Sherman v. New York Central Rail Road

22 Barb. 239, 1856 N.Y. App. Div. LEXIS 73

• Court: New York Supreme Court
• Decided: September 1, 1856
• Status: Published

Opinion

By the Court, T. K. Strong, J.

The written contract for the Sale and purchase of the wood, purports in the body of it to be between the plaintiff of one part, and the defendants by their agent Lanclot of the other part. It is signed by the plaintiff, and by Lanclot in his own name merely, a seal being annexed to each name, and is not executed in the" name of the defendants. According to thb cases of Townsend v. Corning, (23 ,) and Townsend v. Hubbard, (4 Hill, 351,) this contract is void. It is not binding on Lanclot, as he did not profess or intend to contract for himself but for the defendants, from whom he had verbal authority to do so. Of course it is not binding on the defendants, not being executed in their name; and therefore the plaintiff is not bound by it. Adding a seal to the name of the agent, when he was not authorized to bind the defendants by seal, does not vary the case. The defendants would, notwithstanding the seal, be bound by the contract, as a simple contract, if it had been properly executed. (Dubois v. The Delaware and Hudson R. R. Co., 4 Wend. 285. Evans v. Wells, 22 Id. 324, 341. Lawrence v. Taylor, 5 Hill, 107.)

But the plaintiff was entitled to recover upon the common counts for goods sold and delivered, if those counts were sustained by the proof. The ease was submitted to the jury upon those counts only, and there was so much evidence in support of them, as to preclude interference by the court with the verdict for the plaintiff as unwarranted by the evidence.

The written contract should strictly have been received in evidence, not as a basis of recovery, but to show that it was void, and therefore that the plaintiff might resort to the common counts, notwithstanding the writing. As there was a contract in writing the plaintiff could not recover on the general counts, without producing or accounting for it. (Ladue v. Seymour, 24 Wend. 60. Smith v. Smith, 1 Sand. 206.) But it was produced and proved, and offered in evidence by the plaintiff, and excluded upon the defendants’ objection, not that it was not proved, but that it was a contract between the plaintiff and Lanclot, and the defendants cannot now object to a recovery on the common counts, that it was not actually in evidence.

It was not necessary to allege in the common counts that Lanclot was agent of the defendants, and that he acted for them, in the purchase; it was sufficient to allege a sale and delivery to the defendants, and proof that they acted by others who were their agents sustains the allegation.

The writing formed no obstacle to proving that Lanclot was agent of the defendants and purchased the wood for them. All such evidence was entirely consistent with it, if that was necessary, the writing being void as a contract. Lanclot is represented therein as such agent, and as acting for the defendants.

[Monroe General Term, September 1, 1856.

I think no substantial error calling for a new trial has been committed, and that the judgment should be affirmed.

Judgment affirmed.

T. R. Strong, Welles and Smith, Justices.]