Belcher v. Manchester Bldg. & Loan Ass'n

• Decision Date: 17 June 1907
• Citation: 74 N.J.L. 833,67 A. 399
• Parties: BELCHER v. MANCHESTER BLDG. & LOAN ASS'N.
• Court: New Jersey Supreme Court

67 A. 399

74 N.J.L. 833

BELCHER

v. MANCHESTER BLDG. & LOAN ASS'N.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Passaic County.

Action by Amherst W. Belcher against the Manchester Building & Loan Association. Judgment for plaintiff, and defendant brings error. Affirmed.

This was an action upon contract brought in the Passaic circuit court by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. The declaration contained the common counts, and annexed thereto was a notice (in substance) that this action is brought to recover the amount due to the plaintiff from the defendant for the value of 20 shares of the stock of the defendant corporation belonging to the plaintiff, and which the defendant has wrongfully refused to pay to the plaintiff, $800 of such value having been unlawfully withdrawn from the said shares by the defendant about March 26, 1900, and $993.94, the residue of such values having been unlawfully withdrawn, as aforesaid, about November 15, 1902, and the said shares of stock thereupon canceled. The defendant filed a plea of the general issue. The action came on for trial before a circuit judge and a jury, and the evidence showed the matters following:

The plaintiff, a resident of Kingston, N. Y., became in January of the year 1896 a member of the defendant association, to the extent of 20 shares. The plaintiff had requested his brother, William H. Belcher, to make this investment for him. The brother was at the time and thereafter president of the association; but the plaintiff was not influenced by that fact (if he was aware of it), and did not deal with his brother in his official capacity. An account was opened with the plaintiff in the association's ledger, and a passbook, No. 449, was made out in his name. The passbook was handed to the brother, and the plaintiff permitted him thereafter to retain it, and never asked for it or for any other papers. Apart from the book, it did not appear that there was any certificate of ownership of the shares. The passbook was not produced at the trial, having been destroyed in the great fire of 1902; but it was intended to show and did show the number of shares held by the plaintiff, the payments made thereon, in virtue of his membership, and what he was entitled to in respect of the shares. The plaintiff gave his brother different sums at different times for the purpose of paying the dues upon the shares, and continued so to do until some time in the year 1902. After this he supposed that the interest of other investments, made or to be made for him by his brother, was sufficient for such dues, and was applied thereto. Under this supposition he rested until August in the year 1905, and did not at any time personally withdraw any part of the value of his shares, or receive any part thereof by way of loan. The disappearance of William H. Belcher from the city of Paterson, about the 1st of August, 1905, led the plaintiff to inquire about his shares in the association. He then learned the situation as revealed by the association's books, and by it set up, to wit, that, except during a period of three months, the plaintiff's dues had been regularly paid from the time of the subscription until June in the year 1902, at which time the value of the shares, subject to a loan, was $1,845.60. In the month of July, 1902, the ledger account with the plaintiff was closed, and marked, "Withdrawn, July, 1902," and subsequently, "ck. [check] No. 1927." In March of the year 1900 it appeared that the association had drawn its check, No. 1442, for the payment of $800 "to the order of A. W. Belcher," and this was paid at the bank, with the subsequent acquiescence of the association, upon the indorsement, "A. W. Belcher, W. H. Belcher, Atty."; and in November of the year 1902 it further appeared that the association had drawn its check, No. 1927, for the payment of $993.94 "to the order of A. W. Belcher," and this was paid by the bank, with a like acquiescence, upon the indorsements, "A. W. Belcher, W. H. Belcher, Atty. W. H. Belcher." At the respective times when the checks were drawn, the plaintiff's contract warranted the withdrawal of the sums specified in the checks—the first as a loan; the second in extinguishment of the shares. The directions for the withdrawing of the moneys and the issuing of the checks were given by W. H. Belcher solely; he having possession of the passbook until its destruction or surrender. The plaintiff denied that he had given to his brother any power or authority to withdraw any moneys due upon the shares or to indorse the checks. The plaintiff made a demand upon the association, before action brought, for the value of the shares. This was admitted.

At the close of the testimony the counsel of the association contended that it was its right to go to the jury on the question whether or not, from all the circumstances of the case, there was actual authority given to W. H. Belcher to withdraw the plaintiff's money. This contention was denied by the trial judge, and an exception was sealed. The counsel of the plaintiff then moved for the direction of a verdict in his favor; and upon consideration the judge allowed the motion. To this ruling an exception was also prayed and sealed. In accordance with the direction of the court a verdict was found for the plaintiff, and judgment was entered thereon in the circuit court. Whereupon the defendant below sued out a writ of error, and assigns for error the adverse rulings of the court above mentioned.

J. W. De Yoe and Griggs & Harding, for plaintiff in error. John H. Reynolds and H. H. Fleming, for defendant in error.

GREEN, J. (after making the foregoing statement of facts). This action was brought to recover the withdrawal value of 20 shares in the defendant association, which was incorporated under "An act to encourage the establishment of mutual loan, homestead and building associations" (1 Gen. St. p. 331), and the defense interposed was that the money had already been withdrawn by the plaintiff's agent in that behalf.

1. The trial court refused to permit the jury to determine whether William H. Belcher had authority, as agent, to withdraw the value of the plaintiff's shares in the manner and form in which it was drawn. A universal agency, being a thing extremely rare, may be dismissed from present consideration, and agency may be said to be either general or special. The former relation arises where one is authorized to transact all business of another of a particular kind, the latter where one is authorized to act in a single transaction only. See Mechem on Agency, §§ 1, 283; Evans on Agency (Ewell's Ed.) *2, *101, *102; Story on Agency (8th Ed.) § 17. There was some...