26 N.Y. 117, White v. Madison

Citation26 N.Y. 117
Party NameWHITE, Receiver, & c., v. MADISON
Case DateDecember 01, 1862
CourtNew York Court of Appeals

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26 N.Y. 117

WHITE, Receiver, & c.,



New York Court of Appeal

December 1, 1862

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John Wait, for the appellant.

Henry R. Mygatt, for the respondent.


It was proved on the trial in this case that the defendant, on the trial of the former action against the sheriff, testified that he had no authority from the sheriff to execute in his name the note mentioned in the complaint, unless that authority was within his general powers as a deputy of the sheriff; and the counsel on both sides have assumed that he had, as deputy, no such authority. It seems also to have been assumed that the sheriff had no power to insure, in his official capacity, the goods attached, and that consequently the deputy could not insure them in his name. The question of power on the part of the deputy to execute the note in the name of the sheriff does not depend upon that position. If the deputy had power to insure in the name of the sheriff, he could not, in effecting such insurance, subject the sheriff to the hazards of that most unsafe of partnerships--a mutual insurance company. He may have had power to insure the sheriff's goods, without having power to make him the insurer of other people's goods. The latter power was attempted to be exercised when he made the note in question, and this was undoubtedly beyond his general authority.

The defendant, having executed the note in the name of Snow, without authority, would be held liable, according to several decisions in this State, as the maker of the note.

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( Dusenbury v. Ellis, 3 John. Cases, 70; White v. Skinner, 13 John., 307; Feeter v. Heath, 11 Wend., 487; Rossiter v. Rossiter, 8 Id., 494; Meech v. Smith, 7 Id., 315; Palmer v. Stephens, 1 Denio, 480; Plumb v. Milk, 19 Barb., 74.) The authority of these cases has been somewhat shaken by the remarks of the judges who delivered opinions in the case of Walker v. The Bank of The State of New York (5 Seld., 582); and in England, as well as in several of the United States, the principle upon which they rest, if they are supposed to present the only ground of liability of the agent, has been substantially repudiated. ( Collen v. Wright, 40 Eng. L. & Eq., 182; Randell v. Trimen, 37 Id., 275; Lewis v. Nicholson, 12 Id., 430; Smout v. Ilbery, 10 M. & W., 1; Polhill v. Walter, 3 B. & Ad., 114; Jenkins v. Hutchinson, 13 Ad. & Ellis, N. S., 744; Long v. Colburn, 11 Mass., 96; Ballou v. Talbot, 16 Id., 461; Jefts v. York, 4 Cush., 371; S. C., 10 Id., 392; Abbey v. Chase, 6 Id., 54; Stetson v. Patter, 2 Greenl., 359; Bank v. Flanders, 4 N. H., 239; Woodes v. Dennett, 9 Id., 55; Johnson v. Smith, 21 Conn., 627; Ogdon v. Raymond, 22 Id., 379; Taylor v. Shelton, 30 Id., 122; Hopkins v. Mehaffy, 11 S. & R., 126; 2 Smith's Leading Cases, 222; Story on Agency, § 264, a, and note 1.)

If it were necessary, in disposing of the present case, to decide the question, whether, as a general principle, one entering into a contract in the name of another, without authority, is to be himself holden as a party to the contract, I should hesitate to affirm such a principle. By that rule courts would often make contracts for parties which neither intended nor would have consented to make. The contract, if binding upon one party, must be binding upon both; and where burdensome conditions precedent were to be performed by the party contracting with the assumed agent, before performance could be demanded of the other party; or where the agent should undertake to sell, lease or mortgage the property of the assumed principal, or where credit should be given, which the responsibility of the agent would not justify, great injustice might result from such a rule. In those cases, and I think in

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all cases, where one, pretending to be an agent, has contracted as such without authority from the principal, the party contracted with, on learning the facts, must have the right to repudiate the contract, and to hold the assumed agent immediately responsible for damages, without waiting for the time when an action might be maintained on the contract itself; and the damages must be measured, not by the contract, but by the injury resulting from the agent's want of power. Whenever a person enters into a contract as agent for another, he warrants his own authority, unless very special circumstances, or express agreement, relieve him from that responsibility. ( Smout v. Ilbery, 10 M. & W., 9, 10; Polhill v. Walter, 3 B. & Ad., 114; Jenkins v. Hutchinson, 13 Ad. & Ellis, N. S., 744; Jefts v. York, 10 Cush., 395; 5 Seld., 585; Story on Agency, § 164.)An action upon such warranty must always be appropriate where personal liability attaches to an agent, in consequence of his contracting without authority. In such action the plaintiff would be relieved from the necessity of showing performance of conditions precedent, and from the delay which the terms of the contract might require, if the remedy were limited to an action on the contract; and if special damages should be incurred in consequence of the agent's failure to bind his principal, such as the costs of an unsuccessful action against the principal to enforce the contract, they might be recovered. If the act of the agent were fraudulent, an action for the deceit would lie, but it would be a concurrent remedy with an action on the warranty, and so I apprehend must be the action on the contract itself, if the cases which sustain such action are to be regarded as correctly decided. In Dusenbury v. Ellis (3 John. Cases, 70), the leading case in this State sustaining such an action, it does not appear what time the note executed by the assumed agent had to run at the time when it was given. Supposing it to have been given payable at a very distant day, was the holder, after discovering that Dusenbury had no authority from Sharpe (the...

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