Mason v. Felix.

[Vol. IX, N. S.

DICKSON, J.

This case was head on motion of plaintiff to dismiss appeal from justice of the peace for the reason that the transcript of the justice was not delivered to the clerk of this court in accord with Section 6585, Revised Statutes; that is, it was not delivered on or before the thirtieth day from the rendition of the judgment appealed from.

The judgment complained of was rendered April 2, 1909. The transcript was delivered to the clerk on May 3, 1909-the thirtyfirst day from the rendition of the judgment by the justice. The thirtieth day from the rendition of the judgment by the justice. came on Sunday. Defendant claims that he was in time in accord with Section 4951 of the Revised Statutes and particularly that part of the section which provides: "And if the last (day) be on Sunday it shall be excluded."

The court is of the opinion that this section does not apply to proceedings before or from the justice's court. McLees et al v. Morrison, 29 O. S., 155, decided December, 1876, and followed in Kerr v. Keil, 60 O. S., 607, decided April 25, 1899, and after the revision of 1880.

Our Supreme Court having held in Brown, Assignee, v. Wallace, Assignee, 66 O. S., page 57, that the right of appeal exists only by virtue of the statutes, and that the appellate court's jurisdiction must be strictly acquired the plaintiff's motion must be granted and the appeal to this court be dismissed.

1910.]

Bank v. Machine Co.

AS TO AUTHORITY FOR DRAWING BILL OF EXCHANGE.

Common Pleas Court of Summit County.

THE ANGLO-SOUTH AMERICAN BANK, LIMITED, V. THE STAR DRILLING MACHINE COMPANY.

Decided, December, 1909.

Bill of Exchange-Authority of General Sales Agent to Draw-Proof as to Alterations After Bill was Executed-Construction of an Unusual Transaction.

1. The burden of proving that the agent acting in this case had authority to execute a bill of exchange in the manner in which he did is not sustained by the evidence.

2. Where proof was made by depositions taken long before trial that a material alteration had been made in the instrument sued on, it became the duty of the plaintiff to produce evidence to show that it was an innocent holder of the instrument after the alterations had been made; and where this was not done, a court is not justified in granting what would be in effect a new trial in order to permit of the introduction as newly discovered evidence, the evidence which was in the possession of the party in the first instance.

Voris, Vaughan & Vaughan, for plaintiff.
Allen, Waters, Young & Andress, contra.

WASHBURN, J.

This is an action on a bill of exchange claimed to have been drawn by the defendant, the Star Drilling Machine Company, by its agent, I. H. Ford. A jury was waived and the case was submitted to the court upon the evidence. Two issues were raised-one that said Ford had no authority to draw the bill of exchange for and on behalf of the defendant, and the other that the bill had been materially altered after it was executed and issued.

There was considerable evidence offered on the trial which tended to prove that I. H. Ford was the agent of the defendant

company. Much of this evidence was objected to at the time it was offered and much of it should have been rejected, but it is not necessary for the court now to point out what evidence on that subject was competent and what was not competent, for the reason that it appears from competent evidence that said Ford was a general sales agent for the defendant company, having his office in New York. This fact is established beyond all peradventure. The plaintiff does not claim that said agent's authority to execute the bill of exchange in question is an implied authority, growing out of a general custom by which he was permitted to execute similar instruments on behalf of the defendant company, but it is claimed that the correspondence between the defendant company and its agent, Ford, expressly authorized him to execute this bill of exchange.

I may say that the by-laws of the defendant company provided that notes, checks, drafts and bills of exchange necessary for the transaction of the business of the defendant company should be drawn by the secretary and treasurer or by such persons as he might authorize. The facts which it is claimed justify a finding of the court that said Ford had authority to execute this bill of exchange are as follows:

The defendant, the Star Drilling Machine Company, received a letter from New York, dated February 20, 1908, written by the Export Shipping Company, in which they said: "One of our clients in Australia writes us his representative will be in New York about March 10th to arrange for some purchases. Will you please send us your catalogue and export price list, so that we can submit same?" That letter was forwarded by the defendant, the Star Drilling Machine Company, to its said general sales agent, I. H. Ford, in New York. The evidence does not disclose a copy of the letter sending it, but it does disclose the answer of Mr. Ford, which was dated February 24, and said: "I have your letter with the one from the Export Shipping Company. Will see them and arrange to give them prices and can show their representative the machine in operation. Thanking you for the inquiry, I am yours truly, I. H. Ford.”

Following that Mr. Ford and those in his employ entered into

negotiations with the Export Shipping Company, and finally, on April 2d, 1908, reported to the defendant company a sale of that date, in which he says:

"Enclosed herewith will be found order in detail received from the Export Shipping Co., No. 11 Broadway, New York, N. Y., for a No. 20 machine with full equipment for drilling 6-in. diameter holes and for extra tools and finishing tools for the same size holes, also an extra equipment for drilling 4-in. diameter holes. This outfit is to be shipped to Townsville, Queensland, Australia, and as it is to be sent forward with other goods at Brisbane, it is important that the complete outfit be in New York in time for vessel clearing port on the 27th of April.

All papers are to be made in triplicate, as usual, and sent to this office. Funds for payment of this outfit are in London and will be paid on presentation of draft and shipping documents. This will mean that the money will be in New York about three weeks from date of receipt of outfit at New York, * Kindly send us at once an acknowledgment of the receipt of this order, so that we can reassure our customer in regard to the outfit getting here for the vessel leaving April 27th. Yours truly, I. H. Ford."

On April 4 the Star Drilling Machine Company answered that letter as follows:

"We thank you very kindly for your favor of the 2d enclosing order for No. 20 machine. We note this must be in New York by April 26th. In other words, that it must be shipped from here not later than the 17th or 18th. We are giving the order our very best attention and have no doubt that it will be in New York on time. We are, respectfully yours, Star Drilling Machine Company, per H. A. Hine."

Said Hine was the secretary and treasurer of the defendant company. The order was filed by the defendant company and forwarded on time and delivered, and the transaction was closed by Mr. Ford by his drawing the draft in question. He drew the draft, signing it "the Star Drilling Machine Company, per I. H. Ford," on the General Supply Company of Townsville, Queensland, Australia, and payable to the order of the Export Shipping Company. The Export Shipping Company sold the

draft to the plaintiff, received the money therefor, and taking the money and the goods, sailed for South America. It subsequently transpired that there was no such firm or company as the General Supply Company of Townsville, Australia, and no funds in London, and that the transaction on the part of the Export Shipping Company was a swindle of which neither the plaintiff nor the defendant nor its agent had any knowledge. This transaction closing the deal took place from the 25th to the 30th of April, and was entirely without the knowledge of the defendant company, except as indicated.

On May 11th, 1908, the defendant company wrote its agent as follows:

"I. H. Ford, New York City. Dear Sir: We herewith enclose statement of the Export Shipping Company amounting to $2,004.67. This is for drilling machine and extras forwarded them on April 17th. We note from your favor that payment for this outfit will become due three weeks after the same is received at New York. We trust that you will take up this matter with the parties at the proper time and that you may be successful in making the collection. We are, respectfully yours, the Star Drilling Machine Company, per F. W. Fitch."

It is claimed that these facts justify the court in finding that the Star Drilling Machine Company gave to its general sales agent authority to do all things necessary to close this transaction and collect the money in the usual and ordinary mode of transacting such business, and that in pursuance of such authority the draft in question was executed, and the same not having been paid, the plaintiff elected under the statute to treat the same as a promissory note given by the Star Drilling Machine Company, and this action is to recover upon that note.

If these facts will bear the construction claimed by the plaintiff, then the defendant authorized its agent to sell this particular bill of goods and give its note to the purchaser therefor. Such a transaction would appear to be very unusual. The natural and ordinary way of doing business would have been for the purchaser, the Export Shipping Company, to have drawn the draft payable to the Star Drilling Machine Company. So that