« ForrigeFortsett »
This action was brought to compel liance upon the promise of defendant the specific performance of a contract to give him the title to the land, there for the purchase of lands, entered into was an implied consent on the part of by the agent of the parties. It was the defendant that he might take posagreed, in January, 1861, by parol, session as owner. In all cases where that plaintiff should pay $150 for the the contract for the sale of land is land, and receive a warranty deed. In silent as to the possession, and the venApril following defendant and his wife dee has paid the entire consideration, executed a deed, which was delivered and fully performed on his part, and all to plaintiff's agent, who then paid the that remains for the vendor is to give the whole consideration, $150. This deed deed, there must be an implied agreewas subsequently delivered to plaintifl, ment or license that the vendee may at who found that it did not truly express once take possession and have the use of the consideration—it being therein the land. In the absence of proof to the stated at $100—and it contained cer- contrary, it could not be inferred that tain reservations not authorized by the the vendor intended to retain the use of agreement; he thereupon declined to both the land and the consideration receive it, and returned it to defendant's paid therefor. Suffern v. Townsend, agent, who agreed to have it corrected 9 J. R., 35; Erwin v. Olmstead, 7 Cow., and returned to him. This was never 229; Kellogg v. Kellogg, 6 Barb., 116; done. Defendent did not repudiate the Spencer v. Tobey, 22 Barb., 260, disparol agreement, but agreed to “make tinguished. it all right.” He did not decline to
Judgment of General Term, affirmperform it until April, 1867.—a short ing judgment for plaintiff, affirmed. time before this action was commenced.
Opinion by Earl, J. The land was wild and uncultivated, several miles from any highway. In
PRACTICE. EXECUTION. PROthe Fall of 1864 plaintiff, with the con
CEEDINGS TO REVIVE. sent of the adjoining owners, cut out
N. Y. COURT OF APPEALS. and made a road for two and a half miles from the highway to the lot, and,
Wallace, applt., v. Swinton, respt. prior to the commencement of this Decided February 15, 1876. action, made roads upon the lot, under- An execution against the estate of a prushed and cut up fallen trees thereon, deceased debtor is irregular and void preparatory to clearing about a quarter
unless the proper proceedings as an.
thorized by section 376 of the colle of an acre, built a bough shanty, annually
have been had, and a sale thereunder cut and drew from the lot wood and timber, and paid the taxes thereon. The Chapter 295 of the laws of 1850, and referee found that there had been a section 376 of the code not being ensufficient part performance of the agree
tirely repugnant, may both stand. ment to take it out of the operation of This was an action of ejectment. the statute of frauds.
Plaintiff claimed title by virtue of a L. W. Russell for respt.
sale under two executions issued upon Samuel Iland for appli.
judgments recovered against F. in his Held, no error: That after plaintif lifetime. F. died in 1864. In June, had paid the full consideration, in re- 1868, plaintiff'applied to the surrogate
passes no title.
of Orange county for permission to is- of the code regulating the procedure in sue executions on the judgments. It the court in which a judgment is recovdid not appear that any of the interest- ered for enforcing the same after the ed parties were notified of the applica- death of the debtor. tion to the surrogate. After the sur
Held, That as the two statutes are royate had granted leave to issue exe not entirely repugnant both may stand. cutions, application was made to the 11 How., 200; 13 Abb. Pr., 80; 45 supreme court and the order to show N. Y., 368; 12 Wend., 542; Flanigan cause why executions should not issue v. Iman, 53 Barb., 587; Wilgus v. was served on one of the children of F. Bloodgood, 33 How., 289, questioned. in New Jersey, where all the children Order of general term granting a new and heirs at-law of F. then resided, trial affirmed. th y all being minors, no guardian ad Opinion by Allen, J. litem was appointed for them. The executions were issued in pursuance of STATE CONTRACTS. CONSTITU
TIONAL LAW. DAMAGES. leave thus obtained, and the land, with other lands, was sold thereunder. Plain
N. Y. COURT OF APPEALS. titi' was never in possession of the land. Lord, et al., applts., v. Thomas, respt. Prior to the giving of the sheriff's deed Decided Feb. 1, 1876. to the plaintiff, defendant took posses- The State cannot be com peiled to prosion under one whom he supposed had ceed with the erection of a public title or the means of obtaining title. building by a contractor with whom S. W. Fullerton for applt.
it has a contract for its erection. A C. Il Winfield for respt.
law of the statei suspending such a
work'is not unconstitutional, as imHell, That the executions were void
pairing the obligations of the contract. so far as the real estate sought to be The contractor's remedy for any reached was concerned, and the plain damages he might sustain is an aptiff acquired no title under the sale as plication to the legislature. against those not made parties, to the This was an action brought by plainproceedings authorized by law for the tiffs, as assignees of one A., of a conrevival of the judgment against their tract between him and certain persons property, and making them parties to styled commissioners, for doing certain the judgment. 1 Cow., 711 ; 10 Wend., “ brick and stone work for the Elmira 206; 18 N. Y., 412.
Reformatory," to restrain defendants It is not optional with the judgment from letting any portion of the work concreditor whether he proceeds under & tracted for to other persons. The said 254 or 376 of the code. If the debtor is commissioners were appointed under alive he must proceed under the former, chapter 427, Laws of 1870, and were if dead under the latter.
charged with the general superintendIt was claimed that chap. 295 of the ence of the ground for the reformalaws of 1850, which relates to the is- tory, which they were authorized to suing of executions, and the enforce- purchase, and the design and construcment of judgments against deceased tion of the building, subject to the apjudgment debtors, enacts, among other proval, by the governor, comptroller things, that the leave of the surrogate and State engineer, of the plan adopted is necessary, superseded the provisions by them. A site was purchased and a
plan of the building adopted and ap- public work, or providing for its perproved, and a contract entered into formance by different agencies than with A. to furnish the materials and do those theretofore employed, is not subthe stone and brick work required inject to any constitutional objection, beits erection. The contract was assigned cause the change would involve a breach to plaintiffs, with the assent of the com- of contract with a contractor who had missioners. In 1874, after a part of contracted to do the work. The conthe work had been done under the contractor would have a claim against the tract, an act was passed by the legisla- state for any damage sustained by him ture (chapter 323) which suspended from the breach of the contract, which the commisions and provided for could be enforced by appeal to the the appointment, by the governor, of a legislature. 43 N. Y., 408. superintending builder in their place,
Judgment of General Term, affirmand vested in him, so far as the con- ing judgment for defendant, affirmed. struction of the building was concerned,
Opinion by Andrews, J. all the powers and duties theretofore possessed by the commissioners, and
BROKER. PERSONAL LIABILprovided for the purchasing of the ma
ITY. terial, and that all things connected with the erection of said building ENGLISH Decisions—COMMON PLEAS
DIVISION. should be done by contract, to be awarded to the lowest responsible bid Southwell and another v. Bowditch. der, after being advertised as is now Decided January 15, 1876. required for the letting and advertising A broker having signed and sent to the of state work on the canals. Defendant plaintiff's a note of a contract in the was appointed superintending builder. following terms : " I have this day Ile advertised for proposals to do cer
sold by your order and for your actain work which was included in the
count to my principals about five tons
of pressed anthracene. W. A. Bowcontract with A., and plaintiffs claimed
ditch," is personally liable, in an acthat they were entitled to perform it. tion for goods sold and delivered, Wm. II. Bowman for applts.
the contract. Geo. F. Danforth for respt.
Declaration for goods sold and delivIleld, That defendant was author- ered; plea, never indebted. ized by the Act of 1874 to enter into a Issue. new contract for the completion of the At the trial before Lord Coleridge, building, and could not be enjoined at C. J., at the sittings in London after the instance of plaintiff from proceeding Michaelmas Term, 1874, the facts, so to execute this power.
far as material, appeared to be as folAlso held, That the state cannot be lows:- The contract of sale relied on compelled to proceed with the erection by the plaintiffs was a sold note signed of a public building or the prosecution by the defendant, who was a colonial of a public work, by a contractor with broker, in the following terms: whom it has contracted for the erection “ Messrs. W. A. Southwell & Co. I of the building or the performance of have this day sold by your order and the work. 1 Den., 317. A law of the for your account to my principals about State, suspending or discontinuing a tive tons of pressed anthracene, at five
shillings per cwt of pure anthracene, Opinions by Coleridge, C. J.; Grore to be delivered free to 'Free Trade and Denman, J. J., Wharf' in casks in good export condition. The percentage of pure anthra- ESTOPPEL. BOUNDARY LINE. cene for value to be referred to Dr. B.
SUPERIOR COURT OF CINCINNATI GENPaul, who is to test in the following manner : [then followed a description
ERAL TERM. of the manner of testing]; payment in
Samuel Burt vs. Frederick Creppel. cash in fourteen days after delivery, less
Decided October Term, 1876. 24 per cent. discount and 1 per cent. A doubtful or disputed boundary line brokerage. The above anthracene to
may be agreed upon by parol; and be made all from coal tar. W. A. Bow a party so agreeing is afterwards esditch.” It was contended for the plain
topped from denying the same, if the tifts that this document amounted to a
other, relying upon it, erects im
provements. contract of sale, making the defendant personally liable for the price of the
B owning a large lot of ground, sold goods delivered under it.
It was con
and conveyed a part of it by metes and
bounds to S by deed. They agreed tended for the defendant that the note did not import personal liability on the upon the boundary line between them, defendant's part. The defendant had
which was probably somewhat different
from that which the calls of the deed acted, in buying the goods, as broker
would establish. S sold and conveyed for a firm of Bloth & Co. The verdict was entered for the plaintiffs for
to C, by the same description as that 3251., leave being reserved to the de- contained in the deed to S, pointing
out the division line that B had shown fendant to move to enter a nonsuit on the ground that there was no evidence to S. C commenced to erect a new to render the defendant liable for goods and claimed that its wall was upon his
house upon his lot, when B interposed, sold and delivered. A rule nisi had been obtained accordingly.
lot, being over the line he had pointed Held, That the document was a con- out to S, and which S had pointed out tract of purchase and the defendant's to c.
C took down this wall, and
built according to such pointed out signature thereto being unqualified, he is personally liable.
line, B not objecting until after C had The expressions used in this contract, completed his house. He then brought though they show that the defendant ejectment for the strip between the was acting as an agent, must be taken line as called for in the deed, and the
line as pointed out. Owing to an unas showing no intention that the defendant should be exempted from the certainty as to a corner of B's original liability that would ordinarily be thrown
tract, the division line as given by the upon him by law when acting for an deeds, was not certain. undisclosed principal.
Held, A disputed or doubtful boundIt seems that words added by way ary may be agreed upon by parol; and of qualification to the signature, are if the parties make improvements upon entitled to more weighit than the same expressions occurring in the body of the the disputed ground in accordance with instrument.
such agreement, they will be estopped Rule discharged.
from denying the line so agreed upon.
Their respective deeds cover the land referee, if possible, that defendant had up to such agreed line.
received no money on said note. TakJudgment affirmed.
ing the evidence offered in connection Opinion by Yaple, J.
with the fact that when it is claimed
the note was given the defendant was PROMISSORY NOTE. EVIDENCE intoxicated, a strong inference might be N. Y. SUPREME COURT, GENERAL TERM. drawn that advantage had been taken FOURTH DEPT.
of defendant's condition to obtain the Nicholson, respt., v. Waful, applt. note without any consideration. Decided January, 1876.
dence that a short time" prior to the and Gilbert, J. J., concurring.
LANDLORD AND TENANT. petent to raise question of plaintiff”s SUPREME COURT OF PENNSYLVANIA. (the payee's) “ bona fides. This is an action on a promissory note
Hey v. McGrath. of $450, dated April 28, 1873, which
Decided February 21, 1876. plaintiff claims was given to him by de- In Pennsylvania a tenancy at will is fendant.
construed to be a tenancy from year Defendant denies that he ever gave to plaintiff any note of $450, and that Where the sub-tenant purchases the tiif he did, it was given while he was in tle of the paramount landlord, he is toxicated, and was without any consid
invested with all the latter's rights, eration, and was void.
including the power to determine the
original lease. On the trial, defendant offered to
Error to the District Court of Philaprove that in 1870, plaintiff said he had not one hundred dollars; that for some
delphia County two years he was employed by a firm of Ejectment by McGrath against Hey millers and received for his services to recover the possession of an office. the sum of $1.50 per day, and out of it On the 16th of April, 1866, one Stone had to furnish a house and support a leased the premises in which the office wife ; that in June or July, 1872, plain- was situated to IIey, for a period not tiff said that he had no funds, and could expressly limited, at a specified annual not raise $100.
rent, and payable in monthly instalThere was a judgment by the referee ments. The indenture of lease confor plaintiff.
tained the following stipulation : Held, That as defendant was in the “And it is hereby expressly underattitude of claiming on the trial before stood and agreed between the said parthe referee that plaintiff had taken ad-ties of the first and second parts, that at vantage of him while intoxicated, and no time, during the continuance of the got from him the note (if the note was said party of the second part as a tensigned by him), without any considera- ant of the aforesaid premises, leased tion therefor, the evidence offered above and demised by the said party of the was competent, in order to satisfy the first part, is the aforesaid annual rental