directing the service of the further bill reasonable diligence as men of business of particulars demanded.

usually show when their interests deOpinion by Brady, J.; Davis, P.J., pend upon correct information. The and Daniel, J., concurring.

holder must act in good faith and not

give credit to doubtful intelligence NOTICE OF PROTEST. when better could have been obtained. N. Y. SUPREME Court, First Depar’r.|(21 Wend., 643.) Greenwich Bank of the City of New

And until someone is found who York respt., vs. Theodore De Groot, professes to be able to give the required et al., applts.

information it will not do to stop short Decided March 6, 1876.

of a thorough inquiry at places of pubLooking in the directory merely for the lic resort, among those most likely to

address of an indorser is not making know of the endorser's residence. (3 that diligent inquiry which the sta- Hill, 520; 2 Sandf., 178,) and each of tute requires.

the other parties to the paper, when Appeal from judgment recovered at they may be accessible. (16 N. Y., 235.) circuit.

The statements in the directory afIn November, 1872, W. H. De Groot forded the opportunity for, and suggestmade his promissory note to the order ed further enquiry; without making of Theodore De Groot, who thereafter which the Notary could not properly endorsed and delivered it to one Mc-act, save at his peril. Lean, thereafter passing through differ In this case the proper degree of dilient hands it came into the possession of

gence was not shown. plaintiff. At maturity it was not paid, | Judgment for the endorser, Theodore and was therefore duly protested. De Groot, reversed and new trial or

The Notary who protested the same dered. deposited the notice to Theodore De

Opinion by Daniels, J.; Davis, P. Groot as endorser, in one of the street J., and Brady, J., concurring. postal boxes, directed to the address found in the directory. No further en

USURY. quiries or efforts were made to learn if

SUPERIOR Courr OF CINCINNATI, GENthat was in fact the right address. The

ERAL TERM. defendant served with his answer an affidavit denying his receipt of such no

Hubbell, pltff. in error, v. Mansfield tice as provided by the statute.

deft. in error.

Decided October, 1875. Wm. G. Wheelwright for respt.

In order to avail himself of usury in E. Įlaines for applt.

a mortgage, a party other than the On appeal held, That the onl, ques mortgagor must assert an interest in tion before us is whether that degree the mortgaged premises. of diligence in ascertaining endorser's This petition in error is prosecuted address, as required by the statute, was here by Hubbell to reverse a judgment shown, by simply looking into the di- and order for the sale of mortgaged rectory and then finding what appeared premises rendered in this court in to be the endorser's address and mailing special term in favor of Mansfield the notice thereto. The law requires, against one Weiler, the sum found due in order to charge an endorser, such being $2,284.94. The notes, which



were negotiable, with others, and the stances of each case, the time, the mortgage, were made by Weiler to mode, and the place of receiving the McGuffey, and by him assigned before

check, and the relations of the par

ties. due to Mansfield.

The time for presentment may

be In the petition to foreclose the mort tended by the assent, express or imgage Hubbell was made a party defend- plied, of the drawer. ant, the averment as to him being that Assumpsit upon

bank check plaintiff is informed and believes that brought to the Court of Common Pleas Hubbell claims some lien upon or inter- for Hartford County. The court made est in said mortgaged property, or a finding of the facts and reserved the some part thereof, of the precise nature case for the advice of this court. of which claims plaintiff is not in The parties to this suit resided in formed. The prayer was that Hubbell Southington, twenty-two miles from be made a party defendant and re- New Haven. They met together on quired to answer, etc. Hubbell was the morning of the 24th of March 1873, duly served with process, but filed no and in the settlement of some business answer and made default. Hubbell transactions, the defendant gave the claims that the decree shows that usuri- plaintiff his check for $40 on E. S. ous interest is included in it, and that Scranton & Co., a banking company in it is made to draw a usurious rate of New Haven. The plaintiff then reinterest.

quested the defendant to give him Held, That Hubbell does not appear another check for $425, counting out to to have any interest in the premises or him bank bills to that amount. The any part thereof, which he must have reason of the request was, that the to be entitled to attack the decree upon plaintiff was indebted to one Goodwin, the ground of usury. Weiler, the who resided at Lime Rock, in Litchdebtor, could waive usury, and he must field County, to whom he was about be held to do so until he files his peti making a remittance, and he preferred tion in error.

to make it by a check rather than by Hubbell's default was, in legal effect, bills. There was no bank at Southingan admission that he had no interest in ton. The plaintiff deposited the $40 the premises to be protected against check that day at a bank in Meriden, any decree that might be rendered where he kept his bank account, and on against Weiler for usury.

the next day it was presented for payJudgment affirmned with costs. ment and duly paid. The defendant Opinion by Yaple, J.

gave the check for $125, as requested,

taking bank bills of the plaintiff' for BANK CHECK. PRESENTMENT. that sum, which, with $125 more, the


defendant, on the same day, deposited David P. Woodruffv. Amzi P. Plant. checks were drawn. The plaintiff, on Decided February, 1876.

the same day, enclosed the check for The holder of a bank check is bound to 8425 to his creditor, Goodwin, at Lime present it within a reasonable time, Rock, who received it the next day, but what is a reasonable time de the 25th, and immediately deposited it pends upon the particular circum- in the National Iron Bank of that vil


lage for collection. This bank, by the time for presentment may be extended
next mail after its receipt, sent it to a by the assent of the drawer, express or
bank in New Haven for collection, implied, is well settled. Here the
which bank received it on the afternoon time for presentment was extended by
of the 26th of March, and early on the the assent of the drawer, not for a defi-
morning of the 27th, presented the nite time, certainly, but for a reason-
same for payment, which was refused, able time; and we are quite clear that
--the banking house of Scranton & Co. a reasonable time had not expired when
having failed and closed its doors on the this check was presented for payment
26th. The check was duly protested and dishonored.
for non-payment, and the requisite no We think the plaintiff is entitled to
tices were given to all parties. The recover, and so advise the Court of

laintiff paid Goodwin the amount of Common Pleas.
this check, and brings this suit to re Opinion by Foster, J.
cover it from the defendant, who was
the drawer.

EVIDENCE. PRACTICE. lleld, There can be no dispute as to

N. Y. COURT OF APPEALS. the law regarding the presentment of a

Clark, applt., v. Donaldson, respt. check for payment in order to charge

Decided February 8, 1876. the drawer in case of dishonor. The Upon an issue as to whether defendant holder is bound to present it within a

was the owner of a stock of goods

which he claimed he had sold by verresaonable time, and to give notice bal agreement, conversations between thereof within a like reasonable time; defendant and the alleged vendee, at otherwise the delay is at his own

the time the property was sold, are peril. What is a reasonable time will

competent evidence.

Evidence improperly received must depend upon circumstances, and will,

work an injury to justify a reversal. in many cases, depend upon the time, where evidence which has been crrothe mode, and the place, of receiving neously rejected is afterwards adthe check, and upon the relations of

mitted the error is obviated. the parties between whom the question

Where evidence was received, subject arises. Here three days only elapsed

to objection,and the objecting party

having taken no exception then, or between the giving of the check and subsequently, it cannot be considered its presentment for payment.

on appeal. The particular circumstance attend This action was brought to recover ing this case we consider very impor- money received by defendant on plaintant. The defendant knew that the tiff's account and for rent claimed to be plaintiff desired this check to make a due from defendant. Plaintiff claimed remittance; that it was not to be im- that defendant purchased plaintiff's inmediately presented for payment; and terest in a certain business in which he would not reach the bank for several was engaged, and they agreed that the days. The case of Daggett v. Whit- old books of account of plaintiff should ney, 35 Conn. 366, is certainly an au- remain at the store, and that plaintiff thority to show that what the under-should not send out any bills for collecstanding of the parties was at the time lection, and that defendant should colthat the check was drawn and delivered lect the bills, continue to deal with the enters into the contract. That the customers, and account to plaintiff for

his share of the bills; that in accord- ject without objection, and his answers ance with this agreement the books were substantially the same. were left with the defendant. Defend Held, no error. That no injury reant denies any agreement on his part sulted from the repetition of the testito collect or account, or that he made mony. any collection, but allowed that he Defendant was asked on his crossmade a purchase for the benefit of his examination : “At that interview (reson Thomas, and one B, his brother-in-ferring to a conversation between the law, it being agreed they should pur- witness and Thomas and Barker) you chase of him and carry on the business, claim that the partnership between and from the proceeds pay all debts and Thomas and Barker was organized ?" expenses, and from the profits pay de- This question was objected to by de. fendant the cost of the same; and that fendant's counsel and the objection susthey were to carry on the business un- tained. No ground of objection was der the firm name of Thomas Donald- stated. The witness was allowed imson & Co.; that this was known to mediately afterwards to state that the plaintiff'; that he had no interest in co-partnership agreement was made on the firm, and all collections made were that occasion. made by them.

Il II, That this obviated the error in Upon the trial defendant offered sustaining the objection to the previous proof of a conversation between Thomas question. and himself, when he sold the property One D, a witness on the part of the to him. This was objected to, and the plaintiff, was allowed to testify that he objection was overruled.

had sold goods to one R. D. for the Thomas Nolan, for applt.

store after plaintiff had sold the stock Francis Tillou, tor respt.

to defendant. This witness had testiHell, no error. That as the sale wae fied that plaintiff introduced said R. D. by verbal agreement, and parol proof to him as his successor in business, and of the transaction was the only evi- as to the manner of conducting the dence that could be given on the sub- business after the plaintiff sold out. ject, it was competent to show that de Held, That this evidence was comfendant did not conduct this business, petent upon the question whether the that being a fact in issue by the plead- business was plaintiff's or R. D.'s. ings, and proof that defendant after he Upon objection being made by plaintiff purchased sold the stock to one of the to certain evidence offered, the case persons in whose name the business states it was received by the referee was afterwards carried on, was com- “subject to objection.” Plaintiff did petent upon this issue.

not except or ineist on a definite ruling Defendant was asked the question : upon the admissibility of the evidence " Explain more fully what you meant offered at the time or subsequently. by saying that you stated the case to Held, That as there was no excepThomas and Barker, and gave them tion which raised the question as to its possession and told them to go on?" competency it would not be considered.

Judgment of General Term, affirmThis was objected to and the answer taken under exception. The witness missing complaint, affirmed.

ing judgment on report of referee dishad testified before upon the same sub Opinion by Andrews, J.





MASTER AND SERVANT. WHEN ant, in good faith, and in the discharge

MASTER LIABLE FOR TORT of a duty he owed it, defendant would OF SERVANT. WILLFUL ACT. be responsible for his carelessness and N. Y. COURT OF APPEALS.

negligence, but if he acted wilfully and Rounds by Guardian, respt, v. The maliciously, then he alone would be reDel., Lack. & W. R. R. Co., applt.

sponsible. The judge refused to qualify Decided February 8, 1876. A willful act which will exempt a mas- ficient to exempt defendant from liabil

this charge or to charge that it was sufter from liability for the tort of his servant, is in its legal sense malicious ity, that the act of the baggage-master also.

was wilful. In an áction for negligently and care E. H. Prindle.

lessly ejecting plaintiff' from a rail Francis Kernan. way car, whereby he was unnecessa

Meld, no error. That a wilful act rily injured, it is no defence that he which will exempt a master from lia

a The rule governing the master's liability bility for the tort of his servant, is in for the torts of his servant, in the its legal sense malicious also. The incourse of his employment, in using tentional doing of a wrongful act force towards or against another, without canse stated.

or excuse, is maliciThe master is not liable for the willful

(9 Metc., 93; Mason, and malicious act of the servaut.

115). That the court could not say This action was brought to recover from the evidence that the baggagedamages for injuries received by plain- master acted outside of and without retiff, by being pushed off of one of de- gard to his employment, or designed to fendant's cars. It appears that plain- do the injury, or that the act was willtiff, in violation of defendant's rules, got ful, that this question was properly left upon the rear platform of the baggage to the jury (47 N. Y., 27+). The fact car of a train that was standing in the that the plaintiff was a trespasser was depot in order to ride down to a round no defence, he was entitled to be

prohouse near by, into which the cars were

tected against unnecessary injury by to be backed to make a new train. On defendant or its servants, in exercising one side of the track was piled wood for the right of removing him (23 X. I., over 100 feet. After the train bad 343 ; 9 A1., 557; 12 id., 580). When started defendant's baggage master, authority is conferred on a servant by a who had charge of the train, discovered master to act for him, without special the plaintiff' and ordered him to get off

, limitation, it carries with it by implicathe latter told him he could not without tion authority to do all things necessary his help on account of the wood, and to its execution, and when it involves the baggage master thereupon kicked the exercise of the discretion of the him off the car, so that in falling his servant, or the use of force towards or chest hit against the wood pile and he against another, the use of such discrerolled over under the cars, which passed tion or force is a part of the thing auover and crushed one of his legs. The thorized, and when exercised becomes court charged the jury that although as to third persons the discretion and plaintiff was a trespasser, yet if the bag. act of the master, and this, although the gage-master in pushing him off the servant departed from the private intrain acted as the employee of defend-structions of the master, provided he

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