Murray v. Binninger

33 How. Pr. 425 | NY | 1866

James C. Smith, J.

The conclusion of the referee, that the defendants are Table for the acts of their agent, Compton, in directing the levy upon the property covered by the plaintiff’s mortgage, is warranted by the facts found by him, that the defendants were informed of the sale and purchase by Compton; they received the notes which he obtained therefor; and they were notified, after the sale and before this suit, that the property was not levied on until after the return day of their execution. Upon this state of facts they are clearly hable, on the ground of an adoption and ratification of the acts of their agent, unless they returned the property or its avails, or in some other manner repudiated such acts, after they learned that the levy was illegal. The referee has not found that the defendants repudiated the acts of the agent; on the contrary, he says, in his report, there is no evidence that they did so. Their appropriation of the fruits of the wrongful acts of their agent, with a knowledge of all the facts, is a ratification of the most mistakable character, and it makes them hable to the same extent as if his acts had been authorized by their express direction. {Oro. Miz. 824; 4 Inst. 317.) There is, therefore, no ground for disturbing the judgment, unless the referee erred in receiving the evidence of what the defendant Wattles testified to on the former trial. The only point made at the bar, in respect to the admission of that testimony, is that the minutes were incompetent, because they were not authenticated by the testimony of the counsel who took them. That point was not suggested on the trial; if it had been specially'taken,'it might have been obviated; and it cannot be raised on an appeal for the first time.

The judgment should be affirmed.

All the judges concurring.

Judgment affirmed.