Morse v. Thurber , 7 Misc. 707 ( 1894 )

BISCHOFF, J.

This action was brought to recover for materials and labor furnished by plaintiff in the erection of a certain “Watchman’s recorder system” upon the defendants’ premises. The plaintiff’s cause rested upon a contract alleged to have been made through plaintiff’s agent, Morse, and defendants’ agent, Hinrick; and this appeal is based, substantially, upon the contention that no authority from the defendants to Hinrick to make the contract appears. To this we cannot accede. There is undisputed evidence that the plaintiff’s agent called upon the defendant Whyland, and had a conversation with him in regard to installing the plant in question; that the defendant Whyland then referred Morse (the plaintiff’s agent) to Hinrick, .and the negotiations ending in the order for the installing of such plant were carried on by Morse with such Hinrick. The defendants’ evidence is to the effect that the plant was installed at plaintiff’s instance, and at his own risk, and that the defendant Whyland so informed the plaintiff’s workmen while they were engaged in erecting the instrument. There is sufficient evidence to support the judgment, and to justify the rulings of the justice with regard to Hinrick’s statements, and upon the conflict which appears as to the intention of the parties the justice’s finding is not to be disturbed. Weiss v. Strauss (Com. Pl. N. Y.) 14 N. Y. Supp. 776; Schwartz v. Wechler, 2 Misc. Rep. 67, 20 N. Y. Supp. 861; Lynes v. Hickey, 4 Misc. Rep. 522, 24 N. Y. Supp. 731. There are no extrinsic circumstances appearing in this case which would turn the balance of probability in favor of the appellants, and we are unable to hold that the'judgment is against the weight of the evidence. An examination of the exceptions fails to disclose any prejudice to the appellants. Judgment affirmed, with costs.