Lowenstein v. McIntosh

37 Barb. 251 | N.Y. Sup. Ct. | 1862

By the Court,

Welles, J.

The findings of fact by the justice before whom the cause was tried show that Henry Lowenstein never had any legal interest in the farm; and that in the arrangement made by him with the defendant, on or about May 1, 1859, under which the defendant went into possession of the farm, he acted as the plaintiff’s agent. The agreement in writing afterwards made between the plaintiff and defendant, in relation to the occupancy and cultivation of the farm, was dated the 1st of May, 1859, doubtless for the purpose of embracing and merging the previous paroi arrangement made between the defendant and Henry Lowenstein. Upon the execution of this written agreement between the plaintiff and the defendant, which was actually executed in J une, but ante-dated May 1st, the parties went on, the defendant being in possession and cultivating' the farm, under the written agreement; Henry Lowenstein acting as the agent of the plaintiff in. the matters connected therewith.

On the 12th of August following, the plaintiff, conveyed the farm to Anna Lowenstein, the wife of Henry, and on the same day sold the personal property (not including the crops) to Anna, and thereafter Henry acted as the agent of Anna. Under the agreement both parties put stock on the farm, and crops were sown and planted, and some part gathered prior to September 29, 1859, on which day Henry Lowenstein and the defendant executed the submission to arbitration. This submission declares that in entering into it Henry Lowenstein acted as and for his father, Meyer Lowenstein, and his wife, Anna Lowenstein, as for himself individually. It recites differences existing and undetermined between Henry and the defendant, growing out of mutual accounts between them, and demands of one against the other, arising from certain transactions concerning the leasing, working and dividing of crops and produce of the farm. It then pi’oceeds as follows: “ How therefore, for the purpose of settling all of such claims, amounts, demands and controversies of whatever kind, we, the said Thomas McIntosh and Henry M. Lowenstein, for himself and Meyer Lowenstein and Anna Lowenstein, and all persons interested, doth each agree to submit, lay before, and leave out to Hiram Sprague and Henry Fuller, * * * * * who have 'been and are hereby chosen arbitrators by us to examine, settle and adjust, and finally determine all matters of account and differences of whatever kind between us, arising out of the transactions aforesaid, or any other, and to award," &c. This was in fact a submission by Henry Lowenstein of all the matters recited and referred to, which existed between the plaintiff and the defendant, and embracing the matters in controversy in this action; and in submitting those questions Henry Lowenstein acted expressly as the plaintiff’s agent. This he could not make more manifest than is done in the submission itself. Besides, in relation to all the transactions between the parties, or as connected with the farm and the occupation and working and in stocking it, Henry appears as agent either for his father or his wife, and not a word or intimation appears any where in the case showing that he had any interest, except as such agent, in the matters referred. The differences between Henry and the defendant, recited in the submission, are shown by the submission itself to have arisen from the transactions concerning the leasing and working of the farm and dividing the crops and produce thereof, which were all questions between the plaintiff and defendant in this action, and,should be so regarded.

In entering into the submission, Henry acted without authority from either his wife or the plaintiff, and the award made in pursuance of the submission is not binding on.either party, unless it has been since ratified by the plaintiff. Soon after the award was made, which was in Henry’s favor, he assigned it to the plaintiff, who, on the 15th day of October thereafter, assigned it to Anna Lowenstein. This was clearly an adoption and ratification, by the plaintiff, of the unauthorized act of Henry in submitting to arbitration the controversies between the former and the defendant. The act of accepting the assignment, and that of assigning to Anna Lowenstein, are emphatic acts of adoption and ratification; and are as effective upon the plaintiff as if he had himself been personally a party to the submission, and had subscribed the same. And as to the form and soundness of the award, the prosecution of the defendant upon it, by Anna, before a justice of the peace, with the trial and judgment thereon, established its validity, as effectually as if the plaintiff had not assigned it and the action before the justice had been in his name, to recover the amount awarded. Until the judgment is reversed it binds all the parties and privies, as to every thing necessarily adjudicated by the judgment. The judgment could not have been given except the award was binding and obligatory. And as between the parties to it and their privies, the judgment cannot be "reviewed, except upon appeal. As long as it stands unreversed it is the law for the parties, upon all the questions which it involves. Within the principle of the case of Coan v. Osgood, (15 Barb. 583, 588,) the plaintiff was in privity in respect to the judgment and every thing which it necessarily adjudicated, with the plaintiff therein, Anna Lowenstein. As to what facts a judgment establishes, see White v. Merritt, (3 Seld. 356.)

[Monbor General Term, March 3, 1862.

If the award was binding upon the present plaintiff, as I think it clearly was, after the ratification by him, above mentioned, it settled and quieted forever all questions fairly within the meaning and intention of the submission; and that, even though the arbitrators neglected to pass upon some of the matters submitted to them. Such would have been the effect of a judgment, and there is no difference in that respect between an award and a judgment. (Brazill v. Isham, 2 Kern. 15.)

Upon the question of the ratification of the submission by the plaintiff, his counsel invokes the benefit of the rule that a ratification by an individual of an unauthorized act of one assuming to act as his agent, to be effectual, must be with full knowledge of every material fact and circumstance in the case, and of the acts of his agent. Such is undoubtedly the rule, and should be enforced in cases where the facts will justify its application. In this case, however, the presumption is that the plaintiff had such knowledge at the time of his acts which constituted the ratification. The award was assigned to him soon after it was made, and that recited the submission; and the presumption is that the submission accompanied the assignment of the award, as the award would be good for nothing without the submission. And in aid of this presumption, the findings of fact show that on the trial before the justice, of the action on the award, the plaintiff’s assignee, who was plaintiff in that action, gave in evidence the submission as well as the award, and the assignments upon it.

Upon the whole, I am of the opinion that the judgment of the special term is free from the objections now urged , against it, and that the same ought to be affirmed.

Ordered accordingly.

Welles, E. Ewrwim Smith and Johnson, Justices.}