same, is sufficient to pass title to the grow-found that by the sale and transfer ing trees, and changes them from real to personal property as between the parties. Where plaintiff's possession of a lot of land was such only as was necessary to enable him to take off the standing trees, Held, that such possession was not notice of plaintiff's rights to a subsequent purchaser of the lot. of the standing timber to plaintiff its character was changed from real to personal property, as between the parties to the agreement. 2 Barb., 613. It is apparent that the intention was that the vendee should cut and remove the timber; Appeal from judgment on refer- therefore the written agreement, ee's report. Action for conversion of standing trees. In March, 1879, defendants agreed in writing, not under seal, to sell plaintiff the timber standing on a certain lot of land. Plaintiff accordingly entered on the lot, cut and made roads thereon through the timber, cut down trees, skidded a portion of them, and removed some of them from the lot. The lot was wild and unimproved, of about 640 acres, and was unoccupied except as by plaintiff, whose only possession was such as was necessary to enable him to take off the trees; and for that purpose he worked on the lot with men and teams from March 21 to Nov. 21, 1879, not continuously, but principally in the spring and fall, working only on occasional days during the summer. On the day last named defendants executed to S. a deed of said lot. On Dec. 10, S. ordered plaintiff to stop cutting the timber, and he subsequently, under his deed, entered into possession of the lot and timber and has since retained possession to the exclusion of plaintiff. Plaintiff's agreement was not recorded. W. H. Henderson, for applts. Vol. 20.-No. 7. although not under seal, was sufficient to pass the title to the growing trees for that purpose. 2 Barb., 613; 57 id., 243. So, if defendants have improperly appropriated the trees to their own use, or have divested plaintiff of his title to them, an action for conversion of personal property may be maintained. If S. took his deed with notice, actual or constructive, of plaintiff's title, he acquired no interest in the trees as against plaintiff, and defendants will not be liable for conversion. Plaintiff's possession was not such as to put S. upon inquiry and be equivalent to notice. 64 N. Y., 76, 82-83; 32 N. H., 382; 3 Pick., 149. But we think the referee's finding that S. bought in good faith is clearly against the weight of evidence. Judgment reversed, with pew trial before another referee, costs to abide event. The order to express that the reversal is upon a question of fact. Opinion by Smith, P. J.; Barker and Bradley, JJ., concur; Haight, J., not voting. RAILROADS. STATUTES. N. Y. COURT OF APPEALS. The Mayor, &c., of N. Y., respt., The Broadway & 7th Ave. | thorized to charge the same rate RR. Co., applt. Decided Nov. 25, 1884. The intent of § 2 of Chap. 513, Laws of 1860, providing for the construction of defendant's road, was to authorize the collection of a certain sum for each car, to be fixed by the sum paid by other railroads in the city, and as a majority of those which pay a license pay $50 per car and only one pays less it is clear it was intended to include the majority. If there is any ambiguity as to the amount of the license the greater amount should be taken. The sum reserved by defendant's charter or prescribed by the city ordinance, is neither a tax, penalty nor fine, and the statutes and rules applicable to cases of that character do not apply. Where a railroad neglects to ascertain and pay its license fees interest thereon is allow able. Affirming S. C., 16 W. Dig., 185. This action was brought to recover an annual license fee of $50 for each car run by defendant during certain years, as authorized by Chapter 513, Laws of 1860. That act provides for the construction of a railroad in Seventh Avenue and in other streets and avenues in the city of New York which are mentioned. Section 2 of said act provides that the road shall be constructed after the most approved plan and run as often as the convenience of passengers shall require, and shall be subject to such rules and regulations as the Common Council of said city may from time to time by ordinance prescribe, and shall pay to said city "the same license fee annually for each car run thereon as is now paid by other city railroads in said city, and the said persons and their assigns are hereby au of fare for the conveyance of passengers on said railroad as is now charged by other city railroads in said city." When this act was passed two railroad companies in said city paid a license fee of $50 each per car, one paid a license fee of $20, and three paid no license fee whatever. One of the latter, the year previous, had paid a license fee of $50 per car. An ordinance was passed requiring defendant to pay a license fee of $50 per car. John M. Scribner, for applt. E. Henry Lacombe, for respt. Held, That, having in view the intention of the legislature and the purpose and object to be attained, it is evident the design of the legislature was to authorize the collection of a certain sum of money for each car run on defendart's road, and that amount should be fixed and determined by the sum paid by other railroads in the city, and as a majority of those which pay a license fee pay $50 per car, and only one pays a less amount, it is clear that the intent of the statute was to include the majority. Also held, That if any ambiguity exists as to the amount of the license the greater amount should be adopted, as any ambiguity in the grant of privileges must operate agaist the grantee and in favor of the public. 93 N. Y., 129; 64 N. C., 158; 29 Conn., 210; 26 Penn. St., 355; 27 id., 303; 10 Bush (Ky.), 771; 54 Ala., 471; 13 N. J. Eq., 81; 10 Fla., 145; 1 Black, N. S., 358; 21 Conn., 294;5 Scott N. R., 205; 8 B. & C., 42; 1 id., 424; 2 B. & Ad., 792; 11 East, 685. Also held, That the fee of the streets being in the city for public purposes and upon public trusts, and the use of the streets being given to a private corporation for private gain without compensation and the corporate authorities of the city being representatives of the public in the assertion of their rights, above construction should be held to apply the same as between corporations and individuals. The strictest rules of interpretation can therefore be properly invoked. Also held, That defendant's contract arises from the provisions of its charter by which it agrees to pay a certain sum reserved therein in consideration of the privileges conferred thereby. It is neither a tax nor a penalty, and hence technical rules as to penal actions or suits to recover a tax have no application. In case of a grant by legislative power the right to collect the amount fixed as a license confers express authority to enforce the payment of the same, and in no sense can it be considered as the imposition of a tax or a penalty which is without sanction of law. Mayor, &c., v. Second Ave. RR. Co., 32 N. Y., 261; Mayor, &c., v. Third Ave. RR. Co., 33 id., 42; distinguished. It was claimed that the power of the Common Council to impose any penalty or fine beyond $10 has been taken away by various statutes. Held, That such statutes are not applicable to this case, as the ordinance prescribing the fee defendant should pay per car did not impose a fine or penalty. Also held, That plaintiff's claim to recover does not rest on the ordinance alone, but depends upon the statute which requires the payment of the license fees to the city independent of any ordinance. Also held, That it was proper to allow interest on plaintiff's claim. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All concur, except Rapallo, J., absent. SALE. CONTRACT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Mortimer Ely, plff., v. Leander Phelps, deft. Decided Oct., 1884. An agreement to sell personal property, followed by delivery and acceptance, passes title unless by some express condition title is retained by the vendor. Parol evidence is inadmissible to show that the parties to a written agreement intended something not embraced within the meaning of the language of the writing. Motion for new trial, on exceptions, at Circuit, ordered heard at General Term, in first instance. Plaintiff agreed, in writing, to sell T. a farm and certain cattle and other personal property for $12,900, payable in specified instalments, the first of which in money was $1,600, to be paid July 1, then next. On payment of agreement. To defeat that presumption plaintiff must make it appear that by the terms of the agreement title was reserved and could not pass to T. until the occurrence of some prescribed event or the performance of some act subsequent to the delivery. 2 Hill, 326; 40 N. Y., 314; 77 id., 391; 23 Hun, 513. The phrase, requiring the purchaser to keep the stock "intact," does not give that conditional quality to the agreement. To interpret words and phrases of the agreement reference may be had to all of its provisions and its purpose, so far as can be ascertained from it, and by the light of legitimate extrinsic circumstances. 1 N. Y., 96; 13 id., 569; 45 id., 601; 32 id.. 703, 706; 47 id., 597, 605; 66 id., 611; 10 Bosw., 428. $6,000 of the purchase money | erty passed by delivery under the plaintiff was to give a deed and take back a mortgage for the residue, and to give T. possession on February 1, then next. The agreement contained this provision: "It is hereby understood by and between the parties to these presents that the party of the second part (Towle) is to keep the stock above mentioned intact until the sixteen hundred dollars above mentioned is paid." Plaintiff delivered to T., and the latter took possession pursuant to the agreement, and prior to July 1 T. paid plaintiff $1,200 of the $1,600 and paid no more. Subsequently, defendant, who was then sheriff, as such, levied upon a portion of said cattle executions issued against the property of T. upon judgments against him, and sold the property so levied upon. This action is to recover for such alleged conversion. Plaintiff was non-suited, on the ground that title to the property passed by the agreement of sale and delivery to T. C. D. Murray, for plff. Also held, That the rejection of parol evidence offered to prove the negotiation and talk between the parties to the written agreement before it was drawn and executed, for the purpose of showing what the agreement made between them Held, No error; that an agree- was, was correct. The presumpment to sell personal property, fol- tion at law is conclusive that an lowed by delivery and acceptance of agreement reduced to writing, exeit, pursuant to the agreement, passes cuted and delivered, expresses the the title to the vendee, unless by ultimate sense of the parties, and some express provision by way of parol evidence is not admissible to reservation or condition in it the modify or alter it. But, to give title is retained by the vendor. effect to words and phrases, evi104 Mass., 262; 117 id., 321; 16 dence may be given to show that Maine, 17; 3 Am. Dec., 630; 17 they have a peculiar meaning. Maine, 344; 35 Am. Dec., 262; And aid may also be given by 3 Duer, 335; 2 T. & C., 380; 2 proof of extrinsic circumstances, N. Y., 153. Here the presumption within proper limits. 12 N. Y., is that title to the personal prop-40; 18 id., 502; 4 Hill, 129; id., 107; 10 Bosw., 428; 10 J. & S., 517; 118 Mass., 242. If the phrase in question may be treated as an ambiguity, it is a patent one, and cannot be explained by parol evidence. 1 D. Chip., 227; 6 Am. Dec., 728; 11 Gill & J., 457; 37 Am. Dec., 74; 11 M. & W., 561; 1 N. C. Law, 484; 6 Am. Dec., 547; 6 Mass., 435; 1 Johns. Ch., 231; 14 Johns., Although there are exceptions to this rule, yet it is not permissible to prove by parol evidence what the parties intended to express by certain words. 5 Pick., 163; 55 N. Y., 200; 1 id., 102; 45 id., 601; 47 id., 605–6. 1. New trial denied, and judgment directed for defendant. Opinion by Bradley, J.; Smith, P. J., and Haight, J., concur; Barker, J., not sitting. REFERENCE. N. Y. COURT OF APPEALS. The Herkimer Co. Natl. Bk., respt., v. Rust, impld., applt. Decided Nov. 25, 1884. contradictory and admitting of contradictory inferences must control. This was an action upon a draft made by the appellant and drawn upon the firm of R. & S., which was protested for non-payment. Plaintiff proved that the appellant kept an individual account with it; that he was buying cheese for numerous parties; that on Monday, which was market day, he would purchase cheese of numerous parties, paying by his checks upon plaintiff, which largely overdrew his account and left him debtor to plaintiff; that on ascer taining the amount of his overdraft he would pay it and make it good by drawing drafts upon those for whom he had purchased; that plaintiff permitted this to be done so long as he drew sight-drafts, but when he desired to draw on defendants, R. & S., on time, which would tend to accumulate a liability, security was demanded, and in the negotiation the appellant was distinctly told by plaintiff's cashier that R. & S. were not a strong firm and an indorser would be required on time-drafts; that plaintiff would serve him as In an action on a draft plaintiff testified that it did the rest of the cheese buy defendant was accustomed to overdraw his account to purchase cheese for R. & S. and would make it good by drafts on said firm; that when he began to draw time-drafts security was demanded and he was distinctly told that he would be held first as drawer, and that after the failure of R. & S. defendant said that he was abundantly able to pay these drafts. Defendant testified that R. & S. gave plaintiff their bond with surety conditioned to pay these drafts, and that defendant told plaintiff's cashier that he could not afford to take any risk on the drafts. Held, That the referee's finding in favor of plaintiff being on evidence both ers, that is, hold him first as drawer and then the indorser; that the same statement was made to him when renewals were asked. It was also proved that the cashier cautioned the appellant to be careful because of the financial weakness of his drawees, and after the failure of R. & S. the appellant said, "I suppose I am in for it," and added that he was "abundantly able to pay these drafts." |