62 N.Y.S. 972 | N.Y. App. Div. | 1900
. The defendant is a domestic corporation, organized in August, 1895, under the name of the “ Columbia Pneumatic Wagon Wheel Company.” In 1896 its name was duly changed to the “American Rubber Tire Company.” The plaintiffs are the successors in interest of Conant & Randall, who, in 1895, were doing business at Troy under the name of the Journal Publishing Company, and were publishing once a month the Carriage and Harness Dealers' Journal.
It is claimed by the plaintiffs that, on the 20th of September, 1895, a written contract was made between the Journal Publishing Company and the Columbia Pneumatic Wagon Wheel Company by which, in substance, the wheel company had the right to advertise in the Carriage and Harness Dealers' Journal to the extent, in the aggregate, of twelve pages, to be used at any time ordered by the
This action'was commenced June 26, 1897. It is alleged in the complaint that the plaintiffs, or their predecessors, have performed on their part the contract, or have been ready and willing, and have offered to perform; that there was paid on said contract by defendant, in April, 1896) the sum of forty-five dollars, and in December, 1896, the sum of forty dollars, and that there remained due and unpaid thereon the sum of one hundred and eighty-five dollars, for which sum judgment was demanded.' The defendant in its answer denied that it ever made the contract claimed by the plaintiffs, and that whatever advertising the plaintiffs had done for the defendant had been fully paid for.
At the trial, it appeared that the contract under which the plaintiffs claimed to recover was signed “ J. F. Aldrich, Mgr. Columbia Pneumatic Wagon Wheel Co.” It did not in terms purport to be the contract' of the corporation. The .advertisement to be inserted was described as “ our advertisement,” and it was - stated “ we will pay” the price named. .
It is claimed by the defendant that the contract is only the individual contract of Aldrich. Still, if Aldrich was in' fact authorized by the corporation to make such a contract,, and -it related to the business of the corporation and was given and received as the act of the corporation, the form of the contract would not of itself, within the authorities, relieve the defendant" from liability. (Morrill v. Segar Mfg. Co., 32 Hun, 543 ; Bank of Genesee v. Patchin Bank, 19 N. Y. 312; Bush v. Gilmore, 45 App. Div. 89.)
The main question at the trial was whether the defendant was bound by the contract, either by reason of Aldrich having authority to make it in behalf of the defendant, or by reason of: ratification by the defendant after having full knowledge of its contents.
The plaintiff called as a witness the president of the defendant. He testified that Aldrich was an' employee, but not an officer of the ■ defendant; that he acted in a limited capacity as manager, his duties being to solicit orders, oversee workmen and shipments, and make
At the close of the evidence, it was held by the court that the contract was witjiin the apparent scope of the authority of Mr. Aldrich as manager of the defendant, and that the defendant was bound by it. Upon this basis a verdict was ordered for the plaintiffs.
The contract in question was made soon after the organization of the defendant. What knowledge or information the plaintiffs, or their predecessors, then had of the authority, actual or apparent, of Aldrich, or of the acts of the corporation in regard to him, does not appear. One Comstock represented the Journal Company in making the contract, and he was not called as a witness. Nor was. Aldrich called as a witness. It does not appear that Aldrich had ever made in behalf of the defendant such a contract before. “A principal is only bound by an act of his agent in excess or abuse of his actual authority, where a third person, believing and having a. right to believe that the act was within the authority, has acted or-refrained from acting in reliance thereon, and would sustain damage if the act of the agent was not "considered that of the principal.”' ( Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5.) The principal is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent. (Edwards v. Dooley, 120 N. Y. 540, 551.)
All concurred, except Smith, J., not sitting.'
Judgment reversed and a new trial granted, costs to abide the event.