Curnen v. Ryan

Mills, J. (dissenting):

The crucial question here is whether or not Ryan as against Curnen had authority to sell the award to the Canadian capitalists — either directly or impliedly through some form of estoppel. If he had no such authority, then I think, barring any question of laches, plaintiff Curnen could in equity seek and gain the relief which by the judgment has been awarded to him. I think that the undisputed facts and the inferences fairly to be drawn from them answer the above inquiry in the affirmative. This I conclude for the following reasons, viz.:

(a) The award, according to the "finding, was really in the name of Ryan, viz.: “ International Shipbuilding and Marine Engineering Company, John J. Ryan, by John J. Ryan,. Manager.” There was no such corporation. The bid, therefore, was really in form by Ryan, and the award was really to him. If Curnen was, as found, a half owner of it with Ryan, he, Curnen, suffered the Canadians to deal with Ryan as sole owner and, therefore, should be held estopped from disputing as to them Ryan’s authority to deal with them as such, inasmuch as they did so deal with him in entire good faith.

(b) It is evident that the two, Curnen and Ryan, in the matter of the bid and award were co-adventurers; that neither had the capital to carry out the proposed work, and that their real purpose was to dispose of the award. It was, therefore, within the obvious scheme of their copartnership to dispose of the award outright, or at least for a part of the stock of the corporation which capitalists might form to do the work under the award. Hence Ryan had real authority from Curnen to dispose of the award as he did for an interest in the working corporation formed by the Canadian capitalists. The telegram by plaintiff to Ryan of April 9, 1917, fairly implies that Curnen realized that Ryan could then in Detroit make valid, such deal and, therefore, deemed it necessary to specially stop him from so doing until he, Curnen, had a chance to submit a proposition which he was attempting to negotiate. Moreover, it is evident that when Curnen first learned of the deal actually made by Ryan with the Canadians, he did not repudiate Ryan’s authority to make it, but merely complained, in effect, that Ryan was not giving him his share, viz., that “ he [Curnen] had been given a rotten dirty deal;” and the break between them evidently came from Ryan’s disputing the amount due from him to Curnen for moneys advanced or loaned. From the facts in reference to this phase of the matter as found, it is evident that from May 5, 1917, when Curnen became fully advised of the deal made by Ryan, to July 27, 1917, when this action was commenced, Curnen made no claim against the Canadians or their corporation, but made his claim merely against Ryan personally. Meanwhile, evidently the corporation was proceeding with the execution of the contract and completed some of the submarine chasers.

My conclusion, therefore, is that Curnen is bound by the contract made by Ryan with the Canadians and their corporation: (a) Because such a deal was within the real authority of Ryan as co-adventurer with Curnen; (b) because it was certainly within the apparent. such authority of Ryan, i. e., within the appearances with which Curnen had clothed him and upon which the Canadians in good faith acted; and (c) because Curnen did not at once, upon being informed of the deal, repudiate to the Canadians and their corporation Ryan’s such authority, but suffered them to go on with their expenditures and work upon the faith of such authority. In short, the situation appears to be this, that the two adventurers (here using the term in the other and dubious sense), having entered into a scheme to exploit the government, and to that end taken an award which they were utterly incapable of carrying out, did by one of them sell it for a substantial price to the Canadian capitalists and then quarreled among themselves as to the division of that price, and after, through such quarrel, Ryan, who had received the whole price, had made away with it, then the other one, Curnen, made claim upon the Canadians. To my mind there is no merit, legal or equitable, in such claim.

Therefore, while I appreciate the great care which Mr. Justice Kelly has exercised in considering the appeal and preparing his opinion, I feel constrained to dissent therefrom.

Jenks, P. J., concurred.

Judgment affirmed, with costs.