McMurray v. Gage — 19 A.D. 505

Majority

p. 505

Clarence F. McMurray, Respondent, v. Mary Jane Gage, Appellant.

Headnote

Husband and wife —presumption that the agency of the husband in a business, set fortJt in a certificate filed, continues—power to make notes binding the wife— erroneous rulings to which no exception was taken.

Where a note, given for goods sold and furnished in the conduct of a business, is signed “ Gage Machine Works, John E, Gage, Manager,” and proof is made that Gage and his wife duly subscribed and verified a certificate, filed according to law, stating that his wife had, on a day named more than two' years previous, commenced to carry on a described business, with her husband as manager, and it appears that such a business was, in fact, thereafter carried on, there is sufficient evidence to sustain a recovery against the wife upon the note as being One given in the business by her husband as her agent; and particular proof of specific authority to him to make the note is not requisite.

Where such a certificate, relative to the manner in which the business is conducted, has been filed, the presumption is that the business continued to be so conducted; and consequently it is not erroneous for the court to exclude evidence tending to show that from the time when the certificate was made, down to a date prior to that, however,- at which the note was made, a third person was a partner of Gage in the business; particularly where it is admitted that, when the note was given, this person had ceased to have any interest in the business.

While an appellate court may take notice of erroneous rulings, to which no exceptions were taken, this course should only .be pursued where it is-apparent that a grave injustice has been done.

Putnam, J., dissented.

Appeal by the defendant, Mary Jane Gage, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the ■ 12th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

James B. Egan, for the appellant.

John B. Holmes, for the respondent.

For some years prior to the commencement of this action there had been carried on in the village of Waterford a machine manu

p. 506

factoring establishment known as the “Gage Machine Works.” The plaintiff from time to time sold goods to such establishment, and on the ,12.th day of December, 1895, in settlement of an account-for goods sold and delivered,-received a note reading as follows :

"$253.46. . Waterford, N. Y., Dec. 12,' 1895.

“ Two months after date we promise to pay to the order of G. F. McMnrray two hundred and fifty-three 46-100 dollars at the bank of D. Powers Sons,.Lansingburgh, N. Y.

“ Value received.

“ GAGE MACHINE WORKS,' .

“ John E. Gais-e,

“Manager.”

It is apparent that it was not intended to be the personal note of John E. Gage, but that he was signing it for some one else, and the plaintiff is entitled to recover upon said note from whomsoever John E. Gage-represented in that business.

The plaintiff introduced in evidence- a certificate presumably filed pursuant to section 363a of the Penal Code, added by chapter 708 of.the Laws of 1893, subscribed and sworn to by the defendant Mary Jane Gage and John E. Gage, which sets forth ás follows : “ That said Mary j. Gage has this day commenced carrying on a general mercantile and manufacturing business ás hereinafter specified, within,this State, and that.said JohnE. Gage is. conducting the same as manager thereof for said Mary J. Gage.

“ That the- business being carried on is that of manufacturing, repairing and dealing in machinery and supplies on King’s Canal in the town of Waterford, near the village of -Waterford, Saratoga county, N. Y.”

This instnunent was subscribed and sworn to on the 26th day of September, 1893.

■ From the evidence in. the- case it. appears that the. business of the “ Gage Machine Works ” was that of manufacturing and dealing in machinery ; that.it was carried on in King’s Canal, in the town of Waterford, near .the village of - Waterford,, Saratoga county, N. Y.; that the person- who Fad charge of such business was John -E. Gage; that John E. -Gage, the defendant’s husband, was the only man of that name in that place,, and the business of ■ the. Gage Machine

p. 507

Woz-ks was the only one of that kind, that is, the manufactizring and dealing in machinery, that was caz*ried on in the town of Waterford, so that it would appear that this was the business that was authorized to be carried on by the defendant, for her and by her husband as her manager, as provided in the certificate, and that the note was given in the due course of said business.

It needs no citation of authorities, I assume, to show that the delegation by her to her husband of authority to carry on the business fohher, as her manager, authorizes him to do whatever is customarily done in .the ordinary course'of conducting the business she ' authorized him to do in her behalf, and that no specific authority is necessazy to be given for each and every act done in said business.

There were some rulings made upon the trial which it is claimed were erroneous and sufficient to warrant a reversal of the judgment.

Evidence was received that from the time of the making of this certificate, down to Januai’y, 1895, one Robert Kinnear was the partner of John E. Gage in carrying on the business of the Gage Machine Works. This evidence was, upon motion of the plaintiff, sti'ieken out, it appealing that the account for which the note was given in settleznent did not accrue until after January, 1895. ■ I see no error in stinking out this evidence that calls for a reversal of the judgment.

It is claimed that the evidence shows that John E. Gage did not take advantage of this certificate filed by himself and his wife, but that, on the contrary, was then in business as a copartner with Robert Kinnear, and continued so to be for a long time thereafter.

I cannot agree with this contention; with this certificate unrevoked, I think it is rather to be presumed that if he was engaged with Robert Kinnear in business, it was simply as the representative of his wife as her managez-, whether in partnership or alone. The business carried on was precisely the kind of business that he and his wife both swore was to be conducted by him as her manager, and it was being conducted at the identical place specified in this certificate, and, furthermore, it is an undisputed fact that at the time the note was given, Kinnear had ceased to be interested in the .business, and Gage was carrying it on alone as manager for some one.

The defendant on being sworn was asked this question: Q.

Dissent

p. 508

“ Will you state whether or not your husband ever actually engaged in business under the authority which you ■ gave him in 1893 ? ” The question was objected to- and 'the objection sustained. .

■ The ruling, I think, was erroneous, but no exception was - taken to it.

While under a number of decisions it has been held that a court of review may take notice of erroneous rulings, although no exceptions have been taken, yet it is a power that- will not ordinarily be exercised, and will only be resorted to when it is apparent that grave injustice has been done,- and where it is necessary for the purpose of correcting ah injustice that cannot otherwise be corrected.

In this case, particularly after considering the defendant’s testi-mony, there is nothing that appeals to me to go Outside the general course of the court for the purpose of protecting the defendant. I do not see that any stich injustice has been done as to call upon us to reverse this judgment for a ruling which the defendant’s counsel -did not except to. - .

I am satisfied from the evidence that this business was being carried on' for the benefit- of the defendant and her husband, he conducting it as manager for her, and that the note was given in settlement of an account for goods furnished in the carrying on of such business, and that, therefore, -the judgment should be affirmed, with costs. • ' .

All concurred, except Putnam, J., dissenting.

I think the trial court erred in striking out the testimony showing that Kinnear and John E. Gage canned on the .Gage .Machine ■ Works from -a time prior to execution of - the certificate by; defendant until January,. 1895.- She was held liable because of the certifi- ’ cate. The evidence stricken out, that for about two years after she executed the paper the business was carried on by other parties, was ■ competent and material, on the issue- raised.as. to whether or not. the note in suit was her note, I, therefore, dissent.

Judgment and order affirmed, with costs.