
    (72 Hun, 482.)
    MILLER v. REYNOLDS et ux.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    I. Rescission op Sale op Land.
    The fact that a purchaser of land gave in part payment the note of a corporation, executed by himself as president without authority from the corporation, is no ground for rescinding the sale at the suit of the vendor, where it appears that the purchaser gave the note in good faith, under the belief that he had the right to execute it; the vendor’s sole remedy being an action against the purchaser for the amount of the note.
    
      2. Appeal—Objections not Raised Below—Evidence.
    The objection that evidence is not admissible under the pleadings must be taken at the trial, and cannot be raised for the first time on appeal.
    Appeal from special term, Monroe county.
    Action by Ransom H. Miller against Thomas J. Reynolds and wife to rescind a sale of real estate. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    John Van Voorhis, for appellant.
    E. A. Hash, for respondents.
   LEWIS, J.

This is an action to compel the defendants to reconvey to the plaintiff certain premises described in the complaint, situate on Monroe avenue, in the city of Rochester, on the ground that the defendant Thomas J. Reynolds obtained title thereto from the plaintiff by fraud. The answer was a general denial of each and every allegation of the complaint. The court found that the plaintiff had failed to establish the allegations of fraud, and further found that the plaintiff, by a subsequent agreement with the defendant Thomas J. Reynolds, ratified and confirmed the sale and conveyance. The plaintiff conveyed the property in question to the defendant Thomas J. Reynolds in the month -of February, 1891, at the price of $22,000, subject to a mortgage thereon of $6,000, in consideration of which the defendant transferred to the plaintiff $10,000 of the stock of the Trotter Refrigerator Gompany, and gave the plaintiff what purported to be the promissory note of the refrigerator company, made by the defendant as its president, for $6,000. The testimony as to the representations that were made by the defendant to the plaintiff, and to his agent, Hap-good, to induce and bring about the conveyance of the property, was very conflicting and contradictory. The plaintiff’s evidence tended to establish the allegation of Ms complaint that he was induced to make the conveyance by material representations made to him by the defendant that were false, and known to the defendant to be false when he made them. The defendant, by his own testimony and that of other witnesses he called, controverted and denied i he plaintiff’s charges of fraud in every particular. The trial justice, who had the advantage of seeing the witnesses and hearing their testimony, found that the plaintiff had failed to make a case, and •dismissed the complaint.

The plaintiff contends that the defendant was not authorized to make the $6,000 note which he gave the plaintiff in part payment for the property. There was evidence tending to show that the company was indebted to the defendant, at the time the note was made, in an amount equal to the amount of the note. He claimed that power was given him to make the note by a written agreement he had made with the company. He exhibited the agreement to the plaintiff at the time of malting the trade, and informed plaintiff that he claimed that the contract gave him the right to make the note, and he testified that he believed he. had the power and right to make it. That being so, it is not important whether the agreement in fact gave him the power. It was sufficient if he could satisfy the-court that he gave the note in good faith, believing the agreement gave him the right to make it. If he was not authorized to make-the note, he would be liable to pay plaintiff the amount of it, but it would not have been' any ground for setting aside the conveyance. The trial court found that the plaintiff, after being fully advised of all the facts, ratified and confirmed the sale. There was evidence-tending to sustain the finding. The plaintiff claims, the answer being simply a general denial, that, not having pleaded ratification, the defendant was not in a position to avail himself of such a defense. The evidence of ratification came into the case without the objection being made that the pleadings did not warrant it,, and it is too late, upon appeal, to raise the question. The answer can be amended even now, if substantial justice will be thereby promoted. The judgment appealed from should be affirmed, with costs of the appeal. All concur.  