and 132 New York State Reporter

SCOTT, P. J. The plaintiff sues for the damage suffered by certain cases of cotton yarns while in course of transportation by defendant. No question is made as to defendant's liability, the only contest being as to the amount of the loss. The shipment consisted of 14 cases of cotton yarns on cones. Upon arrival at the place of destination, 5 of the cases were broken, and the yarns contained therein damaged. So far as appears from the evidence, the other 9 cases were intact and uninjured, and there is not the slightest evidence that the yarns contained in them were damaged at all. The plaintiff's assignors, owners of the yarns, made not the least effort to ascertain the condition of the yarn in the uninjured cases, but offered the whole shipment for sale as damaged goods, realizing but 10 cents a pound for the lot, whereas the value of the sound yarn before shipment had been 18 cents a pound. For the difference between the two prices the plaintiff has recovered judgment, the only evidence as to the value of the goods after the injury being the price at which the yarn was sold. In awarding damages as if the whole shipment had been damaged, the court followed the speculative and fanciful testimony of plaintiff's witnesses, to the effect that the fact that a few cases out of a shipment had been injured would so affect the reputation of the whole shipment in the eyes of the trade that a fair price could not be obtained even for the uninjured merchandise; a proposition which appears to be quite unreasonable. Furthermore, the evidence of selling value is most unsatisfactory. The plaintiff relies upon Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032, as an authority for relying upon the selling price as some evidence of value. That case is authority for the proposition that under some circumstances proof of the price obtained at a bona fide sale will tend in the direction of proving or establishing a market price, and therefore be some evidence of value. But it is essential that the sale shall be bona fide, and not in any way forced. In the present case the evidence leaves a strong impression upon the mind that the sale was not bona fide in the sense that plaintiff made no effort to realize a good price. On the contrary, the goods were offered in such a manner as to discredit them, and no effort whatever was made to ascertain the extent of the damage, or how much of the shipment was uninjured. The result is that, while only 5 cases out of the 14 were injured at all, and all of the yarns comprised in the shipment, save a very few yards, were actually used by the purchaser, the defendant has been mulcted in damges to an amount considerably greater than the whole value at the point of shipment of the 5 cases which were damaged. If the plaintiff's assignors suffered the loss for which they sue, it is because they took no pains to reduce their damages, or to obtain a fair price for so much of their shipment as was uninjured.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

(50 Misc. Rep. 339)

SCHULMAN v. BUCHLER.

(Supreme Court, Appellate Term. April 24, 1906.) GUARANTY-RELEASE OF GUARANTOR-EXTENSION OF TIME FOR PAYMENT.

Where defendant guarantied the payment by a buyer for goods sold for a period of one year, and nearly a year later the seller, without defendant's knowledge, took a long series of the buyer's notes for the price, payable at weekly intervals, there was an extension of the term of credit, releasing defendant.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Guaranty, § 67.] Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Joseph Schulman against Louis Buchler. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. David Goldstein, for appellant.

A. I. Gordon, for respondent.

SCOTT, P. J. The defendant, on September 18, 1903, executed the following written guaranty, upon which this action is brought:

"1, the undersigned, do guaranty the payment of all goods delivered to Mrs. Fanny Shilkin to the amount of one hundred and fifty dollars ($150) for the period of one year, beginning September 18, 1903, to the 18th of September, 1904."

Within the year plaintiff sold to Mrs. Shilkin goods to the amount of $894.96, and rendered her a bill therefor, dated August 29, 1904. The debtor was unable to pay this amount at once, and it was arranged between her and plaintiff that she should give a series of negotiable promissory notes for the amount, in sums of $15 and $25, payable at weekly intervals. The plaintiff thereupon marked upon the bill the words "Settled by notes-15-25 per week." Of this arrangement and the giving and acceptance of the notes the defendant had neither notice nor knowledge. The debtor paid some $540 of her indebtedness, but ceased making payments while she still owed $356.96, and defendant is now sued for $150 upon his guaranty. The defense is that the accept

ance of the debtor's notes for the amount due was a valid and effectual extension of the time of payment, and that such extension, having been. granted without the consent of the guarantor, released him.

The case as made by the proofs falls directly within the principle laid down in Shipman v. Kelley, 9 App. Div. 316, 41 N. Y. Supp. 328, a carefully considered and elaborately discussed case. It is quite true that defendant's guaranty did not specify upon what terms sales were to be made to Mrs. Shilkin, and it was therefore quite competent for plaintiff to sell her upon customary and reasonable credit, without losing the benefit of the guaranty. D., L. & W. R. R. Co. v. Burkard, 114 N. Y. 197, 21 N. E. 156. The bill rendered to Mrs. Shilkin and the testimony of plaintiff himself shows that, while the goods were sold on credit, there was no such credit extended at the time of sale, and as part of the terms thereof, as was afterwards extended by the acceptance of the long series of notes. It is this extension of the original credit which operates

and 13 New York State Reporter

to discharge the surety. We have not overlooked the authorities relied upon by the respondent as holding that the acceptance of time notes from a debtor does not operate to extend his time of payment. Denick v. Hubbard, 27 Hun, 374; Graham v. Negus, 55 Hun, 440, 8 N. Y. Supp. 679; Fuller v. Negus (Sup.) 8 N. Y. Supp. 681. Those cases do not seem to be fully in harmony with the long established rule in this state, and, in so far as they are not in accord with Shipman v. Kelley, supra, they must be deemed to have been overruled by that case. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

(50 Misc. Rep. 289)

ZAJIC v. ELIAN.

(Supreme Court, Appellate Term. April 24, 1906.) TRIAL-DIRECTION OF VERDICT-REQUEST BY BOTH PARTIES-EFFECT.

Where both parties request the court to direct a verdict, and after direction and entry by the clerk the defeated party excepts to the direction, he cannot subsequently insist upon his right to go to the jury upon a disputed question of fact.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 400.]

Appeal from City Court of New York, Trial Term.

Action by John Zajic against Emil Elian, as president of the Jan Zizka Lodge. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Wheeler & Nekarda, for appellant.

Alfred & Charles Steckler, for respondent.

TRUAX, J. It was alleged in the complaint and proved on the trial that the defendant

"Promised and agreed for a valuable consideration with said Joseph Zajic that upon his death, he being in good standing in the order, the said Jan Zizka Lodge No. 431, I. O. O. F., would pay the sum of $230, together with funeral expenses in the sum of $50, making altogether the sum of $280, to the widow of the deceased member, provided such widow did not live separated from such deceased member for any reason during the lifetime of such deceased member, and provided, further, said widow took care of said deceased member in his sickness up to his death, in which events, and in the event that such member and such widow be not reconciled with such deceased member before his death, it was provided that such widow would not be entitled to any part of such moneys, and that in such case the said moneys should be paid by said Jan Zizka Lodge as follows, to wit: To his children, or, if there are no children, to his parents, brothers, or sisters, provided during the time of his illness and up to the time of his death they took care of him."

It was also alleged in the complaint that the said Joseph Zajic left a widow who had separated from him during his lifetime, and was so separated from him at the time of his death, and that during his last. illness, and for a long time prior thereto, the said widow did not take care of her said husband, and was not reconciled to him prior to his death, and that he left no child or children, or any issue of deceased child or children, nor parents, but only the plaintiff, his brother, who at

the time of his illness and up to the time of his death fully attended to his wants and took care of him and paid his funeral expenses. At the close of the trial each party moved that the court direct a verdict in his favor, and the verdict was directed by the court in favor of the plaintiff, to which ruling the defendant duly excepted. The defendant's counsel then asked to go to the jury on all the evidence in the case, but did not specify any fact that he desired to have submitted to the jury. It was held in Persons v. Hawkins, 41 App. Div. 171, 58 N. Y. Supp. 831, citing Howell v. Wright, 122 N. Y. 667, 25 N. E. 912, and Adams v. Roscoe Lumber Co., 159 N. Y. 180, 53 N. E. 805, that where upon the trial of an action both parties asked the court to direct a verdict, and after the verdict has been directed and entered by the clerk, and the defeated party excepts to the direction, he cannot subsequently insist upon his right to go to the jury upon a disputed question of fact. But the defendant alleges that the complaint should have been dismissed by the court, because the plaintiff has failed to establish such a separation of the deceased from his wife as is contemplated by the by-laws of the defendant; and also upon the ground that, conceding the separation, he failed to show that they were not reconciled before the death of the husband. There is no merit in this contention. The evidence shows that the deceased had been for some years separated from his wife, was separated from her at the time of his death, and that she did not take, and had not taken, care of her husband for a long time prior to his death. The defendant claims that certain evidence was improperly excluded. Most of this evidence, it may be presumed, would have shown, or tended to show, that in the years 1902 and 1903, while the defendant Joseph Zajic was in Iowa and his wife here in the city of New York, he communicated with her and supported her. It is conceded, however, that the said Zajic came back from Iowa in the end of 1903, and remained here for a short time; then he went to Westfield, Mass., in the spring of 1904, where he stayed, until he came back in the summer of that year. The defendant then sought to show that, if there had even been an estrangement between Joseph Zajic and his wife, they had become reconciled some time in September or October in 1904, but he was prevented from so doing by the ruling of the court in striking out certain answers that had been made by the widow of said Joseph Zajic, and by the court's excluding the letter dated October 22d, written by said Joseph Zajic to his said wife.

I am of the opinion that these last rulings of the court were erroneous, that the error was a material one, and that the judgment and order appealed from should be reversed. The evidence that was stricken out tended to show a reconciliation between the husband and the wife. The letter which was excluded also tended to show such reconciliation. The evidence excluded, while it related to transactions between third parties, in the absence of the plaintiff, nevertheless was binding upon the plaintiff. The very point at issue was whether or not Joseph Zajic and his wife had become reconciled with each other before his death; it was the fact in the case.

Judgment and order appealed from reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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HERRMANN v. HERRMANN.

(Supreme Court, Special Term, Kings County. July 13, 1904.) MARRIAGE-COMMON-LAW MARRIAGE-EVIDENCE-VERDICT.

In a suit to establish a common-law marriage, evidence held insufficient to sustain a verdict in favor of plaintiff.

Action by Carletta Herrmann against George Herrmann to establish a common-law marriage. On motion to vacate a verdict in favor of plaintiff, and to dismiss the complaint. Motion granted.

See 98 N. Y. Supp. 655.

Gustavus A. Rogers, for the motion.

Francis B. Mullin (William W. Goodrich and Frank X. McCaffry, of counsel), opposed.

SMITH, J. The result of the trial of this cause strikingly illustrates the wisdom of the recent legislative regulation of nonceremonial marriages in the state of New York, and also the futility of expecting a verdict in matrimonial actions against a woman where the element of sympathy is involved, no matter what the merits of the case.

This case is unique in two respects: First, that there could have been gotten together, by chance, in the worldly wise city of New York, 12 men apparently as innocent and as credulous as the men who composed the jury; and, second, that the plaintiff, with a story so improbable, so inconsistent, and so unconvincing, with the affirmative evidence against her contention so overwhelming in its character, could have succeedea, by her attractive personality and rare dramatic ability, in inducing any 12 men to render a verdict that she had ever been married to the defendant. Ths story of the common-law marriage on the rear seat of a one-horse, two-seated vehicle, driven by a hackman at Ft. Lee. N. J., which was not observed by the alert driver on the front seat, the ceremonial marriage before a bogus justice of the peace in a summer house in the rear of a saloon, without a witness, and the marriage certificate then received, but subsequently lost, and to the existence of which no other person testified, might well form an appropriate plot for a comic opera, but it has no place in the realm of reality. All the circumstantial and convincing evidence in the case points not to marriage, but to the fact that there was no marriage. The introduction by the defendant of the plaintiff as Mrs. Herrmann and as his wife to third parties, and the letter of the defendant to plaintiff's mother, addressing her as "Dear Mother," are abundantly and satisfactorily explained by the evident desire of both parties to conceal their real relations to each other from the mother of the plaintiff and from strangers. In all the confidential correspondence between the parties, in which there could not be the slightest motive to play a part or to conceal the truth, there is not a hint or a suggestion that the relation of marriage existed between them. In the letters written by the plaintiff to the defendant after he had deserted her, as she said, without cause, there is no claim that there was any duty on his part to return to her or to provide for her. These letters alone should convince any reasoning mind that the writer was not a wife who had