upon the omission from the undertaking given upon procuring the order of arrest of the words "or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay," &c., as required by the amendment of 1879. The court denied the motion to vacate the order of arrest upon condition that the undertaking be amended, and granted leave to file such amended undertaking nunc pro tunc. Jas. L. Bishop, for applt. Davies, Whitehead & Suydam, for respt. Held, The power to amend an un 730 of the Code of Civil Procedure. This is obvious when we read this section in connection with sec. 729, and consider that, under the latter, an amendment of an undertaking defective in matter not of substance is unnecessary. The order should be affirmed, with $10 costs and disbursements. Opinion by Barrett, J., for the court. TRUSTS. ESTOPPEL. N. Y. COURT OF APPEALS. Bennett, respt., v. Garlock, applt. Decided Jan. 13, 1880. A trustee takes that quantity of interest in the trust estate which the purposes of the trust require and the instrument creating it per mits. C, and her hushand in 1808 conveyed certain lands to trustees in trust to sell enough to pay all debts of the grantors; to lease the same and pay the net profits thereof to the grantors during their lives, and to hold the residue of the lands for the benefit of such persons as should be the right heirs of C. and her husband at the time of the death of the survivor. The survivor died in 1871. In an action of ejectment brought by a daughter of the grantors, who was living when the conveyance was executed, the defendant set up adverse possession, commencing in 1842. Held, That the whole legal estate vested in the trustees; that C. had an equitable estate for life, and her children an equitable estate in remainder; that at C.'s death plaintiff became entitled to the actual possession of the land remaining in the hands of the trustees, but she took subject to their acts and was bound by their affirmative acts or their neglect that the defense was good; that the trustees having neglected to assert their title, plaintiff was estopped thereby. Reversing S. C., 4 W. Dig., 491. This was an action of ejectment dertaking defective even in matter to recover a part of a lot of land. It appeared that the lot in question and the instrument creating it perwas owned in fee by one C., a mar- mits. ried woman; that on May 24, 1808, The whole legal estate vested in C. and her husband executed a con- V. and B. as trustees; C. had an veyance of said premises and others, equitable estate for life, her children. to V. and B. and their heirs and as- an equitable remainder, liable to be signs, in trust to effect the following defeated by dying before their uses and trusts: 1st. To sell enough mother, or, in part, by after-born to pay all debts of the grantors. 2d. children. 20 Barb., 473; 44 N. Y., To lease, manage, cultivate and im- 249. At the death of C. plaintiff prove the same, and to pay over the became entitled to receive the rents net profits and avails thereof to C. and profits, and to the actual posand her husband during their nat- session of the land then in the ural lives. 3d. To hold all the hands of the trustees; she took subresidue of said lands, over and ject to their acts, and was bound above what may be sold for the and affected by their affirmative acts payment of debts, for the sole use, and by their neglects. 5 Cow., 74. benefit, and behoof of such persons If, by the neglect or consent of as shall be the right heirs of said the trustees, an estate had been acC. and her husband at the time of quired by defendant, or he had obthe death of the survivor of them. tained an advantage which prePlaintiff, who was the daughter of vented the trustees from asserting C. and her husband, was living at their title, plaintiff, standing in the time said instrument was ex- their place, is equally estopped and ecuted. C. survived her husband and prevented. died in 1871, the land being then held by a trustee appointed by the court in the place of V. and B. The defendant interposed as a defense to the action an adverse possession commencing in 1842. Held, That this defense was good; that the trustees having neglected to assert their title, plaintiff was estopped thereby. Perry on Trusts, § 858; Hill on Trustees, *267; 2 Eq. Cases, Abrgd., 579; 2 S. & L., 629; 2 B. & B., 175. Henry A. Foster, for applt. Edwin C. James, for respt. Held, That by the words "in trust for the uses above stated," used in the deed, the trustees prima facie took an estate in fee, and were invested with all the legal and equitable rights of the grantors, 1 Ferry Order of General Term, reversing on Trust, § 315; that there being a judgment for defendant, reversed, trust to sell and a trust to lease, a and judgment for defendant afless estate than a fee would not be sufficient to satisfy the purposes of the trust. L. R., 17 Eq. Cas. 252; 1 Q. B., 430. A trustee takes that quantity of interest in the trust estate which firmed. Opinion by Danforth, J.; Church, [N. B. Motion for reargument the purposes of the trust require was denied April 6, 1880.-ED.] |