Defendant claimed that it was not same corporate name. Plaintiff tesliable, it not having been organized tified that he had no knowledge of until August 26, 1 63, several months the new organization, or of any other after the assignment was made. The than the one into whose service he proof showed that in 1862 plaintiff entered. An accounting was ordered. entered the service of a company before a referee, who found due styling itself the American Spiral plaintiff $1,049.41, and judgment Spring Butt Hinge Manufacturing was entered for that amount, with Company, which had its factory in costs. Jersey City and its office in New Elihu Root, for applt. York, and he afterwards became its Lewis Sanders, for respt. foreman. That, while foreman, he Held, no error; that whether the invented his improvement, and ap-organization of the company, in Auplied for a patent therefor. The gust, 1863, was the first corporate officers of the company entered into organization, or are organization of negotiations with him for the pur- a former company, was immaterial; chase of his invention, which cul- that the company then organized, minated in an assignment, under having adopted and acted under the seal, executed by him January 17, agreement under which the assign1863, reciting the facts, and, in con- ment was made, and having enjoyed sideration of one dollar, assigning its benefits, made it its own as effecto said company said invention, and tually as if it had formally and by authorizing the issuing of letters resolution adopted and ratified its patent to it. Plaintiff testified that terms, and was bound by it. he executed this assignment in consideration of an agreement made at the time with the officers of said company to pay him one cent for The Referee allowed double pay for double hinges. Held, no error. Judgment of General Term, af each hinge manufactured as long as firming judgment for plaintiff, af the patent should run. The assign-firmed. ment was recorded in the Patent Office, and a patent issued to said. company as plaintiff's assignee, Dec. 8, 1863. The company manufactured the hinge under the patent, and paid plaintiff one cent per hinge until March, 1864, when he left their employ. Defendant put in evidence a certificate of incorporation filed in the Westchester County Clerk's office, August 26, 1863. No documentary evidence was put in of any former organization. It simply appeared that the same parties were previously doing business under the Opinion by Rapallo, J. All concur. AGENCY. DAMAGES. N. Y. COURT OF APPEALS. Harrington et al., respts., v. Clark, applt. Decided Sept. 21, 1880. One P., who acted to some extent as defendant's agent in the purchase of hops, purchased hops of plaintiffs, but did not mention for whom he was buying. He gave his check for $100, on account, which was paid by the bank it was drawn on, and defendant afterwards took up the check. Plaintiffs witnesses testified that defendant had repu- P. contracted for the hops, testified diated contracts made by P., but afterwards that he understood from the general accepted the goods at the contract price, deducting what P. had paid; that he had stated to one witness that P. was buying for him; that defendant attended at the depot with P., and received, examined, and paid for hops purchased by P. Defendant testified that P. was only authorized to buy such hops as he ordered him to buy; that he did not authorize him to buy plaintiffs' hops; that he repudiated the purchase as soon as he knew of it; that he paid the check at P.'s request, and on his credit, and that he as sisted P. in buying and receiving hops. Held, That plaintiffs could not claim to have been misled by appearances, so as to bind defendant by an apparent agency; that the evidence, though meagre, could not be said to be insufficient for submission to the jury, and a verdict having been rendered for plaintiffs, P.'s agency must be taken as established. Plaintiff was allowed to answer the question, "What did P. say in relation to the party he was to buy for?" Held, no error; as the judge could not say as matter of law that there was no agency. conversation that P. was buying for defendant, but he could not specify anything said by him upon that subject, and he testified that P. did not mention for whom he was buying. One witness, a hop grower in Lewis County, testified that he saw defendant there in September, 1876, and he told him P. was going to buy hops for him, and he wished him, when ready to sell, to give P. a chance. Another hop-grower testified that, in September, 1876, P. contracted for the purchase of his hops for defendant, and paid $200 down; and that, when he came to deliver the hops, defendant repudiated P.'s agency, but finally took the hops at the contract price, deducting the $200 paid by P. The railroad station keeper at Lowville testified that, in the fall of 1876, several lots of hops were delivered at that station, said to have been purchased by P. for defendant; that P. and defendant were there to Plaintiffs have a right to determine the amount of their damages by a sale, and it is immaterial what the general market price was at any time before or on the day of the sale, except on the question of good faith and reasonable diligence, if they are questioned. This was an action to recover gether to receive them, and that dedamages for refusing to take and fendant examined, received, and pay for a quantity of hops, which paid for them. Plaintiffs also plaintiffs claimed they sold defend- proved that when P. bought their ant in the fall of 1876, through one hops he gave them his check for P., who acted as his agent. It ap- $100, which was paid by the bank peared that plaintiffs were hop- it was drawn on, although P. had growers near Lowville, in Lewis no funds there; that afterwards the County, and that defendant was a cashier of the bank requested dehop dealer residing at Fort Plain. fendant to pay the amount of the P. resided in Lewis County, and it check, and he did so and took up was undisputed that he acted to the check. Some time after the some extent as defendant's agent in sale plaintiffs learned from P. that the fall of 1876, in the purchase of defendant refused to receive the hops in that county, but the nature hops, and they wrote to him, inand extent of the agency was not forming him of the contract with shown. Plaintiff H., with whom P. and their readiness to deliver jury, and a verdict having been rendered for plaintiffs, P.'s agency must be taken as established. When plaintiff H., was on the stand as a witness for plaintiff, testifying to the contract with P., he was asked: "What did he, P., say in relation to the party he was to buy for?" Defendant's counsel objected to this as inadmissible, on the ground that plaintiffs could not prove the declarations of the agent until the agency had been proved. The evidence was received, subject to a motion to strike it out. the hops. Defendant replied deny- bind him; that although the eviing P.'s agency to buy the hops, dence was meagre and unsatisfacbut admitting his agency to buy tory, it cannot be said that it was such as he directed him to buy. insufficient for submission to the Defendant, as a witness on his own behalf, testified that P. was not authorized to buy plaintiffs' hops; that he did not know of their purchase until two or three days after, when he repudiated it; that he had arranged with P. to buy only such hops as he ordered him to buy, and that he specified the particular lots; that P. had no authority to buy for him, except by express direction; that he had paid the $100 check at P.'s request and upon his credit, at the time repudiating his agency. On cross-examination he admitted that his son and P. bought hops for him in Lewis County in 1874: that in 1876 P. bought of two different parties, and that when they were delivered and offered to him he repudiated the contracts made by P., but took the hops, deducting the amounts paid by P. at the time of making the contracts. He also testified that P. went with him and saw many hop-growers in Lewis County, and that he assisted him in buying and receiving hops. A verdict was rendered for plaintiffs. Amos H. Prescott, for applt. After plaintiffs had given all their evidence on the subject of the agency, defendant's counsel moved to strike out all of H.'s testimony as to the declarations of P., on the ground that no agency had been shown. This motion was denied. Held, no error, as H. testified that P. did not say who he was buying for; and, if he had, the judge could not say, as matter of law, that there was no agency; it was a question for the jury. Also held, That plaintiffs had the right to determine the amount of their damages by a sale of the hops, and it was immaterial what the general market price was at any time Held, That upon the facts proved before the hops were sold, or even plaintiffs cannot claim that they what it was on the day of the sale, were misled by appearances, and except upon the question of good that defendant should be bound by faith and reasonable diligence, if an apparent agency. It was incum- they were questioned. 30 N. Y., bent upon them to establish by suf- 549; 10 Bosw., 130; 44 N. Y., 72; ficient evidence that P. had actual 9 B. Monroe, 63; 21 Wis., 562. authority as defendant's agent to Judgment of General Term, af firming judgment on verdict for prevailing opinion that the refusal plaintiffs, affirmed. to confirm the report of the commis Opinion by Earl, J. All concur. sioners was because the General APPEAL. N. Y. COURT OF APPEALS. In re application of the Kings Co. Elevated RR. Co. Decided Sept 21, 1880. An order of General Term refusing to confirm Term deemed it, as a matter of fact, improper, inexpedient and impolitic to do otherwise. Henry J. Scudder and John K. Porter, for applt. Wm. C. De Witt and B. F. Tracy, for respt. Held, That the appeal should be dismissed; that the General Term the report of commissioners appointed to de-in making the order appealed from termine whether a railroad shall be built exercised a judicial discretion vested upon a specified route is not reviewable in in it by law, and the order as one the Court of Appeals. resting in discretion was not reviewSee S. C., 9 W. Dig., 290. able in this court. 2 Hill, 14, 27; This was an appeal from an order 61 N. Y., 60; 11 id., 276; 12 id. of the General Term, denying an 413; 7 Hill, 9, 19, 20; 27 N. Y., application to confirm the report of 629. A determination of commiscommissioners appointed by the sioners has no effect until it has court pursuant to chapter 606 of the been passed upon and confirmed by Laws of 1875, to determine whether the General Term. Although the a steam railway should be built in proceeding to confirm the determinathe City of Brooklyn upon the tion of the commissioners is in the routes fixed by commissioners ap- nature of an appeal, so that the pointed by the mayor of that city General Term has not a mere formal according to the act. Section 3 of function only, it cannot be said Article 18 of the Constitution provides that no street railroad shall be authorized by law without the consent of a fixed proportion of adjacent property owners, or, if that consent could not be obtained, without the determination of commissioners appointed by the General Term of the action and conclusion of its comSupreme Court of the district that missioners in all the particulars such railroad ought to be construct- that enter therein. ed, and a confirmation of that determination by the court. The order of the General Term did not state whether the ground upon which it was made was of law or fact. It appeared from the case and the! that the tribunal that has the power to appoint commissioners, whose duty it is to report to it, and which report is of no effect until confirmed by that court, is not a tribunal of original jurisdiction, so far as to have the function to review the Appeal dismissed. Opinion by Folger, Ch. J. All concur. SURETYSHIP. N. Y. COURT OF APPEALS. Thomson, rec'r, respt., v. Gregor, applt. Decided Sept. 21, 1880. dant was the order and the failure of Riker to pay in accordance with it. Defendant offered to prove the Mc- receipts and payments of Riker from and after the date of the bond, and sought to investigate the accounts so as to show that no liability had accrued since such date. These offers were rejected. Defendant was surety upon the bond of a receiver given after he had entered upon his duties. The condition of the bond was that the receiver should "henceforth" faithfully discharge his duties. On an accounting by the receiver to which defendant was not a party, an order was made requiring the receiver to pay a certain sum with interest to his successor. In an action on the bond, Held, that the order was not conclusive on defendant; that he could not be held liable for the action of his principal before the bond was given, and that he had a right to be heard as to the amount the receiver justly owed and was bound to pay. Andrew Gilhooley, for respt. Held, error; that the order of 66 This case does not come within This was an action against de- the authorities which hold, that one fendaut as a surety upon the bond not a party or privy to a judgment of a receiver. It appeared that the receiver was appointed July 9, 1874, may be bound by it if he has exand on that day entered upon the pressly so covenanted. performance of the duties of his not be held liable unless the lan trust. He could guage of his bond expressly and exto the judgment, and shows that he plicitly contemplates a submission must have intended to be bound by it. 75 N. Y., 565. On January 20, 1875, he was directed to file a bond, and ten days later the bond was executed by defendant as surety. The condition of That if the order was not binding the bond was, "if the said Charles B. Riker shall henceforth faithfully it became merely evidence, which as an adjudication upon defendant, discharge the duties of his trust." On December 28, 1877, an order may be rebutted. Defendant had a was made by the New York Com- the receiver justly owed and was right to be heard as to the amount mon Pleas, at the close of the ac-bound to pay. counting of Riker as receiver, requiring him to pay over to his successor, plaintiff, $2,099.27, with interest, as the balance in his hands. Defendant was not a party to the accounting, and had no knowledge that it was pending. The only evidence against defen Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted. Opinion by Finch, J. All concur. |