NEGLIGENCE. DAMAGES. U. S. SUPREME COURT. The M. & St. P. R. R., plaintiff in error v. Mary Arms, defendant in error. Decided October Term, 1875. In an action to recover for injuries resulting from negligence, whether gross or ordinary, exemplary dam ages are not allowable. Error to Iowa Circuit Court. thereon, is not a bona fide holder for value. Error to Clarion Common Pleas. The defendant in error endorsed to Brady & Co., a promissory note for collection. B. & Co., being indebted to the plaintiff in error transferred the note to it as additional security. Plaintiff in error made no advances and gave no new credit to B. & Co., on the strength of the note. The plaintiff in error, collected the Action to recover damages for injuries received by reason of a collision on de-amount of the note from the maker. This fendant's road. Plaintiff was a passenger action was brought to recover the proon defendant's train, which was running ceeds, and defendant in error had judgabout fifteen miles an hour, when it col-ment. lided with an engine on the same track. Held, That inasmuch as Brady & Co. The jar occasioned by the collision was did not acquire title by the endorsement light, and more of a push than a shock. for collection, they had no right to pledge Plaintiff was thrown from her seat and it, or to direct that its proceeds be placed sustained the injuries of which she com- to their credit in payment of their indebtplained. The Court charged: "If you edness; that, although the bank, in the find that the accident was caused by the absence of notice, had a right to treat B. gross negligence of the defendant's ser- & Co. as the owners of the note, yet, not vants controlling the train, you may give having made any advances or extended to the plaintiff punitive or exemplary any new credits upon the faith of it, it damages." Verdict for $4,000. clearly has no equity which entitles it to withhold the proceeds from the real owners. Held, Error; the absence of the care necessary to avert an accident, whether called gross or ordinary negligence, did not authorize the jury to visit defendant with damages beyond the limit of compensation for the injury inflicted. To do this there must be some wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Judgment reversed. Opinion by Davis, J. NEGOTIABLE PAPER. SUPREME COURT OF PENNSYLVANIA. First National Bank of Clarion, pl'ff in error v. Gregg, def't in error. Decided January 6, 1876. A party taking a note as collateral security for a precedent debt, without making any advances or giving any new credit Judgment affirmed. POWER OF ATTORNEY. PRESUMP- U. S. SUPREME COURT. Decided October Term, 1875. Appeal from the Supreme Court of the Territory of Colorado. Fee simple title to the lands described in the bill of complaint was vested in the complainant by virtue of a patent from the United States. Twelve or more persons are named in the bill of complaint as in the bill filed by the complainant. the principal respondents in the suit, and the complainant alleges that one James The complainant filed a general replicaHall, pretending to act in his behalf as tion and proceeded to take proofs. Among his attorney in fact, on the several days other things he introduced the patent from mentioned in the bill of complaint, with- the United States, and the deposition of out any authority whatever, conveyed by Caleb B. Clemens, his father, and the deeds of warranty certain portions of said master, appointed to take testimony, anlands, as therein described, to each of the nexed to his report to the court the two several respondents named in the bill of exhibits attached to the answers of the complaint, and the charge in effect is that respondents. No proofs were introduced the several respondents, as such grantees, by the respondents. They rested the case had full notice that the person pretending upon their deeds of conveyance and on to be the agent of the complainant acted the powers of attorney annexed to the anin making the said several conveyances swers. without any authority whatever from the The authority conferred was sufficient complainant, and that the respondents to warrant the agent to execute the deeds, combined with the pretended agent to cheat, wrong and defraud the complainant out of his title to said lands, and still refuse to restore him to his just rights. Wherefore the complainant prays that the several deeds executed by the said pretended agent to the said several respondents may be decreed to be cancelled, and and that the lots may be returned to the complainant wholly discharged from all subsequent conveyances executed by such grantees, and for general relief. and there was nothing in them inconsistent with the power of attorney given him by the complainant. Complainant gave no proof of fraud. Held, That the deeds of conveyance show on their face that they were executed within the limitations of the power of attorney, and in such case the presumption is that the trust reposed in the attorney was executed in good faith. Where the deed in such case is apparently valid, against its validity. (Very v. Very, 13 courts of justice will not infer anything How. 360.) The rule is that if the deed is apparently within the scope of the power the presumption is that the agent performed his duty to his principal. (Morrill v. Cone, 22 How. 82; Doe v. Martin, 4 Term, 39; Rail v. McKernan, 21 Ind. 421; Wilburn v. Spofford, 4 Sneed, 704; Marr v. Given, 23 Me. 55.) The respondents filed several answers, setting up substantially the same defense. They admit that the complainant was the owner of the lands in fee simple, and that certain portions of the same were conveyed to them by the person professing to act as the agent of the complainant, as alleged in the bill of complaint, but deny that the person who executed the respective conveyances acted without authority from the complainant, or that they ever combined with that person to cheat, wrong Facts will not be presumed against a or defraud the complainant, as alleged in deed of conveyance which on its face has the bill of complaint. Instead of that the all the legal requisites to make it a valid respective respondents allege that the instrument. (Rurr v. Galloway, 1 Mcagent named, by virtue of the powers of Lean, 496.) attorney annexed to the answer, or by vir- Instead of that the rule is that he who tue of one or both of the same, conveyed would invalidate such a deed must imto them respectively the certain lots or peach it by affirmative proof. (Polk v. portions of said lands for a valuable con- Wendal, 9 Cr. 87; Bagnal v. Broderick, sideration, as more particularly described 13 How. 450; Minter v. Crommelin, 18 id. 87; Bank v. Dandridge, 12 Wheat. ly, that under the pleadings and evidence 70.) Decree affirmed. Opinion by Clifford, J. STATUTE OF FRAUDS. EVI- SUPREME COURT OF PENNSYLVANIA. Taylor et al, pltffs in error v. Preston, deft. in error. Decided January 6th, 1876. A verbal promise by a vendee who takes land subject to encumbrances to pay a suit by Preston for the use of Young could not be maintained, and that recovery only could be had, if at all, in a suit brought in the name of Young himself; and thirdly, that even if the law would raise an implied promise, on the part of the defendants, to indemnify Preston, he must pay Young before he could re cover. The plaintiff below had judgment. Held, 1. That the defendants were ac quiring property for their own use. They were contracting to serve the purposes, not of the plaintiff but of themselves. And the agreement, if it was made, to pay Young, was not only a stipulation to pay a debt which Preston owed, but a stipula such encumbrances is valid. The law raises an implied promise on the part of the vendee taking subject to encumbrances, when they enter into the consideration, to indemnify the vendors against them, and the vendor may sue to the use of the holder of the encum-tion to pay the price of property they had brance without showing that he has paid bought. In no ordinary sense did they become sureties or guarantors for Preston. Parol evidence of a consideration not men- Buying the land, the promise to pay for tioned in the deed, if it be not incon- it, whatever the form, was a promise to sistent with that expressed, is admissi-pay their own debt. To hold the statute it. ble. Error to Butler Common Pleas. applicable to a case like this, it is believed, would be both a violation of principle Preston, the plaintiff below, had pur- and a departure from authority. That chased from Simon Young, by articles of statute does not require a promise to be in agreement executed on the 19th of Febru-writing where it is in effect to pay the ary, 1873, land in the county of Butler, for promissor's own debt, though that of a $21,000, and having paid $5,200, had as- third person be incidentally guaranteed; signed the articles to the defendants on it applies to the mere promise to become the 19th March, 1873, two instalments of responsible, but not to actual obligations. the purchase-money due to Young, Malone v. Kenner, 8 Wright, 107; Arnold amounting to $15,800, remain unpaid. v. Steadman, 9 Wright, 186; Maule v. Evidence was received tending to show Bucknell, 14 Id., 39. that, although not mentioned in the contract, the defendant below agreed with plaintiff, when they took the assignment, to pay off the encumbrances, and that such agreement entered into the consideration of the assignment. Preston had not paid Young. The promise is considered as not to pay the debt of another, but the debt of the property which has come to the promissor's hands. These considerations withdraws the promise from the operation of the act of 1855. That if the evidence received established It was insisted, on behalf of the defend- the fact that the agreement to pay the ants below, first, that the alleged under-money due Young was a part of the contaking of the defendants was a verbal sideration for the assignment, the ruling promise to pay a debt due by Preston to below, that the plaintiff was entitled to a Young, and under the act of the 26th of recovery, was correct. The purchase of April, 1855, could not be enforced; second- 'lands subject to the payment of the pur chase-money due to a third person, is a Covenant by the vendee to pay such purchase-money, upon which an action may be maintained in the name of the vendor, for the use of him to whom it is due. The purchaser, as between himself and the vendor, makes the debt his own, and assumes to protect the vendor. Campbell v. Shrum, 3 Watts, 60; McCrackin's Estate, 5 Casey. 426; Burke v. Gummey, 13 Wright, 518; Metzgers Appeal, 21 P. F. S. 330. 3. That the admission of parol evidence showing the agreement between plaintiff and defendants, that the latter were to where there are two witnesses con Appeal from judgment entered on verdict of a jury in favor of plaintiff. Action to recover for loss on sale of stocks on defendant's account. On May 12th, 1873, plaintiff bought for defendant, at his request, at the Stock Exchange, two hundred shares of Pacific Mail, at 53. Plaintiff was a broker, and defendant was accustomed to dealing in stocks. Stock was bought pay the encumbrances, and that this « regular," which means to be delivered promise entered into the consideration, and paid for on the following day. Plaintwas correct, apart from the question raised iff on the following day received and paid as to the effect of the Statute of Frauds. for the stock. Plaintiff testified that he It did not contradict or alter the written sent to defendant for margin which he instruments, and was not inconsistent had promised to put up, and which, acwith the consideration expressed. Buck-cording to custom, was 10 per cent. of the ley's Appeal, 12 Wright, 491. The court below, however, having erroneously withdrawn from the consideration of the jury some of the facts, the judg ment must be reversed. Judgment reversed. Opinion by Woodward J. STOCKS. SALE. N. Y. SUPREME COURT, GEN. TERM, FIRST DEPT., purchase price. On the 14th and on the 15th plaintiff called on defendant and informed him that unless the margin was put up by ten o'clock on the 17th, the stock would be sold on his account; that defendant requested until 11 A. M., which time plaintiff granted. At a few minutes after 11 A. M., the 17th, no margin having been put up, the stock was sold at the Stock Exchange at a loss of $1,500. Plaintiff was to carry the stock. On Henry L. Rogers, ptff. & respt., v. John the 13th he hypothecated it and borrowed P. Gould, deft & appt. money to carry it, and twice thereafter reDecided December 6, 1875. peated the operation. At the time of the In a purchase of stocks by a broker, and sale he did not have the original stock a sale in default of margin, it is a purchased, but delivered the same kind of question for the jury whether the bro- stock, only that the certificates bore differker was to borrow money on the stocks ent numbers, and at all times between the for the purpose of carrying the same. purchase and sale plaintiff had more than Also, what is proper notice of sale two hundred shares of this stock on hand, for default of margin. A regular sale, namely, a sale to be delivered differing only in the numbering of the certificates. Defendant denied giving any the next day, not void under the Statute of Frauds. Broker need not order or direction .to sell. The Court keep the identical stock on hand if he charged that the jury must be satisfied had other shares of the same stock to that plaintiff, by agreement, was to carry supply their place. the stock for defendant, and have the . is not crror to refuse to charge that right, in carrying, to borrow money upon it, and that for plaintiff to recover they must such sale would be made, and it was subbe satisfied that defendant had notice of mitted whether what transpired constisale at a specified time in default of mar- tuted such notice. gin, and that it was fairly sold. That the sale of two hundred shares would be sufficient though not the identical shares purchased. mony of the plaintiff. Such a charge would be manifestly improper where there is any other evidence in the case. Judgment affirmed. The refusal to charge in reference to the balancing of the testimony of plaintiff and defendant was proper. The request was not to charge that if their testimony Defendant's counsel excepted to the last exactly balanced, and there were no other part of the charge, and requested the facts to determine by, the plaintiff failed Court to charge that the contract on the to prove his case; but in case both were 18th of May was void by the Statute of equally worthy of belief, this would elimFrauds, as no part of the stock was deliv-inate all consideration of other evidence ered or money paid on that day. That that might tend to corroborate the testithe hypothecation of the certificates, was a conversion by plaintiff, notwithstanding he had other certificates to be used in their place. The Court refused, but charged that such hypothecation was a conversion, unless they believed plaintiff was authorized to do so by defendant, or by the dealings between them. Defendant's attorney also requested the Court to charge that if the jury gave equal credit to both plaintiff and defendant, their testimony balanced the one against the other, and there was a failure of proof. The Court charged that they must reconcile their statements if they could, if not, they must judge between them. Jury rendered judgment for plaintiff. Brady, J. J., concurring. TRUSTS. NEW YORK SUPREME COURT, GEN. Peter Brunner, respt., agst. Henry Decided December 30, 1875. Money paid for land purchased at an auction sale may be recovered back upon the discovery that the grantors in the deed could not give a valid title to the premises. Questions of title arising out of the provisions of the trust clause in a will. Appeal from a judgment recovered by plaintiff at Special Terın. Action brought to recover back the sum of $1,799.77, it being auctioneer's fees and ten per cent. of the purchase price of certain real estate, purchased at an auction sale, and also to have the agreement to complete the purchase cancelled. The question of notice was properly The grounds of the action were that submitted. It was necessary to give no- the defendants, who sold the property, had tice of the day, time and place at which refused and were unable to give a perfect |