(26 Misc. Rep. 649.) and 90 New York State Reporter. PIPER v. HERRICK et al. (City Court of New York, General Term. March 6, 1899.) PURCHASE BY AGENT-RATIFICATION-EVIDENCE. To prove that the purchase of certain theatrical goods by one B., as agent of defendant, was ratified, plaintiff testified he asked defendant if he would pay the bill, who replied he did not think B. had bought the goods to be charged to him; and later, in defendant's presence and without his denial, B. admitted to plaintiff he might have said the goods were to be paid for by defendant, as trustee or representing the owners of the theater. To a remark of plaintiff that he had sold the goods in good faith, and would hold him, defendant said he thought everything would come out all right. Defendant was not in the theatrical business, but was a banker. B. had paid part of the price with a check of the defendant to his order. Held, that this did not amount to a ratification. Appeal from trial term. Action by Elwin S. Piper against Jacob H. Herrick and another. There was a judgment for defendants, and plaintiff appeals. Affirmed. Argued before FITZSIMONS, C. J., and CONLAN, J. Burr & Coombs, for appellant. CONLAN, J. This is an appeal taken from a judgment of the trial term dismissing the complaint and from an order denying a motion for a new trial. The action was brought to recover the value of certain goods alleged to have been sold to the defendants, and of certain work, labor, and services rendered by the plaintiff to and for the defendants, at their request. The answer is a general denial. Upon the trial it appeared that the transactions in question were between the plaintiff and one David H. Bacon, who, it is claimed, was acting with the authority of, and as the agent of, the defendants, in relation to all of the matters for which recovery is sought herein. It is clear, therefore, that unless this agency be shown, or a subsequent ratification be proven, there can be no recovery in the present action. The plaintiff's evidence is to the effect that David H. Bacon called upon the plaintiff, and represented himself as the agent of the defendants, with the authority to bind them in the transaction, and ordered certain goods and certain work to be done in relation thereto; the same to be used in certain changes and fittings at the Phobus Theater, in the borough of Brooklyn. These occurrences are alleged to have taken place between the 30th day of April and the 17th day of May, 1895. It also appeared from the trial that no effort was made by the plaintiff to communicate with the defendants directly, with regard to the transaction, until after the delivery of the goods and the completion of all the work ordered by Bacon. The first conversation between the plaintiff and the defendants was, as testified to by the former, on the Monday following May 17, 1895, when he said to Herrick, "Will you pay that bill?" and Herrick replied that he did not think that Bacon had bought those goods to be charged to J. H. Herrick & Co. At a subsequent conversation, when Bacon was present, Bacon is alleged by the plaintiff to have said, in the presence and hearing of Herrick, that he (Bacon) might have said that the goods were to be paid for by J. H. Herrick & Co., trustees of the owners of the Phoebus Theater, or that they were to be paid for by J. H. Herrick & Co., representing the owners of the Phoebus Theater; and that Herrick made no denial of Bacon's statement, but that to a remark then made by plaintiff to Herrick, "I have come here to get this thing in good business form; we have sold these goods to J. H. Herrick & Co. in good faith, and hold them responsible for the payment of our bill,"-Herrick then said: "Well, I think everything will come out all right." In a letter subsequently written by the defendants to the plaintiff, dated May 24, 1895, the defendants wholly repudiated the act of Bacon, as follows: "It is proper to add that my firm had no knowledge or information that Mr. Bacon was having any dealings with your firm." We do not think that the acts of the defendants, as described herein, from the plaintiff's own testimony, amount to a ratification of the contract alleged to have been made by Bacon, acting as their agent. Nor does it appear anywhere in the case that Bacon was authorized to bind the defendants by any other statement than the language employed by Bacon himself, as testified to by the plaintiff. This, clearly, was not sufficient to establish agency. There is no evidence in the case to show that the defendants were engaged in the theatrical business, or in any other business than as bankers and brokers; and whatever may be said concerning the alleged conduct of Bacon, and his authority to bind the defendants, it is clear that the plaintiff ought to have fully posted himself, by calling upon or communicating with the defendants, at any time between the 30th day of April, 1895, and the 17th day of May, 1895, and ascertaining the truth of the whole matter. The mere fact that the plaintiff demanded a part of the consideration upon making the sale, and received in payment a check of the defendants for $100, payable to Bacon's order and by him indorsed, is not of itself ratification by the defendants, nor evidence in any way tending to show that Bacon had any authority to bind them as their agent. We think the case was properly taken from the jury, and that a dismissal of the complaint was not error which calls for a reversal. Judgment should therefore be affirmed, with costs. FITZSIMONS, C. J., concurs. (26 Misc. Rep. 655.) AARONSON v. DAVID MAYER BREWING CO. (City Court of New York, General Term. 1. GUARANTY-CONSTRUCTION. March 6, 1899.) A brewing company, at the request of one of its customers, executed a guaranty of the lease of his store in its corporate name, but in the body the guarantor was described as another person. Held, that it was the guaranty of the corporation. 2. CORPORATIONS-GUARANTY OF LEASE-VALIDITY. A brewing company has power to guaranty the performance of the covenants of a lease of a store building to one of its customers. and 90 New York State Reporter. 3. SAME-POWERS OF VICE PRESIDENT. A contract which the corporation has authority to make may be executed by its vice president in the absence of the president. GUARANTY-NOTICE TO GUARANTOR-EVIDENCE. Where a guaranty required notice of the principal's default to be given to the guarantor within a stated time, and such notice was duly mailed. but its receipt was denied, the question of its sufficiency is for the jury, since the mailing of the notice raises a presumption that it was received. Appeal from trial term. Action by Rachel Aaronson against the David Mayer Brewing Company. From a judgment for plaintiff, and from an order deny. ing a new trial, defendant appeals. Affirmed. Argued before SCHUCHMAN and CONLAN, JJ. B. Lewinson (Max J. Kohler, of counsel), for appellant. H. B. Wesselman (David McClure, of counsel), for respondent. SCHUCHMAN, J. The plaintiff's complaint alleges that the defendant is a corporation organized under the laws of the state of New York; that on January 23, 1894, the plaintiff entered into a lease with one Samuel Albert, as lessee, by which she demised unto the said lessee the store basement and two floors above the store of premises No. 65 Hester street, New York City, for a term of three years from May 1, 1894, at the yearly rental of $3,260, to be paid in equal monthly payments in advance; that the defendant corporation guarantied in writing the payment of the rents and covenants in said lease contained; that the said lessee defaulted in the payment of the rent for the month of July, 1896; that the 30-days notice stipulated for in said guaranty was given to the defendant corporation, but that it failed to pay the rent; wherefore she asks judgment for the rent for the month of July. The answer of the defendant substantially is a general denial of all the material allegations contained in the complaint. The guaranty of the defendant reads as follows: "In consideration of the letting of the premises within mentioned to the within-named Samuel Albert, and the sum of one dollar to me paid by the said party of the first part, I, David Mayer, do hereby covenant and agree to and with the party of the first part, above named, and her legal representatives, that, if default shall at any time be made by the said party of the second part in the payment of the rent and performances of the covenants contained in the within lease on his part to be paid and performed, that I will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the nonperformance of said covenants, or either of them, upon notice of any such default within thirty days thereafter from the said party of the first part, to the extent of the sum of one thousand ($1,000) dollars. "Witness hand and seal this 24th day of January, in the year one thousand eight hundred and ninety-three. "David Mayer Brewing Company, The evidence adduced at this trial establishes the following facts: That the corporation was organized under the laws of New York state; that the lease bearing date January 23, 1894, was executed and delivered at its date, and that the guaranty of the defendant was delivered at the same time when the lease was delivered, and that, after the guaranty was signed by the vice president, one copy of the lease, with the guaranty, was delivered to the landlord, and the other to the tenant (so that it clearly appears that the guaranty was executed and delivered on January 23, 1894, the same day the lease was dated and delivered, and that the year 1893, appearing as the date of the guar anty, was a mistake); that the guaranty was executed by the vice president in the absence of the president, and that the vice president was the person who signed the guaranty; that the lessee was a enstomer of the David Mayer Brewing Company; that the lessee came and informed the vice president that the landlord wanted the David Mayer Brewing Company to execute a guaranty for said lease, and that the vice president did accordingly. It was admitted at the trial by the counsel for the respective parties that notice of the default in the payment of rent due on July 1, 1896, was mailed on the 30th day of July, 1896, subject, however, to objection that it is entirely immaterial, unless proof is given that the notice was actually received within the 30 days provided by the guaranty. The appellant asks for a reversal of the judgment on the following grounds: 1. That the said guaranty is not the defendant's contract, because the name of David Mayer is mentioned in the body of the instrument, and not the name of David Mayer Brewing Company. This is untenable, because the evidence shows that the defendant brewing company intended to, and actually did, execute the guaranty for the bene fit of its customer, the lessee in the lease. It appears in evidence ⚫ that a prior lease of the premises had been guarantied by David Mayer, and that since that time the brewing business was turned over to the defendant corporation. If the name of David Mayer in the written guaranty is omitted as surplusage, there could not be any question that the defendant would be liable on it as its contract, and we think it should be thus construed. The cases of Whitford v. Laidler, 94 N. Y. 145, and others, cited on appellant's points, are all to be distinguished from the one at bar, because in those cases, in the body of the contracts which were therein under consideration, the signers of the contracts were described either as trustees or officers of a corporation, or as agents, and signing their names in their individual capacity. The court held that they were not individually liable, because they had contracted in the written contract in their official or fiduciary capacity. That is not so in this case. 2. That the guaranty is void, in that the defendant corporation had no power to make it; in other words, being ultra vires. The contrary of this assertion has been held in Holm v. Brewing Co., 21 App. Div. 204, 47 N. Y. Supp. 518, and Koehler & Co. v. Reinheimer, 26 App. Div. 1, 49 N. Y. Supp. 755. 3. That the vice president of the defendant had no authority to execute a guaranty so as to make it a binding obligation on the defendant corporation. We think that the vice president, in the absence of the president, had the authority. Fuld v. Brewing Co. (Com. Pl.) 18. N. Y. Supp. 456. A president of a corporation, being its principal executive officer, is impliedly vested with the authority to transact its ordinary business, and the corporation is liable for the contract so made by the president. N. Y. Supp. 237. and 90 New York State Reporter. Powers v. Power Co., 23 App. Div. 380, 48 4. That the notice of the tenant's default of the payment of rent, such as is required by the guaranty to be given to the defendant corporation, was insufficient. We hold that the mailing of the notice, properly addressed, and postpaid, raised the presumption that it had been received by the person to whom it had been directed. McCoy v. Mayor, etc., 46 Hun, 268. The only objection made by the ap pellant to the sufficiency of the notice of default was simply that it was not proved that it was actually received within 30 days by the defendant. The case aforesaid, however, holds that, when proof of mailing was met by the testimony of the defendant that the notice had never reached them, it was for the jury to pass upon the issue of fact thus raised; and such a course was taken in this case. The verdict is not against the weight of evidence, and, substantial justice having been done by the jury's verdict, we conclude that the judgment and order appealed from must be affirmed, with costs. CONLAN, J., concurs. AARONSON v. DAVID MAYER BREWING CO. March 6, 1899.) (City Court of New York, General Term. ABATEMENT-PENDENCY OF ANOTHER SUIT-ACTIONS FOR INSTALLMENTS. The pendency of an action for an installment of rent on a guaranty of a lease is no bar to a suit for a subsequent installment which was not due when the first suit was commenced. Appeal from trial term. Action by Rachel Aaronson against the David Mayer Brewing Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. Argued before CONLAN and SCHUCHMAN, JJ. B. Lewinson (Max J. Kohler, of counsel), for appellant. H. B. Wesselman (David McClure, of counsel), for respondent. SCHUCHMAN, J. The appeal in this action involves the same questions discussed in action No. 1. 56 N. Y. Supp. 387. There is, however, an additional defense set up, to wit: "That at the time of the commencement of this action there was, and there is now, pending undetermined in this court a suit wherein this plaintiff is plaintiff and this defendant is defendant, involving the same cause of action." Action No. 1 is brought on the guaranty, to recover the rent of July month, which is payable in advance. Notice of nonpayment thereof was given to the guarantor on July 30th, and within 30 days thereafter suit could have been commenced against the guarantor. The suit was commenced on September 4, 1896. Action No. 2 is brought to recover the rents of the months of August and September, payable in advance. Notice of nonpayment of the rent for August month was given on August 5th, and for September month on September 2d. This action was commenced on October 23, 1896. Either action No. 1 or 2 accrued within 30 days after notice of default to guarantor, |