ed by another, the fact that the nuisance is [ quiescence does not apply to a nuisance una public one is no defense in an action for less it has continued for 20 years. damages, and such person can sue to abate such a nuisance if he thereby suffers some special injury peculiar to himself. Haller v. Pine, 8 Blackf. 175, 44 Am. Dec. 762; Scheible v. Law, 65 Ind. 332; Dwenger v. Chicago & G. T. Ry. Co., 98 Ind. 153; Waltman v. Rund, 94 Ind. 225; Haggart v. Stehlin, 137 Ind. 43, 35 N. E. 997, 22 L. R. A. 577.

(123 N.E.)

(Court of Appeals of New York. June 6, 1919.) in detail the transaction between the parties.

Chase, Collin, and McLaughlin, JJ., dissent- a price on the stock. This was followed by a ing.

[1] The documentary evidence, together with the testimony, in our opinion, establish- Seven days later Warren answered as foled a completed sale and delivery of the de-lows:

fendant's goods to the plaintiff, or at least "I have received several letters from you since presented a question for the jury as to wheth-I wrote you about my stock. Now I want to

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close out all of it, as I have other business to [ and by this contract does purchase of party of attend to, but do not want to put on sale, as second part a certain stock of shoes and rubthe expense is too much, and then I would have some stock left on my hand and my stock is all good. If you want it I will sell it out to you and then you can do as you please. The store could be had as long as you want at the same as I pay for it and will close it out to you at 80 ct. on the dollar, and I cannot see why there could not be good margin for you, as the stock is advancing all the time. Hoping to hear from you soon, as I want to get out as soon as possible. Perhaps it might pay you to come and see my stock."

Being impatient to sell, and not receiving a reply to this letter, Warren again wrote on September 2d, saying that he had not heard from Groves as to how much he would give him for his stock. On the 4th Groves wrote that he would send a man to look over the stock the following week. One or two other letters were exchanged, and finally, on. October 26th, Groves made a proposition to purchase the entire stock. He wrote:

"Now, I have thought your proposition all over and have decided to make you one more proposition. We will give you 70 cents on the dollar for your stock. If you accept this offer we will then start a big sale of that stock and we will pay you for the stock with the money we take in for the goods we sell during the sale, that is, the goods that belong to you, and we to pay the running expenses of the sale, which means clerk hire and advertising. If this is satisfactory to you we are ready to do business. It would seem to me that we could

turn that stock into money inside of ten days. In fact, we feel we could get you the money that would be due you from the stock inside of one week."

Then follow these very important words: "If you do not feel like selling us your stock at our price, you may feel like employing our services to put on a sale for you with a view of turning your stock into money, and if you do you can sign the contract we sent you July 20th and we will carry it out."

Three days later Warren closed the matter in these words written under date of October

29th:

"Well, I will take your offer."

bers, etc. (not including fixtures), at inventory or cost from manufacturers or jobbers to second party, less 30 per cent. of said inventory or cost price, except a certain specified few pairs of shoes and rubbers, a list and inventory of which is attached hereto, and party of second part shall receive inventory or cost for these few pairs, being stock purchased by second party during last part of 30 days. Party of first part agrees to put on sale of above-mentioned stock in the store of second party at 304 Broad Street, and party of second part agrees to take his pay in the following manner: At the close of each day's sale, parties of first and second part shall count up and check the cash taken in during the day, and party of second part shall keep such cash until he shall have received the amount due him on this contract, and in case sales of entire stock should not equal purchase price of stock, party of first part agrees to make up said difference at close of sale. Party of first part agrees to pay the clerk hire and advertising expense of conducting the sale, such expenses to start from the time the inventory is completed. Party of second part by this agrees to give his services without charge until his claims are satisfied and he shall have received all his money due him under this contract, and also to give possession of store without charge until the end of sale."

An inventory of the shoe store in Waverly was thereupon made by Groves and his employés, and sales advertised and conducted until Warren had received $3,525.23 upon the purchase price according to the contract. The sales began on the 15th of December, going somewhat slower than had been anticipated, so that the stock had not been fully disposed of by February of the following year.

It was conceded upon the trial that the inventory value of the stock was $5,901.33. The purchase price, therefore, being 70 per cent. of this amount, equaled $4,130.93, and the balance due the defendant, Warren, at the times herein mentioned was about $605.70. On February 28th Warren, over the protest of Groves and his representatives, removed the balance of the goods from the store and disposed of them. These were valued at about $2,600.

I fail to appreciate the defendant's position or to understand how he considered himself to have either the possession or title to these goods. The correspondence we have read. The contract is plain and direct in terms, and the acts of the parties under it speak a completed sale. The key to the store Warren delivered to Johnson, the plaintiff's employé in charge. The inventory made up was dic

There can be but one conclusion from this correspondence. Groves made two propositions one to purchase Warren's stock outright as a speculation; the other to sell Warren's stock for him on a 10 per cent. commission basis, Warren to pay all expenses. The first proposition was the one accepted. The contract was thereupon drawn up and tated by Guy S. Warren and was headed, executed reading as follows:

"Made and entered into this 10th day of December, 1915, between G. W. Groves & Co., of Buffalo, N. Y., party of first part, and Guy Warren, of Waverly, N. Y., party of second part, witnesseth: Party of first part agrees to

"George W. Groves, December 10th;" that is, the inventory showed the property of George W. Groves. The expenses of the sales were met by Groves; the defendant merely paying rent for the store. When the defendant arranged for the leasing from

(123 N.E.)

The judgment should be reversed, and a new trial ordered; costs to abide the event.

HISCOCK, C. J., and CUDDEBACK and HOGAN, JJ., concur.

CHASE, COLLIN, and MCLAUGHLIN, JJ., dissent.

Judgment accordingly.

month to month, he told Harry W. Knapp, the agent, that he had sold out to Groves. In our opinion here was evidence of a completed sale. Warren wanted to sell; he accepted an offer made for his stock; he turned it over to the vendee who had possession for the purpose of resale as contemplated by the parties. The larger part of the purchase price had been paid, and the acts and admissions of the defendant show that he understood that his goods had been sold to Groves. We can think of nothing that the vendor was obliged to do to make delivery complete, and the only thing remaining un- STRUZEWSKI et al. v. FARMERS' FIRE done by the vendee was the payment of the balance of the purchase price. In fact, by the articles of agreement he had 'undertaken to pay the difference between his purchase price and the amount received from the auction 1. PLEADING 248(5) sale should the latter not equal the purchase NEW CAUSE OF ACTION. price which Groves had agreed to pay. This certainly is inconsistent with the claim that no title was to pass until the sales amounted to the purchase price.

[2] The rule in all these cases is that it is the intention of the parties which must control. E. S. T. F. Co. v. Grant, 114 N. Y. 40, 21 N. E. 40; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42. It is quite evident that an executed contract of sale was the intention of both Groves and Warren. When the terms of a sale are agreed on and the bargain is struck, and everything that the seller is to do with the goods is complete, the contract of sale becomes absolute as between the parties without actual payment or the delivery of the property, and the risk of accident to the goods vests in the buyer. Groat v. Gile, 51 N. Y. 431.

We have in this case more than mere intention; we have the parties acting and speaking upon the assumption of a completed

sale.

As the matter stood at the end of the plaintiff's case it was error for the court to dismiss the complaint. In our opinion, for the reasons above stated, Waren had sold his goods to Groves, and was not justified in taking them back. His action amounted to a conversion of them. Only one side of this case has been heard. On a new trial evidence for the defendant may in some particular contradict or modify the record as it now stands, and we do not desire to be understood as stating that upon the correspondence and agreement a verdict should be directed for the plaintiff. It may be that the intention of the parties will become a question of fact, and that the jury must pass upon it. All we hold at this time is that on the record as it now comes before us the complaint should not have been dismissed, but at least the question whether or not the parties intended a completed sale should have been submitted to the jury.

INS. CO.

(226 N. Y. 338)

(Court of Appeals of New York. May 20, 1919.)

AMENDMENT

In an action on a fire policy, it was error to permit plaintiff to amend to allege an oral contract with the insurer, through its agent, to renew his insurance at the end of each expiring three-year period.

CRANE, J. The plaintiff was the owner of a two-story frame building in Depew, N. Y., which he had purchased through Elwin B. Rowley, an agent in the real estate transaction. Rowley was also in the insurance business, and in behalf of the plaintiff insured this house in the Farmers' Fire Insurance Company for three years in the sum of $800. The first policy was dated October 22, 1903, and expired on the same day of the month in 1906. The house burned down on October 24, 1915, and this action was commenced by the plaintiff to recover the insurance, on the assumption that he had a renewal policy for

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three years from October 22, 1915. He had no such policy; his last renewal having expired two days before the fire.

His complaint alleged a cause of action upon a policy of insurance, as though it had been issued and renewed by the defendant, but upon the trial he was permitted to amend his pleading, so as to allege an oral contract with the defendant, through its agent, Rowley, to renew his insurance at the end of every expiring three-year period.

[1] To this amendment the defendant's counsel seriously objected as wholly changing the cause of action. In this he was right. The case of Walrath v. Hanover Fire Insurance Co., 216 N. Y. 220, 110 N. E. 426, decided that it was error to amend a complaint upon the trial setting up an agreement to insure when the action was brought upon an executed contract of insurance. This would of itself require a reversal of the plaintiff's judgment, but we pass on to the other points which we deem vital to any recovery.

The plaintiff's recovery was based entirely upon an alleged contract, of which his testimony furnishes the only evidence, and is as follows:

"A. When I got the title, received my deed, I want to get fire insurance, too, and I asked him about this company, that is, the Farmers' Fire Insurance Company, and he says it is the best fire insurance what he knows. He says he is going to renew it every time; he says he can renew it every three years, and he is going to send it to me, and renew it every three years, and send it up to me. Q. Did he say in what company he would keep you insured? A. Yes, sir. Q. In what company? A. The Farmers' Fire Insurance Company."

to said appointment in the manner and form prescribed from time to time by the company."

[2] There is nothing here to indicate that he had authority to bind the defendant by oral agreements running indefinitely into the future. The case of Squier v. Hanover Fire Insurance Co. of N. Y., 162 N. Y. 552, 57 N. E. 93, 76 Am. St. Rep. 349, holds that where an agent has power to issue a renewal policy, and on the eve of expiration agrees to renew, the company is bound by such an agreement. If in this case Rowley had agreed to renew the plaintiff's policy at or near the time of expiration, his failure so to do would be charged to the company. An agreement to insure need not necessarily be in writing. International Ferry Co. v. American Fidelity Co., 207 N. Y. 350, 101 N. E. 160.

[3] We are here, however, dealing with a question of authority which must have reasonable limitations, and we find nothing in the evidence of any practice or custom which would justify an agent in binding his principal by an oral agreement to renew a policy at the expiration of every three years without further notice. The extent to which such a rule would carry us is illustrated by the charge to the jury in this case wherein

the court said:

"He [the agent] should ascertain or make some attempt to ascertain where he [the insured] had moved to, and not let a valuable contract expire to the possible loss of his client."

The agent may bind himself personally to an agreement which would not be binding upon his company, and in this case the agent did this very thing. He was interested Thereafter, at the expiration of the policy, in the sale of the house to the plaintiff; he Rowley did send renewals to the plaintiff was the real estate agent, and agreed with through the mail up to October 22, 1915, the purchaser that he (Rowley) would keep when he failed to do so because, as he said, the premises insured, and would renew it the plaintiff had moved without leaving his every time. This was his individual conaddress. In our opinion the plaintiff's re- tract, and not that of the defendant. He covery cannot be sustained, for the reason had, as we have already stated, no authority that there is no evidence that Rowley had to make an oral contract to forever renew any authority from the insurance company, the policy at the expiration of each threeas its agent, to make such a broad and sweep-year period without further notice. The reing contract for the future.

The authority which Elwin B. Rowley had to act for the Farmers' Fire Insurance Company was contained in a certificate of agency reading in part as follows:

"This certifies that Elwin B. Rowley, of Depew, county of Erie, state of New York, is hereby appointed and duly constituted as agent of the Farmers' Fire Insurance Company, of York, Pa., during the pleasure of said company, and as such agent is hereby authorized and empowered to receive proposals for insurance against loss or damage by fire, and countersign and issue policies of insurance and renewals in the city of Depew and vicinity, to receive money, to join in assignments and transfers and indorsements made thereon, and to do and transact all business and duties pertaining

newals are expected to be in writing, the same as the original policy of insurance, and it is only when the insured relies upon the statements of an agent, made within the scope of his authority, that the company may be held for those acts which the agent should have performed, but failed to do. An immediate renewal, or an agreement to issue a renewal policy for one about to expire, upon which agreement the insured relies, is an entirely different thing from an agreement to keep premises forever insured by renewals for years to come. This reasoning is in line with the authorities. Shank v. Glens Falls Insurance Co., 4 App. Div. 516, 40 N. Y. Supp. 14; Wood v. Prussian National Insurance Co., 99 Wis. 497, 75 N. W. 173; Brown