third party.

sell and convey certain real estate to as above stated. The agreement bethe latter, when performed, binds the tween plaintiff and his son was never heirs of the vendor. Admissions of reduced to writing. ancestor are admissible to establish such agreement.

Thomas was alive when the house Third party can protect his interest in was built by plaintiff.

equity, and compel heirs to convey to Held, That the evidence of the two him their interests.

witnesses on the trial, as to the agreeThe heirs could not be compelled to take ment with Thomas was admissible, as it

the house so built under such agreement, and pay for same; they coula tends to prove the parol agreement bebe compelled to convey same to such tween plaintiff and his father, by virtue

of which he claims to be entitled to the It is not admissible in an action of land. partition to try the legal title, but

That a parol agreement between an equitable claims may be determined ancestor and a third person by which the in such actions.

former, for a valid consideration, agrecs Power of referee as to amendments.

to sell and convey land to the latter, Appeal from a judgment. In May, 1871, one Thomas Knapp the heirs of the vendor, and the ad

when performed by the purchaser, binds Jied, seized of a farm of land. He missions of the ancestor are competent ieft surviving him six children, his only evidence againt them to establish such hers at law. Prior to his death Thomas agreed agreement. The agreement was sup

ported by a valuable consideration to with one of his children (the plaintiff),

rect the building. that if he, plaintiff, would move on to

That the parol agreement being provThomas' farm and take care of same, he, Thomas, would give him a deed of a the house, had an equitable interest in

ed, the piaintiff, after he had erected certain piece of land. Pursuant to this

the land so agreed to be conveyed, and agreement plaintiff did move on to the

the heirs are bound to convey the same. farm, and he built thereon a house on That the referee could not compel the the lot designated by Thomas, at an heirs to take the house and pay plaintiff

' expense of about $400, and he lived on the value thereof. Plaintiff

' was entithe property up to the time of Thomas'

tled to a specific performance of the death. This action is brought to obtain a par- the land. The risk of selling the house

agreement of the ancestor to give him tition of the farm, and in the event a

should not be thrown on the heirs. sale is necessary, to have the amount

That in actions for partition it is not expended in building the house charged admissible to try conflicting claims as to on the proceeds and paid to plaintiff, in

title, but equitable rights and claims addition to his share of the proceeds as

may be determined in such an action. one of the heirs of his father.

Ön the trial the referee gave plaintiff On the trial before the referee, the

leave to amend his complaint by bringplaintiff called two witnesses, who testitied that prior to the time plaintifi ing in new parties.

Nield, That the referee las power to built the house they had talked with amend a complaint by striking out or Thomas, and he had told them that he inserting the name of a party npon such had made the agreement substantially terms as he shall deem just.

That the amendment was properly ani were purchased on their own acallowed by the referee.

count or for the benefit of the defendThe judgment appealed from revers- ant. Confessedly the hotel was erected ee in part and amended in part. and carried on by Staples & Nott. Opinion by Mullin P.J.

They were the President and Secretary

of the defendant's company, and they AGENTS. LIABILITY FOR ACTS, and others were the Trustees and CHARGE.

Stockholders of said company. The N. Y. SUPREME Courr. GENERAL TERM only men ostensibly connected with the FOURTH DEPARTMENT.

management and control of said hotel Iliram F. Inglehart and John Wil, and it was a proper question and inqui

and its affairs were said Staples & Nott, son, Jr., respts., v. The Thousand Island

ry for the consideration of the jury in Hotel Co., applt.

what capacity they were acting in that Decided April, 1876.

relation, whether individually or on beIt was a proper question for a jury half of the defendant. If, as officers or

whether the President and Secretary agents of the defendant, they were carof a company, in purchasing goods, dc., acted individually or for the rying on said hotel, the detendant was

clearly liable for debts contracted by company. The articles of incorporation of de- them for such purpose, as correctly held fondant are competent for the con- by the Circuit Judge, even though such sideration of the jury.

debts were nominally contracted in their Appeal from judgment at Jefferson own names. The law on this point was County Circuit in favor of plaintiffs. correctly stated in his charge to the ju

This action is brought to recover ry by the Circuit Judge. (Story on three accounts,

Agency, SS 267, 419; Baker v. Roberts, The defendant was incorporated 12 Wend. 413, 553; Ferguson v. HamApril 28, 1873.

ilton, 35 Barb. 427.) Plaintiffs sold groceries to Staples & If the goods are purchased by the Nott to the amount of $600.

agent in his own name the creditor may Stapies & Nott, and their wives, were nevertheless hold the principal for the the sole officers and stockholders of said debt when discovered. (Porter v. Talcorporation.

cot, 1 Cowen, 359; Fowler v. PenderPlaintiffs claim that said Staples & gast, 3 Hill, 72.) Nott were simply agents of said hotel None of the exceptions to the charge company, and that the goods sold were and to the refusals of the judge to used in said hotel.

charge as requested, we think, are well On the trial defendant moved for a taken. nonsuit which was denied.

Upon the question whether the deAnson B. Moore, for applt.

fendant was carrying on the hotel when Bradley Winslow, for respt. the debts were contracted, it was not

held, The motion for a nonsuit was error to allow the jury to take into properly denied. It was proper to submit consideration, coupled with the other the question to the jury whether the goods evidence in the cause, the fact that the purchased nominally by Stapies & Vott articles of incorporation of the defendafter the incorporation of ihe defend-lant specified that “The objects of

which the said company was formed To this defendants objected, on the were the business of erecting buildings ground that it had not been shown that for hotel purposes and keeping a hotel.” the pastor was, in any sense, the agent

The judgment should be affirmed. of the defendants, or that he had any Opinion by E. D. Smith, J. authority in relation to the employment

of plaintiffs as architects. EVIDENCE. PRACTICE.

The court admitted the evidence on U. S. SUPREME COURT.

the statement by plaintiff's that they exThe First Unitarian Society of pected to prove that the pastor acted as Chicago, pltf. in error, v. II. Floyd in his acts

, and subject to the condition error, v. II. Floyd agent, and that the society acquiesced Faulkner and George R. Clark, defts. that they should subsequently prove in error. (October 1875.)

that the party making the declarations Declarations of a pastor are not com

petent evidence, unless he is shown to was the agent of the society. No such be the agent of the society, and that evidence was introduced, but the case such déclarations are within the was given to the jury on the hypothesis 8cope of his agency.

that it was not proved that plaintiff's The presiding julge may exercise his were the architects of the society.

discretion as to the order in which the evidence may be given.

A verdict was rendered for plaintiffs

for $3,869.50, which was afterwards reCourts of error have nothing to do with

the verdict of a jury, except to ascer- duced, and judgment entered for $2,900, tain if improper evidence was ad- froin which defendants bring this writ mitted to the jury, or whether they of error. were misdirected by the judge.

Ill, That declarations of the pastor In error to the Circuit Court of the were not competent evidence unless it United States for the Northern District was proved that he was the agent of of Illinois.

the society, and that the declarations or This action was bronght by plaintials admissions were made in respect to matbelow to recover $4,530, for services

ters within the scope of his agerey. rendered by them, as architects, in making plans and designs and drawing spe- necessary that the proof of the agency, in

Also held, That it was not absolutely cifications, &c., for a church editice for

every such case, should be first introthe defendants.

Guced ; that it is competent for the preThese plans were submitted by them at the request of defendants, in compe ends of justice require it, to relax the

siding judge, if in his judginent the tition with other architects.

rules of practice and to admit the evi. On the trial plaintiffs offered evi

dence offered before the proper founiladence tending to prove conversations

tion is laid, if he is well assured by the between the pastor and plaintiff C., and of the action of plaintiffs in conse party offering the evidence that the quence thereof; and they also offered agency in question will be subsequently evidence tending to show statements proved (1+ Pet. 29; 14 Id. 63; 10 Id.

361; 5 Wall. 790; 4 IIumph. 202; and admissions of the pastor at a social

3 Cush. 159; 9 G & J. 477); that it ineeting of the church, in relation to the employment of plaintiff's as archi- was not error to admit the evidence, and tects by defendants.

that the evidence became immiterial in

view of the hypothesis adopted in sub- were ultimately rejected he was to remitting the case to the jury.

ceive no compensation. The building committee appointed The exceptions were very broad, and by defendants, on examination of the seemed to be directed more against the several plans submitted to them, gave verdict than the instructions. preference to the plan prepared by lield, That courts of error have noplaintiff's, and voted to adopt it, provid- thing to do with the verdict of the jury, ed it be modified to meet their wishes if it is general and in due form, except and suggestions, that the contract for to ascertain, if they can, whether imbuilding should not exceed $58,000, and proper evidence was admitted to the that the action of the committee be rat- jury, or whether the jury was misiliified at a legal meeting of the society. rected by the judge; and that no error

Alterations were made, and the soci- of the kind is shown in the record. ety instructed the committee to adopt Judgment affirmed. the first plan made by plaintifs, provid. Opinion by Clifford, J. ed the church could be built by that plan for $58,000, all complete and sat FIRE INSURANCE. isfactory; if not, to adopt the pan of V. Y. SUPREME COURT. GENERAL TERM, another architect. The church could

FIRST DEPT. not be built according to plaintiffs' plan Edwin R. Brink and another, respts. for less than $78,000, in consequence of

v. IIanover Fire Insurance Company, which the society refused to build ac

"pplt. cording to that plan.

Decided May 26, 1876. The judge instructed the jury that if what the business partner did, after the

In an action upon a policy of fire in

surance no objection having been qualified acceptance of the plan, was made to the proofs of loss either as done under the same conditions under to form, suficiency, or time of serwhich the various competing plans were

vice, but same having been retained, originally submitted, plaintiffs could

these facts operate as a complete waiv

er of all objections to the proof and not recover; nor could they recover on

of all other preliminaries. The theory that they were to have a Declarations of an agent of an insurreasonable compensation for their serv ance company of the result of his ices if their plan was not ultimately ac

investigations, are admissible in an cepted. He also instructed them that

action upon the policy. defendants were only liable for the acts Appeal from judgment entered on

verdict. of agents duly authorized, or for acts

This was an action brought upon a of persons subsequently ratified by the society.

policy of insurance issued by the GerAfter commenting fully upon the evi- mania Fire Insurance Company, the

Hanover Fire Insurance Company, the dence, the judge said that the view previously presented was in no respect ma

Niagara Fire Insurance Company, and terial, except so far as it bore on the the Republic Fire Insurance Company,

all of the city of New York, and coquestion whether the business partner of plaintiff's was all the time perform- operating by the name of “The Undering service at his own expense, and with writers'Agency,” by which each insured the understanding that if the plans one-fourth part of $15,000 upon the

general stock of merchandise contained ing it as a memorandum. Afterwards in the store of plaintiff's situate at Lex- the original of such copy was handed ington, N. C.

to the witness, and his evidence was reThis policy was countersigned by reated. In both instances this was John G. Williams, the agent of The done under oljection and exception. Underwriters Agency, at Raleigh, N. The judge charged the jury that if C., and from that place sent to the they found that the defendants, at any plaintiffs, who received it on the 25th time, objected to the payment of the day of November, 1965.

loss upon the ground of fraud, that it On the evening of the 234 of No- was not essential for the plaintiffs to vember, a tire, which destroyed the serve proof of loss, and to this the deplaintiffs' stock of goods in part, occur- fendant duly excepted; that if the dced. The plaintiff's' account books w. re tendants said that they would not pay destroyed by the fire. Notice of the this claim at all, that wonld be in law loss seem: to have ! een given to the a waiver of the preliminar es, necessary agent at Raleigh on the 25th of No. to make them liable in the


of vember, 1865, by letter.

proofs of loss. To this part of the One Brown was sent by the General charge the defendants also excepted. Underwriters' Agency, three or four

The court also charged that if the dedays after November 25, 1865, for the

fenuants said they would not pay tinis

claim because they were satisfie I that a purpose of making examinations as to the origin of the fire and the extent of traud had been perpetrated, that would the plaintiffs' loss; and after making a

be a waiver of the defense in the prethorough investigation of the case, he liminary proofs of loss. declared to the plaintiffs that there was

Jatch & MacDonald, for respt. fraud in the case, and that it was ques

Cetterill Bros., for applt. tionable whether they did not set tie I!:, That upon the question of the store on fire themselves. This declara giving of the notice of the loss there tion was admitted under objection and was abundance of evidence to go to the exception.

jury as to whether or not it was propThe plaintiffs, by their attorney, filed erly ar:d sufficiently given. proofs of their loss with the defendant llell further, That no objection hav. on the 16th of February, 1966, at the ing been made to the proof of loss, office of The Underwriters' Agency at either as to form, sufficiency, or time of the city of New York, and at the time service, but sa ne having been retained the same were filed, Mr. Stoddart, the as it appears by the defendant's agent, general agent, said to the attorney : these facts operate as a complete waiver “ We don't owe you a" single cent be- of all objections to the proof and of all cause the case is full of fraud. I refuse other preliminaries

I refuse other preliminaries required on the to pay you one cent."

part of the plaintiffs. In the examination of one of the That the declarations of the agent plaintiff's as to the loss, a copy of a who was sent to investigate the loss, memorandum made by himself, was were properly received. The statement handed to him from which he gave tes which he made was simply a declaratimony on the subject of such loss, 11s- tion of the result of his investigations,

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