86 Md. 210 | Md. | 1897
delivered the opinion of the Court.
In this case an attachment was issued out of the Superior Court of Baltimore City, at the instance of the appellants, against the Natchaug Silk Company, a Connecticut corporation. It was laid in the hands of Charles H. Linville, garnishee, who has pleaded non assumpit on behalf of the defendant, and nidia bona as to himself.
There were present on the occasion referred to by witness, the president and general manager of the Silk Company, the representative of the receiver of the bank, and the person who had actual possession of the goods as agent of the Silk Company. The general manager directs the agent that the goods had been transferred, and inquires if he- will continue to hold them as agent of the receiver ; the agent consents to do so, and receives the authority to so hold them from the attorney of Dooley. Now, if it be assumed that there had already been a contract for the sale of the goods by the proper authority, or if Chaffee had power to transfer them, the effect of all this was to make a delivery of the property to the receiver and to constitute Linville his agent for the custody and saleof the goods. Thompson, Garn., v. B. & O. R. R. Co., 28 Md. 396.
The witness was then asked by the plaintiffs whether there was any written assignment, and replied he “thought there was a bill of sale, but whether on that day or prior thereto he was not sure, and he did not think that he had ever seen that bill of sale.” The plaintiffs then further •objected to so much of the tesimony of the witness as purported to prove a transfer; on the ground the transfer was made by written instruments. Respecting this, it is sufficient to say that it had not appeared the transfer had been •effected by written instruments. The witness only said, “ he thought ” there was a bill of sale, but had never seen it. Such evidence is hearsay, and not sufficient to support the objection made by the plaintiffs.
From what has been said, it follows we find no error in the rulings of the Court set out in the first and second exceptions.
At the conclusion of the evidence, the Court at the instance of the garnishee, instructed the jury that there was no evidence before them from which they could find that there was in the hands of the garnishee at the time of the
It must be borne in mind, that the goods attached, it is conceded, were on the 25th of April, 1895, the property of the Silk Company ; also the fact, that up to and at the time the writ was laid, that is to the 27th December following, the garnishee still retained the possession of them. The only issue therefore between the parties seems to be, did the goods or the proceeds of the sale of them, for any reason, at any time between those dates, cease to be the property of the Silk Company? In presenting this question, many points were raised and exhaustively and ably argued. In our view, however, it will not be necessary for us to consider more than a single phase of the case. At the outset, we may remark, there is no evidence in the record tending to prove the transfer to the bank or its receiver, except that contained in the testimony of the garnishee. There is some evidence that sometime in 1890 and 1894, certain papers called by the witness “bills of sale” were made, but there is no proof whatever that the specific articles mentioned in them included any of the goods that were attached in this case. The first of these so-called bills of sale is dated January 1st, 1890 ; it is only a bill of goods alleged therein to have been sold by the Silk Company to O. H. Risley, cashier of the First National Bank, with the word “ paid” at the end, and signed “ Barrows,” a bookkeeper of the Silk Company. The two others are like the first, except are appended the words, “ the goods represented by this bill are pledged to the National Bank of Willimantic as security for loans made by said bank to the Natchaug Silk Company;” they are signed by J. I). Chaffee, president, and Charles Fenton, treasurer. Of these instruments the treasurer, Fenton, testifies that no record was made of them in the books of the Silk Company or anywhere else; they w'ere never brought up at any meeting of the company ;
But under no theory of implied power can either a president or general manager transfer the assets of an insolvent corporation about to go into the hands of a receiver for an antecedent debt. The case of Hoyt v. Thompson, 5 N. Y. 320, is instructive on this point. There the Morris Canal and Banking Company, an insolvent corporation of New Jersey, being indebted to the State of Michigan, its president and cashier, without the authority of the directors, to secure the payment of the Canal Company’s debt, assigned to the State of Michigan a debt and mortgage due to the Canal Company by a Railroad Company. There was no proof that the State had any knowledge that the assignments were made without the authority of the directors, and such want of proof, if there were nothing else in the case, might prop-ably authorize a presumption they were executed in pursuance of the authority of the directors, and that the president and cashier of the Canal Company were acting within the general scope of their powers ; but that principle could not apply in that case, for, said Paige, J., “If the assignments had been made to the State of Michigan for a new consideration paid at the time, or if the State had relinquished any security held by it, so as to entitle it to the character of a bona fide purchaser for a valuable consideration, and the agents * * of the State * * had no notice of the want of authority of the officers of the Canal Company making the assignment * * the company would be estopped from denying that the president and cashier had competent authority to execute and deliver the assignments * * But inasmuch as the State of Michigan received the assignments as collateral security, merely for an antecedent debt, the Morris Canal and Banking Company or its representatives are not estopped from denying the authority of its president and cashier to execute and deliver the assignments.”
It has always been held, that unless there is prior express authority, or subsequent ratification or unless some principle
There is nothing in conflict with what we have said, in Hadden v. Natchaug Silk Co., 74 Fed. R. 429. In that case Judge Shipman said: “The decisions of the State of Connecticut apparently recognize that a president and unlimited general manager of one of its manufacturing corporations is vested with such power” (that is to sell the property of the corporation in part payment of its debts) “and that such transfer is valid ; ” but adds that this being a question of law, “ may be controlled by the facts which may subsequently appear as to any limitation of Chaffee’s actual powers of which the bank had knowledge.” The Court did not decide as to the power of Chaffee; as to that the question was of a character which cannot be determined on affidavits. Nor does he decide what the power of a general manager is in Connecticut, but only what it “ apparently is ” and that it is subject to modification by other facts than those before him in that case.
We are of opinion, for these reasons, that Chaffee had no power under these circumstances disclosed by the evidence contained in the record, to make an effective transfer of the goods, and that the plaintiffs were entitled to maintain their attachment.
Judgment reversed with costs and cause remanded for new trial.
(Decided June 23rd, 1897).
A motion for a re-argument was made and in disposing of the same,
delivered the opinion of the Court.
The motion for a re-argument must be overruled. It is not desired because of error supposed to exist in the opinion already filed, but because it is contended this Court should have held that the Court below was without jurisdiction, because it is alleged the proceedings show upon their face that the requirements of the statute have not been substantially complied with, in that the affidavit appears to have been made several months prior to the time of the suing out the attachment. The counsel for the appellee insist that the statute clearly implies that the affidavit must be made, either at the time of the institution of the suit, or as shortly before as conveniently may be. But while we are of opinion that this is a very proper' practice, and that there may be such delay between the making of the affidavit and the suing out of the writ as may reasonably induce a presumption, when taken in connection with other facts properly proven, that the process of the Court is being abused or that the facts set forth in the affidavit may not be true when the suit is instituted, yet we do not think such divergence of dates is a jurisdictional matter that will enable this Court on appeal to consider the question in a case like the one at bar, where the point was not raised and considered below, on appropriate motion or plea. It is only when the want of a substantial compliance with the requirements of the statute appears on the face of the proceedings, that an objection to the jurisdiction can be relied on appeal, where such objection has not been made below. Coward v. Dillinger, 56 Md. 62.
In this case there were three exceptions. Two of them to the admission of testimony and one to the granting of an instruction. There was no question raised below, as to whether the delay between the making of the affidavit and the bringing of the suit worked an injury to the defendant or garnishee, or whether the process of the Court was being abused, or whether the facts set out in the affidavit were untrue when the proceedings began. This could have been done by proper motion or plea, and it may be, if that course had been pursued, the delay might have been an important