6 Barb. 576 | N.Y. Sup. Ct. | 1849
The first, perhaps I may say the principal question presented in this case, relates to the evidence of the adoption, by the plaintiffs in error, of the report and resolutions, a copy of which was transmitted to Mrs. Cagger. It is insisted by the counsel for the plaintiffs in error that the court below erred in allowing the plaintiff there to give parol proof of such adoption. The objection was not put upon the ground that higher evidence existed in the minutes of the proceedings of the board of trustees; for it appeared affirmatively that no record was made of the vote adopting the report and resolutions. But it was contended that, no such vote of the trustees being on record, secondary evidence could not be admitted to prove that such a vote had actually been passed. I do not, however, so understand the rule of evidence applicable to the acts of corporations. Formerly, I admit, it was supposed that the acts of corporations could only be established by positive record evidence. It was once supposed that no corporate act could be binding without being reduced to writing and bearing a corporate seal. But these doctrines have long since
The motion for a nonsuit was also properly denied. The first ground upon which the defendants relied was that the plaintiff had shown no right to recover. This was entirely too general and indefinite. The ground relied upon should have been so specifically stated that the court and the opposite counsel might understand the real point which the party intended to raise. This is due to the court, to enable it to determine the question intelligently. It is also due to the opposite party, that he may, if he can, obviate the objection by further evidence. The rule is well settled, and founded in practical wisdom. [See Underhill v. Pomeroy, 2 Hill, 603; affirmed upon error, 7 Id. 388.) But, to say that a plaintiff should be nonsuited because he has shown no right to recover, amounts to little else than to
The second ground of the motion is sufficiently answered by what has been said in relation to the admissibility and effect of parol evidence to prove the corporate acts of the defendants.
The other ground of the motion for a nonsuit is, I suppose, intended to raise the objection that the declaration is not adapted to the cause of action as proved. This objection, too, was so general as to bring it within the rule already stated. It is stated in very nearly the same terms as in Underhill v. Pomeroy. In that case it was objected that the proof did riot sustain the declaration. It was held that the objection was too general to enable the defendant to avail himself of the point. In this case the objection is that the evidence did not entitle the plaintiff to recover under the declaration.
But conceding the objection to have been so taken as to present the question relied upon, I think the decision below was right. At the first I had some difficulty in applying the proof to a count for money had and received by the defendants to and for the use of the plaintiff. Nor am I prepared to say now, that such a count is adapted to the cause of action as proved. A special count would have been more appropriate. But however that may be, I am satisfied that the plaintiff was entitled to recover under the count in the declaration on an account stated. The acknowledgment, by the defendant, that a certain sum is due, creates an. implied promise to pay the amount, and it is not necessary to set forth the subject matter of the original debt. “ The present rule,” says Chitty, “■ is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an
My opinion, therefore, is that the judgment below should be affirmed.
Judgment affirmed.