3 Wend. 94 | N.Y. Sup. Ct. | 1829
By the Court,
Several objections are raised to the sufficiency of the first count of the declaration: I. That the defendants had no authority to make a promissory note; 2. That the note described is the note of John Franklin, and not of the defendants; 3. That it is payable to the president and directors of the Life and Fire Insurance Company, and endorsed by the assistant president and secretary, in their own names; and 4. That the Life and Fire have no authority to endorse negotiable paper.
1. It has been decided, that a corporation is liable upon contracts not under seal, made by their authorised agents, (12 Johns. R. 230,) and upon an implied assumpsit, (14 Johns. R. 118, 19 id. 65,) and also upon a promissory note, (1 Cowen, 513.) It is averred in the declaration, that the corporation in making the note, were acting within the scope of the legitimate purposes of their incorporation; upon the face of the declaration, therefore, the court cannot say that the defendants can not make a valid promissory note. If they can make a valid promissory note for any purpose, this note must be held good till some cause shall be shewn why it is not so. By the act of incorporation of the ¡defendants, (Statutes, vol. 5, p. 131 a.) they are authorised
2. It is said, that the note described in the declaration is the note of John Franklin, not of the defendants. The averments in the count are; That the defendants are a corporation, and one John Franklin being president thereof, and being authorised and acting within the scope of the legitimate purposes of the corporation, on the 1st July, 1823, made a promissory note, and delivered the same to the president and directors of the Life and Fire Insurance Company,-by which the said John Franklin, as president as aforesaid, promised to pay to the order of the president and directors of the Life and Fire Insurance Company, on demand, the sum of $3172,40 with interest, for value received. From this description the note must be in the following form: “ I John Franklin, president of the Mechanic Fire Insurance Company, promise to pay to the order of the president and directors of the Life and Fire Insurance Company, on demand, the sum of $3172,40, with interest for value received. John Franklin.” Or it maybe in this form: “ I promise to pay to the order of the president' and directors of the Life and Fire Insurance Company, on demand, the sum of $3172, 40, with interest for value received. John Franklin, president of the Mechanic Fire Insurance Company.” In neither form can this be said to be the note of the company. In Taft v. Brewster, (9 Johns. R. 334,) the defendants, by the name and description of J. B., T. L. and J. C., trustees of the Baptist society of the town, &c. acknowledged themselves to be bound, &c. The court said, “ It is not the bond of the Baptist church. The addition of trustees to the names of the defendants is in this case a mere descriptio person-arum.” In White v. Skinner, (13 Johns. R. 307,) the con
The defendants are entitled to judgment on the demurrer, with leave to the plaintiff to amend on payment of costs. ’