NEGLIGENCE. DAMAGES. therion, is not a bona fide holder for


Error to Clarion Common Pleas. The M. & St. P. R. R., plaintiff in er

The defendant in error endorsed to ror v. Mary Arms, defendant in error. Decided October Term, 1875.

Brady & Co., a promissory note for colIn an action to recover for injuries plaintiffin error transferred the note to it as

lection. B. & Co., being indebted to the resulting from negligence, whether gro88 or ordinary, exemplary dam- additional security. Plaintiff in error ages are not allowable.

made no advances and gave no new credError to Iowa Circuit Court.

it to B. & Co., on the strength of the note. Action to recover damages for injuries

The plaintiff in error, collected the 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 cansed 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 Held, Error; the absence of the care withhold the proceeds from the real ownnecessary to avert an accident, whether ers. called gross or ordinary negligence, did

Judgment affirmed. not authorize the jury to visit defendant

Opinion by Williams, J. with damages beyond the limit of compensation for the injury inflicted. To do this there must be some wilful miscon


TION. duct, or that entire want of care which would raise the presumption of a conscious

U. S. SUPREME COURT. indifference to consequences.

Alfred H. Clements, applt., v. Joseph Judgment reversed.

P. Macheboeuf et al., respts.
Opinion by Davis, J.

Decided October Term, 1875.
A deed of conveyance executed under

a power of attorney, and apparently

within its sarpe, is presumed to be NEGOTIABLE PAPER.


Appeal from the Supreme Court of the First National Bank of Clarion, prf in Territory of Colorado. error v. Gregg, def't in error.

Fee simple title to the lands described Decided January 6, 1876.

in the bill of complaint was vested in the A party taking a note as collateral securi- complainant by virtue of a patent from

ty for a precedent debt, without making the United States. Twelve or more perany advances or giving any new credit' sons are named in the bill of complaint as

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the principal respondents in the suit, and in the bill filed by the complainant. 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 an. in 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 and there was nothing in them inconsistcheat, wrong and defraud the complainantent with the power of attorney given him out of his title to said lands, and still re- by the complainant. Complainant gave no fuse to restore him to his just rights. proof of fraud. Wherefore the complainant prays that the several deeds executed by the said

Held, That the deeds of conveyance

pretended agent to the said several respond- show on their face that they were exeents may be decreed to be cancelled, and cuted within the limitations of the power and that the lots may be returned to the of attorney, and in such case the presumpcomplainant wholly discharged from all tion is that the trust reposed in the atsubsequent conveyances executed by such torney was executed in good faith. Where grantees, and for general relief.

the deed in such case is apparently valid, The respondents filed several answers,

courts of justice will not infer anything

against its validity. (Very v. Very, 13 setting up substantially the same defense.

How. 360.) They admit that the complainant was the

The rule is that if the deed is apparent. owner of the lands in fee simple, and that certain portions of the same were con

ly within the scope of the power the preveyed to them by the person professing sumption is that the agent performed his to act as the agent of the complainant, as duty to his principal. (Morrill v. Cone, alleged in the bill of complaint, but deny

22 How. 82; Doe v. Martin, 4 Term, 39; that the person who executed the respect-| Rail v. McKernan, 21 Ind. 421 ; Wilburn ive conveyances acted without authority v. Spofford, 4 Sneed, 704; Marr v. Given, from the complainant, or that they ever

23 Me. 55.) 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.)

a suit by Preston for the use of Young Decree affirmed.

could not be maintained, and that recorOpinion by Clifford, J.

ery only could be had, if at all, in a suit

brought in the name of Young himself; STATUTE OF FRAUDS. EVI. and thirdly, that even if the law would DENCE.

raise an implied promise, on the part of SUPREME COURT OF PENNSYLVANIA.

the defendants, to indemnify Preston, he Taylor et al, pltffs in error v. Preston, mus“ pay Young before he could redeft. in error.

The plaintiff below bad judgment. Decided January 6th, 1876.

Held, 1. That the defendants were acA verbal promise by a vendee who takes

land subject to encumbrances to pay quiring property for their own use. They such encumbrances is valid.

were contracting to serve the purposes, The law raises an implied promise on the not of the plaintiff but of themselves.

part of the vendee taking subject to en- And the agreement, if it was made, to pay cumbrances, when they enter into the Young, was not only a stipulation to pay a consideration, to indemnify the vendors debt which Preston owed, but a stipulaagainst 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 it.

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 admissible.

pay their own debt. To hold the statute

applicable to a case like this, it is believed, Error to Butler Common Pleas.

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 con

The promise is considered as not to pay tract, the defendant below agreed with the debt of another, but the debt of the plaintiff, when they took the assignment, property which has come to the promissor's to pay off the encumbrances, and that hands. These considerations withdraws such agreement entered into the consider the promise from the operation of the act ation of the assignment. Preston had of 1855. not paid Young.

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 where there are two witnesses concovenant by the vendee to pay such pur

tradicting each other, if the jury find chase-money, upon which an action may both equally worthy of credit, their be maintained in the name of the vendor,

testimony is balanced, and plaintiff for the use of him to whom it is due. The fails to establish his case. parchaser, as between himself and the Appeal from judgment entered on ver. vendor, makes the debt his own, and as- dict of a jury in favor of plaintiff. Action sumes to protect the vendor. Campbell v. to recover for loss on sale of stocks on deSbrum, 3 Watts, 60; McCrackin's Estate, fendant's account. 5 Casey, 426; Burke v. Gummey, 13

On May 12th, 1873, plaintiff bought for Wright, 518; Metzgers Appeal, 21 P. F. defendant, at his request, at the Stock S. 330.

Exchange, two hundred shares of Pacific 3. That the admission of parol evidence Mail, at 53. Plaintiff was a broker, showing the agreement between plaintiff and defendant was accustomed to dealand defendants, that the latter were to

ing 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 its 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.

purchase price. On the 14th and on the The court below, however, having erro- 15th plaintiff called on defendant and inneously withdrawn from the consideration formed him that unless the margin was of the jury some of the facts, the judg put up by ten o'clock on the 17th, the ment must be reversed.

stock would be sold on his account; that Judgment reversed.

defendant requested until 11 A. M., which Opinion by Woodward J.

time plaintiff granted. At a few minutes

after 11 A. M., the 17th, no margin havSTOCKS. SALE.

ing been put up, the stock was sold at the N. Y. SUPREME COURT, GEN. TERM, Stock Exchange at a loss of $1,500. FIRST DEPT.,

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.

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 differing only in the numbering of the cersale, namely, a sale to be delivered the next day, not void under the Sta- tificates. Defendant denied giving any tute 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 rifuse to charge that right, in carrying, to borrow money upon it,

money to

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 refusal to charge in reference to the sale of two hundred shares would be the balancing of the testimony of plaintiff sufficient though not the identical shares and defendant was proper. The request purchased.

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 testi the hypothecation of the certificates, was mony of the plaintiff. Such a charge a conversion by plaintiff, notwithstanding would be manifestly improper where there he had other certificates to be used in is any other evidence in the case. their place. The Court refused, but

Judgment affirmed. charged that such hypothecation was a conversion, unless they believed plaintiff Brady, J. J.,concurring.

Opinion by Davis, P.J.; Daniels, and 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

TRUSTS. to both plaintiff and defendant, their tes NEW YORK SUPREME COURT, GEN. timony balanced the one against the other,

TERM., FIRST DEPT. and there was a failure of proof. The

Peter Brunner, respt., agst. Henry Court charged that they must reconcile their statements if they could, if not, Meigs, Jr., et al., as trustees, &c., upplts. they must judge between them. Jury Decided December 30, 1875. rendered judgment for plaintiff.

Money paid for land purchased at an Wm. H. Arthur for respt.

auction sale may be recovered back Nelson Smith for appt.


the discovery that the grantors

in the deed could not give a valid Held, No error in the charge or refusal

title to the premises. to charge. The sale and purchase was consum.

Questions of title arising out of the mated in accordance with the usages of

provisions of the trust clause in a

will. the board. The delivery, acceptance, and payment on the following day was suffi.

Appeal from a judgment recovered by cient, and neither party could allege the plaintiff at Special Terin. Statute of Frauds.

Action brought to recover back the Plaintiff was not bound to keep in his sum of $1,799.77, it being auctioneer's possession the identical stock. The ques- fees and ten per cent. of the purchase tion seems to be settled by the Court of price of certain real estate, purchased at Appeals. Horton v. Morgan, 19 N. Y., an auction sale, and also to have the 170; Stewart v. Drake, 46 N. Y., 449-453; agreement to complete the purchase canTaussig v. Hart, 58 N. Y., 425.

celled. 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

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