bound by the resolutions, but their se- certificate remains due. Then the seccurity is not impaired. If they do not ond finding of the learned judge is that

by means of it obtain payment of all that is due to them, the unpaid balance remains due from the debtors, according to their own plain acknowledgement. The mortgagees are bound by the resolutions, but only to this extent, that if their security is not sufficient to pay their whole debt, they cannot claim more than the composition upon the unpaid balance.

They are not in any way bound by the debtor's estimate of the value of the security.

the creditors have elected to stand on their security. What does that mean? There is not a trace of any evidence to shew that they ever consented to take the security in full satisfaction of their debt. Of course they stood on their security until they sold it to some one else. If they had come in and sought to prove in the composition, they must have valued their security, and they would have been bound by that value, as they would also have been bound, if they had sought the assistance of the court in realizing their security, by the proceedings for that purpose.

In a litigation b. tween the debtor and one of the creditors, the creditor cannot be affected by any representation made I have no doubt that these creditors by the debtor. The creditor is only are entitled now, just as they would claiming the composition which is im- have been if they had realized their posed on him by the resolutions. The security before the resolutions, to prove effect of those resolutions is to make the debtor a free man if he complies with their conditions, and this is what is now asked that these debtors shall do.

The learned judge says that the registration of the resolutions operates as the close of the composition, and that no creditor can after that make any claim against the estate of the debtors.

for the balance of their debt, and con-
sequently to receive the £411 3s. 5d.
The appellants must have their costs of
the proceedings since the date of the
agreement to state the special case, and
also their costs of the appeal.
Opinion by Bacon, C. J.

BROKER'S COMMISSIONS.

FIRST DEPARTMENT. Thomas N. Allis, respt. v. Phillipsburg Manufacturing Company, applt.

Decided May 5, 1876.

I quite agree that the resolutions oper- N. Y. SUPREME COURT. GENERAL TERM ated as a close of the proceedings for a composition, though it is quite a novel expression, but that only means that, as between the debtors and the creditors, it was then decided that the composition should close accounts upon payment of the 10s. in the pound. But I do not agree that the effect of the resolutions was this, that these creditors could not, after they had realized. their security, come upon the estate for, or rather claim to be paid by the debtors, the composition in respect of the deficiency which I find by the Registrar's

To enable a broker to recover commissions for procuring a contract, he must show that he was the procuring cause of the identical contract which was subsequently entered into by the parties.

Appeal from judgment on a verdict of a jury, and from order denying motion for a new trial on the minutes.

The plaintiff, a broker in railway

supplies, iron, &c., sues the defendant ant was made aware of the wants of on a contract, alleging that they em these parties at Port Jervis for the ployed him to obtain for them the con- bridge, and that he introduced the detract for building a suspension bridge fendant to Mr. Moorehead, who was over the Delawa e river at Port Jervis, the agent who desired to have this New York, and agreed to pay him the bridge built, and iu a ge: eral sense it broker's commissions usual in such cases. may be said, therefore, that it was The answer was substautially a gen- through the agency of the plaintif in making the defendant acquainted with the person for whom the bridge was to be built in the subject matter the defendant ultimately obtained the contract."

eral denial.

fendant.

On appeal.

Held, That there certainly was evidence sufficient to go to the jury, and no

The evidence was conflicting upon the question weether the plaintiff was instrumental in procurin the contract which was actually made by the defendant for constructing the bridge; defendants asserting that the contract entered into between themselves and third party, one Moorehead, was differ- such preponderance on either side as ent from the contract for the construc- would have justified the court in intertion of the suspension bridge which fering with the verdict on the grounds plaintiff contracted to procure for de- suggested. It is undoubted sound law that to entitle the broker to recover commisThe judge on the trial charged the sions, he must show that he was the jury that if they believed that the procuring cause of the sale or contract. plaintiff negotiated with reference to on which they are claimed to be due, another state of facts than that which and we have no hesitation in saying formed the basis or terms of the con- that if the plaintiff was employed to tract subsequently made between procure one contract which he failed to Mcorehead and the defendant, he could do, and the defendants and Mr. Moorenot recover, unless his services were the head, by themsel es, afterwards enterprocuring cause of the second contracts ed into another and different one in rebeing made; that his right to recover spect to which the plaintiff had no compensation depends upon the per agency as a procuring cause, there would formance by him of the specific thing, be no right to recover commissions. for the accomplishment of which he was employed.

The evidence in this case was sufficient to justify the court in submitting The learned judge further charged as the question to the jury whether the follows, which portion of his charge plaintiff was or was not the procuring was made the subject of special excep. cause of the contract actually made, in tion, which exception was chiefly relied the sense required by all the authorin the argument. In commencing the charge the learned judge said to the jury:

upon

"There seems to be no dispute in this case, but that it was through the agency of the plaintiff that the defend

ties.

That although the portion of the charge above referred to may be the subject of some criticism, yet when it is read in connection with other portions of the charge in which it is very distinctly

stated, in subs ance, that the agency amount of which plaintiff had knowlnecessary to recover must be the one edge, but failed to notify the sureties of which resulted in procuring the con- such default, and continued to employ tract under which the bridge was con- the principal until the default had instructed, those understood, there was no creased to the amount claimed in the error in the portion of the charge object- complaint. The nature of the default, ed to, and no injurious effect of influenc- or how, or under what circumstances it ing the verdict could have been found arose, was not proved. Defendant from it. moved to dismiss the complaint, which motion was denied, and a verdict directed for plaintiff.

The jury was required to find that the plaintiff's employment related to and covered the period of the contract actually made, and that his agency was the procuring cause of that contract being made, and the jury could not have misunderstood the plain instruction of the court on that subject. Judgment and order affirmed. Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring.

PRINCIPAL AND SURETY.

N. Y. COURT OF APPEALS.
The Atlantic & Pacific Telegraph
Co. respt. v. Barnes et. al. impl'd, &c.,
applts.

Decided March 21, 1876.

In order to discharge a surety on a bond for the faithful performance of his duties and trusts by the prin cipal, there must be proof that the delinquency of his principal was

Charles Edward Souther, for respt.
Samuel Iland, for applt.

Held, no error; that in order to discharge the sureties there should have been proof that the delinquency of their principal was caused by dishonest conduct, or a gross violation of the obligations imposed by the bond; that mere indulgence by plaintiff was not enough to discharge the sureties, as the default may have merely been casual and without dishonesty; and if such were the case there was no concealment of material facts or suppression of proper information on his part. 58 N. Y. 541.

Judgment of General Term, affirming judgment for plaintiff affirmed. Opinion by Miller, J.

WARRANTY. MEASURE OF

DAMAGES.

caused by dishonest conduct or a N. Y. SUPREME COURT, GENERAL TERM.

gross violation of the obligations imposed by the bond.

This action was brought against de fendants upon a bond executed by them conditioned that B. one of the obligors who had been employed as plaintiff's agent, would faithfully perform his duties and trusts, and account for all moneys belonging to plaintiff coming into his hands. It was admitted that about one month after the bond was

FOURTH DEPARTMENT. Zuller et. al. respts. v. Rodgers et. al. applts.

Decided April, 1876.

In an action for breach of warranty in building a canal boat, the plaintiff can recover, 1. difference between value of boat as she was and as she ought to be; 2. special damages by delays and injuries on first trip before defects could be ascertained.

This action was brought for damages

given B. was in default for a small for breach of warranty in sale of a ca

nal boat. Defendants are boat build-cutory contract the plaintiffs were bound ers, and sold a boat to plaintiff, agree- to discover its defects before delivery, ing that the boat was in all respects and were concluded by their receipt for suitable to navigate the Erie canal; the same. This exception was not well that she was properly built and adapted taken. The plaintiffs bought with warfor the navigation of such canal. The ranty, and the case of Reed v. Randall, breach as set out was that the boat was 29 N. Y. 358, does not apply to cases of too high and too wide, and could not warranty. The vendee in such case safely pass through the locks. The boat may receive the property and rely upon was designed to carry wheat. On her his warranty. Donne v. Dow, 57 N. first trip she started for Albany with Y. 16; Day v. Pool id. 52, 416. wheat, sprung a leak on the way, and delay was caused, and expense incurred in securing her freight, and transporting it to Albany.

The agreement for purchase of the boat was made before she was completed.

Geo. N. Rennedy, for applt.
D. Pratt, for respt.

Held, That the damages plaintiff was entitled to recover upon the state of facts herein are

Proof showing the value of the use of the beat, horses and crew per day was admissible under the ruling of the Circuit Judge allowing the pleadings to be amended so as to include such damages.

The defendant's counsel excepts to that portion of the charge wherein the judge instructed the jury that in estimating the damage they might take into consideration and allow the expense of unloading, storing and reload1st. General damages which would ing the grain. The judge answered, consist of the difference between the" Unless he was negligent in not taking value of the boat as she and as she was the boat on the dry dock at Frankfort warranted to be. Cary v. Gruman, 4 Lock." The counsel excepted to the Hill 625; Passenger v. Thornburn, 34 charge with this qualification. The N. Y. 634; and 2d. The special dam- judge then said, "I will ask the jury age sustained by delays, detention, loss in writing to find especially upon that of time and other injury on this first fact. To find whether the plaintiffs' trip of said boat unavoidably sustained agent was negl gent in not taking the before her defects were ascertained. boat on the dry dock. The first dry Sedgwick on Damages; 350; Firk v. dock, in question, below Frankfort." Tauk, 12 Wisconsin 276; Rose v. Wal- This question was accordingly submit lace, 11 I diana 102; Milburn v. Bil-ted to the jury in writing, who answerlows, 39 N. Y. 53. No proof of any ed it in the negative. Upon the pordamages sustained, or for consequential tion of the charge referred to in this damages from injury to the wheat on exception, and this question submitted said boat was given, or other special to the jury, they would be authorized to damages, except for delays and deten- embrace in their verdict the expense as tion by the way. proved of unloading, storing and reloading the 9,100 bushels of wheat said boat contained, which, as the judge states, the proof would amount to $91 for un

The first exception taken by the defendants was based upon the ground that the boat being sold upon an exe

loading, storage same amount, $91, and CODE, 399. PRESUMPTION reloading same amount, $91, making OF PAYMENT.

$273 for work never done, and expenses N. Y. SUPREME COURT. GENERAL TERM,

Assuming that the jury followed and obeyed these instructions of the Circuit Judge in these particulars, their verdict is erroneous to the amount of $333.-ers to prove usury set up in their ans The verdict in excess of this amount is wer was excluded on similar grounds. fully warranted by the evidence. E. Cowen, for respt.

It the plaintiff is content to deduct the said sum from the judgment of $333 and interest thereon from the time of money, and that the maker lived five the rendition of said verdict, then he years after the note became due, raises should be allowed to retain it for the no presumption of payment, and the balance, and the judgment should be defendant (endorser) is not entitled to go modified and affirmed accordingly, to the jury on the question of payment, otherwise the judgment must reversed and a new trial granted with costs to abide the event.