Hyperlawhypertext legal database Ulster County Savings Institution v. Fourth National Bank 28 N.Y. St. Rep. 24

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Ulster County Savings Institution v. Fourth National Bank

28 N.Y. St. Rep. 24 Court N.Y. Gen. Term Decision date 1889-12-11 English

Decision Majority — Learned, P. J. · Dissent — Ingalls, J.

Contents

Majority

p. 24
The Ulster County Savings Institution, Resp’t, v. The Fourth National Bank of New York, App’lt.
(Supreme Court, General Term, Third Department,
Filed December 11, 1889.)

Headnote

1, Counterclaim—For damages on invalid sale of stock for plaintiff MAY BE SET UP IN ACTION FOR ACCOUNT BETWEEN BANKS. „ .
A resident of this state died in February. 1876, at New Orleans, ha\ ing in Ms possession shares of a Louisiana company of which his son at once took possession. They were inventoried at New Orleans. The son applied for letters of administration, but failing to give the bond, one L. whs appointed and qualified. The son abandoned his application and went to Kingston, N. Y., with the stock, where he was appointed administrator in May, 1876. In December, 1877, he delivered to plaintiff (he shares, powvr to transfer executed by him as administrator, and proof of his appointment. By his direction plaintiff sent these to defendant with a request that it send them to its correspondent in New Orleans with directions to sell at not less than twenty do'lars per share The New Orleans correspondent placed them in the hands of brokers who sold them at once. The Louisiana company questioned the power of the - administrator and refused to make a transfer to the purchaser. The arbitration committee of the New Orleans Stock Exchange, upon his complaint, awarded the puichaser damages. ' The amount of these damages was charged by the New Orleans correspondent against defendant and by it was charged . against plaintiff. In an action upon an account, Meld, that the damages were a proper counterclaim.
2. Same.
Where stock was sent in this manner to defendant, upon the ordinary
p. 25
form of letter used by plaintifE in correspondence and with no notice as to-ownership, the treasurer of plaintiff cannot, so far as defendant is concerned, be deemed the agent of the administrator; he must be held to represent plaintiff officially.
3. Same.
The question of the power of the administrator to transfer was not for the defendant to determine ; it was for the plaintiff to ascertain whether he had such power, before sending the stock.
4. Executors and administrators—Have no power beyond the state.
An administrator appointed in this state has not, as such, any authority beyond the state, and this is the law of Louisiana.
5. Principal and agent—Agent entitled to indemnity for loss.
Where agents have severally acted in good faith and in accordance with instructions, each is entitled to be indemnified by his immediate principal for loss sustained in the discharge of the duties of his agency.
6. Appeal—Order denying leave to serve supplemental answer cannot BE REVIEWED ON APPEAL FROM JUDGMENT.
Defendant applied for the removal of the cause to the circuit court of the United States on the ground that the suit and matters in dispute arose-under the laws of the United States. The motion was denied, and on appeal the general term affirmed the refusal. The defendant then asked leave to serve a supplemental answer showing that the cause had actually-been removed to the circuit court. This was denied. The cause was then tried, defendant objecting to the jurisdiction, and plaintiff succeeded» Defendant appealed and gave notice that he should bring up the order denying leave to serve a supplemental complaint. Upon settlement of the case this order was struck out by order. Prom this defendant appeals. Held, that after final judgment the court would not review this latter order. The defendant should have appealed from the order refusing leave to serve the supplemtental answer.
(Ingalls, J., dissents.)
Appeal by defendant from a judgment entered in favor of the' plaintiff after a trial at the circuit by the court without a jury. Also from an order of the special term denying a motion for leave to interpose a supplemental or amended answer.
Henry J. Budington, a resident of the city of Kingston, in this state, died on or about February 28,1876, in N ew Orleans,while temporarily residing there. At his death he had there in his possession scrip for 191 shares of the Orescent City Bailroad Company, a" corporation of Louisiana. H. Joseph Budington, a son of decease, on that day took possession at New Orleans of the personal property of deceased, including such scrip, and applied to the proper court in Louisiana for letters of administration. An inventory of the estate in Louisiana was taken and approved, which included these 191 shares. The statutes of Louisiana required the administrator to give security, which H. Joseph Budington failed to do. Thereupon the court appointed Charles Lafitte administrator, and letters were issued to him June 26, 1876.
H Joseph Budington paid all the debts of the deceased owing in Louisiana except a disputed claim of $200, and abandoned the application for letters of administration in that state. He continued to have the scrip of said stock in his possession until the time when he finally sold and transferred the same on the books of the company without objection by any one, after the transactions hereinafter stated.
p. 26
On the 29th of May, 1876, he was appointed administrator by the surrogate of Ulster county.
About December 5, 1877, said H. Joseph Budington took to plaintiff’s office and delivered said scrip of 194 shares with a cer-. tificate of the issue of letters of administration to him and a power of attorney to transfer signed by him as administrator. Thereupon, by his direction, the treasurer of plaintiff, December b6, 1877, sent the scrip, the certificate and the power of attorney to defendant enclosed in a letter signed by the treasurer, requesting that defendant would send “all this to your correspondent in Hew Orleans and order the same sold at a price not less than twenty dollars per share.”
On receiving the same the defendant immediately sent the papers to its correspondent in Hew Orleans, The Germania Hational Bank, with like instructions.
The Germania Hational Bank, on receiving the same, placed the scrip in the hands of Reynes and Villere, brokers, with like instructions. On December 12, 1877, the day of the receipt by the brokers, they sold on the Hew Orleans Exchange 144 shares of the stock to one Willoz at $20 per share, that being the market value. Ho express agreement as to the time of delivery was made, but by custom stock was to be delivered and the price paid the day after' the sale.
On December 23 the transfer was attempted; but the Crescent City Railroad Company refused to transfer, on the ground thy-t there was a contest between the administrator and the heirs.
The Germania Hational Bank tried to obtain a transfer, but could not. Before the termination of the efforts to secure the transfer, the market value of the stock had risen $10 per share. The Germania Bank, in making the sale and attempting to carry . it out, pursued the regular course of business and was guilty of no negligence. On the failure to transfer Willoz demanded damages, viz., $10 per share. Both Reynes and Villere and Willoz were members of the stock exchange. In accordance '"with its rules the claim of Willoz was referred to the. arbitration committee, which awarded him $10 per share of’$1,440. 'This sum Reynes and Villere paid him, and they demanded the same of the Germania Hational Bank. The bank paid the same and charged the amount to defendant and returned to defendant the scrip. Thereupon, December 21, 1877, the defendant returned the scrip to plaintiff, and sent to plaintiff also letters received from the Germania Bank relative to the matter. On the 26th defendant wrote plaintiff, forwarding other letters and a certificate of the award of the committee, and informing plaintiff that the defendant had charged it with the $1,440. This sum defendant credited to the Germania Bank.
It vjould seem from a letter of defendant to plaintiff that the sale of 144 shares instead of 194 shares was owing to a variance in defendant’s letter to the Germania as to the number of shares jn one of the scrip certificates. And it would seem- from this and from some testimony that Reynes and Villere did not have
p. 27
actual possession of the scrip when they sold; such being often the custom in these cases.
Some other facts may be stated hi the opinion.
David Wilcox\ for app’lt; A. T. Clearwater, for resp’t.

This is an action to recover an alleged balance of account. The defense is a counterclaim. And the questions in the case arise on the counterclaim.

After issue joined, the defendant applied to the special term in September, 1880, for the removal of the cause to the circuit court U. S., N. D. N. Y., on the ground that the suit and matters in dispute arose under the laws of the United States. .The motion was denied. On appeal by defendant the order of denial was affirmed by the general term in February, 1881.

In June, 1881, on an affidavit the defendant asked leave to serve a supplemental answer, duly verified, setting forth the fact that defendant had presented said petition and the usual bond, and had on the 18th day of October, 1880, filed a copy of the record in the circuit court U: S., N. D. N. Y, and averring that thereby this cause was removed to said court and this supreme court was busted of jurisdiction. The court at special term denied the motion.

The cause afterwards came on to be tried before the special term in September, 1887, and a decision was rendered for the plaintiff, rejecting defendant’s counterclaim. Judgment was entered and defendant appealed, stating in the notice of appeal its intention to bring up for review the order denying the motion for leave to serve a supplemental answer. Accordingly the defendant, in making up the case for the appeal, inserted therein the supplemental answer and the affidavit on which said motion for leave to serve such answer was made; and also the order denying such leave.

Upon settlement of the ' case an order was made striking out said affidavit and supplemental answer from the case; and from that order the defendant also appeals.

It was held in Illius v. N. Y. & N. H. R. R. Co., 13, N. Y., 597, that the order of the general term affirming the refusal to transfer the case was not appealable. If this be correct, the defendant could not by appeal have that order reversed.

But the defendant could do what was done in a similar case. Stevens v. Phœnix Ins. Co., 41 N. Y., 149 . It could set up the facts showing that the cause ought to have been, and perhaps legally was, removed, and it could then prove these facts on the trial, and thus claim before the court of appeals, on appeal from the judgment, a reversal for want of jurisdiction. This the defendant attempted to do, but the privilege of setting up these facts by supplemental answer was denied.

An appeal from a judgment brings up for review an intermediate order which necessarily affects the ’final judgment. The question then is whether the refusal to permit the supplemental answer necessarily affected the final judgment. It seems to us that this privilege of reviewing, on appeal from final judgment,

p. 28
an intermediate order is not to be extended beyond the strict language of the section. A party against whom an order is made by the special term may appeal to the general term. If he neglects to do this within the.proper time, it is not reasonable that he should, after the cause has been tried and decided, bring up this order unless it necessarily affects the judgment.

The defendant says, and says correctly, that if the proceedings for removal are regular in a proper case, the state court is ousted of jurisdiction, whether the order of removal is granted or denied. Shaft v. Phœnix Ins. Co., 67 N. Y., 544 . If defendant then is correct as to the law respecting the right to remove this case, as to which see Leather Man. Bank v. Cooper, 120 U. S., 778 , this court has no jurisdiction. But whether the order refusing to permit defendant .to serve a supplemental answer necessarily affected the final judgment is another question. It may be that if an appeal had been taken from that order we should have reversed it. Whether, if the order had been granted, the final judgment would have been different depends, partly at least,' on what might be proved under the supplemental answer. And clearly there must be a uniform rule as to all refusals to permit supplemental answers being reviewed on appeal from judgment. We therefore think that the order denying leave to file the supplemental answer, whether correct or not, cannot be reviewed on this appeal from the judgment. In this view we see no reason to reverse the order striking out that part of the case.

The defendant On the trial of the case proved the facts claimed to show a removal of the case as aforesaid and objected to any proceedings on the ground that the cause was now pending in the circuit court U. S., N. D. N. Y.; and again moved on like ground for a dismissal. We are aware of the decision in Pacific Railroad Removal Cases, 115 U. S., 1 , and of the Leather Man. Bank Case above cited. But we are not prepared to say what the effect of the statute of 1882 is upon this case. And as the question of removal was once before us, we think it best to adhere to the decision then made. With great respect for the court whose decisions were last cited, we do not see how a claim for money against the defendant, whose corporate existence is admitted, is a suit arising under the laws of the United States any more than a similar action against a man who had once been a slave would be a suit arising under the laws of the United States, on the ground that his right to sue and be sued was given by the fourteenth, amendment.

This brings us to a consideration of the merits.

The learned justice who tried this case held that whatever acts were done by Ostrander, the treasurer of plaintiff, in the matter in question were done as agent for the administrator, and not as treasurer of the bank. We cannot agree with this conclusion, so far as the defendant is concerned. The plaintiff kept an account with defendant. The account in part is given in evidence. It shows, among other things, October 11, 1877, 100 Lake Shore, $7.037.50, indicating a sale of stock by defendant for plaintiff. The scrip in question was sent in a letter of the form used for

p. 29
years in plaintiff’s correspondence with defendant. The defendant could not inquire whether the scrip belonged to plaintiff or not. Plaintiff might have had an interest in it or lien upon it, so far as defendant knew. The express charges on this scrip were in the account, and have not been objected to.

The plaintiff objects that it is not liable because Reynes and Yillere sold 144 shares instead of 194. If this had caused any injury to plaintiff, there would be force in the objection. But the error was a positive benefit to plaintiff. For it diminished the possible liability by $500. There was no direction to sell either the whole or none. An agent authorized to sell a house might not be justified in selling half of it. But, unless special directions to the contrary were given, an agent who had shares of stock to sell might sell in parcels, or might sell a part, if he could not the whole. Or he might sell a part to one person, and the rest to another. Each sale would be valid, and within his authority-. So was the sale in the present case.

The defendant did exactly what the plaintiff requested.. If, in so doing, it suffered any loss, or became liable to damage, the plaintiff must indemnify?-. The plaintiff assumed no risk as to the power of the administrator to make a transfer. It could know nothing about that. It was for the administrator to know whether he could deliver what he proposed to sell. And it was for the plaintiff to know or to ascertain that, when it employed defendant to send the scrip to its correspondent.

The Germania Bank did just what was proper. It was in accordance with custom and good dealing to make such a sale through a broker. If the Germania Bank had neglected to take this course, and had attempted to make the sale itself, it would have been -liable, if it had thereby failed to get the full value.

The sale made by Reymes and Yillere to Willoz was properly made, and no fault can be charged to them. But neither Reynes and Yillere, nor the Germania Bank, could deliver the stock on the next day when, by custom, it should have been delivered. For this inability to deliver they?- were not responsible. It is shown that, unless there be a special agreement, the stock is to be delivered the next day; and it is found that the Germania Bank made efforts to secure the transfer of the stock, but was unsuccessful.

The reason given by the company for refusing to transfer, as found, -was that there was a contest between the administrator and the heirs. The word “ heirs ” was probably? used in the civil law meaning, And a good deal of argument has been adduced to show that the title to the stock was in II. Joseph Budington,administrator, appointed in Hew York, and that the plaintiff could have compelled a transfer. Perhaps, however, that matter is not directly material. The question is, were Reymes and Yillere liable to Willoz for the failure to deliver the stock at the time it was deliverable. Whether the Crescent City Railroad Company rightfully or wrongfully?-, refused to transfer might be important in an action against that company?. But could their wrongful refusal excuse the broker who. sold the stock for his failure to deliver? Can we

p. 30
construe the contract of' sale as an agreement to deliver, unless the company wrongfully refuses to transfer ? Would a purchaser buy, if there were such a condition ?

. But further, the Jaw of Louisiana was proved on the trial. It was shown that under the circumstances above detailed as to the action of H. Joseph Budington the assets became vested in the court of Louisiana; that if these scrip certificates were sent from New York to Louisiana with written authority sufficient to effect a valid sale in New York, the sale in Louisiana could be effected only by authority of the court of Louisiana., It is also shown that an administrator cannot be appointed in Louisiana without giving a bond.

■ Now the law thus proved to exist in Louisiana is the law of this state. Although personal property is subject to the law which governs the person of the owner in respect to succession, yet the right which an individual may claim to personal property in one country under title from a person domiciled in another can be asserted only by the legal instrumentalities provided by the country where the claim is made. Hence an administrator appointed in one state has not, as such, any authority beyond that state. Parsons v. Lyman, 20 N. Y., 103 ; Stone v. Scripture, 4 Lans., 186 . Now we do not mean that the administrator appointed in New York might not have received the voluntary payment of debts in Louisiana. Nor need we say that if the Crescent City Railroad Company had voluntarily transferred this stock such transfer would not, at least according to our laws, have been good. But the doctrine is that the foreign administrator could not compel a transfer and hence the company could not be said to have acted wrongfully in refusing. This is still more evident since previous to the time in question an administrator had been appointed in Louisiana. We cannot, therefore, see why Reynes and Yillere were not liable to Willoz for the damages.

The plaintiff urges that Reynes and Yillere, the Germania Bank and the defendant did not give plaintiff an opportunity to compel the transfer. But Willoz was not bound to wait until the remote principal had been notified, and had carried through a litigation against the railroad company. He had his claim on Reynes and Yillere, and did not need to go further or to wait.

The claim between the brokers was submitted, according to the rules binding then, to the arbitration committee. Whether their award was binding on these parties we need not decide, because the amount of the actual damages has been proved on the trial. On that arbitration Reynes and Yillere took the ground that not they, but the Germania Bank, their principal, was responsible. The committee followed a rule, alleged to be of the New York stock exchange, to the effect that a party to a contract shall not be compelled to accept a principal other than the broker contracting, unless the name proposed be satisfactory or be declared at the time of making the offer. This seems to be the common rule, that an agent is liable personally unless at the time he discloses his principal. At any rate, the substitution of the Germania Bank as the party against whom Willoz should make his claim would not

Dissent

p. 31
have benefitted the plaintiff. We do not see that there is any conflict as to the amount of damages sustained. Although probably the question of the amount of damages may not be before us, and therefore we will not pass upon it.

There is nothing, then, to show that-Beynes and Yillere, the Ger-mania Bank and the defendant did not act severally in good faith, and in strict accordance with instructions received from the immediate principal of each. So doing, each was entitled to be indemnified by the immediate principal for loss sustained in the discharge of the duties of the agency. Howe v. Buffalo, N. Y. & E. R. R. Co., 37 N. Y., 297 .

The plaintiff, in a letter to defendant, placed its objection to pay these damages on the ground that the Germania Bank should have found out, before offering the stock for sale, whether it could be transferred. Nothing of that kind can be inferred from the instructions. And the finding of the court is that the Germania Bank was not guilty of negligence.

It may also be noticed that after defendant had notified plaintiff of the facts, and plaintiff had declined to admit the charge, the defendant, in December, 1877, suggested that plaintiff should make any contest it might desire, and offered to put plaintiff in possession of any needed facts. The plaintiff, therefore, had the opportunity of contesting the matter between defendant and the Germania Bank Certainly defendant was not bound to litigate.

And another fact may be noticed, that is that H. Joseph Budington, who is the plaintiff’s principal, afterwards in March, 1884,

• sold these 194 shares for $19,000, a large advance over the price at the time of the transaction in question. So that he is not a loser by the refusal to transfer.

The judgment should be reversed, a new trial granted, costs to abide the event.

Landon, J., concurs.

(dissenting).—Being unable to adopt the conclusion reached by my associates in this case I proceed to state my reasons for dissenting therefrom.

I am convinced that the decision of the learned trial court was in accordance -with the facts and the law of the case. The facts in regard to which there is any serious dispute are very few. The action was brought by the plaintiff to recover the sum of $1,440, with interest from April 12, 1878, claimed to be due to the plaintiff from the defendant as the balance upon an account for money deposited with the latter. A draft for such money was drawn by J ames E. Ostrander, the treasurer of the plaintiff, upon the defendant and payment was refused. We do not understand but that the amount claimed would be due and owing by the defendant to the plaintiff, were it not for the counterclaim insisted upon herein by the defendant, which consists of money which the defendant claims to have paid to the Germania National Bank of New Orleans, and connected with the sale of 144 shares of the stock of the Orescent City Bailroad Company, and which sale of such, stock was made under substantially the following circumstances.

p. 32
Henry J. .Budington, who was a resident of Kingston, Ulster -county, state of New York, was the owner of 194 shares of said stock at the time of his death, which occurred at the city of New Orleans, February 29, 1876. On the 29th day of May, 1876, H. Joseph Buddington, the son of the deceased, was duly appointed administrator of the goods, chattels and credits of the deceased, and as such administrator he took possession of the personal property of the deceased, including the certificates for the said 194 shares of stock. He delivered such certificates of stock, with a power of attorney executed by him- as such administrator, authorizing a transfer thereof to James E. Ostrander, who was the treasurer of the plaintiff, with instructions to Ostrander to send such certificates and power of attorney to the corresponding bank of the plaintiff in the city of New York, requesting such bank to cause the 194 shares of stock to be sold. James E. Ostrander undertook to perform such service, and in the manner found by the trial court as follows, as appears at folio 243 of case:

“ Seventeenth. Upon December 6, 1877, the defendant received a letter written upon plaintiff’s letter heading and signed by ‘ J. E. Ostrander, Treas.’ ” Mr. Ostrander was then the treasurer of the plaintiff.

This letter contained said certificates of 194 shares of the capital stock of the Crescent City Railroad Company of New Orleans, and also a power of attorney to transfer the stock signed ’ by the said Budington, as administrator of Henry J. Budington, in whose name the shares stood, together with a certificate of the appointment of the said H. Joseph Budington as administrator by the surrogate of Ulster county. The letter requested that the defendant would send “ all this to your correspondent in New Orleans .and order the same sold at a price not less than twenty dollars per share." The defendant received such certificates of stock, with the power of attorney, and transmitted them to the Germania National Bank of New Orleans with instructions to sell such ■stock. The last named bank placed the certificates in the hands of Reynes and Yillere who were members of the stock exchange, directing them to sell the stock for the best price attainable, not less than twenty dollars a share. They sold 144 shares of the stock at twenty dollars a share to a person by the name of Yrilloz. Written memoranda of sale were exchanged, and nothing further was done at the time, and no time was fixed for the delivery of the stock. The Crescent City Railroad Co. refused to transfer the stock upon the alleged ground that there existed a •contest between the administrator and the heirs of Henry J. Budington in regard to the ownership of the stock. We do not discover in the evidence any foundation for such' pretence on the part of the railroad company. The Germania National Bank endeavored to persuade the railroad company to make the transfer, but took no steps to compel such transfer, nor does it appear that such bank even notified the plaintiff or the defendant of such refusal on the part of the railroad company. The transfer not having been effected, the purchaser of the 144 shares of stock ;claimed damages to the amount of ten dollars a share, which de

p. 33
mand not being complied with, the matter was submitted to arbitration under what was assumed to be the regulations of the stock exchange. And there was awarded to Willoz the sum of $1,440 as his damages on account of such failure to make delivery of the stock, which sum the Germania National Bank paid, without previously notifying either the plaintiff or defendant of the arbitration, or of the award made by the arbitrators, so as to enable the joarties interested to take such steps as they might deem necessary to protect their rights. The defendant herein repaid to the Germania National Bank the money which was paid by it to Willoz, without previously advising the plaintiff or Budington of its intention to make such payment. Certainly the facts disclose a course of conduct most extraordinary in regard to the attempted sale of the stock. The certificates of stock were subsequently returned to the defendant, and the same were thereafter sent to the plaintiff. The trial court has found in regard to such proceedings the following:

Fifteenth. That no legal steps whatever were taken by either Willoz, Beynes, the Germania National Bank, or the defendant, to compel the transfer of the stock by the Crescent City Bailroad Company to Willoz.

Sixteenth. That no opportunity was afforded the plaintiff to compel the transfer of the stock by the Crescent City Bailroad Company to Willoz.

Seventeenth. That the Crescent City Bailroad Company stated that they refused to transfer the stock because they said there was some trouble between the administrator and the heirs of Henry J. Budington, and at the time application was made to them to transfer the stock there existed a contest between the stockholders of the road with reference to securing or controlling the management of the road.

Eighteenth. That there was no rule of the New Orleans Stock Exchange governing all the questions of the dispute which arose between Willoz and Beynes.

Nineteenth. That the matter in dispute between Willoz and Beynes was referred to the arbitration committee of the New Orleans Stock Exchange without the knowledge, consent, or privity of the plaintiff.

Twentieth. That the arbitration committee of the New Orleans Stock Exchange finding no rule of that exchange under which they could decide the matter in dispute between Willoz and Beynes, arbitrarily and without the knowledge, privity or consent of the plaintiff, the defendant, or the Germania National Bank, consulted the rules of other stock exchanges in other cities of the country, and claimed to have adopted a rule of the New York Stock Exchange.

Twenty-first. That there is no proof that there is or was any rule of the New York Stock Exchange of the character claimed to have existed by the members of the arbitration committee of the^New Orleans Stock Exchange, and under which. they made their award.

p. 34
Twenty-second. That the plaintiff was not informed of the refusal by the Crescent City Railroad Company to transfer the stock until after the award of the arbitration committee of the ¡New Orleans Stock Exchange, and the payment of the amount awarded by that committee, by the Germania ¡National Bank to Reynes.” The sale of the 144 shares of stock was, I think, a violation of the instruction contained in the letter addressed to the defendant, and which constituted the only authority to make the sale of the stock. The direction was to sell all of the shares of stock, being 194 in number, and at a price not less than twenty dollars a share, and no discretion was conferred to sell a lesser number. Thus it appears that the agency related to but one subject matter, and authorized the performance of but one act, in the manner expressly stated in the letter of instruction, which was free from uncertainty or ambiguity, and was restrictive in its character, and by its terms, fairly construed, directed the sale of the stock in one parcel or block and at a price not less than twenty dollars per share. It is-a fair presumption that the owner of the stock did not desire to sell a, portion of the stock and to retain the residue, and I think such intention is inferable from the letter of instruction and the accompanying circumstances. It does not appear that any effort was made to sell the residue of the stock. This controversy is not between the plaintiff and the purchaser of the stock, but between the plaintiff and the defendant to which the instruction was given to sell the stock, and, therefore, presumably acted with a knowledge of the nature and extent of the authority conferred upon it I am unable to accept the theory that in the absence of an express direction not to sell a lesser number than 194 shares that the agent possessed an implied authority to sell as many shares, and in such parcels as was deemed expedient, as the practical effect of such doctrine would seem to be, to allow an agent to substitute for an express direction an implied authority. Suppose an agent should be directed to sell a farm at not less than a fixed price per acre; would the agent be authorized to divide the farm and sell a portion thereof, without the knowledge or consent of the owner: I think not And to my mind the sale of the stock in the manner it was made seems equally, if not more, objectionable.

The clear duty of the agent was to offer the entire stock, 194 shares, and if a purchaser could not be obtained for the same, that fact should have been communicated to the plaintiff, and direction obtained to sell the same in parcels, or to return the scrip. Such course seems reasonable. The agency created was special and not general, and consequently the instructions should have been strictly followed. In Raley on Agency, 3rd Am. ed., p. 201, the author says: “But a special agent who is employed about one specific act, or certain specific acts, does not bind liis employer, unless his authority is strictly pursued, for it is the business of the party dealing with him to examine his authority.” See, also, Skinner v. Dayton, 5 John. Ch., 351, 365. In Bickford v. Menier, 107 N. Y., 490 ; 12 N. Y. State Rep., 304, Ch. J. Ruger, after citing the remark of Judge Comstock in the Mechanics, Bank v. N. Y. C. & N. H. R. R. Co., 13 N. Y., 632 , “ That

p. 35
underlying the whole subject there is this fundamental proposition that a principal is bound only by the authorized acts of the agent,” proceeds to enunciate the following proposition: “It would seem to be the general rule that no acts of an agent can be resorted to to establish a power not included within the terms of his commission, except those which are brought to the knowledge of his principals, and are approved or acquiesced in by them. ” Applying that doctrine to the facts of this case, and bearing in mind that the defendant’s claim is for money which the defendant advanced to the Germania National Bank, and that the authority for such advance depended solely upon the power conferred by the letter of instruction to the defendant, which derives no enlargement or support from any reasonable presumption or implication, which in some cases, and under other circumstances, courts have indulged in favor of bona fide purchasers of personal property, I am unable to discover by what authority the defendant paid to the Germania National Bank for the plaintiff the said sum of $1,440 without first informing the plaintiff of its intention to make such payment, and receiving its assent thereto.

The inquiry here involves simply a question of authority, and not of expediency, and, consequently, it is immaterial whether or not, through the fluctuations of the stock market, the failure to perfect the sale of the 144 shares of stock proved pecuniarily advantageous to the estate of Henry J. Budington. That estate is not represented in this action, and should not be confounded, it seems to me, in determining the rights of the parties hereto. The plaintiff in this action, not being the owner of the stock, could not be benefitted by any advance in price, and consequently that consideration cannot have even an equitable bearing in favor of defendant against the plaintiff herein. The pertinent inquiry is, whether the defendant has established a legal right to withhold from the plaintiff its money upon the pretext insisted upon. The defendant’s claim must rest upon the theory of money paid for the plaintiff at its request, and the facts negative the idea of any such request, or even acquiescence by the plaintiff in such payment. It appears that the instruction to sell the stock was transmitted by the defendant to the Germania National Bank, and, therefore, both banks acted with knowledge thereof, and should have followed the instructions contained in the letter, or have asked a modification thereof, as there was abundant opportunity to do so. Furthermore, I think the view taken by the learned trial court in regard to the binding force of the arbitration proceedings, so far at least as the rights of the plaintiff and the Budington estate are concerned, was justified by the facts established, and the law applicable thereto. Neither were heard or even notified of the proceeding, and so far as the evidence seems to disclose, the method by which the damages were adjusted was without precedent, and calculated to work injustice to the owner of the stock. In effect the plaintiff was called upon to pay $1,440 without being chargeable with any wrongful act, or even a breach of duty, to satisfy the speculative demand of Willozthe purchaser of a portion of the stock awarded to him by such an extraordin

p. 36
arv proceeding. The defendant paid the money voluntarily, with a knowledge of all the facts, and without notifying the plaintiff of its intention to make such payment, and now seeks to compel the plaintiff to reimburse it for the money advanced in direct violation of the instruction of the plaintiff and Budington. I am convinced that the decision of the trial court was correct, and that the judgment should be affirmed, with costs.

Judgment reversed and new trial granted, costs to abide event.