William Wicke Co. v. Kaldenberg Manufacturing Co.

21 Misc. 79 | N.Y. App. Term. | 1897

McAdam, J.

The-action was to recover the rent of a loft in the factory building of the plaintiff, Nos. 402, 404 and 406 East Thirty-second street, this city, for the months of January, February and March, 1897.

It appears that on December 25, 1896, a fire occurred in the premises Eos. 209 and 211 East Thirty-third street, which had up to that time been occupied by the defendant, and in consequence certain machinery and other property of the defendant were carried to the street, where they remained exposed to the elements.

In the latter part of December, 1896, a young man called upon Mr. Wicke, the president of the plaintiff, and stated that he was sent by Mr. Kaldenberg, of the Kaldenberg Manufacturing Company, to ascertain if the latter company could rent a loft in the plaintiff’s building for the purpose of storing some "machinery. Mr. Wicke asked some questions as .to its weight, which the young man was unable to answer, and he requested Mr. Wicke to> call upon Mr. Kaldenberg at the company’s office in East Thirty-fourth street. Later upon the same day, Mr. Wicke called, as requested, saw Mr. Kaldenberg and had a conversation with him. Kaldenberg said there had been a fire recently in the factory in Thirty-third street, and some machinery and other articles were lying exposed, and they wanted to put them under cover. The size of the loft and all conditions of the renting was talked over. The term was tp be from January 1, 1897, to April 15, 1897, and the rent, $200, payable monthly in advance. The conversation ended by Kaldenberg saying: “ That is cheap, and we will take it.” Wicke said he would have a lease written out and sent around. A few days later one ITtz, by the direction of Wicke, wrote out the lease in duplicate,, and it was executed by the plaintiff and then taken to the defendant’s office, where it was handed to Kaldenberg. The lease was by the William Wicke Company to the Kaldenberg Manufacturing Company, and expressed the- terms as previously agreed upon by Wicke and Kaldenberg. Keither the lease nor the duplicate was ever returned to plaintiff, Kaldenberg saying some time after, when asked concerning them, “ that it was hardly worth while to sign leases for so short a time.”

All the terms having been definitely agreed upon, the formal execution of the lease was not necessary to the consummation of the contract, particularly as the defendant took possession as part performance thereof on its part. Wilbur v. Collin, 4 App. Div. 417; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209. Such possession was taken January 3, 1897, and the loft was occupied with machinery, models and other articles removed from the burned factory which had been occupied by the defendant.

There was no plea of surrender, and ño proof of abandonment, so that the actual.possession eñtered upon by the defendant January 3, 1897, presumably continued in like manner during the period for which rent is claimed herein,.

If Kaldenberg had hired the premises on his own account, would be difficult to imagine what defense he could have had to the rent. The defense apparently is that Kaldenberg had no power to bind the defendant by the contract made. He was the manager of the defendant, having the general control of its business and apparent authority to bind it, particularly as the hiring was for its benefit. Lee v. Pittsburgh C. & M. Co., 56 How. Pr. 373; affirmed, 75 N. Y. 601. The agreement made was not one required to be in writing, or which the corporation in the conduct of its business had no power to make.

It is objected that the action is not to charge the defendant with the reasonable value of the use, but for a specific sum agreed upon as rental. This is the customary manner in which such hirings are made, whether by individuals or corporations. The agreed rental is presumably the reasonable value of the use, and there was no evidence offered to prove the contrary. .

Kaldenberg had been the manager of the defendant for two years prior to the fire, and while he claimed that, for some unexplained reason, his power as such ceased with the fire, there is no evidence showing that he had been removed from or had abandoned the position, or that anyone had been appointed to succeed him. At all events the corporation availed itself of the contract he made on its behalf, and after having enjoyed the benefit the law will imply that Kaldenberg acted by its authority. Story on Agency, § 54; Dunlap’s Paley’s Agency, 171. Taking possession under the contract Kaldenberg made for it amounted to» a ratification of his act, which is equivalent to original authority on his part. Commercial Bank v. Warren, 15 N. Y. 577.

If the hiring had been for a term exceeding one year, for which under the statute a contract in writing would be required, and the corporation had not taken possessmn of the premises; or having taken possession a claim for rent was. made after it had abandoned control thereof, a different question, i. e., as to the forms of obligation necessary to charge the corporation, would be presented. But as the hiring was but for a few months it is difficult to assign any legal reason why the contract made by one assuming to act as defendant’s agent, subsequently ratified and approved by the principal taking its fruits, should not bind it, as it would a natural person under like conditions.

There was no substantial defense to the action, and the exceptions taken are without merit.

The judgment must be affirmed, with costs.

Daly, P. J., and Bisohoff, J., concur.

Judgment affirmed, with costs.