Callanan v. Van Vleck

36 Barb. 324 | N.Y. Sup. Ct. | 1862

Lead Opinion

Clebke, J.

The only question here is, whether the defendants were justified in continuing to make the appropriations after the formation of the new firm, which Stevens had authorized them to make some time before, when he was the only member of the firm of A. J. Stevens & Co.

Under ordinary circumstances, the authority thus given by Stevens would not he sufficient to justify the defendants in continuing these appropriations, without a renewed authorization by the new firm. It would have been the duty of the defendants, on being informed of the change in the concern, to inquire of the new firm whether they should continue to do what Stevens alone had previously directed them to do. ‘But the referee finds that Ingham, one of the new members;, received the packages; that he receipted them to the express" tiompany, in Ms own handwriting, in the name of the firm; and that the avails of the packages were used by the-'new concern, who used them in their business,'paying them in the ordinary way to their customers. To be sure, neither of the new members had any-knowledge, prior- to the receipt of the'móntMy account from- the defendants in August,, that there had been any arrangement- "made with Stevens, authorizing the defendants to pay Thompspn for the packages > and- Ingham supposed;- when he received them, that they caine directly from Thompson, Und that they belonged' to Stevens. TMs induced -the new firm to make allowances, and to give credit-to Stevens, which they otherwise would not have done; and for these advances they have never been- reimbursed. But still, as we have seen,, the-new-firm-actually obtained the packages, receipted them in the handwriting of Ingham, one of the new members,- retained them, and used them in their business. This was -sufficient to induce the defendants to believe that the authority previously given by Stevens alone; -was - continued, by-the consent of the new firm.

[New York General Term, February 3, 1862.

Ingraham, Leonard and Clerke, Justices.]

The plaintiffs,, therefore, are liable for those: advances, not merely by virtue of the authority given in April, 1857, by Stevens, but because they were made for the benefit and-by the implied authority of the new firm, i The judgment should be affirmed with costs

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Concurrence Opinion

Leonard, J.

The fact that the new firm had the money sent ■by the defendants, is alone sufficient to- charge - them. I concur.

Ingraham, J. also concurred.

Judgment affirmed.