34 N.Y.S. 491 | N.Y. Sup. Ct. | 1895
The defendant, a domestic corporation, was organized in 1887. Its place of business is the city of Rochester, N. Y. The plaintiff alleges that he became a member in June, 1891, by the purchase of 25 shares of its stock and payment of his entrance fee; that between that time and June 13, 1892, he paid to the defendant $140; and that, having the right to withdraw the money so paid, with dividends, etc., he did so, and demanded payment of such amount, which was refused. The defendant puts in issue all the allegations of the plaintiff other than that of its corporate existence and place of business. The defendant’s articles of association provide that members not having received a loan may withdraw their shares, and thereupon the amount paid thereon shall be refunded as soon as the necessary funds are in the treasury. If the plaintiff was a member, he had the right to withdraw his shares, and demand payment from the defendant of the amount paid in, etc. He gave the requisite notice for withdrawal, and demanded payment The defendant refused to recognize him as a member of the association, and asserted that he had paid nothing to it. The main question which will be considered here is whether or not he had by payment created any fund in the association.
It is provided by the articles that the association shall hold regular meetings on every Monday evening, and that all payments must be made at the regular weekly -meetings. The plaintiff attended no meetings, and personally made no payments at any such meeting. Early in June, 1891, the plaintiff, on the solicitation or advice of George H. Butts, consented to take 25 shares, and he then handed to Butts $2.50, to be paid to the defendant as entrance fee into membership; and soon after the then next regular meeting of the
It is difficult to see how any equitable estoppel as against the defendant can be predicated on that state of facts. When an agent or officer of a person or corporation acts within the apparent scope of his authority, the principal is estopped from effectually asserting the want of power in the particular case against another, who, in reliance on such authority, has in good faith proceeded upon it, and would suffer injury by the repudiation of the act of the agent or officer. In such case the principal is concluded by the representation of the agent as to any extrinsic fact which rests peculiarly 'within his knowledge, although false, and which is not ascertainable by reference to the power in relation to the act so done by the agent Griswold v. Haven, 25 N. Y. 595; Railroad Co. v. Schuyler, 34 N. Y. 30; Bank of Batavia v. New York, L. E. & W. R. Co., 33 Hun, 589; Id., 106 N. Y. 195, 12 N. E. 433. The party thus-dealing with an agent is presumed to have ascertained his power, and that his act corresponds with it. He may then take his representation of the fact dehors the power unknown to him, although misrepresented by the agent, who, by reason of the falsity of the fact, is denied the right to do the act. which he assumes to perform as such agent. For instance, in the Bank of Batavia Case the extrinsic fact peculiarly within the knowledge of the freight agent of the railroad company was whether the property described in the bill of lading issued by him had been received by the company for transportation. He, by the bill of lading, falsely represented that it had been so received, and on the faith of that representation the bank discounted a draft with the bill of lading annexed as a collateral. In an action by the
Our attention is called to Fifth Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., 137 N. Y. 231, 33 N. E. 378. That case gives no support to the plaintiff's claim. There the person who was the secretary, treasurer, and transfer agent of the company issued a certificate of a number of shares of stock of the company, and to accomplish it he forged the name of the president of the company. It was within the power of the secretary, as transfer agent, to countersign certificates, and he, as such, countersigned the certificate there in question, and affixed the corporate seal. This was the method of authentication, and, in effect, was the representation of the secretary and transfer agent, in the manner he was authorized to make it, that the certificate was duly issued; and for that reason it was held that, as against the plaintiff, which had advanced money on the faith of the certificate, the company was estopped from asserting the fraud of the agent who thus authenticated it. Butts, because he was secretary, had no power, real or apparent, more than any other person had, to charge the defendant as with payment to it by his representation that money delivered to him to pay for another to the association had been paid to it, when such representation was false. In such case it is matter of confidence in the person selected
The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.