9 Daly 78 | New York Court of Common Pleas | 1880
The eminent referee before whom this case was tried, has, in the elaborate opinion delivered by him, dispensed with the necessity of our recapitulating the material parts of the testimony, or going into any examination of the law, as he has carefully set forth the facts upon which his conclusion was founded ; and there is no question, as to what the law applicable to the subject is, made either by the appellant or respondent.
The appeal is brought upon the ground that the finding of the referee was erroneous upon the facts, and that the law was consequently misapplied.
So far as the testimony of L. S. Stockwell, the treasurer of the company, was in conflict with that of the plaintiff, the referee, in whose presence these two witnesses were examined, was more competent than we could be to judge of their relative credibility; and although we have, when a case is tried
It further appears by the evidence, that the whole of the stock of the Howe Machine Company, with the exception of a few shares, is owned by L. S. Stockwell, the treasurer, and by his brother, who is the president; and that the negotiations with the plaintiff were made by the treasurer.
Upon the question of ultra vires it is sufficient to say that the charter of the corporation was not produced to show what it permitted, or what may have been forbidden by it; all that' appeared by the oral testimony being, that the business of the company is to make and sell sewing machines; and the referee has found, in connection with that, that the statue and bas-reliefs constitute a species of advertisement, which, in connection with other things done by them, has the effect of keeping public attention drawn to their sewing machines; and this conclusion, on his part, is, I think, fairly inferrable from the whole of the testimony. But, independent of this, the defense
The statue was rejected upon the report of the committee appointed by the commissioners to examine it, upon the ground that, though it indicated “a commendable earnestness' in the simplicity of its treatment,” yet, “ the lack of experience evinced in the modeling” failed to give it “the proper artistic qualifications to entitle it to a position in Central Parkand according to the testimony of two of the committee, who are artists, J. Q. A. Ward and R. M. Hunt, it appears to have been a very indifferent work, both describing it as not being well posed, and Hunt, as being “logy,” and impressing his mind as like a thing that might have been done in dough. It was made, however, after a model which was satisfactory to the defendants, and it does not appear from the testimony that it did not fully conform to .the model which-the company had approved. It evidently would have served their purpose, if they could have had it put up with the basrelief in Central Park, and when they could not,, notwithstanding its condemnation as a work of art, by the committee that rejected it, the company did not hesitate to get all the public effect which they could, in the use of it, by putting it up in the Centennial Exhibition,-and by the distribution of the pamphlet, which was distributed, according to the testimony, in that part of Machinery Hall where the exhibition of the Howe Machine Company was placed, distinguishable by a sign bearing the defendant’s name; the pamphlet being given to the witness , who testified to the fact, by a lady there, who was m charge of the defendant’s exhibition.
In such cases, where an article like this has been made in good faith, and gone to the use of the corporation, and made
It was not made a condition, when the plaintiff was employed to make the statue, that its acceptance would depend upon whether it would be received by the commissioners, and would be allowed by them to be placed in the Park. So far as respects that particular advantage, the defendants, when they employed the plaintiff to make it, took the risk. Being a thing made and intended for the benefit of the interest of the company, it was competent for the treasurer to contract for it, and did not require that the contract should be entered into with the concurrence of the whole, or of the majority of the board of directors; nearly the whole of the capital of the company belonging to the treasurer, who made the contract, and to his brother, the president.
The judgment, in my opinion, should be affirmed.
Van Brunt, J., concurred.
Judgment affirmed, with costs.