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present, but only to appeals in the eral promissory notes of the R. cases therein mentioned.

Iron Co., in which company they Also held, That as plaintiff's were interested, amounting to over attorney seems to have acted in $50,000, and that they would probgood faith the default should be ably continue to indorse its notes opened on terms.

amount not exceeding Per curiam opinion. All con- $60,000 at any one time, provided

that the parties agreed each with

the other to severally pay oneMORTGAGE. TRUST.

third of the amount of such notes

which fell due as the company N. Y. COURT OF APPEALS.

should fail to pay, and that if Seward et al., respts., v. Hunt- either of said parties failed to ington, impld., applt.

pay his proportion of said notes,

or should pay more than his proDecided Nov. 20, 1883.

portion thereof, "he shall have A, B and C, having indorsed notes of a corpo- and

from the one ration for which they were not originally liable, executed mortgages to a trustee in failing an amount equal to his pursuance of an agreement or declaration aliquot part.”' It was further of trust whereby it was agreed that each provided that in case any one of should pay one-third of the amount of such the parties failed to pay his alinotes as the company should fail to pay,and that if either party should pay more than quot part, and either of the other his share he should recover from the one parties should pay the same, the failing to pay an amount equal to his aliquot trustee shall, on the request of part, and that the trustee, on request of the

the party so having paid, foreclose party so paying, shouid foreclose the mort

the mortgage made by the party gage made by the party in default and reimburse the party who had paid. Held, in default and repay to the party That the holders of the notes had no in- having paid the share of the deterest in the mortgages and they could not faulting party the amount so paid be enforced for their benefit.

by him. The holders of notes of This action was brought to fore. the R. Iron Co., indorsed by J., close a mortgage executed by one L. & S., which were outstanding J. to plaintiff, as trustee. The and unpaid, claimed to enforce names of the beneficiaries were the mortgage in suit for their not mentioned in the mortgage, benefit to the extent of one-third but it stated that it was given to of the

gross amount of secure the sum of $25,000, accord such unpaid notes. Aside from ing to the conditions of a certain their indorsements there was no agreement and declaration of trust. evidence of any legal or moral obTwo other mortgages for the same ligations to pay the notes or that amount were executed to plaintiff, they had in any way become liable as trustee, by L. & S. respectively. for their payment unless such The agreement referred to in the liability was created by the declamortgage, after reciting that J., ration of trust. L. & S. had jointly indorsed sev- Theodore Bacon, for applt.

ance

should also pay.

James Breck Perkins, for respts.

for defendant. The full retainer not having Held, That no benefit to the

been paid after repeated demands, they

refused to be bound by the agreement, and holders of the notes was contem- withdrew ; but thereafter, as attorneys of plated by the declaration of trust, record in one of the actions in which a and the indorsers did not become judgment against defendant had been primarily liable for the payment

vacated, they stipulated in writing that

the order of vacation should be set aside, of any part of such notes, either

and allowed an order for an extra allowto each other or the holders of

to be entered against defendant. them, but were liable only to Held, That plaintiffs were bound to serve each other for such part of the

until the close of the litigation unless

sooner legally discharged ; that the fact that notes as their co-contractor should

they remained attorneys of record, and pay in excess of that portion

their subsequent acts as such, amounted to which the respective mortgagors

a waiver of their client's default in pay. There being no

ment, and that such acts being adverse to

their client they could not recover for original liability of said parties

services in that suit. for the debts in question, it was competent for them by the con- This action was brought by tract between themselves to limit plaintiffs to recover the value of the liability which they were about their services as attorneys, rento assume in such way and by dered upon defendant's retainer such language as they saw fit to in two suits, and also to recover, use. Such a contract can only be as assignees of one D., money enforced according to the meaning paid by him for defendant. Deand intent of the parties making

fendant pleaded a special agreeit. 47N. Y., 241;82 id., 385; 84 id., ment; that plaintiffs failed to 75; Hampton v. Phipp, U. S. S. keep it, and while acting as his C., Matthews, J., Mss. op.

attorneys combined to injure him, Lawrence v. Fox, 20 N. Y., 268; "and in the interest of his opBurr v. Beers, 24 id., 178, distin- ponents" abandoned the actions guished.

intrusted to them to prosecute, to Judgment of General Term,

General Term, his injury more than $10,000, and affirming decree of foreclosure and demanded judgment accordingly. sale, reversed and judgment or

The allegations of the answer were dered for defendant.

controverted by the reply. The Opinion by Ruger, Ch. J. All referee found that plaintiffs were concur.

employed upon substantially the

terms claimed by defendant ; that ATTORNEYS.

prior to July 26, 1870, he paid

them a portion of the retainer N. Y. COURT OF APPEALS.

agreed upon, and that day, after Andrews et al., respts., v. Tyng; repeated unavailing demands for respt.

further payments of retainers and Decided Nov. 20, 1883.

compensation on the agreement, Plaintiffs were retained under special con plaintiffs refused to be further drew from it. At that date a on July 26, 1870, they refused to judgment had been recovered be bound hy their contract, the against defendant, the plaintiff in fact that they remained attorneys one of the suits brought by the of record and their acts as such plaintiffs here against one F., after that date amounted to a and in the other suit, which waiver of their client's default. was against one B., a judgment The acts of plaintiffs as attorneys was rendered against the defend- subsequent to July 26, 1870, being ant here on October 25, 1870. adverse to their client, as they This judgment was on January 25, were done in the suit and as his 1871, set aside and vacated on a attorneys, and could have had no motion of the defendant here, effect except so done, plaintiffs made upon the merits. On Feb. should not be permitted to say ruary 2, 1871, plaintiffs, as his they were not acting in the cause attorneys of record, but without and for their client. For services his knowledge or consent, stipu- in the suit against B. plaintiffs lated in writing that the order of were not entitled to recover; they January 25th should be vacated are in the position of wrong-doers, and set aside and the motion dis- and cannot be permitted to measure missed. On February 21st B.'s the damages resulting from their attorneys, on notice to these plain- own wrong. 92 N. Y., 210. tiffs, as attorneys of record, but Judgment of General Term, af. without personal notice to the firming judgment for plaintiffs, plaintiff in that suit, obtained an reversed, and new trial granted. order allowing $10,000 additional Opinion by Danforth, J. All costs, and entered judgment ac. cordingly. This order was also vacated on the application of this

tract as attorneys to conduct certain cases bound by the agreement and withC. & Co., cotton brokers, falsely representeil not only by the retainers, but by

CONVERSION. TITLE. defendant, and the order of Jan

N. Y. COURT OF APPEALS. uary 25, 1871, restored as of the date of its entry.

Hentz et al., respts., v. Miller, Matthew L. Harney, for applt. applt. William H. Andrews, for respts. Decided Nov. 20, 1883. Held, That plaintiffs were bound,

that they had orders from certain manufacspecial contract, to serve until the

turing companies to buy cotton, and proposclose of the litigation upon which ed to purchase plaintiffs' cotton, which offer they entered, unless sooner le- was accepted, and plaintiffs sold 100 bales, gally discharged. Their contract

as they supposed, to said companies on a

credit. Bought and sold notes were deliv. was an entire one.

For non-pay

ered, as usual, and the bales were delivered ment of fees they might refuse to to C. & Co., to be shipped to said compaact for their client, or might sub

nies. C. & Co. stored the bales, raised mit the excuse to the court and be

money on warehouse receipt issued to P. &

Co., and afterwards absconded. P. & Co. discharged, and they might also

sold the bales to R. & Co., who paid for waive his default; that although them at market rates and stored them with

concur.

defendant. Held, That C. & Co. obtained | & Co. in raising money on said possession by larceny, and that defendant,

cotton, new warehouse receipts although an innocent purchaser, obtained

were issued in the name of P. & no title as against the true owner.

Co., who, at C.'s request, by hyThis action was brought to re- pothecating these new receipts, cover $3,000, for the alleged con. raised money on them, which they version of certain cotton. It ap- paid over to C. & Co., and then peared that plaintiffs owned a lot sold the cotton to R. Bros., who, of cotton. C. & Co., cotton bro- upon delivery to them of the warekers, falsely represented to plain house receipts by P. & Co., indorstiffs' brokers that they had orders ed by P. & Co. and by the interfrom the F. M'f'g Co. and the R. mediate holders who had advanced Mfg Co. to buy cotton, and pro- money thereon, and after they had posed to buy plaintiffs' cotton. received the cotton itself, paid for Plaintiffs having satisfied them- it at market rates and had the selves as to the pecuniary respon- same removed from the warehouse sibility of said companies, accept and stored in defendant's wareed the offer, and, as they supposed, house. On January 10, 1878, C. sold 100 bales of cotton to them. & Co. absconded, and it was then Bought and sold notes containing discovered by plaintiffs and dethe names of plaintiffs as sellers, fendant that C. & Co. had no or. and of said companies as buyers, ders from either of said manufacwere made and delivered by plain- turing companies to buy any cottiffs' brokers in the usual manner, ton, and that the statements of C. the terms being

in ten & Co., and in that behalf, were days,” the bills to be sent to C. & false. Neither of said manufac- . Co. In these notes appeared the turing companies ever assumed, words “ payment guaranteed by" adopted, or ratified said pretended C. & Co., but it was not claimed or purchases, or received any of said proved that these words were writ- cotton, or any of the proceeds ten by C. & Co., or by their direc. thereof. Plaintiffs had no knowltion or authority. In pursuance edge of the fraudulent acts of C. & of these supposed sales plaintiffs Co. until after they had absconddelivered the cotton (including the ed. The bales in suit were then bales in suit) to their brokers, by found in possession of defendant, whom it was delivered to C. & Co., in his warehouse.

in his warehouse. Plaintiffs deto be shipped to said manufactur- manded them, and on their de- ' ing companies, the supposed pur. mand being refused the cotton was chasers. C. & Co., instead of ship- seized by the sheriff and subseping the cotton, had it carted to a quently rebonded by defendant. warehonse in New York City, and The referee found for plaintiffs. stored, and took negotiable ware- Frederic R. Coudert, for applt. house receipts for it, at first in M. A. Prentiss, for respts. their own name, and afterwards, at Held, That defendant acquired the request of C., to facilitate C. I only the right C. & Co. had in the

Vol. 18.--No. 10a.

• casli

cotton, or which by any act of the Judgment of General Term, alreal owner they appeared to have ; | firming judgment for plaintiffs, that C. & Co. obtained possession affirmed. of the cotton by larceny, and the Opinion by Danforth, J. All defendant, although an innocent concur, except Ruger, Ch. J., and purchaser, acquired no title to the Rapallo, J., not voting. cotton against the true owner. 20 Hun, 246; 85 N. Y., 631; 77 id., 126. This case cannot be PLEADING. SURETYSHIP. treated as one where a party has

N. Y. COURT OF APPEALS. by any means obtained “title to goods” as well as the possession

Emery, respt., v. Baltz et al., with the assent of the owner.'

applts. The words “payment guaranteed by” C. & Co., in the bought and

Decided Jan. 15, 1884. sold notes, must be taken to mean In an action against sureties on a bond given that C. & Co. have guaranteed for the faithful performance of duties by payment by their principal, and one H., the answer contained no denial of as this is one of the terms of the

the facts alleged in the complaint, but al

leged that defendants had no knowledge or contract plaintiffs may be held to information sufficient to form a belief as to have relied upon it. The words whether or not H, was at the time the ac"bill to” C. & Co. are at most a

tion was commenced indebted to plaintiff

“in the sum mentioned in the complaint or memorandum, and although found

in any other sum and therefore deny the in the bought and sold notes, and

same.” Held, That this was merely a deso evidence of the contract, are to nial of a legal conclusion and put in issue be taken in connection with the no fact alleged.

H. was arrested on an order of arrest in an other parts of the notes, and as

action brought against him by plaintiff, they state that the sales were made

and was subsequently released on giving to the manufacturing companies an offer of judgment. Held, That this did respectively, these words amount- not discharge defendants from liability as

sureties. ed merely to a memorandum and, taken with the rest of the contract,

In an action against the sureties on a bond

for faithful performance, evidence that mean only that the bill, when after the principal failed to perform demade out to the purchasers, said fendants notified plaintiff that they wished

to withdraw the bond and were induced to manufacturing companies, was to

remain by his assurance that he would not be sent to C. & Co., through whom

let the principal get behind and if he did they were said to act. As no bill

would stop his business and notify defendappears to have been sent or made ants, and that he did not do so, but let the out to any one, there is nothing in

liability increase, is competent. the words themselves to require a The complaint in this action redifferent holding from the referee cited in full an agreement dated than that no bill of sale or other April 27, 1874, between plaintiff muniment of title of any kind was and one H., by the terms of which delivered to C. & Co., or any doc- H. was employed as a general ument except the notes.

agent to solicit and obtain policies

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