[225 N. Y.] Opinion, per POUND, J. [Jan., Defendant did not build the house. He had purchased it three years before the accident and had no actual notice of the potential danger from freezing and bursting of exposed pipes. Plaintiffs recovered verdicts in the trial court on the theory that the dampness of the bedroom was constructive notice of a leak or some other defective condition of the premises. The learned Appellate Division held that the inference of defect from dampness was too remote and dismissed the complaints. The distinction between insufficient evidence and unsatisfactory evidence must be kept in mind. It has often been said that "insufficient evidence is, in the eye of the law, no evidence," but that merely means insufficient in law, not insufficient to the mind of one trier of fact with whom others may with reason differ. If any legitimate conclusion can reasonably be drawn from the evidence it should not be wholly rejected by the court. The jury should pass upon it and if the trial judge or the Appellate Division is not satisfied with the soundness of the conclusions reached, the verdict should be set aside and a new trial ordered. (Getty v. Williams Silver Co., 221 N. Y. 34, 39.) The chain of reasoning most favorable to plaintiffs might legitimately consist of these links: walls are not so damp in cold weather when the structure is free from defect; their condition is not consistent with proper repair or construction; damp ceilings may fall, it is probable that they will fall; a prudent landlord will exert himself to ascertain the cause of the dampness before they fall and do harm to the occupants of the rooms; if the plaintiffs' witnesses are to be believed, a plumber summoned to find the trouble would at once decide that sweating pipes might be, and, by a process of exclusion, were the cause of the dampness. The damp walls were plain notice of something to be remedied. The landlord may not sit helplessly by and 1919.] Opinion, per POUND, J. [225 N. Y.] say that he cannot see what produces such conditions. He must reasonably bestir himself to discover the cause and correct it. Continued dampness of ceilings may to one observer seem a trifling circumstance and at best no warning of exposed pipes or leaks, while to another the warning would be plain and significant. Courts should not speak too confidently in determining as matter of law what facts may be ignored by prudent people whose duty it is to be reasonably careful for the personal safety of others. We think that plaintiffs' evidence made a case for the jury to pass upon and that their complaints should not have been dismissed. The orders of reversal specify that the finding of the jury that the defendant was guilty of negligence is disapproved by the Appellate Division. It thus appears that the judgments were reversed on questions of fact as well as on the law. A new trial must, therefore, be granted. (Code Civ. Pro. § 1338.) On the new trial, we are of the opinion that the bodily injuries sustained by Mrs. Queeney as the immediate result of being struck by the falling plaster should not be considered as elements of damage under the complaint as it now reads. The pleading declares on the injuries resulting from the dampness only. "Substantial justice between the parties (Code Civ. Pro. § 519) means justice to both parties. The result desired may better be obtained by amendment on an orderly application to the court than by amendment under the guise of liberal construction. The judgments appealed from should be reversed and new trials granted, with costs to abide the event. HISCOCK, Ch. J., CUDDEBACK, CARDOZO and ANDREWS, JJ., concur; CHASE, J., dissents; MCLAUGHLIN, J., not sitting. Judgments reversed, etc. Contract when employer may hold employee as trustee and require him to account for profits of personal transaction when oral consent of employer to such transaction precludes him from impressing such a trust and acquits employee of breach of written contract forbidding his engaging in business similar to his employer's. 1. An agent or a partner who breaks a covenant not to engage in some other business does not, as a matter of course, become chargeable as a trustee for the profits of the forbidden venture. A constructive trust is the formula through which the conscience of equity finds expression, and when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of the relief. 2. Where an employee agrees with his employer that he will not become directly or indirectly interested in, or connected with, any person engaged in any similar business, and thereafter purchases, in conjunction with another, rights in certain mining claims which he believed to be essential to the successful operation of those in which his employer is interested, the latter, not consenting to the investment, has the privilege, if he so elects, to hold the employee as trustee and may require him to renounce the profits of the transaction and transfer the claims at cost. 3. Where, however, it appears that the employee, when he associated himself with a partner in the enterprise, reserved the right of withdrawal, and the employer, with knowledge that the employee had reserved this privilege, consented that the investment be retained, the employer may not have the aid of a court of equity to impress upon the investment the quality of a constructive trust. 4. Nor does the fact that the written contract of employment contains a covenant that there shall be no waiver or amendment thereof not evidenced in writing, alter the situation. Those who make a contract may unmake it, and where, on the faith of the consent, the employee, as here, turned a loan into a purchase, the consent, though oral, gives protection to the employee, and acquits him of a breach of 1919.] Points of counsel. [225 N. Y.] contract. The oral consent is at least equivalent to an election that the agent shall not be charged as a trustee. It is an election between remedies and such an election can be made without a writing. Beatty v. Guggenheim Exploration Co., 223 N. Y. 294, modified. (See 223 N. Y. 294; 224 N. Y. 595.) (Re-argued December 2, 1918; decided January 28, 1919.) RE-ARGUMENT of an appeal from a judgment, entered September 30, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion in this case reported in 223 New York, at page 298. Nathan L. Miller and Louis Marshall for appellants. Upon the record the exploration company is entitled to a final judgment on the claim of the plaintiff growing out of the Perry-Exploration Company contract. (Levy v. Louvre Realty Co., 222 N. Y. 14; City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308; Bremer v. Manhattan Ry. Co., 191 N. Y. 333; Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312.) The exploration company is likewise entitled upon the record to final judgment with respect to the profits which the plaintiff is seeking to withhold from it arising from the Perry-Treadgold contract, which are derived from its treasury. (Russell v. Winne, 37 N. Y. 591; Baldwin v. Short, 125 N. Y. 553; Roberts v. Vietor, 130 N. Y. 600; Simons v. Goldbach, 56 Hun, 204; 123 N. Y. 637; Grover v. Wakeman, 11 Wend. 187; Boyd v. Dunlap, 1 Johns. Ch. 478; Lilley v. Elwyn, L. R. 11 Q. B. 742; Prescott v. White, 18 Ill. App. 322; Peterson v. Mayer, 46 Minn. 468; Libhart v. Wood, 1 Watts & S. [Penn.] 265; Sipley v. Stickney, 190 Mass. 43.) Under no circumstances should the [225 N. Y.] Points of counsel. [Jan., plaintiff be permitted to recover on the present record any profits derived from the Perry-Treadgold contract. (Nesbit v. Lockman, 34 N. Y. 162; Whitehead v. Kennedy, 69 N. Y. 466; Cowee v. Cornell, 75 N. Y. 99; Green v. Howorth, 113 N. Y. 470; Barnard v. Gantz, 140 N. Y. 249; Ten Eyck v. Whitbeck, 156 N. Y. 353; Heckscher v. Edenborn, 203 N. Y. 210; Condit v. Blackwell, 22 N. J. Eq. 485; Dunne v. English, L. R. 18 Eq. 524; 2 Pom. Eq. Juris. [3d ed.] § 956; Mechem on Agency, § 466.) Charles F. Brown, Henry Wollman and Robert C. Beatty for respondent. The facts which led the court to deny to the plaintiff a recovery of a part of Perry's compensation would not preclude his recovery of the profits arising out of the repurchase by Treadgold of claims 89-104 under the Perry-Treadgold contract. (Shaeffer v. Blair, 149 U. S. 248.) The plaintiff, in respect to his agreement with Perry, which is set forth in findings A, 88 and 89, violated no duty which he owed to the Guggenheim Exploration Company as its agent or employee. (Billings v. Shaw, 209 N. Y. 265; Murray v. Beard, 102 N. Y. 505.) The defendant Guggenheim Exploration Company waived the provision in the plaintiff's contract of employment requiring him to secure its consent in writing to investments. (Alsens A. P. C. Works v. Degnon Cont. Co., 222 N. Y. 34; Clark v. West, 193 N. Y. 349; Moore v. Hanover F. Ins. Co., 141 N. Y. 219; Whipple v. Prudential Ins. Co., 222 N. Y. 39; Pechner v. Phoenix Ins. Co., 65 N. Y. 195; Weed v. L. & L. Ins. Co., 116 N. Y. 106; Solomon v. Vallette, 152 N. Y. 147, 151; Stewart v. Union Mut. Life Ins. Co., 155 N. Y. 257.) The fact that Daniel Guggenheim and Mr. Hammond, when they gave their consent that Beatty might retain his interest in the Perry-Treadgold contract, were not informed of the exact amount of the interest which Beatty had in that contract is immaterial. They knew the exact |