91 N.J.L. 666 | N.J. | 1918
The opinion of the court was delivered by
This suit was instituted by the plaintiff to recover from the defendant the sum of five hundred and sixty-six dollars. The ease was tried at the Essex Circuit, resulting in a verdict for the plaintiff, for the full amount sued for with interest from October 25th, 1907. There are a number .of grounds of appeal, all alleging trial errors, by the court below, such as admitting and rejecting testimony, refusal to charge as requested, error in the charge. But we think this case can be disposed of upon a sipgle point, viz., it was error for the trial court to refuse the motions to non-suit the plaintiff and direct a verdict in fa.vor of the defendant. The fundamental and only question involved in the
From this statement of facts, which is not controverted, we think it is quite apparent and clearty established that the solicitor was not the agent of the defendant association, in receiving money from Scherer, the plaintiff, the only authority of the solicitor under the by-laws of the association was to examine the title to Scherer’s property, and if and when it was unencumbered to pay over to Scherer the net amount of the defendant association’s loan, in exchange for a first lion bond and mortgage, executed by Scherer and his wife. That it did not permit him to accept additional _ money from Scherer, for removing liens against Scherer’s property, or for an}' other purpose.
It is quite clear’ there was no universal agency between the solicitor and the defendant association, because the association would have no power to create one.
The written evidence of the solicitor’s agency is found in the association’s by-laws, paragraph six (6), a, b, c and cl, which provide for the appointment of a solicitor. They are in the usual form of such b}r-laws: “The solicitor shall ex
This court has said that when the facts are not in dispute, and the inferences from them are not in doubt, the question at issue, that of agency, is one of law for the court. Belcher v. Manchester, &c., Loan Association, 74 N. J. L. 833.
The plaintiff was a. member of the association bound hv its by-laws; as such member, ho made such by-laws a part of Ms loan contract, and assented thereto.
When be found his loan in the hands of the association’s solicitor made out in his own name and no authority in the by-laws to either receive or disburse the check, he was charged with notice that the solicitor was a limited or a special agent, into whose powers and limitations, he must impure and upon whose representations alone, he could not rely. No principle of law is better settled than that one who claims through a special agent takes the risk of his want of power. Black v. Shreve, 13 N. J. Eq. 455.
If a special agent exceeds his authority the principal is not hound. Pars. Pont. (9th ed.) 42.
We think it is clear that the solicitor was a special agent of the defendant association, that he had no authority from the association to receive money from Scherer to disburse for Scherer’s benefit, and so bind the association. The association is not liable for the five hundred and sixty-six
We think it was error for the trial court to refuse to grant the defendant’s motions to nonsuit the plaintiff and to direct a verdict in favor of the defendant. This disposes of the case and renders it unnecessary to discuss the other grounds of appeal.
The judgment of the Essex Circuit Court is therefore reversed and a venire de novo awarded.
For affirmance — Kalisch, Williams, JJ. 2.
For reversal — The Chancellor, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Black, White, Heppenheimer, JJ. 10.