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Appeal from special term, New York county; G. L. INGRAHAM, Judge. Charles Putzel sued Mathew W. Wilson, Mathew S. Wilson, and Minnie I. Wilson for services in negotiating a loan. Judgment for plaintiff by direction, and defendants appeal.

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.
Abram Kling, for appellants. William King Hall, for respondent.

DANIELS, J. The recovery was for the amount agreed to be paid to the plaintiff for his services in procuring a loan for the defendants for the sum of $35,000. He did procure parties who were willing to take the loan, and agreed to take it, on terms satisfactory to the defendants; but, on an examination of the title to their property, it was ascertained to be defective, and for that reason solely the loan was not made. The plaintiff, however, performed all the services which were to be rendered by him for which the stipulated compensation was to be paid, and the defendants failed to obtain the loan because of their inability to present the security which it was contemplated by the agreement should be given for the loan. He had accordingly earned the compensation which was to be paid to him, and a recovery of the amount could not be denied because the agreement subscribed by the defendants contained the stipulation that the amount to be paid the plaintiff should be deducted from the loan. That would have been done if the title of the defendants had been as satisfactory as the persons proposing to make the loan could have required or expected to receive. But it was not; and they accordingly, on their part, deprived the plaintiff of this power to deduct his compensation from the amount of money which was to be loaned, and they cannot rely upon their own inability to perform the contract, or their own default in so doing, to defeat the plaintiff's right to recover the compensation for the services performed by him in carrying out the intent as well as the terms of the agreement. The defendants, by their inability to make a good title, prevented the plaintiff from securing his compensation in the literal mode provided for by the agreement; and, where that may be the effect of the act or default of a party, he cannot insist upon it by way of defense against the claim of the other, who was not only ready and willing but in fact performed all that was required of him under the terms of the contract. It did not ap pear that the plaintiff was acting on behalf of the proposed lenders as well as the borrowers of the money. Besides that, it will often be necessary, where an agent applies to one party for a loan for the benefit of another, that the lenders may legally rely upon him to obtain for them a valid security for their money; and that can be done without rendering his right to compensation obnoxious to the rule that an agent cannot, without the knowledge of his employer, also act for the interest and benefit of another. As far as the plaintiff did act under the employment, it was contemplated that it should include one or more negotiations with other persons from whom the expected loan might be obtained; and acting in that manner would not deprive him of his right to compensation, under the principle that an agent ordinarily cannot act for or on account of different parties whose interests are adverse in the same transaction. Besides that, no defense of this description was set forth in the defendants' answer; and, without the answer relying upon it, evidence tending to establish such a defense, even if it had been given during the progress of the trial, would not be available to the defendants.

At the conclusion of the evidence both parties applied to the court for the direction of a verdict or judgment in his or their favor; and the court, considering that the plaintiff was entitled to recover, directed a verdict for the stipulated compensation in favor of the plaintiff. The evidence, as it was given, sustained that direction; and the judgment and order should be affirmed.

VAN BRUNT, P. J., and BRADY, J., concur.

Super. Ct. Buf.] NATIONAL TEMP. SOC. & PUB. HOUSE V. ANDERSON.

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NATIONAL TEMPERANCE SOCIETY & PUBLICATION HOUSE v. ANDERSON. (Superior Court of Buffalo, General Term. June 29, 1888.)

1. CORPORATIONS-ACTIONS BY-PLEADING-CORPORATE EXISTENCE.

A complaint, in an action by a corporation, which does not allege whether the plaintiff is a domestic or foreign corporation, or the state or country by or under whose laws it was created, as required by Code, § 1775, or any facts from which the court can determine to which class of corporations it belongs, is bad on de

murrer.

3. PLEADING COMPLAINT MONEY HAD And Received.

A complaint alleging that defendant received a certain sum of money on deposit, subject to plaintiff's order by check or draft; that plaintiff's draft therefor was returned unpaid after due demand; that afterwards the draft was forwarded, and made payable to one C., who presented the same for payment, whereupon defendant agreed to pay it provided certain persons would make affidavit as to the special deposit, which affidavits were made as requested, but defendant neglected and refused to pay the draft; and that said sum still remains due plaintiff for money so received, is good on general demurrer, as the action is not on the draft, but on a claim that money was deposited with defendant subject to plaintiff's order, and that defendant has neglected to pay the same after demand.

On demurrer.

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J.

The complaint in this case alleged, after the introductory averments, as follows: "Third, the plaintiff alleges, upon information and belief, that the defendant received the sum of sixty-six dollars and sixty cents on or about March 25, 1886, on deposit, which was deposited by this plaintiff's agents subject to plaintiff's order by check or draft at any time, and that the defendant, Albert Anderson, accepted said money in trust to be drawn upon. That in pursuance of such understanding and agreement, and being advised of such deposit, this plaintiff caused a draft (the following being a copy) to be executed and forwarded to defendant for demand and collection: $66.60. NEW YORK, March 25, 1886. Ten days after sight, pay to the order of the Nassau Bank sixty-six 60-100 dollars, value received, and charge the same to the account of National Temperance Society & Publication House. N. STEARNS, Pub. Agt., per S. KENY, Att'y. To A. Anderson, Prest. 16th Amendment Publishing Company, Coal and Iron Exchange, Washington St., Buffalo, N. Y.' That the said draft was returned unpaid after due demand for payment. That afterwards said draft was forwarded, and made payable to the order of W. H. Clark, of Buffaio, N. Y., who presented the same to said Anderson for payment at his place of business in said city; whereupon said Anderson agreed to pay the said draft, provided a Mr. W. H. K. Bartram and one Mary E. Tryon, of said city, would make an affidavit detailing the facts in reference to the special deposit of said sum of money to be drawn upon by this plaintiff as aforesaid. That then (as this plaintiff is advised and believes, and so charges the facts) the said affidavits were made as requested by said defendant, and he was thereupon called upon to pay said draft by the payee, Mr. W. H. Clark, but the said defendant has neglected to do so, and there remains due and unpaid, for money so had and received as aforesaid, from the defendant to the plaintiff, the sum of sixty-six dollars and sixty cents, with interest since April 4, 1886. Wherefore, and because of the foregoing, the plaintiff, the National Temperance Society & Publication House, demands judgment against the defendant, Albert Anderson, for the sum of sixty-six dollars and sixty cents, with interest since April 4, 1886." To which portion of the complaint the defendant interposed a general demurrer. William H. Clark, for plaintiff. S. Lockwood, for defendant.

TITUS, J. The complaint does not allege whether the plaintiff is a domestic or foreign corporation, or the state, country, or government by or under whose laws it was created, as required by section 1775 of the Code, or any facts from which the court can determine to which class of corporations the plaintiff bev.2N.Y.s.no.2-4

longs. In Bank v. Rogers, 1 N. Y. Supp. 757, (decided at this term of court,) it was held that the complaint must allege whether the plaintiff was a domestic or foreign corporation, unless the court can determine from the facts stated to which class of corporations it belongs. In this case no facts are stated which afford the court any means of determining. It is not alleged under the laws of what state or country the plaintiff is created. In the particulars referred to the complaint is defective, and the objection can be taken by demurrer. The other ground of demurrer we do not think is well taken. The action is not on the draft, but on a claim that money was deposited with the defendant subject to the plaintiff's order, and that the defendant has neglected to pay over the same after it has been demanded of him. For the reason first above stated the demurrer must be sustained, and judgment ordered for the defendant, with leave to the plaintiff to serve an amended complaint.

All concur.

(15 Daly, 6)

HUMPHREYS HOMEOPATHIC MED. Co. v. BELL et al. (Common Pleas of New York City and County, General Term. May 18, 1888.) 1. INJUNCTION-WHEN LIES-INFRINGing Method of PACKING MEDICINE.

Defendants' boxes of medicine, as prepared for market, bore a close and intentional resemblance to plaintiff's boxes externally, and in the arrangement and number of the bottles of ointment, medicator, pamphlet, and labels, calculated to mislead the public. Held, that plaintiff was entitled to an injunction restraining defendant from infringing on his original and peculiar method of preparing, wrapping, boxing, and packing his medicines.

2. SAME TO RESTRAIN USE OF OFFICIAL TITLE-MANAGER OF CORPORATION.

One who has acted simply as business manager of a medicine company, another having charge of the medical department, may be enjoined from advertising himself as "late manager" of such company.

Appeal from equity term.

This is an action brought by the Humphreys Homeopathic Medical Company against Beatson J. Bell et al. to restrain the latter from preparing and packing their medicines for market so as to resemble plaintiff's, and to restrain defendant Bell from advertising himself as late manager of plaintiff. Judgment for plaintiff. Defendants appeal.

Argued before LARREMORE, C. J., and ALLEN and BOOKSTAVER, JJ. Thornton, Earl & Kirnell, for appellants. B. F. Ryan, for respondent.

LARREMORE, C. J. The learned judge who tried this case at the equity term, in his opinion there rendered, has carefully considered both of the important points involved. These are: First, the question of the similarity between the plaintiff's and defendants' boxes of veterinary specifics, and the alleged imitation of plaintiff's medical preparations by the defendants; and, second, the matter of the defendant B. J. Bell's describing himself habitually, in his business advertisements, as the "late manager of Humphreys Specific Medicine Company.'

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With regard to the first of these subjects of controversy, we think that the cases cited by Judge DALY establish the general principle that, outside of the question of the infringement of a specific trade-mark, there is a proprietary right which may be asserted in a court, and protected from violation by an injunction, if necessary, in any original and peculiar method or form of preparing, wrapping, boxing, and packing articles of merchandise, which, as matter of fact, has been invented and first employed by the plaintiff, and has not been in common use by the public. In the case of Woollam v. Ratcliff, 1 Hem. & M. 259, cited by Judge DALY, it was held that, in regard to the packing of merchandise in "a bundle similar to that of complainant's, the wrong does not lie in the resemblance in any one particular, but in the accumulation of resemblances." The grounds for an injunction in such a case are, as in trade-mark cases, twofold, to-wit: First, that of protection to the

plaintiff in his exclusive right; and, second, that of the protection of the public from imposition by the palming off of goods different from or inferior to those usually furnished by the plaintiff. The learned judge at special term, after a careful review of the evidence, and an actual inspection of the cases of medicine, and the contents thereof, furnished by the plaintiff and the defendants, respectively, has reached the conclusion that one is a close and intentional imitation of the other; and that, by reason of the similarity between the boxes externally, "the arrangement and number of the bottles of ointment, medicator, pamphlet, and labels on the bottles, and inside the cover of the box," there is danger that the public will be misled, and that persons intending to purchase the plaintiff's preparations may be induced to purchase the defendants' instead. We see no reason to question or disturb this finding of fact. It is one which, in the nature of things, must depend largely on an ocular examination of the original article and its alleged infringement, and the printed evidence in the case is sufficient and ample to sustain the judge's finding.

We also concur with the learned judge's disposition of the second question above referred to. A large part of the evidence offered by the defendants tended to show that the defendant Beatson J. Bell had actually been the manager of the plaintiff corporation, or its predecessor of a similar name, and that, therefore, he was justified in describing himself as such manager in his subsequent business operations. But such evidence, even if taken as true, would not establish anything further than that said defendant had been the business manager of such corporation. The testimony shows that said defendant while in the employ of plaintiff had to do with book-keeping, general management of finances, engagement and discharge and direction of traveling salesmen and other employes, and attending to the corporation's advertising. The business and financial department of such a corporation as the plaintiff, while, of course, important, is necessarily not its most essential branch; it is rather an adjunct to the main purpose of its formation. It does not appear that said defendant had anything to do with the management of the laboratory, or the preparation of any of the remedies or medicine prepared by the Humphreys Homeopathic Medicine Company. For this reason it is not a truthful statement for Mr. Bell to describe himself as "late manager of the Humphreys Specific Medicine Company." As Judge DALY remarks in his opinion: “But with that branch of the business on which alone the reputation of the company depended, the compounding of medicines and putting up of specifics, he had no concern whatever, as Doctor Humphreys, the president of the company and the originator of the system of specifics, had exclusive charge of it." A decision of Judge DUGRO at the special term of the superior court (Colton v. Deane, Daily Reg. Feb. 14, 1887) is in point in the present discussion. That was an action brought for an injunction against a woman who described herself, in business advertisements, as, "Colton's late assistant." It seems that the duties actually performed by said woman were not the assisting of the dentists in extracting teeth, but only in the administration of gas under instructions from the operator; and the plaintiff therein testified that this service could be performed by any child after an experience of a couple of weeks. The learned judge remarked: "Colton's business consisted in extracting teeth with the aid of gas. The extraction of teeth was the main work. This required a dentist, and for this work he had several dentists in his employ. The work of Miss Wolfsbruck was such as required very slight experience, for it seems the menial servant sometimes did it. Colton's business establishment was well known throughout the community as a place where teeth would be painlessly extracted. And, by holding herself forth to the public as Colton's late assistant,' Miss Wolfsbruck was impliedly claiming that she had assisted at said establishment in the extraction of teeth, while such was not in fact her duty in said place." This case in the superior court was closely analogous

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in principle to the case at bar, and I concur with the views of the learned judge there expressed. There, as in the present case, a permanent injunction was granted against the use of the false designation or description. The judgment appealed from should be affirmed, with costs.

ALLEN and BOOKSTAVER, JJ., concur.

(14 Daly, 510)

In re BULL.

(Common Pleas of New York City and County, General Term. May 18, 1888.) 1. WILLS-CAPACITY TO MAKE-SUBMISSION TO JURY.

The validity of a will being contested upon the ground of want of mental capacity in the testator, it is proper to submit to the jury, in addition to the issue of sanity, the question whether the testator, at the time of the execution of the paper proposed as his will, knew the contents thereof, and understood what disposition was therein made of his property.'

2. SAME-CAPACITY TO MAKE-CONDITION BEFORE AND AFTER EXECUTION.

In such case an instruction that "the only point of time to be looked at by the jury at which the capacity of the testator is to be tested, is that when the will was executed," while abstractly correct should not be given, because misleading, as his capacity before and after the time of the execution of the will would be material to determine what such capacity was at the time of such execution.1

8. TRIAL-OBJECTIONS TO EVIDENCE-WAIVER BY AGREEMENT.

Where parties agreed in the beginning of a trial that they would not object to evidence taken under a commission, except as noted on the return, and one party has himself, under such agreement, introduced illegal testimony, he will not be allowed, on appeal, to object to the incompetency of the testimony of the adverse party admitted under said agreement.

4. SAME-INSTRUCTIONS-MATTERS PREVIOUSLY CHARGED.

The court having fully instructed the jury as to the law upon a particular question, it is not error to refuse an instruction upon the same question, although correctly propounding the law.

5. APPEAL-REVIEW-SUFFICIENCY OF EVIDENCE.

The evidence upon an issue being conflicting, the court will not set aside the verdict on the ground that it is contrary to the evidence.

Appeal from trial term.

Argued before LARREMORE, C. J., and BOOKSTAVER and ALLEN, JJ.
Weeks & Forster, for appellants. Hoppin & Talbot, for respondent.

LARREMORE, C. J. This proceeding was begun in the surrogate's court of the county of New York on the petition of Edward Kendrick, who was named as executor in a paper purporting to be the last will and testament of Henry C. Bull, deceased, to have said paper duly admitted to probate as such will. Objections to said probate were filed by some of the next of kin of said deceased, and the issues thereupon arising were transmitted to this court, under the statute in such case made and provided, for trial at a trial term thereof. From the finding of the jury upon such trial, and an order denying the motion for a new trial, this appeal is taken. Although the record is very voluminous, the issues themselves are simple. The only questions which the trial judge submitted to the jury were the following: First, at the time of the execution of the paper propounded as the will of Henry C. Bull, was he of sound mind, memory, and understanding, and competent to make a will? Second, at the time of the execution of the said paper, did Henry C. Bull know the contents thereof, and understand what disposition was made of his property? The jury found against the proponents, and for the contestants, upon both of these questions, and we see no reason why the verdict should be disturbed. It would be difficult to find a clearer illustration than is afforded by the present case of the familiar rule that an appellate court will not inter

1See note at end of case.

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