Reports of Cases in Law and Equity in the Supreme Court of the State of New York

wish, not to go down into the deep, but to die in his home, and surrounded by those who were dear to him. But that home he never reached. His unconscious dust reposed a while in its now desolate halls, and

He lies in the cemetery, which, shortly before his departure for Europe, he was most active in procuring, as if in prophetic anticipation that he would soon occupy it.

His only son, Sidney, was killed by an accidental fall, eleven weeks afterwards-and father and son rest together in hope.

The same year he came to the bar he married Cornelia, daughter of John H. Tallman, Esq. of New York city, who with three daughters, survives.

Judge Barculo was a member and communicant of the Protestant Episcopal Church, and met a martyr's death with Christian heroism. He well merited the epitaph inscribed upon his monument:

'IN SOCIETY, AN ORNAMENT;

In the State, a Judge, fearless, dignified and incorruptible;
In habit, simple and pure.

HE DIED YOUNG, BUT MATURE

IN USEFULNESS AND FAME,

Adorning Jurisprudence by the clearness of his decisions,
And illustrating Religion by

THE STRENGTH OF HIS FAITH!"

INDEX.

1. Construction and validity.
1. The plaintiffs agreed with the defend-
ant that they would subscribe for,
and become responsible to take fifty
shares of the capital stock of the Troy
and Boston Rail Road Company, of
the estimated value of $5000, and to
pay $500 upon the subscription.
They further agreed, after having paid
the $500, to assign and transfer to the
defendant, by a proper instrument of
conveyance, all the said stock, &c.
The defendant, in consideration there-
of, agreed that after the plaintiff's
should have paid the sum of $500,
and upon their executing and deliv-
ering to him" an assignment or trans-
fer of all said stock," he would exe-
cute and deliver to them a covenant
to pay the remainder of the amount
which would be due upon the sub-
scription, and indemnify the plaintiffs
and save them harmless against all
VOL. XX.

claims, &c. arising in consequence of
their liability incurred by becoming
stockholders in the said company.
The plaintiffs, in pursuance of this
agreement, executed and tendered to
the defendant an assignment of 50
shares of the capital stock of the rail
road company, which they had pre-
viously subscribed for, and on which
they had paid $500, and also a power
of attorney to transfer the stock on
the books of the company. The by-
laws of the company provided that
no stock should be transferred on the
books of the corporation until thirty
per cent on each share had been paid
in, unless by consent of the board of
directors. The plaintiffs made appli-
cation for such consent, and it was
refused. The defendant declined ac-
cepting the assignment, on the ground
that it was not a compliance with the
terms of the agreement. The com-
pany sued the plaintiffs to recover the
balance of their subscription, and ob-
tained a judgment for $4690.85,
which the plaintiffs paid. At the
time the assignment of the stock was
tendered, and at the time of the trial,
the stock was worth from 40 to 43
cents on the dollar. Held 1. That it
was enough that the plaintiffs had
executed an instrument which would
transfer their interest in the stock to
the defendant; it being no part of
their agreement that they should pro-
cure a transfer of the stock upon the
books of the company. 2. That the
instrument executed by the plaintiffs
would enable the defendant, if he de-
sired it, to have the transfer made,

upon the books of the corporation,
upon complying with its by-laws.
And that it was for him, and not the
plaintiffs, to pay the residue of the 30
per cent required before a transfer
upon the books could be obtained.
3. That having an instrument which
would authorize him to procure such
transfer to be made, upon making
the requisite payment, it did not lie
with the defendant to object that the
transfer had not been actually made.
4. That the amount which the plain-
tiffs had been compelled to pay, upon
the judgment against them, as the
consequence of the defendant's breach
of his agreement, was the proper
measure of the plaintiff's recovery
for such breach. Orr v. Bigelow, 21

2. By a written contract made between

N. T. and S. P. T., the latter agreed
to pay the former 1300 in install-
ments, and in consideration thereof
N. T. agreed that S. P. T. might
have the possession and use of a cer-
tain canal boat, &c., unless default
should be made in the payment of
the said sum of $1300, or some part
thereof, or unless S. P. T. should do
or attempt to do, any of the acts by
the agreement prohibited; in either
of which cases N. T. might take pos-
session of the boat, &c. On the full
payment of the $1300, N. T. was to
execute and deliver to S. P. T. a bill
of sale of said boat, and put him in
possession. S. P. T. agreed not to
take or attempt to remove the boat
out of the state, or transfer or attempt
to transfer, the same without the con-
sent of N. T., or to do any thing to
prejudice his title. In case default
should be made in the payment of the
said sum of $1300 or any part there-
of, N. T. was to have the right to
take and sell the boat and apply the
proceeds to pay the balance unpaid,
paying over the surplus, if any, to
S. P. T. It was further provided
that nothing contained in the contract
should be so construed as to give
S. P. T. any right or title to the
boat, until such payment should be
fully made; except the right to pos-
sess and use the same, in the manner
and upon the conditions in such con-
tract mentioned. Held that this in-
strument was an executory contract
for a sale of the boat on condition,
and not a mortgage thereof; the
parties intending, in respect to the
title, simply to agree for the sale and
purchase of the boat for the sum spe-

9. An executory contract, for the sale
and purchase of land, was made be-
tween the plaintiff and defendant, by
which the latter was to have the oc-
cupation and possession of the prem-
ises, so long as he should fulfill and
comply with the stipulations of the
contract. But if he should make de-
fault, then the agreement should be
void, and the plaintiff was to be at
liberty to immediately enter into the
possession and occupancy of the
premises, and was to be forever dis-
charged from the agreement.

Held

that upon a breach of the contract by
the defendant, the plaintiff had a right
to enter, without notice, or demand
of possession. Stone v. Sprague, 509

2. Performance.

10. A contract for the sale and purchase
of land provided that on the payment
of $745, in five years, with annual
interest, the defendant should be en-
titled to a deed. On the day before
the time for payment expired, the de-
fendant tendered the plaintiff the
amount, in specie, and requested a
deed. The plaintiff replied that he
would not receive any thing, nor give
a deed; placing his refusal upon
the ground that he had not enjoyed
such privileges, in the house, as he
ought to have had, and saying that
he and the defendant must settle,
and he would not give any deed till
they did. The parties then agreed to
leave the question as to damages,
to M. and W., and the plaintiff agreed
to see W. and ascertain when he
could attend to the matter. An in-
dorsement was then made upon the
contract, signed by the plaintiff but
not under seal, extending the time
of payment to the 25th of April.
On or about that day the money was
again offered to the plaintiff and a
deed requested. He again refused
to receive the money, or to convey;
saying he had not been able to get W.
to attend to it: another indorsement
was then made on the contract, ex-
tending the time of payment to the
15th of May. A few days before the
15th of May the defendant again
tendered the money to the plaintiff,
if he would execute a deed; which
was refused. Held that the defend-
ant had substantially complied with
the terms of the agreement, so as to
be entitled to a deed for the prem-
ises; and that, the defendant having
been prevented from performing the

contract, at the day, by the act of the
plaintiff, the latter could not be al-
lowed to take advantage of his own
wrong, by insisting that the time for
performing the agreement by the de-
fendant had expired
it

11. Held also, that proof that at the time
of the last tender, and at other times,
the plaintiff agreed by parol, with the
defendant, not to take advantage of
the expiration of the contract, say-
ing that the lapse of a few days would
not make any difference with him;
and that the money, together with a
deed, ready to be executed by the
plaintiff, were tendered, on the 18th
of May, three days after the expira-
tion of the time, as last extended, was
proper evidence, and ought to have
been received.

12. The time for performing a written
contract under seal, may be enlarged
by parol.

3. When complete and binding.
13. On the 30th of August, 1853, the de-
fendants proposed to the plaintiffs, by
letter, as follows: "We will engage
to furnish you a boat load of flour,
the last of next week, same quality
sent G. and M., at $4.76, free to
boat." This proposition was imme-
diately answered by the plaintiffs in
these words: "We will take the
boat load flour, as per your proposi-
tion in yours of the 30th inst." Held
that this was a clear and unqualified
acceptance, by the plaintiffs, of the
defendant's proposal, and that as soon
as the plaintiffs' letter had gone be-
yond their control the bargain was
complete, and it became mutually
obligatory upon the parties, and
could not be rescinded by either,
without the consent of the other.
Clark v. Dales,

19. Where, in an action of ejectment,
the defendants claim the right to the
possession, under a written contract for
the sale and conveyance of the premis-
es to them by the plaintiff, evidence is
admissible in behalf of the plaintiff,
to show that the alleged contract was
never delivered, but was placed in
the hands of the defendants' agent,
not as such agent, and not as a con-
tract, but to be presented by him, in
behalf of the plaintiff, to the defend-
ants, as a proposition for their ac-
ceptance or refusal, and to be void as
a proposition, unless the defendants
should give notice to the plaintiff of
its acceptance, within a specified
time; that such notice was not giv-
en; and that afterwards, and before
any notice of acceptance, by the de-
fendants, the plaintiff gave notice to
the agent of the defendants, as such
agent, that he withdrew the offer. ib

20. Under such circumstances, the pa-
per will not bind the plaintiff, as a
contract, until the defendants have
accepted it; and until acceptance,
the plaintiff may withdraw or rescind
it.
ib

21. And a declaration by the plaintiff,
to the defendants, that he will not be
bound by the proposition, made at
any time before acceptance, will ter-
minate it.
ib

22. Where the execution of a paper by
one party is completed by a delivery
thereof to the agent of the other par-
ty, as a contract, parol evidence of
conditions qualifying the delivery is
not admissible; and the party sign-
ing the paper will be bound, although
it is not signed by the other party. ib

ALE.

See EXCISE LAW.

AMENDMENT.

1. Where one party agrees to sell and
deliver goods at a particular place,
and the other agrees to receive and
pay for them, an averment by the
purchaser, of a readiness and willing-
ness to receive and pay at that place,
in case he sues, for a non-delivery, is
indispensably necessary in the com-
plaint. But the omission to make it
is a defect which is cured by a ver-
dict; and an amendment of the com-
plaint is admissible and appropriate,
under such circumstances, for the pur-
pose of securing certainty and harmo-
ny in the record; and is sanctioned by
173 of the code. Clark v. Dales, 42

The amendment may be ordered at a
general term, and without formal
notice of motion for that purpose,
when the object of the amendment is
only to conform the complaint to the
facts found, and when the record
furnishes the only grounds for and
against the same.
ib

Where a complaint and answer are
both very general in point of form, but
neither party demurs, and both have
gone to trial with a full understand-
ing of their rights, and neither party
has been taken by surprise by the
pleading of his adversary, and a full
and fair investigation has been had,
upon the merits, such an amendment
will be allowed as may be necessary
to conform the complaint to the facts
proved, and as will do substantial jus-
tice to both parties. Hunter v. The
Hudson River Iron and Machine
Co.
493

APPEAL.

Where an objection to the competen-
cy of a witness examined before a
surrogate, is not raised there, it will
be deemed to have been waived, and
will be of no avail on appeal. Mc-
238
Donough v. Loughlin,

An omission to challenge a juror is
a waiver of all objections to him;
and this whether there be an appear-

« Previous Continue »

Books

Reports of Cases in Law and Equity in the Supreme Court of the ..., Volume 20