229 A.D. 123 | N.Y. App. Div. | 1930
This appeal presents an interesting issue of fact as to whether the defendant was negligent in the handling of its certified copies of a power of attorney so that a manager of the defendant was held out as continuing to have a power of attorney which had in fact been revoked. The action was brought to obtain a declaratory judgment adjudging that an agreement guaranteeing a note was a binding obligation of the defendant. After a trial before the court without a jury, the complaint was dismissed.
At the time of the delivery of the guaranty to the salesman there was pinned to it a copy of the power of attorney of Devoe, certified to be a copy by an assistant secretary of the defendant who was duly authorized, empowering Devoe to execute such instruments on behalf of the defendant. The power of attorney appeared from the copy to have been acknowledged on October 8, 1925. The certificate of the assistant secretary was dated and sworn to May 10,1927, which was the date of the note and guaranty in suit. Concededly the assistant secretary who signed the certified copy was one of four assistant secretaries who were empowered to sign such certified copies as were needed in the business of defendant. It also appears that it was “ customary ” for this assistant
When the plaintiff showed that Devoe continued in his position as manager of the defendant up to June 30, 1927, and that it was customary for him to receive these duly signed certified copies of the power of attorney by which he was enabled to hold himself out as having a power of attorney to represent the defendant, the duty of going forward was shifted to the defendant to show that it had used due care in taking from Devoe such indicia of authority upon its revocation, and that he had obtained the same without want of due care on the part of the defendant.
The learned trial court did not consider any question of estoppel, since he expressly declared that no such question was in the case. He did, however, find that at the time of the delivery to the plaintiff of the paper purporting to be the guaranty of the defendant, plaintiff had notice of facts and circumstances sufficient to put it on inquiry concerning the validity of the purported guaranty, and that plaintiff did not exercise reasonable care in making no inquiry whatever before accepting the paper. Any such negligence on the part of the plaintiff, however, would have a bearing only had the liability of the defendant at the trial properly been predicated upon negligence. Instead at the trial the court considered the defendant’s liability only from the viewpoint of whether or not there was actual authority. The issue of estoppel based upon negligence was not considered. The liability of defendant at the trial should have been based upon the defendant’s act in permitting its employee Devoe to hold himself out as authorized to execute on its behalf the guaranty in question. As noted, the signed certificate certifying to the correctness of the copy of the power of attorney concededly was genuine. The real issue presented for determination was whether under all the facts in the case the defendant was estopped from showing as against the plaintiff that there had been a cancellation of the authority prior to the execution thereunder of the guaranty in suit. The principle applicable is well stated in Marshall v. Reading Fire Ins. Co. (78 Hun, 83). In that case the defendant had furnished to its agents policies in blank signed by one of its officers. Prior Lo September 20,1892, the agent had been authorized to countersign and issue the policies. Upon that date the defendant revoked said authority. On March 1, 1893, the agent nevertheless issued a policy to the plaintiff. This the defendant claimed was
In the case at bar, therefore, when the plaintiff showed that the defendant’s agent still continued to occupy the position of manager in the company and that he was possessed of the same indicia of authority which previously it had been customary to provide him with, it became the duty of the defendant to go forward and meet this proof by showing not only that the power of attorney had been duly canceled but that it had exercised due care in recalling from Devoe and properly safeguarding the duly signed certified copies of the power of attorney.
It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Dowling, P. J., McAvoy, Martin and O’Malley, JJ., concur.
Judgment reversed and a new trial ordered, with costs to. the appellant to abide the event.