Wheeler & Wilson Manuf'g Co. v. Elberson , 91 N.Y. Sup. Ct. 501 ( 1895 )

BROWN, P. J.

This action was brought to recover against the defendant as the maker of two promissory notes; also upon an account for merchandise sold. The cause of action upon the account is admitted to be barred by the statute of limitations. The notes were given to secure the payment of the purchase price of sewing machines, and one of them contained a provision that the title to the machine for the payment of which it was given should remain in the plaintiff (the vendor) until the note was paid. The defense was that, prior to the maturity of the notes, the defendant, being insolvent, entered into an agreement with the plaintiff whereby aB. the machines, together with certain shafting, transmitters, and other property, were surrendered to the plaintiff in consideration of the cancellation of the notes; that the plaintiff took possession of the property, and refused to surrender the notes. Instead of so doing, it credited upon them the value of the property received, and brought this action to recover the balance. Upon the issue thus raised the jury found for the defendant. The point is now made that the agent who negotiated the agreement with the defendant was without authority to bind the plaintiff to surrender the notes or cancel the debt. This point was not taken at the trial, and there was no request made to take the case from the jury, or to instruct them upon the question of the agent’s authority. The question cannot be raised for the first time on appeal, and is not now available to the appellant. The agreement, however, was supported by ample consideration in the surrender of the machine before the maturity of the notes, and in the transfer of shafting and other property, of which the defendant had the absolute title. And the plaintiff, having accepted the benefits of the contract, cannot now be permitted to question the authority of the agent who made it. The judgment must be affirmed, with costs. All concur.