Opinion
November, 1908.
Rudolph Marks, for appellant.
George A. Colvin, for respondent.
This action is brought to recover damages for breach of contract, arising out of defendant's cancellation of an order for calendars placed by him with plaintiff. The evidence shows that on the 17th day of February, 1908, plaintiff's salesman, one Campstein, procured of the defendant a written order for calendars, for which defendant agreed to pay on delivery. The said order was forwarded to plaintiff by its salesman, and, on the 20th day of February, 1908, plaintiff notified defendant of its acceptance of said order. The order, signed by this defendant, contained, among others, the following provisions, printed in plain type directly over the space bearing defendant's signature, viz.: "These goods are to be specially made, and this order is not subject to countermand after its acceptance by Metropolitan Aluminum M'f'g Co. No special arrangements or promises of any kind by agents will be recognized, unless expressly written in this order and approved of by Metropolitan Aluminum Manufacturing Co." On or about March 10, 1908, the defendant addressed a communication to the plaintiff, cancelling the order signed by him on the 17th day of February, 1908, and claiming that, prior to the signing of the order by him, he had informed plaintiff's salesman that he (defendant) had already placed an order for calendars with another concern, known as Ellery's, but that he did not fancy the design; and that the plaintiff's salesman then told defendant that he (defendant) could cancel Ellery's order, but, should he be unable to do so, then he could countermand the order placed by him with plaintiff; and that defendant had not been able to cancel the order placed with Ellery. This alleged arrangement between the defendant and plaintiff's salesman does not appear on the order signed by the defendant and accepted by the plaintiff; which order appears to be complete and absolute on its face, and, by the provisions above quoted, contained therein, precludes the arrangement between defendant and plaintiff's agent which is relied on by defendant to defeat plaintiff's claim. While it is true that parol evidence is admissible to show that a writing, which is in form a complete contract, was not to become a binding contract until the performance of some condition precedent resting in parol ( 110 N.Y. 654; 115 id. 556); still, it seems to us, under the facts here presented, that, when the defendant signed the order containing the above quoted condition, he waived the arrangement, totally inconsistent therewith, which he had orally made with the plaintiff's agent. Furthermore, the agent's promise to defendant did not bind the plaintiff, since defendant had direct notice that, in making such promise, the agent transcended his authority. Moreover, the position of salesman merely signifies a limited authority, and the defendant was, as a matter of law, charged with notice thereof; so that before trusting to it he was bound to ascertain its extent. Beck v. Donohue, 27 Misc. 230; Allen v. St. Lawrence County F. Ins. Co., 88 Hun, 461; Michael v. Eley, 61 id. 180. It is a well established rule that third parties dealing with an avowed agent, and more particularly a special agent, are put upon their guard by the very fact, and do so at their own risk. They cannot rely upon the agent's assumption of authority, but are to be regarded as dealing with the power before them, and must at their peril observe that the act done by the agent is legally identical with the act authorized by the power. Joseph v. Struller, 25 Misc. Rep. 173; 1 Am. Eng. Ency. of Law (2d ed.), 987. Persons relying upon stipulations and promises made by the agents, varying or waiving the printed provisions in the contract, do so at their own peril. Allen v. St. Lawrence County F. Ins. Co., supra; Legnard v. Insurance Co., 81 A.D. 320; Messelback v. Norman, 122 N.Y. 578.
MACLEAN and SEABURY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.