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floor, occupied by another person, CONTRACT, REFORMATION. and damaged some of his goods ; that the damages were claimed N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT. from plaintiff and that he was obliged to pay $75 to satisfy the Priscilla Anderson, respt., v. claim. On the trial plaintiff re- The Metropolitan Life Ins. Co., covered the $75 so paid.

applt. Harrison & L., for applt.

Mutual mistake or mistake on one side and Hill, W. & S., for respt.

fraud on the other will authorize a reform

ation of the contract. Held, That, as to the damages Plaintiff was induced to exchange a policy on which came from plaintiff's pay.

her husband's life for an endowment policy

on the agreement by defendant's agent that ment of a claim against him, the

the new policy should bear the same date judge below, in granting a new as the old one. On applying for the endow. trial, took the correct view. Such ment fund she discovered that the date was damages were not within the con. two years later than the old one. Held, a

The templation of the parties.

proper case for a reformation. covenant was not meant to be an Appeal from judgment in favor indemnification of plaintiff against of plaintiff reforming a policy of the consequences of an overflow life insurance and for the amount during the whole of the term. thereof as reformed. The damages were to be assessed Plaintiff's husband received a as of the time of the breach, on policy for $2,000 on his life for January 1, 1881, and would con- her benefit, and maintained it for sist of compensation to plaintiff two years. They were then infor himself making the repairs. duced by one of defendant's agents The covenantee in the covenant to to exchange it for one on the enkeep in repair, being in the care dowment plan for the same amount and use of the property, bound at an advanced premium, providhimself to take measures that the ing for the payment of $2,000 in disaster of his covenantor shall be case her husband died within as small as may be. It seems, twenty years; but that, if he therefore, that it was incumbent should be living and the policy in upon plaintiff to put the plumbing force at that time, defendant in order himself, especially as to would pay the designee of the poldamages to a third person that icy the reserve endowment of came from his own negligence.

$897.08, and providing further, Order affirmed, with costs.

that should her husband'survive Opinion by Sedgwick, Ch. J.; ten years and the policy remain Truax and Ingraham, JJ., con

in force, then defendant would cur.

pay the designee an equitable proportion of the reserve endowment fund. As an inducement to the change the agent agreed that the new policy should bear the same

date as the old one, which was

USURY April 17, 1871. Plaintiff surren

N. Y. COURT OF APPEALS. dered the old policy and accepted the new one in reliance on the

The Union Dime Savings Inst., agent's representations, and be applt., v. Clark et al., respts. lieved that it was in compliance

Decided Dec. 11, 1883. with the verbal agreement. Premiums were paid for eight years on Parties have a right to deal with each other the new policy, when plaintiff's with the usury laws before their eyes and husband demanded the amount of to so shape the transaction as to avoid the

condemnation of those laws. the reserve fund due at the end of

One who has money to loan or invest has a ten years and then discovered that

right to require, in order that he may obthe new policy bore date May 13, tain more than 6 per cent., that securities 1873, instead of April 17, 1871.

having a valid inception and free from the Payment was refused and this

taint of usury be presented before he will

advance money. action commenced.

Plaintiff on being applied to for a loan reHeld, The correction of written quired that a purchase money mortgage be instruments either for fraud or made so that it could purchase at a discount mutual mistake is a well recog

and secure more than 7 per cent. The

mortgage purported to be for purchase nized head of equity jurisdiction.

money and it was so represented by the So mistake on one side and fraud mortgagor and mortgagee, with the knowon the other will authorize a re- ledge of S. a subsequent grantee, and they formation. 55 N. Y., 240. The

also represented it to be valid and that no

defence existed. Held, That plaintiff had evidence shows plainly that plair

a right to purchase at a discount and that tiff was in the mistaken belief that

the mortgagor and mortgagee and those the new policy bore the date of claiming under them were estopped from the old one, and if the agent of

alleging the defense of usury.

Reversing S. C., 14 W. Dig., 5. defendant was not in the same belief, or made the date different, This was an action to foreclose then he perpetrated a fraud which a mortgage. The defense of usury secnres plaintiff the same right. was interposed. The evidence

The notice of limitation of the showed that plaintiff, being applied agent's power was in small type to for a loan, refused to loan monon the margin outside of the con- ey on a mortgage made to it, but tract and forms no part thereof. required that a purchase money Having acquired jurisdiction of mortgage should be made so that the action for the reformation of it could purchase the same at a the contract there was power and discount and thus secure a larger right in the court to give relief in rate of interest than seven per damages on the contract as re- cent. All the parties engaged in formed. 44 N. Y., 525.

negotiating with plaintiff, the Judgment affirmed, with costs. mortgagor and the mortgagee, with

Opinion by Dykman, J.; Bar- the knowledge and consent of S., a nard, P.J., and Pratt, J., concur. subsequent grantee of the premises,

who took subject to the mortgage, Vol. 18.-No. 9.

no

represented that the mortgage was estopped from setting up usury, a purchase money mortgage, that or he may in some legal way waive it was a valid mortgage and that the defense, or by

or by agreement there was defense thereto. purge the transaction of usury, There was no evidence that plain- and whoever thereafter purchases tiff did not believe these repre- from him the real estate upon sentations and rely upon them, which the usurious security is a or that the transaction took the mortgage or obtains a lien thereon forin it did, as a cover for usury. from or under him takes his posiThe mortgage contained a recital tion and can have no better right that it was given to secure a por- to allege the usury than he had. tion of the purchase money. This Judgment of General Term, afwas not true.

firming judgment dismissing comWm. Henry Arnoux, for applt. plaint as to two of defendants who

A. J. Vanderpoel and Joseph were subsequent lienors, reversed, Jackson, for respts.

and new trial granted. Held, That plaintiff had a right

Opinion by Earl, J. All concur. to purchase the mortgage at a discount. 90 N. Y., 549; 18 W. Dig., 176.

CONTRACT. RELEASE. The parties had a right to deal N. Y. COURT OF APPEALS. with each other with the usury laws before their eyes and to so

Brady et al., respts., v. Read,

applt. shape the transaction as to avoid the condemnation of Decided Nov. 27, 1883. those laws. One having money B., who was engaged in the business of reto loan

invest has the fining oil, entered into an agreement with right to require, in order that he defendant, by which the latter was to fur

nish capital, manage the business, and pay may obtain more than six per

half the profits to B., who agreed not to sell cent., that securities having a val

any of the goods, utensils, &c., without id inception and free from the defendant's consent.

Thereafter B., taint of usury shall be presented

behalf of plaintiffs, sold to defendant certo him before he will advance

tain empty oil barrels and coal which were

used up in the business. Held, That the inoney. The mortgagor and mort

personal property covered by the agreement gagee are estopped from denying did not include the barrels and coal, but that plaintiff's mortgage is valid,

only such property as was permanently and thus are precluded from al

used in carrying on the business, such as

tanks, machinery, &c.; and that a subseleging the defense of usury against

quent release by B. of all claims founded on the same. Those holding under the agreement did not cover the purchase them are estopped also. Estop- price of the coal and barrels. pels bind parties and their privies This action was brought to rein estate and blood. Coke's Litt., cover of defendant for a quantity 352 a; 16 N. Y., 575; 32 id., 105, of coal and a number of empty oil 116; 90 id., 549.

barrels which plaintiffs claim they An owner or borrower may be sold to him. It appeared that prior

or

on

to September 27, 1877, plaintiff B. property in suit showed that it was was engaged in the business of re- not included or covered by the prior fining oil, being lessee of the real agreement. It was an expense in property and owning the utensils the business the defendant was and other personal property ; that bound to defray. on that day he entered into an On February 16, 1878, B. exeagreement with the defendant, cated an instrument, under seal, whereby the latter agreed to fur- in which, in consideration of one nish all the capital, “pay all the dollar, he released defendant from rent and other expenses of every all charges or claims founded on kind and nature which may be in the agreement of September 27, curred therein," and pay one-half 1877, or for the breach of any covethe profits to B. The latter agreed nants contained therein, and de. that he would not sell or assign clared that defendant had acted "the goods, chattels, tools, uten- fairly with him in everything resils and machinery," then belong- lating to that agreement and the ing to the business, or any part carrying ont of it, and that every thereof,without the written consent matter embraced in that agreement of defendant. The defendant was had that day been fully settled and to have the entire control of the adjusted between them. The inbusiness, and it was to be con- strument, also, recited that deducted at his sole expense and risk. fendant had that day purchased of B. testified that, a few days after B. all the property mentioned in the agreement was made, he sold said agreement and become pos the coal and barrels, on behalf of sessed of the same. plaintiffs, to defendant, for an Held, That this release did not agreed price, and they were used cover the purchase price of the coal ap by defendant within two or and barrels. three weeks after such sale.

Defendant's counsel asked a Samuel Hand, for applt.

witness “ to state what took place

in reference to the general release Anthony Barrett, for respts.

I noir hand you about the execuHeld, That the personal property tion of that paper.”

This was covered by the agreement, and of objected to, and objection sustainwhich defendant was to have the ed on the ground that everything use, did not include the property was merged in the written agreein suit, but only such as was per ment, and that parol evidence was manently used in carrying on the not competent to change the force business, such as tanks, imple- of it. ments, machinery, &c. It could Held, No error. not have included personal prop- Judgment of General Term, aferty which was not to be kept firming judgment on verdict for during the term, but was only on plaintiffs, affirmed. hand to be used up in the busi- Opinion by Earl, J. All concur. ness. The subsequent sale of the

ATTORNEY AND CLIENT. the judgment and was void. The RELEASE. DURESS. trial judge held that the release

was not binding on plaintiff, but N. Y. COURT OF APPEALS.

on defendants' motion dismissed Guilleaume, respt., v. Rowe et the complaint because, in his al., applts.

opinion, the evidence did not show

that the defendants directed the Decided Dec. 14, 1883.

issuing of the execution, and reA party is bound by the acts of his attorney fused to submit that question to and responsible for his methods in the en- the jury. The General Term

forcement of the judgment. A release from liability for false imprison reversed the judgment for defend

ment executed without consideration by ants ordered by the trial court one in actual custody under a void process and directed

new trial. is void for duress.

Blumen steil & Hirsch, for Affirming S. C., 14 W. Dig., 196.

applts. This action was brought to re- John F. McIntyre, for respt. cover damages for alleged false Held, That the trial court erred imprisonment. It appeared that in dismissing the complaint. A defendants employed an attorney party is bound by the acts of his to bring an action against plaintiff attorney, although he does not and he obtained a judgment in give immediate direction as to the their favor. An execution against proceedings in an action or is not property was issued and returned with him at its successive stages. unsatisfied and he then issued an If he sets him in motion he beexecution against the person. comes liable as the cause proPlaintiff was arrested by virtue of gresses, and if the result is in his it on Feb. 2d and lodged in jail. favor is responsible for his methDefendants afterwards in their ods in the enforcement of the own person, under date of Feb. judgment. 3 Wils., 368 ; 86 N. Y., 24th, notified the sheriff that they 256. countermanded that execution, and The retainer of the attorney who he thereupon informed the pris- issued the execution against plainoner he had an order to discharge tiff's person being by defendants, him if he would sign a stipulation the issuing of the execution was not to sue the execution creditors within the scope of his implied or their attorney for damages on authority, and the arrest of the account of the arrest, and, upon plnintiff was for the purpose of his refusing to do so, assured him compelling payment. This was that if he did not sign it he would enough to make defendants have to stay in jail a long time.” liable. The prisoner signed the stipulation The release executed by plaintiff and was discharged. He then having been executed without brought this action. It was con- consideration and while enduring ceded on the trial that the last an imprisonment which was illegal execution was not authorized by was void for duress, 5 Hill, 154;

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