plaintiffs that the custom of some of Jndgment of general term, affirming these persons had been sclicited by judgment for defendants, reversed, and the defendants. The latter denied this, a new trial granted.

Opinion by Rapallo, J.

and claimed that the customers pro

posed, without solicitation, to deal with them on being informed that they had CONSTITUTIONAL LAW. TOWN resumed business. The judge charged the jury that if they found that defendants themselves or by their agents went into the prescribed limits, and there solicited or procured orders and filled such orders, it was a breach of the covenant; but if the orders were given them without solicitation on the part of defendants (and whether they were given within such limits was immaterial), the filling of such orders was not a breach of the contract. Plaintiffs duly excepted to the last proposition. The jury, having retired, returned and asked this question: "Is the sending an agent every day to the houses within the lim ited district to take orders and filling them, a competitive business or soliciting the same?" to which the court replied, "In the construction I have given to the contract, it would not be. The orders must have originally been procured by the solicitation of the defendants. If they proceeded from the customers, and not by the procurement of the defendants, it was not a breach to fill them." This ruling was duly excepted to by the plaintiffs.

The bonds in suit were issued under

authority given to the county by the act of March 26th, 1869, incorporating the railroad company. The tenth section of the act was as follows:

"The board of Supervisors of Moultrie County are hereby authorized to subscribe to the capital stock of said company, to an amount not exceeeding eighty thousand dollars, and to issue

Chas. H. Smith for applts.
Jno. L. Hill for respts.

Held, That these rulings were erro- the bonds therefor, bearing interest at a neous; that the covenant of defend-rate not exceeding ten per cent. per anants bound them to do more than num, said bonds to be issued in such derefrain from soliciting patronage; it nominations, and to mature at such bound them not to carry on the business times as the board of supervisors may within the prescribed district, and if determine, provided that the same shall applied to for that purpose, it was their not be issued until the said road shall be duty to decline. 4 Wend., 468; Tur- opened for traffic between the city of ner v. Evans, 2 El. and Bl., 512, dis- Decatur and the town of Sullivan aforetinguished. said."



The Town of Moultrie, plaintiff in error, v. The Rockingham Ten Cents Savings Bank.

Decided April, 1876.

The authorized body of a municipat corporation may bind it by an ordinance or resolution, which, in favor of private persons interested therein, may, if so intended, operate as a con


The obligation of a contract can no

more be impaired by a constitution than by ordinary legislation. In a suit upon negotiable town bonds, the town is bound by the recitals in the bonds, and in its official records. In error to the Circuit Court of the United States for the Southern District of Illinois.

No approving popular vote was re- company, in pursuance of their charter. quired. "And be it further ordered by the This section gave to the county com- board of supervisors aforesaid that, plete authority to make a subscription when said railroad shall be open for to the capital stock of the company. traffic' between the city of Decatur and The power was fettered by no condi- the town of Sullivan aforesaid, there tions or limitations, except as to the shall be issued eighty thousand dollars. amount which might be subscribed, but of the bonds of said county, in denomipayment of the subscription was direct- nations of not less than five hundred ed to be postponed until the railroad dollars, payable to said company, drawing interest, to be paid annually, at the rate of eight per cent. per annum; the principal to be due and payable ten years after date, or sooner, at the option of the county; and that said bonds be delivered to said railroad company in full payment of the subscription of said county so made as aforesaid."

should be opened. The power thus granted was never revoked, unless it was by the new constitution of the state, which did not take effect prior to July 2, 1869, and which annulled the power of municipalities to make donations in aid of railroad companies. On the 16th of December, 1869, the board of Supervisors met and informally resolved to subscribe $80,000 to the capital stock of the railroad company, and the resolutions were referred to a lawyer to be put in forin before being recorded on the records of the board. They were accordingly prepared from minutes furnished by the chairman of the board, and entered by the clerk upon the records, as of the date of the December meeting of the board, and duly attested. This must have been done prior to the first Tuesday in March, 1870. The record, as it appears under date of December 16, 1869, is as follows:

There was no further order of this board to enter the resolutions of record, but it was the clerk's duty to make the entry. The substance of them had been adopted. They remain of record still, and the board has never taken any action to correct the record. At the December meeting of 1872 a special committee was appointed to examine the records of subscriptions of railroad donations, and report. The committee did report on the 25th day of December, 1872, that the subscription of $50,000.00 under the act of the general assembly of March 26, 1869, to aid in the construction of the Decatur, Sullivan, and Mattoon Railroad, was in accordance with law. Under this action of the board, and the rep rt of the committee, the bonds were delivered.

"And it is further ordered by the board of supervisors of Moultrie county that, under and by virtue of the authority conferred upon said board by an act approved March 26th, A.D. 1869, enti- The findings of the court are that the tled An act to incorporate the Deca- plaintiff below is a purchaser of the tur, Sullivan & Mattoon Railroad Coin- bonds for a valuable consideration, havpaty,' the county of Moultrie subscribed ing purchased them before their mato the capital stock of the Decatur, Sul- turity, and without notice of any delivan & Mattoon Railroad Company the fence. They were executed by the sum of eighty thousand dollars to aid president of the board of supervisors in the construction of a railroad by said, and the county clerk. They recite that

they are issued by the county of Moultrie, "in pursuance of the subscription of the sum of eighty thousand dollars to the capital stock of the Decatur, Sullivan and Mattoon Railroad Com pany, made by the board of supervisors of said county of Moultrie, in December, A. D. 1869, in conformity to the provisions of an act of the General As sembly of the State of Illinois, approved March 26, A. D. 1869."

Held, 1. A subscription on the books of the company was unnecessary; that the act of the board of supervisors in 1869, amounted to a subscription; the resolution of that date operated as an immediate subscription.

Judgment affirmed.
Opinion by Strong, J.

2. But whether it amounted to a subscription or not is of no moment. It was at least an agreement to subscribe, and having been accepted by the company, created a valid contract, which could no more be annulled or impaired by the prohibitions of the constitution than by legislative enactment.

Action upon a promissory note made by the defendant's testator, payable to plaintiff or order. Answer sets up defence of payment. On the trial the plaintiff produced the note, and proved that the signature was in the testator's handwriting, the note was read in evidence. The plaintiff was called as a witness on his own behalf, and was asked the question: Are you the owner and holder of this note? The defendant objected to the question on two grounds;

3. That the defendant could not set up in defense against a bona fide holder, in the face of the recitals of the First, "That it is a question of law bonds and the county records, that the and calls for the decision of a question. authority to make subscriptions had of law;" and second, "That the paper expired before the subscription was ac-in its form, shows a transaction between tually made. Whether it had expired witness and deceased." These objecwas a matter of fact, not law, and culiarly within the knowledge of the supervisors.


6. I


tions were overruled and defendent ex-
cepted. The plaintiff answered,
am." He was then asked the following
question. Has it ever been paid?"
To this question the same objections
were made. The referee overruled the
objections, and defendant
defendant excepted.
The plaintiff answered, "No."

The plaintiff rested; and no evidence on the questions of payment or the ownership of the notes was given on the part of the defendant, and the referee rendered judgment for the plaintiff for the amount of the note. The




It is an error under the 399th § of the code, to allow plaintiff as a witness in the case, to show that the testator had not paid a promissory note in his life time.

And in a case where the question is permitted under objection and exception, the Court will reverse the judg ment, although the plaintiff might have safely rested his case without the evidence.

Alexander J. Howell, respt. v. Henry K. Van Sicklen, Executors, et al., &c., applts.

Decided December 2nd, 1875.

A party has a right before offering any evidence of his defence to stand upon his objection and exception to illegal evidence, for the purpose of having same stricken from the case.

only question in the case is, whether it
was a fatal error to allow the plaintiff
to answer the questions above stated.
E. J. Spink, for respt.

George W. Van Sicklen, for applt. Held, That it was an error to allow plaintiff, by his own statement as a witness in the case, to show that the testator had not paid the note in his lifetime. The evidence was not proper, under § 399 of the code. Dyer v. Dyer, 48 Barb. 190; Clark v. Smith, 45 Id. 30; 55 Barb. 337; 3 Lansing, 68.

It is no answer to this illegal evidence to urge that the plaintiff's case was proved without it, and that defendant

offered no evidence of payment. It plaintiffs, and that defendant believed cannot be held that they had no such this suit to be brought entirely in the evidence to offer, although that may be the fact.

interest of the said Isard & Co. to enable them to recover on the note for which they have given no consideration.

Opinion by Daniels, J. and Brady, J. concurring. Davis, P. J. dissents.


In a suit against the maker of a

promissory note, it is not sufficient to allege that plaintiff had "settled with" the payee, without alleging payment.

Bank v. Berger.

Decided March 18, 1876,

Rule for judgment for want of a sufficient affidavit of defence.


For they had a right to stand upon their exception, as long as it was well taken, for the purpose of having this illegal evidence excluded from the case, before they undertook to establish their defence. They were entitled to be relieved from the effect of that evidence before they finally tried the fact of payment, in order that their own proof N. Y. SUPREME COURT. GENERAL TERM, might not be impaired by its presence in the case. The referee properly overruled the other objections to the evidence. But on account of the erroneous admission under objection of the above mentioned evidence by plaintiff, to disprove payment by defendant's testator, the judgment must be reversed and a new trial ordered, costs to abide event.


Assumpsit on a promissory note by holder against maker.

The affidavit of defence set forth

that the note was given to the firm of S. Isard & Co., as accommodation paper, entirely without consideration, and that plaintiffs derived their title to it through them; that said Isard & Co. had settled all their affairs with the

Held, The affidavit does not allege payment to plaintiffs; it avers a settlement which is not an averment of pay


Kule absolute.

Jacob P. Marshall, applt., v. Joseph S. Fowler et al., respts.

Deci led March 29, 1876.


an action for damages for fraud committed by means of representa tions, falsely stating the state of defendant's knowledge, it should be so alleged specifically in the complaint to raise such an issue on the trial. Where the grounds of the action are false statements made by defendant, with intent to deceive, it is necessary that it should appear by affirmative proof, that the defendants knew the representations to be false. Fraud will not be presumed or con jectured.

Appeal from judgment recovered on fraud was committed by means of redismissal of the plaintiff's complaint presentations falsely stating the state of at the circuit. the defendant's knowledge, etc., was not in the case. For the purpose of making it a ground of action, it should have been alleged, if the facts were considered such as to justify the statement that without knowing the condition and quality of the apples the defendants re

By the complaint, the fraud was alleged to consist in the representation that they were a first rate and choice presented that they possessed that lot of Niagara County winter apples; knowledge, and knew them to be in the and that such representation was false condition represented, and the repreand fraudulent, known to the defen- sentations were made to deceive and dedants to be untrue, and made with in- fraud the plaintiff. That was required tent to deceive and defraud the plaintiff. to enable the defendants to understand The defendant, upon these allegations, the charge made against them, in order joined issue. that they might have a proper opportunity to prepare to meet it at the trial. And the provision of the code declaring that the complaint shall contain a statement of the facts constituting the cause of action can be complied with in no other way. The case was tried upon the issue whether the defendants' knowing that the representation was untrue, represented the apples to be a first rate and choice lot of Niagara County winter apples. By neither one of the requests, nor by all of them combined together, was it claimed that any representation of the state of defendant's knowledge was made to the plaintiff, or that any such statement was shown to have been untrue.

The plaintiff brought this action to recover damages for fraud in the sale made of twenty-four hundred and ten barrels of apples, in December, 1869.

For the purpose of establishing the cause of action, the plaintiff himself, and Murphy, his foreman, one of the witnesses examined on his behalf, both testified that the defendant stated that the apples were a choice lot of Niagara County winter apples, that they were well put up, and a choice lot of apples. Evidence was then given which tended to show that the apples appeared well and of good quality under the heads of the barrels, but those in the intermediate space were unfit for ordinary purposes and mostly of the quality called cullings, used for making cider, and the difference between their value and that of choice Niagara County winter apples was shown. That made out the case as it was presented by the plaintiff's evidence.

Held, That for the purpose of maintaining the cause of action, it was necessary to show not only that a material

At the appeal it was elaborately misrepresentation had been made conargued that a fraud was committed by cerning the apples, but also that it means of representations, falsely stating should have beenshown that it was the state of defendant's knowledge con- known to be false by the person maknig cerning the condition and quality of it. The rule upon the subject is now the apples. very well settled. Marsh v. Falkner, 40 N. Y., 562, 565; 50 N. Y., 480.

Wm. W. Niles, for applt.

A. Hamilton Webster, for respt.
Held, That the point urged that a which it could be reasonably inferred

There was clearly nothing in it from

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