MADISON v. BROWER.

(Supreme Court, Appellate Division, First Department. March 20, 1903.)

1. TEMPORARY INJUNCTION DISMISSAL OF ACTION DEFENDANT'S COSTS RECOVERY.

In an action for the recovery of certain bonds, a temporary injunction was granted, to be continued on condition plaintiff paid over a certain sum to defendant within a specified time. Plaintiff did not make the payment within the time, but did so subsequently, and the bonds were turned over to him. Plaintiff moved to discontinue, but failed to pay the taxable costs as ordered. The case was then discontinued, on defendant's motion, for lack of prosecution. Held, that defendant was entitled to recover expenses incurred in getting rid of the injunction, as the judgment of dismissal was a final determination that plaintiff was not entitled thereto.

Appeal from Special Term, New York County.

Action by Winfield S. Madison against Charles De Hart Brower. From an order denying a motion for an assessment of damages sustained by reason of the granting of a temporary injunction, defendant appeals. Reversed.

See 76 N. Y. Supp. 1019.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Charles De Hart Brower, for appellant.
Henry B. Twombly, for respondent.

MCLAUGHLIN, J. As collateral security for the payment of a loan, the plaintiff delivered to the defendant certain bonds, which he refused to return after the amount of the loan and interest thereon had been offered to him. Thereupon the plaintiff brought this action. to obtain possession of the bonds, and procured a temporary injunction pending the return of an order to show cause why the same should not be continued during the pendency of the action. Upon the return of the order to show cause, the injunction was continued on condition that within five days the plaintiff pay to the defendant $500, with interest, and that, if he failed to make such payment within that time, then the motion should be denied and the injunction vacated. Such payment was not made within the time provided, but, instead, the plaintiff appealed from the order, and the same was affirmed. Thereafter the plaintiff paid to the defendant a specified sum, and received the bonds in question. Subsequent to the plaintiff's receiving the bonds, the case appeared upon the calendar for trial, when a motion was made by the plaintiff to discontinue the same, which was granted upon the payment of the taxable costs, which the plaintiff neglected and refused to pay, and thereafter defendant moved to discontinue the action for lack of prosecution. The motion was granted, and then defendant moved for an order to ascertain the damages sustained by reason of the granting of the injunction. The motion was denied, and it is from this order that the present appeal is taken.

and 114 New York State Reporter

The judgment dismissing the complaint was a final determination that the plaintiff was not entitled to the injunction. De Berard v. Prial, 34 App. Div. 502, 54 N. Y. Supp. 534. And therefore the defendant is entitled to recover whatever disbursements were reasonably made by him in getting rid of it. Hovey v. Rubber Tip Pencil Co., 50 N. Y. 335; Rose v. Post, 56 N. Y. 603. This would include even the expense of a trial, if that were necessary. Tyng v. American Surety Co., 69 App. Div. 137, 74 N. Y. Supp. 502. Here a trial does not seem to have been necessary, inasmuch as the efforts of the defendant in opposing the motion to continue the injunction during the pendency of the action were made successful by the plaintiff's failure to make the payment provided in that order. The motion was for an order directing a reference to ascertain what the expenses were. The undertaking given provided that the expenses might be determined in this way, and we think a reference was therefore proper for that purpose.

It is sought to sustain the order upon the ground that the defendant did not incur any damage in getting rid of the injunction. Whether this be so, or not, can only be determined upon an investigation; but whatever expenses, if any, were reasonably incurred by him, either in opposing the continuance of the injunction, or in sustaining the order then made, from which an appeal was taken, he is entitled to recover.

The order appealed from, therefore, must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

FLOWER CITY PLANT FOOD CO. v. ROBERTS.

(Supreme Court, Appellate Division, Third Department. March 11, 1903.) 1. SALES-WRITTEN CONTRACT-CONSTRUCTION-AUTHORITY OF AGENT.

Where defendant signed a written contract for the purchase of goods plainly reciting, "Positively no goods on consignment," and that the terms were "120 days, less 5 per cent. off cash 10 days," and that the sellers' agent was not allowed to vary from the printed terms of the contract, he was not entitled to plead, as a defense to an action for the price, an agreement, written by the agent on the back of the copy of the order given to defendant, that if at the expiration of four months defendant had not disposed of the goods, plaintiff agreed to take back or sell the same.

2. SAME-REVERSAL.

Where, in an action for the price of goods sold, defendant pleaded that the goods were sold on consignment, and that he had sold goods under the consignment to the value of $1.49, but made no tender of judgment for that amount, a judgment in favor of defendant was erro

neous

Appeal from Warren County Court.

Action by the Flower City Plant Food Company against George Roberts. From a justice's judgment in favor of defendant, affirmed by the county court, plaintiff appeals. Reversed.

The plaintiff is a domestic corporation, doing business in Rochester, N. Y. The defendant is in the business of buying and selling hay, straw, flour, feed, and grain, in Glens Falls, N. Y. On or about November 12, 1901, at the so

licitation of the plaintiff's agent, Baker, the defendant signed and delivered a written order for certain merchandise, of which the following is a copy:

"Terms: 120 days, less 5 per cent. off cash 10 days.

"I agree that this order shall not be subject to countermand.

"Our agents are not allowed to vary from printed terms of this contract.

"Purchaser: George Roberts.

"I guarantee this order to be sold according to contract.

"S. R. Baker, Agent. "Flower City Plant Food Co."

At the time he signed such paper the agent made a copy of it, except that he did not sign the defendant's name opposite the word "Purchaser." On the back of each was indorsed as follows:

"1 doz. 8 oz. Plant Food.

66

66

"With the usual printed matter and freight to Glens Falls."

On the back of the copy so made by the agent was then indorsed by him the further statement, viz.:

"Further, that at the expiration of 4 months, if Mr. Roberts has not disposed of the bill, we will take back or sell the same, so that he has no risk or cost. "Flower City Plant Food Co.,

"S. R. Baker."

At

The order signed by the defendant was thereupon delivered by him to the agent, Baker, who subsequently sent it to the plaintiff, and the copy so made by Baker was left with the defendant. The plaintiff promptly shipped to the defendant the merchandise so ordered by him, and specified therein. The defendant received the same, and subsequently sold $1.49 worth thereof. the expiration of the 120 days payment for the bill was demanded by plaintiff, and refused by defendant on the ground that it was not yet due. The plaintiff did not know that the indorsement last above stated was upon the copy left with defendant, until it learned the same from defendant after the demand for payment had been made. This action was brought in a justice's court for the purchase price of the goods so ordered and delivered. That court rendered a judgment for the defendant. On appeal by plaintiff to the county court such judgment was affirmed, and from such judgment of affirmance this appeal is taken.

and 114 New York State Reporter

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and LYON, JJ.

Daniel J. Finn, for appellant.

T. W. McArthur, for respondent.

PARKER, P. J. The defendant declines to pay for these goods on the ground that they were not delivered and received under a contract of purchase and sale, but under what his counsel, in his points upon this appeal, terms a "conditional sale, or, rather, a consignment"; and to sustain that theory he insists that the statement indorsed on the back of the copy left with him by the agent was a part of the contract which he made with the plaintiff. The paper which he signed begins with the following statement: "Positively no goods on consignment." A short distance below are printed the terms of payment and the agreement that this order shall not be subject to countermand. Immediately over the place where he was required to sign, and so that it was in plain view, and necessarily became a part of the contract, was printed this statement: "Our agents are not allowed to vary from printed terms of this contract." Immediately under the defendant's signature was a printed statement for the agent to sign, and which he did sign in this case, viz.: "I guarantee this order to be sold according to contract." There was, therefore, over the signature of the defendant, a complete contract that, if the plaintiff would send him the goods therein named, he would pay the prices therein stated at the expiration of 120 days, less 5 per cent. if paid in 10 days. There was also his further agreement that he should not be at liberty to countermand the order when once delivered to the agent, and also, in substance, that the agent had no authority to make any other or different terms, and particularly he had none to let him have any goods on consignment. Such was the contract signed by the defendant, and such was the only one which he delivered to the agent, and under which the plaintiff acted when it shipped the goods. The indorsement on the copy left with the defendant, if operative, is a clear nullification of the contract so signed. Instead of being a purchase and sale upon the terms therein specified, it is a mere consignment of the goods to the defendant, to be sold for the plaintiff. At least, such is the clear effect of it; and I am at a loss to understand upon what theory it can be claimed to be a part of the contract with the plaintiff. Čertainly, in the face of the provisions in the contract which the defendant signed, he had no right to assume that Baker acted for the plaintiff in thus varying the terms of such contract. He had direct notice that Baker's authority to act for the plaintiff was limited to the terms printed in the order which he was asked to sign. If he was not willing to contract with the plaintiff upon those terms, he could not contract with it at all through Baker; and when he signed, and permitted Baker to send to the plaintiff, that printed order, he must be deemed to have contracted with the plaintiff to that extent, and no more. Whatever was his purpose in signing such a contract with the plaintiff, and then receiving from Baker an entirely different

one, it is not important to determine. But it is clear that he had no right to consider the paper that he received from Baker as binding upon the plaintiff, or as being any part of the contract he had made. with it; and, in my opinion, as matter of law, he cannot be allowed to plead that paper as a defense to the contract which he in fact did make. He was not deceived by the agent. There is no proof that any representation whatever was made to him, and, indeed, in the face of the writing he signed, no representation whatever could have deceived him. The paper which he did sign was not accompanied by any such modifying agreement, and by it the plaintiff evidently was the party deceived. The defendant does not even claim that he supposed the modifying contract was indorsed on the one he signed. He seems to have made a clear contract with the plaintiff to purchase the goods in question at the prices and upon the terms therein stated; and the collateral agreement made with Baker, but not with the plaintiff, is insufficient to change it. The plaintiff should have recovered upon that contract, and therefore the judgment for the defendant should be reversed.

Moreover, concede that the indorsement made by Baker was binding upon the plaintiff, on the defendant's own claim he was liable to the plaintiff for the sum of $1.49, being the value of such of the goods received as he had sold within the four months. That amount, under the terms of the contract, as he claims it to have been, was due and owing to plaintiff. This judgment is a bar to its ever recovering that amount. Evidently it is erroneous in that respect, and for that further reason it must be reversed. It is said that defendant has always been ready to pay that amount. If so, he should have offered upon the trial that judgment go against him for that amount. We cannot sustain a judgment against plaintiff that clearly should have been in its favor.

The judgment of the justice and of the county court must be reversed, with costs in both courts and of this appeal. All concur.

GERSTNER v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. March 10, 1903.) 1. SERVANT-INJURY-ASSUMPTION OF RISK.

Plaintiff was a yard brakeman, and part of his duty was to board defective cars as they were sent from the main track onto the repair track, and bring them to a stop. These defective cars were taken out of the train by the inspectors, who examined the trains as they came into the yards, and marked the defective cars with signs to indicate the defect. In attempting to board one of these cars marked to have defective bumper bolts, plaintiff was injured by stepping on a defective brake beam. Held, that plaintiff had assumed the risk of injury from defects in the cars, and had no right to rely on the marking to indicate the nature of the defect.

2. SAME-INSPECTION-MASTER'S DUTY.

The master owed no duty to his servants as to the manner in which this inspection should be made.

2. See Master and Servant, vol. 34, Cent. Dig. § 23S.