The plaintiffs were harness-makers, and the action is brought to recover a balance claimed to be due them for making and repairing harness for the defendant from September 20, 1890, to May 4, 1891. The whole amount of the bill was $120.65, and defendant paid on account $100, and admitted owing a bill of $14.10, which he had before tendered, and which he paid into court at the commencement of the action; so that the only amount in dispute upon the trial was $6.55, and the action was defended more on principle than for the amount involved. Along in November or December, 1890, the plaintiffs rendered a bill to defendant for work done and for repairs made, etc., which included a number of items the defendant had not ordered. He at first refused to pay for these items, and afterwards said that he would pay the bill then presented, but would pay no more bills like it, and notified plaintiffs not to make any repairs for him on his harness without a written order from him, and if they"did he would not recognize it, or pay for the work. On the trial it was conceded by the plaintiffs that the work subsequently done by them, and which the defendant refused to pay for, was done upon verbal orders from persons other than the defendant. There is not a scintilla of evidence in the case that these items, amounting to $6.55, were ever ordered by the defendant in person, or by any one authorized by him. They received their orders from stablemen, defendant’s coachman, or Mr. Hendricks, the livery stable keeper. Mr. Hendricks testified that he had received no orders from the defendant to have the work done, and there was no authority shown as to either the stablemen or the coachman to order work; and defendant testified that he knew nothing about the work ever having been done until the bill was rendered.
It is elementary law that in order to bind a person he must be a party to the contract, either express or implied, or that the contract must be made, or the obligation incurred, by some one having authority from the party to be bound. The plaintiffs attempted to show a waiver of the notice, because the defendant himself, after giving it, had personally ordered certain work to be done by the plaintiffs. This was no waiver, because the notice given to them contemplated orders made by third parties, and not by the defendant personally. The testimony shows that plaintiffs were in the habit of going around from stable to stable, getting orders from employes, of rendering bills to the stables, and not to the parties to whom the harness belonged, probably depend