Nelligan v. Campbell

Hardin, P. J. If the action is to be regarded as one founded upon an implied guaranty on the part of the defendant to execute the contract, or an action for rent due, we think, with the laxity allowed in justice’s court in respect to the pleadings, the complaint must be deemed sufficient. We think Bartholomae v. Kauffmann, 47 N. Y. Super. Ct. 553, sustains the plaintiff’s • right to recovery. That was an action to recover the rent covenanted to be paid by a certain lease between the plaintiffs as lessors and “the trustees of the German-Amerlcan Institute” as lessees, and signed and sealed by the defendant “for the board of trustees, by S. Kauffmann, treasurer.” On the trial it appeared that the organization was a mere voluntary association, and that Kauffmann had “no authority to bind his associates.” A verdict was rendered against the defendant Kauffmann, and it was said by the general term “that the defendant Kauffmann having executed the lease as treasurer, without authority from the other defendants as patrons of the school, some of whose children had attended it, and there being no trustees, in fact, and only a mere voluntary association, by such execution of the lease he became liable. ” The case was taken to the court of appeals, and was affirmed, as appears in 91 N. Y. 654. An abstract of the opinion delivered in the court of appeals by Danforth, J„ appears in 16 Wkly. Dig. 127, and it was held “that K. was not screened by the epithets used, and, when they were shown to be shams, he remained the contracting party, and, as such, personally liable for the obligation expressed in the lease; that is, he impliedly, if not expressly, undertook that the authority he professed to have did, in fact, exist, and, as it did not, he was also liable on that ground. Leake, Cont. 511.” (The case was decided in January, 1883.) In Simmonds v. Moses, 2 N. E. Rep. 640, (decided by the court of appeals, October, 1885,) it was held: “A contract made by an agent, in excess of his authority from his principal, binds the agent personally; and this is so, notwithstanding the agent acts in good faith, supposing that he is within the terms of the instructions received from his principal.” In that case it was said: “The plaintiffs have no cause of action against the principals, for the order they executed was not their order. Hence it was given by the defendants in excess of authority, and there seems no reason why they should not make good all damages which the plaintiffs sustained in consequence of their belief that the authority assumed did in fact exist. Baltzen v. Nicolay, 53 N. Y. 467. ” In that case the contract was in writing, “and was, moreover, sufficient in form to satisfy the statute of frauds. The defendants are held liable because they had no authority to make it, and hence, though sufficient in form, it cannot be enforced against the apparent principals.” Ho question was raised in the court below that the agreement, if executed by the brewing company, would not have been valid. Ho evidence was given upon the trial from which we can infer or assume that the contract was illegal or ultra vires. In Whitney Arms Co. v. Barlow, 63 N. Y. 63, it was held that “the plea of ultra vires, as a general rule, will not prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong.” Raft Co. v. Roach, 97 N. Y. 378. We think it was found as a mátter of fact in the justice court that the defendant impliedly warranted that he had authority to execute the guaranty, whereas, in fact, as the evidence revealed, he bad no such authority; and that the evidence justified the judgment given to the plaintiff by the justice court, and was properly affirmed by the county court. Burnham v. Butler, 31 N. Y. 480. Judgment of the county court of Onondaga county and that of the justice’s court affirmed, with costs. All concur.