Malerba v. Friars Minor of the Order of St. Francis

Smith, J.: The plaintiff, an artist, sues the defendant, a religious corporation, to recover damages for the breach by defendant of a contract whereunder plaintiff was to paint and decorate the interior of the Church of St. Anthony, located at 154 Sullivan street, in the borough of Manhattan, New York city, and owned by the defendant corporation. Plaintiff claims to have made this contract with one Ferdinando Parri, the president of the defendant corporation, provided a miniature or model of the interior of the church as same would appear after the completion of the work, was submitted by plaintiff to, and found satisfactory and accepted by the defendant; that said model was prepared and furnished by plaintiff to, and accepted and approved by the defendant, but that nevertheless the defendant refused to allow plaintiff to perform his contract. It appears from the testimony of Father Parri that at the date of the trial.and also at the time of the making of the alleged contract he was the president and treasurer of the defendant corporation, and that the only other officer was the secretary, whose sole duty was to keep the minutes of meetings; that he (Father Parri) personally conducted the business of the defendant and had authority to incur ordinary expenses, calling a meeting of the trustees only when he considered any matter sufficiently important to have them pass upon it; that he was fully conversant with the extent of his authority, and never exceeded it; that when the plaintiff discussed with him the decorating of the church, he did not disclaim authority to engage him to do the work, nor did he refer him to any one else as having such authority; that all the correspondence between the parties on the subject was had with him, and that he called at the plaintiff’s home in company with the pastor of the church for the purpose of examining the sketches that plaintiff was preparing. The pastor of the church testified that on the occasion of this visit Father Parri told the plaintiff to complete and present the sketches. It further appears from the evidence that a contract for the [443] decoration of this church was subsequently made with another party, who testified that he negotiated the same with the pastor of the church in conjunction with Father Parri. The work under that contract was performed and paid for, and there is no claim that that contract was approved or ratified by the board of trustees. It also appears that Father Parri made a contract for the building of a day nursery adjoining the same church. He claims this was done upon the authorization of the board of trustees, but such authorization did not appear in the minute book produced in court and conceded to be the only minute book of the corporation, and no other proof was submitted of any such authorization. The board of trustees apparently met but once a year, and it does not appear that they transacted any detail business at all. The trial court refused to allow plaintiff to submit proof of the conversation had by him with Father Parri which he claims resulted in the making of the alleged contract, and dismissed the complaint upon the ground that plaintiff had failed to show any authority in Father Parri to make a contract binding upon the defendant. We are of opinion that this was error, and that on the facts recited above, proof of the making of the contract should have been received, and the question whether the president of the defendant had in fact authority to bind the defendant, submitted to the jury. The plaintiff adduced evidence of some authority in Father Parri to contract on behalf of the defendant corporation. The building was owned by the defendant, of which Father Parri was president. The authority of Father Parri and his powers were facts peculiarly within the knowledge of the defendant, and, therefore, slight evidence only on the part of the plaintiff of such authority was necessary to call on the defendant to establish the absence of authority in its president to make the contract in question. (Nutting v. Kings County Elevated R. Co., 21 App. Div. 72, 77.) What general or special powers were by the board of trustees of the corporation expressly conferred upon its duly elected president and executive, in the absence of positive evidence, can be determined only by inferences from facts proven, aided by the presumption that, as the chief executive officer of the corporation, he must have been clothed with some powers and [444] duties which, of necessity, pertained to those positions. (Lee v. Pittsburgh Coal & Mining Co., 56 How. Pr. 373.) The judgment appealed from should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event. Scott and Davis, JJ., concurred; Laughlin and Page, JJ., dissented.