Roe v. Smith

New York Supreme Court

Roe v. Smith

42 Misc. 89, 85 N.Y.S. 527

CourtNew York Supreme Court

DecidedDecember 15, 1903

StatusPublished

Cited by6 cases

This text of 42 Misc. 89 (Roe v. Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roe v. Smith, 42 Misc. 89, 85 N.Y.S. 527 (N.Y. Super. Ct. 1903).

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Opinion

Gaynob, J.:

The will of the deceased devised the land to the defendants as executors in trust with power to sell at the expiration of the trust and distribute the proceeds among the testator’s children. The defendants both, and together, en-> tered into an oral agreement to sell the land, and the contract was reduced to writing at their direction; but when it after-wards came to the signing, the defendant Charles P. Smith did not sign, and was not present at the signing, but he authorized and directed the other defendant to act for him in the signing, and to sign. The contract by its terms purports to be by both, but it is only signed by the one, and by his name only.

The one being authorized by the other, his signing binds both, the contract not being under seal. It is the same as the ease of an agent siguing his own'name instead of that of his principal to an executory contract; the principal is bound, and oral evidence to prove that he authorized the agent to sign is not excluded by the Statute of Frauds (Briggs v. Partridge, 64 N. Y. 357).

The rule that delegated authority involving the exercise of judgment and discretion cannot be re-delegated is not in the way. The trust authority to agree to sell was not delegated; no exercise of judgment and discretion was delegated; only the formal signing was delegated after the terms of the contract had been agreed upon.

Judgment for the plaintiff with costs.

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Gaynob, J.:

The will of the deceased devised the land to the defendants as executors in trust with power to sell at the expiration of the trust and distribute the proceeds among the testator’s children. The defendants both, and together, en-> tered into an oral agreement to sell the land, and the contract was reduced to writing at their direction; but when it after-wards came to the signing, the defendant Charles P. Smith did not sign, and was not present at the signing, but he authorized and directed the other defendant to act for him in the signing, and to sign. The contract by its terms purports to be by both, but it is only signed by the one, and by his name only.

The one being authorized by the other, his signing binds both, the contract not being under seal. It is the same as the ease of an agent siguing his own'name instead of that of his principal to an executory contract; the principal is bound, and oral evidence to prove that he authorized the agent to sign is not excluded by the Statute of Frauds (Briggs v. Partridge, 64 N. Y. 357).

The rule that delegated authority involving the exercise of judgment and discretion cannot be re-delegated is not in the way. The trust authority to agree to sell was not delegated; no exercise of judgment and discretion was delegated; only the formal signing was delegated after the terms of the contract had been agreed upon.

Judgment for the plaintiff with costs.

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Bluebook (online)

42 Misc. 89, 85 N.Y.S. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roe-v-smith-nysupct-1903.

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