is the subject of controversy. George W. McClure was the source of title, common to plaintiffs and defendant. McClure had made a mortgage on the lots to defeudants in error, to secure payment of the tum of $18,000. A suit to foreclose this mortgage was instituted in the district court in 1868, which proceeded to a decree and sale, and plaintiffs became the purchasers, receiving the master's deed, which was duly confirmed by the court. signee of a debt, to establish that the debtor was notified of the assignment in order to protect himself against payment to the assignor. This action was brought by plaintiff as trustee of the estate of F., under a deed of trust executed by F., to recover money loaned by F. to the defendant. The defendant pleaded payment and gave evidence showing payment to F. after the execution of the deed. Plaintiff's counsel, upon the trial, requested the Judge to charge the jury that the burden of proof was upon the defendant, to show that the payment was made without notice of This decree was rendered July 1, 1870. On the 9th day of May preceeding, the mortgagor, McClure, filed a petition in bankruptcy, and on the 11th day of May plaintiff's rights, and in good faith. This he was adjudged a bankrupt, and on the 4th day of June John Mechling was duly appointed assignee. The bankrupt filed schedules in which these lots, and the mortgage of the Gaffs on them, were set out. Plaintiff in error was a tenant of McClure, and insists that all the proceedings in the foreclosure suit, after the appointment of the assignee in bankruptcy, are absolutely void, because he was not made a defendant. request was refused, and plaintiff ex- A. Hadden for applt. Held, That the charge and the refusal to charge were correct; that defendant had a right to presume that the original creditor was entitled to receive payment, and it was incumbent upon plaintiff to establish the fact of notice of the transfer. Held, The Court below having acquired It devolves upon an assignee to establish jurisdiction of the parties and of the sub- that the debtor was notified, in order to ject matter, neither a sale by the mortga- protect himself, against a payment to the gor nor the vesting of the title in the as-assignor. 9 J. R., 64; 12 id., 343; 19 id., signee by operation of the bankrupt law, 95; 1 Hill, 552; 2 Seld, 188. could avoid the full effect of its final decree; that there is nothing in the bankrupt act which places the title of the assignee upon a different footing in this respect from that of any other person taking pendente lite. Judgment affirmed. BURDEN OF PROOF. Decided February 8, 1876. Bush v. Lathrop, 22 N. Y., 550, distinguished. Plaintiff's counsel also requested the Judge to charge, that the pendency of an action to set aside the trust deed between F. and plaintiff, of which defendant had knowledge, and on which he had been a witness, was constructive notice to defendant, of the existence of the deed. The Court refused so to charge. Held, no error; that it was a question of fact for the jury. sworn as Judgment of General Term, affirming judgment for defendant at circuit, affirmed. Opinion by Miller, J. CONTRACTS. U. S. SUPREME COURT. Gilbert Woodruff, et al, plffs. in error, v. the supervisor's acts in accepting or, rejecting the work as coming up to these specifications. This Allen did in his contract with them. The supervisors reserved the right to decide as between them and Allen whether the work conA contractor is liable to his sub-con- formed to the specifications. Allen retractor for work done, although such served no such power in his contract with work may be rejected by the party defendants. These latter had a right, in who originally let the contract; there the event of a difference on that subject, being nothing in the agreement be- to have the difference settled by a court of tween the contractor and sub-con necessary. tractor, which makes the approval of law. and Allen run that risk if he rejected the work by the original party any of their work. But the supervisors could reject work without such hazard, because Allen had agreed to submit to their judgment in case of such a difference. Judgment affirmed. Opinion by Miller, J. In error to the Circuit Court of the United States for the Northern District of Illinois. John Allen having contracted with the supervisors of the County of Winnebago, Illinois. for the building of a county jail, made another contract with defendants in error, who were plaintiffs below, for all the wrought-iron work necessary in the construction of the building. The plaintiffs here, who were defendants below, became sureties for Allen by a written guaranty that he would perform his part of the contract; that is, would pay as he had promised these sub-contractors. COSTS. PRACTICE. Growx, respt. v. McCrum, applt. A notice of appeal from a Justice's The plaintiff recovered a judgment for $125, besides costs, in a Justice's Court, and the defendant appealed to the County Court. In the progress of the work differences arose between Allen and his sub contractors, growing out of the refusal of the supervisors to accept the work furnished by the latter, on the ground that it was not in compliance with the specifications of Allen's contract with the supervisors, and with the defendants in error. After much of the work was done and put in place, it was condemned, and the work abandoned by defendants in error, who brought this suit against Allen's sureties for his failure to pay as they had guarantied he would. Held, That Hough and Butler, the subcontractors under Allen, were not bound The defendant, in his notice of appeal by all Allen's contract with the super- to the County Court, stated the followvisors. But while they accepted specifica-ing, among other grounds of appeal. tions for the wrought-iron work which First, That the Justice erred in finding were in Allen's contract with the super- that the plaintiff rendered services for the visors, they did not agree to be bound by defendant in a sum exceeding in value The action was re-tried there and resulted in a judgment for the plaintiff for $93. the sum of twenty-five dollars. logs. It appeared on the trial that de The question is presented as to which fendants were the owners of the N. party is entitled to costs. Roger H. Lyon, for applt. Held, The appellant's right to costs depends upon his notice of appeal. He must state in his notice in what particular or particulars he claims the judgment should have been more favorable to him. Sec. 371 of the Code. In this case the first particular ground of appeal is that the Justice erred in finding a sum exceeding $25. This means. the judgment is for too much, and should only have been for $25. This threw upon respondent the necessity of making an offer to correct the judgment in the amount, or to be liable to pay costs if the judgment was reduced $10. No offer was made, and the judgment was so reduced. of sec. 33, t. 21, N. r. 6 E, in this State; that they contracted with one Smith to lumber on said land; that by mistake Smith cut the logs in question upon the south half of said section, caused the same to be hauled a distance of about five miles to the Ausable river, thence run to the boom at the mouth of said river, there rafted and towed from thence to Toledo in the State of Ohio, where they were sold at twelve dollars per thousand feet. It also appeared that when these logs were cut the south half of said section was owned by Eben B. Ward, and that he afterward, and before suit brought, assigned all his claim and right of action for such cutting, to the plaintiff. The plaintiff ciaimed to recover the price at which the timber was sold in The appellant was entitled to costs in Toledo. the County Court. The Court charged the jury, that if Order reversed, with $10 costs, besides they found no wilful wrong on the part of disbursements. Opinion by Barnard, J. DAMAGES. the defendant, they might award as damages the value of the property where it was taken, viz: one dollar and fifty cents per thousand, together with the profits, INVOLUNTARY CON- which might have been derived from its VERSION. SUPREME COURT OF MICHIGAN. Winchester v. Craig et al. Decided January Term, 1876. The measure of damages in trover for conversion by an involuntary tres is the market value of the passer, property at the point where it is sold by the trespasser, less the expense of getting it there. Where it is not sold, or the market value does not cover the expense, the measure is its value when first taken, together with any profits that might be derived from its value in the ordinary market, with interest. value in the ordinary market. Or, that they might take the market value at Toledo, deduct precisely the sum defendants expended in bringing it to that market, and putting it in condition for sale, and award the difference between these two sums, with interest in either case from the time the conversion took place; and refused to charge that the plaintiff would recover as damages the price for which the logs were sold in Toledo. The finding of the jury, as appears from the printed record, was as follows: "The defendants cut the timber on the land of Ward by mistake; the quantity cut was 193,786 feet; the value on the Winchester brought an action of trover land after it was cut was two dollars per to recover damages for the conversion by thousand feet; the value at Toledo, and defendants of a quantity of pine saw- for which the defendants sold the timber was twelve dollars per thousand; the ex- formed the consideration of the defendpenses of the defendants on the timber in ant's alleged indorsement had a valid incutting and removing the same to Toledo, ception. Defendant subsequently moved nine dollars and thirty-seven cents per to strike the drafts, and all evidence rethousand," and they assessed the plaintiff's damages at the sum of $3,631 40. Held, That the instructions given the jury were correct. lating thereto, out of the case. This was denied, and defendant excepted. Held, no error; that the denial of the motion did not constitute any ground of a legal exception; that evidence received under objection, which for any reason should not be considered by the jury is not necessarily to be stricken out, but may be retained in the discretion of the court, and the remedy is for the party to ask for instructions to the jury to disregard it. Plaintiff offered in evidence a check signed by defendant upon the Second National Bank of Jersey City, given for the avails of a rote made by defendant and claimed to have been discounted by said bank, which it was claimed was paid and taken up by the drafts, which were the N. Y. COURT OF APPEALS, Marks, respt. v. King, applt. Decided February 8, 1876. In an action upon a note where the de fense is forgery, other notes and checks of defendants, tending to connect defendant with the origin of the debt, for which the note in suit was given are admissible in evidence. A refusal to strike out evidence re ceived under objection constitutes no ground for an exception; if for avails of the note, to take up which the any reason it should not be consid. note in suit was given, the note then ered, the remedy is to ask for instruc-discounted having been made for the actions that it be disregarded. commodation of the maker of the note in ness, who was cashier of the Jersey City Bank, had no knowledge of the note or drafts, and chat it was not the best evidence of the discount of the note. This action was brought against de- suit. Defendant objected that the wittendant as the indorser of a promissory note. The defense was that the indorsement was a forgery. Upon the trial, certain drafts given to B., the maker of the note in suit, as the avails of the discount of a note to take up which the note in snit was given, were received in evidence under defendant's exception. The dis-suit was given. count of the note taken up had already been proved without objection. G. W. Hotchkiss, for respt. Held, That the check was a circumstance connecting the defendant with the origin of the debt for which the note in Defendant offered to prove that a witness for the plaintiff had been active in procuring the indictment of B. for counterfeiting the indorsement. The evidence was excluded. Held, That the evidence was competent as part of the res gesta; that their admis Held, no error; that this fact would not sion, without other evidence, did not ne-ave discredited his testimony either in cessarily affect defendant, or tend to es- respect to declarations and admissions of tablish the genuineness of his indorse- the defendant, or his opinion as to the ment of the note in suit; that the evi genuineness of the indorsement as given dence was also competent as laying a under oath. That the fact offered was foundation for other evidence which might entirely collateral, and was properly reconnect defendant with the note; that it jected. 32 N. Y., 127. was proper as showing that the note which Judgment of General Term, denying defendant's motion for a new trial, af- FRAUD. PRINCIPAL AND AGENT. firmed. Opinion by Allen, J. FENCES. RAILROAD. N. Y. SUPREME COURT, GENERAL TERM, Spinner v. N. Y. C. and H. R. R. R. Decided January Term. 1876. A railroad company must maintain In September, 1872, plaintiff was in possession of a farm near Ilion, Herkimer County, on which he had a herd of cattle. Defendant's railroad ran along the side of the farm adjoining the highway, which lay between the railroad and the farm. N. Y. COURT OF APPEALS. Indianapolis, Peru & Chicago R. R. Co., respt. v. Tyng, applt. Decided January 18, 1876. A party induced by fraud to make a purchase of property, and to take a warranty therefor in writing, and under seal, may disregard the latter, sue directly for the fraud, and give parol evidence of the fraudulent representations. A principal can enforce all rights of action acquired on his behalf by his agent, irrespective of any obligations or liabilities arising in the transaction between the principal and agent. in fixing the value of such property as a locomotive engine, the whole country is but a single market. Between the highway and the railroad This was an action to recover damages defendant had built a fence, and in the ience, near the house of one Farrington, ant in the sale to plaintiff of two locofor the alleged fraud and deceit of defenda gate was placed, as well to enable him motive engines. The complaint alleged a to pass to and from a part of his farm, lving on the opposite side of the railroad purchase by plaintiff through C., its agent, from his house, as to enable persons car-defendant, that plaintiff believed and reinduced by the representations made by rying freight to and from defendant's de-lied upon them; that they were false and pot, near Ilion, to pass to and from said depot with freight. made with intent to defraud, and that gines. On the night of September 30, 1872 by means thereof plaintiff suffered loss. On the night of September 30, 1872 That defendant gave a warranty in writing the plaintiff's fence was in some way torn of the character and quality of the endown, and plaintiff's cattle passed through it on to the highway, and the gate near Farrington's being open, the cattle passed through on to the track of the defendant, and some of them were killed. Verdict for plaintiff. Held, That a railroad company is bound to see to it that all gates on its road are kept closed, and it is liable if they are left open, even by the owner of land for whose convenience they are constructed. Such owner owes no duty to the owner of cattle that may be in the highway or adjoining fields. Held, That the complaint contained facts sufficient to constitute a cause of action for fraud. Also, held, That an action ex delicto can be maintained, where after fraudulent rep resentations have been made, a personal undertaking had been given, which would not have been taken but for the confidence induced by the representation, and where these have been relied upon, both in making the contract and in taking the warranty of quality, and it was shown that the deceit was the moving cause of both Opinion by Mullin, P. J.; Smith and acts, though the contract was in writing Gilbert, J. J., concurring. and sealed, and contained covenants of Judgment affirmed. |