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, and in -name to transfer the and the rule must accordingly be made said stock, with power, one or more attor- absolute. neys, under for the like purpose to -- The jury were instructed that the certificates in evidence were not negotiabl instruments by law, and that defendants acquired no title thereto. The verdict. was accordingly in favor of plaintiffs for over $30,000. Rule absolute. INSURANCE. 7 N. Y. COURT OF APPEALS. Decided January 18, 1876. The defendants' counsel upon the trial, however, requested that the jury be in-of structed as follows: This action was brought upon a policy insurance which provided, among other things, that the insured, in case of 'oss, was to immediately render a particular account thereof to the company, and when property should be damaged to forthwith cause it to be put in order, and furnish an inventory of the goods dam "If the jury find that these certificates. with bills of sale and powers to transfer executed in blank, were pledged to the defendants for value and taken by them in good faith, and that the loss to the plaintiffs 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 and powers to transfer, with their own names, and of their misplaced confidence in the man who pledged them 'to the defendants, then this loss must be borne by the plaintiffs, who, by their negligence in not filling up the blanks, and by employing and trusting such person with the certificates in such a condition enabled him to commit the fraud." Held, Under the rule laid down in Mundorff v. Wickersham, 13 Smith, 87 "that where one or two innocent persons must suffer by the fraud or negligence of a third, whichever has accredited him must bear the loss;" this point, if made were forwarded to defendants, who afterwards notified plaintiff that they were not accepted on the ground that he had not complied with the conditions of the policy, as to giving a particular account of the loss to the company, and furnishing an inventory. It was conceded on the trial that this condition had not been complied with, but plaintiff claimed that it had been waived by the defendant. Plaintiff proved that immediately after the fire the agents of other companies, who had policies on the property, examined the stock and books, and estimated the damage, and agreed that the loss exceeded the amount insured. That Straight, one of defendant's local agents, acted with them and concurred in their conclusion, and expressed himself satisfied that the loss was double the insurance. Defendant objected to all this evidence on the ground that Straight's authority was not proved. There was proof that Straight and his partner were local agents for issuing policies, but no proof that they had ever acted for defendant in adjusting losses or waiving conditions before the occasion in question, or that they were agents of defendant for any other purpose than as stated. The judge charged the jury in substance that, so far as the local agents assumed to act for the defendant in waiving proofs of loss, plaintiff had a right to infer that they had authority to act. That if either of them said it was all right, and the loss would be paid that would be a waiver on the part of the defendant. Jeremiah McGuire for respts. Rufus King for applts. Held, error. That the authority of an agent to receive proposals for insurance and countersign and deliver policies, cannot be held to extend to adjusting losses, or waiving the stipulated proofs of loss, and binding the company to pay without them. The mere fact that such an agent assumes in a particular case to do these acts, does not establish his authority. Judgment of General Term, affirming judment for plaintiff on verdict reversed and new trial ordered. Opinion by Rapallo, J. JOINT CONTRACT. liable individually to such third, per son. Appeal from judgment entered upon the verdict of a jury. Plaintiff was employed as a real estate broker by defendant, who acted for himself and one W., in whose behalf defendant declared himself authorized to act to find a purchaser for premises which belonged to them in common. Plaintiff found such a purchaser, between whom and defendant, Charlick, an oral contract of sale was made, the terms of which were mutually agreed upon. drew up a written contract in conformity Thereupon an attorney was employed who with the agreement The purchaser stood ready and willing to perform his part of the agreement, but it seems defendant was disinclined to sign the contract, and that the same was not consummated and eventually fell through. For his commission in finding a purchaser plaintiff sues Defendant W. died pending the action. The jury, under a charge presenting the question as to whether the contract was a joint one or not, and that unless it was plaintiff could not recover, found for plaintiff. Luther R. Marsh, for resp't. by the jury, that Charlick was author- 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. Dennis, resp't, v. Charlick, Survivor, by his representations as that a recovery &c., appl't. yet Charlick would have been so far bound Decided December 6th, 1875. could have been had against him. For if they had been untrue 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. 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 plaintiff 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., had, any right to the possession of any of and Daniels, J., concurring. JURISDICTION. DECISION OF STATE COURT. Decided October Term, 1875. property of the said B. H. & E. R. R. Co.," and particularly to the property in question. At the April Term, 1872, a decree was ordered in favor of the receivers, and the cause continued. On the 28th of August, 1872, the assignees in bankruptcy, filed in the cause, 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 plaintiffs claim; the 5th of May, 1873, a decree in form the defendant himself must "claim title under a statute (R. S., 709.) Error to the Supreme Judicial Court of Massachusetts. On August 2d, 1870, the defendants in error were appointed receivers of the B. 1. & E. R. R. Co. was entered, in which it was "found as a matter of fact, that **** the right to the possession of and the title to the property mentioned are now in the petitioners, notwithstanding the amended answer of the said defendants, and the alleged adjudication in bankruptcy, and the subsequent assignment therein." Thereupon it was decreed that the receivers recover, &c., &c. On the 1st of March, 1871, the Company was adjudged a bankrupt and an assignment covering all its property possessed on the 21st of October, 1870, was Held, Our jurisdiction in this case demade, 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., 709), which authorizes this court to re-examine the decisions of the highest court of a state in certain cases "where any title, right, privilege or immunity is claimed under" any statute of the United On the 20th of September, 1871, the defendants in error filed a bill in the Massachusetts Court against the plaintiffs in error, to recover certain bonds of the city of Providence, which, it was alleged, 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 Case dismissed for want of jurisdic right, privilege or immunity under the in and by which, after disposing of other bankrupt law. portions of his property, he bequeathed and devised two seventh parts of the rents to his wife in lieu of dower, and the other five-sevenths to John T., Catherine, the wife of one Hugh Kelly, Mary Ann, Margaret and Josephine. Mary Ann married tion. Opinion by Chief Justice Waite. LEASE. FIRST DEPT. N. Y. SUPREME COURT, GENERAL TERM, William A. Smets, who inherited the wife's interest in the leasehold property from her. Isaac Dayton, Public Adm., &c., respt., When one of joint lessees receives rents under the authority created by a lease, and upon the strength of the title of the lessees, he has no right to retain the money on the ground that the lease was a nullity. The appeal in this case is from a judg.ment recovered in favor of the defendant, John McCahill, dismissing the plaintiff's complaint as to him without costs, and in favor of the plaintiff against Virginia P. Kelly, as executrix, for $5,538.45 and costs, in an action for an accounting. The complaint alleged that one William Smets, who died intestate, was the owner of one-fifth of the rents of certain leasehold property in East Broadway, in the city of New York, by reason of a onefifth ownership in a certain lease dated , 1858, leasing said property to said Smets and others. The answer is substantially a general denial on the part of defendant McCahill, and also on the part of the defendant Virginia P. Kelly, as executrix of Hugh Kelly, deceased, except that she, answer. ing separately, admits the receipt by her of rents accruing from the property aforesaid. The original lease of the premises was assigned in February, 1826, to Thomas Wymbs. The term created by it expired on May 1st, 1837, but it contained a covenant for renewal. Thomas Wymbs died in 1830, having first made and published his will, Moses Ely for applt. Thomas Brackenfon for respts. Held. The executrix seems to have collected and received the rents under the authority created by the lease, and upon the strength of the title of the lessees named in it. After going so far as to recover the money in that way it would be difficult to advance any well grounded theory which would justify her in returning it. The collections were evidently made upon the assumption that the leasehold estate had been lawfully taken and vested under the lease, and that ought to be sufficient to prevent her from maintaining her claim to return the money collected as the shares of the others named in it. The collections were evidently made upon the assumption that the leasevested under the lease, and that ought to hold estate had been lawfully taken and be sufficient to prevent her from maintaining her claim to retain the money colected as the shares of the others named in it, as no adverse right to it had been advanced or maintained on the part of any other person. But held, further, that the case does not show any real infirmity in the title made by plaintiff to the money as the personal representative of Smets. Judgment affirmed. they had the promise of aid in completing it. the referee that the contractor had agreed But it was proved to the satisfaction of that defendant might complete the work, and the other fact became wholly unim Opinion by Daniels, J.; Davis P. J., portant. and Brady J. concurring. MECHANIC'S LIEN. DEFENSES. Defendant insisted that plaintiff was not entitled to recover for the reason that the contractors had never completed the build N. Y. SUPREME COURT, GENERAL TERM, ing, and no valid reason was shown for FOURTH DEPARTMENT. Wheeler vs. Schofield. A party furnishing a contractor materials, &c., is not bound to notify owner of property in order to get and enforce his lien. Where building was to be completed in one year, party may extend time ver bally-lien will hold, &c. In January, 1873, defendant made a contract in writing, in and by which C & P were to build him a house and furnish materials therefor, at an agreed price, and complete same in good workmanlike manner, on or before December 1st, 1873. The building was not completed by December 1, 1873, but with defendant's consent C&P continue to work under said contract until January 8, 1874, when C & P failed in business, and their workmen struck, and defendant with the consent of C&P went on and finished up the work. Plaintiff, who had furnished materials for said house to C & P filed a mechanic's lien on the property, and this is an action to foreclose it. C testified on the trial, on the part of the plaintiff, that he and P did not abandon the work, nor consent to allow defendant to finish the building, and he was asked by the plaintiff's counsel whether the persons having filed liens had offered them assistance on the Monday after the workmen had ceased to work on the building. The question was objected to, overruled, and witness answered "that they had." Held, That the question asked witness above, was incompetent, but the admission of it was so immaterial that it could not harm defendant. It might furnish a reason why the contractor would not be likely to consent to abandon the work if not completing it. And 2d. Plaintiff had not shown that the materials furnished by him and used in the construction of the house, were furnish d with the knowledge or consent of the owner. the contractors to continue work on the Held, That after plaintiffs had allowed building for a month after the time specified in the contract, it was too late for him to insist on performance on the day. A party desiring to insist upon strict performance must take his stand promptly. Held also, That it is not necessary that a person furnishing material or labor to a contractor should o' tain the consent of the owner of the building, such a requirement would lead to great delay and no corresponding benefit. It is enough that the owner knows that labor or materials are being furnished to the contractor and such owner does not object to it. Judgment affirmed. Opinion by Mullin, P. J.; Smith and Gilbert, JJ., concurring. |