On appeal from the Supreme Court.
For the appellant, Alexander Simpson.
For the respondent, Congleton, Stallman & Hoover.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment in favor of the defendant on verdict of a jury in a trial at the Essex Circuit.
It appears that, in 1926, one George A. DeVoe was employed by the defendant and was authorized by power of attorney duly executed by defendant to make, execute and deliver for the defendant bonds of various kinds and, likewise, guarantees of payment of evidences of indebtedness. This power was formally revoked by defendant on May 21st, 1927. DeVoe's employment terminated June 20th, 1927.
In May, 1927, one Clark Dulaney and his wife, known as Belle Bart, who was president of a corporation known as American Academy of Astrology, had created notes of that corporation in the sum of $100,000 represented by ten notes for $10,000 each. Each note had attached thereto a guarantee of defendant, signed on behalf of defendant by DeVoe, and bore even date with the notes, namely, May 10th, 1927. These notes were sold to the Union Trust Company of Baltimore on May 10th, 1927, for $90,000.
For this guarantee DeVoe was to receive from the debtor corporation a second mortgage for $150,000 on a property in New York City. The defendant paid the notes of the Union Trust Company after default of the corporation.
During the early part of June, after the revocation of DeVoe's power of attorney, DeVoe was induced to execute a guarantee of five notes for $20,000 each, under date of May 10th, 1927, upon the representation that they were in substitution for the ten $10,000 notes. Three of these notes and accompanying guarantee certificates came into the possession of plaintiff and are the subject-matter of this suit. Plaintiff asserts that he was shown five notes for $20,000 each, and that he received one of them on May 17th, and the others in June, 1927, although it was disputed that any of the guarantees
in question were executed prior to some time early in June. The trial judge submitted the case to the jury, which found the facts against the plaintiff.
The complaint alleged the execution of the notes and the guarantee of payment by defendant. The issue was squarely raised upon the vaildity of the guarantees. Plaintiff endeavored to show that he purchased all of ...