Weber v. Bridgman

• Decision Date: 04 June 1889
• Citation: 21 N.E. 985,113 N.Y. 600
• Parties: WEBER v. BRIDGMAN et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 600

21 N.E. 985

WEBER

v.BRIDGMAN et al.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Second department.

The action was for the foreclosure of a mortgage executed by James Dunn to Thomas Bierds, conveying premises situated on Carlton avenue, Brooklyn, as security for the payment of his bond of $2,000, dated May 9, 1872. It was assigned to Paul Weber. He died intestate. On the 4th of June, 1874, the plaintiff, Louisa Weber, his widow, was appointed administratrix of his estate, and on July 1, 1886, commenced this action. James Dunn was made defendant, but did not appear. The other defendants were made parties as having an interest in the premises subsequent to the lien of the mortgage. Adams answered. He alleged that on the application of one Herbert Bridgman he loaned him, April 19, 1880, and February 21, 1884, certain sums of moneys on his bond, secured by mortgages of those dates on the premises described in the complaintiff; that at the time of each transaction Bridgman was the lawful owner of the property in fee-simple. The defendant Bridgman claims to be the owner of the premises. Both the defendants aver that the mortgage in suit was paid to the then holder, and duly satisfied of record May 13, 1874. The trial judge found in favor of the plaintiff, and directed the usual judgment of foreclosure and sale. The general term, upon the defendants' appeal, reversed the judgment ‘upon questions of fact and questions of law.’ The question of fact litigated upon the trial arose upon the defense of payment. It appeared to the satisfaction of the trial judge that Paul Weber, then residing in New York, but about to visit Europe with his wife and family, did, on June 6, 1871, execute to one August Hartwig a power of attorney, under seal, authorizing him, in these words, ‘to demand, ask, sue for, collect, and receive all sums of money, debts, rents, dues, accounts, interest on bond and mortgage, and other demands of every kind, nature, and description whatsoever, which are or may become due, owing, or payable to me from any person or persons whomsoever, and to give good and sufficient receipts, acquittances, and discharge therefor, giving and granting unto my said attorney full power to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do, or cause to be done, by virtue hereof.’ Weber acknowledged this instrument so as to entitle it to be recorded. He remained absent from New York, and died in Germany January 11, 1874. During his absence Hartwig bought for him the bond and mortgage in question, taking an assignment to Paul Weber, and after record held possession of said bond, mortgage, and assignment until May 12, 1874. He collected and receipted for, in Paul Weber's name, the semi-annual interest as follows: October 9, 1872, of James and Bridget Dunn, the then owners, $70; June 9, 1873, of James and Bridget Dunn, the then owners, $70; December 2, 1873, of James and Bridget Dunn, the then owners, $70; and indorsed the same on the bond. On April 23, 1874, Bridgman acquired title to the premises, and assumed payment of the mortgage. It became due May 9, 1874, and was paid by him to Hartwig, May 12, 1874, and a discharge was given by Hartwig as attorney for Weber. At the same time, the bond and mortgage, the assignment to Weber, and the power of attorney were delivered to Bridgman. Hartwig, during all his transactions, knew of the death of Weber, having been informed of it as early as the 1st of February, 1874, but he did not disclose that fact to Bridgman. But the trial judge also finds that Bridgman made no inquiry ‘as to the whereabouts of the principal, Paul Weber, or whether he was dead or alive.’ Mrs. Weber returned from Europe on the 22d or 24th of May. The trial judge also found that Hartwig never accounted to the plaintiff for the bond and mortgage, or its proceeds, nor for the assets in his hands, nor did he pay her any money; that plaintiff never ratified the act of Hartwig in canceling said mortgage; that she had no notice of the existence of said bond and mortgage, or the cancellation thereof, and never knew of the cancellation until within a short time before the commencement of this action; that said Hartwig left no record of it, nor ever informed plaintiff of its existence or cancellation; that said mortgage is wholly unpaid, and remains unimpaired as a valid and subsisting lien by reason of any act of the plaintiff or her duly-authorized agent. As a conclusion of law he held that the agency of Hartwig terminated with the life of Paul Weber, and that the satisfaction of the mortgage was invalid and void.

Alex. S. Bacon, for appellant.

Thos. H. Rodman, for respondents.

DANFORTH, J., ( after stating the facts as above.)

It should be assumed, without argument, that the plaintiff is not bound by the act of Hartwig, unless his authority to receive the money and discharge the mortgage is established, or unless she has, with knowledge of the facts, recognized that transaction and adopted it. The respondents' contention is that both alternatives are established, viz., that the payment to Hartwig was a valid payment, and also that Hartwig accounted with the plaintiff, and paid over to her the money so received by him. As Bridgman dealt with Hartwig as an agent, and now seeks to charge the representative of Weber as if his dealing had been with the principal, the burden of proof was on him to show that the agency existed; second, that the agent with whom he dealt had the authority he assumed to exercise; or, third, that the plaintiff is estopped from disputing it. That an agency of some kind did at one time exist in favor of Hartwig was sufficiently manifested by the power of attorney, and proof of its due execution and delivery by Weber. If it be conceded that the act in question was within the authority which Hartwig once had, it would not aid the defendant, for that authority was determined by the death of Weber before the act was performed; and, although Bridgman had no notice of his death, the act was void, and the estate of the principal is not bound.

The question is not new, and it has been uniformly answered by our decisions to the effect that the death of the principal puts an end to the agency, and therefore is an instantaneous and unqualified revocation of the authority of the agent. 2 Kent, Comm. 646; Hunt v. Rousmanier, 8 Wheat. 174. There can be no agent where there is no principal. There are no doubt exceptions to the rule, as where the agency is coupled with an interest, (Knapp v. Alvord, 10 Paige, 205; Hunt v. Rousmanier, supra; Hess v. Rau, 95 N. Y. 359;) or where the principal was a firm, and only one of its members died, (Bank v. Vanderhorst, 32 N. Y. 553;) but both cases recognize the general rule to be as above stated. In ...