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verted to; but this acceptance was not under seal. It would seem to follow that the rule of law above stated cannot apply to prevent proof of the fact for whom Thoms was acting in accepting the option. It is the acceptance, and not the sealed option, that must be considered in determining whether Thoms' agreement to purchase was a contract under seal.

[3] But it is claimed by appellant Howe & Rogers Company that the proof was not sufficient to warrant the finding that Thoms in making the contract was acting as agent for the former. It is quite true that the proof was perhaps insufficient to warrant the finding of an original employment of him by the company to act as its agent to make the purchase. But the evidence is ample to sustain the finding that his acts as its agent in making the purchase were subsequently ratified by the company. In order to understand the transactions out of which the matters now in controversy arose, it is advisable to refer to the circumstances preceding the making of the contract. Howe & Rogers Company apparently contemplated the purchase of premises on the southwest corner of Clinton avenue South and a street entering Clinton avenue from the west, known as Johnson Park and the subsequent erection of a building thereon. At a special meeting of the directors of the company, held February 6, 1913, certain resolutions were adopted by which two of their number, How and Connors were authorized to negotiate for the purchase of certain premises which are designated in the resolution. These properties abutted either on Clinton avenue, or Johnson Park, or both. Plaintiff's premises are not, however, designated in the resolution; but they lie directly west of and adjoining the tract made up of the designated properties, and extend west to Stone street, which is a street running north and south parallel with Clinton avenue. If all of the properties above referred to were purchased by the Howe & Rogers Company, it would then own land extending from Clinton avenue on the east to Stone street on the west. This purchase seems at least to have been at that time contemplated by Connors, who was the secretary and treasurer of the defendant company. All the negotiations between Thoms and defendant company with reference to the purchase of plaintiff's land were had by Connors. But both Thoms and Connors understood that Thoms, in procuring and in accepting the option to purchase the land, was acting for the company. Connors directed Thoms to accept the option, and gave Thoms the check of the defendant Howe & Rogers Company for $1,000, with which the latter made the payment on the purchase price at the time he accepted the option. Howe, the vice president of the defendant company, was consulted by Connors and was kept apprised of what had been done. The payment of the $1,000 upon the purchase price of the premises was duly entered in the books of account of the company, and down to the time of the trial the account was carried on its books as an account relating to these premises. Rogers, the company's president, was absent from the state at the time the contract was made; but he seems to have been advised of what had been done on his return as early as the May following. The proposed deed from plaintiff and the re

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quired abstracts of title were delivered by plaintiff to Thoms, who immediately delivered them to Connors. Thence they passed into the hands of the company's attorney, apparently for examination; and the attorneys for this defendant produced them on the trial.

[4] No definite attempt seems to have been made either to return the papers before or after the action was brought, nor to distinctly disavow the company's liability as principal in the contract till after action on the contract was begun. I think, under all the circumstances, a ratification of Connors' acts, even if he was not originally authorized to bind the company in employing Thoms as an agent to buy the property in question for it, was well warranted by the evidence. That a corporation may ratify acts, not previously authorized by it, of one assuming to act as its agent, cannot be doubted. As was said in Hoyt v. Thompson's Executors, 19 N. Y. 207, 218;

"A corporation may, like an individual, ratify the acts of its agents done in excess of their authority, and such ratification may, in many cases, be inferred from an informal acquiescence in and approval of those acts.”

It should also be noted that neither the company's president, Rogers, nor its vice president, Howe, was produced as a witness to deny, or even minimize the effect of, his knowledge of these transactions tending to show a ratification of the acts of Connors as the agent of the company in reference to this purchase. I think there can be little doubt that the findings of ratification was fully supported by the evidence.

[5] The judgment, however, should be modified in one particular, as claimed by appellant Thoms. If Thoms was the agent of defendant company, then the latter would be the principal debtor, and Thoms' liability would be second and subsequent only. The judgment should therefore be modified, so as to provide that in case of a deficiency on the sale thereby directed no execution shall issue therefor against the defendant Thoms until the return of an execution therefor against the defendant Howe & Rogers Company, unsatisfied in whole or in part. This modification may be made by adding, after the words "that the plaintiff have judgment against the defendants for such deficiency and have execution therefor," the words "except that no execution therefor shall issue against the defendant Thoms until the return of an execution therefor against the defendant Howe & Rogers Company unsatisfied in whole or in part."

[6] Doubtless, when plaintiff's motion for judgment on the pleadings against defendant Thoms was granted by the trial court at the opening of the trial, the defendant Howe & Rogers Company could then have insisted that plaintiff had made an election binding upon him to hold the agent only; and a motion for dismissal of the complaint as against the remaining defendant, if made, must have been granted. But no such motion was made, either then or thereafter, and no request made that the court so hold. I think we must hold that the point was waived.

The judgment, modified as hereinbefore stated, should be affirmed, with costs against the appellant Howe & Rogers Company. All concur.

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(166 App. Div. 593) FAMOBROSIS SOCIETY V. ROYAL BENEFIT SOCIETY et al. (No. 6864.)

(Supreme Court, Appellate Division, First Department. March 12, 1915.) 1. JUDGMENT Oma 17-PROCESS TO SUPPORT-ILLINOIS STATUTE.

Where plaintiff fraternal insurance association had neither property nor office in Illinois, and was not authorized to transact business there, and where three individuals, who were agents for defendant fraternal insurance association, whose only relation to plaintiff was that of trustee, had been served in Illinois with process in an action in the courts of that state in which both plaintiff and defendant had been joined as defendants, there was no sufficient service on plaintiff, under Hurd's Rev. St. Ill. 1913, c. 110, § 8, providing for service of process on corporations, to render the judgment valid and binding on the plaintiff, so that the defendant could plead it in bar of a suit here on the same issue.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $S 25–33; Dec.

Dig. Om 17.) 2. JUDGMENT 17—NOTICE OF SUIT TO SUSTAIN-APPEARANCE BY ATTORNEY,

Where the appearance of an attorney for plaintiff and defendant in an action in the Illinois court against them jointly was not shown to have been authorized by plaintiff, jurisdiction of the plaintiff was not thereby given the court, to render its judgment conclusive on the plaintiff in suit against defendant in another state.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $$ 25-33; Dec.

Dig. Om 17.] 3. JUDGMENT Om 818—NOTICE TO SUSTAIN UNAUTHORIZED APPEARANCE BY

ATTORNEY-COLLATERAL ATTACK.

The rule that the authority of an attorney to represent a party to a suit cannot be collaterally attacked in attempting to invalidate a judg. ment has no application, where the judgment was recovered in the courts of another state.

[Ed. Note.--For other cases, see Judgment, Cent. Dig. 88 1458–1481; Dec, Dig. Om818.]

Appeal from Special Term, New York County.

Action by the Famobrosis Society against the Royal Benefit Society and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

See, also, 150 N. Y. Supp. 1085; 159 App. Div. 902, 143 N. Y. Supp. 1116.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

William H. Ford, of New York City, for appellants,
W. H. Van Steenbergh, of New York City, for respondent.

McLAUGHLIN, J. The Famobrosis Society and Royal Benefit Society are fraternal insurance associations incorporated under the laws of the District of Columbia. Prior to December 31, 1909, the Famobrosis Society had accumulated a reserve fund of upwards of $30,000, which was deposited with certain banks and trust companies in the city of New York, which, with the Royal Benefit Society, are made parties defendant in this action. On that day the two associations entered into a written agreement, by the terms of which the Royal Benefit Society undertook, as trustee, the management of the affairs of the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & ludexes

Famobrosis Society, agreeing to perform its obligations, to establish and promote a separate department under the name of "Famobrosis Division of the Royal Benefit Society,” and to keep the accounts of that department separate and distinct from its other accounts. The agreement also provided that no change should be made in the reserve fund which the Famobrosis Society had accumulated; the same being designated as a trust fund for the purpose for which it was created. The bank books and securities representing this fund were, however, to be delivered in escrow to one McElvain, treasurer of the Royal Benefit Society. The present litigation between the two societies involves more particularly paragraph 7 of the agreement, which provides as follows:

"When one thousand new members are secured by party of the first part (Royal Benefit Society] in said Famobrosis Division, and they are or shall have been in good standing for at least three months preceding, then this agreement, at the option of said party of the first part, shall cease and determine. Thirty days' notice of intention to exercise such option shall be given by it. A final settlement shall then be had and made between the parties hereto. The trusteeship shall end. All the members, assets, property, funds, and appurtenances of the party of the second part [the Famobrosis Society) shall then pass into the custody and under the care and control of the party of the first part, with all the rights, responsibilities, and duties in respect thereto as are now held, enjoyed, exercised, imposed, and charged upon the party of the first part.”

On May 2, 1911, the Royal Benefit Society notified the Famobrosis Society that it had fully performed the agreement on its part and thereby exercised its election that the agreement should terminate. In November, 1911, the plaintiff commenced this action. The complaint alleges that the Famobrosis Society was induced to enter into the agreement referred to by reason of fraudulent representations of the Royal Benefit Society; also that it had not performed the agreement on its part. The judgment demanded is that the agreement be canceled, that the bank books, securities, etc., be returned to the plaintiff, that it be adjudged to be the sole owner of the funds in question, and that the Royal Benefit Society be enjoined from interfering with, and the banks and trust companies from paying over, said funds until the further order of the court. The Royal Benefit Society in its answer sets up, among other defenses, as a bar to the maintenance of this action, a decree of the circuit court of the state of Illinois, rendered in December, 1911, in an action in which two alleged members of the Famobrosis Division of the Royal Benefit Society-Avery and Gile--were plaintiffs and the Famobrosis Society and Royal Benefit Society were, with others, parties defendant. The plaintiff replied, putting in issue the validity of the Illinois judgment, and upon a motion by defendant it was ordered that the issue thus raised be separately tried prior to the trial of any of the other issues involved in the action. After a trial of that issue an interlocutory judgment was entered in favor of the plaintiff, to the effect that the judgment or decree of the Illinois courts was not a bar to the maintenance of this action. The appeal is from that judgment.

I am of the opinion that the judgment appealed from is in the main right, and should be affirmed. The Illinois action was commenced in

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Auglist, 1911. The plaintiffs, in their bill or complaint, alleged that the Royal Benefit Society had fully performed its part of the agreement of December 31, 1909; that it thereupon became entitled to the funds and other assets of the Famobrosis Society; that, instead of taking over such property, the Royal Benefit Society was considering a new arrangement with the Famobrosis Society, which would result in great injury to the plaintiffs. The judgment demanded was that the agreement of December 31, 1909, be construed, and that all of the funds of the Famobrosis Society be adjudged to belong to and be the property of the Royal Benefit Society. A joint answer was interposed on behalf of the Famobrosis Society and the Royal Benefit Society, by an attorney by the name of Kenney. While calling attention to the fact that there was or had been a dispute between the two societies as to whether the agreement of December 31, 1909, had been fully performed, it alleged that the Royal Benefit Society had fully performed on its part, and it was therefore entitled to a judgment or decree to that effect. The Illinois court found as a fact that the Royal Benefit Society had performed the agrement upon its part, and by reason thereof had become vested with all the property of the Famobrosis Society.

The Famobrosis Society contends that the judgment is not binding upon it, since the court did not have jurisdiction of it. If this contention be correct, then it necessarily follows that the judgment is not binding upon this plaintiff, and does not prevent its maintaining this action.

[1] After a careful consideration of all the evidence bearing upon the steps taken in the Illinois action to obtain jurisdiction of the Famobrosis Society, I am satisfied such jurisdiction was not obtained. Seryice of process iipon a corporation, other than by publication, under the statute of Illinois, is provided for in section 8 of Practice Act, which provides as follows:

“An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought. If he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county; and, in case the proper officer shall make return upon such process that he cannot in his county, find any" -of the persons named, then the corporation may be notified by publication and mail in like manner and with like effect as is provided in sections 12 and 13 of an act entitled “An act to regulate the practice in courts of chancery."

The summons in the Illinois action was served upon Thomas W. Wilson, national president of the Royal Benefit Society, Charles D. Brainard, national treasurer of the Royal Benefit Society, and Samuel S. McElvain, the persons named in the agreement of December 31, 1909, to whom were to be delivered in escrow the bank books, etc., of the Famobrosis Society. The return of the sheriff recites that the Royal Benefit Society, Wilson, Brainard, and McElvain, were served individually and as agents of the Famobrosis Society. While it appears that the Royal Benefit Society had a branch office in the state of

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