Johnson v. Jones , 4 Barb. 369 ( 1848 )

By the Court, Allen, J.

We do not think that the report of the referee can be set aside as being against evidence. I. There was much evidence in the cause which, upon a trial at the circuit, would have been submitted to a jury as tending to prove actual authority on the part of Crandall to purchase the goods as the agent of the defendant; and the verdict of the jury in favor of the plaintiff, in such case, would have been conclusive. (Prescott v. Flinn, 9 Bing. 19. Dunlap’s Paley on Agency, 169. Com. Bank of Lake Erie v. Norton, 1 Hill, 501.) The referee in this case is in the place of the jury, and his conclusions upon questions of fact are equally final. (1.) The agency of Crandall, like that in the Commercial Bank of Lake Erie v. Norton, (supra,) was very general; he having the entire charge of the business of the defendant at Syracuse. (2.) He had been permitted to purchase liquors and produce, and other supplies for the store, upon a credit, and to give the defendant’s notes therefor; and some of these notes were paid by the defendant without objection. And although in March, before the purchase of the goods in question, he had instructed Crandall not to sign his name to any paper, but if he wanted goods to send to him (the defendant) for them, it does not appear that at that time he claimed that Crandall had exceeded his authority in making his purchases, and giving notes in his ñame; so that these instructions must be considered as private restrictions upon a general agency, and do not affect a person dealing with the agent in ignorance of them. (Story on Agency, § 19. Tradesmen’s Bank v. Astor, 11 Wend. 87. Ham. Pr. & Agent, 268.) (3.) In the winter previous to this purchase, the agent had purchased of the plaintiff a small bill of goods of the same character as these in question, which we may reasonably infer, from the evidence, came to the knowledge of the defendant some months before this purchase, and he made no objections to the transaction. (4.) When informed of the transaction in question, he did not deny Crandall’s authority to make the purchase, but he complained of the manner in which the authority had been exercised by Crandall. “He said he did not like it much ; it was too large a bill to buy of that kind of property.” It is true he also said at the same time that he would have nothing to do with the goods farther than the $50 he had paid on them. There is nothing in these expressions denying the validity of the purchase, or his liability to the plaintiff. In connection with the other declarations of the defendant it may well be inferred that he merely intended to repudiate the transaction as between him and his agent, and to hold the latter responsible for his abuse of the authority vested in him.

1 II. There is strong evidence, in the case, of apparent authority in Crandall to bind the defendant in this transaction; and Í the real question is not what power was intended to be given f to the agent, but what power a third person, who dealt with jj him, had a right to infer he possessed, from his own acts and 'f those of his principal. (Perkins v. Wash. Ins. Co. 4 Cowen, 645. Com. Bank of Lake Erie v. Norton, 1 Hill, 501. Story on Agency, § 130 to 133.)

III. There was evidence that the defendant ratified the contract, with full knowledge of all the circumstances. If he had intended to disaffirm it, it was his duty at once to give notice thereof to jthe plaintiff and return the goods; and not having done so, he will be presumed to have assented to, and ratified the purchase. (Dunlap's Paley, 172, note (9). 2 Kent's Com. 616.) So far from repudiating the contract, and giving notice to the plaintiff, in order that he might protect himself, the defendant took the goods, with the residue of the goods in his store, in August, 1846, from Syracuse to Utica, and put them in the loft of his store at the latter place, where they remained until April, 1847. What became of them after that time, or where they were at the time of the trial in April, 1848, does not appear. The referee was authorized to, and probably did, hold that the defendant had by his dealing with the goods, and his silence upon the subject, so far as the plaintiff was concerned, ratified the purchase made by his agent. (Story on Agency, §§ 250, 253. Moss v. Rossie Lead Mining Co. 5 Hill, 137.)

There is no force in the objection to the evidence of the declarations of Stevens, as to his agency for the plaintiff. The defendant dealt with him, and recognized him as such, and took from him a bill of the goods purchased, in the name of the plaintiff as the seller. What was said by Stevens was immaterial, except as a part of the transaction, and as such was competent.

Interest was clearly recoverable upon ;the demand. The amount was liquidated, and was due at the time of the sale. ( Walden v. Sherburn, 15 John. 409.)

The defendant now insists that the report is erroneous, and should be set aside, for the reason that the note given at the time of the purchase of the goods was not cancelled at the trial.

This objection is not tenable, for several reasons. (1.) If the note w;as the note of the defendant, Crandall having authority to give it in his name, then the plaintiff w'as certainly not called upon to cancel it, but was entitled to a report upon it. (2.) If it was not the note of the defendant, then he had no interest in having it cancelled, but the plaintiff had a right to retain it as the note of the agent who gave it without authority. (3.) The question was not raised before the referee, and cannot be now made upon the motion for a new trial; particularly as we can see that no harm can accrue to the defendant because the note was not cancelled in form. The judgment upon the report will be a bar to any recovery hereafter upon the note. (9 Conn. Rep. 23.) (4.) It does not appear to have been decided, in any case in which the question has arisen, that it is necessary for a party, even where he brings his action upon .an original consideration, for which a note has afterwards been given, under circumstances requiring its production at the trial, to cancel the note in form. The reason of the rule would seem to be satisfied by its production, and placing it at the disposal of the court. It is true that the courts have said that the note must be either shown to be lost or destroyed, or be produced and cancelled at the trial. But as was said before, it was not necessarily decided in any of the cases to which we were referred, or which we have examined. In Holmes v. D’Camp, (1 John. 34,) the plaintiff merely produced the note at the trial, but did not cancel it. On the argument the plaintiff’s counsel produced it, cancelled it, and filed it with the clerk, although it does not appear that this was required by the court. In Burdick v. Green, (15 John. 247,) Spencer, J. says, “ The mere giving a negotiable note, or its endorsement to a third person, does not extinguish the original cause of action, provided the payee can show it to be lost, or can produce it to be cancelled.” In this case the plaintiff produced the note and placed it at the disposal of the referee; and this was all he was bound to do. The motion to set aside the report of the referee must be denied.