Benedict v. Lansing

5 Denio 283

• Court: New York Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

By the Court, Whittlesey, J.

The way is entirely deal, for a recovery in favor of the plaintiffs if they have established a debt against the corporation in their favor, at the time of its dissolution. The note introduced as the evidence of such debt, bears date in January, 1843, nearly one year after it appears the corporation had entirely failed. The note thus given in evidence appears upon its face to be the note of the corporation, and not the note of the agent. The deficiency in the proof seems to me to be in not showing that the agent had power to bind, the corporation by instruments of this character. His power as agent should be shown from the corporate books, or by other evidence if there was a refusal to produce such books. (Clark v. Farmers’ Woollen Co. 15 Wend. 256.) Though it appears that Kirby was agent, it does not appear what power he had as agent.

Again, the proof only shows that Kirby was agent from the organization of the corporation until it failed, and the corporation failed nearly a year before this note was executed; the proof then hardly makes out the agency at the date of the note.

Moreover if the note is to be taken as evidence of the liability of the corporation, it shows an indebtedness only from its date, and as the corporation would appear to have failed nearly a year previous, it shows no indebtedness at the time of its dissolution.

New trial granted.