Opinion of the Court, per RAPALLO, J. the defendant agreed to indemnify them against loss in the freighting business, and that other parties, engaged in a similar kind of freighting business, were in the habit of trading in stock and grain, and that such dealings were incidental to and included in the freighting business as customarily conducted. The plaintiffs and witnesses called by them also testified, that the defendant was cognizant of the dealings of the plaintiffs in stock and grain, and sanctioned them, and that in some instances he directed the purchases to be made. All of these allegations were controverted by the defendant. He testified that he never agreed to indemnify the plaintiffs against losses in the freighting business. That all that he said upon the subject was that if the plaintiff, Winans, would live at Poughkeepsie, and go upon the boat, and attend to the money matters he would guarantee that the plaintiffs should lose nothing by the boat. That he never sanctioned their dealings in live stock and grain, but advised against them, and that they were not part of the freighting business, and in corroboration of his version an estimate in writing was referred to, as having been the basis of the arrangement between the parties, which estimate showed the expected receipts and disbursements of the transportation business, but contained no reference to any trading in live stock and grain. Witnesses on the part of the defendant also testified, that the freighting business did not include the purchase and sale of live stock and grain. The court at the trial submitted to the jury the controverted questions as to the guaranty, and the subjects which it was intended by the parties to embrace. The jury must have found in favor of the plaintiffs' version of the contract, as the amount of their verdict exceeded the loss incurred in the business of the boat. A motion for a new trial upon the evidence, and upon exceptions, was made to the judge at circuit and denied, and judgment was thereupon entered upon the verdict. Opinion of the Court, per RAPALLO, J. An appeal from that judgment, and also from the order denying a new trial, was taken to the General Term, and was heard upon a case containing the evidence, as well as the exceptions taken at the trial. The General Term reversed the judgment and granted a new trial. The appeal to this court from the order granting a new trial, seems to have been brought upon the assumption that sections 268 and 272 of the Code, which provide that a judgment shall not be deemed to have been reversed on questions of fact, unless so stated in the order of reversal, apply to cases tried by jury. But it will be seen by reference to those sections, that they apply only to cases tried by the court or a referee, and we have lately held, in the case of Wright v. Hunter (ante page 409. Rep.), that in cases tried by jury, where a new trial is granted, at General Term, we will not entertain an appeal from the order granting a new trial, if it appears from the return that such order was or may have been made upon questions of fact. Where there is a substantial conflict in the testimony, and a motion for a new trial, upon the evidence, has been made at Special Term, or to the judge at circuit, and denied, and an appeal from that order taken to the General Term, the question of the weight of evidence is properly before the General Term; and though there be also exceptions in the case, it is impossible to determine from the record that the new trial was granted upon the exceptions alone. The appellant, therefore, in such a case fails to show that the General Term has committed an error of law in granting the new trial. If granted upon the evidence (the trial having been by jury), its decision is not reviewable in this court. 30 N. Y., 134; Wright v. Hunter, supra.) The present case appears to have been before the General Term in proper shape for review upon the facts. There was a serious question, upon the evidence, whether the defendant's guaranty extended to the plaintiffs' operations in stock and grain, or was confined to the business of the boat, or the freighting business, and whether that business included the Opinion of the Court, per RAPALLO, J. dealings in question, and was so understood by the parties to the contract; and it may be that the court at General Term came to the conclusion that the weight of the evidence was in favor of the defendant upon that issue. If so, that was a sufficient ground for the order granting a new trial, without regard to the exceptions, or the disposition made of them. It is not necessary, therefore, that we should examine the exceptions, except for the purpose of determining whether the appeal should be dismissed or the order affirmed, and the plaintiffs subjected to an absolute judgment against them. If any exception should be found to have been well taken, we should be justified in rendering an absolute judgment. (East River Bank v. Kennedy, 4 Keyes, 279.) But as the appellant's counsel claims to have been misled by the case of Parker v. Jervis (3 Keyes, 271), in which it is intimated that the General Term has no power in any case to review the finding of a jury, we are inclined to dismiss the appeal and leave the parties to a new trial, unless some point of law raised by the exceptions is necessarily fatal to the plaintiff's cause of action. The only point we find which, if sustained, would have that effect, is that the agreement sued upon was void for want of consideration. It is urged by the learned counsel for the respondent, that the business in question was to be conducted by the plaintiffs wholly for their own benefit, and that therefore, there was no consideration for an undertaking by the defendant to indemnify them against the losses which they might incur in that business. But it must be borne in mind, that the plaintiffs were not embarked in the business when the guaranty was given. That the business was not free from risk, is shown by the result. According to the evidence of the plaintiffs, they were unwilling to incur the hazard of entering into the transaction without the defendant's guaranty, and so stated to the defendant, and the guaranty was the inducement to their engaging in the enterprise. By doing so, they not only devoted their SICKELS - Vol. I. 72 Opinion of the Court, per RAPALLO, J. time and labor to the prosecution of the business, without compensation unless successful, but were obliged to incur the responsibility of chartering a steamboat and making the disbursements, and incurring the liabilities incident to the business. The incurring of these risks and liabilities by the plaintiffs was a sufficient consideration to support the defendant's promise. It is not necessary in such a case, that a benefit to the promisor should appear. It is sufficient that a liability is incurred by the promisee, and that the promise is the inducement to the transaction. (Violett v. Patton, 5 Cranch., 142, 150; Chapin v. Lapham, 20 Pick., 467.) But, further, it is alleged in the complaint, and not denied in the answer, that the disuse of the defendant's property for freighting purposes detracted largely from its value, and there was some evidence in support of the allegation that the defendant was desirous of establishing the freighting business at his dock. The defendant was the sole judge of the adequacy of the consideration, and if, by giving the guaranty in question, he not only induced the plaintiff to incur liabilities, but also secured a real or fancied benefit to his own property, by causing it to be employed in the manner he desired, it cannot be said that there was no consideration for his promise. Neither was the agreement void for want of mutuality. It is by no means clear that there was not such an undertaking on the part of the plaintiffs to carry on the business during the freighting season, as would have subjected them to an action for its breach, even while it remained executory. The amount of damages which could have been recovered for such breach cannot be material. But assuming that no obligation on the part of the plaintiffs was created at the time the defendant's promise was made, and that his promise or guaranty was merely on condition that the plaintiffs should perform the specified acts, yet the acceptance of the guaranty and full performance under it of the conditions, would render it obligatory upon the defendant. (Kennaway v. Treleavan, 5 Mees. & Welsb., 501; Morton v. Burn, 7 Ad. & El., 19, 22.) Statement of case. For the reasons before stated, the appeal should be dis missed with costs. All concur. Appeal dismissed. EUROTAS MARVIN and FRANCIS J. CLARK, Appellants, v. E. W. S. being seized of certain premises, conveyed them to B., in trust, to receive the rents, issues and profits for the use and benefit of L. C. S., wife of the grantor, the same to be appropriated according to her directions, and upon her death, in case the husband survived, the same to be conveyed to her children or descendants, if any survive her, if none, then to him, and in further trust to sell or mortgage the premises conveyed, or any part thereof, whenever desired by the wife, "separate and apart from her husband," and pay over the proceeds to her or reinvest the same according to her directions. B. joined in the deed and accepted the trusts; the wife did not join. Subsequently husband and wife joined in a mortgage of the premises in the ordinary form to plaintiff, to secure a precedent debt of the husband. L. C. S. survived her husband. In an action brought to foreclose the mortgage,-Held, 1st. That the trust was valid and the deed vested the whole estate in the trustee, subject to the execution of the trust and to the wife's contingent right of dower, that the power of sale was irrevocable by the grantor, who had, at the time of the execution of the mortgage, no estate, legal or equitable, in the premises capable of being transferred. 2d. That the wife's inchoate right of dower, was incapable of being transferred or released by her during coverture, except to one who already had or who by the same instrument received an independent interest in the estate, nor could she bind herself personally by a covenant or contract affecting her dower right. She was not estopped, therefore, by any such covenant from setting up a subsequently acquired title, and the plaintiff took no interest under his mortgage. (Submitted November 23d, 1871; decided December 5th, 1871.) APPEAL from a judgment of the General Term of the Supreme Court of the fourth judicial department, affirming a judgment entered upon a decision of the court at Special Term, dismissing plaintiff's complaint. This action is brought to foreclose a mortgage executed by 46 571 119 333 |