Bigelow & Whipple v. Judson

19 Wend. 229

• Court: New York Supreme Court
• Decided: May 15, 1838
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

Previous to our statute, 2 R. S. 501, § 8, 9, the authority from the landlord to distrain need not have been in writing, as is perfectly settled. Serjeant Williams observes, 1 Saund. 34?, c. n. 4, that it is sufficient for the defendant, in his cognizance to say generally “as bailiff of J. S.” he acknowledges the taking without showing his authority; and a subsequent agreement by J. S to the distress amounts to an authority as much as if he had previously directed the defendant to distrain. Woodf. Land. and Ten. 307. Bradby on Dist. 151 3Carr. & Payne, 172. See also 5 Bing. 10. There is certainly nothing in the statute, altering the law in this respect; it only requires that the officer distraining shall have a written warrant. Cooper being the general agent of Clarke to collect his rents, was authorized to take necessary steps for that purpose, and of course to issue the warrant to the plaintiff. No particular form is prescribed ; if the warrant substantially indicate the object intended, so as to enable the officer to execute it, it must be sufficient.

It is objected that the warrant is not subscribed in the name of the principals, and that in analogy to the rule in respect to contracts entered into by an agent, the execution is defective and void. The reason why a contract, subscribed in the . name of the agent, is not binding upon the principal, is because it is the contract of the agent and not of the principal. The authority, therefore, to bind him has not in fact been executed. No contract has been entered into. But this reason has no application in this case ; all that is essential here is to confer upon the officer authority to distrain. Before the statute a parol command was enough, and any instrument in writing that indicates thus much now, must be all that is material. Suppose the tenant had sought a remedy against the landlord, could the latter have taken exception to this mode of execution of the warrant of his agent, and denied that he was responsible for any thing done under it ? There is no pretence for such an objection, I think, therefore, the authority has been well executed by Cooper, though in his own name as agent for the landlord. Indeed, this mode of entering into a contract seems to be sufficient to bind the principal where the authority to make it, is shown, 15 Johns. R. 1, 19 id. 531, 558, 565, 13 id. 307, 11 Mass. R. 27. 17 Wendell, 40; and such is the good sense of the transaction.

As to the delay in selling the goods, the authorities are full to warrant it with the assent of the tenant, and to show that the lien is not thereby lost, unless the delay is by collusion. Nothing of the kind is pretended here ; on the contrary, the sale was postponed as an act of humanity to the tenant. 1 Saund. Pl. and Ev. 443. 3 Black. Comm. 14. Ed. Chit. n. 39. Fisher v. Algar, 2 Carr. & Payne, 374. Comyn, Land, and Ten. 412. 7 Price, 690. Bradby on Dist. 155. 11 East, 404, n.

Judgment affirmed.