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defence, because his answer did not set it up, but only contained a general denial of plaintiff's allegations, and of the validity of the policy.
Bank of British North America v. HOOPER AND OTHERS.
Principal and Agent — Bill of Exchange. A negotiable note or bill of exchange, signed by an agent in his own name, does not bind the principal, though made for his benefit.
A., by authority from B., drew bills in his own name, containing a direction to the drawee “ to charge the same to account of B.," and payable to C., who indorsed them, and, in consideration of a commission paid him by B., negotiated them and transmitted the proceeds to A., who applied the same to B.'s use. Held, that a bank, which discounted the bills, could not sue B., or prove against his estate in insolvency, either on the drafts or for money loaned.
LYON v. Williams.
Principal and Agent — Signature to bind Principal. On a written receipt for goods, delivered at a railroad station in Boston," which” (by the terms of the receipt) “the several railroad companies between Boston and Zanesville, agree to transport over their lines, via Albany, Buffalo, Cleveland and Columbus, on the terms and conditions mentioned in their respective published tariffs, which are hereby made part of this contract, each delivering to the next connecting road, but assuming no responsibility or control of property beyond its own line, other than prompt delivery to the next succeeding line," and signed “G. Williams, jr., for the corporations," Williams cannot be charged for a loss of the goods between Boston and Zanes
EASTERN RAILROAD CORPORATION v. BENEDICT.
Principal and Agent — Parties to Actions. On a written order, made for the benefit of the Eastern Railroad Corporation, to deliver property to “ Mr. D. A. Neale, President of the Eastern Railroad Company," and accepted by the person on whom it is drawn, the corporation may sue in their own names.
Vose v. MORTON.
Bill of Lading - Primage and Average Accustomed. Under a bill of lading on certain iron rails shipped from Glasgow to New York, at a certain freight per ton," with primage and average accustomed.” Held, that accustomed qualified primage as well as average, and that evidence was admissible to show a universal and well understood custom of the trade to pay no primage.
BAKER V. HUCKINS.
Charter - Liability of General Owners. General owners of a vessel let her to the master for the season for freighting and fishing, and gave him the entire management and control, but agreed to keep the vessel in repair, and to receive a proportion of her earnings as compensation. Held, they were not liable for stores furnished for the vessel upon the order of the master.
SHEPHERD V. NAYLOR.
Bill of Lading - Weight Unknown. Bill of lading for a specified number of tons of iron, 6 'weight unknown," binds the ship owners (in the absence of fraud) to deliver only so much as they actually receive on board.
CATSKILL BANK v. HOOPER AND OTHERS.
Insolvent Laws — Proof against Resident Partner of a Foreign House
A debt due from a partnership established in another state, cannot be proved under the insolvent laws of this commonwealth, against the estate of one of the partners who resides here, in competition with his separate creditors.
A creditor, who recovers judgment in New York against two persons as partners doing business there, one of whom resides in this state, which judgment is prima facie evidence,
by the statutes of New York, against such absent defendant, cannot afterwards prove on the original consideration against the estate of such absent defendant, in competition with his separate creditors, in proceedings commenced under the insolvent laws of this commonwealth before the suit was brought in New York; and it is immaterial, in this respect, whether the two defendants were actually partners or not, the creditor having treated them as such by taking judgment against both of them in New York.
KIMBALL v. RowLAND.
Landlord and Tenant — Notice to Quit - Subsequent Receipt of Rent due
A demand of payment of rent due on a lease at will is not necessary, in order to entitle the landlord to give the tenant fourteen days' notice to quit.
The landlord's right to commence, on the expiration of a notice to quit for non-payment of rent, the process given by the Revised Statutes, c. 104, to recover possession of the premises leased at will, is not barred by payment of said rent on the day after the giving of such notice.
SHUMWAY v. COLLINS.
Landlord and Tenant
Use and Occupation.
Eviction of a tenant by his landlord from part of the premises demised by a written lease, is a bar to any claim for rent under the lease.
If the tenant, after such eviction, continue to occupy the residue of the premises, he will be liable for use and occu. pation of the part so occupied.
The omission to pay for such use and occupation, does not render the tenant liable to the process given by Revised Statutes, c. 104, in the case of a neglect or refusal to pay rent.
BADGER v. HOLMES.
Tenant in Common — Use and Occupation.
One tenant in common cannot maintain an action for use and occupation against the lessee of his co-tenant, the
plaintiff not having objected to the occupancy, nor claimed the right to occupy himself, and the tenant not having attorned to him.
ATLANTIC MUTUAL FIRE INSURANCE COMPANY 1. Concklin.
Insurance by Foreign Companies — Returns to Secretary of Commonwealth.
Revised Statutes, c. 37, § 41, requiring agents of insurance companies to make return to the secretary of the commonwealth of the amount of their capital and how invested, &c., does not apply to mutual companies.
Nor does the provision of Statute 1847, c. 273, requiring such agents to make return of the amount of capital or reserve, apply to such mutual companies as are not required by law to have any reserve.
The obligation to make return every half year of the amount of insurance effected during the then last half year, does not require the first return to be made until the end of the half year after the company have actually begun to issue policies, although they may have been incorporated, and authorized to act at an earlier period.
HALE v. MECHANICS' MUTUAL FIRE INSURANCE COMPANY.
Insurance Covenant against Subsequent Insurance. Under a by-law of a mutual fire insurance company, providing that insurance subsequently obtained, without the written consent of the president, shall annul the policy; subsequent insurance, obtained by the owner of property insured, with the mere verbal assent of the president, avoids a policy obtained by him, though payable in case of loss to another person, and by such person assigned to a third.
KENNEBEC COMPANY V. AUGUSTA INSURANCE AND BANKING
Insurance — Subsequent Alteration of Contract by Parol — Power of One
Defendants, a company incorporated by the laws of another state, made to plaintiffs an open policy on “property on board vessel or vessels,” &c., “as per indorsements to be made.” This policy was effected through, and countersigned by defendants' agents in Boston.
Afterwards the agents agreed with plaintiffs to insure under this policy, certain cotton at and from New Orleans to Boston, and to take the risk of fire on shore at New Orleans. Some of the cotton was burnt at New Orleans without having been shipped.
After the news reached Boston, the agents made the indorsement of the risk on the policy, but added a qualification which had not been agreed upon, and would have prevented a recovery.
Held, that the general agents of defendants had authority, in absence of any proof of limitation to their powers, to alter the terms of the contract of insurance, so as to include risks to the property while on shore.
And the agents being partners, that one could make the alteration : that the alteration was duly made and evidenced, and bound the defendants to pay the loss.
FULLER v. RUSSELL.
Mortgage - Foreclosure and Redemption. Under Rev. Stat. c. 107, 913, the mortgagor may redeem, by bringing his bill on the anniversary of the day on which, three years before, the mortgagee entered to foreclose.
PALMER v. Fowley.
Mortgage — Foreclosure of Second Mortgage while First Mortgagee is
A person holding a second mortgage may enter upon the land for breach of condition and foreclose, although the holder of the first mortgage is in possession for the like purpose.
GILBERT v. THOMPSON.
Chattel - Conditional Sale of.
One who buys a chattel and takes a delivery thereof, on condition that the title shall not vest in him until payment