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. Third party can protect his interest in equity, and compel heirs to convey to him their interests.

Thomas was alive when the house

was built by plaintiff.

Held, That the evidence of the two witnesses on the trial, as to the agree The heirs could not be compelled to take ment with Thomas was admissible, as it the house so built under such agree- tends to prove the parol agreement bement, and pay for same; they could be compelled to convey same to such tween plaintiff and his father, by virtue third party. 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
equitable claims may be determined
in such actions.
Power of referee as to amendments.

Appeal from a judgment.

In May, 1872, one Thomas Knapp died, seized of a farm of land. He left surviving him six children, his only

hers at law.

Prior to his death Thomas agreed

with one of his children (the plaintiff), that if he, plaintiff, would move on to Thomas' farm and take care of same, he, Thomas, would give him a deed of a certain piece of land. Pursuant to this agreement plaintiff did move on to the farm, and he built thereon a house on the lot designated by Thomas, at an expense of about $400, and he lived on the property up to the time of Thomas' death.

This action is brought to obtain a partition of the farm, and in the event a sale is necessary, to have the amount expended in building the house charged on the proceeds and paid to plaintiff, in addition to his share of the proceeds as one of the heirs of his father.

On the trial before the referee, the plaintiff called two witnesses, who testified that prior to the time plaintiff built the house they had talked with Thomas, and he had told them that he had made the agreement substantially

That a parol agreement between an ancestor and a third person by which the former, for a valid consideration, agrees to sell and convey land to the latter, when performed by the purchaser, binds the heirs of the vendor, and the admissions of the ancestor are competent evidence againt them to establish such agreement. The agreement was sup

ported by a valuable consideration to

rect the building.

That the parol agreement being provthe house, had an equitable interest in ed, the plaintiff, after he had erected the land so agreed to be conveyed, and the heirs are bound to convey the same. That the referee could not compel the heirs to take the house and pay plaintiff' the value thereof. Plaintiff was entitled to a specific performance of the the land. The risk of selling the house agreement of the ancestor to give him.

should not be thrown on the heirs.

That in actions for partition it is not admissible to try conflicting claims as to title, but equitable rights and claims may be determined in such an action.

On the trial the referee gave plaintiff leave to amend his complaint by bringing in new parties.

Held, That the referee has power to amend a complaint by striking out or inserting the name of a party upon such terms as he shall deem just.

That the amendment was properly ant were purchased on their own ac

allowed by the referee.

The judgment appealed from reversee in part and amended in part. Opinion by Mullin P. J.

count or for the benefit of the defendant. Confessedly the hotel was erected and carried on by Staples & Nott. They were the President and Secretary of the defendant's company, and they

AGENTS. LIABILITY FOR ACTS. and others were the Trustees and

CHARGE.

N. Y. SUPREME COURT. GENERAL TERM

FOURTH DEPARTMENT.

Hiram F. Inglehart and John Wilson, Jr., respts., v. The Thousand Island Hotel Co., applt.

Decided April, 1876.

It was a proper question for a jury whether the President and Secretary of a company, in purchasing goods, &c., acted individually or for the

Stockholders of said company. The only men ostensibly connected with the management and control of said hotel and it was a proper question and inquiand its affairs were said Staples & Nott, ry for the consideration of the jury in what capacity they were acting in that relation, whether individually or on behalf of the defendant. If, as officers or agents of the defendant, they were carying on said hotel, the defendant was clearly liable for debts contracted by them for such purpose, as correctly held by the Circuit Judge, even though such debts were nominally contracted in their own names. The law on this point was correctly stated in his charge to the jury by the Circuit Judge. (Story on Agency, $267, 419; Baker v. Roberts, The defendant was incorporated 12 Wend. 413, 553; Ferguson v. HamApril 28, 1873. ilton, 35 Barb. 427.)

company. The articles of incorporation of defendant are competent for the consideration of the jury.

Appeal from judgment at Jefferson County Circuit in favor of plaintiffs. This action is brought to recover three accounts.

Plaintiffs sold groceries to Staples & Nott to the amount of $600.

Staples & Nott, and their wives, were the sole officers and stockholders of said corporation.

Plaintiffs claim that said Staples & Nott were simply agents of said hotel company, and that the goods sold were

used in said hotel.

If the goods are purchased by the agent in his own name the creditor may nevertheless hold the principal for the debt when discovered. (Porter v. Talcot, 1 Cowen, 359; Fowler v. Pendergast, 3 Hill, 72.)

None of the exceptions to the charge and to the refusals of the judge to charge as requested, we think, are well

On the trial defendant moved for a taken. nonsuit, which was denied.

Anson B. Moore, for applt. Bradley Winslow, for respt. Held, The motion for a nonsuit was properly denied. It was proper to submit the question to the jury whether the goods purchased nominally by Staples & Nott after the incorporation of the defend

Upon the question whether the defendant was carrying on the hotel when the debts were contracted, it was not error to allow the jury to take into consideration, coupled with the other evidence in the cause, the fact that the articles of incorporation of the defendant 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 plaintiff's as architects.

EVIDENCE. PRACTICE.

U. S. SUPREME COURT. The First Unitarian

Unitarian Society of Chicago, plff in error, v. II. Floyd Faulkner and George R. Clark, defts in error. (October 1875.)

Declarations of a pastor are not com-
petent evidence, unless he is shown to
be the agent of the society, and that
such declarations are within the
scope of his agency.

The presiding judge may exercise his
discretion as to the order in which
the evidence may be given.
Courts of error have nothing to do with
the verdict of a jury, except to ascer-
tain if improper evidence was ad-
mitted to the jury, or whether they
were misdirected by the judge.

The court admitted the evidence on the statement by plaintiffs that they expected to prove that the pastor acted as agent, and that the society acquiesced that they should subsequently prove in his acts, and subject to the condition that the party making the declarations was the agent of the society. No such evidence was introduced, but the case was given to the jury on the hypothesis that it was not proved that plaintiff's were the architects of the society.

A verdict was rendered for plaintiffs for $3,862.50, which was afterwards reduced, and judgment entered for $2,900, from which defendants bring this writ of error.

Held, 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 of Illinois.

This action was brought by plaintifs below to recover $4,530, for services rendered by them, as architects, in making plans and designs and drawing specifications, &c., for a church edifice for the defendants.

These plans were submitted by them at the request of defendants, in compe

tition with other architects.

was proved that he was the agent of the society, and that the declarations or admissions were made in respect to matters within the scope of his agency.

Also held, That it was not absolutely necessary that the proof of the agency, in every such case, should be first introduced; that it is competent for the preends of justice require it, to relax the siding judge, if in his judgment the rules of practice and to admit the evidence offered before the proper foundation is laid, if he is well assured by the

On the trial plaintiff's offered evidence tending to prove conversations 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 (14 Pet. 29; 14 Id. 63; 16 Ia. and admissions of the pastor at a social 361;5 Wall. 790; 4 Humph. 202; 3 Cush. 159; 9 G & J. 477); that it meeting of the church, in relation to the employment of plaintiffs as archi-was not error to admit the evidence, and that the evidence became immaterial in tects by defendants.

view of the hypothesis adopted in sub- were ultimately rejected he was to remitting the case to the jury. ceive no compensation.

The exceptions were very broad, and seemed to be directed more against the verdict than the instructions.

Held, That courts of error have nothing to do with the verdict of the jury, if it is general and in due form, except

The building committee appointed by defendants, on examination of the several plans submitted to them, gave preference to the plan prepared by plaintiff's, and voted to adopt it, provided it be modified to meet their wishes and suggestions, that the contract for to ascertain, if they can, whether imbuilding should not exceed $58,000, and that the action of the committee be ratified at a legal meeting of the society. Alterations were made, and the society instructed the committee to adopt the first plan made by plaintiffs, provided the church could be built by that plan for $58,000, all complete and satisfactory; if not, to adopt the pan of N. Y. SUPREME COURT. GENERAL TERM, another architect. The church could

proper evidence was admitted to the
jury, or whether the jury was misdi
rected by the judge; and that no error
of the kind is shown in the record.
Judgment affirmed.
Opinion by Clifford, J.

FIRE INSURANCE.

FIRST DEPT.

not be built according to plaintiffs' plan Edwin R. Brink and another, respts. for less than $78,000, in consequence of v. Hanover Fire Insurance Company, which the society refused to build ac-applt.

cording to that plan.

Decided May 26, 1876.

In an action upon a policy of fire insurance no objection having been made to the proofs of loss either as to form, sufficiency, or time of service, but same having been retained, these facts operate as a complete waiver of all objections to the proof and of all other preliminaries. Declarations of an agent of an insurance company of the result of his investigations, are admissible in an action upon the policy.

- Appeal from judgment entered on

The judge instructed the jury that if what the business partner did, after the qualified acceptance of the plan, was done under the same conditions under which the various competing plans were originally submitted, plaintiffs could not recover; nor could they recover on the theory that they were to have a reasonable compensation for their services if their plan was not ultimately accepted. He also instructed them that defendants were only liable for the acts of agents duly authorized, or for acts of persons subsequently ratified by the society. After commenting fully upon the evi-mania Fire Insurance Company, the dence, the judge said that the view previously presented was in no respect material, except so far as it bore on the question 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

verdict.

This was an action brought upon a policy of insurance issued by the Ger

Hanover Fire Insurance Company, the Niagara Fire Insurance Company, and the Republic Fire Insurance Company, all of the city of New York, and co

The judge charged the jury that if they found that the defendants, at any time, objected to the payment of the loss upon the ground of fraud, that it

On the evening of the 23d of No- was not essential for the plaintiffs to vember, a fire, which destroyed the plaintiffs' stock of goods in part, occured. The plaintiffs' account books w. re destroyed by the fire. Notice of the loss seems to have een given to the agent at Raleigh on the 25th of No. vember, 1865, by letter.

serve proof of loss, and to this the defendant duly excepted; that if the dcfendants said that they would not pay this claim at all, that would be in law a waiver of the preliminar es, necessary to make them liable in the way of proofs of loss. To this part of the charge the defendants also excepted. The court also charged that if the defendants said they would not pay this claim because they were satisfie that a fraud had been perpetrated, that would be a waiver of the defense in the pre

One Brown was sent by the General Underwriters' Agency, three or four days after November 25, 1865, for the purpose of making examinations es to the origin of the fire and the extent of the plaintiffs' loss; and after making a thorough investigation of the case, heliminary proofs of loss. declared to the plaintiffs that there was fraud in the case, and that it was questionable whether they did not set the store on fire themselves. This declara tion was admitted under objection and exception.

The plaintiffs, by their attorney, filed proofs of their loss with the defendant on the 16th of February, 1866, at the office of The Underwriters' Agency at the city of New York, and at the time the same were filed, Mr. Stoddart, the general agent, said to the attorney: "We don't owe you a single cent because the case is full of fraud. I refuse to pay you one cent."

In the examination of one of the plaintiff's as to the loss, a copy of a memorandum made by himself, was handed to him from which he gave tes timony on the subject of such loss, us

Hatch & Mac Donald, for respt.
Cotterill Bros., for applt.

Held, That upon the question of the giving of the notice of the loss there was abundance of evidence to go to the jury as to whether or not it was properly and sufficiently given.

Held further, That no objection having been made to the proof of loss, either as to form, sufficiency, or time of service, but same having been retained as it appears by the defendant's agent, these facts operate as a complete waiver of all objections to the proof and of all other preliminaries required on the part of the plaintiffs.

That the declarations of the agent who was sent to investigate the loss, were properly received. The statement which he made was simply a declaration of the result of his investigations,