Episcopal Church of St. Peter v. Varian , 1858 N.Y. App. Div. LEXIS 141 ( 1858 )

By the Court, Brown, J.

1. The bond in question is a substantial compliance with the requirements of section 222 of the code. It was a written undertaking with sureties, “ to the effect that the plaintiff [in that action] will pay such damages not exceeding the amount specified,” as the defendants might sustain by reason of the injunction. It is under seal and takes the form of a penal bond. But as the code prescribes no particular form, it must be regarded as sufficient.

2. In form it is joint and several. It declares that the three obligors, and each of them, are bound. This is equivalent to saying they are bound together and each of them is bound severally. Upon this view Elnathan Hawkins and the administrators of Robert Gr. Palmer are liable to the plaintiffs, and the judgment against them is correct.

3. The judgment affirms the personal liability of the defendant William Varían, and this is the principal question in the case. The legal effect of the bond is to be determined in part by an examination of its language, with a view to ascertain the intentions of the parties.

4. In the body of the instrument the obligors are described to be “ the corporation, the trustees of the town of Westchester, Elnathan Hawkins and Robert Gr. Palmer.” It is these three parties that are held and firmly bound to the “ corporation, the Episcopal Church of St. Peter, in the township of Westchester.” The condition declares that the above bounden will pay, &c. upon a breach of the condition. The phrase “ the above bounden” means the trustees of the town of Westchester, Hawkins and Palmer. It has the conclusion, that in witness whereof the parties hereunto have set their hands and seals, and is signed and sealed by William Varían, president of the board of trustees, E. Hawkins, R. Gr. Palmer. There is not a word indicative of an intention to bind H. Varían personally. On the contrary, the intention to bind the trustees of the town of Westchester is as clear and manifest as language can make it. In Townsend v. Corning, (23 Wend. 435,) Baldwin the agent had signed his name to the instrument, “ Harvey Baldwin,” and affixed -his seal in the usual manner. And Judge Bronson says, “ Although he subscribed his name and affixed his seal, there are no words of contract on his part; and whether he intended to bind his principal or not, it is apparent from the whole instrument that he did not intend to contract, himself.” He refers to Gatlin v. Ware, (9 Mass. Rep. 218.) We may then, I think, dismiss from our minds the idea that William Yarian is personally hound by the terms of the instrument.

5. The referee hy whom this action was tried finds the following facts, as appears hy his report. 1st. That the trustees of the town of Westchester, the plaintiff in the action on which the injunction was issued and the bond executed and filed, were duly incorporated by the act of the legislature passed April 12, 1844, to incorporate the trustees of the town of Westchester. 2d. That at the time of the commencement of such action and the executing and filing of the bond, the defendant William Yarian was the president of the hoard of trustees of the town of Westchester. 3d. That the said action was commenced and conducted against the Episcopal Church of St. Peter, under and hy authority of a resolution of the hoard of trustees, of the date of the 5th July, 1853. The referee then finds as matter of law, that the execution of the bond hy Yarian, as such president, was without lawful authority, and as a consequence that he is personally chargeable as one of the obligors of the bond.

It admits of no dispute that he who executes a contract as the agent of another, without authority, is himself personally responsible as a contracting party to the contract. The principle is, that it is the contract of some one, and if not that of the principal, it must of necessity be that of the agent himself. (Story on Agency, 264, and the authorities referred to in note 1. White and others v. Skinner, 13 John. 307. Meech v. Smith, 7 Wend. 315.) In order to fix and enforce this personal liability, it must appear that, the party sought to be charged signed as agent—that is, professed to act for another'—■ and that such' act was without authority. Now, it seems to me, that in the present case Yarian did not act or profess to act as the agent of another. And that so far as he did act he was fully authorized by the board of trustees, or the corporation of which he was a manager. Amongst the incidents to corporate existence is the capacity to sue and be sued. The 5th section of the act of the 12th April, 1844, under which the trustees of the town of Westchester are incorporated, gives them the general powers and subjects them to the liabilities and restrictions imposed by the 18th chapter of the 1st part of the revised statutes. Among these are enumerated the power to sue and be sued, and to complain and defend, in any court of law or equity. It is evident, therefore, that the corporation had a right to institute the action in which the injunction was obtained and the bond given. The object of the action was to restrain the present plaintiffs from the removal of the remains of the dead from a burying ground in which the trustees of Westchester claimed to have an interest, and from erecting a church edifice thereon. The obtaining of an injunction and the giving of the usual undertaking were part of the ordinary process and proceedings in such an action, and the intention and authority to do both are to be implied from the resolution authorizing the commencement and prosecution of the action; because the authority to do every thing necessary to the successful and effectual prosecution of the action is to be implied from such an act. It also appears from the complaint in this action, that the injunction thus obtained was dissolved at the special term of the supreme court, and thereupon the trustees appealed to the general term and moved for a new trial, which motion was also denied. Here was a distinct and emphatic recognition and ratification of whatever had been done by the president of the board of trustees in the prosecution of the action and in obtaining the injunction.' If it be assumed that the defendant Variants act in signing the bond was the act of an agent, it is impossible in the face of this evidence to say that it was done without authority. The trustees may have commenced an action which they could not maintain. They may have asserted rights which did not exist or which could only have been asserted by some other body or person. But this would not show that Mr. Varían was without authority to execute the bond in question.

I am of opinion, however, that the act in question was not the act of an agent, in the sense in which it must have been, to render the agent without authority personally liable. The defendant Varian did not sign as agent, or profess to act as the agent of the trustees. He was one of them himself, and their presiding officer, and what he did was done in that capacity, and under a resolution of the board of trustees, and not as their agent. His act was the act of the corporation itself. It could act in no other way. Its assent and signature to a bond or other instrument could only be given through its executive officers. Their act was its act, and the signature of Mr. Varian was put to the bond as the only means at its command by which it could bind itself. It was a defective execution, doubtless} because not made with the corporate seal. Defective as it was, it was still the act of the corporation itself, and so intended at the time. The directors or trustees and officers of a corporation are its agents, in a certain sense, because whatever they do is done for the corporation. But they are not its agents in the sense of one who acts under a power and authority delegated by a natural person. I have said a corporation can only act by and through its officers. In this way, only, can it hold communication and commerce with the rest of the world. And when its officers commence actions and sign their official names to instruments designed to be corporate acts for corporate purposes, in pursuance of resolutions of its directors or trustees, they must be regarded as its own acts and not the acts of persons exercising power and authority delegated by others. The referee therefore erred, I think, when he found as matter of law that the defendant William Varian acted without lawful authority.

[Kings General Term. December 14, 1858.

S. B. Strong, Emott and Brown, Justices.]

The judgment as to the defendants Blnathan Hawkins and James Palmer, administrator, &c. should be affirmed. And as to the defendant William Varian it should be reversed and a new trial at the circuit granted, with costs to abide the event.