Dean v. Roesler, 1 Hilt. 420

Dean v. Roesler

1 Hilt. 420 | New York Court of Common Pleas | 1857

Lead Opinion

Beady, J.

— I think th.e agreement in writing, signed by/Bol-let, did not bind the defendant. Story on Agency, § 147. Mhe agreement must purport on its face to be that of the principal, which is not the case in the contract produced. A more liberal exposition is allowed in cases of unsolemn instruments, and especially of commercial and maritime contracts, which are usually drawn up in a loose and inartificial manner. Story, § 154. Accordingly, where an agent, duly authorized, made a note thus, “I promise to pay I. S. or order,’’ and sign’d it “Pro C. D., A. B.,” it was-held to bo the note of the principal, and not of the agent (Long v. Coburn, 11 Mass. R. 97); but a note drawn thus, “ Four months after date, I promise,” &c., and signed “ David HubbellHoyt, agent for the Churchman,” was declared to be the promise of the agent, and not of the principal, although Hoyt was duly authorized to make and sign the note. DeWitt v. Walton, 5 Selden, 570, opinion of Gardiner, J. The rule which prevails in Massachusetts does not, therefore, exist in this state. See, also, Moss v. Livingston, 4 Comstock, 208. Bollet, the agent, proved the letting, however, independently of the written agreement. It was for a year, to commence in futuro, and was valid for the term by paroi (Young v. Dake, 1 Seld. 463), and the authority of the agent, granted by parol, was sufficient to enable him to bind his principal. Warrell v. Munn & Prall, 1 Seld. 229. In reference to his authority the testimony was conflicting, and the decision of *422tbe referee, therefore, is binding. The difficulty, however, of sustaining the judgment arises upon the measure of damages adopated by the referee. He allowed to the plaintiff the difference between the rent of the premises alleged to have been hired by him from the defendant and- the rent which the plaintiff paid for other premises, which he was compelled to hire. This was erroneous. The rule of damages is the difference between the yearly value of the premises and the rent reserved. Trull v. Granger, 4 Seld. 115 ; Schwartzwaelder v. Brace, Dec. 1847 (Com. Pleas). The testimony as to the rent of the premises secondly hired by the plaintiff was objected to, and the answer taken subject to the objection; but the answer was regarded as evidence by ie referee. Exceptions to the decision of the referee, upon wmch the judgment is founded, were taken, but none specifically to the measure of damages adopted by him. It is insisted that the omission estops the defendant from claiming a review of the judgment of the referee in that respect. In Hunt v. Bloomer (8 Kern. 341), the Court of Appeals, per Comstock, J., decided that the exceptions to be taken, within ten days after notice of the judgment, as provided bj section 268 of the Code, are those only which, under the former system of practice, were made to the rulings of the court after the evidence was closed, and that a case, if served within ten days, will be of itself a compliance with the first clause of the section, and no other exceptions will be required. The testimony, on which the judgment of the referee as to damages is based, was taken subject to objection, and no exception thereto appears in the case. The exceptions taken after notice do not refer to the admission or use of that testimony by the referee, who, having admitted it subject to objection, did so, doubtless, with a view to examine its admissibility; but the fourth exception being, that the decision of the referee was contrary to the evidence and contrary to law, and the objection to the testimony appearing in the case, and the referee having decided to admit the testimony objected to, we think the question thereon presented must be considered. As already suggested, it *423is fatal, and tbe report must be set aside, and ease sent back to tbe referee.

Concurrence Opinion

INGRAHAM, Eirst Judge.

I concur with Judge Brady in tbe order reversing tbe judgment. I am not prepared to say, however, that the parol evidence of an agreement, which was after-wards reduced to writing, was properly admitted. We are agreed that the sealed instrument did not bind tbe defendant; and if tbe parol evidence of the agreement prior to its submission to writing is improper, there is nothing to show the defendant’s liability. It is not necessary, however, to discuss that question at present.

Judgment reversed, and case referred back to referee, costsfcfd abide the event.