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Myrtle Avenue Corp. v. Mt. Prospect Building and Loan Association

Decided: January 5, 1934.


On appeal from the Essex County Circuit Court.

For the plaintiff-respondent, Harry Levin and Isador V. Davis.

For the defendant-appellant, Stein & Stern (S. Arthur Stern, of counsel).


The opinion of the court was delivered by

CASE, J. The appeal is from a judgment entered in the Essex County Circuit Court, Judge Giordano presiding, on a jury verdict in the amount of $830 damages and $105.07 costs. The complaint did not clearly evince whether the action was for moneys had and received or for damages on breach of contract. The case was tried and went to the jury on the theory of breach of contract and therefore comes to us in that aspect.

The appellant building and loan association held the first mortgage in the amount of $168,000 on a property embracing eight attached buildings. The plaintiff held separate mortgages on each of these buildings and thus became, in effect, a second mortgagee as to the entire tract. The first mortgage

and the second mortgages all came into default. The plaintiff began foreclosures on its several mortgages and obtained the appointment of a rent receiver. Appellant, on October 10th, 1929, by resolution of its board of directors, ordered that proceedings for the foreclosure of its mortgage be immediately instituted. Some payments were then made but later the mortgage was three months in default and the appellant's bill of foreclosure was filed February 10th, 1930.

It appears that the monthly requirements, by way of interest and dues, of the appellant's mortgage amounted to $1,280. The net proceeds per month from the rent receiver amounted to $450. For reasons that need not be stated, plaintiff desired to have further steps in the appellant's foreclosure proceedings postponed until its own proceedings should have been completed. To that end, on or about December 6th, 1929, it paid to the appellant the sum of $830, which, added to the proceeds of $450 from the rent receiver, made up a full month's carrying charge on the appellant's mortgage. In so doing, it intended to pay a consideration for, and thought that it was getting, an agreement by the appellant, through its president, to postpone further action in the building and loan foreclosure proceedings until all of the several suits instituted by the plaintiff should have been brought to the point of sales. We must assume, on this appeal, that that was the thought and purpose of the plaintiff and that appellant's president did, so far as he could, make that agreement. But there was nothing in the letter which accompanied the remittance, and nothing in the appellant's records, to put the appellant, as a corporation, on notice of that agreement. The money was applied to the appellant's mortgage, but appellant nevertheless proceeded with its foreclosure before plaintiff's suits had been consummated. The present action is for the breach of the alleged agreement.

Appellant, at the trial, moved for a nonsuit and later for a direction of verdict upon the ground that the act of the president of the building and loan association was not that of the association itself and, being refused, now presents the judicial action thereon as error.

A corporation is bound by the act of an officer or agent only to the extent that the power to do the act has been conferred upon such officer or agent expressly by the charter, by-laws or corporate action of its stockholders or board of directors, or can be implied from the powers expressly conferred, or which are incidental thereto, or where the act is within the apparent powers which the corporation has caused those with whom its officers or agents have dealt to believe it has conferred upon them. Aerial League of America v. Aircraft, &c., Corp., 97 N.J.L. 530. The president may be said to be clothed incidentally with power to perform all acts of an ordinary nature which by usage or necessity inhere to his office and to bind the corporation in matters that arise in the usual course of business. Beyond this his official position gives him no more control over the property, funds or business of the corporation than any other director. Mausert v. Feigenspan, 68 N.J. Eq. 671.

The powers conferred upon the president by the constitution and by-laws of the building and ...

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