12 Wend. 525 | N.Y. Sup. Ct. | 1834
By the Court,
This cause comes up a second time on a motion for a new trial. The main question now is the same which was presented on the former motion, to wit, whether there was sufficient competent evidence to submit to the jury the question whether all the defendants had executed the contract of December 11, 1828 ; or, in other words, whether there was evidence to justify the jury in finding that Kingsbury executed the contract by virtue of an authority under seal.
Had Goodrich and Champion, when the contract was presented to them, admitted that Kingsbury had executed it by virtue of a power of attorney for that purpose, could it be doubted that such an admission would be conclusive ? 7 Wendell, 136. In such case the defendants could not object that parol evidence could not be given of a written instrument, because it was their own fault that it was not produced. Due notice had been given to them to produce it, and the paper being in their possession, and withheld, the plaintiff had a right to give secondary evidence of its contents. What was said by these defendants was certainly calculated to' produce the impression upon the plaintiff, that the contract was properly executed, and by virtue of full power and authority. The contract itself was produced and presented to each ; which was tantamount to asking each, “ Sir, is that your deed V’ Champion answers, that what was done by Kingsbury was well; that Kingsbury was his agent to sell the lands ; and he wrote a letter to another agent in Ohio, with a view to aid in and promote the consumation of the contract. That the authority was by a proper power of attorney under seal, may fairly be inferred from the copy of a power given by Champion to Goodrich, but a few days subsequent to the contract executed by Kingsbury with the plaintiff. There is no room, therefore, for the supposition that a mere parol authority was intended ; the parties knew what sort of authority was proper in such a case; and as it had been adopted in one case, it is fairly inferrible that it had been adopted in the other. In the former discussion of this case, 9 Wendell, 76, and also in Hanford v. M’Nair, 9 id. 56, the case of Striglitz v. Egginton, 1 Holt, 141, was referred to, in which the chief justice, after asserting the doctrine that an attorney who executes a sealed instrument must have an authority under seal, concludes by saying, that no subsequent acknowledgment will do. Tire
The decision of this point alone is sufficient to entitle the plaintiff to a new trial. If the fact be proved, that Kingsbury had power to make the contract which was executed by him, the same evidence proves his power to complete the negotiation and contract in relátion to those lands. The propriety, therefore, of admitting much of the testimony which was rejected, depends upon the decision of the first point. The subsequent letters and declarations, and parol contracts made by Kingsbury and Goodrich, should have the same effect as if made by Champion also. Champion had given a formal authority to Goodrich to convey lands in the same town of Bloomfield, which were owned by them jointly at the same time when he admitted the power of Kingsbury, and also of Goodrich ; and to this testimony there was no objection. The plaintiff also offered to show what, for the purpose of this motion, we must consider as proved — that long after the conveyances had been executed by Blood to Hale and Robinson, Champion stated that they had been executed at Goodrich’s
What should be the measure of damages, in the event of a recovery, was a question not agitated on the trial, and one that could not be properly raised, until the plaintiff had established a right to recover something. It would therefore be travelling out of the bill of exceptions to express an opinion upon it.
New trial granted; costs to abide the event.