Vide EVIDENCE, 10, 14. JUDGMENT, 1, 2.
FORMER RECOVERY. Vide EVIDENCE, 10, 11.
1. Express company receiving goods, to deliver, for a price covering whole cost of transportation: Held, carriers and not forwarders merely although they use the conveyances of others in performing their service. Read v. Spaulding, .395
1. Admissibility of cotemporaneous transactions in evidence. Durbrow et al. v. McDonald et al.,.......130
1. Where, by a written and sealed contract between B and C, B covenanted to furnish the brown stone for eight houses, and set them by a certain time, for $2,000, to be paid in notes of $500 each, to be made by R, and delivered as the work progressed, and C agreed to pay therefor in such notes accord- ingly; and C drew an order on R to deliver such notes to B "when the stone is delivered according to the contract, and at such times as therein stated," and R afterwards ac- cepted such order by an indorsement thereon signed by him thus: "Ac- cepted Oct. 17, 1856," the contract of R is one to answer for the debt or default of C, and the writing so signed by him does not express the consideration thereof, and is void by the statute of frauds. Roberts,
1. In an action against a Sheriff to recover the possession of personal property which the latter has seized under an attachment issued in an action on contract, pursuant to the Code, against the plaintiff's vendor, the Sheriff may allege in his answer, and show by way of defense, that the transfer to the plaintiff was made with intent to defraud the creditors of his said vendor, having first shown the existence of a debt by such ven- dor, to the plaintiff in such attach- ment, and that the attachment was duly and regularly issued and exe- cuted. Thayer v. Willet, Sheriff,.344
2. It is essential to the right of plaintiffs in a judgment to maintain an action to set aside a deed of real estate made by the defendant in such judgment, as having been made with intent to defraud creditors, that an execution should have been issued on such judgment to the Sheriff be- fore suit brought. McCullough v. Colby et al.,.... .477
3. Unless the complaint avers the fact of issuing such execution, it will not state facts sufficient to consti- tute a cause of action. ... id
4. Although such an execution be issued after suit brought, that fact cannot be made a part of the plain- tiff's case, either by amendment of
1. Where a charter-party stipulated on the part of the charterers, that the master should be supplied by them with a sum not exceeding one- third of the freight "free of inte- rest and commission, which is to be in part payment of the freight at the exchange of twelve per cent premium, together with the cost of insurance on such advance," and by further provisions any other advan- ces they thought fit to make on the credit of the freight should, with premium, interest, commission and insurance, be considered in part payment of freight. Advances made under the first stipulation, where the voyage is in part performed, are at the risk of the charterers, volun- tarily placed by them at the hazard of the voyage, and are to be deem- ed freight earned, and not liable to be refunded, though the vessel is afterwards lost. Kinsman v. The New York Mutual Insurance Com- pany, ...460
2. Where the service has been in part performed, and the owner vol- untarily receives the goods at an in- termediate port, to which the vessel is driven by perils of the sea, freight pro rata itineris is earned and may be demanded. id
Vide ASSIGNMENT, 1. EVIDENCE, 1.
1. Where notes are pledged as secu- rity for the repayment of a loan, and the pledgor indorses such notes making them payable in terms to the pledgee "for account of" him- self. (e. g., "pay A B, for account of C D") the pledgee takes the title to the notes, and may sue upon and collect them. Such collection and the application of the proceeds to the payment of the debt due to himself is receiving payment for account of the pledgor, within the meaning of such an indorsement. Nelson et al. v. Wellington,.....178 Smith et al. v. Hall,..
2. The uniform custom and habit of an insurance company is sufficient
1. A transfer of collateral security made in good faith to secure a pre- sent loan to be used in due course of business, is not a transfer with intent to give a preference within the act (9) forbidding transfers by corporations, when insolvent, with intent to give a preference to one creditor over others. brook v. Basset et al.,. Nelson et al. v. Wellington,.....178
2. An Insurance Company cannot be said to be insolvent, or to act in con- templation of insolvency, within the act last mentioned, merely be- cause the sums insured greatly ex- ceed its capital; nor when its assets are more than sufficient to meet all losses of which the Company has any notice, information or suspi- cion; nor under such circumstances can a loan made by the Company, secured by collaterals, for the pur- pose of meeting the liabilities of the Company as they arise, with the belief that the Company is solvent and will meet all its engagements, and in order to sustain the Company in its business and enable it to do so, and with the application of the money raised to that object, be deemed a transfer with intent to give an unlawful preference. ....id
1. An insurer of passage money, gen- erally for the voyage, by a policy in the usual form of a freight policy, is not liable because the vessel is delayed on her voyage by perils of the sea, if she actually makes the voyage in suitable condition to carry to the port of destination all who embark on the voyage. Howard et al., v. Astor Mutual Insurance Company, .38
2. Insurance of passage money, gen- erally, is not an undertaking that the ship shall perform the voyage within any particular time, or that the insured shall have the benefit of special contracts for passage. But only that the ship shall not be pre- vented by the perils insured against from making the voyage, and earn- ing the passage money of those who embark in her; and that she shall not by a peril insured against be prevented from using her ports and receiving and transporting such per- sons as have engaged passage and are ready to embark in her......id
3. Mere delay of arrival is not ground of recovery from the insurer, al- though in consequence of such delay those who have engaged and paid in advance for passage at an inter- mediate port for the residue of the voyage, refuse to wait, and demand and receive back their passage money. .id
4. Where a policy of insurance upon buildings against loss or damage by fire provides "that in case of any transfer or termination of the inte- rest of the insured, either by sale or otherwise, without the consent of the insurers manifested in writing, the policy shall thenceforth be void and of no effect," and where the in- sured contracted to sell and convey the insured property to one S. for $5,500; viz.: $2,500 cash, and $1,500 in twelve and $1,500 in twenty-four months, and to keep Bosw.-VOL. V. 93
the premises insured, and that the benefit and indemnity against loss and damage by fire should enure to the said S., who was to pay to such insured the premium she might pay for the insurance, and to convey the property by warranty deed to S. on full payment by him of the purchase money; and S. forthwith took and kept possession of said premises, and where subsequently and after the $1,500 first payable had been paid, and before the other $1,500 was paid, and while the poli- cy was in force, the premises were damaged by fire to more than $2,000, the sum insured; and where no no- tice of the contract between the insured and S. had been given to the Company until after the loss; the insured is entitled to recover to the extent of the unpaid purchase money and interest due thereon, and to that extent only. Shotwell V. The Jefferson Insurance Com- pany,
« НазадПродовжити » |