Opinion
June Term, 1898.
Gratz Nathan, for the appellant.
Edward P. Lyon, for the respondent.
The complaint alleged that on the 24th of September, 1889, the defendant, claiming to be an officer of the Equity Gas Light Company of Brooklyn, and representing himself to have authority to enter into contracts for that company, ordered from the plaintiff's predecessor and assignee certain bonds to be engraved and printed; that the plaintiff furnished work and material in the performance of that contract of the value of $754.18, when it was notified to stop work on the contract, and that the defendant had in fact no authority from the Equity Gas Light Company to enter into the contract as he represented. The plaintiff, therefore, sought to recover as damages for the false representation of the defendant made to it, the amount which it had expended upon the contract before it was notified to stop work upon it. The case has been once tried and a judgment for the plaintiff reversed, but upon grounds which do not at all affect the merits of this case. Upon the former trial proof was given by the plaintiff which, it was claimed, proved that the defendant was estopped from asserting that he had authority to make this contract in behalf of the Equity Gas Light Company, because it was claimed that in an action brought against that company by the plaintiff the defendant had testified that he had no authority to enter into the contract, and thereby had induced the plaintiff to discontinue its action against the Equity Gas Light Company. The case was submitted to the jury upon the former trial upon the question of estoppel, but it was held upon appeal that the evidence did not warrant the submission of that question, and for that reason the judgment was reversed. Upon this trial evidence was given bearing upon that question, but the court held that there was not sufficient evidence upon that point to go to the jury, and for that reason the question of estoppel is not in the case. It was not claimed by the defendant that any resolution of the board of directors of the Equity Gas Light Company was ever passed authorizing or requiring this work to be done. He based his claim that he had authority upon the fact that at a meeting of the board of directors it was concluded that this printing and engraving should be done, and that the president of the company, in the presence of the other members of the board and with their implied assent, directed the defendant, being the treasurer, to order the work done. The work in question was the engraving of certain bonds which were to be issued by the Equity Gas Light Company to some Philadelphia people who had agreed to build the gas works and lay pipe for the Equity Gas Light Company and to take their pay in stock and bonds. It appeared that the Philadelphia contractors to whom these bonds were to be delivered were to pay all the expenses of procuring the bonds to be prepared and issued. It also appeared from the testimony of the defendant that he had been acting to some extent for the Philadelphia people, and had been ordering work to be done for which he understood they were to pay. It was claimed by the plaintiff that when the president directed the defendant to procure these bonds to be printed, it was understood by the president and by the directors of the company who were present, and also by the defendant, that this work was not to be ordered for the Equity Gas Light Company, but for the Philadelphia contractors for whom the defendant at certain times had been acting. There was evidence which warranted the jury in finding this fact, not only because it was testified to positively by one of the directors who was present, but because it was fairly to be inferred from the general trend of the testimony, stating how the business was done. The court told the jury that if the president of the company, who by the constitution and by-laws had the power to make contracts, ordered the defendant to procure this work to be done and the defendant understood that it was to be done on the credit of the Equity Gas Light Company, he was authorized to bind the company and the plaintiff could not recover, but if when the defendant received those instructions from the president he understood that he was to order the work upon the credit of the Philadelphia contractors and not upon the credit of the Equity Gas Light Company, and he represented to the plaintiff that he had authority to order this work for the Equity Gas Light Company, the plaintiff was entitled to recover by reason of the false representation which constituted a breach of warranty of his authority. In this charge we think the court was correct and the jury would have been justified from the evidence in finding that the defendant, when he ordered this engraving, understood that it was to be done upon the credit of the Philadelphia contractors and to be paid for by them and not by the Equity Gas Light Company.
We have examined the various exceptions taken in the case and presented by the appellant, and none of them is in our judgment well taken. The result of our examination is that the judgment and order are correct and should be affirmed, with costs.
VAN BRUNT, P.J., and PATTERSON, J., concurred; INGRAHAM, J., dissented.
Judgment and order affirmed, with costs.