Fuld v. Burr Brewing Co. — 45 N.Y. St. Rep. 649

Majority

p. 649

Samuel Fuld et al, App’lts, v. The Burr Brewing Company, Resp’t

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

Corporations—Authority of officer to execute guaranty—Question for JURY.

In an action on a guaranty, executed by the vice president of defendant corporation, the defense was want of authority in the officer to execute the guaranty. It appeared that the board of trustees of defendant, by resolution, had conferred on “ the officers authority to perform such acts and incur such obligations, and make such agreements as may be proper and necessary for the conduct of its businessthat the vice-president attended to the regular business of the company; that when plaintiff called to get the guaranty the vice-president said, “ the board meets just now; I will go up stairs and have it signedthat he went up stairs and returned with it signed; that the vice-president had previously executed a guaranty to plaintiff for rent of the same premises, and that the company had sent its checks for the money so secured ; and that defendant had sent its checks for the rent secured by the guaranty in question. Held, that the complaint was improperly dismissed; that the guaranty was not beyond the corporation’s powers, and that the question of the vice-president’s authority to execute it was one for the jury.

Appeal from judgment of the general term of the city court of Kew York, entered on a dismissal of the complaint

Action on a guaranty, executed by the vice-president of defendant company.

B. W. Traitel, for resp’t; Ferdinand Kurzman, (John Frankenheimer, of counsel,) for appl’ts.

The appeal being frorp the judgment only, we have no authority to review the facts or to determine the preponderance of conflicting evidence; but our jurisdiction is limited to a consideration of questions of law duly presented by the record. The Third Avenue R. R Co. v. Ebling, 100 N. Y., 98 . A question of

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law, however, is presented by the exception to the dismissal of the complaint; and as the appellant, made no motion for a direction in his favor, the contention is available to them that the evidence required the submission of issues of fact to the jury. Clomence v. City of Auburn, 66 N. Y., 334 ; The Trustees v. Kirh, 68 id., 459 .

To justify the court in withdrawing a case from the jury “ the evidence must be undisputed, or so certain and convincing that no reasonable mind can come to any but one conclusion. If there is ground for opposite inferences, and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.” Bagley v. Bowe, 105 N. Y., 171 , 179; 6 St. Rep., 842 . ;

In reviewing a decision dismissing a complaint, the court must ' accord to the appellant the benefit of every fact which the jury were authorized to infer from the evidence. Harris v. Perry, 89 N. Y., 308 , 311; Hart v. Ryer, 43 St. Eep., 139, 140 (Common Pleas).

An issue strenuously contested on the trial was, whether the guaranty in controversy was executed by authority of the defendant corporation. Indeed insufficient evidence of such authority was a specific ground of the motion to dismiss.

In proof that the guaranty, if otherwise valid, was obligatory on the defendant, appellants advance four propositions, which they contend are supported by the evidence: First, that authority to give the guaranty attached to the vice-president vi?'tute officio; secondly, that the board of trustees expressly communicated the authority to him; thirdly, that in any event the defendant, by acquiescing in his exercise of the authority, represented to the plaintiffs that he rightfully exercised it; fowthly, that by paying the rent guarantied defendant ratified the guaranty.

We are of opinion that, as to each of these positions, the evidence adduced by the plaintiffs was sufficient.

As to the first, a resolution of the board of trustees had conferred on “ the officers of this company authority to perform such acts and incur such obligations and make such payments as may be proper and necessary for the conduct of its business.” The treasurer testified that such papers were signed by the officers without express authority from the board, and that the vice-president attended to the regular business of the company. Upon all the circumstances of the case, our conclusion is that the guaranty was given in the legitimate business of the company, and that so, on the plaintiffs' proof, the vice-president, as such, had authority to execute it. Lee v. The Pittsburg, etc., Company, 56 How., 373 ; Ellis v. Howe Machine Company, 9 Daly, 79 .

As to the second, the evidence is, that when plaintiff called to get the guaranty the vice-president said: “ The board meets just now; I will go upstairs and have it signed ”; that he went upstairs and returned with the paper signed. True, the trustees denied that he had their authority to give the guaranty; but their relation to the defendant required the submission of the

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issue to the jury. Kahn v. Lesser, 43 St. Rep., 149 ; Manhattan Co. v. Phillips, 109 N. Y., 383 ; 16 St. Rep., 199 ; Becker v. Koch, 104 N. Y, 394 ; 5 St. Rep., 688 ; Keller v. West, etc., Company, 39 Hun, 348 .

As to the third, the fact that the vice-president had previously executed a guaranty to this same plaintiff for the rent of the same premises, and that the company had sent its checks for the money so scoured, was enough to justify the plaintiffs in relying on his authority to give the guaranty in question.

As to the fourth, by sending its check for the very rent secured by this very guaranty, the defendant appeared to ratify the guaranty.

Our conclusion, therefore, is that the plaintiffs’ proof was sufficient to authorize the inference that the defendant was bound by the guaranty; and that so the court erred in withdrawing the question from the jury.

We are further of opinion that, upon all the facts in evidence, the guaranty was not beyond the scope of defendant’s corporate powers, Ellis v. Howe Machine Company, 9 Daly, 79 , and that even if ultra vires, the defense is not available to defendant. Whitney Arms Co. v. Barlow, 63 N. Y., 70 . The case is essentially distinguishable from Schurr v. N. Y. & B. Trust Co., ante, 645.

Thé point now urged, that the guaranty is a nude act, was not presented on the motion for dismissal, and hence is not open to consideration by us.

The learned-court below suggest that we propound a rule as to corporate liability upon guaranties similar to the present; but whether a given contract be ultra vires depends so essentially on the peculiar provisions of charters and the particular facts of the case that a formula cannot be framed to fit every conceivable set of circumstances, and, if attempted, would be futile for the solution of questions likely to arise.

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

Daly, Oh. J., and Bisciioff, J., concur.