Garrigue v. Loescher — 16 N.Y. Super. Ct. 578

Majority

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Rudolph Garrigue v. Philip A. Loescher.

Headnote

1. Where a plaintiff sues as the assignee of the cause of action described in the complaint, to recover a sum alleged to be due from the defendant to the plaintiff’s assignors at the time such claim was assigned; and where the plaintiff makes title under an assignment made by the assignors by their attorney, by virtue of a ppwer of attorney dated the 23d of April, 1856, the suit having been commenced on the 26th of May, 1856;) a paper writing executed by such assignors personally to the plaintiff, on the 21st of April, 1857, which recites the making of such power of attorney, and confirms the assignment made by such attorney to the plaintiff, by virtue of said power of attorney, is not competent evidence, as against the defendant, of the due execution of the power of attorney so recited.

2. As a general rule, a paper executed by a third person, cannot be admitted as evidence of the truth of the facts it recites, when his declarations to the same effect would be inadmissible, on the ground of being hearsay evidence.

3. A declaration by an alleged principal, made after a cause is at issue, that before suit brought he executed a certain power of attorney, the execution of which must be proved to enable the plaintiff to recover as assignee of a demand which such principal had against the defendant, is not competent evidence as against the defendant, to prove the execution of such power of attorney.

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4. A power of attorney by which A. authorizes B. as his attorney, “to enforce, either privately or before Court ” a claim to the amount of $7,602, which A has against L.; and to do everything “ which may be requisite to collect the sum of $7,602,” “to apply to the redemption” of certain bills of exchange named in said power, does not confer authority on B. to assign such claim to a third person, so that such third person can sue upon and collect it in his own name.

5. A plaintiff who sues as the assignee of a cause of action, (in which he has no interest at the time of suit brought) cannot maintain his action, by purchasing after issue joined, the cause of action described in his complaint.

(Before Boswobth, Oh. J"., and Hoffman, J.)

Heard, November 5;

decided, December 4, 1858.

This action comes before the Court, on questions of law arising at the trial, and which were there ordered to be heard, in the first instance, at the General Term. It was tried before Mr. Justice SlosSON, and a jury, in February, 1858.

The action is brought to recover $7,602, part of a larger sum alleged to have been owing on the 5th of April, 1856, from the defendant to Pfeiffer & Bolzmann, of Hamburgh in Germany, and to have been assigned by the latter, by their duly authorized' agent to the plaintiff.

The answer admits that the defendant was indebted to said Pfeiffer & Bolzmann in account, but denies that, the balance was as large as the complaint alleges.

It puts at issue the allegations as to an assignment of the $7.,602, to the plaintiff; and alleges, on information and belief that, Rudolph Garrigue is not the real party in interest in this action, and denies that the plaintiff has any interest, whatever, in it. This action was commenced on the 26th of May, 1856.

At the trial, the plaintiff offered in evidence a “ power of attorney," dated the 23d of April, 1856, purporting to be executed by Pfeiffer & Bolzmann to Ferdinand Karck of Hew York city, and in the presence of “F. H. Prohme & A. Ritten,” as subscribing witnesses. It being offered, on a certificate, of the acknowledgment of the execution thereof made before a notary public of Hamburg, (which certificate was indorsed on such power,) it was rejected.

The plaintiff then offered in evidence a paper, dated at Ham-burgh, on the 21st of April, 1857, purporting to be signed by Pfeiffer & Bolzmann, and called a “ ratification of an assignment

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iii trust." There was indorsed on the latter paper, a certificate of the acting consul of the United States at Hamburgh, in due form of law, of the acknowledgment, before him, on the 21st of April, 1857, by Pfeiffer & Bolzmann, of the due execution by them of such paper.

Said paper recited that Pfeiffer & Bolzmann “ having constituted Mr. Ferdinand Karck, of the city of New York, by notarial power of attorney, dated Hamburgh, April 23, 1856, and executed on the same day our power of attorney with full power,” &c., “ and being informed that Mr. Ferdinand Karck, as our agent, has in our names, and on our account and behalf, assigned, by a deed of assignment, under seal, dated New York, May 21, 1856, of the contents of which we have perfect knowledge, all our notes, bills, book accounts, claims and demands, against the said P. A. Loescher, of every name and nature whatsoever, to Rudolph Garrigue, of the city of New York, in trust for the purposes in said assignment mentioned, therefore these presents witness that the aforesaid assignment has been made and executed by said Ferdinand Karck, as aforesaid, in perfect accordance with our intentions, and the power granted to him, and that we ratify and confirm the said assignment in every respect,” &c.

“ The Court admitted such paper to prove the execution by Pfeiffer & Bolzmann of the said power of attorney. The defendant then and there duly excepted to the said decision and ruling of the Court."

The plaintiff then offered the said power of attorney in evidence. The defendant then objected to the same being read on the ground, (among others,) “ that the foregoing paper, called a ‘ratification of an assignment in trust,’ did not prove the said power of attorney, dated Hamburgh, April 23, 1856, so as to enable the said power of attorney to be read in evidence.”

The Court overruled the objection and decided the said power of attorney to be sufficiently proved, to which decision the defendant excepted.- It was then read in evidence.

The plaintiff then read in evidence the assignment executed by Karck, as such attorney, to the plaintiff, and which bore date the 21st of May, 1856.

The power of attorney recited that Pfeiffer & Bolzmann had a

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balance of account against Loescher of $7,888.93; and that against this balance of account they had sold bills of exchange to persons emigrating to Mew York, Quebec, and Chicago, to the amount of $7,602, and had received the amount of said bills from said emigrants, (specifying the name of each emigrant and describing the bill sold to him.) It also recited a purpose to do all in their power to prevent said emigrants from falling into embarrassment, and authorized Karck “to do all that may seem to him best, to the end that the said bills of exchange as a charge upon the aforesaid balance of account, may be accepted and honored by said Loescher.”

“ In case, however, against all expectation, the bills should not be accepted,” it authorized their said attorney, “ to enforce, either privately, or before Court, or otherwise,” their claim against Loescher, to the amount of $7,602. If necessary, to make complaint and proceed judicially before the competent authorities and Courts, especially to apply for warrants of arrest and attachments, and to employ attorneys, &c. “ In short, to do and undertake any and everything, even though it be not specially mentioned here, which may be requisite to collect the sum of $7,602, or so much thereof as may be possible from the said Loescher,” and apply the same to the redemption of the said bills of exchange.

Mone of the bills of exchange were accepted by Loescher.

The assignment, which Karck, by virtue of such power of attorney, executed to the plaintiff, assigned to him, the whole balance of account alleged to be owing from the defendant to Pfeiffer & Bolzmann, in trust to collect the same and pay said bills of exchange, and return the surplus, if any, after deducting reasonable expenses, to Pfeiffer & Bolzmann, their executors, administrators, or assigns.

When the testimony was closed, the defendant moved to dismiss the complaint on the grounds:

First. The plaintiff has not proved himself the trustee of an express trust.

Second. The power of attorney did not authorize the execution of the assignment.

Third. The paper, called a “ratification of an assignment in

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trust,” could not retrospect, and was inoperative as a power to sanction the plaintiff’s action.

The motion was denied, and the defendant excepted to the decision.

The Court instructed the jury to find a verdict for the plaintiff for $8,657.73, the amount claimed and interest.

To this instruction the defendant excepted.

The Court then ordered that, the exceptions of the defendant, taken to the rulings and decisions of the Court, upon the trial of the cause, be heard, in the first instance, at the General Term of this Court, the entry of judgment to be in the meantime suspended.

Zitz, Kapp and Hall, for plaintiff.

F. B. H. Bryan, for defendant.

By the Court.

—The recital of one deed in another is evidence of the execution of the recited deed against the party who executed the reciting deed, and those claiming under him by title subsequent to the date of the latter deed. (3 Cow., and Hill’s Notes, p. 1235, note 869.)

But these recitals are not evidence against strangers, id.

As a general rule, a recital is evidence, against a defendant, only in those cases, in which, the declarations of the party, who executed the reciting deed, would be competent. (Id., p. 1236.)

Declarations, of Pfeiffer & Bolzmann made in April, 1857, are no evidence as against the defendant in an action commenced in May, 1856, when such declarations are to the effect that, before the action was commenced they authorized a transfer of the cause of action to the plaintiff, and the plaintiff’s right to recover depends upon the question whether they did authorize such transfer to be made; before suit brought.

That Karck was authorized to make the assignment under which the plaintiff claims, is a fact necessary to be proved, in order to maintain the plaintiff’s action: That fact is put in issue by the pleadings: The confession, of Pfeiffer & Bolzmann, made after issue joined, that Karck was authorized to make the assignment, would not be competent evidence, as against the defendant of that fact.

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The declarations of a party, under whom a plaintiff or defendant claims title, made while such party owned and was in possession of the subject matter of the litigation may [in some cases] be evidence against such plaintiff or defendant, if he claim under a title derived from such party after such declarations were made. 1 Cow., Hill, and Edwards’ Notes, p. 318, (3.) But they are not evidence in favor of a person claiming under such party against a person who does not claim under him. (2 Cow. and Hill’s Notes, p. 669.)

The admission of the paper executed by Pfeiffer & Bolzmann on the 21st of April, 1857, as sufficient evidence that they executed on the 23d of April, 1856, the power of attorney recited in it, is erroneous, because, first, it was made after suit brought, and, second, because the defendant is a stranger to that transaction, and to the assignment alleged to have been executed by virtue of such power of attorney. Those transactions are res inter alios acta. As to them, there is no privity between Pfeiffer & Bolzmann and the defendant. He is not defending on the ground of any right, derived from them, either prior or subsequent to either of those dates.

If the plaintiff claimed under an assignment alleged to have been executed to him by Pfeiffer & Bolzmann, in person, and the fact of such assignment was put in issue, the plaintiff could not establish the fact, by proof of admissions made, after suit brought, by the alleged assignors, that they had executed such assignment.

There is no more propriety in admitting their declarations or confessions, as evidence of the fact declared or confessed, than in admitting the declarations of any third person, as evidence of the fact thereby asserted.

We think the learned Judge erred in holding that the paper called a “ Ratification of an Assignment in Trust ” proved sufficiently the fact that Pfeiffer & Bolzmann executed the power of attorney which was produced and received in evidence.

This conclusion makes the granting of a new trial unavoidable, and renders it unnecesary to decide the question whether the power of attorney, (if its execution shall be proved on a subsequent trial,) authorized Karck to assign the claim in question so as to vest such a title to it in his assignee, as would enable the latter to sue and collect it in his own name.

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The latter question was discussed on the argument of the appeal. To avoid such inferences, as to our opinion upon this question, as might be drawn from our leaving it unnoticed, we deem it proper to say that the power of attorney does not, in terms, authorize an assignment of the claim in any event, for any purpose.

However general the language employed to express the authority conferred, in case “ the bills should not be accepted,” the power of attorney declares that the things, which it authorizes to be done, are to be done, “ to enforce ” the “ claim, to amount of $7,602, against the said Loescher;” or are to be done “in order to collect, the sum of $7,602, or so much thereof as may be possible, from the said Loescher.”

The language, by which the authority conferred, is expressed, however comprehensive, imports that the discretion confided and power granted, are to be exercised and employed by Karck, to collect, as the agent of his principals, the $7,602.

It can hardly be inferred that, it formed any part of the purpose of Pfeiffer & Bolzmann, that Karck should be at liberty to assign the claim for $7,602, to a third person, so as to place the proceedings which they might deem it expedient to institute, or which might be instituted under the said power of attorney, beyond their control. Yet this has been done, if the assignment which has been made, is as effective as it would be, if it had been executed by Pfeiffer & Bolzmann, in person.

We incline, strongly, to the opinion, that the power of attorney, assuming its execution to be proved, did not authorize Karck to make the assignment in question.

It is hardly necessary to say that, if the plaintiff, by force of the power of attorney and of the assignment, had no right of action, or in other words, did not own the cause of action, (against the defendant,) which is stated in the complaint, when this suit was commenced; Pfeiffer & Bolzmann, could not, by any acts they could do, after issue joined, vest a title in the plaintiff, as of a date prior to that on which this suit was commenced, with such effect as to enable him, thereby, to maintain the suit.

A plaintiff, who has no cause of action against a defendant when he sues him, cannot maintain his action and recover, by

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purchasing, after issue joined, the cause of action described in his complaint.

A new trial must be granted, with costs to abide the event. Judgment accordingly.