42 N.Y.S. 299 | N.Y. App. Div. | 1896
The defendant was the occupant of a house at Tuxedo Park, in the county of Orange, where he resided with his family and servants. He entered into a contract with one Mathieu to furnish and cook the food necessary for the supply of the family and servants, agreeing to pay therefor $175 a week. The plaintiff was a dealer in vegetables, poultry, eggs, etc. He applied to Mathieu to sell supplies for the establishment, and Mathieu bought. The plaintiff knew nothing of the arrangement between defendant and Mathieu, and made no inquiries of defendant respecting Mathieu’s relations to defendant or as to his authority to act in the premises. The defendant paid Mathieu usually each week and paid him in full, in accordance with the contract. The plaintiff did not see defendant prior to the time when the indebtedness was incurred, and held no communication with him until Mathieu had made default in payment. The first purchase was paid for in cash by Mathieu, as were several others. Subsequently payments were not made on delivery and a considerable indebtedness would accrue, which was paid in money by Mathieu and by checks drawn by the wife of Mathieu upon funds in a bank in her name. These were indorsed by the plaintiff and paid in the usual course of business. Prom time to time the plaintiff receipted to Mathieu for moneys received, and at onetime rendered to Mathieu a bill for $123, and receipted payment of the same. The defendant finally discharged Mathieu, at which time there was an indebtedness due plaintiff for supplies furnished at the house in the sum of about $170, which Mathieu failed to pay. The plaintiff dealt directly with
In the present case, however, the undisputed facts rebut the proposition of implied liability. The defendant did nothing, either
When plaintiff received the checks, rendered the bills and receipted to Mathieu, he had actual notice that he was not dealing with the defendant. Hotice of this character was, at least, sufficient to put him on inquiry, if he desired to create liability against defendant, and he is chargeable with the information which he would have received had he instituted the inquiry. (Claflin v. Lenheim, 5 Hun, 269; Bassett v. Lederer, 3 T. & C. 671.)
It is a general rule that one dealing with an agent is bound at his peril to ascertain by what authority he acts. The principal is only bound by such acts as are done within the scope of his authority. (Quinn v. Carr, 6 T. & C. 402.)
It is asserted that authority to bind another by his acts may be extinguished by constructive notice. (Claflin v. Lenheim, supra.)
It is quite as effective to prevent original liability as to extinguish what has once existed. Within this doctrine, therefore, the facts of which plaintiff had actual notice repelled any presumption of liabil
The only exception to this rule is where the principal has done some act whereby it can be inferred that lie authorized the credit. (Jaques v. Todd, 3 Wend. 83.)
And this is to be limited by the circumstances from which it is inferred. (Wharton on Agency, § 127.)
In the present case the money was furnished to purchase the supplies ; and, as we have seen, not only is there no act by the defendant authorizing a purchase upon credit, but, on the contrary, the circumstances excluded it.
There is yet another question in the case which requires our notice. The complaint demanded interest from a given date. The offer of judgment was for interest from that date. Upon the trial the plaintiff was permitted to amend so as to demand interest upon monthly balances. This increased the interest charge, tended to the destruction of defendant’s offer of judgment and might have subjected him to costs when, if the amendment had not been allowed, he might have become entitled thereto. This was a substantial right and its protection was the occasion for section 738 of the Code of Civil Procedure. The court denied any relief to the defendant by way of amendment of the notice, on the ground of lack of power. If the court lacked power to protect the defendant under his notice, then it ought to have denied the motion to amend. It would be most unjust to allow ¡ilaintiff, after stating the facts which furnished the ground for the offer, to shift his position, and thus defeat the right which the law secured when the offer was made and leave defendant without remedy. But there was no lack of power in the court to remedy the difficulty. It could condition the amendment of the complaint upon an allowance of a change in the offer to meet it, or it could have made the excess in amount of interest of no avail to defeat the offer. The court always has power to prevent injustice in such matters, as extensive as necessity requires.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.