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 the creditors lave elected to stand on that is due to them, the unpaid balance their security. What does that mean? remains due from the debtors, according There is not a trace of any evidence to to their own plain acknowledgement. shew that they ever consented to take The mortgagees are bound by the res the security in full satisfaction of their olutions, but only to this extent, that if debt. Of course they stood on their their security is not sufficient to pay security until they sold it to some one their whole debt, they cannot claim else. If they had come in and sought more than the composition upon the un- to prove in the composition, they must paid balance.

have valued their security, and they They are not in any way bound by would have been bound by that valne, the debtor's estimate of the value of as they would also have been bound, if the security.

they had sought the assistance of the In a litigation b. tween the debtor and court in realizing their security, by the one of the creditors, the creditor cannot proceedings for that purpose. 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 for the balance of their debt, and condebtor a free man if he complies with sequently to receive the £111 3s. 5d. their conditions, and this is what is now The appellants must have their costs of asked that these debtors shall do. the proceedings since the date of the

The learned judge says that the reg- agreement to state the special case, and istration of the resolutions operates as also their costs of the appeal. the close of the composition, and that Opinion by Bacon, C. J. no creditor can after that make any claim against the estate of the debtors. BROKER'S COMMISSIONS. I quite agree that the resolutions oper- N. Y. SUPREME Court. GENERAL TERM ated as a close of the proceedings for a

FIRST DEPARTMENT. composition, though it is quite a novel Thomas N. Allis, respt. v. Phillipsexpression, but that only means that, burg Manufacturing Company, applt. as between the debtors and the credi

Decided May 5, 1876. tors, it was then decided that the com

To enable a broker to recover commisposition should close accounts upon

sions for procuring a contract, he payment of the 10s. in the pound. But must show that he was the procuring I do not agree that the effect of the cause of the identical contract which resolutions was this, that these creditors was subsequently entered into by the could not, after they had realized

parties. their security, come upon the estate for Appeal from judgment on a verdict or rather claim to be paid by the deb- of a jury, and from order denying motors, the composition in respect of the tion for a new trial on the minutes. deficiency which I find by the Registrar's 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. Moorchead, who was over the Delawa e river at Port Jervis, he agent who desired to have this New York, and agreed to pay him the bridge built, and in 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 plaintitt in eral denial.

making the defendant acquainted with The evidence was conflicting upon

the person for whom the bridge was to the question weether the plaintiff was

be built in the subject matter the deinstrumental in procurin the contract fendant ultimately obtained the conwhich was actually made by the de. tract.” fendant for constructing the bridge;

On appeal. defendants asserting that the contract

Hell, That there certainly was evientered into between themselves and dence sufficient to go to the jury, and no 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 fendant.

to entitle the broker to recover commisThe indge on the trial charged the sions, he must show that he was the jury that if they believed that

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 orle contract which he failed to Meorehead and the defendant, he could do, and the defendants and Mr. Mooreno: recover, unless his services were the head, by themsel ts, 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 hid 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

The evidence in this case was suffiwas employed.

cient to justify the court in submitting The learned judge further charged as the question to the jury whether the tollows, 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 authori. upon in the argument. In commenc

ties. ing the charge the learned judge said to That alth-ngh the portion of the the jury :

charge above referred to may be the sub“There seems to be no dispute in ject of some criticism, yet when it is read this casc, but that it was through the in connection with other portions of the agency of the plaintiff that the defend. 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 wliat circumstances it ing the verdict could have been found arose, not proved. Defendant from it.

moved to dismiss the complaint, which The jury was required to find that the motion was denied, and a verdict diplaintiff's employment related to and rected for plaintiff. covered the period of the contract ac

Charles Elward Souther, for respt. tually made, and that his agency was

Samuel Iland, for applt. the procuring cause of that contract lieu, no error; that in order to disbeing made, and the jury could not charge the sureties there should have llave misunderstood the plain instruc- been proof that the delinquency of their tion of the court on that subject. principal was caused by dishonest con

Judgment and order affirmed. duct, or a gross violation of the obliga

Opinion by Davis, P. J.; Brady tions imposed by the bond ; that mere and Daniels, J. J., co scurring.

indulgence by plaintiff was not enouglı

to discharge the sureties, as the default PRINCIPAL AND SURETY. may have merely been casual and with

out dishonesty; and if such were the N. Y. COURT OF APPEALS.

case there was no concealment of mateThe Atlantic & Pacific Telegraph rial facts or suppression of proper inCo. respt. v. Barnes et. al. impld, &c., formation on his part. 58 N. Y. 541. applts.

Judgment of General Term, affirmDecided March 21, 1876.

ing judgment for plaintiff affirmed. In order to discharge a surety on a Opinion by Miller, J.

bond for the faithful performance of his duties and trusts by the prin WARRANTY. MEASURE OF cipal, there must be proof that the

DAMAGES. delinquency of his principal was caused by dishonest conduct or a

N. Y. SUPREME Court, GENERAL TERM. gross violation of the obligations im

FOURTH DEPARTMENT. posed by the bond.

Zuller et. al. respts. v. Rodgers et. al. This action was brought against de.applts. fendants upon a bond executed by them

Decided April, 1876. conditioned that B. one of the obligors In an action for breach of warranty who had been employed as plaintiff's

in building a canal bont, the plaintiff

recover, 1. difference between agent, would faithfully perform his du

value of boat as she was and as she ties and trusts, and account for all

ought to be ; 2. special damages by uleinoneys belonging to plaintiff coming lays and injuries on first trip before into his hands. It was admitted that defects could be ascertained. about one month after the bond was 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

Proof showing the value of the use delay was caused, and expense incurred of the beat, horses and crew per day in securing her freight, and transport- was admissible under the ruling of the ing it to Albany.

Circuit Judge allowing the pleadings The agreement for purchase of the to be amended so as to include such boat was made before she was com- damages. pleted.

The defendant's counsel excepts to Geo. N. Kennedy, for applt. that portion of the charge wherein the D. Pratt, for respt.

judge instructed the jury that in estiHeld, That the damages plaintiff was mating the damage they might take entitled to recover upon the state of into consideration and allow the exfacts herein are

pense 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 Frankfurt warranted to be. Cary v. Gruman, 4 Lock.” The counsel excepted to the Ilill 625 ; Passenger v. Thornburn, 34 charye with this qualification. The N. Y. 65+; 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 plaintifts' 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; 330; 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 reloadThe first exception taken by the de- ing the 9,100 bushels of wheat said boat fendants was based upon the ground contained, which, as the judge states, that the boat being sold upon an exe- the proof would amount to $91 for un.

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, not, in fact, incurred. I cannot see

THIRD DEPARTMENT. upon what principle these portions of Alexander, exr., applt., v. Dutcher, the charge can be upheld.

respt. The proofs tending to show these Decided May, 1876. facts were also objected to when offered, The provisions of $ 8, Chap. 276, of the and received under the objection, and

Laws of 1832, are restricted by Sec.

399 of the Code. The pecuniary exception by the defentants.

ability of the defendant does not This evidence was clearly inadmissi

raise a presumption of payment. ble. It tended to establish an imagin ary state of facts, and furnished no and endorsers of a note which became

Action by executrix against maker proper element of damages.

payable August 17, 1868. The plaintiffs were also allowed to

Action was commenced February, prove what the p'aintiffs’ loss would have 1874. The testator lived until June, been for the delay of the boat and crew 1873. The maker answered separately.

, while the cargo was being unloaded and The other defendants put in a joint and reloaded, &c. The reception of this

several answer.

One of the endorsers, evidence and the charge in respect to it

sworn as a witness for the maker only, were also erroneous. The jury were allowed to find for four days detention borrowing money from the testator

was asked “Were you in the habit of of boat and crew during this period at from time to time?” Objected to as a $15 a day-$60.

transaction between the witness and a Assuming that the jury followed and

deceased person. Excluded. Evidence obeyed these instructions of the Circuit

of the maker on behalf of the endorsJudge in these particulars, their verdict is erroneous to the amount of $333.

ers to prove usury set up in their anyThe verdict in excess of this amount is wer was excluded on similar grounds. fully warranted by the evidence.

E. Cowen, for respt. It was proved that it would cost to E. F. Bullard, for applt. cut down the cabins so as to make it safe for the boat to pass under the excluded. The provisions of the act of

Meld, that the evidence was properly bridges, from $150 to $200. This expense with other items of damages, 1832, chap 276, are restricted by sec. clearly recoverable, would exceed the 399 of the code. The fact that an enverdict, which was $460.

dorser was responsible, lived near the It the plaintiff is content to deduct maker,, that the maker was pressed for 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

Judgment affirmed with costs. abide the event.

Opinion by Learned, P. J.; Board. Opinion by E. Darwin Smith, J. man and Bockes, JI., concurring.

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