FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88 session of the property of the defendant. The defendant insisted upon the payment of the account as a condition precedent, and refused, until its performance, to return the property to the plaintiff. The questions of fact were fairly submitted to the jury, and its verdict is supported by the evidence. In the outset of the negotiation for the renewal of the maturing notes before mentioned, one Martin, who was in the service of the Sherman firm as salesman, called upon the defendant and had an interview with him on the subject as he had been requested and instructed by the firm to do. There is evidence to the effect that the defendant then made to Martin a proposition as to the terms and conditions upon which a renewal of the notes would be granted, and requested Martin to submit the proposition by letter to his firm, and by it request Sherman & Sherman to wire him, defendant, whether or not they accepted it. Martin wrote the letter, which was followed by a telegram from them accepting the proposition. The letter, abstractly considered, was not competent as evidence, but in view of the fact that it appears to have stated the proposition as made by the defendant, and was sent at his request by Martin and acted upon by acceptance, the letter, in connection with evidence of the fact that it contained the proposition as made by the defendant, was competent as tending to prove the proposition which Sherman & Sherman by the telegram accepted. It appears that some time before the commencement of the action the plaintiff wrote the defendant that he had made a deposit of the amount of the account subject to the order of the defendant when the property should be received, examined and found to be in good condition. This letter was received in evidence without objection, and to the testimony of a witness to the fact that the money had been so deposited, the only specific ground of objection made was that it was not the best evidence. Neither the letter nor this evidence had any apparent materiality upon the issues on trial. But the objection specifically taken was not tenable. There was no error in the rulings at the trial to the prejudice of the defendant. The judgment and order should be affirmed. DWIGHT, P. J., LEWIS and WARD, JJ., concurred. Hun.] HENRY VAN WAGENEN, Respondent, v. GENESEE FALLS PERMANENT SAVINGS AND LOAN ASSOCIATION, Appellant. Estoppel as to facts peculiarly within the knowledge of a corporate officer or agent — payment of money to an officer of a savings and loan association—when not a payment to the association - the possession of a pass book does not conclude the association. When an agent or officer of a person or corporation acts within the apparent scope of his authority the principal is estopped from effectually asserting want of power in a particular case against a party who, in reliance upon such authority, has in good faith proceeded upon it and would suffer injury were the authority of the agent or officer repudiated by the principal. In such a case the principal is concluded by the representation of the agent as to any extrinsic fact which rests peculiarly within his knowledge, although false, and which is not ascertainable by reference to the power conferred in relation to the act so done by the agent. A party dealing with an agent is presumed to have ascertained his power and that his act corresponds with it. He may then take his representation as to the fact dehors the power, unknown to him, although such fact be misrepresented by the agent, who, by reason of the fact not being as represented, is denied the right to do the act which he assumes to perform as such agent. It was shown upon the trial of an action that the plaintiff, by the solicitation or advice of the secretary of a savings and loan association, consented to take twenty-five shares of stock therein and handed to the secretary a certain sum to be paid to the association (the defendant) as his entrance fee into membership, and that soon after the next regular meeting of the association the secretary handed to him a pass book of the association regular in form. Thereafter from time to time the plaintiff handed to the secretary (into whose company he was frequently brought and with whom he was on intimate relations) sums of money to pay for him to the association, which amounts were credited on such pass book. The secretary paid none of the money to the association but converted it to his own use. The articles of association of the defendant provided that all payments of the character of those made by the plaintiff must be made at the regular weekly meetings of the association, and on the plaintiff's pass book the amounts therein entered were entered as having been made on dates the same as those upon which the regular weekly meetings of the association were held. The duties of the secretary of the association, prescribed by the articles of association so far as pertinent, were to keep a correct account of all the proceedings of the association and to enter them in a book kept for that purpose; to keep an accurate account of all moneys paid the association and enter the same in a book kept for that purpose; to keep a true account between the association and the shareholders and to give the shareholders at all times any desired information in relation to its financial affairs. FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. The duty of the treasurer of the association was to be present and receive all moneys paid to the association and give his receipt to the secretary for the same. The practice was, that the money was paid to the treasurer, and his receipt to the secretary was not given as each payment was made by each member, but the entire payments at a meeting were embraced in a single receipt. Held, that the handing of the money to the secretary to pay to the association could not be treated as a payment to the association; That the secretary had no authority to represent the association in so receiving the money, nor could any such power be implied from the fact that he had on other and previous occasions received money from members and paid it in at the weekly meetings of the association; That the payments could be legitimately made only at the regular meetings of the association; That under the circumstances no equitable estoppel as against the association could be based upon the fact of the plaintiff's possession of the pass book. APPEAL by the defendant, the Genesee Falls Permanent Savings and Loan Association, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of April, 1894, upon the report of a referee. Edwin McKnight and H. Nelson Peck, for the appellant. Frank M. Goff, for the respondent. BRADLEY, J.: The defendant, a domestic corporation, was organized in 1887. Its place of business is the city of Rochester, N. Y. The plaintiff alleges that he became a member in June, 1891, by the purchase of twenty-five shares of its stock and payment of his entrance fee; that between that time and June 13, 1892, he paid to the defendant $140, and that having the right to withdraw the money so paid with dividends, etc., he demanded payment of such amount, which was refused. The defendant puts in issue all the allegations of the plaintiff other than that of its corporate existence and place of business. The defendant's articles of association provide that members not having received a loan may withdraw their shares, and thereupon the amount paid thereon shall be refunded as soon as the necessary funds are in the treasury. If the plaintiff was a member he had a Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. right to withdraw his shares and demand payment from the defendant of the amount paid in, etc. He gave the requisite notice for withdrawal, and demanded payment. The defendant refused to recognize him as a member of the association, and asserted that he had paid nothing to it. The main question which will be considered here, is whether or not he had by payment created any fund in the association. It is provided by the articles that the association shall hold regular meetings on every Monday evening, and that all payments must be made at the regular weekly meetings. The plaintiff attended no meetings and personally made no payments at any such meeting. Early in June, 1891, the plaintiff, on the solicitation or advice of George II. Butts, consented to take twenty-five shares, and he then handed to Butts two dollars and fifty cents to be paid to the defendant as entrance fee into membership, and soon after the next regular meeting of the association Butts handed to him a pass book regular in form as such, and thereafter from time to time until in June, 1892, the plaintiff handed and sent to Butts sums of money to pay for him to the association, which money, with that first mentioned, amounted to $140. This with the alleged dividends constitutes the amount of the fund which the plaintiff seeks to recover. It turns out that Butts paid none of the money to the defendant, and this fact was first brought to the attention of the plaintiff when he afterwards had delivered to another person a sum of money to pay to the defendant, and who having offered to pay it at a meeting of the association, was advised that the plaintiff was not a member, and that no money had been paid in by or for him. or for him. This last-mentioned sum was returned to him. The question, therefore, is whether or not the defendant is chargeable with the money so paid by the plaintiff to Butts. The plaintiff was a conductor on the New York Central and Hudson River Railroad, and resided at Niagara Falls. Butts was an express messenger. They were frequently brought together, and their relations were intimate. Butts became secretary of the defendant in 1887, and continued in that relation to it until in July, 1892. When the pass book was handed to the plaintiff it contained the entry of the sum of two dollars and fifty cents as of the date of the previous meeting of the association. The pass book accompanied all the other sums handed to Butts, and when it was FIFTH DEPARTMENT, JUNE TERM, 1895, [Vol. 88. returned by him to the plaintiff it had the entry upon it as of date of regular meetings respectively of the sums so delivered and sent to him by the plaintiff. The plaintiff knew the methods of the transaction of the business of the association and what was required by the articles in that respect. He also knew that Butts was its secretary. He had in like manner previously transacted business through him when the plaintiff was a member of the association as trustee for his children, which relation was terminated some two years before. The claim of liability of the defendant is founded mainly on the fact that Butts was such secretary. By reference to the articles of association it is seen that it is the duty of the secretary to keep a correct account of all proceedings of the association and to enter them in a book kept for the purpose; to keep an accurate account of all moneys paid the association and enter the same in a book kept for the purpose; to keep a true account between the association and the shareholders, and to give the shareholders at all times any desired information in relation to its financial affairs. There are certain other duties to which it is unnecessary to refer. He is also required to give security for the faithful performance of his duties. These are duties which he owed to the defendant in his official relation to it. There is also a treasurer whose duty it is "to be present and receive all moneys paid to the association, and give his receipt to the secretary for the same, and to pay all orders approved by the board of directors and signed by the president and secretary, to compare and settle with the secretary quarterly all accounts." Whatever may be the construction to which that provision of the articles is entitled it seems that the practice was such that money was paid to the treasurer, and his receipt to the secretary was not as payment was made by each member, but the entire payments at a meeting were embraced in a single receipt It is very clear that the handing of money to the person who was secretary to pay to the defendant cannot be treated as a payment to it. He had no authority to represent the association in Nor can any such power be implied from the fact. that he had on other and previous occasions received money from members and paid it in at the weekly meetings. It was the payment there and that only which can be deemed recognized by the defendant in behalf of such members in relation to such payments. so receiving it. |