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proof given of this second levy until ing an inventory. He also adverafter judgment on the first trial, but tised it for sale by virtue of the exeit was, in conversation and affidavit, cution. denied to exist. Plaintiff's testimony J. McGuire, for applt. showed that defendant was at the M. Goodrich, for respt. hotel where the goods were, and in Held, That the testimony did not conversation with the judgment-debt- show a new levy on May 28th; that or, on the day and at the hour he tes- defendant's acts in taking the inventified he had made the second levy. tory, and advertising the furniture It appeared that this conversation did for sale were the following up and not at all relate to a new levy, and carrying out of the levy of May 26th, defendant had declared that S. was and they stand or fall with that. satisfied with the validity of the levy Order of General Term, reversing of the 26th, and advised adhering to judgment for defendant and granting it. There was also an affidavit of de- a new trial, affirmed and judgment fendant in which he stated that since absolute for respondent on stipulation, the levy of the 26th, he had claimed with costs. to hold the property by virtue thereof, Opinion by Folger, J. All concur. and had not since the making of it taken any further proceedings, or done anything in respect to the prop

ACCORD AND SATISFACerty or execution, except search for

TION. MISTAKE. further property, and advertise sale. N. Y. SUPREME Court. GENERAL Defendant claimed that this affidavit

TERM. FOURTH DEPT. was drawn by a counsel, strange and

Reuben P. Caulkins et al., applts., hostile to the judgment and execution,

v. Fisher W. Griswold, respt. and that the matter verified by him

Decided Junc, 1877. was not fully made known to him. He testified that it was not read to If the parties to an accord and satisfaction, in him, or apprized that it contained settling a claim, act under a mutual mis

take of facts, there is nothing in the nature such matter. The counsel who drew

of the transaction which prevents a court the affidavit testified that the infor

of law from correcting such mistake, or mation on which these averments relieving from its consequences, in a prop

er action for that purpose. were based was first orally taken from defendant, and then written down Appeal froin a judgment entered and made known to him as contained on the report of a referee. in the affidavit as fully as the reading The action was brought to recover of it could do so, and that defendant money had and received by the desuggested an addition which was fendant, which was alleged to belong made. The attorney also stated that to the plaintiffs, and also for money he had it in view to, and did inquire alleged to have been paid by the whether further proceedings were plaintiffs to the defendant, by mishad under the execution. Defendant take. The defence set up was an acwas at the hotel where the goods cord and satisfaction. The amount were after the 28th, engaged in mak- I claimed by the plaintiffs was over

sum.

160 dollars. The referee reported in of such accounting, Caulkins claimed their favor for 34 dollars and 22 there should be deducted 1600 pounds cents only, and the defendant en- for weight of crates, and the defentered judgment for his costs less that dant claimed that only 600 pounds

should be deducted on that account. The facts found by the referee are The referce also found that in calcusubstantially these: In 1871, plain-lating the amount owing on the basis tiffs purchased of defendant his crop of said agreement, Caulkins made of grapes, at one and one half cents a mistake which neither he nor the per pound; the whole quantity de- defendant then discovered, in calling livered was 55,959 pounds, amount- such amount $403.26 ; that the true ing to the sum of $839.38, and plain- and correct amount owing upon the tiffs owed defendant ten dollars for basis of the items then agreed upwork, making in all $549.38. Prior on was $374.50; and that in conseto 10th March, 1872, plaintiffs paid quence of such mistake, the payment defendant, on account of said grapes, then made exceeded the amount due, $598 in cash, and $12.50 in brandy; by $27.50. That before suit, the in all $610.50, leaving due on that plaintiffs, claiming there was a misday, $238.88. On that day the plain- take, demanded of the defendant the tiff, Reuben P. Caulkins, and the de- sum overpaid, which they claimed fendant had an accounting of the was about $120, but the defendant dealings between the parties, which refused, alleging that there was no included the balance due the defen- mistake. The referee decided, as dant for his grapes. On such ac matter of law, that the agreement counting, neither the weight of the of the 10th of March operated as an grapes, nor of the crates in which accord and satisfaction in respect to they were delivered, was known with the several items included therein, accuracy by either party, nor were and precluded the plaintiffs from rethey able, from recollection on the covering the excess paid on account memoranda then before them, to de- of the grapes, but that the overtermine the weight of the grapes payment of $27.50 having occurred or the crates correctly at that time. in consequence of the mistake which They thereupon agreed that the arose in determining the sum neceswhole quantity of grapes, including sary to make satisfaction upon the crates, was 65,600 pounds, and that account, the plaintiffs are entitled to there should be deducted therefrom recover the same, with interest. 600 pounds for the weight of the E. B. Pottle, for applts. crates, and that upon the basis of H. M. Field, for respt. those items and weights, allowing the Held, Where money is erroneonisitems above stated, the balance due ly paid by one person to another, in from the plaintiffs to the defendant consequence of a mutual ignorance was $403.26. The plaintiffs thereas to facts, which, if known, would apon paid to the defendant, and the have prevented the payment, the latter accepted in full of such bal- money so paid may be recovered ance, the sum of $402. At the time I back.

An error of fact takes place, either

ARREST. when some fact which really exists is

N. Y. COURT OF APPEALS. unknown, or some fact is supposed to

The Standard Sugar Refinery, exist which really does not exist. A contract made upon an assumed respt., v. Dayton, impl’d., &c., applt.

Decided September 25, 1877. state of facts, as to which there is a mutual mistake, may

Where one sells goods for another, the goods be rescinded,

to be shipped directly to the purchaser, and on discovering the mistake, and the

the proceeds to be collected by the agent party paying money upon it may re- and paid over, he is a factor; and where he cover it back. This principle ap

has made the sales on terms different from

those authorized, and fails to pay over the plies to every form of contract, ex

moneys collected, he is liable to arrest, and press or implied, including an ac

cannot set up his own fraud to shield himself count stated, and an accord and satis- from such responsibility. faction.

The principal may waive the variance in the Held also, That if the parties An order of arrest in such case can be sus

terms, and claim the proceeds. to an accord and satisfaction, in set

tained on the ground that the debt was tling a claim, act under a mutual

fraudulently contracted. mistake of facts, there is nothing in Affirming S. C., 3 W. Dig., 104. the nature of the transaction which

The plaintiff employed defendant prevents a court of law from correct to sell sugar for it. He caused plainting the mistake, or relieving from its iff to ship several lots of sugar to perconsequences, in a proper action for sons to whom he had made sales, and

to forward the invoices and bills of In the present case, there is no lading to him, by representing that finding of the referee inconsistent he had sold the sugar upon terms with the fact of a mutual mistake, authorized by plaintiff, and he underand the evidence tends to show that took to collect the proceeds of the there was such mutual mistake. sales, and pay them over to plaintiff.

Held, The accord is not a bar to This he failed to do, and this action the correcting of a mistake by which was brought to recover the proceeds the accord was induced. The referee of the sales, and plaintiff obtained an very properly held the plaintiffs en- order for defendant's arrest. Defendtitled to recover the money paid in ant set up as a defense that he made consequence of the mistake made in the sales on different terms from computing the amount due upon the those upon which he was authorized basis of the accord. He should have to, and represented he had made gone further and allowed to the them. plaintiffs the money paid by mistake Samuel Hand, for applt. for grapes in excess of the quantity M. W. Devine, for respt. delivered.

Held, That defendant occupied as Judgment reversed and new trial to plaintiff the position of a factor, ordered before another referee, costs and could not set up his own fraud to abide event.

to shield him from responsibility as Opinion by Smith, J.

such; that the purchasers were not bound by plaintiff's secret instructions

that purpose.

our.

to defendant, and the sales and pay fixtures, furniture, and utensils dements were valid, nor could the ar- scribed in the mortgage. rangements between the purchasers On the 10th of April, Burrows was and defendant affect plaintiff's rights; adjudged a bankrint on his own petiit could waive the variance, and tion. Afterwards, by agreement of adopt the sales, and claim the pro- Gibson and the insurance company, ceeds.

the property in dispute was delivered Also held, That the order of arrest to Burrows' assignee to be sold, whatcan be sustained on the ground that ever liens said claimants had being the debt was frandulently contracted. transferred to the fund to be derived

Order of General Term affirming from said sale. The assignee sold the order of Special Term denying mo- property for $1,000, subject to a tion to vacate order of arrest, af- mortgage held by the purchaser. firmed.

Both Gilson and the insurance comOpinion by Rapallo, J. All con- pany clairn this sum; the former by

virtue of the lien of his mortgage,

and the latter by virtue of the lien of CHATTEL MORTGAGE.

its execution and levy. U.S. DISTRICT COURT. INDIANA.

There was a verbal agreement be

tween Gibson and Burrows, that the In re Burrows.

latter should continue his business An agreement between a mortgagor and mortgagee of chattels that the mortgagor may sell just as he had done before, disposing a portion of the property mortgaged and use of the mortgaged property for luis the proceeds as his own, renders the entire own benefit; this

agreement extended mortgage void.

to the stock on hand only, and not to On the 9th of March, 1876, Asa the fixtures, furniture, utensils, or any W. Burrows, a confectioner, executed other property described in the morta chattel mortgage on his stock in gage. trade, fixtures, furniture, and utensils It is insisted by the insurance comto secure to William T. Gibson the pany that the agreement that Burows payment of certain promissory notes. should continue to carry on the busiOn the 28th of February, 1876, the ness, buying and selling in the usual Ætna Insurance Company bronght way, and using the proceeds of the suit in the Circuit Court of the United stock as his own, rendered the entire States for this district, against Bur- mortgage void; while on the other rows, to recover possession of certain hand, it is contended by Gibson that premises, and for unpaid rent; and the agreement vitiated the mortgage on the 25th of March, the insurance so far only as the stock on hand was conpany obtained judgment for pos- concerned. session of the premises, and $700 for leu, That such an agreement their use and occupation. On the necessarily hinders and delays other 28th of March, an execution was is- creditors. It will not do for the ened and placed in the hands of the mortgagee in this case to say that so marshal, and on the 30th was levied | far as the fixtures, furniture, and utenon the stock then on hand, and the sils were concerned there was

no

evidence of an intent that they should tion of excise commissioners in towns, does be protected by the mortgage for the not affect the powers of the Board of Trusbenefit of the mortgagor.

It is tees of the village of Gloversville, and where

such village board has refused a license to a enough that the object of the parties

party, a license from the town board is no in part was to do what amounts to a

protection to him. fraud on other creditor's. That un- This action was brought by plaintiff, lawful design, confined as it was to by virtue of the provisions of its only part of the property, was suffi- charter, Chap. 505, Laws of 1873, encient to render the mortgage void in titled “ An act to reorganize the vilits entire extent. Entire good faith lage of Gloversville,” to recover penalis necessary to uphold such instru- ties for the sale of intoxicating liquors ments, and it camot be said the par within its limits. $ 51 of said act proties have dealt fairly, when their vided that, at each annual election in design, as to part of the property de- said village, a vote should be taken scribed in the mortgage, is to protect to regulate the granting of license to it in the hands of the mortgagor from sell or dispose of intoxicating liqnors, levy and sale by other creditors. and that unless a majority of the votes Russell v. Winne, 37 N. Y., 591 ; cast should be for the granting of the Thomas on Mortgages, 487.

license, the Board of Trustees could Ordered that the fund be applied not grant said license. The same secto the payment of the execution of tion provides that the commissioners the Ætna Insurance Company. of excise shall have the same powers, Opinion by Gresham. J.

and perform the same duties as boards of commissioners of excise, and

be subject to the excise law of this CONSTITUTIONAL LAW.

State, except as modified by this act, EXCISE.

and that all license moneys and penN. Y. COURT OF APPEALS.

alties for violation of excise laws shall The Village of Gloversville, respt., be paid to the village treasurer for the v. Ilowell et al., applts.

benefit of the village, and may be sued Decided September 18, 1877.

for and recovered in the corporate

name of the village. A provision in a village charter for submitting

the question of license or no license to a vote The judge found that between Feb. of the electors is one which it is compe- 12 and March 13, 1875, defendants tent for the Legislature to commit to the sold liqnors to be drank on his prempeople of that district.

ises in said village thirty different It cannot be inferred that the provisions of a

village charter in relation to excise, are in. | times, fifteen of which were after Feb. tended to be affected by an amendment to 22, 1875. Defendants proved that the geueral excise law, where such village on that day they obtained a license has never been under the operation of the from the town board of excise of the

general law in that respect. The Board of Trustees of the village of Glovers- town of J., in which town the plaintiff

ville takes the place of the Board of Com- is situated. At the annual elections missioners of Excise in other villages under held in the village in March 1874 the general law, and is subject to the excise and 1875, a majority of the votes was

laws, except as modified by the charter. Chap. 414, Laws of 1874, relating to the elec. I cast against granting licenses.

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