Y. Supp. 1150) affirming a judgment in favor of plaintiff, defendants appeal. Reversed.

The plaintiff sued to recover the price of 8,310 boxes of dates, which were sold at public auction on November 4, 1892, and of which the defendants were alleged to be the purchasers. It was alleged in the complaint that the plaintiff and defendants had agreed that the former should make an allowance of one-eighth of a cent per pound on purchases by defendants of not less than 4,000 boxes, and one-quarter of a cent per pound on purchases of not less than 8,000 boxes, and that there should be no brokerage or allowance on purchases made through brokers. The plaintiff alleged a purchase of 3,942 boxes by the defendants at the sale, and also their further purchase of 4,368 boxes, but that the latter was effected through a broker. The whole purchase price, without any allowance, was demanded. The answer admitted the purchase by the defendants of the 8,310 boxes, but put in issue the other allegations respecting the agreement and the purchases, and alleged that the plaintiff's agreement was, simply, that if there should be purchased through the defendants at least 4,000 boxes of said goods, etc., an allowance of one-eighth of a cent per pound should be made on such purchase, and if such purchase should be not less than 8,000 boxes thereof, then such allowance should be at the rate of one-quarter of a cent per pound on the entire purchase. It alleged that the defendants had tendered, and were willing to pay, the purchase price, less the amount due them by way of allowance, and asked that they be adjudged entitled to the allowance. Upon the trial the plaintiff offered no proof whatever as to the agreement between himself and the defendants, but contented himself with proving through the auctioneers the sale of the dates, and putting in evidence bills made out by the auctioneer to the defendants. It appeared by his testimony that the goods in question were auctioned off in lots, partly to the defendants and partly to one Elias; but that immediately after the sale the bills for them were all made out to the defendants as the purchasers. On the part of the defendants, Zuricalday & Co., one of that firm testified concerning the agreement, and said that the plaintiff proposed to allow him the percentages mentioned if he purchased up to 4,000 or 8,000 boxes at the sale. Elias, it appears, had been previously interested on joint account with the defendants in purchases of similar goods, and had an interest in the transaction in question. He and one of the defendants attended the sale for the purpose of buying for the defendants' account. There was no proof that he acted as a broker in the transaction, and it was not the fact. At the conclusion of the trial the trial judge directed a verdict for the plaintiff for the whole amount of the purchase price, and the defendants excepted to his direction. He subse

quently denied a motion for a new trial on his minutes. On appeal the judgment entered upon the verdict was affirmed by the general term, and the defendants have appealed to this court. Further facts are stated in the opinion.

Emmet R. Olcott, for appellants. C. N. Bovee, Jr., for respondent.

GRAY, J. (after stating the facts). The theory upon which the learned trial judge directed the verdict for the defendants, as we learn from his opinion, was that the plaintiff's agreement to make an allowance to the defendants upon their purchases at the sale "was founded on a confidence reposed in the defendants, and created a personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale." This theory of the relation of the parties he rested upon the familiar rule in equity, that when the agreement is personal, depending upon the learning, skill, or other characteristic of the contracting party, he alone can enforce performance. We cannot, however, agree with the learned judge in his application of this rule to the case at bar. He assumes a state of facts which the evidence fails to disclose. If we take the case as made by the plaintiff, it proved nothing concerning the agreement alleged. It established, in fact, a sale through the auctioneer to the defendants, although the evidence of the auctioneer showed that some of the lots were bought for defendants by a person named Elias. For the defendants, the agreement was shown, by the testimony of one of them, to have consisted merely in the plaintiff's proposition to him that if he would purchase up to 4,000 or to 8,000 boxes at the sale he would allow him oneeighth of a cent per pound on the former amount, or one-fourth of a cent on the latter amount. The agreement was in parol, and its exact nature was issuable under the pleadings, but all we know of it is from the defendants' testimony. Such an agreement does not bear the impress of an engagement so personal in its nature as to have devolved the duty upon the defendants of actually doing the bidding at the sale. It is possible that the plaintiff may have had the notion, when making his proposition, that the personal attendance of the defendants and their bidding would stimulate other bidders, or otherwise better the market. But, if such was the underlying consideration in his mind, there should have been some evidence of it, and it should not have been left to assumption alone. We might indulge in more than the one assumption, in the face of the meager evidence concerning the parties and their plans. How are we to assume that the fact of the defendants' bidding in person at the sale would be any more potent a factor in the market than if they procured the aid of another person, interested with them in their

ventures, as Elias was, to bid for them during the sale? The record is silent. We do not know from the evidence that the defendants occupied any such position in the peculiar market as to give them any prestige. As a matter of fact, the conditions of the plaintiff's proposition were met by the actual purchase of over 8,000 boxes of dates by the defendants at the auction sale. Elias was not a broker in the transaction. He was, and he had been for some time, interested with defendants on joint account in their ventures. There was nothing in the transaction with the plaintiff which debarred Elias from continuing to participate with the defendants in the proposed purchase, as he had done in the past. It was easy for the plain. tiff to have limited and to have precisely defined his engagement towards the defendants with respect to their purchases of his goods. But he did not do so, and the fact is that the defendants did purchase over 8,000 boxes, which entitled them to the allowance agreed upon by the plaintiff. There was no question of any assignment of the contract or of bringing in a third party. In order that a contract shall bear the impress of being a personal contract, or one which involves personal considerations, something must appear from it, or it must inevitably suggest that a personal confidence or trust was reposed in the person contracted with. Such was the case in Stevens v. Benning, 1 Kay & J. 168. In that case Vice Chancellor Wood suggested a case which aptly shows how the inference of a personal trust can be made from the transaction itself. He says: "Take, for instance, the case of a merchant in the West Indies consigning goods to a person in London, for the purpose of having them sold there; such person alone would have a right to sell them." No such element can be presumed to enter into the transaction in question. There was no such duty necessarily or inferentially devolved upon the defendants as to permit the court to presume that any personal confidence was involved, or that the exercise of some personal skill on their part was expected. In view of the manner of a sale at auction, and what would ordinarily be done, that would be an irrational presumption. In the case of Spalding v. Rosa, 71 N. Y. 40, cited by the learned trial judge, the defendants' contract to furnish the "Wachtel Opera Troupe" could only be fully performed by the appearance of the great tenor singer himself, who gave his name to the company, and whose presence was of the essence of the contract as of the success of a performance. So in Wolfe v. Howes, 20 N. Y. 197, the contract with the mechanic contemplated his personal services, because not only it was "evident, both from the nature of the business and the amount of compensation agreed to be paid him," but, as Judge Allen adds, "it is also manifest from the evidence on both sides. The business of pot-making required skill and experience.

DRAKE v. STATE. (Court of Appeals of New York. Jan. 15, 1895.) EMPLOYES OF STATE-COMPENSATION.

A fireman at the state soldiers' and sailors' home is not "employed by the state or any officer thereof," within the meaning of Laws 1889, c. 380, § 1, providing that a laborer so employed shall receive not less than two dollars per day.

Appeal from board of claims.

Claim against the state by Charles M. Drake for a residue of wages, at two dollars per day, for the time he was employed as fireman at the state soldiers' and sailors' home, at Bath. From an adverse award on a hearing before the board of claims, claimant appeals. Affirmed.

J. F. Parkhurst, for appellant. T. E. Hancock, Atty. Gen., for the State.

PER CURIAM. The plaintiff was employed as a fireman at the New York state soldiers' and sailors' home, at Bath, from May 1, 1888, to March 27, 1889, for wages at the rate of $30 per month. At the end of each month he received his pay, and signed a receipt acknowledging full payment for the month's wages. He now claims a residue of his wages at the rate of two dollars per day, and bases his claim, mainly, upon the act, chapter 380 of the Laws of 1889. This act is entitled "An act to regulate the rate of wages on all public works in this state, and to define what laborers shall be employed thereon." Section 1 provides that: "From and after the passage of this act the wages of day laborers employed by the state, or any officer thereof, shall not be less than two dollars per day, and for all such employed otherwise than day laborers, at a rate of not less than twenty-five cents per hour." Section 2 provides that: "In all cases where laborers are employed on any public work in this state, preference shall be given to citizens of the state of New York.” He claims that this act, from and after its passage, secured to him compensation at the rate of two dollars per day. The board of claims decided against him, on the ground that he was not one of the laborers "employed by the state, or any officer thereof," within the meaning of the act. The act was under consideration in the case of Clark v. State, 142 N. Y. 101, 36 N. E. 817, and our general views in reference thereto were there expressed, and it is not needful to repeat them here. The legislation embodied in the act conferred special privileges upon a certain class of laborers within the state, and sound

policy requires that it should be strictly construed, so that it will not be extended to cases not plainly within the legislative intent. It must be noticed first that the purpose of the act, as embraced in the title, was to regulate the rate of wages "on all public works" in this state, and in construing the statute the title may be considered. People v. Molyneux, 40 N. Y. 116; Jones v. Sheldon, 50 N. Y. 477; People v. Wood, 71 N. Y. 371; People v. Davenport, 91 N. Y. 574. If this first section of the act stood alone, unexplained by any other provision contained therein, or by the title, such a laborer as the claimant was would clearly be within its provisions. But in section 2 there is a further indication that the laborers the legislature had in mind were those employed on public works in this state; and we think the board of claims was right, considering the whole act with its title, in holding that it applied only to laborers upon such public works, and that it did not apply to laborers in the penal, reformatory, eleemosynary, or educational institutions of the state. The canals of the state are referred to in section 3 of article 5 of the constitution as "the public works" of the state, and we believe that the main, if not the exclusive, purpose of the legislature was to provide for employment and wages upon such public works; and, in the absence of a plain manifestation of the legislative intent, we are unwilling to give the act broader scope. The act, chapter 385 of the Laws of 1870, has no application to this case. McCarthy v. Mayor, etc., 96 N. Y. 1. The award should, therefore, be affirmed, with costs. All concur. affirmed.

(144 N. Y. 361)

Award

PEOPLE V VAN ALSTYNE. (Court of Appeals of New York. Jan. 15, 1895.) SEDUCTION UNDER PROMISE OF MARRIAGE.

One who induced a woman to have sexual intercourse with him, by promising that if she became pregnant he would marry her, is not guilty of seduction "under promise of marriage." Pen. Code, § 284.

Appeal from supreme court, general term, Fifth department.

George R. Van Alstyne was convicted of seduction under promise of marriage, and from a judgment of the general term (29 N. Y. Supp. 542) affirming the judgment of conviction, appeals. Reversed.

H. B. Hallock, for appellant. Howard H. Widener, for the People.

PECKHAM, J. The defendant has been convicted of the crime of seduction under a promise of marriage. It is urged in his behalf that the evidence on the trial, as given by the prosecutrix herself, simply shows the making of a conditional promise by defendant to marry the prosecutrix only in case she became pregnant as a result of that intercourse. It is then insisted that if the promise

were of that nature it was insufficient upon which to base a conviction under the statute. We think the defendant's counsel is right in the construction to be given the evidence in the case. On carefully reading the testimony of the prosecutrix, we feel confident that the only promise which she proves on the part of the defendant was the conditional one to marry her in case she became pregnant. She does state in one portion of her evidence an unconditional promise, but she immediately follows it by the statement of the conditional one, and we think it obvious, from her whole evidence, that the conditional is really the only promise which she regards as made or which can reasonably be inferred. The evidence which she gave before the justice in the other proceeding, and which, in substance, she admitted, and which was proved upon this trial, shows that she regarded the promise as one made only in case she became pregnant. Assuming the promise was of such a nature, we are of the opinion that it was not of that kind contemplated by the statute. It was never intended to protect a woman who was willing to speculate upon the results of her intercourse with a man, and who only exacted as the price of her consent a promise on his part to marry her in case the intercourse resulted in her pregnancy. The conditional promise mentioned in Kenyon v. People, 26 N. Y. 203, is very different from the one here under discussion. It was an absolute promise to marry the prosecutrix if she would consent to have intercourse with him, and when she consented, and the intercourse took place, the promise became mutual, and the condition was performed. A promise on her part was implied from the fact that she yielded to the solicitations of the defendant, and, in consideration of his promise, the intercourse took place. The condition was performed the very moment that such intercourse was accomplished. It came within the very words of the statute, and also within its purpose. The seduction was accomplished under and upon the faith of an unconditional promise to marry her. It was the consideration for and the inducement to such intercourse. In Boyce v. People, 55 N. Y. 644, the same kind of a conditional promise was proved and held to be sufficient; the court refusing to hold that there was anything in the evidence to justify the claim that the promise was to marry only in case the accused should be satisfied that the prosecutrix was a virgin. In Armstrong v. People, 70 N. Y. 38, at page 53, the court says that the question is not raised by the evidence, and refuses to discuss it for that reason. The statute was passed to protect a confiding and chaste woman in yielding to the solicitations of the man who had promised to marry her. It was not the purpose of the law to throw its protection around the woman who was willing to consent to the act, and who only asked for a promise of marriage in case her lapse from chastity should be discovered by reason of

her pregnancy. In such case she consents at a time when there is no real promise. We think the case of People v. Duryea (Sup.) 30 N. Y. Supp. 877, was well decided upon this very ground, and we approve the reasoning of Brown, P. J., therein contained. The court below should have granted the motion of defendant, and should have discharged or directed the jury to acquit him on the ground that no sufficient promise of marriage was proved to constitute a criminal offense, under section 284 of the Penal Code. The judgment should be reversed, and, as there can be no conviction of defendant under the evidence as given by the prosecutrix, he should be discharged. All concur, except HAIGHT, J., not sitting. Judgment reversed.

(144 N. Y. 660)

CRONIN et al. v. TEBO.

(Court of Appeals of New York. Jan. 15, 1895.) DREDGING CONTRACT-ABANDONMENT EVIDENCE.

One who had contracted to do certain dredging, the material dredged "to be dumped inshore," on being stopped by the shore inspector from so dumping the material, continued to dredge, carrying the material out to sea, on a promise by the other party to build a certain crib which would have permitted inshore dumping. A large crib along the shore was subsequently built in another place, and thereafter dredgers were permitted to dump material in the place where he had been prohibited from dumping, as the contractor knew. Held, that the contractor was not justified in abandoning the work.

Appeal from supreme court, general term, Second department.

Action by Richard Cronin and others against W. M. Tebo to recover damages for breach of contract. From a judgment of the general term (24 N. Y. Supp. 644) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Josiah T. Marean, for appellant. James C. Church, for respondents.

FINCH, J. The defendant's counterclaim, as pleaded, goes upon the ground that it was made one of the terms of the contract that he should be permitted and would be able to dump the dredging material inshore, and that the plaintiffs broke that contract by not securing for him such permission or authority. There was no express contract to that effect, and, if any such existed, it was by implication from the nature of the transaction. The defendant offered to do the dredging at a named price, adding, "The material so dredged to be deposited inshore, so as not to interfere" with the trench to be made for the cribs of the new bulkhead. The plaintiffs accepted the proposition. They had a contract with the owner to build the new bulkbead, and knew the fact that he needed the material for filling, and was both willing and desirous to have that material so deposited. He never interiered to prevent inshore dumping. The consent of the owner

being assured, no difficulty remained except what might come from the law of the state. Both parties assumed, as was again the fact, that inshore dumping behind a bulkhead was permissible under that law. There was a bulkhead existing, and it was supposed by the parties that it would afford opportunity for disposing of the material. They were experienced in the business, and, so far as appears, had equal knowledge and equal neans of knowledge of the law. But at the first effort the shore inspector stopped the work, and prevented the inshore dumping at the locality selected. At that point it is possible that the defendant might have been justified in abandoning his contract, because of a mutual mistake as to the understood possibility of dumping inshore, or on the ground of an implied contract of the plaintiffs to furnish such opportunity. But he did not do so, and kept on carrying the material out to sea, which was a more expensive process. What followed is matter in dispute. The plaintiffs say that defendant preferred to dump the material at sea, because he could not get his scows near enough to the shore, and could take away much larger loads with his tug. The defendant says that he waived his right temporarily on the faith of plaintiffs' promise to build the north crib, in which event inshore dumping could be resumed; and that plaintiff's neglected and refused to build it promptly, and for that reason he abandoned the work. We may assume his version as correct. But, before he abandoned the dredging, the whole difficulty vanished, and he knew it. Over 200 feet of the crib parallel to the shore had been completed. change was so great that he was not justified in assuming that inshore dumping would still be prohibited. On the contrary, he saw one Beard, employed by the same owners at the north, dumping dredging material inshore at the precise point where he had earlier been denied that permission. Cronin, one of the plaintiffs, testified that the defendant knew what Beard was doing, and that his agent, Bentley, complained about it, and threatened to quit work unless the process was stopped. Why this complaint was made the case does not show. Bentley, when called for the defendant, said: "I understood the day before I quit work that Mr. Beard had commenced dumping inshore. I knew the fact at the time I went and spoke to Mr. Cronin." It thus appears that, before the defendant abandoned his work, enough of the cribs had been put in place to permit inshore dumping without official interference, and the defendant knew it, for it was going on under his own observation. He needed not to be told, for he saw. He had no right to assume that the inspector would refuse to him what he permitted to Beard, and he should have begun, as he could have done, to dump inshore. His successors, who took up his work where he left it, did so without difficulty or interference, and what they did he could have done,

The

and he was aware of the fact. Indeed, the prohibition by the shore inspector did not rest upon the absence of the north crib. That was never specified by any of the officials. Their action was founded upon the absence of cribs generally, and the alleged need of the north crib was a bare assumption by the defendant, without any foundation in fact. On the contrary, when enough of the outside crib to serve as protection was constructed, all complaint ceased. Beard dumped inshore, and also defendant's successors, and these facts were obvious to him before he abandoned the work. I am unable to see in the proof any justification for his abandonment of the contract. The judgment should be affirmed, with costs. All concur, except HAIGHT, J., not sitting. affirmed.

(163 Mass. 21)

WALCOTT v. O'CONNOR.

Judgment

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1895.)

PRACTICE-CLAIM OF JURY TRIAL-Waiver.

The docket showed that defendant duly filed a notice claiming a trial by jury, but the cause was placed on the "jury waived" list. Defendant's attorney searched for the notice, but, being unable to find it, concluded that his clerk had not filed it, and, without making a motion to transfer the case, proceeded to trial without a jury. After the trial, but before the findings of the court had been entered, the justice found the notice in the files, and called counsel's attention to it, and he then asked that the case be transferred to the jury list. Held, that the court properly refused to make the transfer.

Exceptions from superior court, Suffolk county; Daniel W. Bond, Judge.

Action by Joseph N. Walcott against Jeremiah O'Connor. Judgment was rendered in favor of plaintiff by the municipal court of the city of Boston. Defendant appealed to the superior court, and filed a notice claiming a jury trial. The case was by mistake put on the "jury waived" list, and was tried without a jury. From a finding for plaintiff, and a refusal to transfer the cause to the jury list, defendant excepts. Exceptions overruled.

Francis W. Adams, for plaintiff. James L. Powers, for defendant.

FIELD, C. J. The docket showed that the defendant duly claimed a trial by jury, but the clerk of the court, by mistake, put the case upon the "jury waived" list. The defendant's counsel, about a month before the case was reached for trial on the "jury waived" list, made "some search for the defendant's notice that he claimed a jury trial, without finding it, and believed thereafter that his clerk had not given the said notice." The notice was found among the papers at the time of the trial. The defendant made no motion to transfer the case to the list of cases for trial by a jury, but pro

ceeded to a trial of the case by the court without a jury. After the trial, and before the finding of the court "had been formally made and entered, the defendant's claim for a trial by jury was noticed by the justice with the files, and the attention of counsel was called to it, and thereupon the defendant asked the court to transfer the case to the jury list," which the court refused to do. To this refusal the defendant excepted. The finding of the court was for the plaintiff. The defendant, with his counsel, went to trial before the court held without a jury, without making any objection to such a trial. The counsel intimates that he was induced to do this because he believed that he had not given notice that he desired a trial by jury. An examination of the docket of the court would have shown that he had given such notice, and the notice was among the papers at the time of the trial. So far as the defendant's counsel, in proceeding without objection to trial before the court without a jury, acted under a mistake of fact, it was a mistake of a fact relating to his own conduct, which was induced, not by the other party to the suit, but by the clerk of the court, and it was apparently a mistake which a careful examination of the docket or of the papers on the case would have disclosed. Certainly, the court, in declining to grant the defendant's motion "so far as it was a matter of discretion," may have found that it was due to the carelessness of the defendant or his counsel that the mistake of putting the case on the "jury waived" list was not discovered. The defendant, through his counsel, having assented to a trial without a jury, ought not afterwards to avoid this by showing that his counsel made a mistake about a fact relating to his own conduct in the case which due diligence on his have part would corrected. Exceptions overruled.

(163 Mass. 5)

POWERS' ADM’R v. QUINCY & B. ST

RY. CO.

(Supreme Judicial Court of Massachusetts. Norfolk. Jan. 4, 1895.)

STREET RAILWAY DEATH OF CHILD ON TRACKQUESTION FOR JURY.

In an action against a street-railway company for the death of a child through the negligence of the company, the question of whether the mother exercised reasonable care over the child was for the jury.

Exceptions from superior court, Norfolk county; Caleb Blodgett, Judge.

Action by Edward Powers, administrator, against the Quincy & Boston Street-Railway Company, for the death of his intestate. Judgment for plaintiff, and defendant excepts. Overruled.

James E. Cotter and John W. McAnarney, for plaintiff. Walter I. Badger, for defend

ant.