and 120 New York State Reporter ranty. The warranty is general. The accident was not one which was a natural or probable result of a breach of that warranty. With a break in the machinery, the safety lever might not be expected to work, but it could not reasonably have been anticipated that the rollers would stop revolving for a sufficient time to induce the operator to put his hands upon them, and then, without apparent cause, commence to revolve, and cause the injury which has been here suffered. This is not such a case, then, as with a general warranty there can be held to have been contemplated any such consequential damages. The respondent contends, however, that while this warranty is a general warranty in form, inasmuch as the machine has a single use, to wit, the shredding and husking of corn, the legal interpretation of the warranty is that the machine is well made, and suitable for that purpose. He then argues that there is in legal effect a special warranty, which brings the case within the authority of those cases authorizing the recovery of consequential damages. It is not enough, however, to authorize the recovery of all consequential damages that the warranty should be special. The nature of the warranty must be such as to indicate the damage suffered as that contemplated by the contract of warranty. Within the respondent's contention as to the legal effect of this warranty, if a quantity of corn should be bruised in passing through the machine, such damage might well be held to be consequential damage within the contemplation of the parties, and as such recoverable. From a warranty that this machine was of good material and well made for the purpose of husking and shredding corn, no promise can legally be implied to compensate the vendee for personal injuries suffered in the operation of the machine. In Bruce v. Fiss, 47 App. Div. 273, 62 N. Y. Supp. 96, consequential damages were allowed for a breach of a warranty of a horse that it was "sound, kind and true, and gentle and kind in harness, and suitable for use by plaintiff in his profession as a physician to drive in harness as a carriage horse." Justice Cullen, in writing for the court, says: "We think one of the most natural and probable results of a breach of this warranty and from the viciousness of the horse would be injury to the vehicle and its occupants." The ultimate question in the consideration of all contracts is the determination of the real intention of the parties. In this contract of warranty, whether it be construed as special or general, we are unable to find any intent to become liable for any damage suffered beyond making good to the vendee the machine as warranted. Other objections to this judgment are urged by the appellant, which it thus becomes unnecessary to consider. The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. SCOTT v. INTERNATIONAL PAPER CO. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. NEGLIGENCE-FAILURE TO UNLOAD BOAT-DAMAGES-FAILURE OF PROOF. In an action for damages alleged to have been caused by defendant's unreasonable failure to unload a cargo of wood from plaintiff's canal boat, in consequence of which the boat, with cargo, was frozen in, it was shown that, if the boat had been immediately unloaded, it would still have been frozen in, and that it was necessary to have boats calked in the spring, whether they were frozen in with a load on or not. There was evidence that certain repairs were made, and the boat calked, but no showing that, if the boat had been frozen in unloaded, the same repairs and amount of calking would not have been required. Held, that no damage was proven. Appeal from Special Term, Washington County. Action by John J. Scott against the International Paper Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. The action is brought to recover damages for the defendant's failure to use reasonable diligence in unloading the plaintiff's cargo, shipped to the defendant at Ft. Edward, N. Y. Upon the 24th day of November, 1901, the plaintiff's boat, loaded with pulp wood for the defendant, reached Ft. Edward. Upon the morning of the 25th the plaintiff reported to the defendant that he was there ready to unload. Upon the 28th of November the canal was frozen solid, and no boats were thereafter unloaded. The plaintiff's claim is that, in violation of his rights, two scows which arrived after the plaintiff were permitted to be unloaded before the plaintiff, and that by reason thereof his boat was frozen in with its load on. He recovered a verdict of $53.50 for damages sustained under these circumstances, and from the judgment the defendant appeals. Edgar Hull, for appellant. Robert O. Bascom, for respondent. SMITH, J. It is not claimed that the defendant is responsible for any damage caused by the freezing of the canal alone. If the plaintiff's boat had been unloaded in its regular turn, it would still have been frozen in before reaching any other destination. The only damage which the plaintiff can here recover is the damage which the plaintiff suffered by reason of the fact of its being frozen in with the load on. It appears that it was universally necessary to have boats calked in the spring, to prevent leakage, whether they be frozen in with the load on, or free from the load. The only evidence of damage here is that it cost $7.50 to have the boat calked at Ft. Edward in the spring, and that it cost about $41 to have certain repairs made at Whitehall. There is no evidence in the case that those repairs made at Whitehall were repairs made necessary by the freezing in of the boat with the load on, and there is no evidence that the calking which was done at Ft. Edward was any more than would have been required, had the boat been frozen in unloaded. Without such proof, the plaintiff would seem to have failed to have established any damage for which the defendant here is legally liable. I am unable to see how the evidence as to the rental value of canal boats in the winter time in New York City could be of any assistance to 86 N.Y.S.-50 and 120 New York State Reporter the jury in ascertaining the damage properly chargeable to the defendant. For failure of proof, therefore, of damages for the claimed negligent act of the defendant, the plaintiff must be deemed to have failed to have established his cause of action, and the judgment and order must be reversed. MITTERWALLNER v. SUPREME LODGE KNIGHTS & LADIES OF THE GOLDEN STAR. (Supreme Court, Appellate Term. February 23, 1904.) 1. INSURANCE-PAYMENT-ACCORD AND SATISFACTION. Where a receipt given for a payment made on a policy of insurance expressly stated that the amount was received "under protest," it was insufficient to support a plea of accord and satisfaction. 2. SAME-BENEFICIAL ASSOCIATIONS-BY-LAWS-SUICIDE-PROPORTIONATE LIA BILITY. A by-law of a beneficial association providing that, in case a member commits suicide, the association shall be liable for only 75 per cent. of the face of his policy, was binding on a member who became such before the enactment of the by-law, where the original contract and by-laws were silent on the subject. Appeal from City Court of New York, Trial Term. Action by Louise Mitterwallner against the Supreme Lodge of the Knights & Ladies of the Golden Star. From a judgment in favor of plaintiff, defendant appeals. Reversed. See 76 N. Y. Supp. 1001; 78 N. Y. Supp. 1127. Argued before FREEDMAN, P. J., and GIEGERICH, and McCALL, JJ. W. R. Spooner, for appellant. GIEGERICH, J. The action is brought to recover $250; being a balance alleged to be due upon a beneficiary certificate in the amount of $1,000, on which $750 had been paid. The defense of accord and satisfaction was attempted, but failed. The receipt given by the plaintiff at the time the $750 was received expressly stated that the amount was received "under protest." The answer further set up the defense of the suicide of the insured, and the existence of a by-law which provided for the payment of only 75 per cent. of the face of the policy, under the circumstances of this case. That the assured committed suicide was, we think, proven by the defendant sufficiently for the purposes of this appeal. The respondent's counsel insists that, as the by-law was not enacted until after the deceased became a member of the society, it cannot be binding on the plaintiff, to cut off a right vesting before its enactment; but the language of the Court of Appeals in Shipman v. Protected Home Circle, 174 N. Y. 398, 405, 67 N. E. 83, 85, is directly adverse to such claim in a case like the present. It was there said: "If we assume, therefore, that the original contract and by-laws were silent upon the subject of suicide by the insured while sane, the amended by-law is valid, because there can be no such thing as a vested right to commit suicide, and for the further reason that it is nothing more than the written expression of a provision which the law had read into the contract at its inception." The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. CAMMARATA v. PENNSYLVANIA COAL CO. (Supreme Court, Appellate Term. February 23, 1904.) 1. WAIVER-RATIFICATION. In an action on a contract in which plaintiff claimed that a release of all liability which he had executed on receiving a payment under the contract was executed under duress, failure to return or offer to return the money received when the release was executed was a waiver of duress and ratification of the release. 2. RELEASE. A writing acknowledging the receipt by an employé of a certain sum in full for all claims for wages, and releasing the employer from all contracts previously entered into, was not a mere receipt, but a release relieving the employer from liability on a previous contract to employ the releasor a certain length of time. Appeal from Municipal Court, Borough of Manhattan, First District. Action by Guiseppe Cammarata against Pennsylvania Coal Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Stetson, Jennings & Russell (Allen Wardwell of counsel), for appel lant. Henry M. Heymann, for respondent. GIEGERICH, J. The action is to recover a balance of $38.30, claimed to be due under the following contract: "We, the undersigned, do hereby agree that if we decide to terminate with the services of Cammarata Guis, except for cause of failure on his part prior to thirty working days from the date hereof we will pay him the sum of sixty dollars. "Dated, October 15, 1902. "[Signed] Pennsylvania Coal Company, The pleadings were oral, and the answer was a general denial, release, payment, and counterclaim. It appeared in evidence that on or about October 14, 1902, the plaintiff, together with a number of other Italians, was taken to the defendant's mines in Pittston, Pa., at which a strike was then in progress; that, after working there 11 days, the strike came to an end, and the plaintiff and other Italians were told to quit work. When the plaintiff was discharged, he had been paid $4, and then received from the defendant's agent the sum and 120 New York State Reporter of $17.70, for which, he testified, he was compelled, under duress, to make his mark to the following paper writing: "Pittston, Pa. October 25, 1902. "Received from Pa. Coal Co. Seventeen 70/100 Dollars in full for all claims for wages against aforesaid coal Co., and I hereby release aforesaid company from all contracts whatsoever entered into by me with aforesaid Co. prior to this day and date." The plaintiff's evidence further tended to show that when this paper writing was so given he demanded of the defendant's agent the balance of the sum mentioned in the contract, but payment thereof was refused. On the other hand, according to the testimony of the defendant's witnesses, no violence was offered to or used towards the plaintiff when he made his mark to such paper writing, and that he willingly accepted the said sum of $17.70 paid to him as aforesaid in full settlement of his claim against the company, and that he acted freely and without restraint, when he signed the paper in suit with a cross. It further appeared in evidence that the plaintiff had never returned or offered to return the money he so received from the defendant, and when he rested the latter's counsel moved to dismiss the complaint upon that ground, among others, which motion was denied, and the defendant excepted. The motion was renewed at the close of the entire case, but the justice reserved his decision, and subsequently gave judgment in favor of the plaintiff for the full amount claimed. It was the duty of the plaintiff to return or offer to return the money received by him from the defendant, for by keeping the same he will be deemed to have elected to waive the duress and ratify the release. 10 Am. & Eng. Ency. Law (2d Ed.) 337. The plaintiff contends that the paper writing was not a release, but a mere receipt. An inspection of the same, however, discloses that it is not only a receipt, but that it extinguishes a pre-existing debt, and the preponderance of evidence is that he signed it with knowledge of its character. It results from these views that the court below erred in not dismissing the complaint, and hence the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. BAILEY V. TWIN LAKE ASS'N. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) 1. EJECTMENT-TITLE OF PLAINTIFF. Plaintiff in ejectment cannot recover on an allegation that the premises are erroneously described in a certain deed to her from a third person, no attempt being had to reform the deed, and it being insufficient to describe any land. Appeal from Special Term, New York County. Action by Jane Bailey against the Twin Lake Association. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ. |