and that the agent exceeded his authority and was chargeable with a want of proper skill and care in making the investment. The receipt of interest by the principal, without knowing of the circumstances and of her right to disaflirm the act, will not preclude her from maintaining an action to recover the money so invested. No tender of the bonds and mortgages is necessary in such a case before judgment. are such that they do not deal on terms of equality, a very strict rule prevails, and,an agent or trustee who occupies such a position has no right to avail himself of his superior knowledge of the matter derived from the fiduciary relations, or influence or weakness, dependence or trust, to take an unfair advantage. 75 N. Y., 99, 100. It was proved that plaintiff had no acquaintance with the mortgaged premises. One witness testified that plaintiff had examined the premises and knew that there were prior mortgages. Plaintiff denied this and swore that she did not know that there were prior mortgages until a week after the mortgages executed to her were returned to her. One witness testified to a statement made in the presence of M., that he (M.,) did wrong in making plaintiff's second mortgage, which M did not deny. The highest value put upon the property by defendant's witnesses was but a few thousand dollars over the amount of the two first mortgages of $10,000 each and the plaintiff's loan." It also appeared that the loan upon the first mortgages was made at an unusually large discount, and that a large sum was retained for examining title and other expenses; that the mortgagees were or became insolvent, and the property was sold for far less than the amount of the first mortgages. This action was brought to recover a sum of money which was invested for plaintiff by M., defendant's testator, as her agent and attorney, upon bond and mortgage, on real estate in the city of New York upon which there were prior mortgages on a foreclosure of which the premises were sold for less than the amount of said prior mortgages, A judgment was rendered for plaintiff, which was reversed by the General Term. The order of reversal does not state that the judg ment was reversed on questions of fact. It was proved on the trial that M. acted as agent and attorney in making the loan. The answer admits that he negotiated and procured the loan to be accepted, It appears that M. came with plaintiff to the place where and at the time when the money was paid to her upon another mortgage, made out the statement as to the amount, brought a satisfaction piece, for which he was paid, received the money which was paid to plaintiff, and acted or seemed to act on her behalf as her attorney in transacting the business in preference to plaintiff's former attorney with whom it had been transacted. It was also proved that Held, That these circumstances all tended plaintiff subsequently, at the request of M., to show that the loan was improvidently and went to his and his son's office to close up the improperly made, and unsafe and insecure at business, delivered a check for the money to the start, and that the agent exceeded his auM., was introduced to his son, but said noth-thority and was chargeable with a want of ing whatever to him about the title of the premises upon which he was about to take the mortgages or the business. A week after, A week after, M. delivered the bonds and mortgages to her and paid her $300 as a present, as plaintiff testified and claims. M. afterwards collected a small amount on the bonds and mortgages and wrote several letters to the bondsman demanding payment of interest and taxes. There was a contradiction in the testimony in regard to M.'s relation to plaintiff. Held, That the testimony was sufficient to warrant the conclusion that M. was entrusted by plaintiff with making the loan, and the duty devolved upon him to see that the mouey was safely and securely invested. An agent or attorney under such circumstances is responsible, and is not only bound to act in good faith, but to exercise reasonable diligence and such care and skill as is ordinarily possessed by persons of common capacity engaged in the same business. Story on Agency, 183; 50 N. Y., 35; Story's Equity Jurisprudence, 310. When the relations of contracting parties proper care and skill in making the investment, and for this he is legally liable for the loss sustained. It is not prudent or safe for an agent to advance moneys on second mortgages when there are large prior incumbrances, and especially where the personal security of the mortgagees is in any way precarious. Such an investment is not a firstclass one. The right of an agent to advance funds on second mortgages or seeuritics not of the first class may well be questioned. McQueen's Appeal Čases, 236. It appears that plaintiff received some of the interest due her, but did so without knowledge of the circumstances and of her right to disaffirm the act. Held, This was not sufficient to preclude her from maintaining this action. 1 Hoff. Ch., 290, 291. Also held, That plaintiff's receiving the $300 did not amount to a ratification or waiver of her right of action. Also held, That no tender of the bonds and mortgages, or proof thereof before judgment was required. Judgment of General Term, reversing judgment for plaintiff, reversed, and judgment of Special Term affirmed. THE SPECIFIC PERFORMANCE OF CON TRACTS FOR THE SALE OF SHARES The tendency of courts of equity to extend their jurisdiction to enforce the specific performance in the case of contracts for the sale of personal property has certainly been productive of some uncertainty as to what will be the result of proceedings in a given case, unless an authoritative decision on a similar statement of facts has been rendered by the court in which relief is sought. The ancient practice of confining the jurisdiction for the most part to cases where the contract was for the sale of real estate, however much it might be criticised as setting up an arbitrary rule for which no satisfactory reason could be given, at least produced harmony and uniformity in the decisions, and furnished guidance in practice. This limitation, with exceptional jurisdiction, assumed in cases where the subject of sale was of no general value, and was valuable chiefly to the person seeking its delivery to himself, and who, unless there were delivery in specie, would be without adequate remedy, was generally recognized in the early English cases. It is stated generally in the books that the practice of decreeing spaoific performance of contracts for the sale of real estate, and of declining to so enforce those for the sale of personal property, arose, not out of the inherent differences between real and personal estate, but because an action at law for damages for breach of the contract for the sale of real estate did not afford adequate relief, while such action did fully compensate when a bargain for the sale of personal property was not completed. The great increase in wealth, the more intimate and involved business and commercial intercourse between individuals and communities, the new and divers forms which rights in property have taken, long since rendered this doctrine too narrow to meet the necessities produced by changed circumstances, and the extension of jurisdiction in equity to decree specific performance in a great variety of contracts of salę has followed. The extension of the power of the court to enforce contracts for the sale of stock in corporations and other securities that are bought and sold in the stock markets of the world seems to be a step in the direction of general enforcement of contracts to sell personal property of every kind. An examination of the authorities shows that specific performance of contracts of this kind is ecreed by some courts, and denied by others, under almost similar circumstances. In the early case, (Cud v. Rutter, 5 Vin. Ab. 538) decided in 1719, the court declines to order spe cific performance of a contract for the sale of £1, 000 of South-Sea Company stock, saying that there is no difference between this £1,000 of stock and any other £1,000, and leave the plaintiff to seek his remedy at law where it can be fully secured. 590), decided in 1824, without commenting on In Doloret v. Rothschild, (1 Sim. & Stuart, Cud v. Rutter, and disregarding its authority, the Vice-Chancellor says, that a bill asking specific performance of a contract for the sale of Neapolitan stock will lie, because the remedy at law may not be efficient, since the defendant may be irresponsible, and unable to respond to a judgment for damages. In Clark v. Flint, (22 Pick. 231), where a bill is brought to obtain delivery of a ship according to a contract of sale, Mr. Justice Wilde, referring to the doctrine that equity will grant relief because the efficiency of the legal remedy depends on the solvency of the defendant, says, that "the doctrine ought to be laid down with some limitation," but approves it if actual insolvency be shown. It is entirely true that for this reason there might be a failure of justice between the parties; but the general application of the rule would extend the exercise of this power of the court to the enforcement of all contracts for the sale of personal property, even to those for the sale of general merchandise, which all courts agree are not so enforceable. In Duncuft v. Albrecht, (12 Sim. 189), decided in 1841, specific performance of an agreement to sell shares in the London and Southampton Railroad is decreed; and the Vice-Chanlor says, that such stock is not analogous to government stock, because it is limited in amonnt, and not always to be had in the market. This decision has been repeatedly confirmed in England. (Cheale v. Kenward, 3 De G. & J. 27; Parish v. Parish. 32 Beavan, 207). In Connecticut, a contract for the sale of bank shares is treated like one for the sale of flour, corn, or the public funds, and specific performances refused. (Cowles v. Whitman, 10 Conn. 120). In New Hampshire the same rule prevails. (Eastman v. Plumer, 46 N. H. 464). In Ross v. Union Pacific R. R. Co., (Woolw. C. C. 26)., Mr. Justice Miller says, the rule should be the same, whether railroad shares or government bonds are the subject of the contract, and questions the propriety of making the distinction mentioned in the English case. This, however, arguendo, as the case turned on other considerations. In Pennsylvania, (Strasburg R. R. v. Echternacht, 21 Penn. 220), the court declines to enforce specifically a subscription agreeing to take stock in a railroad, and says the remedy at law is complete. In another case in the same State, (Foll's Appeal, 91 Penn. 434), a bill was brought to compel the transfer of fifteen shares of a national bank. The plaintiff had purchased a large number of the shares, and contracted for the sale to him of the fifteen shares in question, which. set of electors in controlling a corporation, if it be shown that their candidates were rightfully chosen. In Baldwin v. Commonwealth, (11 Bush (Ky.), 471), specific performance is enforced when the state authorities sold shares in a turnpike in accordance with authority conferred by the legislature. secured, would give him a majority of the whole number. The court declines to enforce his contract, and says that a national bank is a quasipublic institution, that the note-holders, stockholders, and depositors are to be protected, and that those would not be benefitted by the concentration of the majority of the stock in the hands of one man; also, that the court is not to use its extraordinary power to assist in "miscellaneous In Leach v. Fobes, (11 Gray, 506), specific perstock-jobbing operations," and that the end formance is decreed of an agreement of comprosought to be obtained by the bill is against pub-mise which provided for the transfer of shares lic policy. Nothing is said about the adequacy of legal remedy. If the language of the court means that it will decline to enforce a contract for the sale of shares of stock on the ground that it is improper to enforce such contracts because "miscellaneous stock-jobbing operations" are unlawful, it is placing such contracts on a different level with other contracts relating to personal property, and announcing that they are not entitled to the consideration of courts of equity. It is difficult to see why a capitalist may not lawfully and properly buy all the shares of any corporation that are purchaseable, and why, if his purchase of the first lot be enforceable in equity against his vendee, his purchase of the last fifteen shares is not equally so, though the effect of securing them be to make him the owner of a majority of the whole stock. The court, in this case, assumed that the note-holders, depositors, and stockholders would be injuriously affected by a concentration of a majority of the stock in one man's hands, and that, therefore, it would be against public policy to allow the bill. It is not clear what is the purport of the phrase "miscellaneous stock-jobbing operations." But it is evidently intended by it to condemn the transaction in some way, though the facts show that the vendee (and appellant) was the actual owner of the shares, and made a contract for their sale binding at law, which ought to relieve the transaction from the imputation of being one of stock-gambling, when the vendee is not the owner of the shares at the time of the sale, and the real transaction is simply a wager on the future price. The fact that the result of decreeing specific performance is to place one party in control of a majority of the shares of a corporation, alone does not appear a sufficient reason for denying the relief asked for in the bill. The other shares may be owned or controlled by an adverse interest which opposes the plaintiff's proceedings, and the direct result of the court's inaction would be to give this interest the control instead of the plaintiff, who has been more diligent, and purchased the balance of power. The court is deciding 'virtually who shall control, whether it allows or denies the plaintiff's bill. A petition for a writ of mandamus is filed after a disputed election of officers in a parish where the parties were almost evenly divided, and the case turns on the legality of a single vote cast. It could not be claimed that the court should decline to act on the ground that it is against the public policy to assist one in a corporation, and for the conveyance of real estate. The court says that it will not undertake to decide whether a suit in equity can be supported for the sole purpose of enforcing a contract for the sale of shares in a corporation; but that, as the court will give relief for that part of the agreement which relates to the conveyance of real estate, it will also entertain jurisdiction of the whole agreement. Todd v. Taft, (7 Allen, 371) is cited in some of the text-books as following the doctrine of Duncuft v. Albrecht, in holding that contracts for the sale of stock are to be specifically enforced in the same manner as those for the sale of real estate. An examination of the case shows that such statement is not exact. A bill in equity was brought for specific performance of this agreement: "Received of A. B. his note for $5,200.50-100 dollars six months from date, for which I agree to transfer and deliver to said A. B. or his order fifty shares of the Providence and Worcester Railroad stock, upon the condition that said note is paid at maturity, without grace, and I am to have dividends upon said stock and deduct same from note at maturity, said A. B. to have full power to vote upon said stock." It appeared in evidence that the parties had met before the maturity of the note, and that the plaintiff asked the defendant if he would renew the note, and spoke of it as maturing on the first and fourth of the month, by mistake, supposing that he was entitied to days of grace; that telegrams and letters were exchanged which resulted in the plaintiff's calling on the defendant on the fourth of the month and demanding the transfer of the stock; also that the stock was worth $1,200 more than when the contract was made. The' defendant declined to accept the money and transfer the stock. In the opinion, the court says that the contract was an executory one by A. B. to convey the stock upon certain conditions; but that, practically, as regards the rights of the plaintiff it created all the liability to make payment that would have attended a purchase and transfer of the stock. And, further, "In the view we take of this case, it is to be dealt with in equity much like the case of a sale of stock, absolute on its face, but in fact designed to secure the payment of a certain sum of money upon a future day certain, when a bond or other proper writing is given by the vendee, undertaking to transfer the shares to the debtor upon payment at the day named of the sum stated. It is so for the reason already stated, that Farnum had become the debtor of Taft for the balance of the purchase-money. (Jones v. Robbins, 29 Maine, 351). It seems, therefore, to be a proper case for relief from forfeiture of a right, occasioned by wart of exact performance by the party on the day stipulated in the agreement, if there exist such ground for relief as entitles the party to the aid of a court of equity." The court finds that the evidence showed a neglect on the part of the defendant to inform the plaintiff of the precise day of payment and acquiescence in the plaintiff's error as to the day, and decrees specific performance. It is to be noticed that nothing is said in the opinion of the authority of Duncuft v. Albrecht and the English cases following it, or of the jurisdiction of courts of equity to enforce specifically simple contracts for the sale of stock; a singular omission, certainly, if the court were passing upon a doubtful question, and one hitherto never decided in this State. 66 The decision seems to be put fairly by the court on the ground that it was a proper case for relief from forfeiture of a right occasioned by want of exact performance." And, as the conclusion must have been the same had the subject of sale in the agreement been ten bales of cotton or a cargo of flour, it does not seem to be correct to cite the case as a decision of the Massachusetts court, that contracts for the sale of stock are to be enforced as of course. It is not to be expected, perhaps, that the various decisions shall be found to state a uniform principle which is to be applicable in all like cases, since, although the equitable discretion which is exercised in determining each case is a sound discretion governed by precedents and authorities, the different circumstances attending each case are sufficient in many instances to explain the conclusion reached. In Duncuft v. Albrecht the issue was clearly defined and simple, and the decision was reached that contracts for the sale of stock in corporations were enforcaeble because the plaintiff had not a complete remedy at law. There was no evidence in the case that the shares could not be had in the market, or that there was any dif ficulty in ascertaining their exact value so that a jury could assess damages for the broken contract at law; either of which circumstances existing might be good ground for decreeing specific performance and delivery. Are the reasons given for that decision applicable in this country, where the shares bargained for are sold daily, and pass from hand to hand with as little formality as accompanies the transfer of a promissory note? The shares of most of our railways, banks, and the large manufacturing companies are the subject of daily sale at the stock exchanges of New York and other cities, and their price quoted with the same frequency as that of English consols or United States bonds. One hundred or one thousand shares of the Western Union Tele graph Company, or of the Union Pacific Railroad, for example, are ordinarily quite as readily obtained as $100,000 U. S. 4's; and any lot of those amounts answers the requirements of a contract for their sale as well as the lot owned by the vendee. Indeed, it can hardly be said of some of our stocks, as it was by the Vice-Chancellor in the case before him, that they are limited in amount. The reasons given in Duncuft v. Albrecht for decreeing specific performance seem to exist in almost all conceivable cases where personal property is the subject of the contract; the kind of property is limited in amount, and may not be always obtainable in the market. And, unless courts of equity are to take the ground that natural justice requires the enforcement by them of all valid contracts, the doctrine of Duncuft v. Albrecht, if applied here to contracts for the sale of securities which are frequently quoted and sold, seems to be anomalous, and to extend jurisdiction to cases where there is full and complete remedy to be had at law. A. G. BULLOCK, in American Law Review. BOOKS OF SCIENCE AS EVIDENCE. It may be laid down as a general rule that a book published by a private person, involving statements of recent facts, can not, unless as against the author, be received as evidence of the facts stated therein. Το prove such facts the author must be called, when he is within reach of the process of the court. (1) But where the author is out of reach of such process, then a book of history, travels or chronicles is admissible for what it is worth, so far as it concerns facts out of the memory of living men.(2) And, as a general rule, any approved public and general history (and of the fact of public approval the court will take judicial notice) is admissible to prove ancient facts of a public nature, either at home or abroad.(3) But it is more particularly the use of books of science as evidence of which we propose to speak. Greenleaf says: "There is a great want of symmetry in the law in regard to the admission of books of art and science to be read before the court or jury in order to establish the laws or rules of a particular art or profession," and that "the rule seems well settled that such books are not to be read before the jury either as evidence or argument."(4) Wharton says: "For several reasons, treatises on such of the inductive sciences as are based on data which each successive year corrects and expands, must be refused admission when offered to prove truth of facts contained in such 1. Whitone. Ins. Co., 109 Mass. 31; Morris v. Harmer, 7 Pet. 554 ; United States v. Jackalon, 1 Black (U. S.), 484; Fuller v. Princeton, 2 Dane Ab. Ch. 48; Morris v. Edwards, 1 Ohio, 189. 2 Morris v. Harmer, pra; Missouri v. Kentucky, 11 Wall, 395; Bogardus v. Trinity Church, 4 Sandf. Ch. 6:23; State v. Wagner, 61 Me. 181; McKinnon v. Bliss, 21 N. Y. 206; affirming S. C., 31 Barb. 180. 31 Wharton's Ev., sec. 664: State v. Wagner, 61 Me. 188; Missouri v. Kentucky, 11 Wall. 395. 4 1 Greeul. Ev., sec. 497, n. treatises. In the fire place, a sound induction last year is not necessarily a sound induction this year,and as a matter of fact, works of this class, when they do not become obsolete, are altered in material features from edition to edition, so that we can not tell, in citing from even a living author, whether what we read is not something that this very author now rejects. In the second place, if such books are admitted as a class, those which are compilations must be admitted as well as those which contain the result of original research; the purely speculative must come in side by side with the empirical; so that if such treatises are admitted at all, it will be impossible to exclude those which are secondary evidence of the facts they state. In the third place, such books, without expert testimony, can not generally be pointed to the concrete case; with expert testimony, they become simply part of such testimony, and lose their independent substantive character as books. In the fourth place, the authors of such books do not write under oath, and hence write often tentatively; nor are they examined under oath, and hence the authorities on which they rest can not be explored, nor their processes of reasoning tested. Lastly, such books are at best hearsay proof of that which living witnesses could be produced to prove. Books of this class, therefore, though admissible, if properly authenticated, to prove the state of science at a particular epoch, are inadmissible as independent substantive evidence, to prove the facts they set forth.(5) In an argument to a court, such books can indubitably be read, not as establishing facts, (unless such books are regarded as matters of notoriety, as are ordinary dictionaries), but as exhibiting distinct processes of reasoning which the court, from its own knowledge, as thus refreshed, is able to pursue."(6) think you may ask a witness whether in the course of his reading he has found this laid down." Sir H. Halford, the President of the College of Surgeons was called. He stated that he considered the medicine proper, and that it was sanctioned by the books of authority. He stated that the writings of Dr. Merriman and Sir Astley Cooper were considered of authority in the medical profession. Tindal, C. J.: "I do not think the books themselves can be read, but I do not see any objection to your asking Sir H. Halford his judgment and the grounds of it, which may be in some degree founded upon books as a part of his general knowledge." au Washburn v. Cuddihy (8) was an action for breach of warranty on sale of a horse, the breach alleged being that the horse was addicted to the vice of "crib-biting." On the trial, counsel undertook to read from Dodd's Veterinary Surgeon as to the nature of the habit, and as to whether it constituted a breach of the warranty, but was stopped by the court, which held such matter inadmissible. This case has been the subject of much comment because the Supreme Court, in passing upon it, while holding such books inadmissible before the jury, still cite them as thority upon the same questions involved in the trial below. Similiar cases are Darby v. Ouseley, (9) and Fowler v. Lewis. (10) Commonwealth v. Wilson, (11) was a criminal case in which the defense of insanity was interposed. Counsel for the defendant proposed to read to the jury, from works of established reputation, definitions of insanity. In the Supreme Court, Shaw, J., held such books inadmissible, saying: "Facts or opinions on the subject of insanity, as on any other subject, can not be laid before the jury, except by the testimony under oath of persons skilled in such matters. Whether stated in the language of the court, or of the counsel in a former case, or cited from the works of legal or medical writers, they are still statements of fact, and must be proved on oath." In Whiton v. Insurance Co., (12) counsel offered to read from Appleton's American Cyclopædia an article on the subject of guano in the islands of the Carribean Sea, to show the character and repute of the Island, but it was not permitted. The Supreme Court say: "The defendants were also rightly refused permission to read to the A brief reference to some of these cases may be of interest as furnishing illustrations of the application of the rule. Collier v. Simpson, (7) is one of the earliest cases and has been much cited. It was an action for words charging plaintiff with malpractice as a physician. It a physician. It was proposed to show that certain prescriptions were proper and the doses not too large, and Wilde, Sergeant, offered to put in evidence medical books of authority to show what was the received opinion in the medical profession. Tin-jury an article in Appleton's Cyclopædia. A dal, C. J.: "I think I can not receive medical books." Wrightman: "When foreign laws are to be proved, it frequently happens that a witness produces a foreign law book, and states it to be a book of authority." Tindal, C. J.: "Physic depends more on practice than law. I 5 Citing Collier r. Simpson, 5 C. & P. 73; Terry e. Ashton, 34 L. T. 97 ; Ashworth e. Kittridge, 12 Cush. 193; Washburn e. Cudlihy, 8 Gray, 4:0; Whiton r. Ins. Co., 109 Mass. 24; State r. O'Brien, 7 R. I. 36; Harris e. R. Co., 3 Bosw, (N. Y.) 7; Spalding e. Hedges, 2 Pa. St. 240; You ɛ. People, 49 Ill. 410; Carter e. State, 2 Ind. 617; Gehrkę r. State, 13 Tex. 568; Fowler e. Lewis, 25 Tex 381. Also, as indicating a contrary prac tice, see Ordway v. Haynes, 50 N. H. 159; Bowman e. Woods, 1 Greene (Iowa), 441; Bowman r. Torr, 3 Iowa, 571; Brodhead v. Wiltse, 35 Iowa, 429 (by statute); Cory_r. Silcox, 6 Ind. 39; Luning r. State, t Chand. (Wis.) 264; Ripon e. Bittel, 30. Wis. 614; Stoudenmeier r. Williamson, 29 Ala. 558; Merkle v. State, 37 Ala. 139. 6 Wharton's Ev., sec. 665. 7 5 C. & P., 73. book published in this country by a private person is not competent evidence of facts stated therein of recent occurrence, and which might be proved by living witnesses, or other better evidence, and the book in question not being shown to have been approved by any public authority, or to be in general use among merchants or underwriters, has no tendency to show that the Island of Navassa was commonly called and known as a guano island." (13) 8 8 Gray, 430. 91 H. & N., 12. 10 25 Tex. 380. 11 1 Gray, 37. 12 109 Mass., 24. 13 Citing Fuller e. Princeton, 2 Dane Ab. 333; Morris v. Edwards, 1 Ohio, 189; Morris c. Harmer, 7 Pet. 554, Houghton v. Gilbert, 7 C. & P. 701. |