21 N.Y.S. 952 | New York Court of Common Pleas | 1893
At the close of plaintiff’s case the defendants moved a-dismissal of the complaint on the grounds that the plaintiff had no authority as broker of the defendants, and was not the procuring cause of the sale; and the motion was renewed upon all the evidence. We are-of the opinion that enough was shown to authorize the inference that the-sale was effected through the instrumentality of the plaintiff, but whether he acted upon the employment of the defendants is a more difficult question. It is a conceded fact that the plaintiff was not retained directly by the defendants, but the contention is that he was commissionedi
Assuming, however, that Thompson employed plaintiff as broker for the defendants, it was incumbent upon plaintiff to prove that Thompson had authority so to employ him. Without specific authority from his principal, an agent has no power to delegate his trust. Lewis v. Ingersoll, 3 Abb. Dec. 55; Newton v. Bronson, 13 N. Y. 587; Hicks v. Dorn, 9 Abb. Pr. (N. S.) 53; Merrill v. Trust Co. 24 Hun, 300; Lyon v. Jerome, 26 Wend. 485. Indisputably, the office of broker involves personal confidence and discretion. Bonwell v. Howes, (Com. Pl. N. Y.) 2 N. Y. Supp. 717. Did the defendants empower their broker, Thompson, to substitute another in his stead? Both Thompson and defendant Arthur C. Tucker deny the communication of any such power. But plaintiff relies on an alleged admission of Tucker to the contrary. A day or two before commencing this action, plaintiff’s attorney called on Mr. Tucker for the purpose of ascertaining “whether Mr. Thompson had authority to bind the Tuckers, or to sell, and employ a broker.” Mr. Arthur C. Tucker said “that Mr. Thompson was authorized to take any steps necessary to sell.” As broker employed to sell, Thompson, of course, had authority to take the steps necessary to that end. To have denied him such power would have been to render his agency frustrate. But surely authority to take the steps necessary to a sale does not involve authority to employ another broker; for, if one broker, then why not a second, and a third, and so on indefinitely, until the principal be crushed under the accumulated weight of countless commissions ? But.
The respondent argues, however, that, by consummating the sale which he negotiated, the appellants are estopped to question his authority, upon the ground that the enjoyment of the fruits of an agent’s act charges the principal with responsibility. The principle upon which the respondent relies is of recognized and salutary operation, but he misapprehends its import and application. The rule, as propounded in a leading case of this state, is that “when an agent, acting within the scope of his actual authority, perpetrates a fraud for the benefit of his principal, and the latter receives the fruits of it, he thereby adopts the fraudulent acts of his agent.” Smith v. Tracy, 36 N. Y. 79; Mayer v. Dean, 115 N. Y. 556, 22 N. E. Rep. 261. Here the act of Thompson in substituting plaintiff as broker, if there were such substitution, was beyond the scope of Thompson’s authority; and the transaction, the enjoyment of the fruits of which is supposed to estop the appellants, was not the transaction of their agent, but of a stranger. The rule was never applied, and in reason can never be applied, so as to validate a delegation of his agency by a broker, else the principal would be at the mercy of his broker, and might be burdened with liability to as many deputies as the broker should choose to appoint. The law is settled otherwise. “Where the subagent has been employed without authority, and his acts are afterwards ratified, he can recover no compensation from the principal, but must look to the agent.” 1 Amer. & Eng. Enc. Law, 395.
We conclude, therefore, that upon the uncontroverted evidence the appellants are not responsible for the employment of the plaintiff, and are under no obligation to compensate him. Our conviction that the respondent’s claim is without equity reconciles us the more readily to the defeat of his judgment on legal grounds. Judgment reversed, and new trial ordered, costs to abide the event. All concur.