Opinion
March 1, 1907.
Clarence E. Sutherland, for the appellant.
Alexander S. Bacon, for the respondent.
The learned trial court in decreeing specific performance only allowed the plaintiff on account of the purchase price the $50 paid on delivery of the contract, and this is why the plaintiff appeals. The judgment is correct, for the contract when delivered gave notice to the plaintiff that the agent had no authority to collect the monthly installments. The defendant never waived this. Instead of returning to the defendant the duplicate of the contract signed by the purchaser, the agent kept it without authority and collected and embezzled 28 installments in addition to the $50 paid on the delivery. Besides, there was no evidence of knowledge in the pur chaser that the agent had possession of the defendant's duplicate when he collected the installments ( Crane v. Gruenewald, 120 N.Y. 274).
The judgment should be affirmed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Interlocutory judgment affirmed, with costs.