26 How. Pr. 481 | NY | 1863
It was proved, on the trial in this case, that'the defendant on the trial of the former action against the sheriff, testified that he had no authority from the sheriff to execute in his name the note mentioned in the complaint, unless that authority was within his general powers as a deputy of the sheriff; and the counsel on both sides have assumed that he had, as deputy, no such authority. It seems also to have been assumed that^¿he sheriff had no power to insure, in his official capacity, the goods attached, and that consequently the deputy could not insure them in his name. The question of power on the part of the deputy to execute the note in the name of the sheriff does not depend upon that position.
If the deputy had power to insure in the name of the sheriff, he could not, in effecting such insurance, subject the sheriff to the hazards of that most unsafe of partner
The defendant having executed the note in the name of Snow, without authority, would be held liable, according to several decisions in this state, as the maker of the note. (Dusenbury agt. Ellis, 3 Johns. Cases, 70 ; Feeter agt. Heath, 11 Wend. 478 ; White agt. Skinner, 13 Johns. 307 ; Rossiter agt. Rossiter, 8 Wend. 494; Meech agt, Smith, 7 id. 315 ; Palmer agt. Stephens, 1 Denio, 480 ; Plumb agt. Milk, 10 Barb. 74.) The authority of these cases has been somewhat shaken by the remarks of the judges who delivered opinions in the case of Walker agt. The Bank of the State of New York (5 Selden, 582); and in England, as well as in several of the United States, the principle upon which they rest, if they are supposed to present the only ground of liability of the agent, has been substantially repudiated. (Collen agt. Wright, 40 Eng. L. & E. 182; Randell agt. Trimen, 37 id. 275; Lewis agt. Nicholson, 12 id. 430 ; Smout agt. Ilbery, 10 M. & W. 1; Polhill agt. Walter, 3 B. & Ad. 114; Jenkins agt. Hutchinson, 13 Ad. & Ellis, N. S. 744 ) Long agt. Colburn, 11 Mass. 96; Ballou agt. Talbot, 16 id. 461; Jefts agt. York, 4 Cush. 371; S. C. 10 id. 392; Abbey agt. Chase, 6 id. 54 ; Stetson agt. Patten, Greenl. 359 ; Bank agt. Flanders, 4 N. H. 239 ; Woodes agt. Dennett, 9 id. 55 ; Johnson agt. Smith, 21 Conn. 627 ; Ogden agt. Raymond, 22 id. 379 ; Taylor agt. Shelton, 30 id. 122; Hopkins agt. Mehaffy, 11 S. & R. 126 ; 2 Smith’s Leading Cases, 222 ; Story on Agency, § 264 a, and note 1.)
If it were necessary in disposing of the present case, to decide the question whether, as a general principle, one entering into a contract in the name of another, without authority, is to be himself holden as a party to the contract,
If the party receiving the note in the present case must be charged, as claimed by the defendant’s counsel, with knowledge of the extent of the defendant’s ordinary powers as a deputy of the sheriff (which is very questionable), the want of special authority for this particular act was not
The recovery seems to have proceeded in the court below upon the ground that this was an action upon the note. It is rather, I think, to be regarded as an action on the warranty. The complaint states all the facts in respect to the making of the note by the defendant in the name of Snow, that he executed it without authority, and that the company issued the policy upon no other consideration than the note and the advance premium, relying on the authority of the defendant to execute the note. It also sets forth the proceedings in an unsuccessful suit against Snow on the note, and demands judgment for the costs of that suit, together with the full amount of the note, the assessments for losses being equal to that amount. On the facts stated, the law implies'a warranty of authority by the defendant to execute the note for Snow, and it was unnecessary, under our present system of pleading, to allege that legal inference. (Eno agt. Woodward, 4 Comst. 249, 253.) In an action on the note as the Contract of the defendant, a claim for the costs of a suit to enforce the note against Snow would be absurd. The amount of the note, less the assessment paid, was made the measure of damages, as if the action had been upon the note; but the allegations and proof showed that the share of the losses of the company .chargeable upon the note during the. time covered by the policy prior to its surrender, were equal to the amount of the note. That possibly might be regarded as a proper measure of damages upon the breach of warranty, but whether that be so or not, no question having been made
I think the sheriff had an insurable interest in the goods, and that the policy was valid. The sheriff, by the seizure on the attachment, acquired a special property in the goods, which would have enabled him to maintain an action, and to recover, their full value, against any one who should take them out of his custody. (2 Saund. 47, note 1; Story on Bailm. § 125 ; 2 Mass. 514; 3 Hill, 215.) Such special property gave him an insurable interest. It was his duty to keep the property safely until sold or released, and he was chargeable for its destruction by any cause against which he could protect it by ordinary care, if he.was not subject to a more stringent rule of responsibility, (5 Hill, 588 ; 21 N. Y. 103.) Although he was under no obligation to insure, he could, if he chose, protect himself against this risk by insurance. “ A bailee or depositary being liable by law or by contract for certain risks, whereby the subjects bailed or deposited may be damaged or lost, has an insurable interest in it in respect to such risks.” (1 Phil, on Ins. 4th ed. 121, §191.) “ A man is interested in a thing to whom advantage may arise, or prejudice happen from the circumstances that may attend it, * * and whom it importeth that its condition as to safety or other quality should continue.” (2 New Rep. 302; 1 Hall, 84, 102-3.)
The policy having been obtained in the name of the sheriff, he had a right to ratify it at any time during the term of insurance (2 M. & S. 485 ; Story on Agency, § 248); although doubtless by doing so he would have ratified the giving of the note by the defendant, and made himself liable upon it. The section of Story on Agency, above referred to, shows that the underwriters bear the risk in such cases until there is a disavowal by the principal. This risk formed a consideration for the undertaking of the defendant, sufficient to sustain the recovery either upon the note
The position of the defendant’s counsel is doubtless correct, that if the sheriff was authorized to insure the goods, the deputy who seized them might insure them in his name, but this power, for the reasons given above, did not authorize the deputy to give the note in question.
It is unnecessary to determine whether the expenses of insurance would constitute a claim in favor of the sheriff against the parties or either of them, or against the property. If the attachment was issued under the provisions of chap. 5 of the second part of the Revised Statutes (2 R. S. p. 3), it would doubtless be competent for the officer by whom the attachment was issued to allow such claim. (Laws of 1830, p. 411, § 36 ; 3 R. S. 3d ed. p. 925-6.) But without some special provision of statute on the subject, it is presumed that the claim of the sheriff for seizing and holding goods by virtue of attachments must be limited to the specific fees provided for the service of such process, without reference to the expenses to which he might be subjected in removing them to a place of reasonable security if their position were hazardous, or in such care of them as the law required from him (21 N. Y. 103), whether he should choose to remove them, or to bestow such care, or to protect himself against the possible consequences of neglect by insurance. (15 Wend. 44; 2 T. R. 148, 158; 7 M. & W. 413; 11 id. 620 ; 12 id. 31; 14 id. 802 ; Crocker on Sheriffs, §§ 1096-7,1110-11; Sewell on Sheriffs, 252, 480, 481.)
It was within the powers of the company to issue the policy to Snow, and to take security, or receive the premium from the defendant, and to prosecute the defendant for any default in performing his engagements. The provision in the statute authorizing the corporation to maintain suits against members or stockholders (Laws of 1849, p.
If the action were to be regarded as brought, and the recovery had upon the note, it might be doubtful whether the judgment could be sustained, because the plaintiff has neither alleged nor proved enough to show to the court that the defendant was in default in paying the note, regarding it as his personal obligation. By the terms of the note it was payable, “ at such time or times as the directors of said company may, agreeably to their act of incorporation, require.” The act of incorporation here referred to is the charter of the company, which the statute requires the original corporation to make and file in the office of the secretary of state. (Laws of 1849, ch. 308, §§ 3, 10, 12, 16.) There does not seem to be anything in the statute under which the company was organized, to which the reference could be held applicable. Neither the pleadings nor the proofs show what the provisions of the charter of the union insurance company were, and consequently it does not appear whether the maker of the note was in default or not. The allegations in the complaint of notice of the assessment by publication and by mail, are put in issue by the answer, and if we could assume that those allegations indicated correctly what was required by the charter to charge the parties assessed, there is an entire want of proof on the subject. This objection is distinctly presented by the third ground of the defendant’s motion for a nonsuit, and if the plaintiff was confined to a recovery on the note, I think this objection would be fatal to his
Several objections were taken by the defendant to the introduction of testimony, but with the exception of those relating to the action against Snow, they are so clearly untenable as not to require notice. If this action were to be regarded as an action simply to charge the defendant as the maker of the note, the record in the case of Snow would not have been admissible against the defendant. Assuming that it was incumbent upon the plaintiff to show that the defend- - ant was not authorized to make the note for Snow (19 Barb. 74), this record, to which the defendant was a stranger, was not admissible to prove that fact, or as having any tendency to prove it, though it might _have been otherwise if seasonable notice had been given to the defendant, that his authority to make the note for Snow was denied in that suit, and requiring him to maintain his authority on the trial. (2 Cow. & Hill’s Notes, 817.) If the record was inadmissible, the parol evidence of the grounds on which the decision proceeded was equally so. Nor was the record necessary to authorize the introduction of proof of what the defendant testified to on that trial, showing his want of authority. What he said in the witness box was admissible against him, as declarations made at any other time would be, without reference to his oath, or to the issues in the record. But resting the plaintiff’s right of recovery, as I do, upon the" warranty, the record was admissible to show that the plaintiff had been subjected to the expenses of an action in attempting to enforce the contract against the principal whom the defendant undertook to bind. These expenses, the action being brought in good faith, were a legitimate item of damages in the present action. (Randell agt. Trimen, 37 L. & E. 275 ; S. C. 86 Eng. C. L. R. 786; Collen agt. Wright, 40 Eng. L. & E. 182.) And the parol evidence was admissible to rebut a possible inference that the nonsuit was granted on account of some
The judgment should be affirmed.