p. 235ADOLPH SIMIS, Jr., Appellant, v. A. V. DAVIDSON, Sheriff, etc., Respondent.Headnote
Corporate instrument, sufficiency of proof of authority to execute—Averments in answer, estoppel by.A chattel mortgage purporting to be given by “The Homeopathic Manufacturing Company” was executed thus: “ The Homeopathic Manufacturing Co., B. Osann, President,” with a seal. It was acknowledged by Bernard Osann, President of the Homeopathic Manufacturing Company, before a notary public. The mortgage was given for money loaned, which had been used in the business of the corporation. There was evidence from which the jury might have found that the president was the general manager of the company. It was averred in the answer that the property covered by the mortgage had been owned by the company.
Held, 1st: That it was sufficiently proven that the president had authority to act for the corporation in executing the mortgage to entitle it to be received in evidence; and that its exclusion was error.
2d: That under the averments in the answer the defendant could not maintain that there was no proof of the incorporation of the company,
Before Sedgwick, Ch. J., and Freedman, J.Decided February 14, 1887.Plaintiff’s exceptions ordered to be heard in first instance at General Term after a dismissal of complaint before a jury.
The facts sufficiently appear in the opinion.
William J. Gaynor attorney, and A. Simis, Jr. of counsel for appellant on the questions, considered in the opinion, argued.
p. 236The answer admits that “ The Homeopathic Manufacturing Co.” was in existence, and that one Hodge obtained a judgment against it June 23, 1885, that an execution was issued against its property, by virtue of which the sheriff took the property into his custody.It also admits that the goods so taken were the property of said Homeopathic Manufacturing Company.It was admitted at the trial that the Homeopathic Manufacturing Company mentioned in the execution is the same that is mentioned in the mortgage. It was error to exclude the chattel mortgage. Castle v. Lewis, et al. 78 N. Y. 131 ; Coats v. Donnald, 94 N. Y. 168 ; Phillips v. Campbell, 43 N. Y. 271 ; Scott v. Middletown R. R. Co. 86 N. Y. 201 ; 2 Morawetz on Corporations, §§ 597 to 599, 715.Cochran & Clark, attorneys and of counsel for respondent.
The controlling question is as to the plaintiff’s exception to the refusal of the court to permit a chattel mortgage to be given in evidence. The ground of the refusal was, that it had not been shown that the person who executed it in behalf of the corporation by which it purported to be made, had authority to act for the corporation in that behalf.
Under the facts the mortgage should have been admitted. It was signed by the president of the corporation. The money loaned by plaintiff had been used in the business of the corporation. The jury might have found that the president was the general manager of the company. If he were, he had power to borrow money for the corporation, and as an incident of that power to give security.
The defendant could not maintain that there was no proof of a corporation, for part of the answer was that the property in question had been owned by The Horneo
p. 237pathic Manufacturing Company. This company was the corporation that made the mortgage in question.
Plaintiff’s exceptions are sustained, and a new trial is ordered with costs to abide the event.