Belcher v. Manchester Building & Loan Ass'n

[837] The opinion of the court (the foregoing statement having been made) was delivered by Green, J. This action was brought to recover the withdrawal value of twenty shares' in the defendant association, which was incorporated under “An act to encourage the establishment of mutual loan, homestead and building associations." Gen. Stat., p. 331. The defence interposed was that the money had already been withdrawn by the plaintiff’s agent in that behalf. First. The trial court refused to permit the jury to determine whether William II. Belcher had authority, as agent, to withdraw the value of the plaintiff’s shares in the manner and form in which it was drawn. A universal agency, being a thing extremely rare, may be dismissed from present consideration, and agency may be said to be either general or special. The former relation arises where one is authorized to transact all business of another of a particular kind; the latter, where one is authorized to act in a single transaction only. See Mech. Ag., §§ 1, 283; Ev. Pr. & A. (Ewell's ed.) *2, *101, 102; Story Ag. (8th ed.), § 17. There was some evidence in the case in hand, uncontradicted, which showed that William H. Belcher was a general agent of the plaintiff in making investments in this state. (a and 5) Laying hold of this, the counsel of the defendant insists that the plaintiff should be bound, with respect to third parties (such as the defendant), not only to the extent of the actual authority, but also to the extent of the apparent authority with which he had clothed his brother, if Hie latter authority were greater than the former. See Story Ag., §§ 73, 126, 127, 443; Mech. Ag., §§ 282, 283; Law v. Stokes (1867), 3 Vroom 249, 251, 252. Then it is further insisted that one instance of the application of the principle just stated is where an agent has been empowered to make an investment, and is permitted to continue in possession of the securities. This, it is'said, warrants the inference of fact, that such 'agent is authorized [838] to receive payments of the principal and interest, and Haines v. Pohlman (1874), 10 C. E. Gr. 179, 182, 183, is cited. To this it may be answered that the purpose of the possession of securities is a legitimate inquiry (Lawson v. Nicholson (1894), 7 Dick. Ch. Rep. 821, 824), and that, in the present case, the continued possession of the passbook was consistent with the original authority to make an investment, because, in discharging- this agency, the periodical payment of dues was necessary, and, from the proven nature of the pass-book, the entry therein of such payments, as and when made, was for the protection and benefit of the plaintiff. In such ease we think that the continued possession of the pass-book was not evidence of an apparent authority to receive payments of the principal and interest of the investment. (c) It is next urged that the withdrawing of the two sums of money, by checks, payable to the order of the plaintiff, and endorsed by William H. Belcher as attorney, was and is a factor of no importance. We must be permitted to think othenvise. In Gulick v. Grover and Holmes v. Grover (1868), 4 Vroom 463, this court considered the liability of the defendant (at p. 465) upon “notes signed in the defendant’s name, by his wife, without his knowledge or consent, and loaned by her, without the husband’s knowledge, to Holmes, as a means of raising money for his benefit.” The testimony showed a general authority in the wife to sign notes in the husband’s name, in the course of his usual business (at p. 466), but no further. Thereupon, it was held (at p. 473) that, where the facts are undisputed, the question, whether the agent has the requisite authority to bind his principal, is for the court. In the present case, the evidence showed no authority given by the plaintiff to his brother to effect loans with the association or to withdraw moneys therefrom.- The making of the checks paj^-ble to the order of the plaintiff himself was a recognition by the association of the lack of authority in W. H. Belcher. The acts of both [839] parties were in accord, and the evidence suggests no dispute. The decision in the Grover eases is therefore applicable and controlling. If the question be narrowed to the authority to endorse the two cheeks, the result must be the same. The agency in such case would be special, and must be shown. See Flax and Hemp Co. v. Ballentine (1838), 1 Harr. 454; Agricultural Insurance Co. v. Fritz (1897), 32 Vroom 211, 217. There was no such proof. (d) It is then said that there was evidence for the jury of a ratification by the plaintiff of the withdrawals by his brother, in that the former never intimated that these had been made without authority, until about five or, at least, three years thereafter. To this it is a sufficient reply that William H. Belcher appears to have been a man of some prominence and held in general esteem; and that it was neither astonishing nor unlawful in the plaintiff that he should rest in the belief of the propriety of such a brother’s dealings. As soon as the brother disappeared, and cause for disquietude arose, the plaintiff was prompt in making inquiry, and then in disavowing his brother’s authority. The ratification of acts will not be inferred until the principal has full knowledge of the breach of duty on the part of his representative, and then continues to be inactive. See Gulick v. Grover and Holmes v. Grover (1868), 4 Vroom 463, 471; Dowden v. Cryder (1893), 26 Id. 329, 333. Second. The trial court directed a verdict for the plaintiff. It being already found that the facts touching the authority of the agent were not in dispute, it is almost superfluous now'to attempt to justify the direction. When the facts are not -in dispute, and the inferences from them are not in doubt, the question at issue is one of law for the court, and the direction of a verdict is not erroneous. See Gulick v. Grover and Holmes v. Grover (1868), 4 Vroom 463, 473; Amer. D. & I. Co. v. Trustees of Public Schools (1885), 12 Stew. Eq. 409, 449; McCormack v. [840] Standard Oil Co. (1897), 31 Vroom 243, 245, 246; American Saw Co. v. First National Bank (1897), Id. 417, 427; Strauss v. American Talcum Co. (1899), 34 Id. 613, 615. Compare, in case of a nonsuit, Furniture Company v. Board of Education (1896), 29 Id. 646, 648. The judgment of the Passaic Circuit Court must be affirmed. For affirmance — The Chancellor, Ci-iiee Justice, Garrison, Port, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgh, Yroom, Green, Gray, Dill, J.J. 15. For reversal — None.