celed the indebtedness, but the fact that they had accepted the check of a third party in cancellation of the indebtedness; and this undoubtedly was the position which the defendants took, and it was not until the failure of Saterlee & Co., and they began to think of the relations existing between them, Saterlee & Co., and the plaintiff, that the idea dawned upon them that payment to Saterlee & Co. liquidated their indebtedness to the insurance company. But it is needless to discuss this proposition, in view of the condition of the pleadings as already suggested.

The only question which was open to discussion, in view of the issues raised by the pleadings, was the question whether the indebtedness had been discharged by the acceptance of the check of Saterlee & Co. There is no evidence that there was any agreement that this check should be taken in absolute satisfaction of the debt. The messenger of the defendants first called upon the plaintiff in regard to this matter to learn whether the premium had been paid. This action was entirely inconsistent with the idea that the payment to Saterlee & Co. had satisfied their obligation. When they learned that it had not, they brought Mr. Saterlee to the plaintiff, and he promised to give his check. But there is no evidence that upon the giving of that check the plaintiffs agreed to take it in full satisfaction of the debt. In fact, it is difficult to conceive how they would have made any such agreement, because they knew of the embarrassment of Saterlee & Co. The check was to be postdated, and they were to wait for its payment. The defendants were notified of these facts, and it is impossible to spell out such an agreement as would discharge them from their obligations. The rule as laid down is that, in the absence of an agreement to take the security in absolute satisfaction of the debt, the intendment of law is that it is a conditional payment only, namely, that, if the check is paid, the debt will be discharged; otherwise, not. This proposition is distinctly laid down in the case of Carroll v. Sweet, 128 N. Y. 19, 27 N. E. 763, and cases there cited. There is no room for inferences. The agreement must be proved. If any inferences are to be drawn from silence or want of evidence, it is in favor of conditional payment. The giving of a receipt for the money as represented by this check in Saterlee & Co.'s receipt book in no way changed the aspect of the transaction. The money was not received, and such entry was only an acknowl edgment of the receipt of the check. It discharged nothing, and in no way changed the relation of the parties. It would seem, therefore, that the defendants failed to present sufficient proof to justify a submission to the jury on the question of payment. There was a claim made that the plaintiffs were negligent in their at tempts to collect the check, in not having deposited it, and that, therefore, the defendants were discharged. But the defendants were not indorsers upon the check; and if the plaintiffs were guilty of negligence in respect to its collection, in order that the defendants should be discharged by reason thereof, it must be shown that they were damaged thereby. It appears that in any event it would not have been paid, because there were no funds

to meet it.

Upon the whole case we see no error in the conclusion arrived at by the court below, and the judgment appealed from should be affirmed, with costs. All concur.

FREEMAN v. UNITED STATES ELECTRIC LIGHTING CO.

(Supreme Court, General Term, First Department.

February 16, 1894.)

MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-TERMINATION.

On an issue as to whether plaintiff's employment by defendant terminated on December 31, 1881, or continued until October, 1887, it appeared that plaintiff was paid in full for his services, and for electrical experiments pursuant to the contract, during the year 1881, and that on December 30, 1881, he tendered his resignation to defendant, and it was accepted. Plaintiff testified that since December 31, 1881, he had not made any experiments for the defendant. During the years 1882 to 1887 plaintiff received various sums of money from defendant, giving receipts therefor as money received "on account," "for expenses," or "money advanced," but none for salary or experiments. Held, that the employment terminated on December 31, 1881.

Appeal from circuit court, New York county.

Action by Walter K. Freeman against the United States Electric Lighting Company to recover damages for breach of contract. From a judgment entered on an order dismissing the complaint on plaintiff's evidence, plaintiff appeals. Affirmed.

For former report, see 13 N. Y. Supp. 93.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOL LETT, JJ.

A. R. Dyett, for appellant.

William Allen Butler, for respondent.

FOLLETT, J. This action was brought to recover $134,220 damages for the alleged breach of a written contract dated June 21, 1881, which claim is made up of the following items: (1) $1,500 payable pursuant to the second division of the contract; (2) $100,000 payable for patents pursuant to the third division of the contract; (3) $16,516.66 for salary between June 21, 1881, and October 27, 1887; (4) $3,812.50 expenses for experimental purposes between the same dates, pursuant to the first paragraph of the third division of the contract, less $7,609.16 paid towards items 3 and 4; and (5) $20,000 damages for having been wrongfully discharged, October 27, 1887, from defendant's service. On the trial the plaintiff abandoned his claim to recover on the first item, of $1,500, so that need not be considered. Testimony having been given from which the. jury might have found that the contract of June 21, 1881, was duly made for and in behalf of the defendant, it will be assumed on this appeal that the contract was not the personal agreement of Charles R. Flint, but was the contract of the corporation-the defendant of which he was president. When the contract was entered into, the plaintiff claimed to have invented an electric lamp with a carbon filament of high resistance, and certain other valuable apparatus for lighting by electricity. The claim for the

second item, $100,000, arises out of the first subdivision of the third division of the contract, which is as follows:

"(1) In case a patent is granted to said party of the first part for said carbon filament lamp, and the claims of said Edison thereto are adjudicated invalid, and the patent granted as aforesaid to said party of the first part is adjudicated as securing to the said party of the second part the exclusive right to the use of the said carbon filament lamp in incandescent lighting, so as to prevent said Edison from using his present form of lamp, then the said party of the second part shall either pay to the said party of the first part one hundred thousand dollars in cash for said patent, and retain the same as his exclusive property, free from all claims of the said party of the first part, or shall assign back said patent to said party of the first part. And in case a patent is obtained upon said carbon filament lamp, but not in such form as to entirely defeat said Edison's claims, or secure an entire monopoly therein to the said party of the second part, to the exclusion of said Edison, but nevertheless in such form as to cover valuable features of construction, the said party of the second part shall pay to the said party of the first part a less sum, in proportion to the diminished value of the same, therefor, but at least twenty-five thousand dollars, or assign such patent back to said party of the first part."

It is conceded that a patent for the lamp which the plaintiff claims to have invented has not been granted to him, and that on the 27th of November, 1883, a patent was granted to Edison for his lamp, and on the 18th of March, 1887, all proceedings pending before the commissioner of patents in support of the invention claimed by the plaintiff terminated adversely to him and to all persons claiming under him. The plaintiff asserts that defendant failed to prosecute the application for his patent with diligence, and that by reason of its neglect the right to the patent was lost, and he became entitled to receive $100,000. It will be observed that by the terms of the contract quoted the defendant did not absolutely bind itself to pay $100,000 for the patent in case it was granted, but had the right, in lieu thereof, to assign it to the plaintiff. Assuming that an action could be maintained for the contract price, instead of for the damages, if any were sustained by the plaintif by reason of the defendant's failure to prosecute the claim, and assuming that this action may now be turned into an action for damages, we are of the opinion that there is no evidence in the record which would have sustained a verdict that the defendant neglected to present all of the evidence of discovery and prior invention presented or suggested by the plaintiff, or which the defendant could obtain by investigations made in its own behalf. The evidence in this case is entirely insufficient to raise a question of fact for the jury as to whether the failure to secure a patent occurred through the neglect of the defendant. A careful examination of the testimony given by the plaintiff leaves us in doubt whether he believed that he was entitled to a patent. We think the plaintiff failed to establish a prima facie case for the recovery of the $100,000, and that no issue of fact was presented by the evidence relating to this item.

The third, fourth, and fifth items which the plaintiff claims to recover all depend on whether plaintiff's employment under the contract was terminated December 31, 1881, and may be consid ered together. The plaintiff testified that, pursuant to the con

tract, he began work for the defendant on the 21st of June, 1881, and continued until the 31st of December of that year, and received payment in full for his services, and that he was also paid in full to December 31, 1881, for electrical experiments, pursuant to the contract. On the 30th of December, 1881, the plaintiff wrote the defendant that another company had offered to pay him a greater compensation than the defendant was then paying him, and that, unless some different proposition was made, he should leave the defendant's service the next day. The defendant's president testified that January 3, 1882, a letter was written and mailed to the plaintiff, accepting his resignation. The plaintiff testified that he did not receive the letter, but he heard that such a letter had been written, and that his resignation had been accepted, in a sense. The plaintiff also testified-and so did the defendant's officersthat since January 1, 1882, the plaintiff had not been in the employ of the defendant, except in gathering evidence, and in attempting to establish the patentability of his electric lamp. The plaintiff testified that since December 31, 1881, he had not been engaged in making experiments for the defendant. The $50 per month mentioned in the contract are not for plaintiff's compensation, but for expenses of private experiments. Having made no experiments, it is not probable that he has incurred any expenses in experimenting; and, if he had shown that he had been engaged in experimenting, he would have had to go further, and show that he had incurred expenses, before he could recover for such expenses. The record is barren of evidence to support a claim for the item of $3,812.50.

This brings us to the question, was the evidence sufficient to authorize the jury to find that plaintiff's employment, under the contract, did not terminate December 31, 1881, and was continued until October 27, 1887? We have referred to the plaintiff's resignation and its acceptance, but the plaintiff swore that his resignation was a sham, and not designed to take effect, but to effect other purposes, and was so understood by defendant's officers. The defendant's president denies this. This, of course, may be said to have presented an issue of fact. But the difficulty is that the plaintiff's evidence is so completely contradicted by his written receipts and by his conduct that a verdict in his favor would have been set aside. Notwithstanding the plaintiff's testimony that his resignation was a sham, he is compelled to admit that he performed no service for the defendant after December 31, 1881, except in attempting to secure evidence to establish his right to a patent for an electric lamp, for which he was to receive $100,000. During the year 1881, when the plaintiff was employed by the defendant, he signed 13 receipts, which, on their face, were on account of salary; and in the same year he signed three receipts for money received for experiments, and four for money advanced. After January 1, 1882, all payments for salary and for experiments ceased. In the year 1882, plaintiff received $65, which he receipted for as paid on account. In 1883, he received $955, paid on v.27 N.Y.s.no.7-51

33 different dates, for which receipts were given for money received "on account," "for expenses," or for "money advanced." In 1884 he received $1,020, on 25 different dates, for which he gave receipts "for money advanced." In 1885 he received $1,020 on 22 different dates, for which all of the receipts were for money advanced, save one, which was for money on account. In 1886, he received $1,000 in 32 payments, all of which were for money advanced; and in 1887 he received $420 in 12 different payments, which he receipted for as money advanced. From January 1, 1882, to July 14, 1887, 127 payments, aggregating $4,480, were made by the defendant to the plaintiff, for all of which receipts were given; and there is no mention that any payments were for sal ary, wages, or for expenses incurred in experimenting. After a careful examination of the record, we are unable to find sufficient evidence to have justified the jury in finding that the plaintiff's employment continued, under the contract, beyond January 1, 1882; and it follows that he could not have been wrongfully discharged from such employment, as alleged in the complaint. We think the plaintiff made no case for the jury, was rightly nonsuited, and that the judgment should be affirmed, with costs. All concur.

MURPHY v. JACK et al.

(Supreme Court, General Term, First Department.

February 16, 1894.)

1. ATTACHMENT-AFFIDAVIT-MATTER COMMUNICATED BY TELEPHONE. Attachment may be granted on an affidavit made on information transmitted by telephone. Van Brunt, P. J., dissenting.

2. SAME-AFFIDAVIT MADE BY ATTORNEY.

It is a sufficient excuse, for presenting an affidavit of the attorney instead of that of the party, that plaintiff was out of the state, and affiant believed that defendant's attachable property would be removed from the state before an affidavit could be obtained from plaintiff.

Appeal from special term, New York county.

Action by Charles S. Murphy against William C. Jack and Millard F. Payne. From an order granting a motion to vacate an attachment made on the papers on which the writ was granted, plaintiff appeals. Reversed.

It is alleged in the verified complaint that the defendants purchased goods of the plaintiff, and agreed to pay therefor $1,354.80, July 20, 1893, but have not paid the same, nor any part thereof. The complaint was verified by one of the plaintiff's attorneys, for the reason, as stated in the verification, that the plaintiff was not then in this state, but in the state of Massachusetts. It is averred on information and belief in the affidavit that the plaintiff is entitled to recover $1,354.80, with interest from July 20, 1893, over and above all counterclaims known to the plaintiff, and that the plaintiff is a resident of Boston, Mass., and that the defendants reside at Gardiner, Me. The affidavit is made by one of the attorneys of the plaintiff, who states that he acquired his information on the day of the date of the affidavit from the plaintiff, by a conversation carried on with him by means of a telephone, the affiant being in New York, and the plaintiff in Boston. The following reason is given why the affidavit is not made by the plaintiff: "Deponent asks that an attachment may be granted without waiting for affidavits to be obtained