36 N.Y.S. 660 | N.Y. Sup. Ct. | 1895
In February, 1891, Ransom H. Miller and the plaintiff, his wife, joined in a conveyance to the defendant of certain real estate at the price of $22,000, and as part of the consideration the defendant executed and delivered a promissory note for $6,000, payable to the plaintiff on July 15th, and signed to it the name of “Trotter Refrigerator Company, by T. J. Reynolds, Prest.”" This action is founded on the charge that the defendant had no-power or authority to make the note in the name of or for that company, and to recover, as the consequences, the damages sustained by the plaintiff. When he made the note there was an implied warranty on the part .of the defendant that he had authority to do it for and in the name of the company, and, if he was without authority to do so, he became liable upon such warranty for the damages resulting from the breach. Baltzen v. Nickolay, 53 N. Y. 467; Taylor v. Nostrand, 134 N. Y. 108, 31 N. E. 246. Such liability, however, does not accompany the transfer of a note so made, unless the claim founded upon the warranty is also assigned to the holder to whom the note is transferred. Battle v. Coit, 26 N. Y. 404. As-the title to the land was in Ransom H. Miller up to the time of such conveyance, it is urged that the plaintiff has no right of action upon such implied warranty of the defendant. This objection to-her right of action might be effectual if she could have asserted no-
It is insisted on the part of the defendant that he had authority to make the note in the name of the company. This contention is founded upon the fact that he was the president, and had been constituted the manager, of the company, and to that end a contract had been made between him and. the refrigerator company, whereby he was given substantially the entire charge of its business up to January, 1892, with direction to pay from its proceeds a reasonable compensation to himself, not exceeding $100 per month, and to pay and discharge all the indebtedness of the company due to him, or upon which he was in any manner liable as its surety. At the time of making the note the indebtedness of the company to the defendant exceeded the amount of it. And he gave evidence tending to prove that he credited the company with the amount of the note. The purchase of the real property of Miller by the defendant had no relation to the business of the company, and the fact that he gave it credit for the amount of the note did not charge it with liability upon the note without the adoption of it by the company. This it did not do, but by the receiver of its property, after-wards appointed, the note was repudiated. It seems quite clear that the defendant derived from the contract before mentioned between him and the company no authority to make the note in question.
The defendant also claims that the note was paid by transfer made by him to Ransom H. Miller of the property of the company, in part consideration of which Miller agreed to surrender up the note. Barring all right of the plaintiff to withhold the note, it is not seen that the evidence requires the conclusion that Miller made any effectual promise to surrender the note in consideration of such sale or transfer to him. Negotiation with that view was had between them, and a written bill of sale was made by the defendant in the name of the company to Miller off the property of the company at the price of $16,154.33, the amount due from the company to the defendant. After deducting from this the amount of the $6,000 note, and interest, there is left a balance of $10,046.33, for which Miller gave the defendant his notes. In the view taken of the case, it is not necessary. to determine whether or not the defendant had, under his contract with the company, the right to make the sale which he undertook to make to Miller. The evidence of the latter is to the effect that the sale and purchase were not to be perfected unless the consent to it was given by certain stockholders of the company, and that they refused to consent to it, and advised
The amount of damages recovered was warranted by the evidence; and there was no error, to the prejudice of the defendant, in any of the rulings at the trial, to which exceptions were taken.
The motion for a new trial should be denied, and judgment directed for the plaintiff on the verdict. All concur.