On appeal from the District Court of the First Judicial District of the county of Essex.
For the plaintiff-respondent, Maurice C. Brigadier.
For the defendant-appellant, Donald Lewis (Charles H. Meyer, of the New York bar, of counsel).
Before Justices Trenchard, Case and Brogan.
The opinion of the court was delivered by
CASE, J. The action is for rent for the months of April and May, 1932. The District Court judge, sitting without a jury, found for the plaintiff, and the defendant appeals. The lease sued upon was in writing, dated November 13th, 1928, and was for a term of ten years commencing on the 1st day of January, 1929, and ending on the 31st day of December, 1938. The execution on behalf of the tenant was in the name of the defendant company by E. B. Aymar as vice-president. The seal of Interstate Company was affixed. The defendant entered into possession of the premises on the first day of the term, vacated the same on October 15th, 1930, and discontinued the payment of rent March 31st, 1932.
The appellant argues that Aymar, vice-president, in signing the lease, signed as an agent of the corporation and that as the lease exceeded the term of three years and said agent had not been lawfully authorized in writing, the lease, under section 1 of the statute of frauds (2 Comp. Stat., p. 2610) had the legal effect of a lease at will only.
Plaintiff first denies, unsuccessfully we find, the factual assertion that the authority was not in writing. By the defendant's by-laws the president was given the power to "sign and execute all authorized bonds, contracts or other obligations in the name of the corporation," and the vice-president was empowered to perform the duties of the president during the absence or inability of the president. At the time of the execution the president was absent in California, and Aymar was vice-president. But the vice-president had no power that
the president would not have had if present, and the president would not have had the power to sign a lease agreement unless the board of directors had authorized the same. There was consequently a break in the written authority of Aymar to execute.
Plaintiff next asserts that the execution by Aymar was the act of the corporation itself and not that of an agent and that consequently the authority need not be in writing. The argument is that the acts of officers of a corporation in the execution of an instrument are not acts of agents but are acts of the corporation acting in chief; and American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, is cited in support. Before discussing that case, it may be well to glance at the general background of our jurisprudence on the subject.
Mr. Justice Depue, speaking for the Court of Errors and Appeals, in Fifth Ward Savings Bank v. First National Bank, 48 N.J.L. 513, said:
"The powers of the officers of a corporation over its business and property are strictly the powers of agents -- powers either conferred by the charter or delegated to them by the directors or managers, in whom, as representatives of the ...