S. Hubbard, for appellants. L. O. Reed, for respondent.

EARL, C. J. On the 14th day of April, 1873, Margaret M. Gray executed her will, in which, after providing that her lawful debts and funeral expenses should be paid, and a suitable tombstone erected at her grave, she gave and bequeathed to her sister, Mary Morris, $1,800, and to her niece, Mary S. Gray, $200; and then she disposed of her residuary estate as follows: "All the rest and residue and remainder of my estate, both real and personal, of which I may die seised and possessed, I give, devise, and bequeath unto my brother, Sylvester Gray, of Groveland, my nephew, Alfred G. Sickly, of Groveland, and my sister, Elsie Sutfin, of Van Buren county, Michigan, to be equally divided between them." She died on the 8th day of November, 1884, and her will was admitted to probate. At the time of the execution of the will, she did not own any real property, but all her property was personal, of the value of about $2,500. After the execution of the will, on the 30th day of May, 1874, she purchased of the plaintiff and her husband certain real estate, for which she paid the sum of $2,000, and which she owned at the time of her death, and her personal property thereafter, and at the time of her death, amounted to only about $500. For a pe. riod of seven years prior to the execution of the will, she had resided in the family of the plaintiff and her husband, and she continued to reside there until her death. She was a maiden lady, and at the time of her death was about 72 years old. The only compensation she paid to the plaintiff and her husband for her board in their family was the sum of $100 per year. Two of the three residuary legatees died before the testatrix. Upon these facts the plaintiff claims that her legacy of $1,800 was a charge upon the real estate owned by the testatrix at the time of her death, and so the court below has held, and the real estate has been ordered by its judgment to be sold for the payment of the legacy.

The sole question for our determination is whether we can find in the language of the will, together with the circumstances surrounding and attending its execution, that the testatrix intended to make the legacy a charge upon real estate. The rules of law as to the language and circumstances which will be held sufficient to charge a legacy upon the real estate left by a decedent have been so frequently laid down and elucidated in this court that a further review of the authorities, and a further discussion of the subject, can serve no useful purpose; cannot reuder the law more certain nor aid in its administra. tion. We will therefore now content ourselves with a brief announcement of our views in this case.

It is now the settled law in this state that by the language contained in this will alone the legacy was not charged upon the real estate, (Hoyt v. Hoyt, 85 N. Y. 146; Scott v. Stebbins, 91 N. Y. 614; McCorn v. McCorn, 100 N. Y. 513, 3 N. E. Rep. 480; In re City of Rochester, 110 N. Y. 159,

17 N. E. Rep. 740; Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628; Briggs v. Carroll. 117 N. Y. 288, 22 N. E. Rep. 1054;) and so it was held in this case in the court below. But it was held in the cases cited that such language as is found in this will is not absolutely inconsistent with an intention to charge the real estate, and that, for the purpose of ascertaining the intention of a testator, extrinsic evidence, prop. erly bearing upon that intention, and by the rules of law allowed to explain the meaning of the language used, may be received in evidence. Considering the cir cumstances surrounding the testatrix at the time of the execution of this will, and construing the language by the aid and in the light of such circumstances, we are yet unable to find that she intended to charge real estate with the legacies, as she then owned no real estate, and her personal property was ample to pay the legacies; and this, too, seems to have been the opinion of the court below. But the plaintiff's counsel contends that we may look at the circumstances occurring and existing subsequently to the execution of the will for the purpose of ascertaining the intention of the testatrix, and in this contention he seems to have been sustained by the court below; and by a consideration of the circumstances which we have above mentioned, which transpired after the execution of the will, it reached the conclusion that the legacy was charged upon the real estate. Circumstances surrounding a testator at the time of the execution of his will may be given in evidence, so that the court may see the facts as he saw them, and thus arrive at his intention, where the language alone is of doubful import. The matter to be determined in the construction of a will is, what did the testator intend at the time of its execution? And, when that intention is ascertained, it must have effect, if not in conflict with any law. Clearly, circumstances occurring long after the execution of a will could not have been within the contemplation of the testator, and could therefore throw no light upon the meaning of language which he then used. While a will is in some sense ambulatory as to the objects and subjects with which it deals, yet it is not ambulatory as to the meaning of the language used by the testator, and the intention and purpose which controlled the disposition of his property. That intention and purpose must be found to exist at the time of the execution of the will, and cannot be varied or changed by any after-occurring events. Therefore, as the language of this will, construed in the light of circumstances existing at the time of its execution, did not charge this legacy upon the real estate, circumstances occurring subsequent to its execution cannot be resorted to for the purpose of finding an intention to create the charge. It is said by the counsel for the plaintiff that the case of Scott v. Stebbins sustained his contention. While there are some views expressed in the opinion in that case apparently in conflict with those expressed here, yet nothing was decided there which makes it an authority for the plaintiff here. We are therefore of opinion that

this judgment should be reversed, and a new trial granted, costs to abide event. All concur, except O'BRIEN and MAYNARD, JJ., dissenting.

ASHTON et al. v. CITY OF ROCHESTER. (Court of Appeals of New York. June 7, 1892.) APPEAL-OBJECTIONS NOT RAISED BELOW-RES JUDICATA.

1. The objection that a former adjudication had not been pleaded, and was therefore not available as a defense, cannot be taken on appeal, where the adjudication was found by the trial court, and was not excepted to.

2. A judgment, in an action or proceeding against the executive board of a city to compel them to act with respect to awarding a contract in which it was decided that it was their duty to act, estops the city.

On rehearing. For decision on appeal, see 30 N. E. Rep. 965.

O'BRIEN, J. We have considered the points submitted in support of this motion, and we are of the opinion that it should be denied. A former adjudication upon the question at issue is conclusive as a bar or as evidence. It is said that the proceedings resulting in the writ of mandamus were not pleaded, and therefore are not available to the defendant. The fact, however, is found by the trial court, and it was not excepted to. Under such circumstances, effect must be given to the finding. This court will assume that the evidence upon which the fact was based was received without objection, and that the absence of a pleading was waived. If the finding had been excepted to, the plaintiffs could raise the point now that it was not sustained by evidence or pleading, but, as no such exception appears, they are in no position to attack it. Daniels v. Swith, 130 N. Y. 696, 29 N. E. Rep. 1098. But, clearly, one of the issues presented by the pleadings was the power of the executive board to pass the resolution and enter into the contract. A former adjudication, in which that point was determined, was evidence for the defendant en that issue, and the judgment upon the application for a mandamus was such an adjudication. Culross v. Gibbons, 130 N. Y. 447, 29 N. E. Rep. 839.

The common council had no power to make the contract, but the executive board had. Therefore, in entering into such contracts, the board represents the city in the same sense that the mayor and common council would represent it if the duty devolved upon them; and a judgment in an action or proceeding against the board to compel them to act with respect to the awarding of the contract, in which it is decided that the board has the power and it is their duty to proceed, estops the city. The board in such matters represents the city in the same way that the board of supervisors represents the county in auditing claims against it ander the direction of a judgment. It is true that this point was not argued, but the finding necessarily injected it into the case. Whether the plaintiffs were privies or not depended upon the legal conclusion to be drawn from the finding of the court, and not from any designation given them

in the stipulation. That is satisfied when construed to mean that none of these plaintiffs were parties to the record, or stand in the place of any person who was by succession or transfer. The motion should be denied, with costs. All concur.

VAN ETTEN V. NEWTON et al. (Court of Appeals of New York, Second Division. June 7, 1892.)

DEMURRAGE-LIABILITY OF CONSIGNEE.

Where a bill of lading contains no stipulation that the consignee shall be liable for damages in the nature of demurrage for delay in loading, the consignor alone is liable, though the consignee agreed with the carrier as to the rate of freight, and paid it when the goods were delivered. 8 N. Y. Supp. 478, affirmed.

Appeal from common pleas of New York city and county, general term.

Action by Ambrose Van Etten against George B. Newton and others to recover damages in the nature of demurrage for the unreasonable detention of plaintiff's boat. From a judgment of the general term affirming a judgment for plaintiff, defendants appeal. Affirmed.

The other facts fully appear in the following statement by PARKER, J.:

This action was brought in the first district court of the city of New York to recover damages in the nature of demurrage for the unreasonable detention of plaintiff's boat. A member of the firm of Merritt Clark's Sons, of Derby, Conn., called on the defendants on the 7th day of May, 1888, and purchased a cargo of coal, at the same time directing the defendants to advise Captain Van Etten, this plaintiff, to call upon them in relation to the freight of the cargo. Merritt Clark's Sons fixed the rate of freight. The defendants immediately wrote the plaintiff, asking him to call, which he did the day following. The plaintiff was operating two boats,-one of them was propelled by steam, and used to tow the other; and he advised the defendants that he did not wish to take the cargo unless it could be promptly loaded, as he could only use his two boats to advantage by having his cargo so arranged as to take both boats on each trip. testifies that he was assured that the coal would be ready for loading at Perth Amboy on the 10th of May. Coal was first put in his boat on the 15th of May, at which time 80 tons were loaded; the balance of the cargo, in all 250 tons, being loaded on the 17th of May. The defendants admitted on the trial that if the coal had been ready for loading the boat could have been loaded in five hours. The evidence is ample to support the judgment rendered, provided the defendants are legally chargeable with any damages whatever by way of demurrage. That question alone requires consideration on this review.

De Lagnel Berier, for appellants. son Zabriskie, for respondent.

He

Nel

PARKER, J., (after stating the facts.) When a bill of lading contains a stipulation for demurrage, the acceptance of the goods is evidence of an agreement on the part of the consignee to pay both freight

and demurrage. Jesson v. Solly, 4 Taunt. 52; Wegener v. Smith, 15 C. B. 285. But, in the absence of such a stipulation, it is generally held that the consignee is not bound to respond in damages in the nature of demurrage, because, not being a party to the contract in the bill of lading, the contract implied from its subsequent acceptance by him cannot extend beyond the conditions upon which its delivery is made dependent. Gage v. Morse, 12 Allen, 410; Young v. Moeller, 5 El. & Bl. 755. A delay at the place of delivery, occasioned by the fault of the consignee, furnishes an exception to the rule. Ford v. Cotes worth, L. R. 4 Q. B. 127; Crawford v. Rittenhouse, 1 Fed. Rep. 638. Here the direct contract of the plaintiff under the bill of lading was with the defendants, who were the shippers of the coal. Blanchard v. Page, 8 Gray, 281, 290-295. Merritt Clark & Co., the consignees, were not parties to it. The delay complained of was not due to any fault on their part. It did not occur at the place of delivery, but at Perth Amboy, where the vessel was loaded. Within the rules alluded to, therefore, the consignees were not liable, as the bill of lading contained no stipulation that the consignees should pay demurrage. Under a contract of affreightment the shipper is liable for the freight, although, as in this case, it provides for the collection of the freight from the consignee. The shipowner is not entitled to payment unless he performs his part of the contract; and, by providing in the bill of lading that the consignee shall pay, performance is first secured by the shipowner, who is ordinarily amply protected, as he has a lien on the goods carried for the amount due him, and a cause of action against the consignor in case the consignee refuses to pay, and his lien proves insufficient or be lost; the consignee, in such cases, as to payment of freight, being treated as the agent of the consignor. And if the bill of lading provides for demurrage to be paid by the consignee, the consignor is also liable for its payment in the event that the consignee refuses to pay. If it be silent on the sub. ject of demurrage, in case of detention of the vessel for loading by the consignor for an unreasonable time, damages in the nature of demurrage may be recovered from him. Fisher v. Abeel, 66 Barb. 382. The contract between these parties did not provide for demurrage, but under it plaintiff was entitled to recover for unreasonable delay. There was evidence tending to show such delay before the trial court, and it was so found as a fact. The general term, on the argument, as well as on the reargument, after carefully considering the evidence in such respect, atdried the finding, and it is now controlling.

So far the discussion has proceeded on the assumption that the bill of lading constitutes the real contract of affreightment, and the conclusion necessarily following from that position is that the plaintiff's recovery is well founded. The appellants contend, however, that the plaintiff was engaged by the consignees to carry the cargo, and therefore the defendants are not liable under the contract, although

the delay was unreasonable, and wholly due to their fault. Their contention is founded on evidence to the effect that plaintiff agreed with the consignee as to the rate of freight, and they insist that it follows that the defendants were not liable notwithstanding the terms of the written contract to which they were parties. A bill of lading has a twofold character, - First, that of a receipt; and, second, that of a contract. The receipt, as between the shipper and shipowner, is explainable, but parol evidence is not admissible to vary the terms of that portion of it constituting the contract. 1 Pars. Shipp. & Adm. p. 190, and cases cited. The acceptance of a bill of lading by the shipper, with knowledge of its contents, makes of that instrument a binding contract, and defines the rights and liabilities of the parties to it. Railroad Co. v. Pontius, 19 Ohio, 221; Germania Fire Ins. Co. v. Memphis & C. R. Co., 72 N. Y. 90. Now the defendants do not question the acceptance of the bill of lading, with full knowledge of its terms. The evidence fails even to suggest that there was any understand. ing or expectation between these parties that their relations were to be other than usually obtain between consignor and shipowner, and such as are evidenced by this contract, although without objection the defendants were permitted to show that the consignees suggested plaintiff for the carrier, and that they agreed with him upon the price to be paid. But such acts are not necessarily inconsistent with the contract which these parties made. It is usual for the consignee to pay the freight to the shipowner. Ordinarily the bill of lading provides that he shall do it. If he be the purchaser as well as the consignee, although treated for commercial reasons as the agent of the consignor in making payment, in practical effect the payment is on his own account, and must necessarily be added to the price paid the consignor for the goods in order to determine the total cost to himself. He is therefore directly interested in fixing the rate of freight, and it is not unusual for him to take part in the negotiations for it. But that fact does not constitute him the shipper. The bill of lading names the shipper, and in this case the defendants are so designated, and the acceptance of it by them created a contract with the plaintiff that their relation to each other was that of shipper and shipowner, and that they would severally discharge the obligations which the law had previously declared vested on those entering into such a contract. In Bacon v. Transportation Co., 3 Fed. Rep. 344, the consignee was charged in damages for occasioning delay to the shipowner, but it appeared that it was also the shipper of the cargo, "and hence, as a party to the contract of affreightment, is accountable for any breach of an obligation imputed by it;' citing The Hyperion, 7 Amer. Law Rev. 457. The evidence to which we have referred would doubtless have been excluded, had objection been properly made. But, as it is before us, we have given it such consideration as it seems to merit, and have reached the conclusion that it can

not operate to nullify, destroy, or impair the written contract subsequently entered into between these parties, by which the defendants declared themselves to be, as they doubtless were, in fact, the shippers of the cargo. The judgment should be affirmed. All concur.

PLETT V. WILLSON et al.

(Court of Appeals of New York, Second Division. June 7, 1892.)

STATUTE OF LIMITATIONS ACTIONS CONCERNING

LAND.

Code Civil Proc. § 382, requiring an action on a contract obligation or liability, express or implied, except a judgment or sealed instrument, to be brought within six years, applies to an action to foreclose an unsealed contract for the sale of land against a vendee in possession. LANDON, J., dissenting. 10 N. Y. Supp. 953, mem., reversed.

Appeal from supreme court, general term, fourth department.

Action by Maurice Plett against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., deceased, to foreclose an unsealed contract for the sale of land by plaintiff to the Willsons. Defendants pleaded the statute of six years' limitation. From a judgment of general term entered on an order affirming a judgment for plaintiff, defendants appeal. Reversed.

The other facts fully appear in the following statement by PARKER, J.:

In 1870 the plaintiff, Fowler Willson, and Fowler Willson, Jr., executed a written contract, not under seal, by which the plaintiff agreed to sell, and the Willsons agreed to purchase, land at an agreed price, to be paid for in annual installments, with annual interest, the last payment falling due April 1, 1880; upon which date the plaintiff, upon receiving full payment of the purchase price, was to convey the land to the vendees by a warranty deed. The vendees took immediate possession of the land under the contract, and remained in possession thereunder until May 31, 1875, when Fowler Willson, Jr., assigned his interest in the contract to Fowler Willson, (bis father,) the two having then paid $1,415.66 towards the purchase price and interest. Thereafter Fowler Willson continued in possession until August 4, 1877, when he died intestate, leaving Sarah Willson, his widow, and several heirs at law. Between May 31, 1875, and August 4, 1877, Fowler Willson paid $150 on the contract. August 5, 1878, said Sarah Willson received letters of administration upon the estate of said Fowler Willson, deceased. Since the death of Fowler Willson his widow and heirs have remained in possession of the land, and were in possession at the time of the trial. Between the date of the death of Fowler Willson (August 4, 1877) and April 3, 1880, said widow and heirs paid (exclusive of $192.50 paid May 6, 1877, by Eamed & Smith under an order of the special term granted March 10, 1877) $345. Payments were made annually, except in the year 1877, on this contract, from its date until April 13, 1880, when the last one, except said $192.50, was made. This ac

tion was begun January 8, 1887, to fore close the contract and apply the avails towards the payment of the remainder of the purchase price, and a judgment for any deficiency that might arise was asked for against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., in her representative capacity. The defend. ants interposed the six-years statute of limitations as their sole defense, and it was held not good, following Plett v. Willson, 4 N. Y. Supp. 507, and a judgment in favor of the plaintiff was rendered. H. S. Willson, for appellants. E. O. Worden, for respondent.

PARKER, J., (after stating the facts.) When the vendees made default in pay. ment the vendor, who still had the title, might have proceeded, in disaffirmance of the contract, by an action of ejectment to recover possession. Such an action is governed by the 20-years limitation. Code Civil Proc. § 365. While a possible result of the present suit might be to secure possession by the vendor, it is not an action for the recovery of real property, within the meaning of that section. Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, 50 N. Y. 468.

The vendor's other remedies were in affirmance of the contract, and were two in number: (1) A common-law action against the vendees to recover the balance of the purchase price; (2) a suit in equity to foreclose the contract. Whether the vendor should elect to enforce the collection of his debt through a personal judgment against his vendees, or by means of a foreclosure and sale of the property, his action would be on the contract which the vendees had failed to perform. Sections 380 and 382 of the Code of Civil Procedure provide that an action upon a contract obligation or liability, express or implied, except a judgment or sealed instrument, must be commenced within six years after the cause of action has accrued. As the contract in suit was not under seal, the sections quoted apply, and, more than six years having elapsed after the cause of action accrued and before the commencement of this suit, it is barred. Borst v. Corey, 15 N. Y. 505, criticised; Graves v. Coutant, 31 N. J. Eq. 773; Trotter v. Erwin, 27 Miss. 772-779. The judgment should be reversed. All concur, except LANDON, J., dissenting, and FOLLETT, C. J., not sitting.

LANDON, J., (dissenting.) I cannot concur. I do not think the action is strictly upon the contract; it respects the equitable disposition of lands of which the plaintiff has the legal title, and the defendant such equities as his partly performed contract gives him. Defendant refuses further performance, but retains possession of the land. Equity requires that the land be converted into money, and the money be equitably distributed. The judg ment appealed from provides such relief. If plaintiff had given defendant a conveyance of the land, and this action were simply to enforce his equitable lien for the unpaid purchase money, the debt would be the substantive cause of action, and

the right to equitable relief would be barred with the debt itself. Borst v. Corey, 15 N. Y. 505. In that case the plain. tiff had parted with his title, and had only the lien which equity gave him. Here the plaintiff retains his title, and the defendant has only such equities as his part performance gives hini. These two estates in the land, the one legal and the other equitable, may coexist for an indefinite period, unless the parties merge them. The defendant refuses to act as he has agreed, and the plaintiff, willing to do equity, seeks its aid, not strictly to enforce his equitable lien, but to obtain from his own land what it ought, as between him and the defendant, to yield him. His action for the debt may be barred, but his right to make an equitable disposition of his land and its proceeds continues to exist. Lewis v. Hawkins, 23 Wall. 119; Hardin v. Boyd, 113 U. S. 757, 5 Sup. Ct. Rep. 771. The six-years limitation, under section 382, does not apply; and the tenyears limitation, under section 388, had not expired when this action was commenced.

GALLAUDET et al. v. KELLOGG et al. (Court of Appeals of New York. June 7, 1892.) ACTION ON CONTRACT-PLEADING-VARIANCEQUESTION FOR JURY-DISMISSAL.

1. Plaintiffs sued on an alleged contract by which defendants promised to pay them $100,000 for their assistance in procuring the contract for building a bridge to be awarded to defendants. By the written contract, as proved on the trial, defendants promised to pay plaintiffs a commission of 5 per cent. up to the amount of $100,000, to be deducted from cash payments to defendants on the bridge contract, for assisting defendants in the financial arrangements necessary to complete the bridge within the time specified by the contract. Held, that this was a material variance, and plaintiffs' action failed on the proof.

2. Where plaintiffs claimed that the written contract produced in evidence did not correctly state the verbal contract on which the action was brought, and which was entered into before the written contract was executed, and there was evidence to sustain plaintiffs' contention, it was error for the trial court to hold, as a matter of law, that plaintiffs accepted the written contract as a complete substitute for the previously existing verbal agreement. Per O'BRIEN, PECKHAM, and MAYNARD, JJ., dissenting.

3. Where there is a material variance, and plaintiffs' case fails on the proof, the court should dismiss the complaint, instead of directing a verdict for defendants.

16 N. Y. Supp. 79, affirmed.

Appeal from supreme court, general term, first department.

Action by Peter W. Gallaudet and Henry Fitch, Jr., against Charles Kellogg and others, composing what was known as the "Union Bridge Company," on a contract by which, it was alleged, defendants agreed to pay plaintiffs $100,000 for assisting defendants to procure the contract for the building of the Poughkeepsie bridge across the Hudson river. At the close of the case the court directed a verdict for defendants, and ordered plaintiffs' excep. tions to be heard at the general term in the first instance, and from a judgment overruling the same, and dismissing the complaint, plaintiffs appeal. Affirmed. v.31N.E.no.4-22

The opinion was delivered at general term by PATTERSON, J., as follows: "We are of the opinion that the exceptions must be overruled, except as to the direction of a verdict. The cause of action set forth in the complaint was based upon a contract by which compensation was promised to the plaintiffs simply for serv ices in aiding and assisting in the procurement of an agreement whereby the defendants would become contractors for the work of building a bridge over the Hudson river at Poughkeepsie. According to the complaint, this agreement sued on contemplated nothing further of service or duty on the part of the plaintiffs than above stated, and for their aid they were to receive 5 per cent. of the price of the work, to be paid on the execution and delivery to the defendants of a contract for construction. While negotiations between the defendants and the parties for whom the bridge was to be built were pending and about concluded, but before the contract was signed, these plaintiffs and the defendants met in conference, and agreed upon a written statement of the understanding between them; and there can be no doubt, on the testimony, that the plaintiffs accepted that writing as containing the exact terms of the contract under which they were to be entitled to compensation from the defendants. It is dated August 27, 1886. Beveridge, who represented the plaintiffs, swears there was but one contract, and that it is expressed in that paper. He testifies as follows: 'I still say there was but one contract between our firm and the defendants for a commission of five per cent. on the contract price, and this paper of August 27th was drawn up to give us evidence,-the written evidence of it.' On the proof, therefore, it is apparent that the action failed. The cause of action sued on was not only not made out, but a substantially different contract from that counted upon was proven,-one which fixed the compensation differently, provided for its payment from a specified source, and required from the plaintiffs additional and future service. It is clear there were not two contracts entered into between the plaintiffs and the defendants, and it is also clear that the contract of August 27th was that upon which both parties reposed as the evidence of their respective rights and obligations. Under these circumstances, it is quite clear the plaintiffs were not entitled to recover: but we are of opinion that the complaint should have been dismissed instead of a verdict being ordered. All the exceptions, except as stated, are overruled, and judgment directed that the complaint be dismissed, with costs."

C. Elliott Minor, for appellants. Joseph H. Choate, for respondents.

PER CURIAM. Judgment affirmed, with costs, on opinion of general term.

EARL, C. J., and ANDREWS, FINCHн, and GRAY, JJ., concur. O'BRIEN, J., reads for reversal. PECKHAM and MAYNARD, JJ.,

concur.

O'BRIEN, J., (dissenting.) On the 27th of August, 1886, the defendants, under