123 N.Y. 343, Rathbun v. Snow

Citation:123 N.Y. 343
Party Name:W. LYMAN RATHBUN, Appellant, v. ALFRED D. SNOW, Respondent.
Case Date:October 21, 1890
Court:New York Court of Appeals

Page 343

123 N.Y. 343

W. LYMAN RATHBUN, Appellant,

v.

ALFRED D. SNOW, Respondent.

New York Court of Appeal

October 21, 1890

Argued October 7, 1890.

Page 344

[Copyrighted Material Omitted]

Page 345

COUNSEL

Eugene L. Bushe for appellant. A natural person, under the facts shown in this case, would be liable. (1 Pars. on Cont. 41; Story on Agency, § § 17, 20; Whart. on Agency, § 121; U. Ins. Co. v. Wilkinson, 13 Wall. 222; Beebe v. Ins. Co., 25 Conn. 51; Wild v. N.Y. & A. M. Co., 59 N.Y. 644; Purvis v. Coleman, 21 id. 111; Seymour v. Matteson, 42 How. Pr. 496.) There is no inflexible rule which requires third persons, at all times and under all circumstances, to learn the exact authority delegated to the agent, and the rules applicable to natural persons and to corporations are substantially the same. (Morawetz on Corp. § § 575, 587; Angel & Ames on Corp. § 238; Bank of Kentucky v. S. Bank, 1 Pars. S. C. 251; 1 Add. on Cont. 148; M. Bank v. S. Bank, 10 Wall. 664; Lee v. P. C. & M. Co., 56 How. Pr. 373; 75 N.Y. 601; F. & M. Bank v. B. & D. Bank, 16 id. 125; E. S. Co. v. E. L. Co., 4 N.Y. S. R. 515; Corning v. Walker, 14 Wkly. Dig. 314; Leslie v. K. Ins. Co., 63 N.Y. 27; Dunn v. S. F. Ins. Co., 19 Wkly. Dig. 531; Bank of Batavia v. N.Y. L. E. & W. R. R. Co., 106 N.Y. 195; Martin v. Webb, 110 U.S. 7.) The by-laws of a corporation are not binding upon third persons dealing with its agent, unless they have notice of the by-laws. (Morawetz on Corp. § 593; Lee v. P. C. & M. Co., 56 How. Pr. 373; M. Bank v. S. Bank, 10 Wall. 604; Wild v. Bank of Passamoquoddy, 3 Mason, 506; S. L. Ins. Co. v. McCain, 96 U.S. 84; Byrne v. M. P. Co., 137 Mass. 313; Banks v. Ernest, 35 Kan. 687; Fay v. Noble, 12 Cush. 1; M. Bank v. B. C. Co., 5 N.Y. Supp. 291; Smith v. Smith, 62 Ill. 493; Bank v. Patterson, 7 Cranch. 299; Dunn v. Rector, etc., 14 Johns. 118; M. Bank v. Smith, 19 id. 115; A. Ins. Co. v. Oakley, 9 Paige, 496; U. M. L. Ins. Co. v. White, 106 Ill. 67; Alexander v. Cauldwell, 83 N.Y. 480; Morawetz on

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Corp. § 577; P., etc., R. R. Co. v. Quigley, 21 How. [U. S.] 202; N.Y. & N. H. R. R. Co. v. Schuyler, 34 N.Y. 87; Ruggles v. A. C. Ins. Co., 114 id. 415; Walsh v. H. F. Ins. Co., 73 id. 5.) Kingman received from the trustees a delegation of all the authority that can be implied in the terms 'superintendent and resident manager of the company.' His duties are not defined by the by-laws, and he is presumed to be clothed with all the authority which, according to general customs, is given to agents of that class. (Morawetz on Corp. § 593; Cox v. A. B. Co., 56 Hun, 491.) The evidence of Kingman and the other officers of the company, objected to on the trial and excluded by the trial judge, is competent to establish Kingman's authority in the premises, and its exclusion was error. ( Hoag v. Lamont, 60 N.Y. 101; Abbott's Tr. Ev. 43; F. N. Bank v. Stewart, 114 U.S. 224; Livingston v. Swanwick, 2 Dall. 300.)

Joseph M. Pray for respondent. The statute under which this action is brought is penal, and must be construed as such upon any question arising in an action to enforce it. Under penal acts the ordinary laws of principal and agent do not apply. ( Schreiber v. Sharply, 6 Fed. Rep. 175; Sanborn v. Lefferts, 58 N.Y. 179; Garrison v. Howe, 17 id. 458; Bonnell v. Griswold, 80 id. 128; Bruce v. Platt, Id . 379-381.) There was no existing debt of the corporation to the plaintiff at any time. ( Alexander v. Cauldwell, 83 N.Y. 480; Risley v. T. B. & C. R. Co., 1 Hun, 202-205; South. & Jones on Mfg. Corp. § 22; Laws of 1848, chap. 40, § 7; Kent v. Quicksilver Co., 78 N.Y. 159; Brick Church v. Mayor, 5 Cow. 539-541; Stuyvesant Case, 7 id. 694; Westerfield v. Radde, 7 Daly, 326; 5 N.Y. 320; Adriance v. Rome, 51 Barb. 309; 4 Abb. Ct. App. Dec. 315-320; Benninghkoff v. A. Ins. Co., 93 N.Y. 495.) The corporation was not required to file an annual report. ( Kirkland v. Kille, 99 N.Y. 390; Bruce v. Platt, 80 id. 379.) This court will not review any question of fact arising upon conflicting evidence. (Code Civ. Pro. § 1337; Rutherford v. Schakman, 93 N.Y. 495.)

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ANDREWS, J.

This case presents a somewhat novel question in the law of agency. The action is to recover from the defendant the amount of an alleged debt against the Belen Agricultural and Mining Company, a corporation in this state organized under chapter 40 of the Laws of 1848, and the amendments thereto, for supplies furnished by the plaintiff at Colon in the United States of Columbia in the year 1883, on the order of one Kingman, for the use of a mining camp at Veraguas in the state of Panama. The defendant, who is one of the trustees of the company, is sought to be made liable for the debt because of the failure of the company to file a report as required by the act. The certificate of incorporation of the company was filed in May, 1882, and it sets forth that the company was formed for conducting and carrying on the business of agriculture and mining, the development of agricultural and mining lands, the purchase, sale and leasing of land, mining property and machinery, and the milling, reduction, shipment and sale of ores; that some part of its business was to be carried on in Veraguas in the state of Panama and other places in said state,...

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