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memorandum sufficient if its language so indicated material terms of the contract between the parties. It
impossible to say from the contents of the letter what
ing.” Now those essential parts cannot be omitted, In Wright v. Weeks, 25 N. Y. 159, which preceded because in addition to constituting such material elethe amendment of 1803 but a few years, that doctrine ments, they constitute also a consideration of the conwas declared in very strong terms, and as decidedly tract. The agreement of the defendant in this case settled. But the change of 1863 has given rise to a new was not merely to pay so much money to plaintiff. It question, and bred in the courts a wide difference of was to pay him that money for his services as salesopinion.
man to be thereafter rendered. For what the payIn Speyers v. Lambert, 6 Abb. (N. S.) 309, the Gen- ment was to be made constituted a material and esseneral Term of the Superior Court held that the effect of tial element of the agreement on the part of the destriking out the clause requiring the consideration to fendant; an important condition of the contract on be expressed was not merely to restore the law as it his side. His agreement was not absolute to pay the was before the words were inserted; that is to say, that money. It was conditioned to the rendition of the the consideration must appear in the agreement, but stipulated services. Any memorandum which omits might be argued out or inferred from its terms; but the condition falsifies the agreement which he actto go further than that, and make wholly and entirely ually made, and represents him as agreeing to pay the unnecessary auy statemeut of the consideration at money absolutely when he did not so contract. It is all. That was said however in a case where the con- no answer that the omitted condition, coupled with sideration was rendered at the moment in which the the other party's promise of performance, constituted contract took effect, so that such contract was execu- a consideration for his own agreement, and so need not tory upon one side only, and not upon both.
What was said in Evansville National Bank v. Kauf- specified price, so here the agreement was not an ab.
which the defendant made; or whether from the than this: that the consideration should no longer be memorandum we can determine what the real conimplied from the language of the instrument, but tract between the parties was. The actual agreement should be expressed in it. Brewster v. Silence, 8 N. Y. was that the defendant would pay yearly the sums 413. And the subsequent omissions of the inserted specified in the memorandum for the services of the clause would seem only to indicate a legislative intent plaintiff as a salesman, to be rendered for three years, not to require a definite expression of consideration, and the inquiry is whether that contract is stated in and leave the contract good if one could be implied or the memorandum. The writing begins with the words luferred from its terms. Reed Stat. Frauds, $ 423. "preserve this," and continues thus: “The underBut whatever else may be said of the amendment of standing with Mr. Drake is as follows: $2,000 for the 1863, we are quite sure that it cannot be understood to first year; $2,500 for the second year sure, and provided destroy and apnul the requirement that the note or the increase sales shall warrant it, he is to have $3,000. memorandum must contain all the substantial and Third year in proportion to business as above."
On the face of this writing the contract of the detendant with its essential terms and conditions does not at all appear, unless we yield to the construction very ingeniously suggested and forcibly argued on behalf of the appellant, that the words “for the first year” mean for the first year's time of the plaintiff, and so on through the other stipulations. It is said the word "year" means a period of time, and must be held to refer to the plaintiff's time, using that word in the sense of services, and the construction is sought to be strengthened by parol evidence, showing that plaintiff was a salesman and defendants manufacturers. There are no technical or ambiguous words in the memorandum requiring explanation, and we cannot resort to parol evidence to insert in the writing wbat is not there. Wright v. Weeks, supra.
Confining our attention to what the memorandum says, we observe that its language is equally applicable to many contracts entirely different from that actually made. Although plaintiff is a salesman, he may have invented or purchased a patent valuable for the use of the defendants, and bargained to give them that use for three years, in return for which plaintiff was to have " $2,000 for the first year; $2,500 for the second year sure, and provided the increase sales shall warrant it, he is to have $3,000. Third year in proportion to business as above."
Or the plaintiff inay have rented to the defendan is a store or factory for three years, and the memorandum recited the rental. And so the illustrations might be multiplied. Nothing in the writing indicates which of all the possible contracts was intended, or identifies the one really made. To a person depending wholly upon the writing, the real contract made is impossible to be ascertained. And here comes in the difficulty against which the statute was aimed. If the memorandum be held sufficient, any falsehood or perjury on the part of plaintiff might apply it to an agreement never made or thought of, and against that the memorandum would not furnish the least protection. And there is a further difficulty as to the third year, which is the only one bere in controversy. Precisely what the final clause means it is not easy to say, It does not provide in terms for any fixed salary, but makes the payment dependent upon the business in proportion to the rates above stated. No evidence was given showing the amount of business. We cannot hold this memorandum sufficient without a dependence upon parol evidence, which would practically nullify the statute, and since we have beld that one party may be bound by his signature, while the other party, not signing it, is not bound at all (Mason v. Decker, 72 N. Y. 595), it becomes very important for the party who does sign and is bound, that the rule should be firmly adhered to which requires the real contract to be stated with its substantial terms and conditions. We therefore agree with the conclusion of the Genera) Term.
The order of the General Term should be affirmed, and judgment absolute rendered for the defendants, with costs. All concur except Rapallo, J., absent.
suspension his membership shall be disposed of
* and the proceeds paid pro rata to his creditors in the Stock Exchange," excluding however from the distribution claims not filed before a transfer of the right of membership, and any difference “growing out of a claim on a put or call, notified for and reduced to a contract after failure.” W., plaintiff's assignor,a member of the Exchange, failed, his seat was sold under the rules, and claims of members were filed and proved to more than the proceeds of sale. All of such claims however were on puts and calls, notified for and reduced to a contract after failure. In an action to recover such proceeds, held, that plaintiff was entitled to recover; that it was immaterial whether such contracts were valid or not, but that W., by the laws of the association, becoming a member, assented to an appropriation of his property in a particular way and to certain debts to the exclusion of all others, and no appropriation could be made to which he had not in like manner assented. Also held, that provisions of said constitution, giving the governing committee of the Exchange all powers necessary for its control, making its decisions final, declaring that all debts with. out distinction shall be binding on members, and giv. ing said committees cognizance of them, did not make a decision of said committee, admitting the claims so proved to share of the proceeds, final; that the committee could have no power to admit a claim which the constitution by its terms excluded. Weston v. Ives. Opinion by Danforth, J. [Decided Nov. 25, 1884.]
INSURANCE-FIRE-EVIDENCE THAT FIREWORKS WERE PART OF STOCK-CERTIFICATE OF NEAREST NOTARY-ACTION DOES NOT ACCRUE UNTIL NEGOTIATIONS CLOSED.-(1) Defendant issued to plaintiffs, wbo were doing business in the city of Buffalo, a policy of fire insurance“ on store, furniture and fixtures" in a building In that city, “to be used by the assured as a fancy goods and Yankee notion store.” The policy contained a condition in effect that in case the property should be used for storing or keeping therein any articles, or for more hazardous purposes than that called for by the original contract of insurance, uuless specially provided for, or thereafter agreed to by defendant, or if, during the existence of the policy, the risk should be increased by occupation of the premises for more hazardous purposes, unless notice thereof was given to defendant, and its consent in writing indorsed, the policy would thereby be rendered void. In the classes of hazard forming part of the policy, fancy goods and Yankee notions were classed as "ex. tra-hazardous," and fireworks as “ specially hazard ous." Over the latter class was printed a statement that the merchandise specified therein "to be covered must be specially written in the policy." In an action upon the policy it appeared that at the time of the fire plaintiff had in the store a stock of fireworks; no notice of intention to keep them had been given defend ant or agsent on its part obtained. Plaintiff was allowed to prove, under objection and exception, that fireworks constituted an ordinary, nsual and recog. nized portion of a stock of fancy goods and Yaukee 110tion store. Held, no error. Pindar v. Kings Co. Fire Ins. Co., 36 N. Y. 648; Steinbach v. Lafayette Fire Ins. Co., 54 id. 90. The evidence was sufficient to justity the referee's findings in accordance with it, even if it is considered -- as the appellant claims it should be — as relating only to the city of Buffalo and its vicinity. The subject of the insurance was at that place, and the underwriters knew, or ought to have known, the usage and course of business in connection with which the policy was issued, and must be assumed to bave made their contract with reference to it. There was then no breach of any condition of the polioy, and the
NEW YORK COURT OF APPEALS ABSTRACT.
CORPORATION--NEW YORK STOCK EXCHANGE MEMBERS BOUND BY CONSTITUTION, ETC.-SALE OF SEAT-PROCEEDS TO CREDITORS IN EXCHANGE.-The provisions of the constitution and by-laws of the New York Stock Exchange are obligatory upon its members as a contract. By said constitution it was provided that “if any suspended member fails to settle with his creditors within one year from the time of his
plaintiff established a cause of action. (2) The appel- | granted in said action directing a sale, and upon the
the sale as made was consistent with the decree. Bereceived without objection (Ames v. N. Y. Union'Ins. fore the partition suit it is said the widow gave to the Co., 14 N. Y. 254), vor where the delay is occasioned New York and Boston Railroad Company a right to by the demand of underwriters for other particulars. enter upon the land and maintain its road. That was Mayor v. Hamilton Fire Ins. Co., supra; Ames v. dated July 19, 1871, but not recorded until 1882. It Vuiou Fire Ins. Co., supra; Hay v. Star Fire Ins. Co., does not appear that the partition suit was actually supra. See also Steen v. Niagara Fire Ius. Co., 89 N. er than the lease, nor that the purchaser under the Y. 315. Barnum v. Merchants Fire Ins. Co. Opinion decree had any notice of its existence. That purby Danforth, J.
chaser, while furnishing affidavits for the present pur[Decided Oct. 31, 1884.)
chaser, does not say that he had such notice. The suc
cessor of the Boston road was not made defendant in AGENCY-LIEN OF AGENT FOR ACCEPTANCES.
1.- Where the foreclosure suit, and holds a deed from Hull, who a principal consigns goods to an agent to sell under an was also such defendant. Cromwell v. Hull. Opinion agreement that the latter will accept bills drawn upon bim by the former to the amount of goods so con- [Decided Oct. 31, 1884.] signed on hand, it is necessary inference that the drafts are to be drawn on the credit of the goods; and to the amount of acceptances outstanding, the agent NEW JERSEY COURT OF CHANCERY ABhas a lien on the goods in his bands, as security, and
STRACT* is entitled to retain the same until the acceptances are paid. The law implies or infers the lien from the re- RECEIVER-INSOLVENT RAILROAD - LIABILITY ON lation between the parties. 1 Pars. Cont. (5th ed.) 98; CONTRACT OF PREDECESSOR.—The petitioners claimed 3 id. 259; Holbrook v. Wight, 24 Wend. 169; Bank . to have supplied the former receiver of au insolvent Jones, 4 N. Y. 497. That there may be no misappre- railroad, appointed by this court, with large quantities hepsion, it may be added that if there was an agree- of materials for the use of the railroad. They applied ment that the defendants should apply the proceeds for an order directing the present receiver of the railof goods sold to the payment of drafts as they ma- road to pay for those materials, and also for an order tured, then so far as they had such proceeds in their giving them leave to sue him at law for the damages hands applicable to that purpose, they were bound to which they allege they have sustained at his hands by apply them to that purpose; and they could not hold reason of his non-fulfillment of his predecessor's conthe goods as security against drafts which they could tracts with the petitioners for other materials similarly thus pay, and were bound to pay; rad in such case supplied. Held (1), that this court, before granting the plaintiff, after paying the drafts, so as to leave out- the petition, would by a preliminary examination of the standing an amount no greater than such proceeds, transaction, determine whether the matter cannot be could claim and take the goods from the possession of disposed of here; (2) that the present receiver is not the defendants. Nagle v. McFeeters. Opinion by as such liable to be sued at law on the contracts of his Earl, J.
predecessor; and whether the railroad property is [Decided Oct. 31, 1884.)
bound by the contracts of the former receiver, is a
question of which this court has exclusive jurisdiction. JUDICIAL SALE-PURCHASER COMPELLED TO PER- Palys V. Jewett, 5 Stew. 302, distinguished. Lehigh FECT TITLE. --This was an action to foreclose a mort- Coal & Nav. Co. v. Central R. Co. Opinion by Van gage executed by the defendant Hull. One Lynt died Fleet, V. C. in 1855 seised of the premises in question, leaving a will by which he devised said premises to his widow
EVIDENCE-INCOMPETENT WITNESS-WAIVER OF OB80 long as she should remain unmarried, and upon her
JECTION-RIGHT OF COURT TO SUPPRESS ILLEGAL.-(1) death or remarriage he devised his same to his five
If a party against whom an incompetent witness is children, and in case of the previous death of any of
called, with full knowledge of his incompetency, allows them, to their issue. The widow brought partition,
the witness to be sworn and examined without objecmaking the surviving children and the issue of one de
tion, he will be considered to have waived the objec. ceased child of the testator parties; the issue of the
tion to his competency. Berryman v. Graham, 6 C. E. living children were not made parties. A decree was
* To appear in 38 N. J. Eq. Reports.
Gr. 370; Boone v. Ridgeway Ex’rs, 2 Stew. Eq. 543; 1 58 Me. 508; but that decree in no way qualified or afGreenl. Ev., $ 421; 3 id., $ 369. (2) Though the party fected the legal consequences of the prior decree. The against whom an incompetent witness has given evi- bar is just as effectual when a day only intervenes bedence may have lost his right to object to bis evidence, tween the decrees as if it was a year. Moulton v. yet the court may, on its own motion, if it appears Moulton. Opinion by Walton, J. that the evidence is opposed to the policy of the law, MALICIOUS PROSECUTION EXCESSIVE DAMAGES and dangerous to the administration of justice, sup
PROBABLE CAUSE-ADVICE OF COUNSEL.-In an action press it in suits where either party to the transaction for malicious prosecution, for causing plaintiff's arrest put in contest by the suit was dead, the survivor
upon a warrant charging him with forgery by making should not be a competent witness unless his adver- unauthorized entries in certain books of accounts, and sary chose to make him so by becoming a witness
upon his discharge, by causing his arrest upon another himself. The design was a highly salutary one. It is
warrant charging him with embezzlement amounting eminently just that when death has sealed the lips of
to larceny, held, that a verdict in favor of the plaintone party the law should seal the lips of the other.
iff in the sum of $1,100 was uɔt excessive. Humphries The great object of the restriction, as stated by the
v. Parker, 52 Me. 502. In an action for malicious chancellor in Colfax v. Colfax, 5 Stew. Eq. 206, was to
prosecution, where the defendant claims that he acted guard agaiust the injustice which would arise from a
under the advice of counsel, it is for the jury to say want of mutuality in the exercise of the right to tes
whether the fact that the attorney aud counsellor tify. There can be no doubt that if the parties are
whose advice was sought was the attorney in a civil allowed to testify in their own cases, the safe admin. suit to recover of this plaintiff the sum alleged in the istration of justice requires that they should be put criminal proceeding to have been embezzled, made the upon an equal footing, aud that if one is allowed to
attorney an improper person to cousult-whether he go upon the stand to testify, the other should have the
was carrying on the suit under such circumstances and right to go there also, either to contirm or to contradict
with such motives as prejudiced him and rendered his adversary's evidence, and that when the lips of him unfit to give fair and impartial advice in the one are closed, the other should not be tempted to
premises. The true doctrine is, that previous consulcommit perjury by being permitted to testify to mat- tation with and favorable advice of counsel learned in ters which his adversary can neither contradict nor
the law, are facts which have a bearing, both upon the explain. If the evidence of one party was admissible existence of probable cause and the presence or absence when the other could not testify, the interests of man
of malice in the prosecution complained of (which last kind, an eminent English judge has recently said, is always a question for the jury); but the conditions would in his opinion imperatively require that unless
under which such consultation and advice will amount corroborated it should be wholly disregarded. He
to a valid defense are such as almost inevitably to refurther said: “Nobody would be safe in respect of quire the submission of the evidence to the jury,under his pecuniary transactions it legal documents
proper instructions. to find whether those couditions found in his possession at the time of his death, and
exist in the case on trial. If they do, the jury are to endeavored to be enforced by his executors, could be give them effect by applying the instructions to the set aside, varied or altered by the parol evidence of facts as they find them. It is not every member of the the person who had bound himself.” Hill v. Wilson,
bar whose character and standing are sufficiently L. R., 8 Ch. App. 888, 900. Monfort's Adm'r v. Row- kuown to the court to enable the presiding judge to land. Opinion by Van Fleet, V. C.
say that he answers the description of "counsel
learned in the law." See Stevens v. Fassett, 27 Me. MAINE SUPREME COURT ABSTRACT.* 266. Of those whom he might so regard, tbe situation
may be such in relation to the particular case, as to CONTRIBUTION · PARTNERSHIP — TENANTS IN COM
prevent their opinion from amounting to a justificaMON.-Two persons purchased timber-lands and gave
tion, or at least to make it doubtful whether it was their joint notes, secured by mortgage, for a portion the unbiased, deliberate opinion of counsel learned in of the purchase-money, then as co-partners they cut
the law and properly informed respecting the case. therefrom and manufactured a portion of the timber,
White v. Carr, 7i Me. 555. In Hewlett v. Cruchley, 5 About two years after the business of the firm ceased,
Taunt. 277, it was well said, that "it would be a most one of the partners paid a judgment rendered on one of the mortgage notes, and both joined in a deed of ciple that a mau by obtaining an opinion of a counsel,
pernicious practice if we were to introduce the prinquit-claim of the lands to the mortgagee as a com
by applying to a weak man, or au ignorant man, may promise settlement of the mortgage debt. Held, that
shelter his malice in bringing an unfounded prosecuthe one who paid the money could maintain an action
tion.” But in addition to this, it is an essential conat law against the other for one-half the amount so
dition that there should be plenary proof that the paid. Soule v. Frost. Opinion by Symonds, J.
client communicated to the counsellor all knowledge MARRIAGE-DIVORCE--DOWER.-Cross libels for di- and information which he had, respecting the matevorce pending between a husband and wife were rial facts-and not that alone-but also all such knowlheard together; the court first decreed a divorce on edge and information as in the exercise of reasonable the husband's libel for the fault of the wife, and the care and prudence (with due regard to the rights of next day decreed a divorce on the wife's libel for the the party against whom he proposes to proceed) ho fault of the husband, and decreed to her a certain sum might have obtained. Stevens V. Fassett, supra; in lieu of alimony. Eight months afterward the hus- White v. Carr, supra. Watt v. Corey. Opiniou by band died and the wife then brought an action against Barrows, J. his heirs to recover her dower. Held, that she was not endowable. When the final decree of divorce was entered on the husband's libel for the fault of the
PENNSYLVANIA SUPREME COURT wife she was at once barred of her dower in his lands.
ABSTRACT. Stilphen v. Houdlette, 60 Me. 447. True, the court had jurisdiction after the decree in favor of the husband
MUNICIPAL CORPORATION-ICY SIDEWALK on his libel to enter the decree in favor of the wife ou
TRIBUTORY NEGLIGENCE.-A municipal corporation her libel and grant her alimony; Stilphen v. Stilpben, fall upon suow and ice upon the foot pavement of a
is not liable for injuries to a pedestrian caused by a *To appear in 76 Maine Reports.
public street, which had been permitted to acoumulate
for a period of seven days, where the slippery and dan- | it, he is not bound to give to another that which gerous conditiou of the pavement could have been rightly belongs to himself.” Of course if a sheriff's seen and avoided by the person injured. Denhardt v. sale of the laudlord's title, under a judgment which City of Philadelphia. Opinion per Curiam.
incumbered it, would vest it in the tenant when he [Decided Feb. 4, 1884.]
was the purchaser, it would vest it for the same reason MUNICIPAL CORPORATION-ICY
in a stranger should be become the purchaser. In
SIDEWALK-CONTRIBUTORY NEGLIGENCE. – The owner of au ice-house, Heritage v. Wilfoug, Sharswood, J., said: “This unfronting upon a public street in the city of Lock doubtedly makes it the duty of the justice to hear any
lawful defense which the tenant may offer. It would Haven, constructed, without the consent of the muni. cipal authorities, a slide of heavy timbers in front of landlord had come to an end since the commencement
be such a defense if he could show that the title of his bis premises, extending eutirely across the street.
of the lease. It would therefore be competent for him Many lumps of ice had fallen from the slide upon and
to plead and prove that under a judgment against the near the pavement in front of the ice-bouse, so that
lessor his estate had been sold by the sheriff, and that the only safe way for foot passengers was to turn out
he had attorned to the purchaser." It is true that in into the street,aud cross the slide at a point where approaches to it had been constructed. A. lived next
the foregoing case the judgment was against the ten
ant's immediate landlord. But we can see no differdoor to the ice-house, and duriug a period of about
ence in substance between the determination of the two weeks, while the obstruction continued, became
landlord's title by a sale under a judgment against well acquainted with its dangerous nature; she testified that she always crossed it with great care, and fre
him personally, and such determination in a case
where the sale was made under a judgment which was quently after crossing it continued on some distance
a lien upou the landlord's title at the time of its inup the middle of the street instead of turning on to
ception. The legal result is the same in both cases, the sidewalk. She might have aroided passing the
the title, the very title of the immediate landlord is slide altogether by using an alley near her house,
divested in each instance, and it is this divestiture which would however have made her go a short distance
which a tenant may set up against his landlord. The further than if she crossed the slide. A snow having
same doctrine was repeated by the same eminent fallen which partly covered the ground, and ice blocks judge in Koontz v. Hammond where he said, speak. falleu from the slide, A. started out from her house in ing of the rights of defense by the tenant: “He might the day-time, crossed the slide in the middle of the
bave shown that the title of the plaintiff had come to street, and then finding the street slushy, turned to
an end by expiratiou, by her own act, or been divested go upon the sidewalk near the slide. In so doing she
by act of law." For these reasons we think that the slipped and fell upon the blocks of ice lying there. In
defendant's offers of testimony should have been rean action by her against the city to recover damages ceived, in so far as they related to the divestiture of for the injuries sustained: Held, that she had been
the plaintiff's title by judicial sale, and because of guilty of such contributory negligence as warranted
their rejection the case must be reversed. Smith v. the court in giving to the jury binding iustructions to
Crossland. Opinion by Green, J.
[Decided May 26, 1884.]
OUR LONDON LETTER.
N Lord O'Hagan, the United Kingdom has lost one
Elliott of the accused in countless crown prosecutions, he Smith, 11 Harr. 131; Heritage Wilfong, 8 nevertheless found himself promoted from office to P. F. $. 137; Koontz Hammond, 12 id. office until he finally was created lord chancellor of 171. In Newell v. Gibbs, supra, Rogers, J., said on p. Ireland, amidst the combined applause of the conser: 498 : “ For although the defendant is not permitted to
vative and the liberal press. All this is matter of show that his lessor never had title to the demised common knowledge for the daily papers, and those premises, he may, on admitting that he once had title, which deal solely in legal commodities have published prove that his interest has expired.” In Menough's lengthy obituary notices in a biographical form. There Appeal the landlord's title during the term of the is nothing new to be said about the departed judge, lease was purchased at sheriff's sale under a judgment except that his career was such as to be a lesson to his obtained prior to the commencement of the term. fellow countrymen who may learn from it the generThe rent for the year fell due at the end of the term, osity of the English government, a quality which they and was claimed by one to whom the landlord had as- are somewhat slow to acknowledge. The present gensigned it, by the purchaser of the landlord's title and eration was more familiar with Lord O'Hagan as a by an execution creditor of the tenant. The rent was judge than as an advocate. In the latter capacity awarded to the purchaser of the landlord's title on the fresh and vivid tradition gives us a portrait of a man express ground that the judgment under which the endowed with extraordinary eloquence of that fiery land was sold was paramount to the lease, and it was yet pathetic kind which is distinctly high and wonat the purchaser's option to disaffirm the lease or to derfully effectual. On the bench, primus inter pares, affirm it and to recover the rent, and that as the rent
he was remarkable for clearness of thought and absofan with the land it could not be assigued by the land- lute impartiality. Moreover he was dignified beyond lord after the judgment so as to defeat the right of the the ordinary run of judges. This brings me gradually purchaser to have it. In Elliott v. Smith we said : “A to a topic which now attracts very considerable attentenant cannot dispute the title of his landlord, nor can tion, and deserves to attract more. The majesty of a be purchase an outstanding title, and under it withbold judge of the present day is not to be compared to that the possession from his landlord. When however be of a judge in the past. Not long since a polemical corbecomes the owner of the very title under which his respondence appeared in the Times, and it was more landlord claims, either by purchase from the landlord, than suspected that two judges were the main comop at a sheriff's sale upon a judgment which incumbers batants. Whenever a question of intricacy crops up