26 N.Y.S. 474 | N.Y. Sup. Ct. | 1893
Lead Opinion
Defendant’s answer admits that the plaintiff is and was an attorney residing and having an office in Norwich,. Chenango connty, and engaged in the practice of his'profession, and that the defendants mentioned in the pleadings in this action are-corporations doing a life insurance business. It also admits “that each of the said defendants had, prior to the month of November,. 1878, issued a policy of insurance covering the life of one Walton Dwight, who died in the city of Binghamton, Brbome connty, in this state, on or about the 15th day of said month of November,. 1878.” In the plaintiff’s complaint it is alleged “that after the death of the said Dwight the defendants combined to resist the enforcement of claims upon their said policies.” The complaint alleges that in April, 1883, the defendants “retained and employed this plaintiff in his professional capacity to act as local counsel at Norwich aforesaid, the said county of Chenango being the county in which several suits on policies in the defense of which said defendants were interested as aforesaid were then pending.” The-complaint then avers that the plaintiff under said retainer, and prior to the month of March, 1884, “rendered valuable professional: services to said defendant in certain interlocutory proceedings before trial, and in aiding in the preparation for trial, and trial at. circuit, * * * of one of the suits brought by the personal representatives of the said Walton Dwight, deceased, on one of said life
“There were present, Mr. Magone. He acted as counsel for the various companies in this combination. Mr. Brosnen was there. He was the president of the United States Company. I remember Mr. Thomson being there as the representative of the Washington Life,—the attorney for that company. I think Mr. Brewer was also there,—William A. Brewer, Jr. Mr. Larocqne was also there, as the attorney and representative of the Germania Life Insurance Company. Halsey Fisk, the attorney for the Homeopathic and Metropolitan Companies, was also there.”
It appears that in that interview a general discussion took place in respect to the “defenses set up and the evidence to be obtained to maintain them,” and generally as to the fact that the plaintiff was to act as “local counsel,” and the witness adds: “The whole thing was talked over there. We consulted generally about the points involved, the proof that could be obtained, and the probable result.” And the plaintiff produced some correspondence that took place between him and the counsel engaged in the defense, and gave an account of the circumstances attending the trial of the Germania case at the Chenango circuit He says:
“The trial occupied thirty days, and I was occupied and worked night and ■day, up to twelve o’clock at night. Thomson was up here, as attorney for the Washington Life, till near the close of the trial. The committee hired the Marquis dwelling here, and had their cooks from New York and all the etcetera, and lived high, and I met them there every evening for consultation upon the case. I had conferences with Mr. Thomson. I looked up decisions ■here, and took them over from my office to the Marquis house,—books, etc.*477 I might say here, while I think of it, that before the trial came off, not knowing exactly what I was to do on the trial, I examined all the questions of law and made a brief, so as to be ready in any emergency.”
After this testimony was given, the plaintiff was cross-examined at great length, and his case was rested. No motion was made for a nonsuit. The defendant called as a witness Mr. James Thomson, who gave his recollections as to the progress of the litigation, the action of the committee, and the adoption of the resolutions referred to in the answer of the defendant; and at the close of his testimony the case was rested, no motion having ¡been made for a nonsuit. Exceptions were taken to certain refusals, of the referee to find, and to the findings made, of fact, as well as of law. Apparently, the referee has disposed of the case upon the rule applicable to an executory contract. That the defendants received the professional services of the plaintiff after they had made a common defense of all the actions brought against, them is made apparent by the evidence. It is also made apparent by the evidence that the facts and circumstances disclosed to the plaintiff, and known to him prior to performing the services, were such as to warrant him in the belief that the defendants desired his services as local counsel, and that that desire was communicated to him by persons who assumed to act in behalf of the defendants. That the defendants had knowledge of the services, performed by the plaintiff in behalf of the position taken by the defendants against the right of the representatives of Walton Dwight to recover is quite apparent from the testimony delivered before the referee. It is also quite apparent that the plaintiff did not know of the special provisions relating to the committee that was raised by the defendants, and that the circumstances brought to his knowledge were sufficient to warrant him in the belief that the defendants had made an arrangement to defend any and all of the actions pending, when his services were solicited. When, the proceedings preliminary to' the trial took place, when the trial took place, and in short the plaintiff’s services were rendered, the defendants must have known that the plaintiff was acting in their behalf for the purpose of furthering their common purpose of making a defense to all the actions. Under such circumstances-it seems reasonable that the rule should be so construed as to give the plaintiff a right of action. Hooker v. Bank, 30 N. Y. 86. This action, like Fister v. La Rue, 15 Barb. 323, was brought upon, an executed contract; and in that case it was said by Johnson, J.:
“It is well settled, at least in this country, that where a person is employed for a corporation, by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services according to the agreement. Having availed itself of the services and received the benefits, it is. bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract. Ang. & A. Corp. pp. 216, 218, c. 8, § 8. Where the contract is still executory, and nothing has been done under it, and the action is to recover damages merely for nonperformance, it is for the plaintiff to show a legal contract, binding:*478 .upon the corporation. But this is not that case. The services have all been rendered in pursuance of the agreement, with the assent, or at least without notice to the plaintiff of the dissent, of the other trustees, and it would be intolerable now to deprive her of her compensation. The law raises the same presumptions against corporations, in such cases, as against natural persons.”
In Navigation Co. v. Weed, 17 Barb. 378, it was held that “a party who has had the benefit of the contract cannot be permitted, in an action founded upon it, to question its validity.” In Cunningham v. Railroad Co., 63 Hun, 441, 18 N. Y. Supp. 600, it is said:
“A corporation may become bound by a contract, express or implied, under the same circumstances as an individual. To .make a corporation liable, it is not necessary to show an express resolution passed at a meeting of its directors. Where a party does work or furnishes materials to a corporation under a contract with one assuming to act as its agent, to the knowledge of its officers, without dissent on the part of the corporation, it will be held to have ratified the contract, and to be liable thereunder.”
The proposition is supported by numerous authorities cited. When the interview took place in the city of New York with the plaintiff, it was in the presence of a representative of the respondent here, and it comes with ill grace from it to insist that after his services were arranged for, and the arrangement approved by its representative, to say that the services should not be paid for by the parties soliciting them. At that interview there were persons present who had authority from all the defendants to aid in the defense of all the actions that were commenced by the representatives of Dwight. As the referee has found an arrangement had been made by all the defendants to make a defense of all of the actions, and it is apparent that counsel who represented all the defendants took part in the interview had with the plaintiff, .and it is further apparent that, when the trial took place, persons who represented all the defendants in this action were present, And all the defendants had knowledge of the services being performed and performed by the plaintiff under the supposition that he had been employed in behalf of all the defendants, and that his .services would inure to the benefit of all the defendants here, to wit, the associated 14 companies which had agreed to make a common cause of a defense against all the claims made by the representatives of the Dwight estate. The facts indicate very clearly, as the referee has found, “that the plaintiff had no knowledge in ■fact of the resolutions” which were adopted when the committee was appointed to further the defense. The referee, upon evidence which warranted the finding, states that plaintiff’s services so performed were “done for all the codefendants.” Inasmuch as we are of the opinion that the plaintiff’s right of recovery rests upon an employment made by persons assuming to act for and on behalf of the defendants, and that the services were rendered and received by the defendants without any knowledge on the part of the plaintiff of the resolutions which had been adopted by the companies, his right of recovery is upon the joint undertaking of the defendants, and not upon their several undertakings; there
Judgment reversed on law and facts, and a new trial ordered, with costs to abide the event.
MARTIN, J., concurs.
Dissenting Opinion
(dissenting.) I am not prepared to concur in the .opinion of the presiding justice. The retainer under which plaintiff claims was by the committee, and he is, I think, chargeable with notice of the extent of their powers. Martin v. Farnsworth, 49 N. Y. 558. He knew that the interest of the different companies in the litigation was not equal, if the respondent knew afterwards that plaintiff performed services for the common benefit, it had a right to believe that he was doing it under such authority as the committee had a right to give, and under the arrangement for payment as provided for when the committee was appointed. That being so, the authorities as to implied ratification would not apply. The arrangement between the companies did not authorize a joint liability. Insurance Co. v. Treadwell, 108 U. S. 361, 2 Sup. Ct. 772. The plaintiff had a right to be paid, '.but not on the basis of a joint liability. The respondent was not, . I think, liable for the whole. I therefore dissent.
