FIFTH DEPARTMENT, JUNE TERM, 1894. [Vol. 79. that it is drawn in accordance with the understanding of the parties, when in fact it has not been so drawn, the former may have relief upon the ground of fraud if nothing further appears to deny it to him. Whatever the expectation of the defendant may have been in the present case, he was not, by any representation as to its terms other than as they appeared in the contract, induced to execute it. There was no legal obligation of the vendor to make a contract of sale upon any other terms than those expressed in it, and of them the defendant by its inspection must be deemed to have been advised when he executed it. To support a charge of fraud for relief of a party from his contract under such circumstances would be going beyond a well-established rule of law and further than it is prudent to go, to find the means of relieving a party from his contract. If it appeared that the defendant was by any circumstances misled into the execution of the contract, supposing it was otherwise than it was in terms, relief may have been granted to him. Such was the case of Botsfell v. McLean (45 Barb. 478), where two of four notes on time were drawn without interest when it was evident that it was intended they should all bear interest from their date, and the party, seeing that two of them contained the interest clause, failed to observe that it was omitted in the others. It was held he was entitled to reformation of those two notes. In Albany Savings Institution v. Burdick (87 N. Y. 40) the grantor of Mrs. Burdick drew the deed, and, contrary to the understanding, inserted a clause to the effect that she assumed the payment of a mortgage he had given upon the premises. She, having trusted to him to prepare the deed, did not examine it to see that the assumption clause was in it, and did not know it was there. The court held that she was not, under the circumstances, necessarily chargeable with negligence to defeat her claim to reformation. Those cases do not seem to support the defense in the present case. There it appeared that the payee in the note and the grantee in the deed did not know of the omission of interest on the two notes there in question, or of the existence of the assumption of mortgage clause in the deed at the time the notes and deeds were delivered and accepted. In the case at bar it does not appear that the defendant did not Hun.] FIFTH DEPARTMENT, JUNE TERM, 1894. read the contract before he signed it, or that he did not then know its contents. He does state that upon signing the contract he relied upon the statements which had been made to him by Weaver and Aris and supposed the contract was the same. This must have had relation to his understanding of its legal effect, as he does not say that he failed to read it and ascertain its provisions as he had the opportunity to do deliberately before executing it. In the view taken, the defendant is not entitled to relief on the ground of mutual mistake of the parties to the contract or of fraud on the part of the vendor. The question of title is raised on the part of the defendant. The plaintiff gave evidence with a view to support the title in Waite at the time the contract was made. Amongst other evidence in that direction was a patent of the United States under the official seal, of date December 17, 1890, subscribed by the President of the United States, by M. M. Kean, secretary, and by the receiver of the general land office, granting certain lands including that in question to Peter M. Hacking. Objection was taken by the defendant to the introduction of this instrument in evidence. It was received in evidence and the question of its admissibility reserved. The objection is overruled and exception allowed to the defendant. There was also offered in evidence what purported to be a certified copy of a power of attorney of Kingsbury to Goss, who as attorney in fact executed a deed of the premises to Chickering, and the question was reserved upon the objection taken to it on the ground that it was not properly authenticated. The objection is sustained. But other evidence was given of the execution of the power of attorney, and its contents were proven in support of the deed from Kingsbury to Chickering, and by the introduction of the patent of 17th December, 1890, before mentioned, the question arising upon reception in evidence of the certified copy of the receiver's receipt of the purchase money from Hacking was practically disposed of as unimportant for consideration. It appeared by the conveyance put in evidence that William C. Waite had title to the premises at the time he made the contract with the defendant. He afterwards, in February, 1892, conveyed the premises to George Herbert Smith, and before the commencement of this action Smith's HUN-VOL. LXXIX. 10 FIFTH DEPARTMENT, JUNE TERM, 1894. [Vol. 79. warranty deed with a certified copy of discharge of a mortgage was tendered to the defendant, and the payment of the residue of the purchase money demanded, all of which were refused, but the defendant did not refuse to accept the deed for want of the personal warranty of Waite, his vendor in the contract, and no such objection seemed to have been at any time made by the defendant to the conveyance offered him. It is urged that the taking of the assignment of the contract by the plaintiff was not within its corporate power, and, therefore, no relief founded upon it was available to the plaintiff in the action. It may be assumed that the mere taking an assignment from the vendor of a contract for sale of land was not within the corporate powers of the defendant as it was personalty only. If, however, the defendant should take also the title to the realty the assignment of the contract would be a legitimate incident to it, and as such within the corporate purpose of the plaintiff. But is the question of ultra vires available to the defendant as a defense? The contract of assignment by Waite to the plaintiff is an executed one. While it is true that the defendant's contract is executory, it was not made by him with the plaintiff. It was valid in its inception, and the plaintiff's title to the contract was perfected by the assignment, and in no sense is dependent upon performance of any executory contract. The plaintiff is not seeking to enforce performance of any contract made by it, but a contract to which it had derived title from another. The question of ultra vires does not seem to concern the defendant, or to furnish any support for his defense. (Whitney Arms Co. v. Barlow, 63 N. Y. 62; Holmes & G. M. Co. v. H. & W. M. Co., 127 id. 252, 260.) No other question seems to require consideration. Hun.] FIFTH DEPARTMENT, JUNE TERM, 1894. LUCY E. HAND, Respondent, v. CHARLES DEADY, as Sole Trustee of School District No. 5, Town of Rose, N. Y., Appellant. Officer de facto - what constitutes. To constitute a person an officer de facto it is essential that his acts of official character be founded upon some colorable right to the office, derived from a form of election or appointment (although by reason of some defect or irregu larity the election or appointment is illegal or unofficial), or that he has acted as such with the acquiescence of the public for a sufficient length of time to permit the presumption of an election or appointment, which presumption arises from the reputation he thus acquires as an officer from such acts, and the acquiescence of the public therein. Under such circumstances, as a matter of public policy, his acts in his apparent official capacity are not subject to collateral attack to the prejudice of others, and as to them and the public they are deemed effectual and valid. It is prima facie sufficient to establish the official character of a local officer to show that he is generally reputed to be and has acted as such. The mere claim of a person that he is an officer does not relieve his acts from the character of usurpation and give him the character of an officer de facto, unless he has openly performed the duties of the office for such length of time with the acquiescence of the public as to give him the general reputation in the official district of being what he assumes to be. APPEAL by the defendant, Charles Deady, as sole trustee of school district No. 5, town of Rose, N. Y., from a judgment of the County Court of Wayne county in favor of the plaintiff, entered in the office of the clerk of the county of Wayne on the 25th day of May, 1891, upon the verdict of a jury, and also from an order entered in said clerk's office on the 3d day of September, 1890, denying the defendant's motion for a new trial made upon the minutes. The purpose of the action was to recover damages for the breach of a contract alleged to have been made by David Benjamin, as trustee of school district No. 5 in the town of Rose, county of Wayne, with. the plaintiff, under which the latter was to teach school in that district for the term of sixteen weeks, to commence November 7, 1887. A written memorandum of contract to that effect, bearing date September 30, 1887, was subscribed by David Benjamin as sole trustee. of that district, and by him delivered to the plaintiff, who was ready and offered to proceed in the performance of the contract at and FIFTH DEPARTMENT, JUNE TERM, 1894. [Vol. 79. from the time therein mentioned, but was not permitted by William Jordan, who was then the acting trustee of the district, to do so. The plaintiff recovered $142.60, and costs. T. Robinson, for the appellant. Del Stow, for the respondent. BRADLEY, J.: The question for consideration is whether David Benjamin may, as to the plaintiff, be treated as having been trustee of the district at the time he made the contract with her. The facts bearing upon the question are that at a school meeting duly held in the district August 30, 1887, there were present eight men and some boys; a chairman was elected, and the district clerk was present. The trustee of the preceding year having read his report, said that the next thing in order was to elect a trustee, and, turning to one Buckley, suggested that he act as trustee. The latter said, "No, let Dave Benjamin have it." Some one seconded it; thereupon David Benjamin, who seems to have been somewhat under the influence of liquor, immediately jumped up and said: "All in favor of Dave Benjamin being trustee say aye." Some one responded aye. Then David Benjamin said, "I am trustee." No negative vote was called for. The chairman was not requested to nor did he call for any vote on the subject. The meeting then proceeded to the election of a trustee, and James Benjamin was elected in the usual manner. He entered upon the duties of his office, and three days later David Benjamin called upon him, asserted his right to the office of trustee, and, by means of a threat, induced James Benjamin to let him take the district books. Thereupon he assumed to act as trustee in buying some lumber, some locks for doors and some brooms, made the contract with the plaintiff to teach the school, and shortly afterward such. It is clear that he was not a trustee de jure. ceased to act as And to consti tute a de facto officer it is essential that his acts of official character be founded upon some colorable right to the office having the form of election or appointment, or that he has acted as such with the acquiescence of the public for a sufficient length of time to permit |