Opinion
February, 1913.
Conroy, Williams Kelly (D.T. Kelly, of counsel), for plaintiff.
Williams, Folsom Strouse (Charles D. Folsom, of counsel), for defendant.
The plaintiff instituted this action to recover the value of merchandise sold to defendant at his request. The defendant by its answer admits the plaintiff's claim, but alleges as a defense to the plaintiff's cause of action a counterclaim in the sum of $500 as damages sustained by the defendant on the failure of the plaintiff to comply with a certain agreement for the delivery of certain lumber at a fixed price. On the trial hereof, after both sides had rested, the plaintiff moved to dismiss the counterclaim and for a direction of a verdict for the sum of $932.18, inclusive of interest, upon the ground that the defendant failed to prove facts to sustain said counterclaim. The plaintiff's claim is admitted by the defendant's answer; said motion was thereupon granted. Thereupon defendant moved for a new trial on all the grounds stated in section 999 of the Code of Civil Procedure. The facts as alleged by defendant to sustain its counterclaim briefly stated are as follows: On May 16, 1911, defendant's treasurer had a talk with a Mr. Beare and received an order in writing from said Beare, in his handwriting, with his signature at the bottom thereof: "W.R. Beare, for R.C. Lippincot," for the purchase and delivery of a certain kind of lumber, which lumber was subsequently delivered and paid for; that thereafter and on or about the month of May, 1911, under a similar order signed as the above for the delivery of certain kind of lumber known as yellow pine flooring, which was shipped by defendant, and, after certain deductions and allowances having been made thereon, left a balance due in the sum of $871.88, which amount defendant admits is due the plaintiff; that theretofore and on the 22d day of August, 1911, said defendant's treasurer received an order from said Beare which read as follows:
"NEW YORK CITY, August 22-11.
"Sold — The East River Mill Lumber Company, foot E. 92d St. Consign them — Bulkhead, 93d and 94th streets, East River. 250 Mont. 13 -16x2 ½ F. Ga. Y.P. Flg. B. Butler. D. 25 and M. Scratch Buck, Standard Working and Grading at 25 ½. First ship. in 3 weeks via Str., subject to approval and acceptance for balance of order. If satisfactory the balance of order to come in shipments every 10 days. Fot. Cash, Balance 3 months note of 2% 30 days from date of invoice.
"(Signed) W.R. BEARE, for R.C. LIPPINCOT."
That said lumber was never delivered, and for the failure of plaintiff to deliver the same the defendant alleges its damages to be the sum of $500, for which it counterclaims as aforesaid. The paper or alleged order aforesaid was excluded when offered in evidence upon the ground that defendant failed to prove the alleged agency of Beare or ratification of his acts by plaintiff. Certain trade journals were offered in evidence showing that the said Beare was in the lumber business in Jersey City and the plaintiff in business in the city of Philadelphia. Said advertisement was for the sale of lumber, which advertisement contained at the head thereof the name of the plaintiff and at the bottom the name W.R. Beare only, and as said advertisement contained the plaintiff's name the defendant concludes that it is some evidence of ratification of the agency of Beare. The said Beare may have only been a broker for the sale of lumber and in business solely on his own account and not as an agent for the plaintiff. The burden of proof is on the defendant to establish the agency, and where the burden of proving by a preponderance of evidence a third party's agency for the defendant rests upon the plaintiff as essential to a recovery, it is proper for the court to direct a verdict for the defendant when under a correct ruling as to the admission of evidence the facts bearing upon the subject of the existence of the agency are undisputed and it is apparent therefrom that the plaintiff has not met the burden resting upon him. Franklin Bank Note Co. v. Mackey, 158 N.Y. 140. From a reading of said advertisement and the alleged order defendant fails to convince the court that said Beare was acting as an agent for plaintiff. The ownership of the lumber was in plaintiff. It was not possible for Beare to sell the same to defendant unless authorized thereto by the plaintiff or unless the plaintiff had by words or acts done that from which a third party would have been justified in believing that Beare had authority to sell this lumber. As Brown, J., said in Edwards v. Dooley, 120 N.Y. 544: "The fundamental principle of the law of personal property is that no person can be divested of his property without his own consent. Mere possession does not confer a power to sell, and an unauthorized sale, although for a valuable consideration, and to one having no notice that another is the true owner, vests no higher title in the vendee than was possessed by the vendor. Covill v. Heil, 4 Den. 323, 2 Kent Comm. 324. While a principal is bound by his agent's acts when he justifies a party dealing with his agent in believing that he has given to the agent authority to do those acts, he 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. That is, he is bound equally by the authority he actually gives, and by that which, by his acts, he appears to give. For the appearance of authority he is responsible only so far as he has caused that appearance. For the appearance of the act the agent alone is responsible. The fundamental proposition is that one man can be bound only by the authorized acts of another He cannot be charged because another holds a commission from him and falsely asserts that his acts are within it." Mechanics' Bank v. N.Y. N.H.R.R. Co., 13 N.Y. 599 -634; Bickford v. Menier, 107 id. 490. See also Figueira v. Lerner, 52 A.D. 216, 217, 218. Nor has the defendant offered legal proof that the said Beare was acting as a special agent for the plaintiff in this transaction. One who deals with a special agent specially authorized for that transaction is put upon inquiry as to the extent of the agent's authority and deals with him at the risk of his authority being exceeded. Nester v. Craig, 69 Hun, 543. And even if the agent exceeds his actual or apparent authority, although the transaction may be beneficial to his principal, said principal would not be liable. Timpson v. Allen, 149 N.Y. 519. There is authority for the fact that authority of an assumed agent to make a purchase will be implied where the alleged principal has repeatedly recognized and approved of similar acts; still, a single act done under express authority is insufficient to justify the inference that the assumed agent has the apparent authority to subject the alleged principal to liability upon subsequent purchases made without actual authority. Greenfield v. Herrman, 72 Misc. 40. The court concludes that the motion for a new trial must, therefore, be denied. Said defendant may have an exception to the court's ruling with a stay of ten days of execution and thirty days to perfect a case. Submit order on one day's notice.
Motion denied.