[blocks in formation]

Fowler, et al. respts. v. The New York Gold Exchange Bank, applt. Decided December 30, 1875. A principal who ratifies the act of a voluntary agent who receives money for his principal and makes a loan

J. Brown & Co. immediately intending

in his behalf as a condition of such to settle outside the bank and deliver receipt, is entitled to receive the money so paid to the agent upon the repayment of the loan made by the Agent.

the gold, sent to Chase, McClure & Co. to say that they, J. B. & Co., wished them to pay for the $50,000 gold they had bought from them at $1.414. Chase, McClure & Co. referred J. B. & Co. to Chapin, Bowen & Day, who they said would pay for it and take the gold. On going to Chapin, Bowen & Day they informed J. Brown & Co. that they, C. B. & D., had given the currency due to the defendant, and obtained from the defendant $50,000 gold which they were to receive.

A voluntary agent is entitled to be reimbursed for expenses incurred in behalf of his principal, on the ratification by the principal of the agent's act.

This appeal is from a judgment in plaintiff's favor, for $94,255 upon the report of a referee.

ing house of the New York Gold Exchange.

The next day (Black Friday), was a day of extreme confusion, and parties be settled on that day through the defendhaving outstanding contracts in gold to

ant, were requested by defendant's president to clear outside of the defendant as a clearing house.

Chase, McClure & Co. on the same day gave up to J. Brown & Co. the name of Chapin, Bowen & Day as the parties who would receive and pay for the gold in lieu of themselves, and the substitution was accepted. Defendant was the clear

J. Brown & Co. acted on this request and settled all their contracts outside of the defendant.

The facts out of which the action arcse are as follows: On September 23, 1869, the day before what is known as "Black When the contract was made it was exFriday," the plaintiff's composing the pected to be settled through the defendfirm of Fowler Brothers, wishing to sell ant. The practice in such settlements $50,000 of American Gold, gave an order was as follows: The parties selling sent to James Brown & Co., brokers, to sell a ticket to the defendant requesting the that amount of gold for them. J. Brown defendant to deliver the amount of gold & Co. on the same day executed this or- sold and receive the amount of currency der, and sold for plaintiff's account fifty- thereon specified, and the party purchasthousand dollars gold coin for settlement ing sent a ticket or request to the defendon September 24, 1869, the next day at ant to receive the amount purchased and $1.41 in currency for each dollar of pay the price in currency specified. gold coin, such sale being to the firm of These tickets authorized the defendant to perform the requests contained in them.

Chase, McClure & Co. On the same day J. Brown & Co. gave, and plaintiffs received in due course of business, notice of such sale.

But J. Brown & Co. having sent in no statement and acting on the request of defendant's president to settle outside, endeavored to settle accordingly. But the tickets in this transaction with Chase, McClure & Co., having gone into the bank, the defendant, and not recalled or withdrawn, through inadvertence and the confusion and excitement then exist

ing, this contract was settled by defend- | probable that the defendant was put to

any expense or made any advance for the purchase or procurement of the gold. It was drawn out of the fund it had on hand for clearing purposes. The findings of the referee are supported by the evidence, and support his conclusions of law.

ant for account of the parties thereto.

Plaintiff's brokers applied to the bank for the currency. The defendant did not comply with the demand and stated they were in the hands of a receiver. The plaintiffs being unable to settle the matter amicably, made a tender to the defendant on the 30th of September, 1869, of $50,000, of gold coin, and demanded the $70,625, received for their account by defend


The defendant refused to receive the gold or deliver the currency, whereupon this action was brought. On the foregoing facts, the referee found judgment for plaintiff.

F. F. Marburg, for respts.
W. II. Scott, for applt.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J. and Brady J. concurring.



Walter S. Pierce, et al., applt., v. Morrisson, respt.

On appeal,

Held, That the defendant had voluntarily paid from the resources in its hands $50,000, gold coin, and received for plaintiffs through their brokers $70,625, in currency. No want of diligence on the part of plaintiff to deliver the gold under the circumstances can be claimed. The advancement of the gold was substantially a loan of it by the defendant to Brown & Co. for plaintiffs, and upon the tender by J. B. & Co. of the $50,000 gold, they had the right to receive the $70,625, currency, in the hands of the defendant belonging to the plaintiffs.

If the gold had been purchased by the defendant, or procured from some other source by which it was subject to expense in the transaction in its conduct as agent for the plaintiffs or their brokers, J. Brown & Co., the principal, J. B. & Co., on the ratification of an act of that na-26th, 1872. ture, would probably become bound to protect and fully reimburse the agent, the defendant. But it was not even alleged in its answer, or in any of the interviews shown by the evidence, that defendant had been subjected to any expense or trouble whatever in obtaining the gold delivered to it; and it is not

Decided December 30, 1875.

Although one member of a firm cannot bind his co-partners by submission to arbitration without direct authority, any expression of intent to give such authority by the non-signing partner is sufficient to bind him.

The intendments are in favor of the validity of an award.

Action brought to recover the sum of $2,270.67, claimed to be due the plaintiffs from defendant on an arbitration and award.

The plaintiffs, Walter S. Pierce and Junius J. Pierce, composed the firm of Walter Pierce & Co., and one of the plaintiffs, Junius J. Pierce, and defendant composed the firm of Pierce, Morrisson & Co. The latter firm was dissolved July

On the same day an agreement was made between the said plaintiff, Junius J. Pierce, and Edward H. Morrisson, the defendant, as to the terms of dissolution of their firm of Pierce, Morrisson & Co. In and by the agreement the defendant agreed with his co-partner, the plaintiff, Junius J. Pierce, to assume and pay "all

the indebtedness of whatsoever nature there may be of said firm, in full."

The answer set forth the written instruments set forth in the complaint and

claimed the said award was void.

Subsequently, on October 4th, 1872, said Junius J. Pierce and the defendant entered into another agreement, which recited the agreement of July 26th, 1872, for dissolution also, that the accounts between Pierce, Morrison & Co., (the dissolved firm) and Walter S. Pierce & Co., were unsettled and the balance unascer- Held. Although the weight of authoritained, and provided that for the purpose ty may be in favor of the rule that one of ascertaining such amount, in case partner cannot bind his co-partners by Junius J. Pierce and E. H. Morrison submission to arbitration, yet any mancould not agree thereon, the settlement ner of actual authority given by one partthereof should be referred to the plaintiff, ner to his co-partners will be sufficient to Walter S. Pierce and one R. M. Watrus, bind the firm. It is enough whatever its with power if they could not agree to se- form, if it contains a distinct expression lect a third party to decide between them, of the intent to allow the partner acting whose decision should be final. This to do it for him. In this case the partner agreement then provides that upon the who signed the agreement represented the ascertainment of the amount of said in- firm in signing it, and signed it with the debtedness by either of the above men- knowledge and consent of his co-partner, tioned means, one David Clopton, the de- Walter S. Pierce, established by his prespositary of an accepted draft, was author-ence and participation in the arbitration ized and required to apply the same or so proceeding. The non-signing partner much thereof as might be necessary to having consented to and authorized the the payment of said amount. signing by the other, and having subse

In consequence of the last named quently ratified the deed thus done, by agreement, the arbitrators and umpire made an award, that E. H. Morrison should pay Walter S. Pierce & Co., $2,270.67 and also decided certain other questions.

[blocks in formation]

The agreement of October 4th, 1872, providing for the arbitration was signed by J. J. Pierce, but with the knowledge and consent of the co-partners.

been sent to the defendant, on application to him by plaintiff, Walter S. Pierce, for payment of the amount awarded, he made an unqualified promise to pay.

A. H. H. Dawson and J. S. L. Cum

mings, for applt.

E. T. Hyatt and Thomas Allison, for respts.

acts and words, rendered the submission mutual and binding on both him and the defendant.

That the award embraced the subject confided to the arbitrators.

The intendments are in favor of the

validity of an award. The referee erred in rendering judgment for the defendant. New trial ordered, costs to abide the event.

Opinion by Brady, J.; Davis P. J. and Daniels, J. concurring.



In re Stewart and Newton, 13 N B.
R. 295.

It was proved on the trial before the referee, that after a copy of the award had No individual exemption can be allow

ed out of a partnership estate at the that he had a right to reserve enough to expense of the joint creditors. pay the expenses of his family for a reaThe firm of Stewart & Newton, and sonable time. Held, Brown, J., 1. That as the payment Stewart individually, were bankrupts. The partnership estate reduced to cash to counsel was made at the time the seramounted to $1,000. Stewart, as the head vices were performed, that a bankrupt had of a family, claimed this amount as ex- a perfect right to employ counsel and to empt under the bankrupt act, and the pay him, such payment ought not to be State constitution and laws. regarded as a preference or a fraud on the act; that the preparation of the petition and schedules was a work requiring skill, and as it was the duty of the insolvent upon discovering his insolvency to go into bankruptcy, it was quite proper to employ counsel and pay him. It might be otherwise if the service had been performed on credit and the money afterwards paid. The question of preference might then arise.

Held, Erskine, J., notwithstanding the courts had entertained conflicting views upon this subject, the weight of authority was against the allowance of the claim here advanced.

(In re Handlin,) 12 N. B. R. 49.


2. That the debtor has no more right to receive or reserve the cost of professional services to be rendered after his adjudication than to reserve money for any other future purpose.

3. That the word "necessaries" in sec

Payment to counsel for services in pre- tion 5,045 of the act, includes money, and paring bankrupts' petition and schethat the assignee-taking into view all dules is not preferential. Bankrupt is entitled to an allowance in the circumstances of each case-can, submoney from his estate for the tem-ject to the final decision of the court, alporary support of himself and fami- low the bankrupt such sum from the ly, not exceeding, with his furniture estate as he may deem proper for the temand other articles, five hundred dol-porary support of the bankrupt's family, not exceeding, with his furniture and other property, five hundred dollars.


In Re James Thompson.
13 N. B. R. 300.


He is not entitled to receive the proba ble expenses of procuring his dis charge.

[ocr errors]

The bankrupt was adjudged a bankrupt on his own petition, on June 10th 1875; two days prior to this, and upon the same day upon which his petition and schedule were drawn, he raised $1,000 upon his real estate, out of which he paid his counsel $110 for drawing his petition, &c. The balance he held. The assignee petitioned for an order that he account and pay over. The bankrupt claimed the payment to counsel; that he should be allowed to retain suflicient to pay the expenses of procuring his discharge, and



U. S. CIRCUIT COURT, LOUISIANA, Norton, assignee, v. De La Villebeauve, 13 N. B. R. 304.

An action by an assignee is barred by
the two years' limitation, although
the assignee may not have discovered
the right of action until after its ex-
The limitation applies as well to those
causes of action which existed prior
to the adjudication in bankruptcy

as to those which arise subsequently. are within the equity of those expressed.

Action brought to establish title to and (Bank of Alabama v. Dalton, 9 Howard recover possession of land in possession of 522. McIver v. Ragan, 2 Wheaton 25, and claimed by defendant. The defend- Bucklin v. Ford, 5 Barb. 393; Hudson ant among other defenses pleads the v. Carey, 11 Sergt. & Rawle, 10.) The statute of limitations of two years, found plaintiff has been under no disability to in section 2 of the Bankrupt Act.

sue; the courts have been open to him, and the defendant at all times liable to be sued by him. The limitation provided had run against him before this action

was brought. He falls within the Act and the law makes no exceptions.

Plaintiff and defendant both claim title from the same source, from Person the bankrupt; the plaintiff by virtue of his office as assignee, and the transfer to him of all the property of the bankrupt, and the defendant by virtue of a sale, before the bankruptcy of Person, under a mortgage foreclosure.

Person was adjudged a bankrupt on the 9th of March, 1868; plaintiff was appointed his assignee on the 22nd of April, 1868, and this action was brought on the 21st of August, 1871, over three years after the appointment of plaintiff as assignee. The plaintiff did not discover the property and his right thereto until about the 1st of July, 1871, about seven weeks before the commencement of this



2. The theory urged that the limitation applies only to new causes of action arising in favor of the assignee after the bankruptcy, and not to those which existed before the bankruptcy, and had come to the assignee by the assignment, could not be maintained. The provisions of the 14th and 16th sections of the Bankrupt Act are not susceptible of any such construction; it is too narrow. provisions of the 2nd, 14th and 16th sections must be construed together. So considering them their meaning appears plain, and the effect of the three sections is this: the assignee may sue for and recover the estate, debts and effects of the bankrupt in his own name, and have the like remedy to recover the same as the bankrupt might have if the decree in

Held, That the question presented is, does the fact that the plaintiff was ignorant of his rights relieve him from the bar of the statute; that no case could be found sustaining plaintiff's views; that if

it had been the intention of the law-bankruptcy [had not been rendered and

making powers that the limitation should begin to run from the time the plaintiff discovered his right of action, and not from the time his right of action accrued, it would have said so in unmistakable terms; that to introduce such an excep tion into the statute, would be an act of

legislation on the part of the courts, and would be directly contrary to the policy of the Bankrupt Act, which looks to the speedy settlement of the bankrupt affairs.

It might be equitable in some cases that this view of the plaintiff should prevail, but it is not competent for the courts to engraft other exceptions on the p statute, even on the ground that they

his suit for that purpose is brought within
no assignment had been made, provided
two years from the time the cause of
action accrued to him. On all matured
claims and demands the cause of action
accrues to the assignee at the date of the
assignment; all others from their ma
turity or at the time an action will lie,
and he must sue within two years from
these dates respectively.
Judgment for defendant.
Opinion by Wood, J.

« ForrigeFortsett »