Thomson v. The Sixpenny Savings Bank of the City of New York. CHARLES THOMSON, Plaintiff and Respondent, v. THE SIXPENNY SAVINGS BANK, of the City of New York, Defendants and Appellants. A corporation was created for the purpose of receiving on deposit sums offered therefor by mariners, tradesmen, clerks, mechanics, laborers, minors, servants and others, and investing the same in State or city stocks or bonds, or loaning the same on such securities, or on bond and mortgage on real estate, for the use and advantage of the depositors; the business of the corporation to be managed by a Board of Trustees, who were authorized to appoint a President and two Vice-Presidents; and power was given to hold only such real estate as was necessary for the transaction of its business, and such as should be purchased at sales upon judgments or decrees obtained for money so loaned, and the corporation was prohibited dealing in or buying or selling any goods, wares or merchandise. The by-laws provided for monthly meetings of the Trustees, and conferred the superintendence and management upon seven Trustees during the interval. Upon the foreclosure of a mortgage, held by such corporation, upon a manufactory, and a sale of the mortgaged premises, the corporation became the purchaser. Thereafter, and after the corporation had taken possession, one of the Vice-Presidents, without the authority of the Trustees, forbade the removal of certain tools and machinery therefrom by the purchaser thereof under a sale by virtue of a mortgage upon such tools and machinery, alleging that, as to any of the articles which were fixtures, they were the property of the corporation, and declining to specify which he claimed to be fixtures, until consultation could be had for the purpose of ascertaining which were in law fixtures passing to the corporation under the first named foreclosure sale. 1. Held: That if the act of the Vice-President was such as to amount to a tortious conversion of the tools, the corporation was not liable for his acts. 2. Proof that he acted by the authority and sanction of the President would not be sufficient to subject the corporation to such liability. 3. A subsequent demand of the property being made of the Vice-President at the place of his private business, he replied that he would lay the matter before the Trustees of the corporation: Held, that this did not render the corporation liable as for a refusal to permit the plaintiff to take his property. 4. Whether, if the action had been against such Vice-President as an individual, his statement at the time he prohibited the removal, that he only claimed to detain such tools as were fixtures, and as such belonged to the Thomson v. The Sixpenny Savings Bank of the City of New York. corporation, would have justified him in forbidding the removal of any tools until the question which were fixtures was determined, or would have been a defense? Quare. 5. And whether the subsequent consent of the plaintiff to refer the question, which were fixtures, to the counsel for the respective parties, and to abide by their decision, was not a waiver of any such previous wrong, if any? Quære. 6. How far a qualified refusal to deliver on demand is to be taken as evidence of conversion considered. (Before WOODRuff, Pierrepont and MONCRIEF, J. J.) Heard, February 18; decided, October 29, 1859. APPEAL from a judgment rendered on a verdict for the plaintiff, for $4,801.80 damages and costs. The complaint alleged the incorporation of the defendants, the plaintiff's ownership of four drilling machines, eight engine lathes, three planing machines, one steam engine, and other machines and tools of the value of $8,000; that the defendants, on, &c., became possessed thereof, and have refused to deliver the same to the plaintiff, but on the contrary have converted and disposed thereof to their own use; and demanded damages for such wrongful conversion and disposition of the property. The answer denied all these allegations, and stated that the articles were and are in a certain building specified; that the defendants never have made, and do not make, any claim to the said articles; and the defendants in the answer offered to deliver the same to the plaintiff. On the trial the proofs showed that the defendants, upon the foreclosure of a mortgage, given by Sloan & Leggett, held by them upon the building or manufactory in which the property was in use, became the purchasers of the building; that there was then outstanding a mortgage given by the same parties (Sloan & Leggett) upon the chattels now in question; that such last named mortgage was foreclosed by a sale of the chattels at auction on the 30th January, 1857, by the mortgagee, in pursuance of a power contained therein, and at such sale the plaintiff purchased the articles mentioned in the complaint. At the sale of the mortgaged chattels, William Miles, the VicePresident of the defendants, was present. The sale took place on Thomson v. The Sixpenny Savings Bank of the City of New York. the premises. He was there professing to act for the defendants as owners of the manufactory. When the auctioneer was about to sell the mortgaged chattels, Mr. Miles, according to the testimony of some of the witnesses, forbade the sale; according to some of the testimony, he forbade the sale of any of the articles which were fixtures, and according to other testimony he forbade the sale of anything belonging to the defendants; but being called on to state which articles he claimed to be fixtures, or to belong to the defendants, he declined doing so at that time. The sale proceeded, and the plaintiff became the purchaser of the articles in question, and Miles instructed the person in charge of the building not to allow the removal of any of the articles until it was ascertained which belonged to the defendants. There was evidence that, immediately after the sale, the plaintiff and Miles agreed to refer the question which, if any, of the articles were fixtures belonging to the defendants to their respective attorneys, who should meet at the building two days thereafter, and to abide by their decision or opinion. Several days elapsed, and the attorneys not having so met, the plaintiff sent a messenger on the 9th of February to the store (or place of private business) of the said Miles, and made a written demand of the chattels, to which he replied that he would lay it before the Board of Trustees of the Bank. A like demand was also made of the person whom Miles had instructed to detain the articles, and his answer was, that he was instructed not to deliver the articles. The President being called upon, referred the plaintiff to the Vice-President. There was evidence tending to show that, after this, and before suit brought, the attorney for the defendants stated to the plaintiff's attorney, at an interview between them, that the defendants had no objection to his taking the articles. After suit brought, the defendants' attorney, in writing, declared to the plaintiff's attorney that the defendants made no claim to the articles mentioned in the complaint, and did not and had not refused to deliver them. There was some conflict of testimony; and the opinion of the Court refers to some of the evidence, which it is not necessary here to repeat. Thomson v. The Sixpenny Savings Bank of the City of New York. The opinion also states the provisions of the defendants' charter defining the object of the incorporation. It further declared the purpose to be, the investment of the moneys deposited in State or city stocks or bonds, or loaning them on such securities, or on bond and mortgage, for the benefit of the depositors, and authorized the corporation to purchase, on foreclosure or on sales on judgments, the real estate sold. The 16th of their by-laws provided as follows: "A monthly Attending Committee of seven Trustees shall be appointed, whose duty shall be to attend at the Bank during the month, when necessary, and to have the general superintendence and management of it during the recess of the Board. They shall keep minutes of their proceedings, and lay them before the Board of Trustees at each monthly meeting, noting particularly the amount deposited and drawn out." There was no evidence defining the powers of the President; and the proof in relation to the Vice-President only showed that he was to act in the absence of the President. The requests of the defendants' counsel for special instructions to the jury, and the charge as given, are sufficiently stated in the opinion of the Court. The jury rendered a verdict for the plaintiff for $4,623 damages; and for that sum, and for $178.80 costs, judgment was entered, from which the defendants appealed. Charles T. Cromwell, for defendants, (appellants.) I. The defendant has no corporate power other than express trust powers, which are confined (§ 6 of act) to receiving deposits from laborers, minors, mechanics and others, of five cents and over, and investing the funds deposited. It cannot be forced to take personal property, which it is expressly prohibited from taking, or from selling after it is taken, nor can it, therefore, be made liable in damages for a tort, because the enforcements of such liabilities would necessarily work a breach of trust, to the injury of its cestui que trusts, for it would be directly taking from those laborers, minors, and mechanics, the amount of this judgment, and forcing upon it an investment of that amount in old rusty tools; and such liability would force on the corporation a direct violation of its act of incorporation, which positively pro Thomson v. The Sixpenny Savings Bank of the City of New York. hibits it from "directly or indirectly dealing or trading in, buying or selling any goods, wares or merchandise." (Laws of 1853, 670; N. Y. Firemen's Ins. Co. v. Ely, 2 Cow., 678; McCullough v. Moss, 5 Denio, 567, overruling 5 Hill, 137; 2 Denio, 110.) II. The trespass complained of was not authorized by the defendant. No express authority was shown, nor were the acts of Miles within the scope, actual or apparent, of his agency as an officer of the Bank. His duties, by the charter and its by-laws, are restricted simply to preside at the Board in the absence of the President. The defendant, therefore, cannot be made liable for Miles' acts, especially if they were tortious. (Wright v. Wilcox, 19 Wend., 345; National Bank v. Norton, 1 Hill, 572; Vanderbilt v. The Richmond Turnpike Co., 2 Comst., 479, and cases cited; Mechanics' Bunk v. N. Y. & N. H. R. R. Co., 3 Kern., 633; Weed v. Panama R. R., 17 N. Y., 362; Philadelphia R. R. v. Derby, 14 How. U. S., 468; Story on Bailments, § 400, et seq.; 5 Denio, 567; 2 id., 110.) III. The third proposition of the charge to which the plaintiff excepted was erroneous, and calculated to mislead the jury. 1. There was not any evidence tending to prove that the Trustees had any knowledge of, or that they in any manner sanctioned, the acts of Miles complained of. 2. The President had no power, by virtue of his office, to sanction or authorize such acts, and no express authority was shown; on the contrary, the existence of such a power was negatived, and the plaintiff was expressly notified of this absence of authority. (See 16th by-law, also act of incorporation.) 3. If the President was vested with such a power he could not delegate it to another. (Paley's Agency, by Dunlap, 175, and n. A; 2 Kent's Com., 613; Lyon v. Jerome, per VERPLANCK, Sen., 26 Wend., 485; Com. Bank v. Norton, 1 Hill, 501.) 4. The President did not, in fact, assume to confer any such power. IV. The Court also erred in refusing to charge as requested, that the proof was insufficient to make out a conversion, and in its instructions to the jury on these points. |