findings and refusal to find were supported by the evidence. It was distinctly proved that no specified time was absolutely fixed or agreed upon for the stay of H. and his family at defendants' hotel. Defendants had neglected to post in the rooms occupied by H. and his family the notice required by the statute to exonerate them from liability. Thomas C. Sears and Charles P. Crosby, for applts. George G. Munger, for respt. Held, That H. and his family were transient guests and could not be regarded as boarders and defendants are liable for the property lost within the rule which makes an innkeeper liable for the goods and property of his guests. Officers of the army and navy and soldiers and sailors who have no permanent residence which they can call home may be regarded as travellers or wayfarers when stopping at public inns and hotels, and to make them chargeable as mere boarders it should be shown satisfactorily that an explicit contract has been made which deprived them of the privileges and rights their vocation confers upon them. It appeared that defendants kept separate apartments for boarders and transient persons and that H. and his family were registered among the former, but it did not appear that this fact was known to H. It was claimed that he had grounds for supposing and understood that he and his family were boarders and not guests. Held, Untenable. Also held, That the fixing of the price for board did not make H. and his family boarders. 33 Cal., 557; 7 Cush., 417; 53 Me., 169; 35 Conn., 183. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All con cur. GUARANTY. N. Y. COURT OF APPEALS. The Evansville Natl. Bank, respt., v. Kaufman et al., applls. Decided Oct. 2, 1883. Plaintiff discounted certain drafts relying upon a letter written by defendants to B. Bros., the drawers, whereby they guaran teed the payment at maturity of any drafts that B. Bros. might draw on one F. No bills of lading or consignments accompanied the drafts, and one of them was accommodation paper. Held, That the guaranty was a special one and no right of action under it was acquired by plaintiff. In the absence of evidence of a consideration no cause of action accrued to B. Bros. A special guaranty contemplates a trust in the person of the promisee and is not assignable until a right of action has arisen there on. Affirming S. C., 12 W. Dig., 323. This action was brought to recover the amount of two drafts drawn by B. Bros., of E., Indiana, on F., of N. Y., at E., and forwarded to N. Y. for acceptance and payment by the drawee, by whom they were dishonored. Defendants were sought to be made liable under a letter from them to B. Bros., in which they say: "Any drafts that you may draw on Mr. A. Feigelstock, of our city, we guarantee to be paid at maturity." When the drafts in suit were discounted defendants' letter was produced by B. Bros. and left with plaintiff as security. The drafts were not accompanied by any bills of lading or consignments of property to the drawee, and one of them appeared on its face to be accommodation paper. Charles Edward Souther, for applts. E. B. Crowell and Asa Iglehart, for respt. to the guarantor, or by the promisee to either the principal or some third person according to the terms of the guaranty. Guaranties should receive such a construction as will accord with the apparent intention of the parties, in conformity with the rule governing the construction of contracts generally. 24 N. Y., 70; 13 id., 231; 17 Wend., 422. When the meaning of the language used in a guaranty is ascertained the surety is entitled to the application of the strict rule of construc-. tion and cannot be held beyond the precise terms of his contract. 13 N. Y., 231; 60 id., 158; 6 id., 356. When the language of a guaranty is ambiguous and does not furnish conclusive evidence of its meaning, all the circumstances. may be looked at to arrive at the intention of the parties. 18 N. Y., 502; Brandt on Surety ship, 106; 4 Hill, 200; Fell's Law of Guaranty, 43; 1 B. & P., 158; 32 N. Y., 703; be 18 Iowa, 352; 1 Barb., 637. Held, That the guaranty was a special one, and no right of action under it was acquired by plaintiff on account of the drafts it discounted that unless there was evidence of a consideration no cause of action accrued to B. Bros. A special guaranty contemplates a trust in the person of the promisee, and from its very nature is not assignable until a right of action has arisen thereon, which may, like any other cause of action arising upon contract, be then assigned. A consideration is necessary to render a contract of guaranty valid, and unless such consideration be acknowledged by the contract itself it is necessary to prove one in order to recover thereon. 8 Johns., 29; 4 id., 280; Brandt on Suretyship, 7. It is not necessary that such consideration shall be expressed in the written contract if otherwise proved. Laws of 1863, Ch. 464; 6 Abb. Pr., N. S., 309. It is In the case of a special guaranty the consideration necessary to support the promise may either be one furnished by the principal Decided Aug. 7, 1883. Although, upon the death of a trustee, the trust vests in the Supreme Court under Chap. 185, Laws of 1882, and does not descend to his personal representative, nevertheless, when the executor of such trustee, with the consent of the cestui que trust, assumes control of the trust property and makes disbursements and renders services in caring for such property and in defending a suit brought against him concerning it, he is entitled to be reimbursed the amount so spent and to be compensated for the services so performed, and this Court has power, upon a petition being presented by him praying that he be allowed to account, &c., whereupon it assumes the trust and appoints a trustee, to order a reference to take proof of the value of such services, and the amount of the disbursements. agents of M. in place of his testator, and, with their advice and consent and that of their attorney, defended the suit brought by G., and rendered services and incurred disbursements therein. The petitioner presented a bill to M.'s agents for such services and disbursements, which was refused payment. He then presented his petition to the court, praying among other things to be allowed to account, &c. The agents of M. appeared by attorney and opposed the application, whereupon such proceedings were had that a new trustee was appointed and a refer Appeal from an order of Special ence was ordered to take proof of Term. The petitioner was the executor »of one H., who was, at the time of his death, the agent of one M. During his life time H., as such agent, had invested money belonging to M. in a mortgage upon certain real property in the city of New York. It subsequently became necessary to foreclose this mortgage; and, at the foreclosure sale, H. bought in the property for the benefit of M., taking a deed in his own name because M. was an alien, and executing a declaration of trust in favor of M. After the death of H. the petitioner assumed to become the owner of such property subject to the trust. Subsequently one G. commenced a suit against the petitioner for leave to redeem the premises, claiming that he had an interest therein which had not been cut off by the foreclosure. The petitioner applied to the persons who had been appointed the facts set forth in the petition, George H. Forster, for applt. Held, That the petitioner was clearly entitled to indemnity for the expenses incurred and to compensation for the services rendered by him; that his exact position with regard to the estate, whether he was agent or trustee, was a matter of no consequence. That the court having assumed the burden of the trust under the act of 1882, supra, it became its duty to ascertain the condition of the fund. That it had acquired jurisdiction over the whole subject, and that there could be no doubt of its power to order the reference; and even if it did not possess such inherent power as a court of equity it was conferred by $1015 of the Code of Civ. Pro. Order affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. CONTRACT. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Thomas McCraith, respt., v. The National Mohawk Valley Bank, applt. Decided June, 1883. Where a mortgage was held as collateral sccurity by a bank, under an agreement that the proceeds of the mortgage, when collected, were to apply on the principal debt, payment of the mortgage before maturity is good consideration for a promise made by the bank. Action for damages for breach of a special agreement alleged to have been made as follows: Plaintiff had bought a village lot in Ilion. and taken a warranty deed from one Dygert at the price of $1,500, and had given Dygert a purchase money mortgage back. Plaintiff afterward found that there were two prior mortgages covering the lot and other lands, executed by Dygert: one for $5,000, held by defendant, and the other known as the Rasbach mortgage, the amount of which does not appear. The evidence tended to show that plaintiff after learning of the two prior mortgages was advised by Mr. Rasbach, whose daughters held the Rasbach mortgage, that if he paid the Dygert mortgage he should so pay it as to have the money applied on the mortgage held by Rasbach's daughters, and they would give him a release, and that the bank mortgage which was the first lien would be satisfied by a sale of the premises covered by it before reaching plaintiff's lot, if sold in the inverse order of alienation; that plaintiff told Alexander, defendant's cashier, what Rasbach had said; and that Alexander informed plaintiff that the bank had possession of the mortgage he had given to Dygert, and requested him to pay the amount to the bank and promised him if he would do so that the As to measure of damages under certain cir- bank would release his lot from cumstances, quære. Appeal from judgment on verdict at circuit, and from order denying motion for new trial on the minutes. the lien of its mortgage and would also procure for plaintiff a release of his lot from the Rasbach mortgage. Plaintiff thereupon, in consideration of that promise, paid to an unreasonable time after defendant had obligated itself to procure its release was a breach of the agreement. 11 Johns., 477; 1 Hill, 145; 22 Barb., 388, S. C. aff'd 18 N. Y., 573; 1 N. Y., 550; 48 id., 532; 83 id., 51, 61; 88 id., 240. The proposition that plaintiff cannot recover because he neglected to attend the sale and use reasonable efforts to prevent a sacrifice of his property is unfounded. the bank the Dygert mortgage before it was due, and the bank subsequently released plaintiff's lot from its own mortgage, but neglected to procure a release of the Rasbach mortgage. The bank held the mortgage as collateral security for Dygert's indebtedness. The evidence tended to show that the cashier as well as plaintiff regarded the bank mortgage as well secured without plaintiff's lot, and so expressed themselves to each other during the negotiations; the bank afterward foreclosed their mortgage and realized their entire debt. Plaintiff's lot was sold under the Rasbach mortgage, and the purchaser went into possession. Before the sale plaintiff notified defendant's cashier of the pendency of the foreclosure suit and ask-change the facts materially on this ed him to procure the release, which was not done. The judge charged the jury that if they should find for plaintiff their verdict should be for the sum paid by plaintiff to defendant, with interest. Amos H. Prescott, for applt. Smith & Steele, for respt. Held, As to the questions of ultra vires and the statute of frauds, we adhere to our rulings on the former appeal. 26 Hun, 240. The promise is supported by a good consideration. It was not necessary to plaintiff's right of recovery that an eviction. should have taken place, or that a foreclosure should have been had. The fact that defendant suffered the mortgage to continue to be an existing lien on plaintiff's lot for Vol. 18.-No. 4a. In general the measure of damages in cases of a like nature is the probable loss of value by reason of the existence of the incumbrance agreed to be removed. 17 Johns., 239; 1 N. Y., 550; 48 id., 532; 13 Hun, 563. We cannot approve the rule of damages laid down at the trial. A new trial may question, and we do not suggest any measure of damages as the right one under the peculiar circumstances of this case. Judgment reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.; Hardin and Barker, JJ., concur. BANKRUPTCY. FRAUD. EVIDENCE. N. Y. COURT OF APPEALS. Talcott, respt., v. Harris et al., applts. Decided Oct. 26, 1883. Plaintiff proved his debt in bankruptcy proceedings as an unsecured claim, resisted the passage of composition proceedings, and finally accepted the dividend on his claim under protest after a petition was presented for leave to deposit it to his credit. Held, |
