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such sales and prior thereto plaintiff's customers, and that, if the defendant had not sold such chucks to the plaintiff's customers, the plaintiff could and would have manufactured and supplied to such customers substantially all the chucks so manufactured and sold to them by the defendant. The referee has based the damages allowed by him upon the net profits over all expenses which the plaintiff would have made had it manufactured and sold the various kinds of chucks and parts which were, in fact, made and sold by the defendant. In addition to that, he found that the defendant sold chucks to plaintiff's customers on more favorable terms of discount, the list prices of both parties being the same, than those which the plaintiff had previously given to its customers, and that, in order to meet this extra discount and to retain its trade with its customers, the plaintiff was compelled to meet the defendant's prices. The referee also computed and found the damages that the plaintiff had suffered by reason of this unlawful competition. He seems to have been within the authorities in thus fixing the damages sustained by the plaintiff. In Faber v. Hovey, 1 Week. Dig. 529, the General Term in the First Department held that the correct rule of damages is to award the plaintiff the profits which it could have made upon the manufacture and sale of the same quantity of goods manufactured and sold by the defendant. In 28Am. & Eng. Enc. of Law (2d Ed.) p. 438, in discussing the question of damages in this class of cases, it is said:

“The plaintiff may also recover such actual damages to himself as he is able to prove by legal evidence. He is not limited to the profits made by the detendant. The rule is the same in cases of unfair competition as in cases of infringement of technical trade-marks."

In Williams v. Mitchell, 106 Fed. 168, 45 C. C. A. 265, the United States Circuit Court of Appeals in the Seventh Circuit held that in case of an invasion of plaintiff's rights by unfair competition he was entitled upon proper proof to compensation to the extent of the invasion. Damages occasioned by enforced reduction of plaintiff's prices are properly recovered in cases of this character. Sebastian on the Law of Trade-Marks (4th Ed.) pp. 233, 234.

I think the judgment and orders should be affirmed, with costs.

SEWELL, J., concurs.

106 N.Y.S.-65

and 140 New York State Reporter (55 Misc. Rep. 634.)

CHAUTAUQUA LAKE MILLS v. HEWES et al.

(Chautauqua County Court. August, 1907.) 1. JUSTICES OF THE PEACE-APPEAL-PRESUMPTIONS.

In an action before a justice for the price of bran sold by plaintiff's salesman, the admission of a memorandum of the transaction made by the salesman at the time, and which he testified is correct, in the absence of testimony that he had no recollection of the transaction, though incompetent, is cured, where on cross-examination he testifies that he does not remember anything in particular about the day, and the memorandum is not returned on appeal from a judgment for plaintiff, and therefore must be presumed to have been sufficient.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the

Peace, $ 712.] 2. SALES-ACTION FOR PRICE-QUESTION FOR JURY.

In an action for the price of goods sold, positive testimony of plaintiff that defendants purchased the goods, as against that of both defendants, who denied receiving same, presents a question of fact for the jury.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 43, Sales, $ 1064.) Appeal from Justice Court.

Action by the Chautauqua Lake Mills against Frank Hewes and Cassius M. C. Hewes. From a judgment for plaintiff before a justice, defendants appeal. Affirmed.

C. F. Chapman, for appellants.
Van Dusen & Martin, for respondent.

OTTAWAY, J. This action was brought by the plaintiff to recover the value of a quantity of bran claimed to have been sold and delivered to defendants by the salesman of the plaintiff. Upon the trial of the action the salesman of the plaintiff testified that the defendants came to the mill of plaintiff and got a ton of bran, which was charged to the defendants, that he made a memorandum of the transaction at the time, and that the memorandum was correct. The plaintiff's attorneys then offered in evidence the memorandum. Objection was made by defendants' attorney on the ground that it was incompetent. The objection was overruled and the memorandum received.

In the absence of testimony by the plaintiff's witness that he had no recollection of the transaction, the reception of this evidence was error. The defendants' objection that it was incompetent was sufficient, and were it not for subsequent events in the history of the trial its receipt would be sufficient grounds for the reversal of the judgment rendered herein. Upon cross-examination the witness testified that he did not remember anything particular about the day. He testified:

"I go by the entry. I don't remember that either one of the defendants were there that day. I don't remember that they told me to charge feed to then when they came after it.”

It is claimed by the plaintiff's attorneys that this evidence made the memorandum competent and cured the error committed by its reception. The memorandum is not returned for the information of this court. Under this evidence certain memoranda would have been competent, and in the absence of any return as to the contents of the memorandum, under the rule laid down for the guidance of appellate courts in the review of justices' judgments, the memorandum must be presumed to have been sufficient and competent. In view of the positive testimony of the witness for the plaintiff that the defendants came to the mill and purchased the bran, the court would not be authorized in reversing the judgment rendered upon the verdict of a jury, even though it appears that both defendants deny receiving the bran. The evidence raised a question of fact peculiarly within the province of a jury to determine. Judgment should be affirmed, with costs to the respondent.

Judgment affirmed, with costs to respondent.

(55 Misc. Rep. 629.)

CITY OF JAMESTOWN V. ARTER.

(Chautauqua County Court. August, 1907.) 1. MUNICIPAL CORPORATIONS-IMPROVEMENTS-ACTION TO RECOVER PRICE PAID.

A city sued to recover the amount paid a contractor for the building of a sidewalk, on allegations that he had obtained payment on the fraudulent representation that he had constructed the sidewalk according to his contract, which provided that the work should be done under the direction of the sidewalk committee and street commissioner, and the price was to be paid when the work had been approved by them. The contractor was paid on the certificate of the street commissioner after such approval. Held, that the city was bound thereby in the absence of fraud.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Cor

porations, $ 890.) 2. SAME_VARIANCE FROM CONTRACT.

In an action by a city to recover an amount paid a contractor for the building of a sidewalk, where the city gave no evidence that the material was not suitable, and the evidence of defendant showed it was proper, though not the material specified in the contract, and the contractor was paid on a certificate by the street commissioner after approval by the

sidewalk committee, no fraud is shown on the part of the contractor. 3. SAME-RECEPTION OF BENEFITS–ESTOPPEL.

Where the city, under a resolution of its common council certifying that an abutting owner had been benefited in excess of the cost of a sidewalk, assessed the amount of such benefit, with 10 per cent. added, on the abutting owner, thus receiving the benefit of the contract for the erection of the sidewalk, it is precluded from maintaining an action to recover from the builder of the sidewalk the price paid therefor.

[Ied. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 898.] Appeal from Justice Court.

Action by the city of Jamestown against William O. Arter. From a judgment of a justice for plaintiff, defendant appeals. Reversed.

A. Frank Jenks, for appellant.
E. Green, for respondent.

OTTAWAY, J. This is an appeal from a judgment rendered in a justice's court in favor of the plaintiff and against the defendant.

Upon the 21st day of July, 1906, plaintiff and defendant entered into a written contract for the construction of a cement sidewalk in

and 140 New York State Reporter front of the property of Francis Pierce in the city of Jamestown, N. Y. The walk was to be constructed of cement, upon an established grade and line, not less than five feet wide, on a foundation to be made by excavating to a depth of not less than one foot below the grade of the walk, the excavation to be filled to the grade with good gravel or cinders, thoroughly rammed to a uniform and even grade, on which the walk was to be laid. The walk was to be constructed in accordance with a plan on file in the office of the city engineer. The contract further provided that the work should be done under the direction of the sidewalk committee and the street commissioner, and the contract price should be paid when the work and material had been approved in writing by the sidewalk committee and street commissioner. The contract contained other provisions not necessary to be considered in the disposition of this case. Thereafter, and prior to August 4, 1906, the defendant constructed a cement walk in the place indicated by the contract. The street commissioner of the city of Jamestown measured the walk. August 4, 1906, the defendant prepared a statement of the amount claimed to be due him by virtue of this contract with the city, and verified this statement as required by the common council of the city of Jamestown. The street commissioner attached his O. K. to the bill of the defendant, whereupon the common council, by resolution, directed the warrant to issue for the payment of the amount of the bill. This warrant was cashed by the defendant.

Upon the 15th day of November, 1906, plaintiff commenced an action to recover the amount thus paid to the defendant, alleging fraud upon the part of the defendant, in that the defendant had obtained said money upon the false and fraudulent representations that he had constructed said walk in accordance with the contract between the plaintiff and defendant. The plaintiff further alleged that the defendant had not used good gravel or cinders in filling the excavation as provided by his contract; that in place of gravel or cinders he had used earth containing but a small proportion of gravel. The summons issued herein was returnable upon the 23d day of November. Upon the 20th day of November the common council of the city of Jamestown, after a preamble reciting the history of preceding events in relation to certain assessments, including the one in question, by resolution enacted:

"That the respective amounts hereinafter mentioned are hereby determined to be just and reasonable amounts to be assessed upon the respective lands referred to herein and to be the benefits conferred upon respective lands by said improvements; and be it further resolved, that said common council does hereby assess the following sums against the premises hereiu designated respectively, that is to say: The lands owned or occupied by M. Francis Plerce, West Sixth street, cement walk, $42.15."

The amount so assessed against the property of M. Francis Pierce was 10 per cent. in excess of the amount received by the defendant.

The only criticism urged by the plaintiff is as to the character of the filling, which it claims is neither cinders nor good gravel. The term "good gravel," as used in the contract, is not specific. Both words are subject to great latitude in their application. It is apparent, from the use of these words and the other provisions of the contract, that the

plaintiff relied upon the approval of its street commissioner and its committee upon sidewalks to determine the material to be used for this purpose. The contract provided that the work should be done under the direction of the sidewalk committee and street commissioner, and the contract price should be paid when the material and work had been approved by these parties. It is evident that the plaintiff paid the defendant upon the certificate of its street commissioner. In the absence of fraud the plaintiff cannot challenge the decision of those whom it contracted to determine the question of performance and nonperformance and upon whose determination it promised to make payment. Brady v. Mayor, 132 N. Y. 428, 30 N. E. 757; People ex rel. Ready v. Mayor, 144 N. Y. 63, 38 N. E. 1006; Dillon v. City of Syracuse, 55 Hun, 612, 9 N. Y. Supp. 98.

The evidence in this case utterly fails to make out a case of fraud upon the part of the defendant as against the city. Fraud cannot be presumed. It must be proven. Considerable evidence was given as to the character of the filling. The plaintiff offered evidence tending to prove that in the opinion of the witnesses good gravel or cinders was not used. There was no evidence upon the part of the plaintiff that the material used was not suitable for the purpose. It is elementary that there must be evidence of damage in an action for fraud. The defendant, upon his part, introduced evidence tending to show that the material used was proper. Under the terms of the contract the street commissioner and committee upon sidewalks had authority to accept the material used by the defendant in filling. There is no allegation or claim that there was any collusion between the street commissioner and the defendant. Neither is it claimed that the defendant did anything to prevent investigation. Under these circumstances the city is bound by the acceptance of its street commissioner. No remedy survives acceptance, in the absence of fraud or latent defects. The street commissioner, in the exercise of his legitimate authority and representing the city of Jamestown, had full power to take action in the premises in conjunction with the common council of the city of Jamestown, and in the absence of fraud the city is bound by their action. People ex rel. Ready v. Mayor, 65 Hun, 321, 20 N. Y. Supp. 236.

The city, in all its contracts and dealings with individuals, must be adjudged to abide by the rules which govern in determining the rights of private citizens contracting and dealing with each other. There is not one law for the sovereign and another for the subject. Whenever the sovereign engages in business, and in the conduct of business enterprises and contracts with individuals, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon an equality before the law. The city is not in tutelage as one incapable of acting sui juris, but has capacity to act in all matters by its representatives and agents, and is bound by the acts and admissions of its duly appointed and recognized officers and representatives, acting within the general scope of their powers, whether ministerial or executive. In the absence of fraud or collusion, the acts of public officers within the limits of the authority conferred upon them and in the per

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