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N. Y. 437), a mortgage case; Simson v. Brown (68 tracted with defendant to erect a house for him, N. Y. 355), a case where a guarantor was held to defendant agreeing to pay plaintiff, a sub-conpromise tor the obligor's benent, and in many tractor under Ciburre. Held, plaintiff could not other later cases. It is clear that these cases would enforce this, as the debt to him arose aiter the be within the first exception, as there was an obli- promise was made. gation existing between the third party and the Wise v. Morgan (13 Daly, 408). A guaranty of promisee for the latter to perform the act called debts was held to be for the benefit of guarantor. for by the promise. A strict application of the Feist v. Schiffer (79 Hun, 275). A contract to rule would take the very case of Lawrence v. Fox indemnify one liable on a check was not enforceout of the class of decisions to which its doctrine able by the payee of the check. applies, as in that case the promise was for the Bab v. Hirshbein (35 St. R. 581) where vendor benefit of the promisor, being a way of discharg- hired a broker to sell his property, and they agreed ing his debt. So that in introducing this qualifica- that the latter should look to the vendee for his tion the

are practically nullilying the commission. The vendee agreed with the vendor decision. A third party attempts to sue on a prom- to pay the commission, yet this was held to be for ise, alleging that it calls for the performance of a the vendor's benefit alone, and the broker could duty owed to him by the promisee. True, says not sue on it. the court, but it was not made for your benefit; In the last thirteen years the case has come up the parties contemplated benefiting the promisee. ior comment more than ninety times, and has You cannot sue on it without showing a consider- been criticised frequently, and in the majority of ation on your part. The only thing in Lawrence cases calling for a ruling on it, distinguished. It v. Fox to suggest this is that there the third party has, however, been followed, and in some instances was expressly mentioned, but the qualification that were within the exceptions. goes much beyond that and says the benefit must Before turning to those cases I must refer to primarily be for the third party. Another case another limitation pointed out in or two arises where the third party shows that a benefit cases, and which bears its part in confining the to him was contemplated by the parties to the con- application of the doctrine of Lawrence v. Fox. tract. True, again says the court, but you were In Clark v. Howard (74 Hun, 232) a debtor asnot entitled to the performance of this obligation signed all his property to one creditor in discharge from the promisee before the promise was made, of his debt, and the latter promised to guarantee therefore you can't sue. Thus almost every case

the debt of the plaintiff. The plaintiff was denied can be defeated. This last attitude was taken in his remedy on the ground that the defendant 1876 in Johnson v. Morgan (6 Daly, 336), where never owed his creditor anything, whereas in Lawthe defendant had promised third parties to pur- rence v. Fox the contract arose in the creation of chase certain railroad bonds, the holders thereon a debt between the contracting parties. The tento have an option to accept the terms agreed on dency of this is, of course, to limit Lawrence v. in the contract. The plaintiff was a holder of the Fox to cases with facts precisely identical. It bonds, not a party to the contract, but could not gives the court another loophole of escape from recover on it. The same case with slightly dif- applying the anomalous doctrine, and was availed ferent facts came up the next year, and the same of in Lorillard v. Clyde (122 N. Y. 522). doctrine was re-stated (68 N. Y. 495).

In the face of these exceptions the court have Now follow a great many cases applying these followed Lawrence v. Fox in several cases, to an two distinctions, and the attitude of the courts examination of some of which I now turn. In the change so that instead of merely accepting Law- first place come cases almost precisely identical rence v. Fox as sound, they very frequently make with Lawrence v. Fox in facts such as Phelp; the comment that the case is not to be extended. v. Rowe (75 Hun, 414), where one Utter owed Some cases in which the distinctions are made, and both plaintiff and defendant debts. He assigned which show how limited the application of Law- to defendant a claim he had on consideration that rence v. Fox is becoming, are the following: defendant would pay plaintiff. This case might

Metr. Trust Co. v. N. Y. L. R. R. Co. (45 Hun, have been brought within the exception of Clar: 9), where the promise was to make good deficien- V. Howard, but the plaintiff afterwards agreed cies in net earnings due to payment of bonded with defendant to perform the promise, so the indebtedness; held, creditors were not beneficiaries courts were ready to enforce it, and did so. I do and could not sue.

not recollect any such element in N. Y. Small Stk. O'Neil v. Hudson Valley Ice Co. (74 Hun,, 164), v. Klosset (13 Misc. 234), but the facts of that case where defendant had hired one Miller to fill his were so nearly identical with Lawrence v. Fox ice-houses, reserving leave to pay the workmen, that the court was probably not bold enough to and the latter were not allowed to sue; here, of find a distinction. This was also true of Reynolds course, there was no promise, but the case helped v. Lawton (43 St. Rep. 578), decided as late as to establish the exceptions.

1892, where the court evidently gave the question Ryan v. Pistorve (89 Hun, 78). Ciburre con- but little consideration on finding that it came


within the facts of Lawrence v. Fox, as tne judge | debt at the time the promise was made, and noth speaks of "the unquestioned authority' of that wg answering thereto, and the court was stretch

Other cases where the doctrine was applied ing the doctrine for the purposes of justice. were those already referred to, where sume rela- I might here refer to the cases which have seen tion of kinship existed between the promisee anu in Lawrence v. Fox a quasi-contract and allow the third person, as in Whitcomb v. Whitcom recovery on the part of the third party as foi (92 Hun, 444), where the promisor was the grand- money had and received. As was pointed out in father and the promisee was the mother of the a dissenting opinion by Ehrlich in Goud v. Lipbeneficiary; or White v. White (20 Misc. 481), man (1 Mis. 475), the weakness of tnis argument where the beneficiary was the son and heir at law is that the defendant has received no money beof the promisee. These cases always have in them longing to the plaintiff, and so the ground of the some element that appeals to the sympathy an. action fails. But the irequency with which the sense of justice of the court. This is well shown courts say the defendant has money which ecc by the case of Knowles v. Erwin, decided in 1887, æquo et bono should be paid to the plaintift shows reported in 5 St. R. 421, where, if the defendan. that the doctrine of Lawrence v. Fox is applied had succeeded, the plaintiff would practically have rather from equitable considerations than on legal been cut off by his father without any inheritance. principles. Both plaintitt and defendant were sons of the Thus we have seen that the cases in which courts promisee in this case. The father deeded a farm eniorce the doctrine are those in which some and conveyed all his personalty to the defendant, ground of public policy, or some consideration oi who gave a deed promising to pay $500 to plaintiff. natural justice, seem to demand it. The principle Subsequently a release was made by the promise of the case has been defeated by competition, and to the defendant. So strong was the moral claim its anomalous character is pretty weil recognized oi the plaintiff in this case that in spite of the re so that the courts can defeat its application in lease he was allowed to recover. This bore fruit nearly every instance by applying some distinclater. It will be noted that the promise in this tion. case was in an instrument under seal, a distinct The question then arises, where the rule is apanomaly early allowed in New York (see Carter plied, and the third party is allowed to sue, is his v. Mayor of Albany, 43 N. Y. 411), but not per-right absolute or do the anomalies obtain in regard mitted in Illinois, Maine and some other States, to the discharge of a contract which strict logic and one which might easily have been avoided. would demand? That is, can the defendant raise The case might have been excepted from the rul-defenses against the third party which wou.d avail ing of Lawrence v. Fox under Durnherr v. Rau against the promisee, and is he liable to one alone, and the other cases holding that the promisee must or both jointly, or both severally? It wou.d seem be under a legal or equitable duty to perform the that the anomalous character of the third party's promise to the third party, but, as I say, the jus- rights would justify the court in subordinating tice of the case was with the plaintiff.

them to those of the promisee. As to the equities Then there are some sporadic exceptions, such existing between the parties in regard to the foras the case oi Little v. Banks (20 Hun, 143), de- mation of the contract, this is the rule. Thus, in cided in 1880, which goes on grounds of public 1873 it was held in Merrill v. Green (55 N. Y. 270). policy. In this case the defendant contracted with that creditors sued subject to the equities between the State authorities to supply the public with law the defendant and his co-partners, to whom he reports and to pay a penalty for each failure. The had given a bond to pay their debts. In 1874, in plaintiff recovered the penalty for several failures Hinman v. Bowen (3 Hun, 192), defendant was to supply him with reports, though he was merely allowed to set up fraud, which would have defeated one of the public. The case was clearly within an action by promisee. In McCafferty v. Decke: two of the exceptions, but is to be supported on (12 Hun, 459), a failure of consideration from the grounds of public policy. An opposite result was promisee defeated the action of the third party. reached, however, some years later in Wainwright | Other cases are Dunning v. Leavitt (85 N. Y. v. Queens Co. Water Co. (78 Hun, 140), where 30), Crowe v. Lavin (95 N. Y. 423). the defendant contracted to supply water to the No good reason suggests itself why the same city and failed, in consequence of which the plain rule should not apply to subsequent defenses, such tiff's house was burned, and plaintiff was not al- as a release, and the Illinois courts have taken this lowed to recover, as he had not been contemplated view. They say the third party has merely an by the parties as a beneficiary under the contract. arbitrary right to sue on another's contract, and

Among these sporadic exceptions is the case of the right is subject to be defeated, being a gift of Riordan v. Ist Pres. Ch. (6 Mis. 84), where the the courts. plaintiff was allowed to recover for services ren- In New York, however, this is not the doctrine. dered the promisee of a contract with defendan In Douglas v. Wells (57 How. Pr. 378), in 1879, by which the latter promised to pay the promisee's it was held that a mortgagor could not release one expenses in case of illness. Here there was no who had assumed the mortgage unless the mort


gagee assented to it. In this case the mortgagee the courts have invested its application with conhad taken no steps to enforce the contract, but the sequences of such hardships and injustice that court held he had a vested right. I have already they will be less and less willing to bring cases noted that this view was taken in Knowles v. within it, and more and more willing to extend Owen in 1887, and given some suggestions as 10 the exceptions and limitations. So that the doc. the reasons inducing it. Then comes the remark- trine of the case is becoming a dead letter, except able case of Gifford v. Corrigan (117 N. Y, 263), where it furnishes an excuse to do justice in one decided in 1889. This case criticised Lawrence v. of those “ hard cases which make shipwreck of Fox severely, Finch, J., saying “one's doubts are principles,” or to further public policy, or to aid only dissipated by its authority,” and it has done some clever lawyer to trip up an unwary opponent much to discredit and weaken that authority, and or hasty court by the beautiful fiction of stare yet it held the right in the third party an absolute decisis.

Wm. M. Wherry, JR. But it limited Douglas v. Wells (supra) to New York City, March, 1900. some extent. The case was shortly as follows, using letters instead of proper names: A deed was executed by A. to C., in which the latter assumed a

MASTER AND SERVANT. mortgage of A. to B. B. has notice of this, and assents to it, demands payment and brings fore- NEGLECT TO PROVIDE SAFE PLACE FOR WORK. closure proceedings. Thereupon A. releases C. The court held this release was invalid as to B. – New YORK SUPREME Court — APPELLATE Divithe right of the third party became irrevocable

SION -- FIRST DEPARTMENT. when he accepted the contract and adopted it. The

March, 1900. necessity for acceptance is a limitation, but on principle it is absurd, as the weakness of the thir : Present: Hons. CHARLES H. VAN BRUNT, P. J.; party's position is the fact that he gives no consid GEORGE C. BARRETT, WILLIAM RUMSEY, MORGAN eration for the promise. Perhaps the sense that J. O'BRIEN and GEORGE L. INGRAHAM, JJ. justice was with the plaintiff, and some notion of equitable subrogation, inclined the court to give

JOHN CUNNINGHAM, Appellant, v. SICILIAN Asthis decision, but it is evident that a stand might

PHALT Paving COMPANY, Respondent. have been taken which would have avoided so de- In an action by a servant against his master for cided an anomaly by declining to follow Lawrence damages for personal injury, held that there v. Fox to its logical consequences.

was sufficient to go to the jury on the quesOne question remains: Can the promisee sue as tion whether the defendant, with ample time well as the third party? The court, in Ward v. for inspection, had permitted the continued Cowdrey (5 N. Y. Supp. 282), held that he could, use, as part of a permanent platform for the irrespective of the third party. And in very truth doing of defendant's regular, steady work, of it would be a strange justification for depriving a a rotten plank whose breaking caused the promisee of a contract right to say we have given injury. a third party a contract right which he didn't have,

Appeal by the plaintiff from a judgment in favor so we must take from you a contract right which

of the defendant entered upon the dismissal of his you have — on the principle, I suppose, of “from him that hath not shall be taken even that which ing his motion for a new trial.

complaint at Trial Term, and from an order denyhe hath.” And in regard to the promisor it may be said that he contracts in regard to the law as it Gilbert D. Lamb, for appellant; Joseph Fetis, and so intends to assume an obligation towards tretch, for respondent. the two parties. At the same time this anomaly and the preceding are bound to give rise to much BARRETT, J. - This is an action for damages reinjustice and hardship. In fact the application of sulting from an injury to the plaintiff, alleged to the rule is so palpably unjust and absurd, and the have been occasioned by the defendant's neglihardships are of such a striking nature, that courts gence. The defendant is a manufacturer of asphalt. will be more loath than ever to bring cases within It has a factory in the City of New York. In one the operation of Lawrence v. Fox, so that these part of this factory there was, at the time of the anomalies will aid in hastening the extinction of plaintiff's injury, a series of bins some fifteen or that doctrine.

sixteen feet in height. These bins were used as The result of this study, then, amounts to this, receptacles for the crude material. There was a that in the course of forty years the principle of railroad over the top of the bins. The material Lawrence v. Fox has been so weakened by excep- was brought up in cars and dumped from the latter tions and distinctions that the courts of New York into the bins. To accomplish this the workmen can in nearly every instance avoid the application had to stand upon a platform, which consisted of of it, even in cases whose facts seem most clearly two loose planks. These planks were placed upon analogous to those of the original decision. That the side of the railroad track, and were about six inches from it. They rested on cross beams under- nished them with good and sufficient materials, neath the track. Although these planks were have themselves built the temporary structures. loose and movable, yet they constituted a platform Here, as we have seen, the platform was essenupon which a part of the company's work was tially a permanent place provided for the doing of regularly done. In that sense the structure was the defendant's regular and steady work. Under permanent in its nature. It was not an ordinary such circumstances, it was the defendant's duty to "appliance” relating to an isolated job or a tran- see to it that that place was a reasonably safe one. sient undertaking. It was essentially a "place" There is nothing in the point as to contributory where the defendant's business was permanently negligence. The plaintiff had a right to assume conducted and where its employes were steadily that the working place provided for him by the required to work.

defendant was reasonably safe (Rettig v. 5th Ave. The plaintiff was a common laborer, and at the Trans. Co., 6 Misc. 328, aff'd 144 N. Y. 715). time of his injury had been in the defendant's There was no obvious danger or extraordinary employ for put nine days. The accident occurred risk attendant upon the use of the platform. It upon the 19th of January, 1897. Upon the morn- | by no means follows, because the plank was found ing of that day the plaintiff was ordered by the de- to be moth-eaten and rotten after the accident, fendant's foreman to go up on the platform and that that condition would have been apparent upon help another employe to dump material from the a passing glance at it prior to the accident. The cars. This was the plaintiff's first employment in plaintiff was not bound before using the platform this particular work. He accordingly went up on to inspect the planks minutely and weigh all posthe platform and spent over four hours in dump- sible risks. So long as the danger was not obviing material into bin No. 1. So far his work was ous and imminent, he was justified in relying upon without incident. He then moved over upon the the master's performance of his duty. The quesplatform some seven feet and began dumping tion upon both heads was for the jury, and the material into bin No. 2. He had removed the nonsuit was erroneous. material from two cars into this bin No. 2, and was The judgment and order denying the plaintiff's removing it from the third car when one of the motion for a new trial should be reversed, and a planks gave way and precipitated him into

new trial ordered, with costs to the appellant to the bin, injuring him quite severely. While the abide the event. bottom of the bin he was able to see this broken All concur. plank; and he testified that it was rotten all through, “ worn in the center and on the two sides it was moth-eaten and dozed. You could stick LORD BACON'S CONTRIBUTIONS TO LAW. your fingers in the timber."

Upon these facts we think the case was plainly ORD BACON'S fame as a philosopher, his for the jury. The defendant was bound to furnish services to science, have so overshadowed his the plaintiff with a reasonably safe place to work other achievements that justice is hardly done to in. That was its duty, and it could not exempt his literary, political, and professional genius – itself from liability for non-performance by dele- his professional or legal genius in particular. gating performance to another (Benzing v. Stein- Bacon,” said Queen Elizabeth,“ hath a great way, 101 N. Y. 547). It was a breach of that duty wit, but sheweth to the uttermost in law and is to permit the platform upon which the plaintiff not deep.” Elizabeth never quite appreciate :) was here required to work to wear out and be- Bacon; but there was this amount of truth in the come rotten. It is well settled that the unex- remark, that Bacon was not a Coke, not deeply plained giving way of a permanent structure upon versed, like his great rival, in the technicalities which employes are required to work is prima and subtleties of the law. He had not the qualities facie evidence of the master's negligence (Solarz of the black-letter lawyer, but he had a nobler v. Man. R’y, 8 Misc. 656, aff'd Gen. Term, 1 Misc. genius that stamped all his utterances about law 715, aff'd in Court of Appeals, 155 N. Y. 645; and judicature with a greatness which, as Ben Green v. Banta, 48 N. Y. Sup'r Ct. Rep. 156, aff'd | Jonson says, was only proper to himself, and to 97 N. Y. 627).

which Coke never attained. All that he did is, it Here, however, there was enough to go to the is true, sketchy and incomplete, but it is just here jury upon the question whether the defendant, with that his genius discovers itself. He was a Michael ample time for inspection, had permitted the use Angelo in the grandeur of his conceptions, the of an unfit plank. The condition in which the largeness of his view. He sketched the outlines, plaintiff found the broken plank after the accident and he left it to smaller men to fill in the details. indicates clearly that the break resulted from grad- | Take his Aphorisms of Universal Justice," or ual decay.

“Fountains of Equity” in the De Augmentis This was not within the cases where platforms Scientiarum. Among Bacon's most cherished have been constructed for temporary purposes, or projects — next, indeed, to the Instauratio Scienwhere the employes, after the master has fur- tiarum was an Instauratio Legum, and in these

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aphorisms we have the foundation stones of the Jonson would call it, characterizes his utterances edifice laid, and how masterly: In societate civili aut on “ Judicature” in the Essays! If only we could lex aut vis valet “Judgments are the anchors of read them free from the commentary of his judicial the laws, as laws are the anchors of States." career! Cowper wondered how the author of the “More authority is to be allowed to those exami- Dunciad” could have written those lines in the ples, which, though less used, have been publishea Universal Prayer: and thoroughly canvassed; for examples, like

That mercy I to others show waters, are wholesomest in the running stream." “ Beware of fragments and epitomes of examples,

That mercy show to me. and rather consider the whole of the precedent May we not much more wonder that a corruptible with all its process.” “That law is ever the best chancellor should have penned such words as which leaves least to the breast of the judge." | these: Hear him on a multiplication of reports or author- Above all things integrity is their the ities: They “rend the mind of the laws, distract | judges portion and proper virtue. “Cursed,' the judge, make lawsuits endless, and the lawyer saith the law, 'is he that removeth the landmark.' himself, finding it impossible to peruse and digest The mislayer of a mere stone is to blame; but it so many books, takes up with compendiums." is the unjust judge that is the capital remover of So, again, in his “Maxims of Law," written to

landmarks when he defineth amiss of land and discharge the debt he conceived he owed to the property. One foul sentence doth more hurt than law: for “I hold every man,” he says, “a debtor

many foul examples, for these do but corrupt the to his profession.” To some the maxim of law is stream, the other corrupteth the fountain." Law jejune enough, a legal platitude; but passed Journal (London). through Bacon's philosophic mind these maxims are transfigured into the leges legum; they stand for the first principles of law, conclusions of

PERPETUAL COPYRIGHT. to the touchstone of which reference needed constantly. to be made, because “particu- THE contention in behalf of a perpetual copylar and positive learnings of laws do easily decline right, so amusingly advocated the other day from a good temper of justice.” How true this is! | by Mr. Clemens before a committee of the house Following out artificial doctrines of law, how far of lords, is, of course, not new. The perpetuity of astray we often get from the true principles of copyright is a corollary from the natural right of justice, like that judge of whom it was said, Leges a man to retain perpetual control over the products Anglia in absurdum reduxit. Clogging the equity of his labor. Perhaps the first appearance of the of redemption, for instance, what a number of contention in connection with copyright was in honest bargains has that well-meant but much " the petition of Thomas Carlyle, a writer of misunderstood technicality frustrated! Equally books,” to the house of commons, in 1839. The admirable is Bacon in laying down the practical postulate of this petition was “ that the law does principles which should guide the administration at least protect all persons in selling the producof the law; witness the occasion on which he first tion of their labor for what they can get for it, in took his seat as lord keeper in the Court of Chan- all market places, to all lengths of time.” The cery; when, following the example of the Roman petition sets forth that “in the happy and long prætor, he delivered a luminous address setting doubtful event of the game's going in his favor" forth the principles on which he would use his the winnings belong to him or his “ forever," and jurisdiction. The law's delay, the law's costliness, concludes: “ May it therefore please your honor"to retrench all unnecessary delays, which was able house to protect him in said happy and long speedy justice, Bis dat qui cito dat, and that justice doubtful event; and (by passing your copyright might pass with as easy charge as might be, and bill) forbid all Thomas Teggs and other extranethose same brambles that grow about justice of ous persons, entirely unconcerned in this advenneedless charge and expense, and all manner of ture of his, to steal from him his small winnings exactions be rooted out as far as mought be

for a space of sixty years at shortest. After sixty these things he had as much at heart as fashioning years, unless your honorable house otherwise prothe corner-stones of the great edifice of law.

vide, they may begin to steal.” Of his “ Treatise on the Use of the Law" - if. There is here a distinct enough assertion that the indeed, it is his — of his lectures on the Statute of copyright of an author is morally, and ought to be Uses, delivered by him as reader at Gray's Inn, legally, on the same footing with any other propwherein he introduces his well-known definition of erty, and that the author is equally entitled with a "use” by considering what it is not, and of his any other owner to do what he will with his own weighty and impressive addresses to Mr. Justice“ to all lengths of time.” This seems reasonable Hutton and others on their appointment as judges enough. And yet the right to dispose of any kind it is impossible to speak here; but what pregnancy of property, after the death of the owner, can of thought, what a noble censoriousness, as Ben scarcely be called a natural right. In some civil

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