Bigelow & Whipple v. Judson — 19 Wend. 229

Majority

p. 229

Bigelow and Whipple vs. Judson.

Headnote

A written authority from a landlord to his agent to make a distress is not necessary ; it is only necessary that the warrant to the officer who makes the distress should be in writing.

A distress warrant signed by the agent in his own name, as agent for his principal, is a good execution of the authority conferred upon him.

Delay in proceeding to a sale of the property distrained, does not destroy the lien for the rent, where there is no evidence of collusion between the landlord and tenant.

Error from the Otsego common pleas. Judson sued Bigelow and Whipple in trover, for certain articles of property which he, as sheriff of the county of Otsego, had levied upon under a distress warrant for rent due from one Devoe to George Clarke and Ann L. Clarke his wife. Richard Cooper testified that he was the general agent of Clarke for the collection of his rents, that his appointment was by farol, that on the 29th January, 1835, he issued a distress warrant for the collection of rent due from a tenant of land belonging to the wife of Clarke, in which Clarke had a life estate. The warrant was produced, it was in the usual

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together with a notice that unless the rent was paid within five days the property would be sold, was left with the tenant. Within four days the tenant paid a part of the rent and begged for indulgence, and within a few days afterwards was taken sick. The property was left by the sheriff in the possession of the tenant. Nineteen days after the distress was made and whilst the tenant was confined to his room by sickness, the property was taken away by the defendants, by virtue of certain mortgages which had been executed to thém by. the tenant previous to the distress. The defendants objected to the plaintiff’s right to recover, because, 1. the authority to Cooper to act as agent was by parol, whereas they contended it should have been in writing; 2. that if he had authority to act, it had not been properly executed, the distress warrant being in his own name as agent, whereas it should have been in the names of his principals ; and 3. that the lien for the rent was lost by the delay which occurred in proceeding to a sale of the property. Which objections were overruled by the court, and the jury, under the charge of the court, found a verdict for the plaintiff, upon which judgment was entered. The defendants having excepted to the decision of the court, sued out a writ of error. form, but was signed "R. Cooper, agent for George and Ann L. Clarke," and accompanying it was an affidavit of the rent due, made by Cooper. The property was distrained on the 31st January, an inventory was made, and a copy

NEW-YORK,

May, 1838.

J. A. Spencer, for the plaintiffs in error.

E. B. Morehouse, for the defendant in error.

By the Court,

Previous to our statute, 2 R. S. 501, § 8, 9, the authority from the landlord to distrain need not have been in writing, as is perfectly settled. Serjeant Williams observes, 1 Saund. 34?, c. n. 4, that it is sufficient for the defendant, in his cognizance to say generally “as bailiff of J. S.” he acknowledges the taking without showing his authority; and a subsequent agreement by J. S

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to the distress amounts to an authority as much as if he had previously directed the defendant to distrain. Woodf. Land. and Ten. 307. Bradby on Dist. 151 3Carr. & Payne, 172. See also 5 Bing. 10. There is certainly nothing in the statute, altering the law in this respect; it only requires that the officer distraining shall have a written warrant. Cooper being the general agent of Clarke to collect his rents, was authorized to take necessary steps for that purpose, and of course to issue the warrant to the plaintiff. No particular form is prescribed ; if the warrant substantially indicate the object intended, so as to enable the officer to execute it, it must be sufficient.

It is objected that the warrant is not subscribed in the name of the principals, and that in analogy to the rule in respect to contracts entered into by an agent, the execution is defective and void. The reason why a contract, subscribed in the . name of the agent, is not binding upon the principal, is because it is the contract of the agent and not of the principal. The authority, therefore, to bind him has not in fact been executed. No contract has been entered into. But this reason has no application in this case ; all that is essential here is to confer upon the officer authority to distrain. Before the statute a parol command was enough, and any instrument in writing that indicates thus much now, must be all that is material. Suppose the tenant had sought a remedy against the landlord, could the latter have taken exception to this mode of execution of the warrant of his agent, and denied that he was responsible for any thing done under it ? There is no pretence for such an objection, I think, therefore, the authority has been well executed by Cooper, though in his own name as agent for the landlord. Indeed, this mode of entering into a contract seems to be sufficient to bind the principal where the authority to make it, is shown, 15 Johns. R. 1, 19 id. 531, 558, 565, 13 id. 307, 11 Mass. R. 27 . 17 Wendell, 40; and such is the good sense of the transaction.

As to the delay in selling the goods, the authorities are full to warrant it with the assent of the tenant, and to show that the lien is not thereby lost, unless the delay is by collusion.

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Nothing of the kind is pretended here ; on the contrary, the sale was postponed as an act of humanity to the tenant. 1 Saund. Pl. and Ev. 443. 3 Black. Comm. 14. Ed. Chit. n. 39. Fisher v. Algar, 2 Carr. & Payne, 374. Comyn, Land, and Ten. 412. 7 Price, 690. Bradby on Dist. 155. 11 East, 404, n.

Judgment affirmed.