Blood v. Marcuse
Before: Rhodes
Synopsis
Agency—Authobity op Secbetaey op a Mining Cobpobation—The Secretary of a mining company has not authority, by virtue of his office, to make assignment of tho promissory notes of tho company.
Idem.'—Such assignment is not a corporate act, unless it is shown that the Secretary was not only authorised to make tho transfer, but to maleo it in Ms official capaciiy.
Money Received undeb an Invalid Assignment.—Money collected upon a judgment by tho assignee, under an invalid assignment, may be recovered by a judgment creditor of the party who is rightfully entitled to it.
Estoppel op Recobd.—Tho claimant of tho proceeds of a judgment, under the rightful owner, is not estopped by tho judgment in favor of the assignee, under an invalid assignment, unless it is shown that the fact of the assignment was put in issue between the debtor and tho alleged asignee.
Pleading—Estoppel by Matteb op Recobd.—Estoppel by.matter of record must be pleaded.
Rhodes, J., delivered the opinion of the Court: The note of the Crescent Company was assigned by the Secretary of the Whitney Company in his official capacity. The assignment purports to be made by the Whitney Company, but it was not executed by the corporation. It is not, therefore, a corporate act, unless the Secretary was not only authorized to make the assignment, but also to make it in his official capacity. The Secretary is not vested with such authority by virtue of his office, and no delegated authority from the corporation is shown; and under the authority of Gashwiler v. Willis, (33 Cal. 16), and the cases therein cited, the assignment was void. No ratification, by the corporation, of the assignment is shown. The alleged settlement made between the corporation and Bollinger, and the giving of the credit by the latter to the corporation, was only an arrangement between Bollinger and the Secretary of the company, but it does not purport to be a corporate transaction; and no corporate authority to the Secretary to conclude such an arrangement appears; nor has the corporation adopted the act of the Secretary in that behalf.
The money received by the defendants on the note, or rather on the judgment obtained by them on the note, was the money of the Whitney Company, unless the latter was estopped by the judgment from setting up a claim to the money. An action had been commenced by the Whitney Company against .the Crescent Company, the maker of the note, before the attempted assignment of the note to the defendants, and judgment was afterward rendered in the action against the Crescent Company and in favor of one of [595]the present defendants, the assignee of the note, but for the benefit of both defendants. The position of the defendant as to the effect of the judgment is fully met by either of these considerations : It does not appear that the fact of the assignment of the note was in issue between the Whitney Company and the alleged assignee; and if that fact was in issue, and was determined in favor of the assignee, the estoppel is not pleaded in this cause.
For these reasons we think the Court was in error in granting a nonsuit.
Order reversed and cause remanded for a new trial
Crockett, J., did not participate in the decision.
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