President v. Gomez

6 Cow. 435

• Court: New York Supreme Court
• Decided: October 15, 1826
• Status: Published

Opinion

Curia, per

Sutherland, J.

The judge properly refused to nonsuit the plaintiffs. It is apparent, on the face of the power of attorney from the defendant to his brother Lewis, that he intended to authorize him to sign his name to a preexisting note. It is, “ to sign a note for 5000 dollars, payable to the president, directors and company of the bank of Cape Fear, of which J. T. B. and others are joint makers or drawers, payable on the 1st day of January, 1821.” The note is not to be made payable ; but it is payable. J. T. B. and others are not to be joint makers, or drawers ; but they are joint makers, or drawers. The note is not to be made payable on the lsf of January, 1821; but it is payable on that day. This is evidently intended as a general description or designation of a note, which the defendant knew to have been drawn ; and to require only the signature of his name to render it perfect. He must, therefore, have been presumed to know the contents of the note; and to have described its several characteristics by way of designation only. The description is accurate, as far as it goes. It seems to me, then, to have* been a question of identity merely, as to the note intended ; and that was a question of fact exclusively for the the jury. Whether the power of attorney would have authorized the making of a new note, like the one on which this suit is brought, is a distinct question, which I conceive does not arise in the case. The jury have found that this was the note intended by the power; and I think the evidence justifies their conclusion. But whether it does or not, is not material upon this application. It is founded on an exception to the opinion of the judge, in refusing to nonsuit the plaintiffs; and not on the ground that the verdict is against evidence. A new trial must be denied.

New trial denied.