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motion was denied, on the ground that the papers did not show probable error on the trial, to the prejudice of the plaintiff.

Upon their face, the notes imported no consideration whatever. But the plaintiff offered to prove, by parol, a different consideration for the notes, and the offer was rejected. The offer was, in substance, that the testator, having originally subscribed and paid $1,000 dollars to aid the plaintiff in erecting a new church building, and having learned that, early in the fall of 1870, the trustees of the plaintiff had expended all their funds, and had determined, and were preparing to suspend work, and let the building stand in an unfinished condition until the next spring, and until more funds were provided, requested and urged them not to stop the work, but to go on and finish it without delay, and on their replying that they could not, for want of funds, he told them to go right on and finish the building, and he would give them more money for the purpose; that the trustees then determined, upon his promise, to go on and finish the building, and so informed the testator, and they did go on and finish it by about the 1st of January, 1871, at an additional cost of $9,000, and that the testator then gave the notes in suit. The plaintiff also offered to show that the direction and promise of the testator induced the trustees to change their determination, and that they would not have gone on with the building that fall but for such promise, but would have stopped the work • as they intended.

D. C. Hyde, for applt. M. II. Peck, for respts.

Held, The promise made by the testator was founded upon a good consideration. The change of plan by the trustees, and their action in going on and completing the building without funds, relying upon the request and promise of the testator, was a valid consideration to support his promise. That promise, however, would not have supported an action against the promisor, because it expressed no amount, and its very terms repelled the presumption that the promisor intended to become liable for, or that the promisees understood him to assume the entire cost of finishing the building.

But if the circumstances stated in the offer, in connection with those disclosed by the evidence before the referee, would have justified the conclusion that, by the promissory notes in suit, given soon after the building was completed and its cost was ascertained, the testator fixed the amount of the liability which he had assumed by his previous promises, there would have been no difficulty in finding a good consideration for the notes. In that case, the notes relate back to the original consideration of the promise, and are as valid as if they had been given at the time when that promise was made, or as if the promise had been to execute notes for that amount on the completion of the building.

The testimony offered was pertinent to the question whether the testator, in giving the notes in suit, recognized the obligation of his former promise, and intended to fix the amount of his liability thereby. created, and the referee should have

eceived and weighed it, and his rejection of it involves a question

which the plaintiff should have an opportunity of presenting for review, on appeal.

Order of Special Term reversed, and motion to set aside the stipulation and the subsequent proceedings, as asked for in the notice, granted, on plaintiff's paying to the defendants, in twenty days, ten dollars costs of opposing the motion at Special Term, and their disbursements in and about the proceedings which are set aside, neither party to have costs of this appeal, as against the other. Opinion by Smith, J.

EVIDENCE. PROMISSORY

Order of General Term, reversing judgment for plaintiff and granting new trial, reversed and judgment affirmed.

Opinion by Folger, J. All concur.

AGENT. TROVER.

N. Y. COURT OF APPEALS. Smith et al., exrs., respts., v. Frost, applt.

Decided June 5, 1877.

If an agent acts without the knowledge of his principal, the latter is entitled to the benefits. to be derived from such action.

And where the act is the purchase of property, a demand by the principal, and refusal by the agent, renders the latter liable in trover.

NOTE.

N. Y. COURT OF APPEALS.

Plaintiff's testator owned ten negotiable railroad bonds, which he depos

Nicholson, respt., v. Waful, applt.ited with one C., as collateral to a loan. Decided June 19, 1877.

This action was brought to recover the amount of a note given by defendant to plaintiff. The answer denied the making of the note, or if signed by defendant it was when intoxicated, and no consideration was received therefor. Upon the trial, defendant offered evidence that, at various times, about three years previous to the date of the note, plaintiff had made declarations that he had no money, and was not able to command any from his own means. This offer was rejected. It was shown that at about the date of the note plaintiff had more than the amount of the note in his possession. Lansing & Rogers, for applt. N. Whiting, for respt.

He subsequently paid this loan, and on calling for his bonds found that C. borrowed $5,000 upon them of the Un. M. Ins. Co., and pledged the bonds to that company. The railroad company was reorganized; it was provided that upon certain payments being made by plaintiff's testator, and a surrender of the ten bonds, he should become entitled to receive sixteen bonds of the new company. Plaintiff's testator made the payment required, the Ins. Co. refusing so to do. Defendant, who was a trustee for the purpose of buying in the old road for the benefit of the bond-holders under the reorganization, and who had been president of the road for some time, purchased the ten bonds deposited with the Insurance Company, without the knowledge of plaintiff's intestate, and upon the latter discovering this

Held, That the evidence offered and demanding a surrender of them, was properly rejected.

defendant refused. This action was

Where the defense to a promissory note is a want of consideration, evidence that the

payee was pecuniarily embarrassed and with-had

out means is inadmissible.

brought for to recover the value of the by which plaintiff, or attorney, be

same.

came entitled to receive the costs and one-third of a judgment, subject to a certain deduction. The complaint alleged the collection of the judgment by defendant, and his refusal to pay any part of it to plaintiff; that he had performed services subsequent to the rendition of the judgment in relation thereto, and their value, and claimed to recover of defendant $12,372.82, which was made up and computed under the terms of said agreement. The second cause of action was upon a quantum meruit to recover $484.26 for other services rendered as attorney. The answer as to the first cause of action alleged that the agreement was obtained by fraud and by undue advantage taken by plaintiff of his

Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed. Opinion by Miller, J. All concur. confidential relation as attorney, and

in violation of his duty, and was without consideration and void. There was a general denial of the other allegations of the complaint. The referee found that plaintiff was entitled to judgment for $11,738.15. Defendant appealed to the General Term, and an order was made reversing the judgment and ordering a new trial unless plaintiff should stipulate to reduce the damages to $6,000 and interest from the date of the report, and in case the stipulation was made, the order directed that the judgment stand as affirmed

for that amount.

Wm. H. Shephard, for applt. Henry L. Burnett, for respts. Held, That in the purchase of the bonds, defendant acted as the agent of plaintiff's testator, and that the purchase enured to his benefit, and defendant's refusal to surrender the bonds was wrongful and tortious.

If an agent without the knowledge of his principal assumes to act, the principal is entitled to all the benefits to be derived from such action. So also a trustee cannot profit by dealing with the property of the cestui que

trust.

POWER OF GENERAL TERM
ON APPEAL. ATTORNEY
AND CLIENT.

N. Y. COURT OF APPEALS. Whitehead, respt., v. Kennedy, applt.

Decided May 22, 1877.

Where an action is for the recovery of distinct and seperate items or claims, and error has been committed in respect to one or more of the claims, the General Term may reverse as to the erroneous claims and affirm as to the residue, but where the recovery sought

is general damages arising from a breach of contract, it has no power to find facts and fix the amount; it can neither enlarge nor diminish the amount found by the Court below.

An attorney seeking to avail himself of a contract with his client must show affirmatively that it is in every respect free from fraud,

fair and reasonable.

T. W. Dwight and Sam'l J. Glasfor applt.

sey,

Samuel Hand, for respt.

Held, That the General Term had not power to make this order; that it had no power to find the facts and direct judgment accordingly, as if the question was before it as an origi

The complaint in this action alleged two causes of action, one of which

was based upon a written agreement | nal one upon a quantum meruit.

When in an action upon a contract a recovery has been had upon distinct and separate items and claims, and error either of fact or law has been committed on the trial in respect to one or more of the claims embraced in the recovery, the General Term, if no other error exists, may, instead of reversing the judgment absolutely, reverse it as to the erroneous items, and affirm it as to the residue, provided plaintiff consents to forego his claim to recover them and the items as to which the error exists are separable and distinguishable from the others. 18 N. Y., 522; 21 id., 185; 29 id., 400; 54 id., 221, 560.

An attorney who seeks to avail himself of a contract with his client, is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconduct on the part of the client, and that the attorney made a reasonable use of the confidence reposed in him. 6 Ves., 278; 5 H. of L. Cas., 627; 9 J. R., 253; 11 Paige, 538; 5 Den., 640; 16 N. Y., 285; 34 id., 169; Story's Eq. Jur., § 311.

Judgment of General Term and of the referee reversed, and new trial granted.

cur.

gagements made by his former co-partner in the firm name, with those who had previous dealings with the firm and no notice of dissolution.

This was an action upon a note which purported to have been given. by the firm of D. B. & Co., but which was dated after said firm was dissolved, which firm was engaged in the purchase, shipment, and sale of lumber. Its principal office was in Toledo, Ohio. Plaintiff was employed to purchase lumber in the Western States, and Canada, and resided at Detroit. Notice of dissolution of the firm was published in a newspaper at Toledo, and a copy was mailed to plaintiff, addressed to him at Detroit. Plaintiff testified on his direct examination that he never received the notice, and on his cross-examination that he had no recollection. of receiving or seeing the notice, and that if he had seen it he thought he would have remembered it. The judge submitted to the jury to find whether plaintiff received the notice.

Esek Cowen, for applt.

Martin I. Townsend, for respt. Held, That plaintiff was such a Opinion to Andrews, J. All con- dealer with the firm of D. B. & Co.

TION.

as to be entitled to the protection of the rule which makes a retiring partner liable for subsequent engagements made by his former co-partner in the firm name, with those who had previous dealings with the firm, and who had entered into the new transaction without notice of the change in

N. Y. COURT OF APPEALS. Austin, respt., v. Holland, impl'd. etc., applt.

Decided May 22, 1877.

A retiring partner is liable for subsequent en- the partnership. 22 Wend., 190; 12

PARTNERSHIP. PRESUMP

Whether or not plaintiff has received such

notice, is a question of fact for the jury. It is presumed that matter regularly mailed reaches the party to whom it is directed; but the presumption is one of fact, not of law, and may be repelled

N. Y., 286; Watson on Part., 384; he had obtained for inventions theretofore made by him, one, No. 125,228, issued April 3, 1872, and the other, No. 166,233, issued to him Aug. 3, 1875, for certain improvements in rubbers for flat belt pulleys, together with all improvements made or to be made by him on said patents and all privileges, benefit, and right of extension thereof that might be granted both in the United States and all foreign countries, and also all fixtures appertaining to said inventions, stock on hand, including tests, pulley covers, etc., at the office, No. 95 Liberty Street, and unfulfilled orders for pulley covers. And he further agreed to put the plaintiff in possession of all the ideas, inventions, and improvements that he then had or that might thereafter occur to him in reference to the subject matter of said letters patent, and that he would sign all necessary papers to procure a reissue of said letters patent.

that the question whether plaintiff received notice of the dissolution of the partnership was properly submitted to the jury; that the publication of the notice at Toledo would De notice to those not having had prior dealings with the firm. Mailing of notice, properly directed to the party to be charged, raises a presumption of notice in fact, for it is presumed that letters sent by post to a party at his residence are received by him in due course; but this is a presumption of fact and not of law, and may be repelled by proof; that plaintiff was entitled to actual notice of the dissolution. Story on Part., § 160; Watson on Part., 384.

Judgment of General Term, affirm ing judgment in favor of plaintiff, affirmed.

Opinion by Andrews, J. All concur, except Miller. J., not voting.

SALE OF PATENT RIGHT AND

PERSONAL PROPERTY.
N. Y. COMMON PLEAS. SPECIAL TERM.
Andrew W. Billings, v. John W.
Sutton.

Decided Aug., 1877.

When a patentee sells the patent right to an article, with ordinary warrantee of all benefits resulting from such peculiar designation as it had lawfully acquired from the name of its inventor or from any other circumstance, he is precluded from advertising

and offering for sale a similar article, which he had subsequently acquired, under the same name and style as the article the right of which he had sold.

In the sale of personal property the vendor, without special stipulation, warrants full

title, including full possession and enjoyment

as against his own acts.

In November, 1876, the defendant assigned to plaintiff two certain letters patent of the United States which

At the time of this assignment the article for which said Sutton had, as the inventor, procured said letters patent, had been extensively advertised and commented upon in publications and advertisements, and was called and known as "Sutton's Patent Pulley Cover." As such it had received commendations from experts and persons who had used the article in the course of their business, which had been printed and extensively circulated.

In June, 1877, the defendant procured from one Norris an assignment of an invention made by said Norris in materials for "pulley covers" for which letters patent were issued to said defendant, as such assignee, on the 17th of July, 1877. Vested with

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