20 Wend. 251 | N.Y. Sup. Ct. | 1838
The points made on the argument in favor of a new trial, consist of three : first, That the proof proposed was proper to make out a partial payment, with an accord and satisfaction for the residue of the debt due from Hill, the endorser of the note ; or, in other words, a composition and discharge of Hill, for whose accommodation the defendants made the note; secondly, That Thomas Evans, one of the defendants’ firm, without the knowledge or assent of his copartners, drew the note in blank, to borrow money on his own individual
The difficulty of maintaining the first ground of defence, lies in the form which Grannis and Mead, the plaintiffs’ attorneys, adopted for effecting the composition. It is added, also, by the plaintiffs’ counsel, that Spring alone could not seal the power of attorney for himself and Wells, so as to make it binding on both ; that his act is within the principle which forbids one partner to bind another by seal. That, however, is only where the firm, is sought to be charged ; not where the object is to discharge a debt due to it. One of two joint creditors or partners may release for both; each in this respect having an interest with a power which has been likened to that of a co-executor. Pierson v. Hooker, 3 Johns. R. 68. McBride v. Hagan, 1 Wendell, 326, 334. As each may, in respect to his interest and power over the debt, give a release personally, there cannot be a doubt that he may delegate this power by seal to another. The judge, therefore, properly received the power of attorney in evidence, under the proposition to follow it up with a release or composition under it. The acts of the attorneys, however, were utterly inefficient. The instrument of December 12th, 1835, which, in the name of the plaintiffs, would have itself been a complete release, does not even allude to them. The clauses of receipt, composition and covenant, with the signatures and seals which it contains, are in the name of Grannis and Mead, without calling themselves attorneys. Taking the intended release by itself, therefore, it is merely void in respect to the plaintiffs within all the cases. The form in which attorneys must execute this kind of power, was very clearly pointed out as long ago as Combes' case, 9 Rep. 76, 77. The rule there laid down is, “ that when any one has authority as attorney to
It is, indeed, true of these cases, as was said on the argument in reply, that they relate to contracts either executory or executed, not to releases, discharges or deeds of composition. But it is difficult to perceive any difference in principle; and no exception is made by the cases beyond those which I have stated. It is impossible to find any general rule of law entirely filled up in the books of reports by apposite illustrations in all its bearings. The one under consideration is as nearly so as almost any other, even were we to stop with the books already cited. On farther search, however, I find that we are not without an authoritative application of the rule to a case of a mere relinquishment
The paper set up as a release by Grannis & Mead being void on its face as a defective execution of the power, it cannot be made available by parol proof that it was intended as a good execution, or, as it is expressed by the offer, that the instrument was executed under and in pursuance of the power, and that the plaintiffs recognized the act by receiving their share of the $9,000. To such evidence, there are several clear objections. The legal effect of the instrument was to bind Grannis & Mead personally; and evidence that it was intended to bind others would violate the rule which forbids the varying of a written instrument by proof aliunde. The rule was considered and applied to an instrument of this character, in Stackpole v. Arnold, 11 Mass. R. 27. See also Arfridson v. Ladd, 12 id. 173, and Pattison v. Hull, 9 Cowen, 747,753. Again : admitting a parol authority or recognition to be valid so far as this deed of composition respects real estate, and that it is not within the statute of frauds, 2 R. S. 69, 8, 9, 2d ed.; 1 Sug. Vend. Brookfield ed. of 1836, p. 120 to 125, and the cases there cited, still, the authority itself wanting a seal, it would, according to Blood v. Goodrich, 9 Wendell, 68, be unavailable as a power for the purpose of making a deed. Vide id. 76, and the cases there cited by Savage, C. J.
It is proper to notice in this place, that the objection to the instrument executed by Grannis & Mead, which included a receipt for $9,000, in connexion with the fact that a portion of that sum falling to the plaintiffs’ share was received in payment pro tanto, was not urged at the trial, any farther than as it went to
The objection that the note was issued by Thomas Evans for his own benefit as a member of his firm, and that the blank for the sum was filled and the note negotiated without authority to use it in the purchase of goods, was not much insisted on in
The motion for a new trial must be denied.