Sword v. Reformed Congregation Keneseth Israel

• Decision Date: 11 December 1905
• Docket Number: 142-1905
• Citation: 29 Pa.Super. 626
• Parties: Sword v. Reformed Congregation Keneseth Israel, Appellant
• Court: Pennsylvania Superior Court

29 Pa.Super. 626

Sword v. Reformed Congregation Keneseth Israel, Appellant

No. 142-1905

Superior Court of Pennsylvania

December 11, 1905

Argued October 10, 1905

Appeal by defendant, from judgment of C.P. No. 5, Phila. Co.-1901 No. 2537, on verdict for plaintiff in case of James B. Sword v. Reformed Congregation Keneseth Israel.

Assumpsit to recover the price of a painting. Before Ralston, J.

The facts are stated in the opinion of the Superior Court.

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $ 502.25. Defendant appealed.

Error assigned among others was refusal of binding instructions.

Reversed.

Harry E. Kohn, for appellant. -- A ratification to be efficacious must be made by a party who had power to do the act in the first place: Market Co. v. Jackson, 102 Pa. 269; Zoebisch v. Rauch, 133 Pa. 532; Moore v. Patterson, 28 Pa. 505; Copeland v. Tannery Co., 142 Pa. 446; Wheeler v. Sleigh Co., 39 F. 347; Hood v. Hood, 2 Grant, 229.

The case of Allegheny County Workhouse v. Moore, 95 Pa. 408, not only governs the case at bar, but goes lengths further than this court is now asked to go. To the same effect are the following cases, and many others which it would be superfluous to cite: Railway Co. v. Christian, 124 Pa. 114; Giberson v. Mills Co., 174 Pa. 369; Stoystown, etc., Turnpike Road Co. v. Craver, 45 Pa. 386; Railroad Co. v. Books, 57 Pa. 339; Railroad Co. v. Plank Road Co., 71 Pa. 350; Bank v. McKee, 2 Pa. 318; Investment Co. v. Eldridge, 175 Pa. 287; Weldon v. Traction Co., 27 Pa.Super. 257.

H. K. Fries, for appellee. -- Appellant contends that there must be actual knowledge of the agent's act shown in order to render ratification efficacious.

It is submitted that in this case knowledge was brought home to the defendant corporation.

First, by the delivery of the portrait, which fact spoke for itself, and of which the corporation and its officers could not have been ignorant; and, in fact, they testified that it was there. Second, notice of the sale was explicitly given to the succeeding president: Steamboat Co. v. McCutcheon, 13 Pa. 13; Com. v. R. R. Co., 2 Phila. 250; Dallas v. Columbia Iron & Steel Co., 158 Pa. 444; Goldbeck v. Bank, 147 Pa. 267; Wagner v. Peterson, 83 Pa. 238; Bergner v. Thompson, 74 Pa. 168; Watson v. Lukins, 126 Pa. 630; Ritchie Co. v. Albion Mfg. Co., 173 Pa. 447; Imbrie v. Ins. Co., 178 Pa. 6; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Harrisburg Bank v. Tyler, 3 W. & S. 373; Millward-Cliff Cracker Co.'s Est., 161 Pa. 157; First Nat. Bank v. Peisert, 2 Penny. 277; Oil Creek, etc., R. R. Co. v. Pa. Trans. Co., 83 Pa. 160; Boyd v. American Carbon Black Co., 182 Pa. 206; Manhattan Hardware Co. v. Phalen, 128 Pa. 110; Market Co. v. Jackson, 102 Pa. 269; Zoebisch v. Rauch, 133 Pa. 532; Moore v. Patterson, 28 Pa. 505; Supervisors v. Schenck, 72 U.S. 772; Wheeler v. Sleigh Co., 30 F. 347.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

OPINION

HENDERSON, J.

The defendant is a religious corporation. The plaintiff's claim is for a portrait alleged to have been bought by its president. The constitution and by-laws of the corporation provide that " the Board of Trustees shall have the entire charge, management and control of the Congregation's affairs and property . . . . They shall have power to make all necessary repairs and purchases provided the cost of the same do not, in any one case, exceed $ 250." The president is empowered to preside at all meetings of the congregation and of the board of trustees; to sign all orders drawn on the treasurer duly authorized by the board; to have charge of all title deeds, books, papers, etc., not intrusted to other officers; to appoint all committees not otherwise constituted; to be, ex officio, a member of such committees, but without the right to vote; he is prohibited from voting at meetings of the congregation or the board of trustees except at elections for officers or in a case of a tie at meetings where he is presiding. The court instructed the jury that the president of a religious corporation has no authority to bind the corporation except for the usual purposes of the church; that the purchase of portraits was not within the scope of his authority; and that if the president made the contract without any authority of the board of trustees, and they never knew he made it and never ratified it and never accepted it, the plaintiff would not be entitled to recover. No authority in the president to bind the corporation was shown and the case was submitted to the jury on the question of ratification.

The defendant's second point (fifth assignment) requested the court to give binding instructions for the defendant under all the evidence. The question for our consideration under this assignment is whether there is any evidence of ratification. The plaintiff alleged that the portrait was sold in January, 1898, to Mr. Lewin, then president of the defendant corporation. Mr. Lewin died soon after and Mr Mertz was elected president. The facts relied on to establish a ratification of Mr. Lewin's act are that after Mr. Mertz became president, the plaintiff had a conversation with him with reference to the purchase of the portrait and payment therefor in which Mr. Mertz said that he knew all about the arrangements that were made, and the further fact that the portrait was hung in a reception room in the synagogue of the defendant. It appeared from the evidence that after the portrait was painted it was hung there for exhibition from the spring of 1896 until the spring of 1897, or about that time, by the artist and owner and for his accommodation. It was afterwards taken to Nashville, Tennessee, to be exhibited, and returned to the plaintiff who again hung it in the same place in the synagogue where it had theretofore been. The return of the portrait to the synagogue, as claimed by the plaintiff, was in pursuance of the contract with Mr. Lewin. The only competent evidence of ratification seems to have been the presence of the portrait in the synagogue after its return from Tennessee. In view of the admitted fact, however, that it had been in the same place for about a year not long before the time of the alleged sale, without any contract or agreement for its purchase and without any obligation on the part of the defendant...