
    William Jellinghaus v. The New York Insurance Company.
    A marine policy contained the following clause: “ In case of a partial loss by sea, or damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of a portion only of the contents of the packages so damaged, and not otherwise.” Upon a loss occurring, the agent of the company instructed an auctioneer to sell the goods, which was not objected to by the assured. That agent was empowered to act in the separation, and in giving such consent to employ an auctioneer. Upon the failure of the latter,
    
      Held, that the loss, by reason of the failure of a mutual agent, should not fall on the company.
    
      Held, that the inquiry was, purely, whether the company had assumed possession and control of the goods.
    
      Held, also, that the agent, aforesaid, was not authorized, by reason of his authority to concur in measures for the separation, to take such control.
    
      Held, that express authority, or continued recognized acts of the same nature, were necessary.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    Motion by plaintiff for judgment upon a verdict, a case being made, with liberty to turn the same into a bill of exceptions.
    
      The following facts were admitted:
    That on the 20th of October, 1847, an open policy of insurance for $100,000 was made by the defendants with Spies, Christ & Co., of the city of Hew York, merchants, on account of whom it might concern, on merchandise on board vessel or vessels, from Hamburg, Antwerp, Bremen, or Havre.
    That in or about July, 1848, forty-six cases of hardware, covered by said policy, and belonging to the plaintiff, were shipped from Bremen to Hew York, oh board the ship Charlotte Reed.
    That the said forty-six cases of hardware, on the arrival of the said ship, were delivered to the plaintiff’s agent in Hew York, and that thirty-five of the said cases were damaged by sea-water.
    That Spies, Christ & Co., assigned to the plaintiff their right to claim under the policy for such damage.
    That the amount of damage on eight of the said thirty-five cases was agreed upon between the plaintiff’s agent and the defendants, at the sum of $88.84.
    ■ That the invoice value of the remaining twenty-seven cases, was $2442.67, and that they were insured to that amount under the policy.
    That the net market value of the said twenty-seven cases, if the same had not been damaged, was $4969.16.
    That the said twenty-seven cases were sold at auction, in the city of Hew York, on the 21st of September, 1848, and that the proceeds of such sale amounted to $2357.14.
    That the auctioneer’s cha,rges and commissions for selling the said twenty-seven cases, amounted to $117.86.
    That the expense of cleaning the hardware in the twenty-seven cases, and putting the same in good order for the sale at auction, was $8.98, and that the auctioneer failed to pay over the proceeds of the sale to either party.
    The plaintiff claimed that the defendants were liable to him for the proceeds of the sale at auction.
    The policy contained the following provision: “In case of partial loss by sea, damage to dry goods, cutlery, or other hardware, the. loss shall be ascertained by a separation and sale of a portion only of the contents of the packages so damaged, and not otherwise.”
    Mr. Satterthwaite was the secretary of the company, and the evidence was sufficient to show, that he acted as authorized agent of the company in making the separation so provided for. The greater part of the testimony was directed to the establishing of the fact that he did act, and made declarations equivalent to the taking the entire control of the goods, and assumed the ownership of them.
    The plaintiff having rested, the defendants’ counsel moved that the complaint be dismissed, or for a nonsuit, which motion the court denied, and the counsel for the defendants excepted.
    The evidence being closed, his honor the Chief-Justice, who tried the cause, charged the jury as follows:
    That the sale in this case was made in compliance with the special provision in the policy, that in case of partial loss by sea or damage to hardware, the loss should be ascertained by a separation and sale of the portion damaged.
    That both parties were interested in the sale; plaintiff, as owner of the goods, and defendants, to reduce the amount to be paid by them under the policy.
    That from the nature and object of the sale, the auctioneer was necessarily the agent of both parties, and neither party guaranteed his fidelity or solvency to the other.
    That the auctioneer’s commissions and other charges incurred for the sale were paid by the defendants, because in all such cases the expenses of the sale were, by law, to be borne by the underwriters.
    That there was no abandonment of the goods to the defendants, and there could have been none in this case.
    • That any acts of Mr. Satterthwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.
    That the only question for the jury was, whether the defendants had become the owners of the goods, and were such owners, at the time of the sale. If they were such owners, the jury should find for the plaintiffs; if not, for the defendants.
    The counsel for the defendants excepted to that part of the Judge’s charge which stated that any acts of Mr. Satterthwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.
    The jury found a verdict for the plaintiff for $1669.22.
    
      
      B. D. SilUman, for plaintiff.
    
      Robert Mnmet, for defendants.
   By the Court. Hoffman, J.

The case arises in this' form, 1st. upon one exception taken to the admission of evidence; 2d. upon a refusal to nonsuit the plaintiff; 3d. upon one exception taken to the charge of the Judge.

1st. The ruling of the Judge was excepted to, for allowing evidence that the company had agreed that the receipts given by Meynen, through his clerk, should be without prejudice to the claim upon the company for the proceeds of the sale at auction.

The defendants do not include this exception in their present points, and we apprehend the objection was not entitled to any weight.

2d. It is urged that the motion for a nonsuit ought to have been granted. This motion was made after the evidence, on both sides, had closed. When the case was heretofore before the General Term, the decision was, “that, irrespective of any agreement to the contrary, the appointment of an auctioneer, to sell the property in question, under the provisions of the policy, must be deemed, in law, to be the joint act of the parties; and, of course, the defendants would not be responsible for his failure. That the plaintrSj therefore, could not succeed in the action, without showing that the defendants took the goods as their own, and sold them as their own, and that the evidence fell far short of making out that case.” A new trial was thereupon granted.

This, then, was the precise question submitted on the present trial, and by the Judge who delivered the opinion of the court upon the former occasion. It appears to us that the law of the case, so far, was then, and in that manner, settled. If the acts of Satterthwaite bound the company, there was evidence enough for the jury to find as they did; at least, their verdict was not so against evidence as to require that the case should be sent back to them.

The case does really, then, depend upon the determination of the next question, viz.: that as to the powers of the vice-president.

3d. The Chief-Justice charged, “ that any acts of Mr. Sattertliwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.” To this part of the charge an exception was taken. We have not, in this case, the charter before us, nor any thing which tends to define the powers given by it, or by any by-law, to the vice-president. Nor have we any proof of an exercise of power, so as to raise the presumption of its being conferred, or of any ratification, or adoption of acts of a similar nature.

We have the fact before us, that the vice-president acted in the matter (sometimes with the secretary) on behalf of the company; and it was not questioned, on the former trial, nor has it been questioned here, that the office and duty of effecting the separation and sale of the portion damaged partially, was properly within the scope of his power, so far as the company had any thing to do with it. And we may observe, that the law of the case seems to be, that as both parties were interested, the auctioneer was the agent of both parties in making the sale. But the question is very different, whether such a power involves the right of actually assuming the ownership of the goods, and binding the company to a responsibility for them, and for the default of an auctioneer.

In Beatty v. The Marine Insurance Company, (2 John. Rep. 109,) the charter was in proof, and it was shown that the act in question,(acceptance of an abandonment,) could only be done with the consent of at least four directors, with the president or two assistants, or a plurality of them. The assent of the president and assistants was held insufficient.

Norton v. The National Bank, (1 Hill, 572,) only recognized the general rule, that the acts of a director or other officer of a corporation, unless official or in respect to his agency, are no more operative as against the institution than the acts of any ordinary corporator, and these are no more so than the acts of a stranger.

Hodges v. The City of Buffalo, (2 Denio, 110,) also cited, was a case of the want of power of the corporation itself to do the act in question.

The Life and Fire Insurance Company v. The Mechanics' Fire Insurance Company, (7 Wendell, 31,) involved the proposition that a president of a company, by virtue of his office only, is not empowered to borrow money on its account; some authority to do so must be proven.

In Hanbury v. The Alleghany Mutual Insurance Company, (4 Barry Penn. Rep. 187,) there was the following instrument: “This certifies that D. H. Eddy, of Warren County, Pa., is appointed an agent of the Alleghany County Mutual Insurance Company, and is authorized to receive applications for insurance, and the premium thereon, on which applications a policy will issue, or the money be immediately returned. L. Wilmouth, president.”

After the plaintiff had closed, the defendant proposed to prove that at the time the agent requested him to become a member, the defendant was assured that the company was not insuring in the city of Pittsburg or other large cities; and, that the defendant said, “ If such is the case I will become insured, and a member of said company,” and gave his deposit note accordingly.

This evidence was objected to, and overruled by the court, and defendant excepted. He then further offered to prove that, at the time the president appointed Mr. Eddy the agent of the company, he said they would not, or did not, insure in the city of Pitts-burg; that the company was intended for the county, and not for the city of Pittsburg, and that the agent so represented to the defendant, at the time of giving the note in question, and becoming a member of the company, and it appearing by the evidence that the company did, at the time and afterwards, insure in the city of Pittsburg. This offer the court also rejected, and sealed a bill of exceptions. The court above was of opinion that the Judge was right in rejecting the evidence offered.

In our judgment the plaintiff has failed in establishing the fact that Satterthwaite had sufficient authority to bind the company by assuming the ownership of the goods in question.

There must be a new trial.  