137 N.Y.S. 1017 | N.Y. App. Div. | 1912
. On. the 11th day of July, 1910, Wilbur B. Wood and Worthington V. Wood entered into a contract in writing, under seal-, with Charles 0. Wise and James M. Goss,; by- the terms of which the former, as parties of the first; part, agreed'to, sell to the latter, parties of the second part, certain real estate for a
Upon the trial it was made to appear without dispute that Wilbur B. Wood was verbally authorized by Worthington V. Wood to sign all papers necessary to the transaction in his name, and the contract-in form is “between Wilbur B. Wood and Worthington V. Wood * * *. parties of the first part, and Charles C. Wise and James M. Goss * * * parties of the second part.” It further appeared, without dispute, that Worthington V. Wood was informed of the closing of the contract on the very day of its date; that he received a part of the original $1,000, and approved and ratified the contract, and has ever since retained his portion of the original payment, and upon this state of facts the learned trial court granted plaintiffs’ motion for the direction of a verdict. From the order of the court .denying a new trial the defendants appeal to this court.
The defendants urge that as the evidence in support of the allegation of the complaint that the plaintiffs entered into a contract with the defendants is furnished by .the plaintiffs, the court erred in refusing to submit the question to the jury on the ground that the plaintiffs were interested witnesses. There was no question that Wilbur B. Wood executed the contract in his own behalf; there was no question that he signed the instrument in behalf of his brother. The only question then was-whether he had the authority to sign the name of his brother, and upon that point Worthington V. Wood testified that he authorized his brother to sign any papers which might be necessary in the transaction; that he saw the paper soon after it was executed and that he had received his share of the initial payment of $1,000, and Wilb.ur B. Wood testified that he executed the paper and that he subsequently notified his brother of the execution of the same. The last of the two payments under this contract fell due on the 1st day of October, 1910, and the action was brought on the seventh day of October of that year, so that there was clearly a ratification on the part of Worthington V. Wood at that time, and there was no good reason why he might not ratify it at any time within a reasonable period of its execution, particularly if the relations of the parties had not been changed, and there is no suggestion of such a change here. There was nothing unusual or improbable in the case, and to say that the court erred in refusing to submit the question of the credibility of witnesses under such circumstances is to refine due process of law to the impracticable.
The order appealed from should be affirmed, with costs.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Order affirmed, with costs.