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fendant's indebtedness to the new that in the absence of any applicafirm, and defendant continued to tion by the debtor the payments deal with it under such under shall be applied as they are made standing. After C.'s death de to the charges in the order of time fendant bought about $8,000 worth in which they accrue, yet no case of goods from the new firm and is found in this State holding the made payments to it, which were doctrine as applicable to a case entered to his credit generally where a partnership has been disupon the said books, amounting solved by the death of one of the to some $7,000. He was indebted
He was indebted parties and an entirely new firm to the old firin before Ci's death has been formed. In Pemberton in some $5,000.
v. Oakes, 4 Russell's Rep., 154, Held, That said parol agree
parol agree. there was in effect the case of a ment to extend the mortgage to new member taking the interest of cover new advances and obliga- a retiring member without subtions not within the original agree- stantial change and subject to all ment is invalid. 23 N. Y., 556; the burdens and relations incident 8 Hun, 603; 3 Barb. Ch., 293. thereto. Its authority if invoked
The mortgage was only valid for save in the respect stated may be the purpose of securing the exist- doubted.
doubted. Clayton's Case, 1 Mer., ing and future indebtedness of C. 585, and Bodenhurn v. Purchus, & Co., and it could not
2 B. &. A., 39, the authorities tended by parol to cover the in- quoted by the Chancellor, do not debtedness of defendant to the establish the principle here sought, new firm. 6 Duer, 208, 219.
for in the first case the transactions That inasmuch as, in the ab- were with the surviving partners, sence of any authority to continue and the second case was decided the joint property of the old on a point foreign to this discusfirm subject to the risks of the sion. Pemberton v. Oakes is general trade, it was the plain criticized in Collyer on Part., S duty of the surviving partner, im- 635, while Lord Abinger made a mediately upon C.'s death, to wind decision at variance therewith in up the affairs and to keep the Jones v. Maund, 3 Young. & Coll., assets from any general new busi- 347. ness, and as plaintiff was guilty That the mortgage is still a valid of legal wrong in carrying over the security for the payment of the old assets into the new firm and indebtedness due the old firm at entering into it as trustee, the pay- the death of C. ments of defendant cannot be ap- That defendant's wife is entitled plied to his indebtedness to the to an inchoate right of dower in the old firm of C. &. Co. That while entire fee of the mortgaged premit is the rule, in cases of an open ises. That the legal estate recurrent account, the items of which mained in the defendant, subject do not form distinct debts, but are to his wife's right of dower notblended together in one account, withstanding the form of the in
strument. 68 N. Y., 499,
law becomes a part of their agreement, and N. Y., 605 ; 52 N. Y., 258; 31 N.
it is to be presumed, in the absence of any
express declaration or controlling circumY., 399. That C. was merely a
stances to the contrary, that the parties had mortgagee, and his deed to de
in contemplation a law according to which fendant was simply a method for their contract would be upheld, rather than
one by which it would be defeated. exchanging the mortgage for one
A court may look into the surroundings and not joined in by the wife. That
consider all the facts and circumstances it was nothing less than a satisfac
bearing upon the making of the contract, tion of it, and to perfect the ar- for the purpose of ascertaining the intended rangement of exchange it was nec
place of performance, and ascertain whether
the principle above stated is applicable. essary that the satisfaction should
When a married woman, who has previously be in the same form, i. e., that of expressed a willingness to apply her sepaa deed, to make the record in the rate property to the payment of her hus
band's debt, executes her promissory note registry complete. That this be- i
therefor, expressly binding such separate ing done, the first mortgage was
estate, in a state where such note is not ensuperseded by the second, in
forceable, but dates it in a state where it is which as the wife did not join
valid and where the payees reside, and speher inchoate right of dower was
cities no place of payment, the plaintiff in
an action upon such note is entitled to have restored to her free and clear. 57
the question as to where the contract was N. Y., 325 ; 61 N. Y., 145 ; 46
intended to be performed, and in reference X. Y., 111.
to what law it was made, submitted to the That the claim of the plaintiff
jury. must be limited to the amount Appeal from a judgment disstated in the mortgage and in- missing the complaint. terest.
The defendant John W. ReineDecree may be amended accord- king was indebted to plaintiffs, ingly and then judgment of affirm- who were merchants of Cincinnati, ance entered, without costs in this Ohio. The defendant John W. Court.
and his wife Emma, the other de. Opinion by Pratt, J.; Barnard, fendant, who were both residents P. J., and Dykman, J., concur. of Indiana, executed in that state
their promissory note in payment
of such indebtedness, by which the LAW OF PLACE. CONTRACT. defendant Emma charged her sep.
arate estate. Both the defendants X. Y. SUPREME COURT. GENERAL had previously offered to pay the TERM. FIRST DEPT.
debt in instalments. The note was Wallace Shillito et al., applts.,
| dated “Cincinnati,” and the place
of payment was not specified. 1. Emma B. Reineking et al.,
This action was brought to recover respts.
upon the promissory note, and on Decided Aug. 7, 1883.
the trial it was conceded that by
the laws of Ohio a married woman In every forum a contract is governed by the law with a view to which it is made, be
was permitted to contract in relacause, by the consent of the parties, that tion to her separate estate, while by the laws of Indiana she was intended place of its performance not, and defendants counsel and whether the principle above claimed that the note was govern- stated is applicable. ed by the laws of Indiana, and Judgment reversed and new trial moved to dismiss the complaint on ordered. that ground, and the motion was Opinion by Brady, J.; Davis, granted.
P. J., concurred; Daniels, J., John M. Bowers, for applts.
concurred on the ground that, by
dating the note at Cincinnati, John L. Logan, for respts.
where the persons to whom it was Held, That the willingness of the delivered resided, it must have defendant Emma to appropriate been intended that the makers her separate property to the pay- should pay the note there, as no ment of the debt for which the other place of payment was designote was given, and the fact that nated and the creditors resided the note was dated at Cincinnati, there and the validity of the agreewere circumstances showing that
ment depended upon the laws of the parties intended that the con- the State of Ohio. tract should be governed by the laws of Ohio, and thus made effect
FRAUD. EVIDENCE. ive; and plaintiff was entitled to have the question as to where the N. Y. SUPREME COURT. GENERAL parties intended that the contract
TERM. FIRST DEPT. should be performed, and in refer:
William Roeber, respt., v. Peter ence to what law they contracted,
Bowe, applt. submitted to the jury. That in every forum a contract
Decided Aug. 7, 1883. is governed by the law with a view Although a sale of
Although a sale of the stock of a store, withto which it is made, because, by out actual change of possession, is prethe consent of the parties, that
sumptively fraudulent as to creditors, still, law becomes a part of their agree
when evidence is given tending to prove
that its full value was paid for such stock ment; and it is to be presumed, in
and that it remained in the possession of the absence of any express decla- the vendor only as agent for the purchaser, ration or controlling circumstances the question of the good faith of the sale to the contrary, that the parties in an action against the sheriff for trespass in
should be determined by the jury. had in contemplation a law accord
selling such property under an execution ing to which their contract would against the vendor, it is competent for be upheld rather than by person who has been employed in the busi. which it would be defeated. Alb.
ness, and has, by such employment and by
an examination of the books of the busiL. J., Dec. 16, 1882, p. 491.
ness, familiarized himself with the condiThat a court may look into the tion, extent and value of the stock, to tessurroundings and consider all the tify as to such value. facts and circumstances bearing
When the good faith of a conveyance of per
sonal property is drawn in question, stateupon the making of a contract for
ments of the vendor concerning bis title to the purpose of ascertaining the such property subsequent to the convey.
ance can be given in evidence against the continued possession of the venvendee only when the vendor is, at the
dor. 88 N. Y., 418. time, in the actual possession of the prop
Tefft v. Horton, 4 Denio, 171, erty, holding it ostensibly as the agent of the vendee, and engaged in the performance distinguished. of some act within the range of such To prove the value of the stock, agency.
a witness was called who had been Appeal from a judgment entered employed in the business, and who upon a verdict, and from an order had become familiar, by means of denying a motion for a new trial. such employment and by an ex.
Defendant, who was the sheriff amination of the books of the busof the county of N. Y., levied iness, with the condition, extent upon and sold a stock of goods un and value of the stock, and he der an execution against the prop- was allowed to testify as to such erty of one C. Plaintiff claimed | value against the objection and that, previous to such levy and exception of defendant. sale, he had become the owner of Held, No error ; that if such such stock by virtue of a bona fide evidence cannot be taken on the purchase from C., and brought value of a stock of goods after the this action to recover its value. claimant has been deprived of its Upon the trial it was shown that possession by the wrongful act of there was no actual or continued another person, then the law ạfchange of possession of the prop. fords him no adequate means of erty after the sale, but the vendor redress for the injury sustained by continued in the store carrying ou the appropriation of his property. the business. On the other hand, Practically the evidence was the evidence was given tending very best of which the case was suscepdirectly to prove that plaintiff had tible, and the law cannot be chargpaid its full value for the stock; ed with the absurdity of depriving that he maintained a general over- a lawful claimant of his rights besight of the business, and that the cause they cannot be established vendor remained in the store as his in a more unexceptionable or ceremployee.
Defendant's counsel tain manner. moved for a dismissal of the com- In the course of the trial eviplaint on the ground that no such dence was sought to be introduced change of possession had been of statements which the vendor shown as was required by the sta- had made concerning his title or tute. This motion was denied. interest in this stock of goods, and
A. J. Vanderpoel, for applt. the court limited the inquiries to E. P. Wilder, for respt.
such as were made at the store Held, That there was sufficient while the vendor was acting there, evidence to entitle plaintiff to have allowing such statements to be the point submitted to the jury to given in evidence but excluding determine, as a matter of fact, those made elsewhere. whether the sale had been made Held, No error ; that if eviin good faith, notwithstanding the Idence of this character can be legally and properly received in ants' store on suspicion of stealing any case, it would seem to be articles from such store. This because of the circumstance that suspicion proved ungrounded, and the vendor is, at the time, in the she subsequently brought this acactual possession of the property tion to recover damages for false and holding it ostensibly as the imprisonment.
The defendants agent of the vendee, and it is only swore that the action of the said when the agent may be in the per- floor-walker in causing the arrest formance of some act within the of the plaintiff was not authorized range of his agency that what he by the defendants, but there was may say can be given in evidence a fair conflict of testimony on that against his principal. 56 N. Y., point. The court, however, di
, , 273.
rected a verdict for the plaintiff, Adams v. Davidson, 10 N. Y., and submitted nothing but the 309; Wiles v. Farley, 3 Carr. & P., question of damages to the jury, 395, explained.
and to such direction the defendJudgment and order affirmed. ants excepted.
Opinion by Daniels, J.; Davis, D. S. Riddle, for applts. P. J., and Brady, J., concur.
Kurzman & Yeaman, for respt.
Held, That under the case of
Mali v. Lord, 39 N. Y., 381, the MASTER AND SERVANT.
defendants were not liable unless N.Y. SUPREME COURT. GENERAL
the act of their servant was anTERM. FIRST DEPT.
thorized by them, and they had a
right to go to the jury upon the Ann Wallach, respt., v. Edward question of fact whether the acts Ridley et al., applts.
which constituted the false imDecided Aug. 7, 1883.
prisonment, all of which were done
by others, were authorized or In an action for false imprisonment when it sanctioned by them in such man
appears that the wrongful imprisonment complained of was caused by one of the
ner as directly or by implication defendants' servants on suspicion that the rendered them chargeable with plaintiff had stolen articles from defend the wrong. ants' store, the defendants are not liable
Judgment reversed and
new unless such act of their servant was author. ized by them ; and the question as to
trial ordered. whether such servant was so authorized, Opinion by Davis, P. J.; Brady there being a conflict of testimony on that and Daniels, JJ., concur. point, is one for the determination of the jury.
Appeal from judgment directed CONTRACT. CERTIFICATE. by the court to be entered on ver
N. Y. SUPREME COURT. GENERAL dict of jury assessing damages.
TERM. FIRST DEPT. The plaintiff was arrested, detained and searched at the insti. Geo. Frazier, applt., v. The gation of a floor-walker in defend- ) Mayor, &c., of New York, respt.