73 N.Y.S. 313 | N.Y. App. Div. | 1901
This action is brought to recover $3,500, the amount of a promissory note made by a copartnership doing business in the city of New York under the name of Foster Brothers indorsed and paid by the plaintiff’s assignor. The complaint alleges that the firm of Foster Brothers at the date of the making of the note “ were agents for the above-named defendant,- and as such agents were engaged in the man
The answer of the defendant is in substance a general denial of all the allegations of the complaint, except the incorporation of the defendant and the fact that Foster Brothers were copartners. TJpon'this trial the court held that the evidence was not sufficient to sustain a finding that W. & J. Sloane were the principals and Foster Brothers their agents; that “ the overwhelming preponderance of evidence is that the true relations between them was that of sellers and buyers; ” and that question was withdrawn from the
The right of the plaintiff to recover depended upon the existence of an agreement by which the defendant agreed to pay this note of Foster Brothers when due, and upon the faith of which agreement the plaintiff’s assignor indorsed the note,
zThe defendant insists that the agreement was ultra vires. This defense is not pleaded, and it would seem that to be available a ydefense of ultra vires must be. pleaded. If, however, it is. available I do not think that such an obligation under the circumstances here shown can be said to be beyond the power of such a corporation as this defendant. The certificate of incorporation of the defendant is in evidence, and from it it appears that “ the objects for which said Company is formed are the manufacture and safe of carpets and other floor coverings, upholstery goods, and articles of- furniture.” In carrying out its business in the manufacture and sale of these articles the. corporation certainly had. the incidental powers necessary and convenient for the conduct of its business. It had sold to this firm of Foster Brothers a large amount of carpets and furniture
The defendant also insisted that Allen, the person who made the
My conclusion, therefore, is that the agreement with the plaintiff’s assignor was not ultra vires, and from the facts as disclosed Allen had power to make such a contract as was here made which would be binding upon the defendant.
There are several exceptions to rulings upon questions of evidence which are relied upon by the defendant, but they do not seem to be material. When the extract from the signature book of the Bank of the Metropolis was admitted in evidence, there was testimony that the defendant had introduced Foster Brothers to the Bank of the Metropolis as customers, and although there was testimony contradicting this fact, the admission- of this signature book in evidence could not prejudice the defendant. The admission of the testimony of the conversation between Foster and the plaintiff’s assignor, when Foster told the plaintiff’s assignor to go and see the defendant about the indorsement, was not error, as it was evidence to show that Sayles relied upon the agreement witli Allen in making this indorsement, and Sayles afterwards testified that he told Allen
I have arrived at the conclusion that no error was committed on the trial which would justify a reversal of the judgment, and it should be affirmed.
The judgment and order appealed from should be affirmed, with costs.
Hatch and Laughlin, JJ,, concurred; Patterson, J., dissented.
Judgment and order affirmed, with costs.