4 Wend. 219 | N.Y. Sup. Ct. | 1830
By the Court,
The question here is whether there was evidence sufficient to authorise the jury in finding that the name of the defendant was put on the note as endorser by his consent. On tMs motion the facts shewn and those offered to be shewn are all to he considered as proved. The issue to be tried was whether the defendant authorized the use of his name in tMs particular case; but if Viele had a general authority, that would be sufficient to maintain the issue for the plaintiff.
The authority of an agent to subscribe policies of insurance may be proved by the agent himself; and it is sufficient to shew that the defendant has recognized his act on a particular occasion, or that he has recognized him on several other occasions as Ms agent for subscribing policies. (2 Phil. Ev. 45.) In Neal v. Irving, (1 Esp. R. 61,) it was shewn that one Hutchins was in the habit of subscribing policies for the defendant. Lord Kenyon held this sufficient evidence of authority to charge the defendant, saying, that if Hutchins was only a particular agent for the defendant it lay upon him to shew it. In a subsequent case, Courteen v. Touse (1 Camp. 45,) the proof was that one Butler signed the policy in the defendant’s name, and had often done so, but the witness knew of no authority for that purpose, nor did he know any instance in which the defendant had paid a loss upon a policy so subscribed. Lord Ellenborough held the proof must be carried further. In Barber v. Gingell, (3 Esp. R. 60,) the defence was that the acceptance on the bill of exchange was a forgery. To counteract tMs it was shewn that when payment was demanded on Saturday the defendant requested the clerk to call on Monday, but without look
These authorities, with the exception of (3 Esp. R. 60,) treat of a person who acts openly as the agent of another, and the reason why the principal who assents subsequently shall be bound is, that the public may have given credit to the agent on the strength of his agency: and otherwise, innumerable frauds might be practised, In a case like the present, where there was no pretence of agency, but where the representation was that the party had subscribed his own name, although the public could not give credit to the acts
We are to assume in this case, that for three or four years Viele has been using the defendant’s name upon his own notes with the defendant’s knowledge. It appears that in one instance, an execution was levied, which the defendant understood was on Viele’s business, and which he did not only not seek to set aside, but promised to pay for more than two months; and then, after Viele had absconded, attempted to set aside; and in this very case, where the writ was served on him more than two months before Viele absconded, he made no defence, but suffered a default; never disclosed the alleged forgery in this nor any other case, though cognizant of numerous facts of the same Idnd for years; but as soon as his friends and brother-in-law had escaped and was no longer amenable to punishment, he disavowed his signature and the authority of Viele. This looks very much like fraud. I should not only have permitted this evidence to go to the jury, but had they, upon the evidence, found an implied authority in Viele to use the defendant’s name, I should be unwilling to disturb the verdict.
I am of opinion that a new trial should be granted, with costs to abide the event.