Bruce v. Lord , 1 Hilt. 247 ( 1856 )

INGRAHAM, First Judge. —

The case of Moss v. Livingston (4 Com. 208) decides that an acceptance like the present bound the party malting it personally, unless it appeared that he had authority from the company to bind them by such acceptance; and the case of Brockway v. Allen (17 Wend. 40) establishes that such an acceptance does not bind the party making it, if it appear that it was made by the authority of the company to bind them, and that the plaintiff had notice of such agency.

The facts necessary to establish this defence, under the case of Brockway v. Allen, are all sufficiently proven, except that of the defendant’s authority. This was attempted to be shown by the drawer of the draft, who said that the defendant had authority to accept as secretary and treasurer; and by the testimony of Joseph L. Lot 1, who said that the defendant was secretary and treasurer, and had power to accept it; that he knew this, as he was present when the arrangement was made.

To this evidence the defendant’s counsel excepted, upon the ground that the authority, if any existed, was in writing, and could not be proved by parol. A company cannot authorize a third person to bind them, except by a resolution of the board of directors. Such resolution being in writing can only be proven by its production, or by authority executed in pursuance of it. The plaintiff, before he was deprived of the right which the law gave him against the defendant as acceptor, was entitled to be furnished with proper evidence, by which he could establish such claim against the company. Mere parol proof that the defendant had, in the opinion of the witnesses, authority to bind the company, would never be held sufficient to make the company liable on such an acceptance, and it is not sufficient to defeat what otherwise would be a valid claim against the defer ant. It may be that on another trial the defendant may be able to produce proper evidence to establish this defence; but, for the error above mentioned, I think the judgment should be reversed.

Beady, J. — Concurred.