Turner v. Hadden,

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Notebook

| N.Y. Sup. Ct. | Nov 7, 1871

Lead Opinion

By the Court,

Potter, J.

The respondents claim, as the principal ground of error, that this bond is void, because taken colore officii. (2 R. S. 284. Id. 473, § 59, 4th ed.) *482But it has been repeatedly held that the word “ law,” as used in that statute, is not restricted to the statute law, but that if the obligation is good at common law, it comes within the meaning of the enactment cited. (Decker v. Judson, 16 N. Y. 442, and authorities cited,. Griffiths v. Hardenbergh, 41 id. 469.) Unless, then, this obligation was taken by .the plaintiffs’ predecessors “ wrongfully,” " under the pretended authority of their office,” and “ grounded upon corruption to which the office is a mere shadow of color,” (16 N. Y. 442,) it is valid. But there is no pi’oof that it was so taken. Besides this, the statute has created a legal liability on the part of children to support their indigent parent. (2 R. S. 614.) This legal liability, (to say nothing of the moral liability arising from the law of nature,) is a sufficiently good consideration for supporting the defendants’ promise. It would even be a good original consideration, and sufficient to support a promise-, if there existed no relationship between the parties.

It is further urged by the respondents that the judgment recovered before the justice, in December 1867, is a bar to these actions, because the plaintiff then recovered damages for an entire breach of the bond. But the proof here shows that entire damages were not recovered, in that action, and the case of Shaffer v. Lee, (8 Barb. 412,) is permissive only. The court there held that when the plaintiff elected to consider the breach entire, he could recover full.and final damages for the future as well as the past. And the case of Beach v. Crain, (2 N. Y. 86, 93,). is decisive against this argument. It is a familiar principle, in determining the meaning of a contract, that the subject matter, the circumstances of the parties, and their intentions, are to be drawn from these considerations.- It could not be supposed, in this case, that an action for a certain number of weeks’ board was intended for one *483entire satifaction for the liability created. The evidence against this view is conclusive.

[Third Department, General Term, at Ogdensburgh, November 7, 1871.

Miller, P. J., and P. Potter and Parker, Justices.]

There are other questions raised, but they are not of sufficient merit to require discussion. From the case of the respondent, made in the last of these cases, it appears that the justice allowed for the expense of the coffin of the deceased. This charge would not seem to be covered by the terms of the contract.

I am of the opinion that the first two judgments of the county court should be reversed, and those of the justice’s court affirmed, with costs; and that the third judgment of the justice should be modified, by striking out the charge for the coffin, and the judgment of the county court reversed, without costs to either party,

Dissenting Opinion

Parker, J.,

(dissenting.) I think the county court was right. The bond purports to bind the obligors “ in the sum of sufficient amount to defray the necessary expenses of supporting Mary Hadden, our mother.-” The plaintiffs had recovered judgment on the bond, for boarding Mary Hadden up to December 21, 1867. These three actions were brought afterwards, to recover for boarding her up to April 1868, October 1, 1868, and down to her death, and for expenses of her burial.

The undertaking was not a continuing one, to pay the actual expenses for the maintenance, but a single one, to pay a sum. Besides, this -is not an official bond which passes .to successors ; and such successors cannot maintain an action on it. I am for affirmance.