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and not of the company, in all transac- reached Albany by the New York Centions relating to the insurance.

tral Railroad, and was delivered with a Held, That this clause was operative freight bill by its agents to defendant, to and precluded the assured from claiming be transported to New York. The freight that the company was bound by the bill contained the back charges on the knowledge of the agent, through whom cotton, the number of bales and the the policy was procured. Knowledge by marks thereon, and named the consignee an agent authorized to take application, “Byron Sherman;” this was all the inof the falsity of a warranty, does not formation received by the defendant. affect its validity—20 N. Y., 56.

The cotton was immediately transported Judgment of General Term, affirming to New York, arriving there December judgment in favor of plaintiff, reversed 14, 1864. Defendant changed the name and new trial granted.

of the consignee to “Ryan & Sherman,' Opinion by Rapallo, J.

and entered it and maile out its bills in that name.

Not finding the supposed

consignees, defendant kept the cotton unCOMMON CARRIER. NEGLIGENCE. til December 21st, and then stored it, DAMAGES.

and plaintiffs did not receive it until N. Y. COURT OF APPEALS. February 6th, 1865, there having been Sherman et al., respts., v. The H. R. R. in the meantime, a large decline in the R. Co., applt.

price of cotton. It appeared that Byron

Sherman called about the time of the Decided February 22, 1876.

arrival of the cotton and several times A common carrier is bound to trans

afterwards at the defendant's general port goods within a reasonable time, and if he negligently omits to do so, freight office, having with him the bills of is liable for the damages occasioned lading which he exhibited to defendant's thereby.

agents, in charge of the office, and inquired The damages, in such case, are mea- for the cotton, but could obtain no in

sured by the difference between the formation concerning it. The referee did value of the goods when they ought not expressly find as matters of fact that to have been delivered, and their defendant had been guilty of negligence, value at the time of their actual de- but among his conclusions of law, found livery.

that wefendant was guilty of negligence. The carrier is bound to give notice, or do what the law esteems equivalent

Henry N. Beach, for respt. to a delivery of the goods to the con

Samuel Hand, for applt. signee, before he can warehouse Held, That the finding of negligence them.

by referee was sufficient, that a finding of This action was brought to recover negligence is generally an inference from damages for the delay in the delivery of many facts, and when found in the rethirteen bales of cotton, alleged to have feree's report must be deemed his inferbeen occasioned by the negligence of de-ence from all the evidence. That the fendant as a common carrier. It ap- evidence warranted the referee in findin; peared that the cotton was shipped from that the delay in the delivery of the cotC. consigned to “Byron Sherman, 41 ton was caused by defendant's own neglia Mercer street, New York," each bale be- glence in changing the name of the coning marked with the letters "F. B.," and signee to "Ryan & Sherman." these marks and the direction to the con A common carrier is bound to transsignee were upon the shipping bill for- port goods committed to him, in a reawarded by mail to plaintiffs. The cotton 'sonable time, and if he fails to do thiz

from mere negligence, or a plain violation tion occurred, and at the time she was in of duty and their market value falls in the employ of the defendant. the meantime, the true rule of damages On the trial plaintiff was non-suited, is the difference in the value of the goods on the ground that as grandfather he at the time and place they should have could not maintain the action. been delivered and the time of their actual

Hubbard & Watts for respt. delivery. 47 N. Y., 29; 49 id, 442. He has

N. Whiting for applt. not performed his contract as carrier un

Held, That the grandfather could maintil he has delivered, or offered to deliver,tain this action; that he stood "in loco the goods to the consignee, or done what parentisto the infant, and the fact that the law esteems equivalent to a delivery. she had left his house and was supportIf the consignee is unknown to the car. ing herself, did not change his right to rier, a due effort to find him and give maintain the action; that plaintiff, by his notice of the arrival of the goods, is a con- adoption of the infant, and supporting dition precedent to the right to warehouse her, became practically her parent; that them, and if a reasonable and diligent by reason, also, of plaintiff's taking care effort is not made the carrier is liable for of the girl during her confinement, in the consequences.

performance of the duties he had assumed, Judgment of General Term affirming and by reason of expenses incnrred, he judgment for plaintiffs on report of re- had a ground for action against defendant. feree, affirmed.

Judgment reversed. Opinion by Earl, J.

Opinion by Mullin, P. J.

Smith, J., concurs in result on ground

that the request of the girl's mother, that SEDUCTION.

plaintiff would take and care for her, N. Y. SUPREME COURT, GENERAL TERM, which he did, invested in plaintiff all the FOURTH DEPARTMENT.

rights of a parent. Certwell, applt., v. Hoyt, respt.

REAL ESTATE. BROKER'S COMDecided January, 1876.

MISSION. A grandfather, who took his grand-City Court of BROOKLYN-GENERAL child in her infancy, and adopted

TERM. and supported her until she was fif. teen, when she left his house, and

Hoyt, et al., respts., v. Howe, applt. supported herself, may maintuin an A party employing broker to sell or action for her seduction.

exchange property, is entitled to his

disinterested efforts and judgment. This is an action of seduction. The If brokers, while so employed, bring to plaintiff is the grandfather of the girl se

him a purchaser, by whom they are alduced. The father and mother of the

80 employed, without disclosing such girl died when she was a mere infant, and fact to former employer, it would be the mother, before her death, requested such a fraud as would prevent his the grandfather to, and he did afterward, recovering any compensation. take and support the girl in his family, Appeal from judgment entered upon up to the time she became fifteen years of the report of a referee. age.

She then went out to service, en The plaintiffs are real estate brokers, joyed her own wages, and when out of and as such, had placed in their hands by employment, would stay at the house of defendant, in December, 1871, a farm for plaintiff, and made his house her home. sale or exchange. They thereafter had The girl was 18 when the alleged seduc- entrusted to them by one Lauder, certain

houses for sale or exchange. Of this de Plaintiffs were,

in the case before us, as fendant had no knowledge. They there- much the agents of the one as of the upon sought to effect an exchange be- other, and they were not the agents of tween defendant and Lauder, and for that defendant exclusively, and yet they failed purpose brought about a meeting of the to apprise defendant that the property two. Defendant was at first unwilling which they were offering him in exchange to make the exchange. bat on plaintiffs' was in their hands already for sale, as representation that the houses were really brokers. more valuable than defendant supposed, Judgment reversed, and order of referee and on his advice that he had better take vacated. them, defendant agreed to the exchange, Opinion by McCue, J.; Neilson, Ch. J., and signed with Lauder the contract of concurring. exchange. It was about this time agreed between plaintiff and defendant, that

RELIGIOUS COPPORATIONS. plaintiffs' commission should be $500. When they came to arrange the details, it

WHEN TITLE VESTS. was found that the title to two of the N. Y, COURT OF APPEALS. houses was in the name of one McKesson, The Alexander Presbyterian Church who, however, expressed a willingness to applt. v. Presbyterian Church cor. Fifth execute a deed to defendant, and that Avenue and 19th street, New York, respt. there was a small mortgage upon


Decided February 22, 1876. same, which Lauder was seeking to re- Under section 4 of the Act of 1813, move. Defendant, at this point, broke off

providing for tħe incorporation of negotiations, and refused to pay plaintiffs religious societies, it must appear their commission. The case was referred that the pr. perty was given or grantto George H. Halsey to hear and deter ed to the societies or for its use, or no mine, who reported in favor of plaintiffs. title will vest; if, from the nature

of the societys holding it is apparent S. S. & D. J. Noyes for respts.

that the owner of the fee aid not 80 Smith & Woodward for applt.

intend, no title passes. On appeal, Held, That the mere failure

This action was brought to establish to perfect the exchange would not relieve title of plaintiff in and to a building which defendant from paying plalntiffs' com- had been built for a mission school and mission, inasmuch as they had found for chapel, and to enjoin the defendant him a party who was ready and willing to from interfering with its possession of effect the exchange on his terms. the premises. It appeared that the

The fact that plaintiff acted for both parties were religious corporations orparties, without the knowledge or consent ganized under the act to provide for of the defendant, raises a different ques- the incorporation of religious societies, tion.

passed April 3, 1813, (3 Edms. Stat., 691). The Court of Appeals, in the case of

The real estate in question was purCarman v. Beach (not yet reported) held chased and the church erected from funds that the party employing a broker is enti- contributed by members of defendant's tled to his disinterested efforts and judg- corporation for the purpose of establishment, and if the broker brings to him a ing and maintaining a mission church purchaser for whom also he is acting as under the provisions of chap. 1 22, laws of agent, without disclosing the fact to his 1850, and it was so used and occupied. former employer, it would constitute such Subsequently the members attending and a fraud as would preclude him from re- connected with such mission-church orcovering any compensation.

ganized plaintiff's corporation. This was

done with defendant's consent, and the the testator, and has been approved premises were leased to the new organiza by the majority of said legatees and tion from year to year at a nominal rent. next of kin. It claimed title under Section 4 of said But the cost of improvement and in. act first mentioned, which provides that

closure of burial lot wiil not be althe trustees of every church, organized un

lowed an executor as respects objectder the act, may take into their posses: A delivery by testator to his executor

ing parties in interest. sion and custody, all the temporalities real

of certain money to be distributed or personal, belonging to such church,

among his servants, which was so diswhether they have been given, granted, or tributed after his death, constitutes devised directly to such church or to any valid donationes causa mortis. other person for its use, and to receive, Where an executor is likewise trustee hold and enjoy all churches and estates he is allowed but one commision for belonging to such church in whatsoever

both capacities. manner the same may have been organ Sur exceptions to auditor's report. ized or in what name held, as fully and In addition to the usual funeral expenamply as if the right and title thereto had ses the executors erected a marble monubeen originally vested in said trustees. ment over the grave of testator, at a cost Chas. P. Shaw, for applt.

of $1929, and enclosed the cemetery lot S. P. Nash, for respt.

with curbing, at a further expense of $2,Held. That the action could not be 400. There were no creditors, but these maintained ; that in order to bring a case expenditures were objected to on behalf within 84 of the act of 1813 it must appear of certain of the children of testator, legthe property has been given or granted to atees under his will. The estate was esthe society or for its use, and here the timated at $360,000. The auditor allowproperty was purchased for defendant's ed the credit claimed for the cost of the use, not plaintiff's.

monument, but for the reasons that the The fact that defendant consented to improvement of the burial lot formed no the incorporation of plaintiff did not di- part of the funeral expenses, but was vest it of the property and vest it in plain- upon the same footing as improvements to tiff; it could consent upon such terms as

the other real estate, and had been made it saw fit, and the fact that defendant

without the unanimous consent of the tained possession and control of the prop- parties interested, he surcharged the exeerty, leasing it to plaintiff, showed that it cutors with one-third of the cost, such did not intend to vest it in plaintiff.

proportion representing the shares of the Judgment of General Term, affirming

children who objected to the expenditure. judgment dismissing complaint, affirmed. This conclusion of the auditor was exPer Curiam opinion.

cepted to by both the legatees and the executors. The former except to any allow

ance for the cost of the monument. EXECUTORS. GIFT. MONUMENT.

It was also claimed to surcharge the exTHE ORPHANS' COURT-PHILADELPHIA. ecutors with $1100, given to one of their

Estate of Andrew C. Barclay, deceased. number by testator, to distribute among Decided March 18, 1876.

his servants after his death. An executor will not be surcharged, as

During his last illness, and but a few respects legatees and next of kin, days before his death, testator stated to with the cost of a monument over one of his sons, and also to a friend whom his testator which is reasonable, ac- he had selected as one of the executors of cords with the means and position of his will, that he had neglected to provide



for his servants, and he wished $1100 to It is the duty of an umpire to give nobe drawn out of bank and distributed tice to the parties and hear their evi

dence unless there is an express proamong them as he directed. Arrangements were made by which the money

vision to the contrary in the submis.

sion or the parties have so agreed. was obtained from the bank and given t)

Motion in Error to Common Pleas of one of the executors, who then said aloud to testator, in the presence of members of Hartford County. his family, “this eleven hundred dollars is This action is assumpsit on a submisgiven to me for your servants,” to which sion and award. The submission was in the testator assented. The executor noti. writing, referring the matter in dispute to fied certain of the servants of the gifts to two referees, with power. in case of disthem, but delayed payment until after the agreement, to appoint a third. They death of testator, in the belief that the heard the parties in March, 1873, and did delay would insure more careful attend- not agree upon an award. In February, ance upon him during his sickness. Short- 1874, they appointed a third person, who, ly after the discease the gifts were paid.

without notice to the defendants, and The sixth, seventh and ninth excep-without their knowledge, after conferring tions are to the rate of commissions al- with the other arbitrators, published an lowed the accountants. They are both award as sole arbitrator. The court of executors and trustees.

Common Pleas rendered judgment for the

defendants, and the plaintiff brings the Held, 1. That the cost of the monu- record before this court by a motion in ment, in view of the testator's circumstances, was properly allowed.

Held, 1. We are clearly of the opinion 2. That the executors had no right to

that the third person was not an umpire, improve the burial lot, and were correctly but a joint arbitrator. surcharged with the cost.

2. That if he were an umpire it was his 3. That the executors held the money duty to give notice to the parties and hear for the servants, and that the gifts were their evidence before the publication of good as donationes causa morlis.

his award. 4. That by the act of March 17, 1834,

Opinion by Carpenter, J. Purdon 445, p. 197, the executors being also trustees, are entitled to but one commission.

CONTRACT. Opinion by Hanna. J.



Mill Company, respt.

Decided January, 1876.
John Gaffy v. The Hartford Bridge Where, by the terms of a contract, a

duty, though not by express covenant, Decided February, 1875.

is imposed on one of the parties to

perform, and the other party has an Where a submission to arbitration interest in its performance, the law

vided that each party should choose will imply a promise by the party, to one referee, and in case they did not perforin, and will sustain an action agree the two referees to choose a by the injured party to obtain comthard one, the third referee is a joint pensation for a breach of it. arbitrator and not an umpire. Where a contract provides one of two


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