16 N.Y.S. 854 | New York Court of Common Pleas | 1892
This action was to recover for done for the Harvard Publishing Company upon an order signed, “Harvard Publishing Co. W. Campbell Phelan, Manager. ” It is always the duty of the plaintiff, claiming to have a contract with the defendant made through an agent, to inform himself whether the agent had the power to make the contract relied upon. In this case the testimony left that question in doubt, so that it was within the province of the court to determine whether there was such an agency or not. We do not think the evidence warrants us in disturbing its conclusion. But it further appears that the defendant and his manager received a statement of plaintiff’s claim, which indicated that he thought a contract had been made with defendant. Under such circumstances it was his duty to immediately notify the plaintiff to discontinue the advertisement. Instead of this, it was allowed to appear in two subsequent numbers of the plaintiff’s periodical, and the justice very properly rendered judgment for those two insertions; and the judgment will therefore be affirmed, with costs.
