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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. opinion that he was in fact and in law authorized to receive the latter as well as the former payments, and that the loss consequent upon his embarrassments and insolvency must fall upon the plaintiff who first employed and continued to trust him." This rule was fully reaffirmed in Crane v. Gruenewald (supra).

In all these cases the possession of the securities is treated as indicative of the apparent authority. The debtor takes the risk of that apparent authority being unreal. The possession may be unlawful or accidental. The mortgagee or the assignee may never have intrusted such possession to the attorney. In that case, the payment is unauthorized. But if he has intrusted such possession to the attorney, the debtor does not lose his money merely because when he made the payment he was not informed of that circumstance. The apparent authority must be supplemented with the fact that the securities were intrusted to the attorney by the mortgagee or assignee, but not necessarily with the knowledge of that fact. So with the still anterior fact of the attorney's negotiation of the security. The apparent authority must be supplemented with that circumstance as well but not necessarily with knowledge thereof. If the debtor pays upon the apparent authority inferable from the possession, his payment is good if the anterior circumstances, upon which the intrusted possession rests, are actual facts. He takes that risk, and that only. The payment here was made upon the apparent authority of the attorney, resting solidly upon all the facts which, under well-settled rules, gave it life and substance. Such payment was, therefore, good. It is not, in my judgment, the province of a court of intermediate appeal to modify the rules which have been clearly laid down by the court of last resort. If those rules are not adapted to the present conditions of our modern business life, the propriety and wisdom of limiting or expanding them should be left where it exclusively belongs to the court which has authority to reconsider its own judgments.

I feel constrained, therefore, to dissent from the opinion of the majority of my brethren, and to vote for the affirmance of this judgment

O'BRIEN, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide

cvent.

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

THE ABE STEIN COMPANY, Respondent, v. JULIUS ROBERTSON,

Appellant.

Bill of sale of goods to be shipped — damages for a failure to deliver the goods.

Under an instrument which reads:

"Sold for account of Messrs. L. F. Robertson & Son.

"To the Abe Stein Company.

"About 85,000 Teintsin goat skins, firsts, 1 to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by steamer or steamers to New York.

*

* *

"Skins to be of the usual good quality of this province; any question of quality to be decided by selling brokers, and their decision to be final and binding on both parties," accompanied by an arrangement between the parties "that the usual condition of 'no arrival, no sale,' holds true," a failure on the part of the vendors to deliver goods of the quality required by the contract entitles the buyer to the damages resulting from such failure.

APPEAL by the defendant, Julius Robertson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 7th day of November, 1898, denying the defendant's motion for a new trial made upon the minutes.

Charles E. Rushmore, for the appellant.

S. Livingston Samuels, for the respondent.

RUMSEY, J.:

On the 24th of May, 1895, the defendant entered into a contract with the plaintiff, of which the following is a copy :

"NEW YORK, May 24th, 1895. "Sold for account of Messrs. L. F. Robertson & Son. "To the Abe Stein Company.

"About 85,000 Tientsin goat skins, firsts, 1 to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by steamer or steamers to New York.

38 311 a167a101

312

M

ABE STEIN CO. v. ROBERTSON.

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

"About of lot to be medium black haired skins, and the remainder white or gray haired skins, of which 40% medium hair, 60% medium to long hair.

"Skins to be of the usual good quality of this province; any question of quality to be decided by selling brokers, and their decision to be final and binding on both parties.

"Terms net cash and to be taken from the wharf.

"JOHN ANDRESEN & SON,
"Brokers."

Two days afterwards it was arranged between the parties" that the usual condition of 'no arrival, no sale,' holds true, and that the sellers are to notify you upon what vessel or vessels the goods are shipped." Subsequently the sellers notified the broker of the arrival of a portion of the goods, which were inspected by him, but he determined that they were not of the quality prescribed in the contract. As subsequent shipments were received, they also were examined by the broker, and he reached the same conclusion with regard to them. The plaintiff, therefore, refused to receive them, and brought this action for the damages which it had sustained by the failure to deliver the goods contracted for. Upon the trial there was no serious question of the amount of damages, and a verdict was ordered for the plaintiff for the amount proved, upon which a judgment was entered. A motion was made for a new trial, which was denied, and from the order and judgment the defendant takes this appeal.

It is urged by the defendant that the contract was conditional, not only as to its performance, but as to its existence, and that because it contained the condition that if there was no arrival of the goods there was no sale, if the goods specified in the contract, of the quality therein prescribed, did not in fact arrive, therefore, the contract was at an end; and he based his argument for a reversal of this judgment upon that proposition, and enlarged upon it in his supplemental brief, which we have considered.

It is quite true that in the case of the sale of goods already in transit, where there is no warranty that the shipment has been made, and where the fact of shipment may be uncertain, the existence of the contract itself is conditional upon the arrival of the goods of the quality which is specified in it. (Shields v. Pettie, 4 N. Y. 123.) In such contracts, if the goods contracted for do not

App. Div.],

FIRST DEPARTMENT, MARCH TERM, 1899.

arrive, either because the vessel is lost, or for any other reason, without fault or fraud of the seller, the contract is at an end. (Benj. Sales, § 578, et seq.; Neldon v. Smith, 36 N. J. L. 148, 154.) But such a condition as to the existence of the contract has never been held to arise where the contract either contains a warranty that the shipment had been made (Benj. Sales, § 580, et seq.), or an express agreement on the part of the seller to make the shipment within a specified time. (Norrington v. Wight, 115 U. S. 188; Bowes v. Shand, 2 App. Cas. 455.) In such a case the contract becomes at once an existing contract, and the agreement as to the quality of the goods is a condition precedent to their receipt by the buyer, which must be performed by the seller; and unless he ships goods of the quality required by the contract, he fails to perform it and the buyer is entitled to damages for such failure (Clark v. Fey, 121 N. Y. 470; Eppens, Smith & Wiemann Co. v. Littlejohn, 27 App. Div. 22), because, as the seller has expressly agreed to ship the goods, a failure to arrive resulting only from his failure to ship, as caused by the default of the seller, does not operate to relieve him from his contracts. In this case, the contract containing the provision that the goods were to be shipped immediately by steamer or steamers to New York, the defendant was bound to ship goods of the quality required; and if he failed to do it, he was liable for a breach of the contract.

By the contract, the question of quality was to be decided by the selling brokers, and their decision was to be final and binding on both parties. It is not disputed that the selling brokers decided that the goods were not skins of the usual quality of the province of Tientsin, which, by this contract, they were to be. It is not claimed that there was any fraud or mistake, or collusion, on their part, and, therefore, their decision upon that point was final. (Sewer Comrs. v. Sullivan, 11 App. Div. 472; Wahl v. Barnum, 116 N. Y. 87.)

For these reasons the judgment and order appealed from was correct and must be affirmed, with costs to the respondent.

VAN BRUNT, P. J., BARRETT, O'BRIEN and INGRAHAM, JJ., concurred.

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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

MARY CAHILL, Respondent, v. THE MANHATTAN RAILWAY COMPANY,

Appellant.

Action in forma pauperis — an agreement by the plaintiff to pay his attorney is fatal to the right to continue it.

An agreement for compensation, made between an attorney and a plaintiff who has obtained leave from the court to prosecute as a poor person, is fatal to the plaintiff's right to continue the action in forma pauperis.

APPEAL by the defendant, The Manhattan Railway Company, from an order of the Supreme Court, made at the New York Special Terin and entered in the office of the clerk of the county of New York on the 2d day of December, 1898, granting the plaintiff leave to prosecute the action as a poor person.

Joseph II. Adams, for the appellant.

Robert H. Ernest, for the respondent. O'BRIEN, J.:

The action is to recover damages for personal injuries. It is admitted that the attorney made an agreement with the plaintiff whereby he had an interest in any recovery as compensation for his services. The Code of Civil Procedure ($$ 458-467) provides that where an order is made permitting prosecution by the plaintiff of the action as a poor person, the court by order must assign an attorney "who must act therein without compensation." (Code Civ. Proc. 460.) The agreement made was, therefore, fatal to the plaintiff's right to a continuance of the action as a poor person by an attorney acting under such an agreement.

The force of this argument, however, is said to be met by a stipulation which the attorney says he made subsequently before the motion, but which does not appear in the moving papers, whereby he stipulated that he would prosecute the action without compensation. If such a stipulation has been made, it has not been filed, nor does it appear among the papers, nor are we informed of its exact terms. And, which is equally important, there is no statement from the plaintiff herself that she has accepted or acted upon the force of the stipulation, and no statement as to what her understand

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