Bank of the Commonwealth v. Mudgett.
the contrary, if a deputy or clerk is absent, his place would ordinarily be supplied by some other employee of the government, and not by a person selected by the defendant.
The act of 1857, chapter 416, also has provided a mode of service through the post office, by which any difficulty as to finding the indorser is obviated, and which renders it less necessary to resort to a doubtful mode of service, than might have been theretofore deemed necessary.
For these reasons I think there may be some doubt whether such a service as was made in this case is sufficient to charge the indorser. The Court of Appeals, however, in several cases of late have been disposed to relax the strictness which heretofore has existed, both as to the contents of the notice of protest, and as to the service of such notice, and we are of the opinion that it will be better to consider this service as prima facie sufficient, in the absence of any proof to the contrary. My brethren also are of the opinion that the service would be sufficient as having been made at the place of business of the defendant.
In regard to the liability of Booth, we think the evidence shows that the firm had been dealers with the bank in their copartnership business. As such dealers with the bank, their character as partners was known to the bank, and it was in the bank book of the firm that the note was entered as having been discounted on their behalf, the signature of the firm being indorsed thereon. The relation of the defendants Wilson and Booth to the bank was such as to require notice of dissolution to be given to the bank; and the advertisement of dissolution in the paper was not sufficient.
The judgment is affirmed with costs.
[NEW YORK GENERAL TERM, April 2, 1866. Geo. G. Barnard, Ingraham and Sutherland, Justices.]
nor offers to bring the amount in
dispute into court. McHenry v. Haz-
ard,
3. An allegation that the defendants
have fraudulently confederated and
conspired together for the purpose
of harassing the plaintiff by pros-
ecuting separate suits against him
for the same cause; and that such
suits have been commenced and are
prosecuted in pursuance of such con-
spiracy, is not sufficient to sustain
an action or uphold an injunction,
where the defendants claim adversely
to each other, as well as to the plain-
tiff, and no direct fraud is charged;
the plaintiff merely averring his be-
lief of such conspiracy because the
defendants have brought separate
actions for the same cause, and by
the same attorney.
ib
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hops to sell, and asking what he
could get for them. The plaintiffs
answered, stating the market price,
and asking information as to the
quantity, &c. The defendant replied,
October 4, 1862: "If you can give
me 12 cents per pound, at my
place [North Chili] I will send them
to you, after receiving a line from
you. I have about 12,000 lbs." The
plaintiffs answered by telegraph,
October 11: "Will take your hops
at offer. Ship them immediately.
We write." On the 14th of October
the defendant wrote, saying he was
busy baling the hops; that he would
ship on Monday of the next week.
Perhaps he might on Saturday, but
doubtful- Monday sure. If that
would answer, "write immediately."
On the 17th of October the plaintiffs
wrote: "It is not too late. Please
ship on Monday or just as soon as
you can get them ready." On the
24th of October the defendant wrote
that he found he could not ship the
hops in time to get the returns be-
fore he wanted the money, and that
he could sell them at home, &c. The
plaintiffs proved that they were
ready and willing to pay for the hops
in the city of New York, and that
the defendant admitted, before the
trial, that he had sold them. Held,
1. That if the letter of October 4th
and the telegraphic answer of the
11th, amounted to a contract, the
effect of the subsequent letters was
to alter the proposed time of delivery
to Monday, and to modify, to that
extent, the defendant's offer, but
they in no way affected the other
terms proposed. 2. That conceding
that the letters, taken together, made
out a contract for the sale of the hops,
the contract was that the defendant
would sell the plaintiffs about 12,000
pounds of hops at twelve and a half
cents per pound, payable at North
Chili, and would ship them on the
succeeding Monday, or as soon as
they could be got ready. 3. That
in order to entitle the plaintiffs to a
delivery of the hops, it was neces-
sary for them to make a tender of
the purchase money. 4. That the
delivery and payment were to be
simultaneous. That nothing in the
contract called for a shipment to
New York, before payment, or al-
lowed a payment any where else
than at the place designated in the
defendant's letter. 5. That until
payment was tendered, the plaintiff's
had not performed the contract, on
their part, and were not in a con-
dition to require performance from
the defendant. 6. That an offer, by
letter, on the 24th of October, that
if the defendant would ship the hops
and send the plaintiffs the railroad
receipt, they would send him a cer-
tified check, was not a valid tender; 5.
being an offer to make payment
in a mode different from the terms
of the original offer, and made after
the time of delivery fixed by the
letters. 7. That there was nothing,
in the admission of the defendant
that he had sold the hops, to relieve
the plaintiffs from the obligation to
tender payment; it not appearing
when the hops were sold. Aikin v.
Davis,
44
2. The defendant executed the follow-
ing contract, dated New York, Octo-
ber 8, 1863; "For value received,
the bearer may call on me for one
thousand shares of the stock of the
Cleveland and Pittsburgh Railroad
Company at one hundred and seven-
teen (117) per cent, any time in six
months from date, without interest.
The bearer is entitled to all the divi-
dends, or surplus dividends declared
during the time, to half past one
P. M. each day." Held that the holder
of the contract was not entitled to a
dividend which had been declared
and announced previous to the date
of the contract; although at the
time of its execution the stock was
selling "dividend on." Lombardo v.
Case,
95
3. Held, also, that the plaintiff would
not be permitted to prove, on the
trial, that by the general custom of
brokers and dealers in stocks in the
city of New York, the words "divi-
dends or surplus dividends," in the
contract, were intended to mean div-
idends declared on the stock, whether
they had been announced before or af-
ter the date of the contract, provided
that on the day the contract was
made, the stock was selling in the
market "dividend on," and not "ex
dividend;" for the reason that effect
could not be given to the custom
without making a new contract be-
tween the parties.
ib
4. Held, further, that the plaintiff could
not recover the dividend, as trans-
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6. The plaintiff, by an agreement in
writing dated July 8, 1863, agreed to
sell to the defendant a lot of land,
with a hotel thereon, for the sum of
$7000, of which $1000 was to be
paid on the 1st of August then next,
when a conveyance was to be made,
and a mortgage given by the pur-
chaser, for $6000. The agreement
contained the following provision:
"Said party of the second part [the
purchaser] also agrees to pay all
taxes and assessments that shall be
taxed or assessed on said premises
from the date hereof, until said sum
shall be fully paid as aforesaid." On
the 1st of August the plaintiff con-
veyed the premises to the defendant,
according to the agreement. Held
that by the provision in the contract
respecting taxes, the parties intended
the tax for the then current year;
and that the plaintiff having been
compelled to pay a tax assessed up-
on the property in November, 1863,
he could recover the same in an ac-
tion against the defendant. Kern v.
Towsley,
150
7. The defendant, on purchasing a glass
factory, of E., including all its earn-
ings during so much of a "fire" as
had then elapsed, agreed with the
vendor that he would pay the labor-
ers the wages which had already ac-
crued, as well as those which should
thereafter accrue, during such fire.
Held that this was not a case affected
by the statute of frauds; but that
the defendant, having derived a ben-
efit by means of the undertaking, and
having funds placed in his hands for
the payment of the indebtedness,
which he had promised, in consider-
ation thereof, to discharge, was liable
to a laborer for his wages during the
entire "fire." Huber v. Ely, 169
8. A canal boat was sold by the plain-
tiffs to the defendants for a price
agreed upon, and a bill of sale was
executed and delivered, transferring
the title. The boat being then enga-
ged in transporting merchandize, the
plaintiffs at the same time agreed,
separately and apart from the contract
of sale in reference to the trip the boat
was then making, and the expenses
thereof, that they would transfer to
the defendants all the earnings of the
boat during that trip, upon payment
by the latter of all the expenses ac-
tually incurred by the plaintiffs.
Held that this agreement had no con-
nection with the sale of the boat, or the
transfer of the title to it, but related
only to the earnings; and that parol
evidence of its terms was admissible,
notwithstanding the contract for the
sale of the boat was in writing.
liman v. Tuttle,
9. C. leased certain premises to S. for
the term of five years, subject to the
following provision: "In case the
said C. shall sell the said premises at
any time after the first two years,
he shall pay to the said S. fifty dol-
lars, and allow him to gather the
crops then sown or planted upon said
premises, and S. to give it up to said
C." Held that it might fairly be in-
ferred from this provision of the con-
tract that it was the intention of the
parties that the $50 should be paid
only in the event of a sale of the
premises to a third party; and that
the sum named was not recoverable
upon a sale to S. himself. Seaman v.
Civill,
267
10. P. by a written contract with S.,
agreed to enlist a specified number of
recruits for the army, to the credit
of a town, for the price or sum of
$850 each, in full of bounties, premi-
ums, &c. which sum S. agreed to pay
him therefor. Held that P. could
maintain an action on this contract,
notwithstanding the act of the legis-
lature, passed February 10, 1865,
prescribing the amount to be paid
for substitutes. (Laws of 1865, ch.
29, 3, 4.) Powers v. Shepard, 524
2. Who may sue upon it.
11. Where the title to property owned
by several persons jointly is, for busi-
ness convenience, in the name of
one of the owners, who sells the
13. Where an attempt is made to create a
lien which shall have precedence of
all others; the agreement for that
purpose being founded in a good and
valuable consideration, and the par-
ties undertaking to give it effect in
good faith; but the attempt fails be-
cause of the failure of the machinery.
upon which they relied, through a
defect in a statute, it is the plain du-
ty of a court of equity to supply the
legal formalities necessary to secure
to the party the rights intended to be
secured to him by the agreement.
Lanning v. Tompkins,
14. C. confessed judgment to L. it be-
ing expressly agreed that it should
have preference over a judgment in
favor of S. and others confessed at
the same time, and all other claims,
and that it should be first docketed,
in order to secure to it such prefer-
ence and priority. S. and others had
notice of this agreement, and assent-
ed to it, and in consideration of it,
L. incurred new liabilities for and on
account of C. Both judgments were
entered and docketed in Schuyler
county, which all the parties then
supposed had been legally erected
and organized as a county; L.'s
judgment being first in point of time.
Execution was afterwards issued up-
on L.'s judgment, and the property
of C. seized, by virtue thereof, by
the person elected as sheriff of the
supposed county. Proceedings upon
this execution were stayed by order
of the court, and the courts after-
wards held and decided that the
statute by which said county was
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