| New York Court of Common Pleas | Nov 4, 1895
The complaint was upon a quantum valebat for certain building material, consisting of brick, lime, and cement, which was alleged to have been sold and delivered to the defendant; and the answer denied both the quantity and value of such material. For a further defense it was asserted that the delivery made was in furtherance of an express contract, which fixed the prices and terms of payment, and whereby the plaintiffs undertook to supply and sell, and the defendant assumed to receive and purchase, all the brick, lime, and cement necessary for the construction of certain houses on West Eighty-Eighth street, in the city of New York; and that the plaintiffs had failed to complete their performance of such contract. By way of counterclaim, also, the defendant demanded damages which he alleged had resulted to him from the plaintiffs’ aforesaid breach of contract. The referee found that no such express contract was entered into, and dismissed the counterclaim, besides awarding the plaintiffs a recovery in the full amount of their claim. Such disposition of the cause appears from the referee’s decision to have resulted from the absence of the authority of the plaintiffs’ agent to make the contract contended for by the defendant. It was conceded upon the trial that one R. A. Matthews was the plaintiffs’ salesman, and that he conducted the negotiations with the defendant for the supply of such building material. Matthews, as a witness for the plaintiffs, testified that, acting for his employers, he offered to supply the defendant with brick, lime, and cement at specified prices, provided the latter would agree to take all such material as would be re quired in the construction of the houses alluded to from the plaintiffs ; that the defendant promised to consider the proposition, and did not at once accede to it; that on August 22, 1892, the witness called upon the defendant tó inquire with regard to the latter’s acceptance, and at that time informed him that the plaintiffs would only make the contract provided the defendant would accept it in writing, to that end handing the defendant counterparts of a proposed written contract,—the one containing the plaintiffs’ proposition having been signed by the witness in the plaintiffs’ behalf, the other, containing the acceptance, to be signed and returned by the defendant; that the defendant, some days later, refused to make any but an oral contract; that upon the witness’ assurances to the plaintiffs that the defendant would sign the acceptance they assented to the subsequent delivery of material to the defendant,
As a rule, an agent employed to sell has implied or apparent authority to conclude his principal by contract within the scope of his employment. Haydock v. Stow, 40 N. Y. 368, 369; Stirn v. Hoffman House Co., 8 Misc. 246" court="None" date_filed="1894-05-07" href="https://app.midpage.ai/document/stirn-v-hoffman-house-co-5546472?utm_source=webapp" opinion_id="5546472">8 Misc. Rep. 246, 249, 28 N. Y. Supp. 724. Here, however, before any oral contract with the agent was concluded and had become operative by performance in part (3 Rev. St [Banks & Bros.’ 7th Ed.] p. 2328, § 3; Jackson v. Tupper, 101 N.Y. 515" court="NY" date_filed="1886-03-02" href="https://app.midpage.ai/document/jackson-v--tupper-3583278?utm_source=webapp" opinion_id="3583278">101 N. Y. 515, 5 N. E. 65), the defendant had express notice that Matthews’ authority, in the instance, at least, of a contract with the former, was restricted to the making of a contract upon the defendant’s acceptance in writing. Such notice precluded the defendant from asserting a contract with the .plaintiffs, made through the instrumentality of their agent, and with reliance upon the latter’s otherwise implied or apparent authority. Frankfurter v. Insurance Co., 10 Misc. 157" court="None" date_filed="1894-11-07" href="https://app.midpage.ai/document/frankfurter-v-home-insurance-5546768?utm_source=webapp" opinion_id="5546768">10 Misc. Rep. 157, 160, 31 N. Y. Supp. 3. Obviously, an agent cannot, upon any proper theory of a waiver of his principal’s instructions, arrogate to himself authority not conferred. But, while we concur in the view of the referee that Matthews was without authority to make an oral contract for the plaintiffs, the facts presented a ratification by the latter of Matthews’ assent to such a contract. Notice to Matthews of the defendant’s refusal to enter into a written contract was in the course of the farmer’s employment, and therefore imputable to the plaintiffs (1 Am. & Eng. Enc. Law, 419, etc.; note to Trentor v. Pothen [Minn.] 24 Am. St. Rep. 228, [49 N.W. 129" court="Minn." date_filed="1891-06-08" href="https://app.midpage.ai/document/trentor-v-pothen-7966986?utm_source=webapp" opinion_id="7966986">49 N. W. 129]); and the delivery of material, with knowledge of the facts and circumstances (Craighead v. Peterson, 72 N.Y. 279" court="NY" date_filed="1878-01-29" href="https://app.midpage.ai/document/craighead-v--peterson-3618854?utm_source=webapp" opinion_id="3618854">72 N. Y. 279; Ritch v. Smith, 82 N.Y. 627" court="NY" date_filed="1880-11-09" href="https://app.midpage.ai/document/ritch-v--smith-3619198?utm_source=webapp" opinion_id="3619198">82 N. Y. 627) on the plaintiffs’ part, served to indicate their intention to accede to the defendant’s proposition that the contract should be an oral one. As already stated, delivery and acceptance in part dispenses with the need of a note or memorandum in writing to render the oral contract binding. Jackson v. Tupper, supra. It may be that the plaintiffs were deceived by Matthews, and that they were induced, as appeared from Kane’s testimony, to deliver the material sued for without first having secured the defendant’s written acceptance of their proposition by their salesman’s representations that the defendant had promised to and would so accept; but, even so, it did not appear that the defendant, at the time of the delivery, knew of the misconduct of the plaintiffs’ agent and employé in the respect alluded to, or that
Judgment reversed, reference discharged, and new trial ordered, with costs to the appellant to abide the event.
BOOKSTAVER, J., concurs.
PRYOR, J. My conviction is that the case was well determined by the learned referee, and I am for affirming the judgment.