Coyle v. City of Brooklyn

53 Barb. 41 | N.Y. Sup. Ct. | 1868

Lead Opinion

By the Court, J. F. Barnard, J.

There was but one question of fact between the parties, which has been determined by the jury. It was not disputed but that the contract of the city of Brooklyn with the plaintiff’s deceased husband had been executed. The defendant claimed to have paid the price of performance. This claim was supported by proof tending to show that William B. Lewis, who had received the money due upon the contract, was a partner therein with the plaintiff’s intestate, and also by evidence that the plaintiff had in fact authorized the defendant to pay Lewis. The evidence of the parties was in strict contradiction upon this issue, and the jury have found for the plaintiff. It must therefore be considered by this court as finally settled, that Patrick Coyle alone was the contractor, and that the plaintiff" did not give the city any authority to pay to, or William B. Lewis any authority to receive for her the payment foi; the work: It is conceded that Lewis did superintend the work; he was employed by the deceased contractor and continued to superintend the same under the plaintiff as his administratrix. The plaintiff brings her action upon the contract thus performed under the direction of Lewis. This presents the only remaining question, whether the plaintiff, by claiming under the contract, is not in law bound to ratify, and does not thereby ratify the acts of Lewis, and with them the unauthorized receipt of the money from the defendant. There are two classes of eases under which a principal is bound by the unauthorized acts of an agent; one where the principal, after knowledge of the unauthorized act of the agent, ratifies and consents to it, or where, after like knowledge, the principal fails to give notice of dissent within a reasonable time.- In this ease there is no proof of knowledge by the plaintiff of the unauthorized receipt of the 'money from the defendant by Lewis. The principle established by the other class of cases is, that a principal cannot be permitted to enjoy the fruits of a bargain without adopting the instrumentalities of the agent in consummating it. There is no ease in which this doctrine is maintained where the cause of action was not created by the unauthorized act of the agent; either a chose in action was purchased, or a, claim was canceled without authority by an agent for his principal and a new security substituted. If a principal sue upon a security bought without authority, or sue upon a substituted security given for one canceled without authority, he by reason thereof ratifies the act of the agent by which the securities were obtained. In this case the contract was made by the principal ; its performance entitles the plaintiff to payment. It must be paid to her or her agent duly authorized. It has riot been done; her right of action is made out. An unauthorized payment to Lewis cannot be ratified by her action upon this contract; she claims nothing by reason of such payment; she repudiates it entirely.

The judgment should be affirmed, with costs.

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Dissenting Opinion

Gilbert, J. (dissenting.)

On the 14th day of April, ■1865, Patrick Coyle, deceased, entered into a contract with the defendant, for the paving of Grand street with Belgian pavement, for a certain price per running foot, which was to be paid in installments, from time to time as the work progressed, not exceeding seventy per cent of the contract price for the work actually done. On the 30th of May, 1865, and before any work had been done under the contract, Mr. Coyle died. The contract was actually performed by William B. Lewis, or under his supervision and direction. On the 20th of' June, 1865, sufficient work had been done by Lewis to earn an installment of $7070, and on that day the defendant made a payment to the plaintiff upon the contract, of that amount. The plaintiff deposited $6000 of this sum in the Nassau Bank to the credit of Lewis, to pay for material and labor on the work. The subsequent installments due upon the contract, amounting in the aggregate to $24,707.50, were from time to time paid by the comptroller of the city directly to Mr. Lewis, and he testified that he applied the same in the execution of the contract. The plaintiff furnished no evidence contradictory of this: on the contrary the evidence shows that the plaintiff never did an act towards performing the contract, or expended a dollar upon the work, except as aforesaid. Both Lewis and the comptroller also testify that Mrs. Coyle expressly authorized these payments to be made, and that she was informed of the making of them immediately after they were made. The plaintiff, however, denies that she gave any such authority, or that she had such knowledge. Evidence was given tending to show that Lewis was,"in point of fact, a partner with Patrick Coyle, deceased, in the contract; and evidence was given on the part of the. plaintiff to disprove such partnership. The last payment, which included all that was due upon the contract, was made September 16, .1865. The plaintiff made no application for any payment until January following, and was then, as she testifies, informed for the first time of the aforesaid payments having been made to Lewis. She then repudiated the authority to receive said moneys altogether, and without offering to allow any sum which had been actually expended in executing the contract, brought this action, as administratrix of her deceased husband, Patrick Coyle, to recover the aforesaid balance of $24,707.50. The jury rendered a verdict in her favor for that amount. The defendant then moved for a new trial upon the minutes, which was denied. Judgment having been entered, the defendants appealed from that and also from the order refusing a new trial.

I shall not discuss the legal propositions contained in the judge’s charge, for I am of opinion, that the motion for a new trial should have been granted, because there is not any evidence to sustain the- verdict. The only disputed question of fact arose upon a theory of the transaction presented by the defendant, which was utterly opposed to that of the plaintiff. I put aside, then, all evidence on the part of the defendant, and take the facts testified to by the plaintiff as undisputed. According to her testimony Lewis was her agent to perform the work required to be done, in order -to entitle her to the payments under the contract. She gave Lewis no express authority or instructions. As she states the case, he had no authority, except such as the law implies from the nature of the employment, and the general course of the business committed to him. The rule of law upon this subject is, that whatever acts are usually done by agents of that kind, are deemed to be incidents of the authority confided to them in their particular business," employment or character. In other words, the mode in which the business, in which the agent is employed, is usually done, furnishes the rule by which his authority is measured. (Story on Ag. 60-106. Jeffrey v. Bigelow, 13 Wend. 520. Sandford v. Handy, 23 id. 266. Nelson v. Cowing, 6 Hill, 366. Capel v. Thornton, 3 C. & P. 352. Edmonds v. Bushell, 1 Law Rep. Q. B. 97.) In this case the inference is irresistible, thatthe plaintiff’ intended thatLewis should use the installments, provided by the contract, in performing the work. She provided no means herself. She did not request him to make any advances. In fact she neither said or did any thing, except to recognize him as foreman, who was to receive an indefinite share of the profits for his services. How did she expect he was to accomplish the work ? Did she suppose he would make advances, or Buy materials on credit, or borrow money to pay laborers ? If he had authority to do either of these things, it was not conferred expressly upon' him, but arose solely by implication from the nature of his employment, and the usual course of that kind of business. The same implication would suffice to authorize him to receive the payments which were made under the contract. I will say in this connection that the statement of Lewis, that he was to furnish one half the money and have one half the profits, does not help the plaintiff’s case, for two reasons; first, because this was part of an alleged partnership agreement which the plaintiff denies and repudiates, and second, because the money to be thus furnished, was only what was necessary before a reimbursement by payments under the contract. And such an arrangement necessarily involves a right on the part of Lewis to receive such payments from the city.

Such being the nature of the agency of Lewis, whether in fact he had authority to receive the payments or not, he did receive them, as the plaintiff testifies and as the jury have found, while assuming to act for her in a business in which she had accredited him as her agent. According to Lewis’ testimony, which is not contradicted, he appropriated these payments in execution of the contract.

Upon a well established principle of law, the plaintiff is precluded from maintaining an action to recover the fruits ' of this assumed agency, while at the same time she repudiates the acts of the agent, whereby those fruits were secured. If Lewis was not her agent to perform the contract, then it has not been performed by her, or on her behalf. If he was her agent for that purpose, ■ he was authorized to employ means appropriate to that end. Ho means could be more appropriate than the advances which by the contract it was provided the defendant should make. (Cases supra.) The principle stated has been applied in numerous instances, and in a great variety of ways, to prevent fraud and injustice, and is indispensable for that purpose. Holt, Oh. J. thus declares it in Bolton v. Hillersden, (1 Ld. Ray. 224.) If a master has never en rusted a servant to charge him by signing notes in the master’s name, yet if the money, for which such note is signed, comes to the use of the master, oriij in the present case, the servant gave the note to raise money to pay the foreign bills charged to his master, which is for the benefit of his master, such note will bind the master, though he never permitted the servant to sign such notes before.” The rule is thus stated by Mr. Hovenden : “ Though an agent act gratuitously in exceeding his authority, subsequent approbation adopts his acts; and this approbation will he inferred, whenever the principal avails himself of any advantage derived from his acts, for he will not be permitted. to avow his agent’s negotiations as to part, and disavow as to the residue.” (Hov. on Fraud, 144.) In Fitzsimmons v. Joslyn, (21 Vermont Rep. 139,) Redfield, Ch. J. lays down the rule, that the principal must in every view be implicated to the fullest extent in what his agent did within the scope of what he expected Mm to do, or within that which he knew he had done, if he still persists in taking the benefit the agent’s act.” See also to the same effect Story’s Agency, § 250; Paley on Agency, Dunlap’s ed. 172. The decisions of our own courts from an unbroken chain of authority to the same, effect, form an early period to the present time. A few of them are cited. (Codwise v. Hacker, 1 Caines, 539. Shiras v. Morris, 8 Cowen, 60. Olmstead v. Hotailing, 1 Hill, 317. Moss v. Rossie Co., 5 id. 137. Dexter v. Adams, 2 Denio, 651. Benedict v. Smith, 10 Paige, 127. Farmers’ L. and T. Co. v. Walworth, 1 N. Y. Rep. 447. Bennett v. Judson, 21 id. 238. Elwell v. Chamberlin, 31 id. 611. Bell v. Day, 32 id. 165.) Indeed the principle is elementary in the law of agency, and as Oh. J. Eedfield observed in the case of Fitzsimmons v. Joslyn, (supra,) is “ almost innate in the breasts of all men not wholly insensible to all just moral relations.” I think it governs this case.

It follows, therefore, that the plaintiff) by thus asserting the agency of Lewis, and by seeking to avail herself of the benefit of Lewis’ acts, in performing the contract, necessarily affirms his acts, in obtaining the means whereby it was performed.

The judge at the circuit did not consider the real question involved, and, through mistake or inadvertence, a result has been obtained, which must shock every man’s sense of justice.

In such a case, on an appeal from an order refusing a new trial, this court can unquestionably correct the error, and it is its duty so to do by setting aside the verdict, and granting a new trial, notwithstanding the point was not raised in the court below. Such a course was taken in Catterall v. Hindle, (2 Law Rep. C. P. 368,) and approved by this court in Bunnell v. Greathead, (49 Barb. 106.) See also Code, §§ 173, 174.) To doubt the authority of the court to do so, is to challenge its power to administer justice. A verdict, which on undisputed facts is against law, cannot be allowed to stand. (Rich v. Penfield, 1 Wend. 380. Lawrence v. Barker, 5 id. 301. Highland Bank v. Wynkoop, Hill & Den. Supp. 243. Sheldon v. Hudson River R. R. Co. 14 N. Y. Rep. 218. Keyes v. Devlin, 3 E. D. Smith, 523. Macy v. Wheeler, 30 N. Y. Rep. 235. Parker v. Jervis, 34 How. Pr. 256.) This relief is also specifically provided for by the Code. Section 264 provides that the judge who tries the cause may entertain a motion, to be made on his minutes, to set aside a verdict, and grant a new trial upon exceptions, or for insufficient evidence, or for excessive d'amages. , It also provides that when an appeal is taken from his decision, a case or exceptions must be settled. Section 349 authorizes an appeal from an order made at a special term, or by a single judge when it grants or refuses a new trial. It is not a proper construction of this section, to limit its operation to such order, when made at special term only. Every order, when made at special term, is directed by a single judge, for only one judge can sit thereat. But a single judge can make an order granting or refusing a new trial, when not sitting at special term or circuit, as in the case before us. The language of section 264 is, “ the judge who tries the cause,” not the court before which it is tried, may entertain the motion, and the section contains no requirement, that it shall be heard at special term. Moreover, the several subdivisions of section 349, embrace a great variety of orders, which are never made at special term, but are always made by a single judge in vacation. Section 349, therefore, was evidently intended to embrace both kinds of orders.

The general provision of section 329, authorizing this court, upon an appeal from a judgment, to review -any intermediate order, also embraces the order in this case. (Pumpelly v. Owego, 13 Abb. 387. Lane v. Bailey, 1 Abb. N. S. 407.) Something was said on the argument about a notice to the comptroller not to pay Lewis, but no such question was submitted to the jury. Indeed, it would be idle to attempt to give any such effect to the testimony of the plaintiff. Her direct evidence does not prove an intention to give any notice, or in any way to restrict Lewis’ powers, but is a mere expression of her unwillingness to sell. Upon her cross-examination she omits altogether what she had before said, on the subject of the payments being made to her. And all that she said is perfectly consistent with the idea that she thought then, as she claimed upon the trial, that Lewis was her agent, with such authority as the law gives him.

[Kings General Term, December 19, 1868.

The judgment and order denying a new trial should be reversed, and a new trial should be granted, costs to abide the event.

Judgment affirmed.

Lott, J. F. Barnard, Gilbert and Tappen, Justices.]