Opinion
Argued December 11, 1878
Decided January 21, 1879
A.W. Mills, for appellant. E.H. Neary, for respondent.
The question principally litigated on the trial was whether plaintiff's Exhibit A, or defendant's Exhibit No. 3, constituted the binding contract between the parties. The referee found that the plaintiff's exhibit constituted the contract, but upon request found that the defendant's exhibit was a part of the contract, and should be read in connection with the contract, as claimed by the plaintiff.
The two papers are alike in most respects. Each contains an agreement by the plaintiff to sell, and the defendant to purchase 12,000 cedar hop poles, at seventy dollars per thousand, of specified dimensions to be delivered at stations on the railroad.
The paper presented by the plaintiff was drawn by him, and signed by one Mills as agent for the defendant, and the agreement claimed by the defendant, was a printed form filled up and signed by the plaintiff. The essential difference between the two is that in the former it is specified "no objection to any kind of cedar," whilein the latter the contract requires "said poles to be of yellow cedar, first growth."
We think that the referee was justified in holding that the written paper was binding. As a question of fact the finding is conclusive upon this court, and so far as the finding was influenced by the principle of law, that written matter must prevail over printed, the referee committed no error. The referee found that the plaintiff delivered 10,076 poles at the station, under the contract, and there is no finding that these poles did not conform to the agreement as claimed by the plaintiff, and found by the referee, and we must assume that they did. Of these the defendant accepted and received 2,740, and refused to accept the remainder on the ground that they did not conform to the contract as claimed by him.
The point is made that the authority of Mills was limited to making contracts according to the printed blanks, and had no authority to make the other contract, but the evidence is sufficient to warrant the finding that he had general verbal authority to buy hop poles, and if so, the blanks might be regarded in the nature of private instructions by which the public dealing with the agent would not be bound. Besides there was evidence tending to show that the defendant told the plaintiff that any contract made with Mills would be all right, and that when the written paper was shown him, he recognized its binding force, although stating that Mills had no right to make such a contract.
It is also urged that the contract was not properly executed. It is signed "Thos. Mills, agent, for P.R. Miller." Such a contract if actually made in pursuance of authority may be signed by the agent in his own name, and the principal will be liable. ( Briggs v. Partridge, 64 N.Y., 357; Dykers v. Townsend, 24 id., 57.) Besides there is evidence of recognition and adoption of the contract by the defendant, and whatever conflict there was upon this point was settled by the referee. (1 Pars. on Contracts, 49, 50.)
We have examined the exceptions to evidence, and do not think any of them are tenable.
The conversations in respect to the contract were offered only upon the question as to which was intended as the contract between the parties, and in that view they were competent.
We are unable to find any other exception presenting a question reviewable in this court, and the judgment must be affirmed.
All concur.
Judgment affirmed.