Goodwin v. Kelly

By the Court,

Geo. G. Barnard, J.

An objection was raised to the reception of a power of attorney by the husband to the wife. No authorities were cited in support of the objection. It is well established that a married woman may act as the agent of her husband, and such agency may be created either verbally or by writing. An addition of a seal to the waiting surely cannot have the effect to destroy the agency.

The appellant insists that the bill of sale was in effect a 'mortgage, and there being no immediate, actual and continued change of possession of the property, and the paper .not being filed, that it was absolutely void against the defendant. Assuming, for the moment, that the instrument was a mortgage, the question turns upon whether there was a change of possession; and if not, what effect the want of it has.

It appears that Grori himself was absent, and the property was in the ware room formerly of Grori & Bourlier, but then of Bourlier only. There is some evidence that within a week after the execution of the paper, the plaintiff demanded the goods of Bourlier, and for reasons suggested by Bourlier it was left in his possession. There is evidence to the effect that Bourlier demanded commissions on the sale to the plaintiff before he would give up the property.

If property mortgaged is in the possession of a third person, an immediate delivery is not necessary. (Nash v. Ely, 19 Wend. 523.) I am inclined to think that the rule in Nash v. Ely is applicable to this case, upon the above facts. As there are no exceptions to the charge, we must assume that it was left to the jury to determine whether the transaction was made in good faith and without an intent to defraud creditors or purchasers.

The jury have by their verdict found that the transaction was bona fide, &c. and their verdict does not so greatly preponderate against the evidence as to justify interference: so that, even if the transaction be considered a mortgage, the judgment should he affirmed.

But I think that the transaction in question was not a mortgage. The appellant’s counsel refers to the following proof: “ I told him, if he wished, I would sell him the property for $1000; or if I could return him the money I would do so ; if not, and he could make an arrangement, he could have the property for $1000.” That proof must he taken in connection with all the evidence. Mrs. GS-ori had testified that the plaintiff had some time before loaned her $200. She was then asked what was said about that $200, in reference to this sale. In answer to this question she gives the proof relied on by the appellant. This proof is susceptible of the construction that when Mrs. Grori got the $200, she said to the plaintiff she would return it if she could, or if not she would sell the property for $1000, if he could make an arrangement. It was a question for the jury to determine, upon all the evidence, whether this was a mere mortgage or an absolute sale, under proper direction from the court. That the judge gave the proper directions must be assumed, as there are no exceptions to his charge.

[New Yobk Gekebai Teem, May 2, 1864.

As the jury have given a general verdict, the court cannot say but that such Verdict was arrived at on the ground that the transaction was an absolute sale. The proof does not so preponderate as to call for interference with the verdict on this point. Assuming the jury to have found this to be an absolute sale, then, if it were made in good faith, and without intent to defraud creditors or purchasers, it is valid, even though there were no immediate, actual and continued change of jrossession. Upon this question there was sufficient evidence to take the case'to the jury, under proper instructions from the court. The instructions given must be assumed to have been proper, as there are no exceptions. The jury having found in the plaintiff’s favor, their finding is conclusive on the point, as the evidence does not strongly preponderate against their verdict.

Judgment affirmed, with costs.

Leonard, Gierke and Geo, G. Barnard, Justices.]