Opinion
April, 1901.
William R. Hill, for appellant.
R.R. Rogers, for respondent.
This action was brought to recover the reasonable value of plumbing work done in the residence of defendant during his absence in Europe. Judgment was given for the defendant on the ground that the caretaker who ordered it acted without authority.
On this branch of the case we concur with the decision of the justice. The testimony shows that there was no authority in the caretaker, Mrs. Underwood, as a matter of law, and that the plaintiff did not, in fact, perform the work relying on any apparent authority vested in her by virtue of the position she occupied or the extent to which she was concededly permitted to represent her master's interests. The facts, as to which there is no substantial dispute, are as follows: During the defendant's absence on a vacation in Europe he left his house, fully furnished, in charge of a Mrs. Underwood, who is described as a caretaker. Testimony was admitted without objection that a Miss Barrow alone had authority to give instructions with regard to the house. A serious leak having developed in the main soil and waste pipe in the third-story bathroom, Mrs. Underwood, according to the plaintiff's testimony, came to his place of business, "said there was a leak in Mr. Coates' house at 15 East Thirty-sixth street, and she asked me to go around and repair it." After he had examined the leak he testifies, "She requested to telephone to Mr. Coates' office about it. Mr. Wilson answered it and said, 'He did not want to be bothered with it, but go ahead and do whatever was necessary.' Mrs. Underwood then told the plaintiff to go ahead, 'As Mr. Wilson said so.'" On cross-examination he stated, "I telephoned to the office upon the caretaker's advice that Mr. Wilson was representing Mr. Coates," but in the next breath he says he did not telephone to Mr. Wilson to get authority to do the work, but merely to see whether the latter had been advised of the leak by Mrs. Underwood, but yet that he did rely not on her authority "altogether," but "on them both," and that he thought he "had better" telephone to Mr. Coates' office "before doing anything." He also testified that the leak could have been stopped in five minutes by turning off the water, and that the job would be worth about seventy-five cents.
No attempt was made on the argument to show any agency in Mr. Wilson. It appears that he was an officer in the same company in which the defendant was vice-president, but whom he had no instructions or authority to represent in any of the latter's private affairs.
So far as the caretaker is concerned, I should feel disposed to hold as a matter of law that she had no authority to order the extensive repairs in question, especially in view of the plaintiff's testimony that the leak could have been stopped by turning off the water. A caretaker is defined as one employed "in a building or on an estate during the absence of the owner, to look after goods or property of any kind" (Cent. Dict. 823), or as "one employed to watch over or keep in order property as a house in the absence of the family." Standard Dict. This, in the case of a city house left in charge of a person under the circumstances here disclosed, does not, in the absence of special authority, extend much beyond the duties of cleaning, keeping what is in the house in order and of exercising watchfulness against trespass, intrusion and waste. The duties are primarily to hold things in status quo. A certain authority to repair is to be implied, but this in a case like the one at bar would seem to be strictly limited. It is confined at the most to what is immediately and imperatively necessary for the protection of the premises. There is nothing in the position of an ordinary caretaker, as that term is usually understood, to justify an inference beyond that. In this case, where the mere turning off of the water in an apparently unused portion of the house, would have prevented a deterioration or destruction, thus postponing until the owner's return the question of the advisability and extent of the permanent repairs, the caretaker's authority as a matter of law is measured by the minimum demands of emergency. However, even should there be any question as to this interpretation of the law, a construction recognizing a larger measure of authority would not avail the plaintiff, as the portions of his testimony cited conclusively show that from the outset he did not regard the caretaker authorized to bind her master, and that he partly looked elsewhere for authority where there concededly was none.
If the liability of the defendant rested solely on the acts of the caretaker, we could not disturb the judgment, but a more serious consideration for reversal is presented on the issue of ratification. There is no dispute but that the repairs were made in a workmanlike manner and that they inured to the benefit of the defendant's property. There could, of course, be no ratification by an implied acceptance through silence, inasmuch as the repairs became part of the freehold, thus precluding restitution. It appears, however, that on July the 10th, 1900, the plaintiff sent a bill to the defendant addressed to his house. The date of its receipt by the defendant or that of his return home is not revealed. On October fifth the defendant wrote to the plaintiff implying due receipt of the bill, stating that upon his return he had obtained the opinion of another plumber as to the value of the work, who considered forty dollars an outside price for it. The letter concludes, "I am, therefore, willing to pay this sum, provided you will give me a receipt in full for the work, but do not intend to go beyond this figure. Under the circumstances I cannot but expect that you will modify your estimates to suit the case." It will be observed that this letter does not resist payment of the plaintiff's claim on any theory of unauthorized employment, but merely because of excessive charge. Having written, it devolved upon him to take his stand one way or other, but he could not take a position inconsistent with a disclaimer of ratification and then deny liability after the plaintiff's refusal to accede to his terms. He was under no obligation to write or to pay and his silence could not have been construed into an acceptance of the work. But he certainly could ratify the unauthorized act of his agent in cases of this sort. Courts have seized upon slight circumstances from which to spell out a ratification. A reasonable construction of the entire letter justifies this paraphrase: "I accept the work; I do not intend to question the claim you allege against me except as to its amount; that is exorbitant and I refuse to pay more than forty dollars."
With the actual value of the repairs we have nothing to do. That will be matter for determination on the retrial.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
BISCHOFF, P.J., and CLARKE, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.