« EelmineJätka »
The theory adopted by the court in trying the case, against a subsequent purchaser of it, the burden is on as evidenced by the instructions given of its own
the defendant to show that he is, or has succeeded to motion, was that if the mortgage after its execution and the rights of a bona fide holder; and if it appears that delivery was modified by agreement to the effect that he bought the paper when overdue, it will not be preplaintiff might sell the property and apply the pro
sumed that any prior holder succeeding the thief acceeds on the debt it was given to secure, and that it he quired the paper before its dishonor. June 7, 1887. sold pursuant to this agreement, defendant had no Northampton Nat. Bank V. Kidder. Opinion by right to take possession of the property in question,
Peckham, J. but that if he sold the property without any agree
CARRIERS - AUTION AGAINST - PARTIES –CONNECTnient or modification of the mortgage, then by its ex
ING LINES BILL OF LADING - PREVIOUS AGREEpress terms defendant had the right to take possession
:-(1) Shippers who are in control of merchanof the property, sell it aud apply the proceeds to his
dise shipped, and are both consiguors and consignees, debt. This theory was the correct one. Cotley y.
should be assumed, in the absence of evidence to the Barnes, 20 Ver. 78; McNeal v. Emmerson, 15 Gray,
contrary, to have sufficient title to evable them to 381; Huggans v. Freyer, 1 Lou. 276; Sarton v. Williams, 15 Wis. 292-8.
maintain an action against the carrier. The merchan
dise being whale oil, the product of a whaling voyage, There is nothing in the objection made that the in
evidence that seamen on the whaling vessels “ were structions are erroneous in that they ignore the fact
interested in the oil,'' is not sufficient to establish that that plaintiff tendered defendant the amount received for the hogs he sold which defendant refused to ac
they are partners or joint-owners, so as to require them cept. The instructions as given were more favorable
to be joined as plaintiffs. (2) A carrying corporation in this respect to plaintiff than the case made in the
which transports goods over a portion of a continuous
line of transportations may contract to carry beyond pleadings, for under the replication the only modification of the mortgage claimed to bave been made was
the terminus of its route, or two corporations owuing tbat plaintiff should have the right to sell the property
continuous lines may become joint carriers. It is the and apply the proceeds on the debt, whereas under the
well-settled law in this State that a carrying corpora
tion over a portion of a continuous line of transportainstructions a finding vas authorized for plaintiff if it only appeared that under such modification he sold
tion may coutract to carry beyond the terminus of its
route, and that such a contract is not ultra vires. the property for the purpose of applying the proceeds on the debt without finding the further fact that the
Weed v. Sarotoga & S. R. Co., 19 Weud. 534; Wylde v.
Northern R. Co., 53 N. Y. 156; Root v. Great Western proceeds were either applied or offered to be applied
R. Co., 45 id. 524; Condict v. Graud Trunk R. Co., 54 thereon. If on the other hand he sold the property
id. 500. Such contracts have been upheld sometimes without any modification of the mortgage as set up in the replication, the mere tender of the proceeds of
'upon the ground of estoppel, and sometimes upon the such sale to defendaut would not, unless accepted by ground that they were incident to the business for him, be sufficient to charge him with a waiver of the
which the contracting corporation was organized.
While the defendants admit that such contracts could conditions of the mortgage or his rights under it. Patchin v. Pierce, 12 Wend. 61.
be made, they contend that the Pacific Mail SteamJudgment affirmed, in which all concur, except
Ship Company could not contract to receive goods Judge Black, who did not sit.
away from its terminus, and to transport them to such terminus over the route of another carrier, and thence transport them over its own route to their
destination; that is, while they admit that the steamNEW YORK COURT OF APPEALS ABSTRACT. hip company could receive goods at the city of New
York, and contract to carry them to Panama on the BONDS MATURITY - DEFAULT IN INTEREST PAY- Pacific coast, they deny that it could receive goods at MENTS - BONA FIDE PURCHASER-BURDEN OF PROOF Pavama, and agree to transport them to the city of – PRESUMPTION.-(1) Interest-bearing bonds, secured
New York. We see no reason for distinguishing be. by mortgage, provided that the principal should be- tween the two kinds of contracts, and for holding that come due upon non-payment of accrued interest on the company could make the one kind and not the demand, or failure to make stipulated semi-annual
other. If when it receives goods at New York for contributions to a sinking fuud provided for, and the transportation to Panama it is engaged in business continuance of such default for six months. In an
authorized by its charter, or incident to such business, action involving the title of a purchaser of the bonds then when it procures freight at Panama, for transas against the owner, from whom they had been stolen, portation to A spinwall, and thence to New York, it is it appeared that the interest and sinking-fund con- also engaged in promoting the legitimate business for tributions were several years in arrears, and that a
which it was organized. It thus procures freight for foreclosure suit had been begun by the bondholders, to transportation upon its steamships, and the business it the kuowledge of the purchaser, when the latter bought
thus does at Panama, and across the isthmus, is just as the bonds. The statement of facts on which the case
legitimate as it would be to establish agencies on the was tried, while not expressly alleging a demand of
Pacific coast to solicit freight for transportation from interest made by the bondholders, used the word Aspinwall to New York, or to contract with news"default" in regard to the non-payment thereof. papers there to advertise the carrying of such freight. Held, that the language of the statement of facts must Cannot a railroad company take freight for transbe construed to mean that the demand necessary to portation at a point a few rods from its depot? And render the priucipal due was made or dispensed with: if it may be a few rods, why not a few miles? If it that at any rate, the non-payment of the contributions may have a depot for the receipt of freight one mile to the sinking fund caused a default, which after the from its terminus, why may it not have a depot fifteen expiration of six months made the principal due; that or twenty miles therefrom, and transport the freight the foreclosure suit sufficiently evinced the election thence to its road by any means that it chooses to of the bondholders to take advantage of the default; adopt? The Panama Railroad Company terminated aud that therefore the purchasers acquired the bonds on the Pacific coast at Panama, and there it owned when overdue, and got no title as against the former lighters to go out into the ocean to take freight from owners. (2) lu an action brought by the former owner vessels. If it could send its lighters out one mile, why of negotiable paper, from whom it has been stolen, could it not send them out sereral miles, for the same
purpose, to some convenient port or roadstead? The Panama. On March 27, the common agent of the main business of the steamship company between defendants at Panama issued through bills of lading Aspin wall and New York was to transport passengers for the oil, which were received by the plaintiffs April and freight which came from the Pacific coast, and in. 7, providing that the defendants should not be jointly stead of taking the passengers and freight at Aspin- liable for any loss or damage to the oil; that neither wall, why could it not take them at Panama? We see should be liable in any event for loss or damage accruno reason for holding that it might not do so in tho ing upon the route of the other, por accountable for prosecution of its corporate business, and as incident leakage arising from improper or defective casks, nor thereto. Then again, if when the steamship company for unavoidable detention or delay. A loss from leakreceives goods at New York under contract to carry age occurred during the delay on the isthmus. Held, them to Pauama, it is estopped from denying its that the jury were justified in finding (1) that the conauthority and power to make the contract, why, when tract was joint on the part of the defendants; and (2) it receives goods at Panama under contract to be car- that it was contained in the agreement made with B. ried to New York, should it not be equally bound by in New York, and not in the bills of lading varying estoppel? We think therefore that it is clear, upon that agreement which were issued at Panama. June principle and authority, that both defendants were 7, 1887. Swift v. Pacific Mail S. S. Co. Opinion by competent to enter into contract to carry this oil from Earl, J. Panama to New York; and as each was competent to -INJURY TO PASSENGERS ALIGHTING FROM contract alone, it cannot be doubted that they were - LIABILITY.- The plaintiff sustained personal competent to make a joint contract to do it. They injuries in alighting from one of defendant's cars to a could even become partners in the transportation platform. The distance from the outer line of the car business between Panama and New York, and so far to the platform was eleven inches. There were three as we have discovered, the power of corporations thus steps at the end of the car; the lower one eight inches to become joint carriers has never been denied, but below the top of the platform, and one foot and seven bas frequently been recognized. Aigen v. Boston & inches from the side thereof; the second step about M. R. Co., 132 Mass. 4:23; Block v. Fitchburg R. Co., four inches lower than the top of the platform, and 139 id. 308; Gass v. New York, P. & B. R. Co., 99 id. two feet two inches from the side thereof. On the 220; Hot Springs R. Co. v. Trippe, 42 Ark. 463; Insur- evening of the accident it was dark, and the platform ance Co. v. Railroad Co., 104 U. S. 146; Barter v. was not plainly visible. It was somewhat lighted by Wheeler, 49 N. H. 9; Wylde v. Northern R. Co., supra; light from the car windows, the depot windows, and a Hutch. Carr., $ 160. The right of a corporate carrier to lantern in the hands of the conductor, the usual way go beyond its terminus to procure freight and passen- of lighting. The plaintiff passed out of the car to the gers, and to transport them to its terminus for car- platform, and then to the second step, and without riage over its route, is not absolute and unqualified, having hold of the iron railing on either side, and but has some limitations. What those limitations are without looking to see the station platform, she stepit is not possible, in a general way, to define. The Newped out, and failing to reach it, fell. The platform York Central & Hudson River Railroad Company had been used for many years, and no one but plaintiff could not establish a line of steamers between Liver- had erer been injured or had suffered any inconven. pool and New York to carry passengers and freightience on account of the distance of the platform from from Liverpool to New York in order that it might the cars. Held, that the defendant was not liable for secure the business of transportating such passengers the injury. It was not bound so to construct this and freight over its route to Buffalo; but it might run platform as to make accidents to passengers using the ferry-boats from Staten Island, or from the New
same impossible, or to use the highest degree of diliJersey shore, for the purpose of securing passengers gence to make it safe, convenien and useful. It was and freight for transportation over its route. The bound simply to exercise ordinary care, in view of the right to go beyond its terminus to procure passengers dangers attending its use; to make it reasonably adeand freight for transportation over its route by a quate for the purposes to which it was devoted. In corporate carrier must be exercised within reasonable the case of a platform which had always been safe, and limits, and under such circumstances that it may fairly answered its purpose for men, women and children, in be said to be incident to legitimate corporate business; all kinds of weather, by night and by day, for many and our holding is that the Pacific Mail Steam-Ship years, what was there to suggest to any prudent perCompany, engaged in transportation upon both the son any change or improvement for the purpose of Pacific and Atlantic oceans, did not go beyond reason- making it more safe or convenient? In the case of able limits in contracting to take freight at Panama, Dougan v. Champlain Transp. Co., 56 N. Y. 1, the and transport it over the Panama railroad for delivery plaintiff's intestate, a passenger, slipped under a gangto its steamships at Aspin wall, its main business being way rail of a steamboat, fell overboard, and was to take freight coming to it over that railroad. (3) drowned; and it appeared that all the boats upon Lake The plaintiffs contracted with one B. who was the vice- Champlain were constructed in the same manner; that president and agent in New York of both the Pacific they had been so run for many years, and there was Mail Steam-Ship Company and the Panama Railway no proof tending to show that any one had ever before Company for the transportation of a quantity of whale gone orerboard in that way; and it was held that the oil from Panama to New York. Thu practice of the plaintiff was properly nonsuited. Grover, J., writing companies was to deduct the lighterage on through the opinion, said: “It will be seen that the only proof freight at Panama, and divide the balance equally. of negligence was the omission to inclose the space beThe oil was to be carried at a stated rate, with the tween the railing and deck so as to preclude the posbest dispatch possible. One of the plaintiffs informed sibility of shipping under it. Had there been any B. that in case of delay on the isthmus, there would proof tending to show that any such danger would be be loss from leakage, unless competent coopers were apprehended by a reasonably prudent person, the eviin charge of the oil, offering to send coopers there to dence should have been submitted to the jury. But atteud to it; but B. stated there would be no delay, the evidencelshowed that all the passenger boats upon and that they had competent coopers enough on the the lake had been constructed and run in the same way spot. B. was also notified that in case of loss from in this respect; that boats had so been run for a great leakage, the companies would be held liable. Subse- number of years; and there was no proof tending to quently, in January, 1886, the oil was delivered from show that any one had ever before fallen and gone overplaintiff's vessels to the defendants for shipment at board under the railing, or that any such danger had
convicted of the same crime; that the accomplice and the accused bad been friends and associates; that about the time the forgery was comwitted, the accused was in the city where tbe crime was committed, under an assumed name; and that upon his arrest his conduct and conversation were such as to show that he knew of the forgery. Held, that there was evidence to corroborate the accomplice, within Code (rim. Proc. N. Y., $ 399, providing that “a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” June 28, 1887. People v. Elliott. Opinion by Earl, J.
ABSTRACTS OF VARIOUS RECENT DE
been apprehended by any one. It is obvious that no 80 such thing was likely to occur.” In Loftus v. Union Ferry Co., 84 N. Y. 155. plaintiff's intestate, a child six years old, wbile leaving one of the defendant's boats, fell through one of the openings in the guard rails into the water, and was drowned. The plaiutiff recovered, and it was held that the verdict was properly set aside. Andrews, J., writing the opinion of the court, said: “The law does not impose upon the defendant the duty of so providing for the safety of passengers that they shall encouuter no possible danger, and meet with no casualty in the use of appliances provided for it. It was possible for the defendant so to have constructed the guard that such an accident as this could not have happened, and this, so far as appears, could have been done without unreasonable expense trouble. If the defendant;ought to have foreseen that such an accident might happen, or if such an accident could have reasonably been auticipated, the omission to provide against it would be actionable degligence. But the facts rebut any reference of negligence on this ground. The company had the experience of years certifying to the sufficiency of the guard. That it was possible for a child, eveu a man, to get through the opening, was apparent enough; but that this was likely to occur was negatived by the fact that multituaes of persons had passed over the bridge without the occurrence of such a casualty.” In Burke v. Witherbee, 98 N. Y. 562, while an empty car was descending a mine, the hook which fastened it to the cable became detached from the car, and it ran down the mine, and killed plaintiff's intestate. The judgment for plaintiff was reversed, because there was not sufficient proof of actionable negligence on the part of the defendants. The judge writing the opinion said: “In this mine alone cars drawn by a hook must have made several hundred thousand passages without a single accident. What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper oue? What greater or different test could it have been subjected to before a mine-owner could use it without the imputation of negligence? It seems to us quite inadmissible, if not preposterous, to attribute negligence to a mine-owner for using an implement which bad been employed in different mines, and which under varying conditions, upon countless occasions, uui. formly answered its purpose without injury to any one." The application of these authorities to this case is quite obvious. No construction is ever so made that it may not be made safer; but as a general rule, when an appliance, or machine, or structure not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of culpable imprudence or carelessness. On the evening when this accident happened the evidence teuds to show that it was dark, and that the platform was not plainly visible. It was somewhat lighted by light which came from the car windows, the depot windows, and a lantern in the hands of the conductor; and it does not appear that it was ever lighted in any other way, or that it was usual to light such platforms in any other way. The fact that it was dark made it incumbent upon the plaintiff to take the greatest care. She could have kept hold of the iron railing until her foot touched the platform, and then she would have been safe. It was not the duty of the defendant to furnish some one to aid her in alighting from the car. June 7, 1887. Lafflin v. Buffalo & S. W. R. Co. Opinion by Earl, J. CRIMINAL LAW –
CORROBORATION OF ACCOMPLICE. – On the trial of an indictment for forgery, there was evidence, in addition to that given by the accomplice, tbat the accused had once before been
ABATEMEMT—SLANDER OF TITLE-INJURY TO PROPERTY.—The plaintiff in an action claimed damages from the defendants in respect of an alleged fraud and malicious libel published by them of him in his char. acter of wine merchant and wine importer. He alleged in his statement of claim that he was a wine merchant and importer, and the registered proprietor of a trade-mark which consisted of the words, “The Delmonico," and the figure of a woman, and was a dealer in a brand of champagne introduced by him, and known as “The Delmonico " champagne: that the defendants falsely and maliciously published statements to the effect that the champagne bearing the “Delmonico" brand was not the wine it was represented to be, unless it bore the name of a particular French firm of dealers and importers, who, if such wine were shipped from France, would take proceedinys to vindicate their rights in England, meaning thereby that the plaintiff bad no right to use his registered trade-mark; that in using such trade-mark he was acting fraudulently; that the wine imported and sold by the plaintiff was not genuine wine; and that no person other than the defendant Mege had the right to use the word Delmonico" as a trade-mark. The plaintiff alleged damage to his credit and reputation and trade and business of wine merchant. After the statement of claim was delivered the plaintiff died, but an order was made that his widow and executrix should carry on the action. At the trial, after the counsel for the plaintiff bad opened his case, the learned judge directed a verdict of nonsuit and judgment for the defendants on the ground that the cause of action died with the plaintiff. The plaintiff moved for a new trial on the ground of misdirection. Held, that the causes of action in the statement of claim were separable, and that which was based on the alleged libel as affecting the personal reputation of the plaintiff as a trader and wine importer died with him, and so far the nopsuit was right; but that which was based on the statement that the plaintiff had no right to use his trade-mark or brand was in the nature of slander of title, and survived to his personal representative, and consequently to that extent the nonsuit was erroneous, and there ought to be a uew trial in respect of the damage done to his estate by reason of such statement. Q. B. Div., 56 L. T. Rep. (N. 8.) 662, April 1, 1887. Hatchard v. Mege. Opinions by Day and Wills, JJ.
CRIMINAL LAW-WILLFUL OR MALICIOUS DAMAGE TO REALTY-PICKING MUSHROOMS.-By section 52 of the Malicious Injuries to Property Act, 1861, it is enacted that “whosoever shall willfully or maliciously commit any damage, injury or spoil to or upou any real or personal property whatsoever, either of a public or a private nature, for which no punishment is bereinbefore provided, shall on conviction thereof before a
justice of the peace
be committed to the positions are antagonistic to each other, for if a trust common gaol
for any term not exceeding was created, the possession of the bonds and the legal two months. * ." The appellant was the oc- title thereto remained in the trustee. In that case cupier of a certain field in which mushrooms grew. there was no delivery to the donee, and consequently The mushrooms were worth about £7 a year to him. no valid executed gift; while if there was a valid The respondent picked and took away about two shil- gift, the possession and legal title must have been lings' worth of mushrooms from such field. The ap- transferred to the dopee, and no trust was created.” pellant turned cattle out to graze in the said field; he It is manifest that there was an inchoate gift of the did not cultivate it for the growth of mushrooms, but bonds by the decedent which he never completed; they grew there in a wild state. The respondent did but we find nothing that can be construed into a decno damage to the grass or fences. The appellant there- laration that he held them in trust, or that he reupon took out a summons against the respondent un- garded himself as standing, in reference to the bouds, der section 52 of the Malicious Injuries to Property in a fiduciary relation to his daughter. If a gift is imAct 1861, charging the respondent for having willfully perfect at law, and for want of consideration cannot and maliciously committed damage to certain musb- be enforced, a court of equity will not aid the donee rooms to the amount of 2s. The justices dismissed by construing it into a declaration of trust. In Milthe summons, being of opinion that mushrooms grow- roy v. Lord, 4 De Gex, F. & J. 274, in referring to the ing in a wild and spontaneous manner, not being the modes of making a voluntary settlement, the privciple subject of larceny at common law or by statute, the
is announced that if the settlement is intended to take circumstances of this case did not come within the effect by transfer, the court will not hold the intended provisions of section 52 of the said act. From such transfer to operate as a declaration of trust; for then decision the appellant now appealed. Held (affirming every imperfect instrument would be made effectual the decision of the justices), that no offense was es
by being converted into a perfect trust. The owner tablished in this case within the meaning of section 52 of property that is meant to be donated may at the of the Malicious Injuries to Property Act, 1861. To last moment before delivering it change his mind; constitute an offense within that section there must
and in such case equity will not virtually divest him be proof of actual positive damage to the realty. Mere of his property by creating a trust in favor of a volunproof of damage to the products growing upon the
teer. By the civil law, however absolutely a donation realty, and consequent loss to the owner of such pro- | inter vivos might have been made, yet if the object ducts, is not sufficient to establish an offense within of the donor's bounty proved ungrateful, he was perthe meaning of said section. Q. B. Div., July 5, 1887.
mitted in certain specified cases to revoke the dona. Gardner v. Mansbridge. Opinions by Smith and tion. But by the common law, when the gift is perWills, JJ.
fect, by delivery and acceptance, it is then irrevoca
ble; and hence until there is a final delivery of the GIFT-INTER VIVOS-DELIVERY.-A father invested subject the donor will continue vested with the title. $2,000 in bonds for the benefit of his daughter, who The leading case on this point is Antrobus v. Smith, lived at a distance, but by her request kept them in 12 Ves. 30, in which Gibbs Crawford made the followbis possession and under his control. The bonds ing indorsement upon a receipt for one of the subnever passed into her hands, but he collected the in-scriptions in the Forth & Clyde Navigation: “I do terest paid on them, and remitted it to her. Held, hereby assign to my daughter, Anna Crawford, all my that there had been no delivery, and that the transac- right, title and interest of and in the inclosed call, tion did not constitute a valid gift inter vivos. A gift and all other calls, of my subscription in the Forth & inter vivos has been described as an immediate, volun- | Clyde Navigation.” As this was not a legal assigntary and gratuitous transfer of his personal property ment, and was therefore without effect as a gift, it by one to another. It is essential to its validity that was argued that the father meant to make himself a the transfer be executed, for the reason that there be- trustee for his daughter of the shares. But Sir W. ing no consideration therefor, no action will lie to en- Grant, M. R., observed: “Mr. Crawford was no othforce it. A gift inter vivos has no reference to the fu- erwise a trustee than as any man may be called so ture, but goes into immediate and absolute effect. To who professes to give property by an instrument inrender the gift complete, there must be an actual de capable of conveying it. He was not in form delivery of the chattels, so far as the object is capable clared a trustee, nor was that mode of doing what he of such a delivery, and without such a delivery the ti- proposed in his contemplation. He meant a gift. He tle does not pass. If the subject be pot capable of says he assigns the property. But it was a gift not actual delivery, there must be some act equivalent to complete. The property was not transferred by the it. “The necessity of delivery,' says Chancellor Kent, act. Could he himself have been compelled to give " has been maintained in every period of the English effect to the gift by making an assigument? There is law." The donor must part, not only with the pos- no case in which a party has been compelled to persession, but with the dominion and control, of the fect a gift which in the mode of making it he has left property. An intention to give is not a gift, and so imperfect. There is locus pænitentiæ as long as it is long as the gift is left incomplete a court of equity will incomplete.” In Jones v. Lock, L. R., 1 Ch. Div. 25, a not interfere and give effect to it. Gray v. Barton, 55 check of £900 was put by the father into the hands of N. Y. 68; Martin v. Funk, 75 N. Y. 134; 2 Kent Com. his child, signifying in strong terms his intent to give 438; Noble v. Smith, 2 Johns. 52; Pearson v. Pearson, in præsenti the check to the child. He subsequently rid. 26; Grangiac v. Arden, 10 id. 293; Hooper v. took the check and locked it up, saying he should Goodwin, 1 Swan, 486; Picot v. Sanderson, 1 Dev. 309; keep it for the child, and died the same day. A bill Pennington v. Gittings, 2 Gill & J. 208; Gano v. Fisk, was brought in behalf of the child against her father's 43 Ohio St. 402. But it was further contended that representatives to enforce his interest in the check as there was not only a gift, but that the father constitu- a trust. Lord Cranworth said: “This case turns ou a ted himself a trustee for his daughter. In this con- very short question-whether the father intended to nection the language of the court in Young v. Young, make a declaration that he held the property in trust 80 N. Y. 430, finds a direct application in the present for the child-and I cannot come to any other conclucase. “The transaction," says Rapallo, J., in deliv. sion than that be did not.
It was all very ering the opinion of the court, “is sought to be sus- natural, but the father would have been very much tained in two aspects: First, as an actual executed surprised if he had been told that he parted with the gift; and secondly, as a declaration of trust. These | £900, and could no longer dispose of it; and that the
child by his next friend could have brought an action v. Orne, 37 Ill. 186. The contract here in question of trover for the check." It is obvious, and well set- purports to have been made, in part at least, upon an tled by authority, that before the owner can be held independent cousideration, the receipt of which the as a trustee for the benefit of a mere volunteer, there guarantors ackuowledged. It bears upon its face inmust be a distinct, perfect and unequivocal declara- disputable evidence that the contract between the tion of trust. There should be an expression of an in- guarantee and the principal debtor had either been tention to become a trustee; not that the owner concluded, or that the two contracts were executed as should use technical words of language, but he should part of the same transaction. The form of the obligadeclare in unmistakable terms that he means to stand tion is that of a present undertaking, and purports to in a fiduciary relation to the object of his bounty. be an absolute guaranty of the fulfillment of an exThe record shows no such declaration by the dece-isting, consummated contract. Notice of its accepdent, and his acts were wholly incon sistent with the tance was therefore not necessary. Ind. Sup. Ct., idea of making himself a trustee. There are no rea- June 21, 1887. Furst & Bradley Manuf'g Co. y. Black. sonable grounds for concluding that when he invested Opinion by Mitchell, J. the bonds in his business without the knowledge of
INSURANCE FRIENDLY SOCIETY - SICKNESS his daughter he deemed himself as acting under a
AGE — NATURAL DECAY.–The respondent, over eighty trust which he had assumed and deelared. If in the alleged purchase and setting apart of the bonds as the
years of age, belonged to a friendly society, one of the
rules of which provided that every member, after paygift to his daughter, and assenting to their being left
ing a certain amount of contributions, falling sick, in his custody, he had made use of words expressing
lame, or blind, or otherwise disabled from work, a gift which was never perfected by delivery, such
should be entitled to receive a certain weekly amount words would have shown an intention to give prop
from the funds of the society for sixteen weeks, if his erty over to another, and not to retain it in his (the
illness continues so long, and half pay for the remaindonor's) hands for any purpose, fiduciary or otherwise.
der; and another provided that where a member Richards v. Delbridge, L. R., 18 Eq. 11, 15. In the
falls sick, lame or blind, he is to give notice to the case last cited, Delbridge, who was possessed of lease
stewards, with a certificate from the surgeon of the hold business premises and stock in trade, purported
society, stating the cause of his indisposition. The to make a voluntary gift in favor of his grandson, E. B. Richards, who
surgeon of the society certified to the appellants infant, and
(stewards of the society) that the respondent conassisting him in his business, by the following
tinued unable to work by reason of natural decay.” memorandum, signed and indorsed on the lease:
The respondent drew sicks pay for some weeks; then “ This deed, and all thereto belonging, I give
the appellants refused to allow him any more, holding to E. B. Richards from this time forth, with all
that the certificate did not entitle him to receive it. the stock in trade.” The lease was then delivered to
Held, that incapacity to work arising from natural the mother of the grandson in his behalf. It was held
deoay, as the result of old age, did not entitle the reby Sir G. Jessel, M. R., that there was no valid decla
spondent to sick pay under the society's rules. Q. B. ration of trust of the property in favor of the grand
Div., March 28, 1887. Dunkley v. Harrison, 56 L. T. 800). In the same line of decisions are numerous other
Rep. (N. S.) 660. Opinion by Smith, J. authoritative cases, but we deem it unnecessary to refer to them. Ohio Sup. Ct., April 26, 1887. Flanders
PREMIUM-GROSS SUM-CONTRACT- ENTIREv. Blandy. Opinion by Dickman, J.
SEVERABLE. - A., for a consideration in gross, was in
sured against loss by fire to the amount of $2,400; viz., GUARANTY - WHEN NOTICE OF ACCEPTANCE UN- $2,000 on two connecting dwelling-houses, $1,000 on NECESSARY.—It is unquestionably true that a contract each, and $400 on a buildi:g in the rear of the othere. of guaranty is a transaction between the guarantor Held, the contract was entire, subject in all its parts and guarantee, and is separate, and in many respects to the condition imposed by the insurance company, entirely distinct from the contract be:ween the latter and that a violation of one of the conditions of the and the principal. In order to the completion of such policy as to part of the risk affected the entire. As a a contract, it is essential, as in all other contracts, general rule, where the consideration is entire and that the minds of the parties shall have mutually ag- single, the contract must be held to be entire, although seuted to its terms. Where therefore there is a mere the subject may consist of many distinct and wholly proposal, on the part of those sought to be charged as iudependent items. The leading case on which the guarantors, to guaranty the faithful performance of plaintiff relies to take this policy out of the operation some obligation which another may enter into, pro- of that rule is Merrill v. Ins. Co., 73 N. Y. 452, where vided credit shall be extended or a duty undertaken, it was held that a contract of insurance upon several authorišies all agree that the coutract remains incom- separate and distinct classes of property, each of which plete until the original obligation is entered into, and is separately valued, in consideration of a premium in the proposition of guaranty accepted, and due notice gross on the sum total of the valuation, is severable, thereof given. This is so upon the familiar principle and a breach of the conditions may avoid the policy as that while the proposition remains pending, without to one of the items, but not affect it as to the others. notice of acceptance, that simultaneous concurrence Folger, J., in an able opinion, remarks that upon the of mind, essential to the completion of a contract, has question there has been contrariety of opinion, cites not taken place. Where however the guaranty is for conflicting rulings in other States, and adds: “In such the fulfillment of a contract already made, or for oue case we must learn whether there are adjudications executed contemporaneously with the contract of in our own State authoritative upon us, or to what guaranty, or for the payment of an existing debt, or conclusion the reason of the case will lead us." Turnwhere the contract of guaranty is upon a considera-ing to the decisions of our own State we find that the tion distinct from the credit extended to the principal precise points now discussed have been decided namely debtor, and which moves directly between the guaran- that such a contract of insurance as the one on which tor and guarantee, notice of acceptance is necessary. this suit is founded is entire; and that an act done in In such cases the acceptance of the guaranty, and the violation of the condition of the policy, after the performance of the consideration upon with it rests, making of the contract, in one of the buildings insured, is all that is essential to make the contract complete avoids the policy as to the whole. Where, in conand enforceable. Davis v. Wells, 104 U. S. 159; Wills sideration of $30, property was insured for $2,000, of 8. Ross, 77 Ind. 1; Kline v. Raymond, 70 id. 271; Cooke which $500 was on baru and stable, and $1,500 on per