
    Henry R. Worthington, Appellant, v. Charles C. Worthington, Respondent.
    
      .Action by a corporation against its president — the latter cannot give away merchandise belonging to the former — he is liable upon an implied, contract for any merchandise of the corporation given away by him.
    
    The complaint in" an action brought by a corporation against the president thereof, who was also a large stockholder therein, alleged that the plaintifi, “at the special instance and request of the defendant, delivered to Columbia University * *. * the various pumps, machines, materials and apparatus, and performed and furnished the work, labor and services described in the schedule hereto annexed marked ‘A,’which is hereby made a part hereof, upon the undertaking and agreement of the said defendant to pay the price and value thereof to the plaintiff, the said defendant having caused the aforesaid property to be delivered and said labor to be rendered to said' Columbia University as a gift from him for the purpose of perpetuating the memory of his deceased father.” Then followed an allegation to the effect that the materials furnished and the labor performed were “of the agreed price and value of $12,570.15,” which the defendant refused to pay, although requested to do so, and judgment was demanded for said sum and interest.
    
      Upon the trial it appeared that Professor Hutton, who was in charge of the hydraulic laboratory in Columbia University, called upon the defendant to ascertain if he would not furnish as a gift the necessary apparatus to equip the laboratory; that thereafter the defendant wrote Professor Hutton a letter, in which he stated, “ It will give me great pleasure to equip this laboratory with such experimental and standard machines as you and I have discussed and be responsible for the entire cost of the installation. If agreeable to the trustees, I would like to identify it with the name of my honored father, the late Henry R. Worthington, whose fame as an hydraulic and mechanical engineer was won in this, his native city of Hew York, .and whose wish was always to encourage the branch of technical study that is now contemplated in your department; ” that the president of the university replied to the defendant, stating, “ It adds to the value of your gift that you permit us to identify with it the name of your honored father, the late Henry R. Worthington;” that thereafter the trustees of the university passed the following resolution, a copy of which they sent to the defendant: “Resolved, that the trustees accept with thanks the offer of Mr. Charles C. Worthington to equip a laboratory with experimental and standard hydraulic apparatus in the School of Mechanical Engineering asa memorial of his father, Henry R. Worthington, and that the same be designated as the Henry R. Worthington Laboratory of Hydraulic Engineering; ” that subsequently the plaintiff corporation, which was engaged in the manufacture and sale of hydraulic machinery, furnished, by direction of the defendant, the labor and materials for the equipment of the laboratory.
    
      Reid, that the defendant could not, by virtue of his office as president of the plaintiff corporation, give away the plaintiff’s property, and that, from the facts set forth, the law implied a promise that the defendant would pay the plaintiff the reasonable value of the labor and materials furnished at his direction;
    That, under the allegations of the complaint, the plaintiff could recover upon an implied promise to pay.
    Patterson, j., dissented.
    Appeal by the plaintiff, Henry R. Worthington, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of Hay, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 27th day of Hay, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. ■ '
    
      Samuel Untermyer, for the appellant.
    
      William A. Jenner, for the respondent.
   McLaughlin, J,:

This action was.brought to recover the value of certain pumps and hydraulic machineiy. The plaintiff is a corporation and the complaint, among other things, alleged- thá,t “At various times between the 27th day of September, 1897, and the 15th day of January, 1900, * * * plaintiff, at the special instance and request óf the defendant, delivered to Columbia University * * * the various' pumps, machines, materials and apparatus, and performed and furnished the work, labor and services described in the schedule hereto annexed marked £A,’ which is hereby made a part hereof, upon the undertaking and agreemént of the said defendant to pay the' price .and value .thereof to the, plaintiff, the said defendant having caused the aforesaid property to be delivered and said labor to be rendered to said Columbia University as a gift from him for the purpose of perpetuating the memory of his deceased father.” Then followed an allegation to the effect that the materials furnished and the labor performed were “ of the agreed price and valué of $12,570.15,” which the defendant refused to . pay, although requested to do so, and judgment was demanded for said sum and interest. The answer, in effect,, admitted the delivery of the materials .and performance of ,the work, but denied the other material allegations of the complaint.

At the trial, at the close of the plaintiff’s case, the complaint was dismissed-and from the judgment entered thereon, as well as from an order denying a'motion for a new trial, the plaintiff has appealed. ,

The validity of"- the judgment is attacked upon several grounds, but. the conclusion at which We'have arrived renders it unnecessary to consider them in detail. Upon the conceded facts, I think the court would have been justified in holding, at the conclusion of plaintiff’s case, that it was entitled to recover and the only question to be submitted. to the jury was as to the damages to which it was entitled. In . brief, these facts were as follows : The plaintiff is engaged in manufacturing and selling hydraulic machinery, and in the early part of the year 1896, Professor Hutton, who has charge ‘of the hydraulic laboratory in Columbia University, called upon-the defendant for the purpose of ascertaining if he would not furnish ás a, gift the necessary apparatus to equip a special department therein. The defendant, after discussing with Professor Hutton just what lie desired, and the expense of the same, and examining a blue print of the drawings which had been made, stated that he would do so," and a few days later, sent to Professor Hutton the following letter:

“ New York, June 3, 1896.
“ Prof. F. R. Hutton,
“ Columbia University:
“ Dear Sir.— I have examined with interest the plans for your laboratory of hydraulic engineering and motors for the new engineering school of Columbia. It will give me great pleasure to equip this laboratory with such experimental and standard machines as you and I have discussed and be responsible-for the entire cost of the installation. If agreeable to the trustees, I would like to ■ identify it with ■ the name of my honored father, the late Henry R. "Worthington, whose fame as an hydraulic and mechanical engineer was won in this, his native city of New York, and whose wish was always to encourage the branch of technical study that is now contemplated in yotir department. If this proposition be acceptable, I will be glad to meet you again for further conference as to the details, either upon my return from Europe, or later in the autumn.
With best wishes for your further success in this matter, I am, “ Yours very truly,
“ CHARLES C. WORTHINGTON.”

Upon receipt of this letter Prof. Hutton handed the same to the president of the university, who replied, saying to the defend, ant, “ It adds to the value of your gift that you permit us to identify witli it the name of your honored father, the late Henry R. Worthington.” Shortly thereafter, at a meeting of the trustees of the university, the matter was considered by them, the defendant’s offer officially accepted, and a copy of the following resolution sent to him: “ Resolved, that the trustees accept with thanks the offer-of Mr. Charles C. Worthington to equip a laboratory with experimental and standard hydraulic apparatus in the School of Mechanical Engineering as a memorial of his father, Henry R. Worthington, and that the same be designated as the Henry R. Worthington Laboratory of Hydraulic Engineering.” Subsequently, the plaintiff, by direction of the defendant, who was its president, furnished materials of the value of several thousand dollars a.t least, and paid out in cash in installing the same about $2,000.

The defendant could not, by virtue of - liis office, give away the plaintiff’s property and the facts would not have justified a finding other than that such materials were furnished and money expénded upon defendant’s implied promise to pay the plaintiff for them. The defendant and not the plaintiff was requested to make the gift. It is true he consulted the executive committee of the. plaintiff, but there is nothing in the- record which would justify a finding that any action was taken by' the corporation which could be construed into its giving the materials and making the expenditure, as a gift. Indeed, it might well be doubted whether, the corporation' had power to do so even if it had. made the attempt. But no such attempt was made, - and this is pérfectly clear from the defendant’s own statement. In his letter to Prof. Hutton, which is not contradicted or .qualified" in any respect, he said: “ It will give me great pleasure, to equip this laboratory * * * and be responsible for- the entire cost of the installation.” If any meaning is -to be accorded to words, then the only logical, just and correct- inference which can be drawn from these is that he personally was to give and pay for it. This is clearly what he then intended to do. The power to give implies, the power to withhold, which he cannot, in either case, do except with his own. It was a laudable and commendable thing for the defendant to make the gift, not only,for the purpose of promulgating knowledge in mechanical engineering, but in perpetuating his father’s memory. In doing this, however, he was obligated to use his own property and not that' of another. It is true, at the time - the gift was made, the defendant was the president of the plaintiff and he then. owned a large part of the stock of the corporation. This, however, in no way changed the legal relations of the parties, nor did it confer upon the defendant any additional rights. ■ He could not by. reason of that fact give away its property, any nrore than a minority stockholder could, or one who was not an officer. By reason of his position and holdings he had more power than a minority stockholder, so far as the management and business affairs of the corporation were concerned, and this is all. He could give orders and require that they should be obeyed, but he could not take the property of the corporation himself or deliver it to another without paying for it, and if he did, it was under a promise, which the law implies, that he would pay what the same was reasonably worth.

The learned trial justice was evidently of the opinion that under the allegations of the complaint a recovery could not be had under an implied promise to pay, and in this he was clearly in error. The complaint is substantially in the form of the common count in assumpsit for goods sold and delivered and labor and work performed for Columbia University upon defendant’s promise to pay therefor. Numerous decisions might be cited to the effect that this is a good pleading under our Code. (Allen v. Patterson, 7 N. Y. 476; Farron v. Sherwood, 17 id. 227; Hosley v. Black, 28 id. 438; Conaughty v. Nichols, 42 id. 83; Publishing Co. v. Steamship Co., 148 id. 39; Goodman v. Alexander, 165 id. 289; Hatch v. Leonard, Id. 435.)

It is also suggested that the plaintiff was not entitled to recover because it failed to prove the reasonable value of the materials furnished. It endeavored to make such proof, and if unsuccessful in this respect, it was by reason of objections made by the defendant. However, there was proof sufficient to go to the jury on this subject. It proved the money expended, and the witness Brown stated —■ which statement was not contradicted — that the market value of the equipment, excluding the tanks, for which the plaintiff paid about §2,000, was between §9,000 and §10,000.

It is unnecessary to consider specifically the various errors alleged. The case was tried upon a wrong theory, the court erred in dismissing the complaint, and the judgment and order appealed from .must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Ingraham and Laughlin, JJ., concurred; Patterson, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  