Coney Island Automobile Race Co. v. Boyton

84 N.Y.S. 347 | N.Y. App. Div. | 1903

O’Brien, J.:

The principal questions are whether the defense is good, and- if so, whether it was established or the defendant prevented from establishing it by competent evidence which was offered and which, under the objections of the plaintiff, was excluded by the court.

We say these are the principal questions, because it is conceded that the plaintiff is entitled to recover upon the note unless the defense pleaded is one that, if legally established, would exonerate the defendant from liability thereon.

The first proposition, as to whether the defense is good, turns upon the construction to be given to the terms of the written agreement relied upon in the answer and whether thereunder the defendant had the option and right to refuse to pay his notes and to return the property and forfeit $500, or whether it rested with the plaintiff to elect whether it would proceed upon the notes, allowing the defendant to retain the property, or would insist upon its return and exact the payment of the forfeiture of $500. The agreement was in form a conditional sale, and under it the defendant received, has used and still retains the property; and were we called upon to determine the question, which we are not, our inclination would be to hold that the option or election under the terms of the agreement was given, to plaintiff and could be exercised by it alone. It is not necessary, however, for us to decide this question, upon both sides of which an argument could be made, our conclusion being that upon the trial, assuming that the defendant had the right to forfeit the $500 and return the property, no competent proof was offered to establish the making of the agreement upon which the defendant relied.

The plaintiff, after introducing in evidence the note, rested, and the defendant took up the burden of making out his defense. For that purpose he called a stockholder of the plaintiff company and asked him whether he knew Robert Meissner, and upon his answering that he did, asked him, showing him the paper, “ Do you know whether that is the signature % ” This was objected to on the ground that it was not shown “ that Robert Meissner was authorized to execute this instrument or that this was authorized by the Board, of Directors,” and the Objection was sustained and exception; taken. It is true that the witness was not asked nor was it shown that he knew the handwriting of Robert Meissner, and it might therefrom be. claimed that h§ was not a competent witness, to prove his. signature. The objection, however, was not upon the. ground that he had no knowledge of the signature, and had such defect been siiggested it might have been cured. We are, therefore, to conclude that it was not because a proper foundation had not been laid for the proof of the signature, but because no proof had been given showing that Robert Meissner was authorized to execute the agreement, that the question was excluded. This ruling, is erroneous, but in view of what subsequently appeared upon the trial, it must be regarded as harmless.

In proceeding with the discussion we shall assume that the witness had. stated that he knew that the signature attached to the agreement was that of Robert Meissner. There was, however, another step which it was necessary, for the defendant to take before he could introduce in evidence the agreement. This witness testified that Meissner was the secretary of the company, although the instrument purports to be signed by him as treasurer; but whether he was secretary or treasurer,' or both, there was no proof offered or attempt made to prove what were his duties, or whether or not he had any authority to contract for the corporation, either by resolution óf the board of directors or by acts or dealings which would have a tendency to show that in signing such an agreement he was acting within the scope of his authority, real or apparent. In other words, no attempt was made to prove that he had the necessary authority, express or implied, to bind the company by a written agreement.

It requires no citation of authorities for the proposition which is well settled that in order to bind a corporation it is necessary to prove that the one who it is claimed acted for the corporation had authority, either express or implied, to do so; and where it is sought to hold a corporation in any transaction, it is incumbent upon the. one alleging the fact to show that the person who claimed to act for it had authority, express or implied, to represent and bind it. The failure to introduce or offer such evidence was a failure on the defendant’s part to sustain the burden which rested upon him before he could introduce in evidence the written agreement pleaded as a defense.

Having failed to .prove the written agreement, and hence being unable to introduce it > in evidence, the defendant was precluded from showing its contents by parole evidence, and the rulings which excluded such proof of its terms were right.

Upon the ground, therefore, of the defendant’s failure to establish by competent evidence the written agreement upon which lie relied for a. defense, the judgment in favor of the plaintiff, as directed by the court, must be affirmed, with costs.

Van Brunt, P. J., Hatch and Laughlin, JJ., concurred; Patterson, J., dissented

Judgment affirmed, with costs.