64 N.J. Eq. 596 | New York Court of Chancery | 1903
The bill is. filed to foreclose a mortgage made on August 31st, A. D. 1899, by the Rahway Ice Company to. complainant to secure the sum of $13,000. One j^ear thereafter the mortgagor paid the
It was argued for complainant that there was ratification of the contract as made, first, by payment on account, and secondly, by an express reference to the mortgage as “due”'in a subsequent mortgage made by the company to a trustee to secure certain bonds.
The payment on account may as well be referred to an implied indebtedness on the quantum valebat as to an express indebtedness on the contract. As to the clause in the second mortgage, the evidence does not show by whose direction it was inserted, and it appears to be rather the statement of a seeming fact than the conscious validation of an illegal agreement. If it was inserted by direction of the board of directors, then, so far as appears, a majority of tire board which directed it may have consisted of the same persons who authorized the purchase. That majority could not, consciously or unconsciously, ratify its own illegal act. The ratification must necessarily come from
There must be a reference to ascertain the value of the stock at the time it was purchased. I do not think the company could with any more reason tender it back now, with another mortgage put upon the property, than the Aberdeen company, in the case mentioned by Mr. Justice Yan Syekel, could have tendered back the chairs after using them.