Majority
p. 416The J. M. Horton Ice Cream Co., Pl’ff, v. Edward P. Merritt et al., Def'ts. (Supreme Court, General Term, Second Department, Filed February 8, 1892.)
Headnote
-Corporations—Authority op president to sell its goods.A resolution of the board of directors of a corporation is'not necessary to authorize its president to make a sale of its goods in the usual line of its business.
Exceptions ordered heard in the first instance at general term after dismissal of the complaint
Action for conversion of a quantity of ice.
The complaint was dismissed on the ground that the president of the Greenwood Lake & Lake Denmark Ice Co. had no authority to sell this ice or appoint an agent to do so.
James cb Thomas H. Troy, for pl’ff; Charles H. Murray and D. B. Ogden, for defts.
The complaint avers a conversion of the plaintiffs property, being about two hundred and fifty tons of ice of the value of $1,250, by the defendants. The taking of the ice by the defendant Mould is proven, and that the taking was by virtue of a sale by the defendant Merritt to him of the ice, and an
p. 417
•order to Mould by Merritt to take possession. The plaintiff’s title is fully proven.. The ice belonged, in the early part of December, 1889, to the Kenebeck Ice Company. On the 9th of December, 1889, this company sold the ice to the Green Lake & Denmark Ice 'Company. This sale was negotiated by one A. G. Fisher, as broker. The defendant Merritt is the president of the Green Lake .& Lake Denmark Ice Company. He directed Fisher to sell the ice. Fisher sold to the plaintiff and received the money for it by •check. The ice was in a house on the Gowanus creek; there was other property belonging to the Denmark Company besides the ice. Merritt requested the broker Fisher to sell the balance of the property. Fisher, after he received the check from the plaintiff, got it cashed and.paid an intermediate broker twenty-five •dollars. He told Merritt what he had done, and that he would keep the balance of the check, and when the ice house and other property was sold the amount of the money in Fisher’s hands would be credited on the entire sale. Ho objection was made to this by Merrit or by the plaintiff, the purchaser. It was not necessary to have a resolution of the board of directors of the Denmark ■Company to complete the authority of its president to, sell. He is proven to have acted as agent of the company in the company’s •office. ' The sale was in the usual line of the company’s business. The ruling that the plaintiff’s title was not established because of the absence of proof of authority in its president to sell it was ■erroneous.
The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.
Dykman, J., concurs; Pratt, J., not sitting.