Wolf v. Lovering

NOYES, Circuit Judge. This action is brought upon an alleged personal contract of a receiver. The substance of the complaint is that, in order to carry out an agreement made by the defendant as receiver of the American Cotton Company for the sale of a seat in the New York Cotton Exchange to the plaintiff, the defendant personally agreed to procure the requisite notice of intention to transfer such seat, signed by a third person in whose name the seat stood. Upon the close of the plaintiff’s case the trial court directed a verdict for the defendant, in which action the plaintiff claims there was error. We are therefore called upon to-determine whether there was sufficient evidence to support a verdict for the plaintiff. In so doing, it is our duty to take the view of the testimony, and of the inferences to be drawn therefrom, most favorable to the plaintiff. The question is not whether a verdict ought to have been rendered for the plaintiff, but whether it lawfully might have been. The testimony largely relates to conversations between the defendant'and one King, superintendent of the Cotton Exchange. ’ From these conversations, the admissions of the defendant, and all the circumstances the plaintiff claims an agreement personally binding the defendant. The defendant, on the other hand, claims that they show nothing more than a receiver’s promise in aid of a receiver’s sale. It was for the jury, and not the court, to determine what the agreement was. “The question whether a receiver has assumed such personal liability or not is one to be determined from the facts and circumstances of the case.” Cake v. Mohun, 164 U. S. 315, 17 Sup. Ct. 100, 41 L. Ed. 447. There was evidence in the case from which the jury might have found these facts: (1) The defendant was one of the receivers of the American Cotton Company which he claimed owned a seat in the New York Cotton Exchange. ¡Y) The defendant was desirous of disposing of this seat and communicated with King, the superintendent of the [93] Exchange, with the end in view. The seat stood in the name of one Cooper, and King told the defendant that, under the rules of the' Exchange, it would be necessary to obtain a written notice of intention to sell, signed by Cooper. (3) The defendant personally agreed that he would obtain Cooper’s signature to the required notice, and placed the matter of the sale of the seat in King’s hands. (4) King arranged to sell the seat to the plaintiff, but did not inform him of the defendant’s personal undertaking until after the agreement of sale had been closed. (5) The defendant failed to procure Cooper’s signature, and the sale was not consummated — to the plaintiff’s damage. These facts show an agreement on the part of the defendant in his individual capacity, and were sufficient to justify a verdict against him. A personal undertaking by a receiver binds him personally. Cake v. Mohun, supra; Farmer’s Loan & Trust Co. v. Central R. R. Co. (C. C.) 7 Fed. 538; Rogers v. Wendell, 54 Hun, 540, 7 N. Y. Supp. 781, 8 N. Y. Supp. 515; Klebisch v. Siedler, 7 Misc. Rep. 144, 27 N. Y. Supp. 417; Ryan v. Rand, 20 Abb. N. C. 313; Keene v. Gaehle, 56 Md. 343; Gluck & Becker on Receivers of Corporations (2d Ed.) § 82; Smith on Receiverships, § 128. It may well be that where a transaction relates to receiversliip property the presumption is that -a receiver binds himself officially, and not personally. But this presumption, while proper to be considered by the jury, is no reason for taking a case away from the jury. In the present action, considering all the facts and circumstances, we cannot hold, as a matter of law, that the jury were without warrant to find this presumption overcome, and an individual obligation established. Perhaps we should not have so found had the question of fact been before us. Perhaps the jury would not have so found had the case been submitted to them. But the question is what they might have found. The defendant contends, however, that- even if he did make the personal promise to King, who was his agent in the matter, such fact was not communicated by King to the plaintiff before he agreed to purchase the seat, could not have induced the purchase, and, consequently, gave the plaintiff no right of action. The plaintiff, on the other hand, claims that King was the agent of both parties in the transaction; the defendant’s agent in making the sale, and the plaintiff’s agent in closing the matter. We think the plaintiff’s contention the correct one. King, as superintendent of the Exchange, was the person to whom both intending buyers and sellers of seats would naturally apply. From the very nature of his position, he acted for both parties. The alleged personal agreement of the defendant was for the benefit of any pitrchaser of the seat. It constituted one of the terms of the purchase, and the plaintiff was entitled to the benefit of it whether it was communicated to him before he agreed to buy or afterwards. As a new trial must be ordered on account of the failure to submit the case to the jury upon the question of the defendant’s express personal undertaking, it is unnecessary to consider the other assignments of error. A new trial is ordered; costs to abide the event.