to correct amount, and send it with the draft direct to me, and I will remit difference. Please do not make this matter public, as we hope to catch Watson." Two days later the plaintiff answered that the draft had been ordered returned, and that the defendant's wishes should be strictly complied with. The plaintiff procured the draft from its correspondent, made affidavit to the correct amount, and on November 21st sent the affidavit and the draft to the defendant, and did not make the matter public. November 25th the defendant acknowledged its receipt of the draft and affidavit in a letter in which it also raised the question whether the signature of plaintiff's cashier to the draft was not also forged.

Replying to this letter two days later, the plaintiff, among other things, said: "We have complied with your every request, even to keeping the matter strictly confidential, and now beg to request that you remit immediately. The excess stands charged against us on the books of the Manhattan Bank and we desire to be placed in funds that it may be corrected. Unless immediately placed in funds, as promised by you, our remedy will be to refuse credit to the Manhattan, who paid the draft on your endorsement, and that of the National Bank of the Republic, your New York agent, and it should be refunded at once.

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Plaintiff followed its letter by the following telegram to defendant on November 29th: "Remit difference in draft, or return it, with affidavit attached, by express to-day." Thereupon, and on December 2nd, the defendant returned to plaintiff the draft and affidavit, which retained them. On the same day that plaintiff demanded the return of the draft and affidavit it wrote to the bank of the Manhattan Company, reciting the facts and notifying it that the plaintiff would not recognize the payment of the draft for more than the original amount, to wit, seventeen dollars. Nevertheless the Manhattan Company, in the next account current rendered by it, charged the plaintiff with the full amount of the raised draft. Subsequently, by some arrangement between the Manhattan Bank and defendant, to which the plaintiff was not a party, the Manhattan Bank credited to the plaintiff, on account of this draft, the sum of $2,533.90. The defendant declined to pay the balance of $911.50 to plaintiff, and hence this action. George Gorham, for app'lt; Sherwan S. Rogers, for resp't.

PARKER, J.-Three questions are presented for consideration, and are determined as follows:

First. Plaintiff's acceptance of, and subsequent compliance with, the proposition of the defendant obligated the defendant to pay to it the face of the raised draft, less seventeen dollars, the amount for which it was originally drawn.

Second. The subsequent transactions between the parties were in legal effect a rescission of such contract, and thus the plaintiff parted with its right of recovery thereon.

Third. The action cannot be sustained as in effect one for money had and received as it does not appear that defendant received moneys belonging to the plaintiff, or to which it was en

titled.

The defendant did not obtain plaintiff's money, but rather that of the Manhattan Company. As the plaintiff had not requested payment of it beyond the amount of seventeen dollars, the sum paid in excess was the money of the Manhattan Company, which it could have recovered of defendant, but not of plaintiff. White v. Continental Bank, 64 N. Y., 316. Subsequently, it is true, it charged the plaintiff in its account current with such amount, but the act was without authority and did not affect the legal status of the parties.

The order should be affirmed and judgment absolute rendered in favor of the defendant on stipulation.

All concur, except BRADLEY and HAIGHT, JJ., not sitting.

RICHARD B. DISBROW, Resp't, v. SAMUEL E. HARRIS, App'lt.' (Court of Appeals, Second Division, Filed October 21, 1890.)

1. DEED-MERGER-CONTRACT OF SALE.

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Plaintiff contracted to sell a house for $25,000, in good condition and put in three new grates. Defendant paid all the purchase money except $350, and the following memorandum was signed by both parties: “On closing contract there has been allowed to Mr. Harris $50 for grates (not in), and Mr. Harris has retained $300 to secure completion of sidewalks and iron gate on stoop, and when done said Disbrow is to receive the $300." Held, that it may be assumed that, with the exception of the performance of the certain things specified, the contract should in all other respects be treated as satisfied by the conveyance made.

2. SAME-EVIDENCE-FRAUD-HOW PLEADED.

Defendant alleged in his answer that plaintiff did not deliver the house in good condition; that he promised to make changes and repairs, “and at the time of closing contract of sale he stated that the said work had been done, when in fact it had not been done, as he well knew. But supposing that the plaintiff's statements were true, * * the deed was taken

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and the money paid as aforesaid." Held, that these allegations in the complaint were sufficient to authorize the admission of evidence to overcome the apparent effect of the agreement so far as it by the alleged fraud was made an obstacle to the operation of the stipulation of the original contract, and to prove the breach of that stipulation and the damages sustained by its non-performance.

(FOLLETT, Ch. J., and BROWN, J., dissent.)

APPEAL from judgment of the general term of the superior court of the city of New York, aflirming judgment entered upon a verdict in favor of the plaintiff.

Jacob F. Miller, for app'lt; Frederick W. Hinrichs, for resp't.

BRADLEY, J. The action was brought to recover the balance alleged to be due upon a contract made between the parties, by which the plaintiff agreed to sell to the defendant certain real property, consisting of a house and lot in the city of New York, for $25,000, and on a day mentioned on payment of the purchase money to convey the property to him with covenants of warranty. The contract contained the provision that the plaintiff should deliver the house in good condition and put in three new grates. The defendant afterwards paid all the purchase money payable to the plaintiff, except $350, which sum was retained by 1 Reversing 14 N. Y. State Rep., 723

the defendant pursuant to an agreement made by the parties as follows: "On closing contract between Richard B. Disbrow and Samuel E. Harris there has been allowed to Mr. Harris fifty dollars for grates (not in), and Mr. Harris has retained $300 to secure completion of sidewalks and iron gate on stoop, and when done said Disbrow is to receive the $300." This last mentioned agreement was in writing subscribed by the parties, and is the subject of allegation in the complaint. The defendant, by way of counterclaim, alleged that the house was not delivered to him in good condition, and specifically alleged defects, not including any failure of the plaintiff to perform the last mentioned agreement. The question arises upon exceptions taken by the defendant to the exclusion of evidence offered by him to prove such defective condition. When a deed of conveyance is made and accepted pursuant to an executory contract to sell and convey land containing stipulations of which the conveyance is not necessarily a performance, the question whether such stipulations are surrendered is treated as one of intention; and in the absence of evidence upon the subject there is no presumption of intention to give up those benefits or that they are satisfied by the conveyance. Morris v. Whitcher, 20 N. Y., 41; Witbeck v. Waine, 16 id., 532; Murdock v..Gilchrist, 52 id., 242.

The provision before referred to in the contract for the sale of the premises came within this rule, and the benefit of it to the defendant may have survived the conveyance if nothing had intervened to have defeated it. But when, to complete the performance of the contract and as preliminarily to the conveyance, the parties came together and made the agreement to the effect that the payment of the small amount retained of the purchase money was made dependent only upon the performance of the certain things therein specifically mentioned, it may be assumed that they intended that, with that exception, the provisions of the contract should, in all other respects, be treated as satisfied by the conveyance thereupon made, and such was its effect unless the defendant may, in some manner, be relieved from it. Fraud on the part of the plaintiff would vitiate it and enable the defendant to avail himself of the non-performance of the stipulation upon which he relies in the original contract. But this was matter of affirmative defense or counterclaim on the part of the defendant, and fraud must be alleged to enable him to introduce evidence in its support. His counsel here contends that this was done. Whether he did this sufficiently to render the excluded evidence competent is the main question for consideration. The defendant alleged in his answer that the plaintiff did not deliver the house in good condition, and specified the defects of which he complained, and added that when those "defects were discovered attention was called to them and the plaintiff promised to make the requisite changes and repairs, and at the time of closing the contract of sale he stated that the said work had been done, when, in fact, it had not been done, as he well knew. But supposing that the plaintiff's statements were true that he had done the work, the deed was taken and the money paid as aforesaid." After stating

some other matters, he alleged damages for which he demanded judgment. If the defendant intended to found his claim upon fraud he did not very well allege it, and although they might not be effectual as against a demurrer, his allegations, somewhat inartificially made, did contain the elements of fraud on the part of the plaintiff. And for the purpose of a trial the same strictness is not applicable as in the disposition of the specific objection taken by demurrer. Koop v. Handy, 41 Barb., 454; Whittlesey v. Delaney, 73 N. Y., 571. That the representations were untrue to the knowledge of the plaintiff and material, and that the defendant was induced by them to enter into the new agreement to pay the residue of the purchase money upon the terms there mentioned, were facts which would tend to support the charge of fraud, and those were the facts substantially alleged by him. The defendant upon that ground should have been permitted to give evidence to overcome the apparent effect of that agreement so far as it, by the alleged fraud, was made an obstacle to the operation of the stipulation before mentioned, of the original contract. And in that view the rejected evidence to that extent, and to prove the breach of that stipulation, and the damages sustained by reason of its non-performance was competent. This was a proper subject of counterclaim. Code, § 501.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event. All concur, except FOLLETT, Ch. J., and BROWN, J., who dissent, and HAIGHT, J., absent.

MARGARET MCDERMOTT, Resp't, v. JAMES CONLEY, App'lt. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. NEGLIGENCE-OBSTRUCTING HIGHWAY.

A person cannot justify obstructing a highway by logs or otherwise upon the claim that somebody else directed him to do it who owned the materials placed there.

2. SAME-CHARGE.

Plaintiff, while driving along a highway, the center of which was drifted, drove upon some logs which defendant had placed thereon, and her horse was injured. Defendant claimed that the logs belonged to his wife. The court charged that if defendant had admitted that the logs were his, he was estopped from saying "the woman did it." Held, that, in 'he absence of contributory negligence on the part of plaintiff, the defendant was liable for the injuries caused by his act in placing the logs where they were, and the charge of the judge on the question of estoppel was, therefore, immaterial, and did no harm.

APPEAL by the defendant from a judgment entered in Yates county, in July, 1889, for $188.56 damages and costs, and from an order denying a motion for a new trial.

Briggs & Baker, for app'lt; Calvin J. Huson, for resp ́t.

CORLETT, J.-This action was originally brought in a justice's court where the plaintiff alleged that the defendant wrongfully and negligently obstructed a public highway in the town of Potter, by piling thereon a quantity of logs, by means of which her horse was injured. A trial was had in the justice's court, which

resulted in a verdict of twenty-five dollars for the plaintiff. The defendant appealed to the county court, where a new trial was had, and the plaintiff obtained a verdict for forty-nine dollars, upon which judgment was entered, and the defendant appealed from the order of the county court denying a new trial, and also from the judgment.

The evidence tended to show that in February, 1885, the plaintiff's husband and one William McManus went to obtain a load of wood; that there was considerable snow upon the ground, making it difficult to follow the beaten track of the highway, the center of which was drifted. When returning, they drove upon the logs lying lengthwise along the highway, and one of the horses caught its foot between the logs and received the injury complained of. The evidence also tended to show that the side of the road where they were driving was smooth except for the logs. The evidence also tended to show that the defendant placed the logs where the accident happened. But he insisted that they were not in the highway, and also claimed that they belonged to his wife, although the evidence tended to show that he admitted they belonged to him.

It does not appear by the order denying the new trial upon what ground the motion was made or denied. The general rule is that, under such circumstances, no questions are presented for review, except exceptions appearing in the record. Hinman v. Stillwell, 34 Hun, 178; Ehrman v. Rothschild, 23 id., 273.

The learned judge in his charge stated to the jury, "If you should find that this defendant, when approached in regard to this matter, did say to these parties that they were his logs;

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if he admitted to these parties that they were his logs, then he is estopped from saying the woman did it.'"

To this portion of the charge the learned counsel for the appellant excepted. It is difficult to see what materiality can be attached to those remarks of the learned judge. The evidence tended to show, and the jury must have found, that the defendant placed the logs in the highway, and left them there. In fact, this was not controverted on the trial. It is of no consequence whether he or some other person owned the logs. A person cannot justify obstructing by logs, or otherwise, a public highway, upon the claim that somebody else directed him to do it who owned the materials placed there. Crane v. Onderdonk, 67 Barb., 47; Hecker v. De Groot, 15 How. Pr., 314; Gutchess v. Whiting, 46 Barb., 139; Story on Agency, § 311.

It does not seem to have been seriously claimed upon the trial that the logs were not placed in the highway and left there by the defendant, or that the injury was not caused by their being there.

It is a general rule that one passing along a highway has a right to assume that it is reasonably safe. McGuire v. Spence, 91 N. Y., 303; Bidwell v. Town of Murray, 40 Hun, 195; Weed v. Ballston Spa, 76 N. Y., 329.

The evidence tended to show that in this case, on the occasion in question, the ground was covered with snow; that neither the N. Y. STATE REP., VOL. XXXIII. 71