11 Barb. 213 | N.Y. Sup. Ct. | 1851
By the Court,
The 5th section of the plaintiff’s charter provides that said corporation shall not, directly or indirectly, deal or trade in buying or selling any goods, wares, merchandis'e, or commodities whatsoever, unless in selling the same, when truly pledged by way of security for debts due to the said corporation. The charter of the defendants contains a similar provision. It appears from the case, that the plaintiffs obtained the butter — the selling of which is held to constitute the illegality of their contract with the defendants — in settlement of a debt
Edmonds, Edwards and King, Justices.]
As to the incapacity of the defendants to buy. The object appears to have been to borrow from the plaintiffs, money for the defendants’ purposes. The plaintiffs had some money and some butter which they had a right to sell. The defendants agree to take the butter at its market price, and also money of the plaintiffs, and repay them at á future day, the amount of money loaned, and the price of the butter.
It appears to have been an isolated transaction of buying on the part of the defendants, and of selling on the part of the plaintiffs, and hardly within the restriction of the charter which prohibits dealing or trading in, buying or selling goods, &c.; and moreover, a lawful transaction, within the principle of Potter v. The Bank of Ithaca, (5 Hill, 490,) where, under an express direction that the discount operations of the bank should be conducted at Ithaca, and not elsewhere, a single discount made within the city of New-York, was not considered within the prohibition ; and to the same principle see Suydam v. The Morris Canal and Banking Company, (5 Hill, 491, note (a); S. C. 6 Hill, 217, in error.)
For this reason it seems to me, the contract between the plaintiffs and the defendants was not void, and the nonsuit should not have been allowed; and therefore, that the motion for a new trial should be granted.
