Lord v. Van Gelder — 73 N.Y. St. Rep. 268

Majority

p. 268

Franklin B. Lord, as Executor, etc., Resp’t, v. John Van Gelder, App’lt.

(Supreme Court, Appellate Term, First Department,

Filed Feb. 26, 1896.)

Headnote

1. False representations—Advice op attorney.

The fact that the defendant, in an action for false representations as to Ills antliovi.v to enter into a contract for the purchase of land on the part ■ of his wife, when requested to sign the contract of purchase “as attorney” for iter, stated tint he was uet her “attorney,” and, on the advice of his a1 torney, signed iter name per his name, does not exempt him from liabilny-

2. Appeal—Harmless error.

It is not ground for reversal, in such action, that the court, in describing the fac's, erroneously stated that the contract was signed by defendant as '‘al torney,” where defendant’s only attempt to correct such mistake was an objeeiion to the instruction on the ground that the contract did not contain the words “as attorney."

Appeal from a judgment of the general term affirming a judgment for plaintiff, entered on a verdict.

En fus P. Livermore, for app’lt; Lncius H. Beers and George Lord Day, for resp’t.

It is undisputed that the defendant executed the contract for his wife, and that he had no authority to do so; but he claims exemption from liability on the ground that he stated,' at the time, that he was not his wife’s attorney. This was immaterial, because he did not sign as attorney, and it is not claimed that he represented himself to be her attorney. It is alleged in the complaint that he represented that he had authority from his- wife to contract with the plaintiff for the purchase of the lands, and the proof fully sustains the allegation. As testified to bv defendant himself, the facts are that he negotiated with plaintiff for the purchase of the lots, the price was agreed upon, and plaintiff was to prepare the agreement. Two or three days after, the defendant went to plaintiff’s office to sign it, and found it had been made .out between plaintiff and himself. He then stated that he did not want to take title in his own name. He wanted it in the name of his wife. The plaintiff asked what difference it made, and suggested that, when the deed was made out, defendant could put it in any name he wished; but defendant said he preferred to have it in Mrs. Van Gelder’s name, and plaintiff told him to alter it himself, and thereupon lie interlined lvs wife’s name. When it carne to a question of signing, he asked how he was to sign. Plaintiff said to sign it as Mrs. Yan Gel tier’s attorney. Defendant said he was not her attorney, and asked his

p. 269

lawyer, who was present,“How will I do that?” The lawyer saidi “Sign it ‘Jennie Van Gelder, per John Van Gelder,’ ” and said to plaintiff, “You are satisfied with that? ” And plaintiff said, “Certainly.” And it was signed that way. In changing the contract from his own to one by his wife, and signing her name, he assumed and asserted authority to do the act on her behalf, and thus made the representation with which he is charged. He did not disclaim the right to do so by stating, with reference to a particular mode of subscription, that he was not his wife's attorney. This scrupulous regard for for accuracy would only strengthen an impression that what lie did do he did by right, and defendant was justified in relying upon his assumed authority, and in subsequently endeavoring to enforge the contract against Mrs. Van Gelder.

The questions of representations and reliance thereon were left * to the jury, and their verdict is conclusive upon us., But it is contended that the jury were misled by a statement in the charge of the judge, and were instructed that the paper was actually signed by defendant as attorney. The jury were not so instructed, but the judge, in describing the facts, erroneously stated that “the written contract bears the signature of the defendant’s wife, Jennie Van Gelder, by himself .as her attorney.”

The defendant excepted “to that portion of the charge wherein the court refers to the words used in the contract ‘signed himself as attorney,’ upon the ground that the contract does not contain the words ‘as attorney.’ ” If this exception was clear enough to point out the error, it is event that the language complained of could not produce any misunderstanding on the part of the jury, for it was made exceedingly plain by the defendant’s testimony that he had avoided signing as attorney. It is claimed that .the charge was a legal construction of the effect of the signature. This it clearly was not; but, if defendant thought it might be deemed so by the jury, he should have asked for an express instruction on the point. It was a mere verbal mistake in the charge, and as the effect, if any, could be cured by an instruction, it was defendant’s duty to ask for it.

The defendant sought to avoid liability on another ground: that the plaintiff might have avoided loss by selling the property, at or before the default under the contract, to one McSorley, a party with whom defendant had been negotiating as a possible buver of the lots: but no offer from McSorley to plaintiff was proved or suggested in the trial.

The judgment must be affirmed, with costs.

All concur.