12 Wend. 356 | N.Y. Sup. Ct. | 1834
By the Court,
The verdict in this case was right. The defendant was individually responsible for the demand of Williams under the contract for drawing stone, and that being to an amount more than sufficient for the purpose, exhausted the note transferred to the defendant by Tanner.
Although the defendant entered into the contract for the drawing of the stone as one of the building committee of the Baptist College, he was individually liable, unless he showed such an authority to contract as would bind his principals. 13 Johns. R. 307. No such authority was shown. It did not even appear that the body alleged to be his principals had a legal existence, or if they had such existence, that it was competent to them to appoint an agent, and that they would be bound by his acts. Besides, by the admission of the defendant, it seems, that he made the contract with Williams without the assent of his associates, and that they expressly refused to bind their principals, Most clearly, then, the col
It was asked by the counsel for the defendant, if Williamsj instead of having a note and an account against the defendant, had held two notes, and after having transferred one of them should transfer the other, against which would the note purchased by the defendant be a set-off, under the provisions of the statute ? The answer is, it would be a set-off against the note last transferred. The defendant, in such a case» should not be permitted to insist upon his set-off against the note first transferred, because, when it passed into the hands of a third person, the equities of the maker to set off his demands against the payee would be met and overthrown, by the fact that the assignor still held demands against him to an amount sufficient to exhaust his set-off; and upon the question of who has the better equity, there can be no doubt that the claims of the purchaser of the note for a valuable consideration would be preferred to those of the maker. These considerations would not apply to the case of the second assignee.
New trial denied.