fect, as evidence against him, as if signed | 30th. September 2d, before any of the by him.-Id. Res Adjudicata. See Eminent Domain, 25; Highways, 3; Judgment, 4-7; Landlord and Tenant, 17. Rescission. Of contracts, see Contracts, 5. SALE. By receiver, see Receivers, 6. land, see Vendor and Vendee. Sunday sales, see Intoxicating Liquors. What constitutes. 1. Defendant, engaged in business in New York city, addressed to plaintiff, also of New York, the following order: "I will take 10 M. blue Welsh fire-brick, at $24 per thousand, upon the opening of navigation on the Hudson. Let me know if my order is accepted:" to which plaintiff replied, promising to execute the "order for 10,000 blue Welsh fire-brick, at $24 per thousand, on dock at New York city, upon opening of navigation." Held that, as the goods were to arrive from abroad, the reference to delivery on dock did not create a new proposal, and the contract was binding upon defendant; especially as he, without dissenting to any of the terms, responded to plaintiff's reply, answering an inquiry as to the time navigation opened on the R. canal.-Brown v. Norton, (Sup.) 869. Delivery. bottles had been received, defendant telegraphed, refusing to receive any bottles delivered after August 30th not inspected at plaintiffs' expense, and in such quantities as defendant should thereafter order. The last of the bottles arrived at the place of consignment September 18th, the delay being largely due to the interference of defendant in the attempt to prevent their delivery. Held to constitute a complete delivery as soon as possible after the receipt of the order of August 28th.—Id.* 4. Plaintiffs agreed to sell to defendant 1,000 dozen handkerchiefs, but failed to deliver the entire lot, owing to a mistake as to the number on hand. Defendant refused to pay until delivery of the whole lot, and plaintiffs then promised to complete the delivery in two weeks, but this was never done. Held, that they could not recover for those delivered, though there was no offer to return.-Levene v. Rabitte, (City Ct. N. Y.) 389. Warranty. 5. Where plaintiff sues for a breach of warranty that certain onion seed sold was "Yellow Danvers," and defendant relies on a notice on the packages and bill-heads, the warranty, a charge that, if this notice which defendant saw, to relieve him from formed part of the contract, plaintiff could not recover, is proper.-Coates v. Harvey, (Super. Ct. Buf.) 5. trade in warranting seeds is not competent 6. Testimony as to the custom of the to change either the contract of the parties or settled rules of law. -Id. waived by the purchaser's retaining and using the coal without notice to the seller, and acquiescence by him.-Spedding v. Townsend, (City Ct. N. Y.) 657.* 7. A breach of warranty of coal is not 8. Where goods are sold by sample with 2. Under a contract for the manufacture and delivery of a specified number of bot-out any representation as to their conditles, in quantities as called for, within one year, to be paid for at a specified time after each shipment, plaintiff, having delivered all that were called for, is entitled to recover, though the last shipment, made at the end of the year, does not complete the number specified in the contract.Whitney v. Hop Bitters Manuf'g Co., (Sup.) 438. 3. During the year defendant ordered only a small number of bottles, and on August 26th, the day after the expiration of the year, plaintiffs notified it that the remainder of the bottles were ready for delivery. In the evening of August 28th defendant telegraphed: "You may deliver remainder of bottles here on or before August 30th, on terms of contract of August 25, 1883." Plaintiffs at once began to procure the cars necessary, 27 in number, completing the shipment on August tion, and are accepted and retained by the purchaser, the facts that they are not properly packed, and that the brands on the cases have been effaced, constitute no defense to an action for the price; the defects complained of being patent on first inspection.-Bolles v. Valentine & Co., (C. P. N. Y.) 710. Performance of contract. 9. Under a contract for the manufacture and delivery by plaintiffs of a specified number of bottles, it is immaterial that a portion of the bottles shipped were not manufactured at plaintiffs' own works, but at those of another firm; they being manufactured for plaintiffs expressly for this contract, in moulds furnished by them, and under the inspection of one of their managers.-Whitney v. Hop Bitters Man uf'g Co., (Sup.) 438. ies be several.-Nightengale v. Eiseman, (Sup.) 779. Rights and remedies-Rescission. 10. The commencement of an action for goods sold by one who believes that de- 17. Where the purchaser of goods is givfendant perpetrated a fraud in the pur- en option to pay in 30 days, or give four chase, does not affirm the sale so as to pre-months' note, and he fails to make payvent recovery of the goods for the fraud, ment or give note, action may be brought where it does not appear that the facts for the price at the expiration of the 30 were then known to plaintiff, and the ac- days.-Matthews v. McGrath, (City Ct. N. tion was abandoned before judgment.-Y.) 659. Underhill v. Ramsey, (Sup.) 451.* Action for price. 11. Defendants directed plaintiffs to make for them 500 pounds of "No. 260" yarn, no stipulation as to quality being made. On its receipt defendants opened and paid for it, and sent the greater part to a customer, who, alleging it to be unmerchantable, demanded and received a repayment of part of his money. Before the receipt of the goods defendants ordered 1,000 pounds more, but, before it was entire ly manufactured, cabled plaintiffs not to ship until further orders. After a delay of five weeks. plaintiffs shipped, but defendants refused to receive or examine. the goods, and they were reshipped. Held, that there was no evidence of warranty, express or implied, and that, not having returned the first shipment nor examined the second, defendants could not allege the inferiority of either.-Wallace v. Blake, (City Ct. N. Y.) 403. 12. Proof of the inferiority of the first goods would be irrelevant as to the quality of the second shipment.-Id. 13. Defendants cannot recover the amount paid their customer for the inferiority of the first shipment, as, in the absence of warranty, it was their duty to return the goods or pay the full price. Id. 18. In an action for the price of goods, the defense being payment, it is error to exclude defendant's evidence to show that at the time of the sale plaintiff was the manager of a company, and that the transaction was with the company.-Stark v. McClosky, (City Ct. N. Y.) 737. 19. Under a contract for the sale of 10,000 blue Welsh fire-brick, a tender of 9,986 of such brick, of which 100 are broken. does not render the purchaser, who refuses to accept, liable for the price.Brown v. Norton. (Sup.) 869. 20. Defendant contracted with plaintiffs for the purchase of certain calf-skins, which plaintiffs guarantied should lose not more than 6 per cent. of their invoice weight. Defendant refused to receive them, and plaintiffs sued for the difference between the contract price and the actual proceeds of the skins, which they had sold at auction. It was proved that the skins had shrunk more than 6 per cent., and the court charged that if the shrinkage below the invoice was greater, at the time of delivery, than the limits allowed by the contracts, defendant had the right to reject the skins. The jury found for plaintiffs. Held, that defendant was entitled to a new trial.-Goetze v. Dunphy, (Sup.) 854. Conditional sales. 14. In an action for the price of furni 21. Defendant sold and delivered to ture manufactured, where defendants ad- plaintiff certain goods, the property to remit the sale and delivery, except as to cer- main in defendant till the price was paid. tain cabinets, which they allege were not Plaintiff, however, refused to make the according to the contract, they cannot, un- first payment till he had received a bill of der a general allegation of damages, prove, sale, asserting that he had made an absoas a counter-claim, a loss of profits on the lute purchase, whereupon defendant decabinets.-Stevens v. Sonto, (City Ct. N.livered one to him. Held, that whether Y.) 484. the sale was absolute or conditional was a question for the jury.-Kraemer v. Sieburg, (City Ct. N. Y) 393. SET-OFF AND COUNTER- When allowed, see Sale, 14, 15. When allowable ranty. Breach of war SHIPPING. See, also, Demurrage. Charter-party. 1. Plaintiffs chartered a steam-boat to defendant, who was to furnish the water, and 1. In an action on a note for the differ- agreed to run the boat according to a cerence due plaintiff on an exchange of tain time-table. Defendant promised to horses, damage for breach of plaintiff's fill the tank in ten minutes from his own warranty of his horse is a proper counter-water supply by a two-inch pipe. Plainclaim under Code Civil Proc. N. Y§ 501, subd. 1, providing that a counter-claim must be a cause of action "arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." Maders v. Lawrence, (Sup.) 159.*. 2. Breach of a warranty given in the exchange of horses may be counter-claimed in an action on a note for the boot, though as a cause of action it is barred.-Id. Judgment. 3. Where a client, before the rendition of a judgment in his favor for costs, assigns all his right and interest therein to his attorney, the adverse party cannot setoff his own judgment in the action.Strauss v. Seamon, (City Ct. N. Y.) 398. Pleading. tiff then made the boat pipes two and one half inches. The pressure of defendant's water supply not being as great as he rep resented, the boat was so delayed in tak ing on water that she could not keep to her time-table. Held, that the delay was caused by defendant's fault, and he was not enti tled to rescind the contract. - Woolsey v. Finke, (Sup.) 112. 2. Use by the owner of a steam-boat which had been chartered for a certain time, after abandonment of the contract by the hirer, does not preclude the owner's recovery for the breach; such use being proper to prevent accumulation of damages.-Id. SPECIFIC PERFORMANCE. When enforced. 1. Plaintiff's title was derived through 4. A counter-claim cannot be pleaded by devise to executors and trustees, with a mere allegation following a general de- power to sell either publicly or privately. nial that defendant "also sets up a counter-All the estate was bequeathed in trust to be claim against the plaintiff for the sum of," etc.-Fox v. Turner, (Sup.) 164. SHERIFFS AND CONSTA BLES. divided among testator's children and their heirs, with the clause, "and if either of my daughters shall die without lawful issue, or leaving issue which shall not attain the age of 21 years, and without issue," then to be divided among his other children. The tes Conclusiveness of recital in bond, see Re- tator died in 1817, and in 1829, all the plevin, 1. Liability for costs, see Costs, 3. Liability-Debt of deputy. 1. A sheriff is liable for a debt contracted by his deputy in the care of cattle levied on, where the deputy in procuring such care assumed to act for the sheriff, and the latter, when asked to pay the debt, did not repudiate it, but promised to pay it later. -Rice v. Penfield, (Sup.) 641. Failure to return process. 2. Where affidavits on a motion to compel a sheriff to make return on an execution allege facts and circumstances which, if uncontradicted, would justify a holding that the sheriff received the execution from his predecessor.--among them, statements alleged to have been made by the sheriff to plaintiffs' attorney,-the motion will not be denied on a mere denial by the sheriff of the fact in issue, without any attempt to explain such statements.-Holmes v. Rogers. (Sup.) 501. daughters having lawful issue, minors, the trustees, through a third person, conveyed one-third of the land to each daughter and her husband, there being no sale, but the transaction appearing from the deeds to be a shift to free the land of the trust, and bar the contingent remainder. It did not appear but that one of the daughters might have had issue dying under the age of 21 leaving issue to take as remainder-man. Held that, the title being open to question, performance should not be enforced.-Mc Pherson v. Smith, (Sup.) 60.* Performance by complainant. 2. The contract provided that the vendee. as a condition of receiving the deed, should pay certain mortgages on the land, and save the vendor harmless. Subsequently it was agreed that the vendee should pay a portion of the mortgage debts, and that the remainder should be paid by a new mortgage on the land given by the vendor. Held, that the vendee must pay the mort gage before he is entitled to a decree requiring an heir of the vendor to con- 3. Refusal of the heir, who had pur- 1869.. CODE CIVIL PROCEDURE. Ch. 14, tit. 1, § 1704.. Ch. 17, tit. 11, §§ 2419, 2420, 2422, 2423-2425, 2429.. Ch. 18, tit. 3, art. 2, §§ 2647-2653. 4. In an action by a vendee to compel -Id. STATUTES. See, also, Constitutional Law. Enactment. A bill sent to the governor on February $194. 440 (Old Code, §§ 135, 137) $521. .606, 607 .526, 527, 663 222 824 619 257 171 $$ 450, 452 .44, 234, 562, 823 $ 473. 191, 192 § 481 .30, 679 $488, subsec. 2.. 169 171 $$ 500-502, 509. 603, 604, 610.. .391-393 618-620 |