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ceived these bags conditionally, to see whether he would or would not purchase them. On the oth these 500 bags were in his possession, and not paid for. On that day he told Pell that he would take the whole lot, including the 500 lot. This lot he had not previously agreed to take, and had not paid for. But his agreement to take all the bags included the 500, and so the plaintiff did at that time actually "accept and receive” a part of the whole lot under his contract of that date to purchase the entire lot. It also appears that Pell said he would wire the defendants that he had sold the bags, and he did wire the defendants, apparently on Saturday, that he was about to deliver the bags to Bristol. This confirms the evidence that he had accepted the plaintiff's offer and had completed the sale. Campion also wrote the defendants on the 12th, informing them that the plaintiff would accept the goods. The court instructed the jury very clearly on the subject :

"It is for you to say, upon this testimony with reference to the relations between Pell and the defendant, and Campion and the defendant, what the extent of their agency was with respect of these goods. Did Pell have the right, by reason of any authority he had from the defendant, to say that these goods could be held there until Monday without a delivery, and that there need be no cash paid until that time? if he did, then the defendant is bound by it. There is no proof in this case that there was to be any cash paid until the delivery, but the cash was to be paid upon delivery. The delivery, according to the testimony of these people, was to be upon the Monday following. That was the day when the plaintiff said he would take this whole lot of goods, and Campion insists that he had a right, under this letter of March 6th, to sell these goods to Bristol at that price, which he says was consummated upon that day; that is, upon the Saturday.”

The jury, under this charge, and on sufficient evidence, have found that the defendants had constituted Pell their agent for the sale, and for the incidents attendant thereon. The acceptance by Pell of the plaintiff's offer completed the contract of sale. The delivery and the payment on delivery were but incidents of the transaction, which was complete on the acceptance by Pell of the plaintiff's offer to purchase on the terms named by the defendants.

3. There was a sufficient tender of the price. Pell telegraphed the defendants that he was about to deliver the bags, but, acting under the telegram which he received in answer from the defendants, dated March 12th, two days after the sale, and which he told the plaintiff was received by him on the 13th, refused to deliver the bags to the plaintiff, and afterwards tendered the price. It appears that $5,550 of the tender was in gold or legal-tender notes, and $450 in United States or national bank notes, the description of which is not very clear; but, as no objection to the character of the tendered notes was made by Pell, the defendants were not in a situation to object. Pell could have recovered the notes in payment, and, as he made no objection to them, the tender remains good. Besides, the verdict is for $2,549.72. Assuming that the jury founded their verdict as to the amount of the damages on the lowest estimate of value (that is, 10 cents per bag), the award would be for 25,497 bags. The tender was $6,000, which would be the price of 30,000 bags. Defendants only claim that $400 of the tender was not in legal-tender notes, and, even if this fact was proven, there remained $5,600 of legal-tender notes, which was more ihan sufficient to pay for 25,497 bags.

and 114 New York State Reporter 4. There is no error in the admission of the evidence as to the value of the bags. The witnesses were shown to be acquainted with the value of such goods. One of them bought and sold a portion of them, and the weight to be given to their testimony was a matter to be determined by the jury.

5. The claim for rebate was well and properly stated by the court, when it said:

"Then, in addition to that, there is another element in this case, if you get to the question of damages, and that is as to this matter of rebate. The proof is here that the plaintiff had had a quantity of these bags, for which he had paid twenty-five cents; and his claim is that, if he took the entire lot, he was entitled to have a rebate of five cents apiece on those he had paid for, and he says he has paid for all he got. You have a right to take that into account in judging the amount of damages by reason of this rebate."

It appeared that, before the plaintiff accepted the entire lot of the bags, he had received a portion of them, for part of which he had paid 25 cents per bag, and part of which he held on memorandum. The defendants letter of March 6th to Campion uses the words, “In case any one party would take the remaining total lot, the price should be 200, for all said party had bought.” It is clear that the charge of the learned justice was based on, and in accord with, this condition.

We are of opinion that there was evidence justifying the verdict on the ground that there was a contract for the sale of the bags on the terms named by the defendants; that the contract was in writing, as required by the statute of frauds; that there was a sufficient tender of the price; that, as the plaintiff purchased the entire lot, he was entitled to the rebate; and that the amount of damages fixed by the verdict was established. The exceptions to the charge are not tenable.

The judgment and order should be affirmed. Judgment and order affirmed, with costs. All concur, except JENKS, J., who dissents.

(79 App. Div. 409.) OULLINAN, State Com'r of Excise, v. UNION SURETY & GUARANTY OU.

(Supreme Court, Appellate Division, Fourth Department January 27, 1903.) 1. BOND FOR PAYMENT OF DEPOSIT-CHECKS–CERTIFICATION.

Certification of checks at the instance of the drawer, and the transfer by the bank, without the knowledge or acquiescence of the drawer, to the account of each payee of the amount represented by his check, is not a transfer to the credit of each payee of the amount of his check, thus releasing the drawer, and consequently one who gave him a bond conditioned that the bank would promptly pay his deposit at any and all times on legal demand therefor; though, when the payees in due season

presented their checks, payment was refused, the bank having failed. 2. SAME-CANCELLATION OF CHECK-ASSIGNMENT OF INTEREST.

One who has given a depositor in a bank a bond for payment of the deposit on demand is entitled, on payment of judgment on the bond, to a cancellation of checks given by the depositor and not paid, and to an assignment of his interest in the fund in the hands of the receiver of the bank.

Williams, J., dissenting.
Appeal from special term, Oswego county.

Action by Patrick W. Cullinan, state commissioner of excise, against the Union Surety & Guaranty Company. From a judgment for plaintiff, defendant appeals. Modified.

Argued before ADAMS, P. J., and SPRING, WILLIAMS, HISCOCK, and NASH, JJ.

Wilson B. Brice, for appellant.
Sheldon B. Mead, for respondent.

SPRING, J. Plaintiff is the state commissioner of excise, and one of his depositaries was the City National Bank of Buffalo. The defendant, pursuant to section 13 of the liquor tax law (2 Heyd. Gen. Laws (2d Ed.] c. 29), became a surety for the bank, and the bond which it gave to the plaintiff contained this condition:

“Now, therefore, the condition of this obligation is such that, if the abovebounden the City National Bank of Buffalo shall and will safely keep all such moneys that may be so deposited in or held by said bank on deposit as afore. said, and shall and will promptly pay the same over at any and all times upon legal demand therefor, then this obligation to be void; otherwise to remain in full force and effect.”

The special deputy commissioner of excise for the county of Erie during the year 1901 collected for the plaintiff and deposited in said bank the sum of $5,578.08. Between the 20th day of May and the 10th day of July of that year said special deputy commissioner gave seven checks, payable to the order, respectively, of supervisors and other officials to whom said money was properly payable, the aggregate amount of said checks being $3,795.53. These seven checks, as they were issued, were certified by the bank. There were two other uncertified checks issued, aggregating $1,782.55. All of these checks were delivered to their respective payees, and were presented to the depositary, but payment was refused, as the bank in the meantime had failed, and its assets were in the possession of a receiver. There is no question raised that the drawer unduly delayed the delivery of any of these checks, or that the payees were tardy in their presentation. On the other hand, it is stipulated that the checks were duly indorsed and presented, and payment thereon duly demanded. At the time the checks were certified the officers of the bank, apparently without the knowledge or acquiescence either of any of the payees or the drawer, transferred to the account of each payee the amount represented by his check. The checks have never been paid, and this action is brought by the plaintiff to recover upon the bond of the surety company. The defendant concedes that it is liable for the amount represented by the uncertified checks, but contends that the fact that the other checks were certified was a transfer to the credit of each payee of the amount of his check, releasing the drawer, and consequently the surety company. We think this position is untenable. The effect of the certifying of these checks was that the bank guarantied the genuineness of the signature of the drawer, that it had in its custody sufficient funds to meet them, and agreed that the money should not be withdrawn to the prejudice of the holder of the check. The payee of a certified check, where the certification is procured by the drawer, is not a party to the and 114 New York State Reporter transaction, and is not bound by it. The learned counsel for the appellant relies upon Bank v. Leach, 52 N. Y. 350, 11 Am. Rep. 708. In that case the check was procured to be certified by the holder, and not by the drawer, and it was held that this act on the part of the holder discharged the drawer, and operated as a payment between these two. The court, however, is particular to say that “this would not discharge the drawer of a check who himself procured it to be certified, and then put it in circulation.” In Selover, Neg. Inst. Law, $ 129, the rule is thus stated :

"Where the drawer of a check procures its certification by the bank, he still remains liable; but where the holder obtains this certification the drawer and all prior indorsers are discharged from liability."

To the same effect is Norton, Bills & N. (2d Ed.) p. 400.

Crawford, Ann. Neg. Inst. Law (2d Ed.) notes under section 324, says:

"But where the check is certified when delivered it does not constitute payment any more than an uncertified check; and if it is presented promptly, and dishonored, the loss must fall upon the drawer."

The reason for the rule would seem to be that, where the drawer procures the certification himself, the bank knows that the check has not been put into circulation, and the act done is for the benefit and at the instance of the drawer. The payee of the check has taken no part in the .certification, and it is done without his knowledge. On the other hand, where the holder of a check presents it to the bank, procures its certification, he is the one that secures the transfer of the fund to his own account, and consequently the drawer is discharged. If the rule contended for by the appellant is correct, then it would be unsafe for one to accept a certified check unless he well knew the bank was solvent. The certificate to a check, instead of adding to might lessen its value as commercial paper. The negotiable instruments law (section 324), is as follows:

"Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon."

This limits the discharge of the drawer to the act of the holder in procuring the certificate.

The payees of the check did not know of the transfer of the money to their accounts, and consequently never assented thereto. They presented the checks for the money in the usual way, and failed to get it. They may have desired payment on the checks, instead of having the money placed to their credit without any knowledge or any action on their part. If the position taken by the surety company is correct, the bare acceptance of the check operated as a payment to the extent of the sums which they purported to represent. We find no authority sustaining any such principle.

The condition of the bond given by the defendant was that it “will promptly pay the same over at any and all times upon legal demand therefor." This condition of the bond lias not been complied with, for the bank refused to pay the checks drawn on this fund by the plaintiff. In cases of this kind, where bonds are given for the protection of a state department, the surety company will be held to a rigid construction of its agreement.

The facts in this case were stipulated, and submitted to the trial judge without a jury, and a fornial decision was rendered by him separately stating the findings of fact and conclusions of law. It appears from these stipulated facts that since the City National Bank has been in the hands of a receiver dividends to the amount of 50 per cent. have been made, and those represented by the seven checks in question are still retained by the receiver, and no payment has been made on the checks by reason thereof. It does not appear whether or not the checks have ever been returned to the plaintiff, or been canceled. The effect of the judgment and its payment by the surety company would be to subrogate it in place of the plaintiff as to this fund; but even that might not be sufficient to protect the appellant.

The judgment should be modified by requiring the plaintiff to produce the checks for cancellation, or transfer to the appellant and formally assign his interest in the fund in the hands of the receiver, including his interest in any subsequent dividends which may be declared. This canceilation and assignment should be made simultaneously with the payment of the judgment. The judgment, as so modified, should be affirmed, without costs of this appeal to either party. The form of the order may be settled before Mr. Justice SPRING on two days' notice, unless agreed upon by the parties.

Judgment modified accordingly, and, as so modified, affirmed, without costs of this appeal to either party. All concur, except WILLIAMS, J., who dissents.

(79 App. Div. 508.)


(Supreme Court, Appellate Division, Fourth Department. January 6, 1903.) 1. Wills-CONSTRUCTION-ACTION TO ENFORCE-COMPLAINT.

A complaint alleged that H. died, leaving a will, which directed that after payment of his debts, and on his widow's death her debts and funeral expenses, etc., should be paid from his estate, and charged his real and personal property therewith; that the widow died testate, administratrix, with the will annexed of her husband, and had property of that estate unadministered, when plaintiff and defendant were appointed administrators with the will annexed of the husband's estate; that the widow died indebted to plaintiff and others in various amounts, some of which were stated, including funeral expenses, and that the widow's estate and the personal estate of the husband were together insufficient to pay the widow's debts; that the husband's real estate had been attempted to be conveyed by defendant by a forged deed; and prayed that a trust be declared on all such real property described in favor of the widow's creditors, and that their claims be declared liens thereon, that the real estate be sold, and the proceeds applied to the payment of the debts of both estates. Held to state a good cause of action to charge the debts owing by the widow at her death and funeral expenses on the husband's real estate, and, as incidental thereto, for the


Where it was contended that under the husband's will the widow's. estate should be first applied to the payment of her debts before resort

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