Whitford v. Laidler

Learned, P. J.: This action is on a sealed contract of lease. The plaintiff is the party of the first part. The defendants parties of the second part. In the lease the defendants are severally described as president, vice-presidents, secretary, treasurer and directors; “ being the Board of Managers of the Garrattsville Agricultural Society and Farmer’s Club.” This society and club was an association, not shown to have been incorporated. Of the thirteen persons named in the lease as parties of the second part, the lease is signed and sealed by only seven. The lease is to the parties of the second part and their successors in office, and is for the term of ten yeai’s. The first point made by the defendants is that, on its face, the contract was with the association and not with the defendants individually. The defendants cited Hood v. Hallenbeck (14 Sup. C. N. Y., 362). The distinctions between that case and the present are several. That was an action on a promissory note, signed by five persons, describing themselves as trustees of St. Johns Lutheran Church. That church was a corporate body, and its corporate seal [140] was affixed. Whatever might have been the presumption of law in that case, it was proved, as a fact, that the note was given for a previous indebtedness of the corporation. The case of Bellinger v. Bentley (8 Sup. C. N. Y., 562), was an action on an unsealed contract, made in the name of trustees of a cheese manufacturing company — a corporation. Proof was given ■of the authority of the trustees and of the plaintiff’s knowledge that the trustees were contracting not for themselves. But, without examining other and early authorities,- it seems to us that recent decisions of the Court of Appeals have settled this ■question. In Kiersted v. O. and A. R. R. Co. (69 N. Y., 343) the plaintiffs, as lessors, and Smith, as lessee, executed -a lease under seal. The lease recited that Smith was the general agent for a certain route comprising the following railroads, naming the defendants. This fact also appeared extrinsically; and it also appeared that Smith had authority to negotiate for a lease for an office for their business, and that he occupied the premises for the purposes of his agency. The court said that the lease was signed and sealed in his individual capacity; that the form of the lease made him lessee; that the covenants could only be enforced against the party who on the face of the lease appeared to be covenantor, although in fact he acted for another. The court cite with approval Briggs v. Partridge (64 N. Y., 357) and the old ease of Taft v. Brewster (9 Johns., 334). In that case a bond, signed by persons describing themselves as trustees of a certain Baptist society, was held to be their individual bond. And, also, the case of Stone v. Wood (7 Cow., 452), where a charter party between Stone of the one part and Wood, as agent of J. & R. Raymond,” signed and sealed by said Stone and said Wood, was held to be the contract of Wood. Also the case of Guyon v. lewis (7 Wend., 26), which is very similar. These old cases are, therefore, approved in that recent case, notwithstanding that the doctrine as to instruments not under seal has probably been modified in the point under consideration. The case of Randall v. Van Vechten (19 Johns., 60), and similar cases, are explained in Briggs v. Partridge {ut supra) to be based on this principle, that where the sealed contract is, in form and in law, the agent’s, but the principal’s interest appears on the face and he has ratified it by acts in pais, and the contract would have been valid [141] without a seal, the principal may he liable in assumpsit on the promise contained in the instrument. Evidently that principle does not apply here. The question is here, not whether, under some possible proof, the association might not have been made liable, but whether, on the face of the contract, the signors are not liable themselves prima facie. But, again, the learned judge did not hold that the contract was conclusive as to the defendant’s liability. After stating that, on its face, it was their contract, he submitted the question to the jury, on proof of the circumstances attending its execution, whether the parties executed it supposing it to be the contract of the association, and he charged that if they did so the defendants were not liable. The jury found for the plaintiff and, therefore, we have the fact that the parties, plaintiff and defendant, executed this contract, understanding that it bound the defendants individually. On such a finding the defendants would be liable, even if the contract had been unsealed. Next, it was urged that the contract was executed upon a condition that it was not to be valid or operative until it should be signed by the other parties, whose names appear in the instrument, and that it was to be delivered to Kellogg, to be held by him until so signed, and then deposited in the town clerk’s office. This question the learned judge submitted to the jury on conflicting evidence. He further charged that if the contract was executed on these conditions, that the defendants might, if they chose, subsequently waive these conditions; and he submitted to the jury the question whether or not they did waive the same. And on this point he charged that the defendants, having the contract in the hands of one of their number, holding it as their agent, would be charged with knowledge whether or not the condition was complied with; and if they went on and acted under the contract, and allowed plaintiff to do the same, and supposed that the conditions had been waived or complied with, understanding it was their individual contract, then it was a waiver of the conditions. The defendant excepted to the charge that Kellogg, as agent, held the contract, and that defendants were chargeable with knowledge of it. Kellogg, in the lease, is called secretary of the association. The plaintiff had signed the lease, and according to the evidence, the object of leaving it with [142] Kellogg was that he should procure the signatures of the others. He did subsequently procure the signature of Elliott, and he still continued to retain the lease. We see no error in the language of the learned judge. Kellogg was one of the lessees. His possession of the lease was for the lessees ; even if it was under the conditions above stated. And we do not see why (if the lease was delivered on the conditions alleged) the defendants were not chargeable with knowledge whether or not the conditions had been complied with. This lease was dated February, 1872. The plaintiff subsequently built the fence as he had agreed. The association held its fair on the grounds in 1872, 1873,1874 and 1875. They received rent. They rented the privilege of selling refreshments. In 1872 they graded a track. In 1873 and 1874 one of the defendants repaired the track which had been injured by a freshet, and for several years they paid the rent to the plaintiff. These acts were done by these individual defendants or some of them. Now the learned judge, in submitting to the jury the question whether, by these and other acts, the defendants had waived the conditions (if any there were), was careful to say that, if these acts were done by the defendants simply in their capacity as members of the association, and had nothing to do with the contract they had signed, then there was no waiver. Thus the jury must have found either that there were no conditions such as were alleged, or that those conditions had been waived by acts of these defendants done, not as members of the association but as individual lessees. (Ireland v. Nichols, 46 N. Y., 413.) The defendants urge that the fact that a fair was held on the grounds was no waiver of the alleged conditions; but we must remember that the jury must have found that the defendants signed the lease, understanding that it was their individual contract. If that were so, then they understood that they, and not the association, were the lessees, and that they individually were entitled to possession. Whatever then they permitted the association to do, in the way of possession and improvement, was an acceptance on their own part of the benefit of the lease. If they took possession, or authorized the association to take possession, they did so only under the lease, and therefore they affirmed its validity. Having had the benefit of it, they are estopped from saying it never was completely executed. They entered into possession [143] under it, and thereby asserted their rights as tenants. We see no error in the case. The judgment should be affirmed with costs. Boardman, J., concurred.