present, but only to appeals in the eral promissory notes of the R. cases therein mentioned. Iron Co., in which company they were interested, amounting to over $50,000, and that they would probably continue to indorse its notes to an amount not exceeding Also held, That as plaintiff's attorney seems to have acted in good faith the default should be opened on terms. Per curiam opinion. All con- $60,000 at any one time, provided cur. MORTGAGE. TRUST. N. Y. COURT OF APPEALS. Seward et al., respts., v. Huntington, impld., applt. Decided Nov. 20, 1883. A, B and C, having indorsed notes of a corporation for which they were not originally liable, executed mortgages to a trustee in pursuance of an agreement or declaration of trust whereby it was agreed that each should pay one-third of the amount of such notes as the company should fail to pay, and that if either party should pay more than his share he should recover from the one failing to pay an amount equal to his aliquot part, and that the trustee, on request of the party so paying, shouid foreclose the mortgage made by the party in default and reimburse the party who had paid. Held, That the holders of the notes had no interest in the mortgages and they could not be enforced for their benefit. This action was brought to foreclose a mortgage executed by one J. to plaintiff, as trustee. The names of the beneficiaries were not mentioned in the mortgage, but it stated that it was given to secure the sum of $25,000, according to the conditions of a certain agreement and declaration of trust. Two other mortgages for the same amount were executed to plaintiff, as trustee, by L. & S. respectively. The agreement referred to in the mortgage, after reciting that J., L. & S. had jointly indorsed sev 66 that the parties agreed each with the other to severally pay onethird of the amount of such notes which fell due as the company should fail to pay, and that if either of said parties failed to pay his proportion of said notes, or should pay more than his proportion thereof, he shall have and recover from the one SO failing an amount equal to his It aliquot part." was further provided that in case any one of the parties failed to pay his aliquot part, and either of the other parties should pay the same, the trustee shall, on the request of the party so having paid, foreclose the mortgage made by the party in default and repay to the party having paid the share of the defaulting party the amount so paid by him. The holders of notes of the R. Iron Co., indorsed by J., L. & S., which were outstanding and unpaid, claimed to enforce the mortgage in suit for their benefit to the extent of one-third of of the gross amount of such unpaid notes. Aside from their indorsements there was no evidence of any legal or moral obligations to pay the notes or that they had in any way become liable for their payment unless such liability was created by the declaration of trust. Theodore Bacon, for applt. James Breck Perkins, for respts. Held, That no benefit to the holders of the notes was contemplated by the declaration of trust, and the indorsers did not become primarily liable for the payment of any part of such notes, either to each other or the holders of them, but were liable only to each other for such part of the notes as their co-contractor should pay in excess of that portion. which the respective mortgagors should also pay. There being no original liability of said parties for the debts in question, it was competent for them by the contract between themselves to limit the liability which they were about to assume in such way and by such language as they saw fit to use. Such a contract can only be enforced according to the meaning and intent of the parties making it. 47 N. Y., 241; 82 id., 385; 84 id., 75; Hampton v. Phipp, U. S. S. C., Matthews. J., Mss. op. Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 178, distinguished. Judgment of General Term, affirming decree of foreclosure and sale, reversed and judgment ordered for defendant. for defendant. The full retainer not having been paid after repeated demands, they refused to be bound by the agreement, and withdrew; but thereafter, as attorneys of record in one of the actions in which a judgment against defendant had been vacated, they stipulated in writing that the order of vacation should be set aside, and allowed an order for an extra allowance to be entered against defendant. Held, That plaintiffs were bound to serve until the close of the litigation unless sooner legally discharged; that the fact that they remained attorneys of record, and their subsequent acts as such, amounted to a waiver of their client's default in payment, and that such acts being adverse to their client they could not recover for services in that suit. This action was brought by plaintiffs to recover the value of their services as attorneys, rendered upon defendant's retainer in two suits, and also to recover, as assignees of one D., money paid by him for defendant. Defendant pleaded a special agreement; that plaintiffs failed to keep it, and while acting as his attorneys combined to injure him, "and in the interest of his opponents" abandoned the actions intrusted to them to prosecute, to his injury more than $10,000, and demanded judgment accordingly. The allegations of the answer were controverted by the reply. The Opinion by Ruger, Ch. J. All referee found that plaintiffs were concur. ATTORNEYS. N. Y. COURT OF APPEALS. Andrews et al., respts., v. Tyng, respt. Decided Nov. 20, 1883. Plaintiffs were retained under special contract as attorneys to conduct certain cases employed upon substantially the terms claimed by defendant; that prior to July 26, 1870, he paid them a portion of the retainer agreed upon, and that day, after repeated unavailing demands for further payments of retainers and compensation on the agreement, plaintiffs refused to be further bound by the agreement and with drew from it. At that date a judgment had been recovered against defendant, the plaintiff in one of the suits brought by the plaintiffs here against one F., and in the other suit, which was against one B., a judgment was rendered against the defendant here on October 25, 1870. This judgment was on January 25, 1871, set aside and vacated on a motion of the defendant here, made upon the merits. On February 2, 1871, plaintiffs, as his attorneys of record, but without his knowledge or consent, stipulated in writing that the order of January 25th should be vacated and set aside and the motion dismissed. On February 21st B.'s attorneys, on notice to these plaintiffs, as attorneys of record, but without personal notice to the plaintiff in that suit, obtained an order allowing $10,000 additional costs, and entered judgment accordingly. This order was also vacated on the application of this defendant, and the order of January 25, 1871, restored as of the date of its entry. Matthew L. Harney, for applt. William H. Andrews, for respts. Held, That plaintiffs were bound, not only by the retainers, but by special contract, to serve until the close of the litigation upon which they entered, unless sooner legally discharged. Their contract was an entire one. For non-payment of fees they might refuse to act for their client, or might submit the excuse to the court and be discharged, and they might also waive his default; that although on July 26, 1870, they refused to be bound by their contract, the fact that they remained attorneys of record and their acts as such after that date amounted to a waiver of their client's default. The acts of plaintiffs as attorneys subsequent to July 26, 1870, being adverse to their client, as they were done in the suit and as his attorneys, and could have had no effect except so done, plaintiffs should not be permitted to say they were not acting in the cause and for their client. For services in the suit against B. plaintiffs were not entitled to recover; they are in the position of wrong-doers, and cannot be permitted to measure the damages resulting from their own wrong. 92 N. Y., 210. Judgment of General Term, affirming judgment for plaintiffs, reversed, and new trial granted. Opinion by Danforth, J. All N. Y. COURT OF APPEALS. Hentz et al., respts., v. Miller, applt. Decided Nov. 20, 1883. C. & Co., cotton brokers, falsely represented that they had orders from certain manufacturing companies to buy cotton, and proposed to purchase plaintiffs' cotton, which offer was accepted, and plaintiffs sold 100 bales, as they supposed, to said companies on a credit. Bought and sold notes were delivered, as usual, and the bales were delivered to C. & Co., to be shipped to said companies. C. & Co. stored the bales, raised money on warehouse receipt issued to P. & Co., and afterwards absconded. P. & Co. sold the bales to R. & Co., who paid for them at market rates and stored them with defendant. Held, That C. & Co. obtained possession by larceny, and that defendant, although an innocent purchaser, obtained no title as against the true owner. & Co. in raising money on said cotton, new warehouse receipts were issued in the name of P. & Co., who, at C.'s request, by hypothecating these new receipts, raised money on them, which they paid over to C. & Co., and then sold the cotton to R. Bros., who, upon delivery to them of the ware This action was brought to recover $3,000, for the alleged conversion of certain cotton. It apIt ap peared that plaintiffs owned a lot of cotton. C. & Co., cotton brokers, falsely represented to plain-house receipts by P. & Co., indorstiffs' brokers that they had orders from the F. M'f'g Co. and the R. M'f'g Co. to buy cotton, and proposed to buy plaintiffs' cotton. Plaintiffs having satisfied themselves as to the pecuniary responsibility of said companies, accept ed the offer, and, as they supposed, sold 100 bales of cotton to them. Bought and sold notes containing the names of plaintiffs as sellers, and of said companies as buyers, were made and delivered by plaintiffs' brokers in the usual manner, the terms being "cash in ten days," the bills to be sent to C. & Co. In these notes appeared the words "payment guaranteed by" C. & Co., but it was not claimed or proved that these words were written by C. & Co., or by their direction or authority. In pursuance of these supposed sales plaintiffs delivered the cotton (including the bales in suit) to their brokers, by whom it was delivered to C. & Co., to be shipped to said manufacturing companies, the supposed purchasers. C. & Co., instead of shipping the cotton, had it carted to a warehouse in New York City, and stored, and took negotiable warehouse receipts for it, at first in their own name, and afterwards, at the request of C., to facilitate C. Vol. 18.-No. 10a. ed by P. & Co. and by the inter- Frederic R. Coudert, for applt. Held, That defendant acquired only the right C. & Co. had in the cotton, or which by any act of the real owner they appeared to have; that C. & Co. obtained possession of the cotton by larceny, and the defendant, although an innocent purchaser, acquired no title to the cotton against the true owner. 20 Hun, 246; 85 N. Y., 631; 77 id., 126. This case cannot be treated as one where a party has by any means obtained "title to goods" as well as the possession "with the assent of the owner.' The words "" payment guaranteed by" C. & Co., in the bought and sold notes, must be taken to mean that C. & Co. have guaranteed payment by their principal, and as this is one of the terms of the contract plaintiffs may be held to have relied upon it. The words "bill to" C. & Co. are at most a memorandum, and although found in the bought and sold notes, and so evidence of the contract, are to be taken in connection with the other parts of the notes, and as they state that the sales were made to the manufacturing companies respectively, these words amount Judgment of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Danforth, J. All concur, except Ruger, Ch. J., and Rapallo, J., not voting. PLEADING. SURETYSHIP. N. Y. COURT OF APPEALS. Emery, respt., v. Baltz et al., applts. Decided Jan. 15, 1884. In an action against sureties on a bond given for the faithful performance of duties by one H., the answer contained no denial of the facts alleged in the complaint, but alleged that defendants had no knowledge or information sufficient to form a belief as to whether or not H. was at the time the action was commenced indebted to plaintiff "in the sum mentioned in the complaint or in any other sum and therefore deny the same." Held, That this was merely a denial of a legal conclusion and put in issue no fact alleged. H. was arrested on an order of arrest in an action brought against him by plaintiff, and was subsequently released on giving an offer of judgment. Held, That this did not discharge defendants from liability as sureties. ed merely to a memorandum and, In an action against the sureties on a bond taken with the rest of the contract, mean only that the bill, when made out to the purchasers, said manufacturing companies, was to be sent to C. & Co., through whom they were said to act. As no bill appears to have been sent or made out to any one, there is nothing in the words themselves to require a different holding from the referee than that no bill of sale or other muniment of title of any kind was delivered to C. & Co., or any document except the notes. for faithful performance, evidence that after the principal failed to perform defendants notified plaintiff that they wished to withdraw the bond and were induced to remain by his assurance that he would not let the principal get behind and if he did would stop his business and notify defendants, and that he did not do so, but let the liability increase, is competent. The complaint in this action recited in full an agreement dated April 27, 1874, between plaintiff and one H., by the terms of which H. was employed as a general agent to solicit and obtain policies |