1

resentation, or silence designs to influence another to believe a certain state of facts to be true, and to act upon it, and it has that effect, the former is estopped from averring the contrary, is approved in many subsequent cases: Foster v. Newland, 21 Wend. 97; Corning v. Gould, 16 Id. 543; Weed v. Saratoga etc. R. R. Co., 19 Id. 537; Greenvault v. Davis, 4 Hill, 648; Dezell v. Odell, 3 Id. 222; Wright v. Douglass, 10 Barb. 108; Truscott v. Davis, 4 Id 498; Carpenter v. Stilwell, 12 Id. 135, 136; S. C., in court of appeals, 11 N. Y. 74, per W. F. Allen, J.; Martin v. Angell, 7 Barb. 410; Lounsbury v. Depew, 28 Id. 49; Strong v. Strickland, 32 Id. 289; Hawley v. Griswold, 42 Id. 23; Rice v. Dewey, 54 Id. 471; Gerber v. Monie, 56 Id. 660; Finnegan v. Carahar, 61 Id. 255; Reynolds v. Garner, 66 Id. 314; National Park Bank v. Fourth National Bank, 7 Abb. Pr. N. S., 142; Maybee v. Sniffen, 2 E. D. Smith, 14; Young v. Bushnell, 8 Bos. 16; Sparrow v. Kingman, 1 N. Y. 253, per Wright, J.; Moss v. Averell, 10 Id. 459; O'Donnell v. Kelsey, Id. 419, 420; Plumb v. Cattaraugus etc. Ins. Co., 18 Id. 395; Hathaway v. Payne, 34 Id. 109; Abeel v. Van Gelder, 36 Id. 514; Blair v. Wait, 69 Id. 116; Banks v. American Tract Society, 4 Sandf. Ch. 467. But an admission or representation must have been intended to influence, and must have actually influenced the conduct of another to constitute an estoppel: Otis v. Sill, 8 Barb. 108; Pennell v. Hinman, 7 Id. 649; Wallace v. Bassett, 41 Id. 97; Stackpole v. Robbins, 47 Id. 218; Donaldson v. Hall, 2 Daly, 327; Harper v. Leal, 10 How. Pr. 281; Requa v. Holmes, 19 Id. 445; Gillespie v. Carpenter, 25 Id. 207; S. C., 1 Rob. 70, all citing the principal case. In Stever v. Sornberger, 24 Wend. 276, and Gregory v. Levy, 12 Barb. 611, the doctrine of Welland Canal Co. v. Hathaway is relied on to support the position that bail are estopped from denying the principal's liability to arrest, when sued on the recognizance. The doctrine is applied only where it would be against good conscience and honest dealing to aver the contrary of a previous admission, representation, etc., which has influenced another's conduct: Delaplaine v. Hitchcock, 6 Hill, 17; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 158; N. Y. etc. R. R. Co. v. Schuyler, 34 N. Y., 60; Wilcox v. Howell, 44 Id. 402; all relying on the principal case. The principle that such an estoppel must be reciprocal and binding on both parties, or on neither, is approved in Green v. Russell, 5 Hill, 185; Wright v. Douglass, 10 Barb. 108; Cohoes Co. v. Goss, 13 Id. 146; Clute v. Jones, 28 N.Y., 284. On the authority of the principal case, it is held also in Dwight v. Peart, 24 Barb. 57, that an estoppel in pais does not arise where there is no privity of contract or estate. Its authority is relied on in Reed v. Pratt, 2 Hill, 67, for the principle that an estoppel in pais need not be pleaded.

ESTOPPEL OF ONE DEALING WITH CORPORATION.-A promissory note given to a company, as a corporation, is held, in Pacific Bank v. De Ro, 37 Cal. 538, and in John v. Farmers and Mechanics' Bank, 20 Am. Dec. 118, to estop the maker from denying that at its date the company was a corporation. But in First Baptist Society v. Rapalee, 16 Wend. 607, and Buffalo etc. R. R. Co. v. Cary, 26 N. Y. 80, it is held, citing Welland Canal Co. v. Hathaway, that one making a contract with a company or society by its common name is not estopped from requiring proof of its incorporation when sued on such contract. The case is referred to as authority on the same subject in Loaners' Bank v. Jacoby, 10 Hun, 145, and De Witt v. Hastings, 40 N. Y. Sup. Ct. (S Jones & Spencer) 479. A member of a corporation, when sued for his subscription, is estopped to allege that it is not duly incorporated where it has transacted business as a corporation for several years: Chester Glass Co. v. Dewey, 8 Am. Dec. 128. A purchaser of an article from a corporation is estopped, when sued for the price, from objecting that it was prohibited from

trading in such articles: Id. As to the estoppel of one contracting with a corporation to allege that the contract is ultra vires, when sued thereon, see New York Firemen Ins. Co. v. Ely, 13 Am. Dec. 100, and note. A party suing a corporation, as such, can not, at a subsequent stage of the cause, deny its corporate existence: Society v. Morris Canal Co., 21 Id. 41.

ADMISSIONS, WHEN COMPETENT AS EVIDENCE.-The principle above laid down, that the admissions of a party are competent as evidence only where parol proof is admissible, is referred to with approval in Miller v. Plate, 5 Duer, 275, Keator v. Dimmick, 46 Barb. 160, 161, and Sherman v. People, 13 Hun, 577. Nor can such an admission be substituted for record evidence: Stewart v. Wells, 6 Barb. 82.

GUERNSEY V. CARVER.

[8 WENDELL, 492.]

JUDGMENT IN AN ACTION FOR PART OF AN ENTIRE AND INDIVISIBLE DEMAND is a conclusive bar to a subsequent suit for another part of the same demand.

ACCOUNT FOR GOODS SOLD IS AN ENTIRE DEMAND, where it is wholly due, and can not be split into several causes of action.

ERROR from the common pleas. The action was originally brought in a justice's court by Carver, the defendant in error, who was plaintiff below, to recover from the plaintiff in error, who was defendant below, on a book account for certain items of merchandise delivered between July 20 and August 27, 1828. Pleas, the general issue, and a former suit for the same cause wherein the defendant recovered his costs. Judgment for the defendant, now plaintiff in error, on the latter plea. On appeal to the common pleas it appeared that at the time of the former suit the plaintiff had account against the defendant running from June 4 to August 27, 1828, which was all due, and that the former suit was for items in said account furnished prior to July 19, while the present suit was for the remaining items. The common pleas decided that as this was a running account without any special agreement, each item formed a distinct cause of action which might be sued separately. Verdict and judgment for the plaintiff for the amount sued for. The defendant excepted and brought this writ of error.

M. F. Delano, for the plaintiff in error, cited: 15 Johns. 432, 433; 16 Id. 139; 1 Wend. 487.

H. Gay, for the defendant in error.

By Court, NELSON, J. It is perfectly settled in this court, that if a plaintiff bring an action for a part only of an entire and indivisible demand, the judgment in that action is a con

clusive bar to a subsequent suit for another part of the same demand: Miller v. Covert, 1 Wend. 487, and cases there cited. This case comes within the reason and spirit of that principle. The whole account being due when the first suit was brought, it should be viewed in the light of an entire demand, incapable of division, for the purpose of prosecution. The law abhors a multiplicity of suits. According to the doctrine of the court below, a suit might be sustained (after the whole became due) on each separate item delivered, and if any division of the account is allowable, it must no doubt be carried to that extent. Such a doctrine would encourage intolerable oppression upon debtors, and be a just reproach upon the law. The only just and safe rule is to compel the plaintiff, on an account like the present, to include the whole of it due in a single suit.

The judgment must be reversed, with costs, and no venire to be awarded.

SPLITTING ENTIRE DEMAND INTO SEVERAL CAUSES OF ACTION.-In Stevens v. Lockwood, 13 Wend. 644, it appeared that the plaintiff, having an account against the defendant for property sold, work done, and rents due, sued there. on, but at the trial withdrew some of the items from the consideration of the jury, but submitted to them others of the same kind. A subsequent action was brought upon the items so withdrawn, but the court held that it could not be maintained. Savage, C. J., said the case could not be distinguished from Guernsey v. Carver. In the course of his opinion he further said: "The rule laid down in Guernsey v. Carver is in accordance with the case of Markham v. Middleton, 2 Stra. 1259, and with good sense, and is not opposed at all to the principle in Philips v. Berick [8 Am. Dec. 299]."

The doctrine of Guernsey v. Carver was criticised, however, in Secor v. Sturgis, 16 N. Y. 548, and again in McIntosh v. Lown, 49 Barb. 550. In the latter case the question arose on a lease containing seven distinct and independent covenants, the third of which was to keep the buildings and fences in repair, and the seventh to build one hundred and twenty-five rods of fence. It was held that an action on the latter covenant did not bar a subsequent action on the former. Welles, J., said: "I am aware of several adjudged cases where the language of the court seems to favor the idea, that where a party, having a demand against another, consisting of several distinct and unconnected items, which might be embraced in one action, and all due at the same time, brings an action for one or more of such items, he can not afterwards maintain another action for the residue of such items, not included in the first action, and that without any agreement, the legal effect of which would make the demand inseparable. Of this character are the cases of Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 Id. 644; Colvin v. Corwin, 15 Id. 557; and Bendernagle v. Cocks, 19 Id. 207. Some of these cases were probably decided correctly upon the facts, but all of them, I believe, are chargeable with the vice of approving, by their language, the legal heresy herein imputed to them. The true question in all such cases is not whether the rule allowing separate actions to be maintained for separate items would lead to a multiplicity of suits, or would operate oppressively, but it is whether the former action was for the identical cause or demand as

that for which the subsequent one is brought. In the latter case, where the demands in both constitute one entire, inseparable cause of action, the plaintiff is not at liberty to separate them so as to maintain separate actions for different portions of such entire demand. The foregoing views, I think, are sustained by the late case, in the court of appeals, of Secor v. Sturgis, 16 N. Y. 548; and also by the case of Badger v. Titcomb, 15 Pick. 409."

The doctrine laid down in Guernsey v. Carver, that after a suit and recovery for part of a current account, where the whole is due, the rest is barred, is approved in Bendernagle v. Cocks, 19 Wend. 209; Yates v. Fassett, 5 Denio, 28; Beekman v. Platner, 15 Barb. 551; Hopf v. Myers, 42 Id. 273; Staples v. Goodrich, 21 Id. 318; Field v. Mayor etc. of New York, 6 N. Y. 188; Mills v. Garrison, 3 Keyes, 41; Moody v. Leverich, 14 Abb. Pr. N. S. 153; Hubbell v. Schreyer, Id. 313.

RES JUDICATA AS ESTOPPEL.-See Betts v. Starr, 13 Am. Dec. 99, note; and the note to Standish v. Parker, Id. 395. See, also, Dixon v. Sinclair, post, and other cases in the American Decisions, cited in the note thereto.

ROSSITER V. ROSSITER.

[8 WENDELL, 494.]

Acts of a GENERAL AGENT BIND HIS PRINCIPAL, whether according to instructions or not.

ACTS OF A SPECIAL AGENT MUST BE STRICTLY WITHIN HIS AUTHORITY to bind the principal.

GENERAL CLAUSE IN A POWER OF ATTORNEY GIVEN FOR A SPECIFIC PURPOSE, authorizing the agent to do “ any and every act" in the principal's name which he could do in person, must be construed to relate to the specific purpose, and does not constitute such agent a general agent. NOTE EXECUTED IN THE PRINCIPAL'S NAME, for the purchase of property, by an agent acting under a power of attorney to collect debts, dispose of realty, and adjust all the concerns of his principal in a particular place, "and to do any and every act" which he could do in person, does not bind such principal.

AGENT IS PERSONALLY LIABLE ON A NOTE given by him in his principal's name without authority.

SUBSEQUENT RATIFICATION BY THE PRINCIPAL of the giving of such note

does not make it his note so as to release the agent from liability thereon. ASSUMPSIT on a note to the plaintiff, signed by the defendant in the name of one Pynchon, as follows: "Henry R. Pynchon, by his attorney, W. S. Rossiter," the plaintiff claiming that the defendant had no authority to bind Pynchon. It appeared on the trial at the circuit that Pynchon, who was a citizen of Connecticut, being an indorser for the firm of Fry & Murdock, of Jefferson county, New York, in a large amount, was made the assignee of all its property upon the failure of said firm; and that Pynchon appointed the defendant his agent by a power of attorney, authorizing him to secure, demand, and sue

for all sums of money then due, or to become due to Pynchon, in the state of New York, or in the British Provinces of North America, and to discharge and compound the same, to convey lands then or thereafter owned by Pynchon in said state, and "to accomplish, at his discretion, a complete adjustment of all the concerns of Pynchon in the state of New York, and to do any and every act in his name, which he could do in person." Under this authority, the defendant took possession of the property assigned to Pynchon by Fry and Murdock, and was, and still continued at the trial, employed as agent of the said assignee in settling the affairs of said firm. Murdock, who was Pynchon's brother-in-law, had assigned his household furniture to the plaintiff to secure a certain sum due him. To release the furniture, the defendant, as agent of Pynchon, executed and delivered to the plaintiff the note now in suit, took an assignment of the furniture to Pynchon, and let it to Murdock, who ever after, until the trial, paid rent for it to the defendant as Pynchon's agent. Payment of the note was demanded of Pynchon when due, and refused, Pynchon denying the defendant's authority, as his agent, to sign the note. The defendant introduced, against the plaintiff's objection, which was overruled by the judge, evidence to show that Pynchon had, subsequently to the making of said note, assented to and approved it, or at least that he had been informed of it, and had not expressed or intimated any disapprobation. The judge instructed the jury that the power of attorney did not authorize the making of the note, but that if the jury were satisfied that Pynchon had, by his acts or declarations, distinctly and unequivocally recognized the act, he was liable on the note, and they must find for the defendant. Verdict for the plaintiff, which the defendant now moved to set aside.

J. A. Spencer, for the defendant, cited 12 Johns. 300; 15 Id. 44; 3 Mass. 70; 7 Id. 198; 2 Cai. 310; 13 Johns. 307.

W. W. Frothingham, for the plaintiff, cited 5 Johns. 58; 7 Id. 393; 1 Esp. N. P. 112; 14 Com. Law, 42; 1 Taunt. 347.

By Court SAVAGE, C. J. The distinction between a general and special agent is well settled: the acts of the former bind the principal, whether in accordance to his instructions or not; those of the latter do not, unless strictly within his authority. In this case the defendant was the special agent of Pynchon; his letter of attorney specifies what business he is to transact: 1. He was to collect all demands due Pynchon, and to dis