Robinson v. Bishop

Iíaedin, P. J.: It is insisted that the court erred “in excluding the testimony of Enoch IT. Bishop as to declarations of Alexander Searles, the plaintiff’s assignor.” Enoch H. Bishop testified “ that in the summer of 1878, and sood [375] after the death of William H. Bradford, the witness had an interview with Alexander Searles and Porter Searles, at Sidney Plains.” The defendants’ counsel then proposed “ to show that the old gentleman, Mr. Searles, asked the witness if this was his signature to the bond, and he said it was. And I further propose to show that the old gentleman then and there said that he knew, at the time he took the bond, that more than $50,000 had been issued of the bonds of the town of Sidney.” This was objected to by the plaintiff, the objection sustained, and an exception taken. When this evidence was offered, the case showed that the plaintiff, in 1882, purchased the cause of action alleged in the complaint, and gave his promissory note therefor, payable January 1, 1886, and that Searles, the assignor, had verbally 'guaranteed the collection of the bond. We think no error was committed in excluding the declarations of Searles referred to in the offer. (Truax v. Slater 86 N. Y., 630.) The plaintiff was the purchaser of the chose in action for value, and the declarations of the prior owner were properly excluded. (Von Sachs v. Kretz, 72 N. Y., 548; Bullis v. Montgomery, 50 id., 352.) At the close of the plaintiff’s evidence, the defendant moved for a nonsuit upon four grounds, viz.: “ First. That upon all the testimony which’ has been given upon the part of the plaintiff, he has not shown sufficient facts to entitle him to recover against these defendants. “ Second. That there is no evidence here, except such as appears-by recitals contained in the instrument, that the assignor of the alleged cause of action ever paid anything for the bond which has been put in evidence. “ Third. That there is no proof that the assignor was a purchaser in good faith, except that simple fact that the bond was issued to him. “Fourth. That there is no proof of any bad faith on the part of these defendants, or either of them.” This motion was denied. The motion was repeated at the close-of the evidence, predicated upon the grounds already stated, and upon the further ground, “ that the alleged bond "was void upon the face of it, having been issued in violation of section 11, article-8 of the Constitution of the State of New York, and being thus; void it did not purport to create any obligation against the alleged principal, and for that reason there could be no recovery against the [376] defendants in tliis action; and further, there is not a particle of evidence that Searles ever paid any consideration for the bond.” The court refused to nonsuit, holding that the “ transaction did not come within the prohibition of that section of the Constitution; and if it didn’t come, why then these defendants are liable, * * * and that there is no evidence in the case that establishes a defense.” It is now insisted that the purchaser Searles was bound to know that no such obligation could be legally created, and that he cannot now be permitted to insist that he relied upon the signatures of the defendants or upon the representations contained in the instrument. It is alleged that the defendants stated and represented and warranted the -said Searles, that is was a valid ‘bond of the town of Sydney, and within the $50,000 which they were authorized to issue, and that when the same was issued and delivered there would not be outstanding more than that amount of bonds, which statement was untrue, yet that the said Searles relied thereon and was induced to purchase the said bond. The case shows that evidence was given tending to show that these facts, were time. There was no allegation in the answer that the bond, which the defendants represented they had ¡lower to issue and was a valid bond, was illegal or unconstitutional. We think in a case where it appears that the defendants had authority to issue $50,000 of bonds, and that having issued the $50,000, they made an offer to issue another thereafter and induced the purchaser to take the same in reliance upon their representations that the bond was valid and that they had authority to issue it, whereas, in truth, it was invalid and was put afloat in excess of any authority conferred upon the defendants, that they are not entitled to call to their aid the constitutional provisions already referred to. We think nothing can be, found in Falconer v. The Buffalo and Jamestown Railroad Company (69 N. Y., 491) to sustain such a position. We think there was no error in refusing to submit to the jury the question of whether Searles was a purchaser in good faith, or ■whether the defendants had acted in good faith, or were guilty of ■negligence. We think, irrespective of these questions, the defendants were liable upon an implied warranty of the validity of their [377] action as well as upon their express warranty. (White v. Madison, 26 N. Y., 124; Baltzen v. Nicolay, 53 id., 467; Clark v. Miller, 54 id., 534.) It was said in that case, viz., “ that the opinion or belief of the defendant as to his duty does not affect his liability, is established by the People v. Brooks (1 Denio, 457). Honest ignorance does not excuse a public officer for disobedience to the law.” It appeared by the evidence given upon the trial “ that the defendants never made any ex¿mination of the records of their office to find out how many bonds were outstanding until after Mr. Bradford’s death, and never made any examination to see whether this bond was or would be within the limit or not, or whether any bond was actually exchanged therefor, and that said Bradford was allowed by them to issue and deliver such bonds as he saw fit, and that the defendants gave no personal attention to the subject.” We think, after such negligence shown on the part of the defendants, there was little or no question left to be considered !t as to whether these defendants acted in good faith or were guilty of negligence, and the fact that Searles lived in the same village with Bradford, who was his son-in-law, from whom he received the bond, and to whom he paid the money, is not sufficient to relieve the defendants from their warranty, or from the charge of negligence.” If a fraud or wrong was perpetrated by Bradford the defendants enabled him to perpetrate it. They, each of them, signed the bond and knew that it was to be issued. (Davis v. Bemis, 40 N. Y., 453, note.) Alexander Searles, as a witness, testified: “ I had no knowledge or information from any source that these bonds were not good bonds of the town of Sidney. At that time I did not know that the full amount of $50,000 of bonds for the town of Sidney had been issued.” Thereupon, the counsel for the defendant offered to show that the witness Searles did know that the full $50,000 had been issued. This followed an offer which indicated that the effort was to show it by the declarations of Searles to Bishop, and the attention of Searles had not been called to the conversation. It was therefore proper to exclude the testimony sought for to contradict Searles. Our conclusion is that no error was committed at the trial. The verdict was properly ordered for the plaintiff. [378] Motion for new trial denied, and judgment ordered for the plaintiff on the verdict, with costs. Eollett and Churchill, JJ., concurred. Motion for new trial denied,-and judgment ordered for the plaintiff on the verdict, with costs.