Sidebilder
PDF
ePub

and in

neys, under

Know all men by these presents that out to the satisfaction of a jury, might for value received, I have, and by these determine the case. We cannot say that presents do bargain, sell, assign, and trans- the case was so destitute of evidence that fer unto shares of the Capital Stock this should not have gone to the jury. It of the Pacific Mail Steamship Company, was taken from them and therefore withstanding in name on the books of out determining in any way the question said Company (and represented by within as to the negotiability or transferability of certificate), and do hereby constitute and the instruments, we see sufficient error to appoint attorney, irrevocable, for justify a new trial in so important a case,

name to transfer the and the rule must accordingly be made said stock, with power, one or more attor- absolute. for the like purpose to

Rule absolute. make and substitute

Opinion by Elcock, J. Witness hand and seal the 21st day of Oct., A. D. 1872.

INSURANCE. *JOSEPH J. LAWRENCE.

N. Y. COURT OF APPEALS.

Bush, respt. v. Westchester Fire Ing. In presence of

Co.
A. T. YEATES.

Decided January 18, 1876. The jury were instructed that the cer. The authority of an agent to receive protificates in evidence were not negotiab? .

posals for insurance and countersign instruments by law, and that defendants

and deliver policies, cannot be held to acquired no title thereto. The verdict extend to adjusting losses or waiving Was iccordingly in favor of plaintiffs for proofs of loss, and binding the company Over $30,000.

to pay without them. The defendants' counsel upon the trial,

This action was brought upon a policy however, requested that the jury be in- of insurance which provided, among structed as follows:

other things, that the insured, in case of “ If the jury find that these certificates. 'oss, was to immediately render a particwith bills of sale and powers to transfer ular account thereof to the company, and executed in blank, were pledged to the when property should be damaged to defi-ndants for value and taken by them forth with cause it to be put in order, and in good faitis, and that the loss to the furnish an inventory of the goods damplaintiffs was the result of their own neg- aged to the company. ligence in not filling up the blanks in the A loss having occurred, proofs of loss bills of sale ind powers to transser, with were forwarded to defendants, who aftertheir own names, and of their misplaced wards notified plaintiff that they were not confidence in the man who pledged them accepted on the ground that he had not 'to the defendants, then this loss must be complied with the conditions of the policy, borne by the plaintiffs, who, by their neg- as to giving a particular account of the loss ligence in not filling up the blanks, and to the company, and furnishing an invenby employing and trusting such personi tory. It was conceded on the trial that with the certificates in such a condition this condition had not been complied enabled him to commit the fraud." with, but plaintiff claimed that it had

Hold, Under the rule laid down in been waived by the defendant. Plaintiff Mundorff v. Wickersham, 13 Smith, 87 proved that immediately after the fire tho " that where one or two innocent persons agents of other companies, who had polimust suffer by the fraud or negligence of cies on the property, examined the stock a third, whichever has accredited him and books, and estimated the damage, and must bear the loss;" this point, if made agreed that the luss exceeded the amount

80n.

insured. That Straight, one of defend liable individually to such third per. ant's local agents, acted with them and concurred in their conclusion, and ex Appeal from judgmert entered upon pressed himself satisfied that the loss was the verdict of a jury. double the insurance. Defendant ob Plaintiff was employed as a real estate jected to all this evidence on the ground broker by defendant, who acted for bimthat Straight's authority was not proved. self and one W., in whose behalf defendThere was proof that Straight and his ant declared himself authorized to act to partner were local agents for issuing poli- tind a purchaser för premises which becies, but no proof that they had ever longed to them in common. acted for defendant in adjusting losses or Plaintiff found such a purchaser, bewaiving conditions before the occasion in tween whom and defendant, Charlick, an question, or that they were agents of de- oral contract of sale was made, the terms fendant for any other purpose than as of which were mutually agreed upon. stated.

Thereupon an attorney was employed who The judge charged the jury in sub- drew up a written contract in conformity stance that, so far as the local agents as- with the agreement The purchaser stood bumed to act for the delendant in waiving ready and willing to perform his part of proofs of loss, plaintiff had a right to in the agreement, but it seems defendant fer that they had authority to act. That was disinclined to sign the contract, and if either of them said it was all right, and that the same was not consummated and the loss would be paid that would be a eventually fell through. waiver on the part of the detendant. For his commission in finding a purJeremiah McGuire for respts.

chaser plaintiff sues Rufus King for applts.

Defendant W. died pending the action. Held, error. That the authority of an The jury, under a charge presenting the agent to receive proposals for insurance question as to whether the contract was and countersign and deliver policies, can- a joint one or not, and that unless it was not be held to extend to adjusting losses, plaintiff could not recover, found for or waiving the stipulated proofs of loss, plaintiff. and binding the company to pay without Luther R. Marsh, for resp't. them. The mere fact that such an agent Beach & Brown, for appl't. assumes in a particular case to do these

On appeal, acts, does not establish his authority.

lleld, The proof of the fact, as found Judgment of General Term, affirming by the jury, that Charlick was authorjudment for plaintiff on verdict reversed ized by W. to act in his behalf is sufficient and new trial ordered.

to establish as against Charlick the joint Opinion by Rapallo, J.

contract alleged. JOINT CONTRACT.

But even if Charlick's representations SUPREME COURT, GENERAL TERM, FIRST would have bound. W. had he been living,

as to authority were not such as that they DEPARTMENT.

yet Charlick would have been so far bound Dennis, resp't, v. Charlick, Survivor, by his representations as that a recovery &c., appl't.

could have been had against him. For if Decided December 6th, 1875.

they had been intrue they would still Where one of two persons employs a doubtless be liable individually under secthird to act in the joint interests tions 136 and 274 of the Code, since the of the two, representing that he is jury found that they had in fact been authorized to bind the other, he is made.

[ocr errors]
[ocr errors]

And the fact, as found by the jury, that answer, setting up the bankruptcy of the under defendant's instruction plaintiff had Co., and the assignment to the assignees, brought a purchaser to him who was and concluding as follows: “Wherefore ready and willing to purchase, would en- these respondents submit that the said title plaiutiff to recover.

petitioners had not, at the date of the Judgment affirmed.

filing of the said petition, if they ever Opinion by Davis, P. J.; Brady, J, the property of the said B. H. & E. R. R

had, any right to the possession of any of and Daniels, J., concurring.

Co.," and particularly to the property in JURISDICTION.

question. DECISION OF STATE COURT. At the April Torm, 1872, a decree was WHEN NOT REVIEWABLE. ordered in favor of the receivers, and the U. S. SUPREME COURT.

cause continued. Long and Watson, plffs. in error, v.

On the 28th of August, 1872, the asConverse, et al., difts. in error.

signees in bankruptcy, filed in the cause, Decided October Term, 1875.

a paper addressed to the court, in which

they represented that, “having read the In an action for the recovery of property, proposed decree against George W. Long

it is not sufficient to give this Court jurisdiction to review, on a writ of and John C. Watson, ordering them to error, the decision of the highest court surrender and deliver up to the receivers of a state, that title in a third party, the property described in the petition, acquired under a United States statute, we do assent to said decree,” &c. On is set up to defeat the plaintiff's claim; the 5th of May, 1873, a decree in form the defendant himself must claim title under a statute (R. S., 709.)

was entered, in which it was found as

a matter of fact, that * * * * the right Error to the Supreme Judicial Court to the possession of and the title to the of Massachusetts.

property mentioned are now in the petiOn August 20, 1870, the defendants in tioners, notwithstanding the amended error were appointed receivers of the B. answer of the said defendants, and the 1!. & E. R. R. Co.

alleged adjudication in bankruptcy, and On the 1st of March, 1871, the Com- the subsequent assignment therein." mny was adjudged a bankrupt and an Thereupon it was decreed that the reassignment covering all its property pos-ceivers recover, &c., &c. sessed on the 21st of October, 1870, was Held, Our jurisdiction in this case de made, under the provisions of the bank- pends upon the effect to be given to that rupt act, to assignees.

provision of the judiciary act (Rev. Stat, On the 20th of September, 1871, the 709), which authorizes this court to re-exdefendants in error filed a bill in the amine the decisions of the highest court Massachusetts Court against the plaintiffs of a state in certain cases where any in error, to recover certain bonds of the title, right, privilege or immunity is city of Providence, which, it was alleged, claimed under” any statute of the United belonged to the R. R. Co., but which the States. Company had wrongfully transferred, That Long and Watson did not claim through one of its officers, to the plain- under the assignees in bankruptcy; that tiffs in error. The plaintiffs in error they set up the title of the assignees, not answered the petition, denying substan- to protect their own, but to defeat that of tially all its allegations.

the receivers; that they claimed adversely Subsequently, on the 27th of June, to both the receivers and the assignees, 1872, they filed an amendment to their and that they, therefore, claimed no title

right, privilege or immunity under the in and by which, after disposing of other bankrupt law.

portions of his property, he bequeathed Case dismissed for want of jurisdic- and devised two seventh parts of the rents tion.

to his wife in licu of dower, and the other Opinion by Chief Justice Waite. five-sevenths to John T., Catherine, the

wife of one Hugh Kelly, Mary Ann, MarLEASE.

garet and Josepbine. Mary Ann married N. Y. SUPREME COURT, GENERAL TERM, William A. Smets, who inherited the FIRST DEPT.

wife's interest in the leasehold property Isaac Dayton, Public Adm., &c., respt., from her. agst John McCahill and Virginia P.

The lease of 1858 aforesaid, which was Kelly, Executrix, &c., applt.

a renewal of a lease executed in 1837, December 30, 1875.

provided that in case the parties to whom

the term created by the lease was granted When one of joint lessees receives rents

were not entitled to the renewal aforesaid, under the authority created by a lease, and upon the strength of the title

the same should be void. the lessees, he has no right to retain

The real grounds of defence of the acthe money on the ground that the tion were that the plaintiff, as adminislease was a nullity.

trator of Wiliiam Smets, was not entitled The appeal in this case is from a judg. to any of the rents accruing upon the ment recovered in favor of the defendant, lease, for the reason that parties to the John McCahill, dismissing the plaintiff's lease of 1858 were not the parties entitled complaint as to him withont costs, and to renew the prior lease. in favor of the plaintiff against Virginia

Moses Ely for applt. P. Kelly, as executrix, for $5,538.45 and Thomas Brackenfon for respts. costs, in an action for an accounting. Held. The executrix seems to have col

The complaint alleged that one William lected and received the rents under the Smets, who died intestate, was the owner authority created by the lease, and upon of one-fifth of the rents of certain the strength of the title of the lessees leasehold property in East Broadway, in named in it. After going so far as to rethe city of New York, by reason of a one- cover the money in that way it would be fifth ownership in a certain lease dated difficult to advance any well grounded

, 1858, leasing said property theory which would justify her in returnto said Smets and others.

ing it. The collections were evidently The answer is substantially a general

made upon the assumption that the leasedenial on the part of defendant McCahill, hold estate had been lawfully taken and and also on the part of the defendant Vir- vested under the lease, and that ought to ginia P. Kelly, as executrix of Hugh be sufficient to prevent her from mainKelly, deceased, except that she, answer.taining her claim to return the money ing separately, admits the receipt by her collected as the shares of the others named

in it. Tne collections were evidently of rents accruing from the property made upon the assumption that the leaseaforesaid. The original lease of the premises was vested under the lease, and that ought to

hold estate had been lawfully taken and assigned in February, 1826, to Thomas

be sufficient to prevent her from mainWymbs.

taining her claim to retain the money colThe term created by it expired on May lected as the shares of the others named 1st, 1837, but it contained a covenant for in it, as no adverse right to it nad been renewal. Thomas Wymbs died in 1830, advanced or maintained on the part of having first made and published his will, any other person.

But held, further, that the case does not they had the promise of aid in completing show any real infirmity in the title made it. by plaintiff to the money as the personal the referee that the contractor had agreed

But it was proved to the satisfaction of representative of Smets.

that defendant might complete the work, Judgment affirmed.

and the other fact became wholly unimOpinion by Daniels, J.; Davis P. J., portant. and Brady J. concurring.

Defendant insisted that plaintiff was not

entitled to recover for the reason that the MECHANIC'S LIEN. DEFENSES. contractors had never completed the build. N. Y. SUPREME COURT, GENERAL TERM, ing, and no valid reason was shown for FOCRTU DEPARTMENT.

not completing it.

And 2d. Plaintiff had not shown that Wheeler vs. Schofield.

the materials furnished by him and used Decided January, 1876.

in the construction of the house, were A party furnishing a contractor ma- furnish d with the knowledge or consent

terials, (c., is not bound to notify of the owner. owner of property in order to get and the contractors to continue work on thọ

Held, That after plaintiffs had allowed enforce his lien.

building for a month after the time speciWhere building was to be completed in fied in the contract, it was too late for him

one year, party may extend time ver- to insist on performance on the day. A bully-lien will hold, &c.

party desiring to insist upon strict perIn January, 1873, defendant made a formance must take his stand promptly. contract in writing, in and by which C & P Held also, That it is not necessary that were to build him a house and furnish a person furnishing material or labor to a materials therefor, at an agreed price, and contractor should o' tain the consent of complete same in good workmanlike man. the owner of the building, such a requirener, on or before December 1st, 1873. ment would lead to great delay and no

The building was not completed by corresponding benefit. It is enough that December 1, 1873, but with defendant's the owner knows that labor or miterials consent C & P continue to work under said are being furnished to the contractor and contract until January 8, 1874, when C such owner does not object to it. & P failed in business, and their work Judgment affirmed. men struck, and defendant with the con Opinion by Mullin, P. J.; Smith and sent of C & P went on and finished up Gilbert, JJ., concurring. the work.

Plaintiff, who had furnished materials for said house to C & P filed a mechanic's NEGOTIABLE PAPER FRAUDU. lien on the property, and this is an action

LENT ALTERATION. to foreclose it. C testified on the trial, on the part of

SUPREME COURT OF PENNSYLVANIA. the plaintiff, that he and P did not aban

Brown, pltf. in error, v. Reed defdt in don the work, nor consent to allow defendant to finish the building, and he was asked by the plaintiff's counsel whether Decided November Term, 1875. the persons having filed liens had offered Negotiable paper issued in such condithem assistance on the Monday after the workmen had ceased to work on the build

tion as to be easily susceptible of al

teration amounting to a forgery,will ing. The question was objected to, over

be enforced in the hands af a bona

fide holder. But where, as in this ruled, and witness answered that they had.

case, an instrument not purporting Held, That the question asked witness

to be negotiable paper, but capablo of above, was incompetent, but the admis

being readily altered, without uetea sion of it was so immaterial that it could tion, into such, is signed, whether or not harm defendant. It might furnish not the party signing was guilty of a reason why the contractor would not be negligence, is a question of fact for likely to consent to abandon the work if

error.

the jury.

« ForrigeFortsett »