commissioners, certificate, that the con Held, That the defendant in its tract was free from fraud. The answer, answer omitted the allegation of fraud

(1.) Denied that the contract was which its officers believed could be ever actually made.

shown in the case, for the reason that (2.) Denied that there had been it believed itself to have been concluded sealed bids and proposals, or precedent in attempting such a defence by the resolutions of the common council. commissioners, certificate; but the de

(3.) Denied the amount of labor or cision of the court of appeals seems to material as set up in complaint, or have removed that disability, and fraud complied with terms of contract. could now be properly alleged. The

(4.) Alleged the materials furnished circumstances in the case seem to to have been inferior.

be sufficient to excuse the omission of (5.) Denied the validity of the cer- this defence in the first instance. It tificate. It however contained no direct was omitted in good faith under a allegation of frand.

misapprehension, and justice would apOn these issues the case went to trial, pear to require that an opportunity be when plaintiff was non-suited. The giren defendant to set this up. Nor general term sustained this judgment, should the death of two of the plainbut the court of appeals reversed this tiff's witnesses prevent this, even though decision, holding that the defects in it may to some extent be unfortunate the contract were cured by chap. 5, for plaintiff, for if the contract was laws of 1871, also holding that the fraudently obtained or the work fraucommissioners, certificate was in valid, dently done, the public should not be as they had no jurisdiction and that cause of these witnesses' absence, be comdefendant might give evidence of pelled to bear the burden of frand. fraud.

If the defence of fraud is not estabA new trial was ordered.

lished, then plaintiff's claim so far as The defendant now applies for leave it may be sustained will be allowed, to set up as a defence, fraud in the and the absence of the deceased parties inception of the contract, claiming that will not prevent that result; ard if the when the answer was originally drawn demand be fair and honest there is no it believed itself to be concluded from reason for supposing that defendant alleging fraud, by the commissioners can show it to be fraudulent. certificate; but that the court of appeals The case is a proper one fir allowhaving declared that to be of no effect, ing the amendment desired, but as they now seek to avail themselves of it will raise an entirely new issue, and the benefit of that decision.

as the one presented by the present The application was denied, for the answer has been decided against the reason that two of plaintiff's most defendant, it should be on payment to important witnesses on the question of plaintiff of all costs since the answer fraud, Brown, the contractor himself,

served. and Tracy, the engineer of the depart Order reversed and an order entered ment of public works, were both dead.

aallowing defendant to amend its answer Francis Lynd Stetson, for applt. on above terms. John E. Develin, for respt.

Opinion by Daniel, J. Davis, P.; J., On appeal.

and Brady, J., concurring.


AGENCY. COLLECTION OF COM- had at that time, a large balance due it

MERCIAL PAPER BY BANKS. from that bank. U. S. Circuit Court, N. D. OF ILLINOIS.

The Cook County Bank failed on

the 19th January, but the defendants Albert G. Hyde, et al., v. The First

had no knowledge of its failure or emNational Bank of Lacon.

barrassment until about noon on the Where commerciai paper is sent to a 19th. bank for collection, the bank becomes

The testimony also showed that cusnot an agent for the sender, but an independent contractor, and may em- tom between that bank and defendant, ploy another bank to make the collec. and alsu between the other Chicago tion, but the latter is accountable banks and their country correspondents, only to the first bank, not to the owner was to make collections of notes sent of the paper.

there for that purpose, and credit the This action was brought to recover proceeds to the bank transmitting them. of defendant a certain sum of money That no account was kept with any othcharged to have been collected by de er person of such paper sent for collecfendant for plaintiffs, of John Hutchins. tion, and that this custom prevailed as Plea, general issue. It was tried by well when the paper was endorsed to stipulation, by court.

the bank sending for collection on acThe evidence showed that John count of their own, as when indorsed Hutchins, of Lacon, in this State, gave generally, and accounts of all such his note to the plaintiffs, residents of transactions, in all cases, were kept in New York city, for $107.63, on the the same way. 15th day of September, 1874, payable Held, That when an owner of comin four months, at the First National mercial paper sends it to, and it is acBank of Lacon, the defendant. The cepted by, a bank for collection, wheth. plaintiffs indorsed the note to the order er payable at the place where such of A. Hest, Esq., cashier, for collection bank is located, or elsewhere, in the abfor their own account. Hest then in- sence of any contract to the contrary, dorsed it to the defendant, for col- there is an implied agreement withi lection for Cook County National such bank arising from the acceptance Bank. Mr. Hest was the cashier of of the enıployment, that it will perform the Cook County National Bank, and all the acts necessary for the collection, sent the note in a letter to defend- and if not paid, of charging the parties ant on the 11th day of January, 1875, thereto. It is not regarded as the apwith instructions to collect and cred- pointment of the bank as the attorney it.” The defendants kept an account of the owner of the paper, authorized with the Cook County Bank, and then to select other agents suitable and had a considerable sum in that bank competent for the purpose of collecting The note was paid to defendant on the the note, but on the contrary, “its po18th of January, 1875, and credited to sition is that of an independent conthe Cook County Bank, as other collec- tractor, and that the instruments emtions in the usual course of business. ployed by such bank in the business The defendant remitted, on that day, to contemplated, are its agents, and not the Cook County Bank, more money the agents of the owner of the note." than this collection amounted to, and That its duty is not discharged when it

selects responsible agents to perform Hardy (the present plaintiffs were afthe duty intrusted to it. That the own- terwards substituted, having become er of the paper is not to look to the re- possessed of the former plaintiff's rights) sponsibility of the agents entrusted by in the sum of $6,000 on merchandise, the bank with its collections. That the principally whiskey and packages conbank to which he commits the paper is taining the same, “their own or held by alone answerable to him for the per- them in trust or on commission, or sold formance of all acts necessary to secure but not delivered, contained in buildhis rights, including the payment of the ings Nos. 213 and 215 State street Bosmoney when collected, and that the lia- ton, Mass.," against all loss or damage to bility to pay over attaches as soon as the same by fire for and during the the money is paid, either to it or a sub- term of twelve months from said date. agent selected by said bank to collect That in October, 1873, a fire occurfor it.

red upon the premises described in said Judgment for defendant.

policy, which loss and damage exceedOpinion by Hopkins, J.

ed in amount the sum of $6,000.

That the goods insured were the AGENT. INSURANCE. property of W. J. Hardy & Co. of N. Y. SUPREME COURT-GENERAL TERM,

New York, a firm composed of Milton FIRST DEPARTMENT.

J. Hardy and Charles B. Moorman.

The firm had no store in Boston, but John S. Kline and Clinton McClarty, shipped goods there froin time to time Receivers, &c., applts., v. The Queen Insurance Company, respt.

as sold, and in anticipation or expecta

tion of sales. Decided May 5, 1876.

That the original plaintiff was clerk A general agent having the custody and for said firm at Boston, and was author

control of his principal's property ized under a written power of attorney with full power to preserve and dispose of it in the way he deemed most to sell goods of said tirm and collect the appropriate to the success of the busi- proceeds of such sales in the name of ness, has a sufficient interest to enti- said tirm as their attorney.

tle him to iusure the property. Under the power of attorney, W.J. And where such property, has been in- Hardy took charge in Boston of the

sured as property held in trust by the New England business of M. J. Hardy person to whom the policy issued, such property will be regarded as & Co. A bank account was kept in a coming within the terms of the policy. Boston bank in the name of M. J. Har

Appeal from judgment recovered on dy & Co., and plaintiff deposited in it the report of a referee.

receipts for sales and the New York This action was brought to recover

firm drew in the name of that firm, for loss and damage by tire upon a pol. Afterwards, however, for certain busiicy of insurance issued by defendant. ness reasons, W. J. H. opened a bank

The following facts were found by account in his individual name, sold the referee:

M. J. Hardy & Co. goods in his own That the defendant, a corporation, name,, and as to third parties appeared January 21, 1873, made and delivered to be transacting business on his own its certain policy of insurance insuring account. These goods were, however, the original plaintiff, Wellington J. the property of M. J. Hardy & Co.,

and the net proceeds thereof were paid or abridge that employment. And the over to them from time to time by the risk of loss in that manner was suftiplaintiff; all expenses connected with cient by the way of interest to entitle the business being paid out of the pro- liin to insure the property. In a genceeds of sales, the plaintiff being paid eral sense, too, and as that terın is ora salary, and having no personal inter- dinarily used, he held the property est whatever in the goods or their sale. committed to his custody for the purPlaintiff rented the lofts in the prem- poses of the business in trust for the ises described in the policy, but the rent firm. It was under his charge and subfor the same was paid out of the funils ject to liis disposition, and to that exof M. J. Ilardy & Co.

tent had been intrusted to him. Ile The referee refused to find as a na:- did not hold or control or sell it for himter of fact that the goods so destroyed self but for his principals, and that in or damaged by tire were held by the the ordinary signification of the term plaintiff's in trust for M. J. Hardy, or was a trust. were held by the original plaintiff' (W.

The plaintiff' had an insurable interJ. II.), in trust at all, but found as con

est. Crawford v. Ilunter, 8 Tenn. W. clusions of law

E., 14 ; 5 Bos. and Pull, 268, 280, 294; 1. That tlie plaintiffs, at the time of Stilwell v. Stables, 19 N. Y., 401; 15 the fire had no insurable interest in the N. Y., 606. goods upon the prernises destroyed.

Instead of dismis:ing the complaint 2. That the goods destroyed and the learned referee should have held the damaged by fire as above stated, were plaintiff's were entitled to recover. not held by the plaintiffs in trust for

Judgment reversed. New trial ordM. J. I!. & Co., or in trust at all, within ered. Costs to abide event. the me:inirg of the policy of insurance.

Opinion by Daniels J.; Davis, P.J. 3. That the complaint should be dis- and Brady, J., concurring. missed with costs. F. N. Banys for applts.

ACCOMMODATION NOTE. James Emott for respt.

N. Y. SUPREME Court, GENL. TERM, Ileld, That W. J. Hardy, the orig

FIRST DEPARTMENT. inal plaintiff, was inuch more than a mere clerk. He was a general agent D. Pentield et al., iinpleaded, respts.

The Grocers Bank, applt. v. Thomas having the custody and control of his

Decided March , 1876. principals' property with full power to preserve and dispose of it in the way he Where an accommolation note is given deemned most appropriate to the pros

and used us a collateral and has not

been diverted, the person holding it perity and success of their business, and

as collateral may recover against the liable to account to them for it or its makers. proceeds when called upon for that pur- An agreement to cctend time on the pose. The care, management and sale original debt may be presumed from of the property constituted his employ

circumstances. ment and to the extent of its continu Appeal from judgment entered on ance he was interested in its preserva- the report of a referee in favor of the tion. An entire or partial destruction defendants. of the property would necessarily end This action was brought against the

makers and endorser of two promissory BOARD OF CANVASSERS. CONnotes. Judgment was taken by default STRUCTION OF STATUTES. against the endorser to whose order the

N. Y, COURT OF APPEALS. notes were payable. The makers defended on the ground that the notes

Harkens, applt., v. Mayor, &c, of were accommodation notes, and that New York, respts. plaintiff's were not bona fide holders. Decided January 2, 1876. The payee of the notes was liable, when The Board of County Canvassers of these notes were given to plaintiffs, on

New York City are organized as a another note as endorser, and being un

distinct board for special service, and able to pay it gave a check for what

not as town officers, and have the right

to designate the papers in which their money he had deposited with plaintiffs,

proceedings shall be published. and procured these two accommodation The provisions of the Revised Statutes notes, payable to his own order, and relating to publication of proceedings turned them over to plaintiffs. There

by County Canvassers (1 R. S., 133),

is not in conflict with Chapter 875, was nothing said about an extension of time, and the bank did not surrender A statute only operates as a repeal by

Laws of 1869. the first note, although they took no implication of a former one upon steps for its collection, and the debtor the same or a cognate subject to the on the trial before the referee testified

extent that the two are repugnant; they

will both stand to the extent they can that at the time of turning these notes

be given effect. over he expected that the time would

This action was brought by plaintiff be extended.

to recover charges for publishing in his Elward I. Blankman for applt. newspaper the official statement and Charles II. Truax for respt.

declaration of the board of canvassers Held, That as no diversion was shown, of the city and county of New York,

, an extension of time was such a con

in relation to the election for judges of sideration as would enable plaintiff's to

the court of appeals, in May, 1870,

which was done in pursuance of a resrecover, and that an agreement to extend might be implied froin circum-olution of the board of canvassers. stances and should have been so implied

At the trial the complaint was disin this case.

missed on the pleadings, on the ground

that the general statute (11 R. S., EdJudgment reversed and new tria

win's ed., 133, laws of 1847, chap. 210), ordered.

authorizing the board of county canOpinion by Daniels, J.; Davis, P. J. vassers to designate the newspaper in concurring; Brady, J. concurring in which to publish these statements had the result.

been repealed, as far as related to the Brady, J. writes an opinion in which county of New York, by the provision he holds that where an accommodation of the act, chap. 875, laws of 1869, note is not diverted it is available in declaring that the mayor and comptrollthe hands of one holding it only as col- er shall

, from time to time, designate lateral security.

six daily newspapers and six weeklies, but no more in which to publish the proceedings of the board of supervisors,

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