Wakefield Rattan Co. v. Tappan , 80 Hun 219 ( 1894 )

PUTNAM, J.

Without considering any of the other questions raised in the case, I think a new trial should be granted for the reason last stated in the opinion of Justice MAYHAM. 70 Hun, 405-414, 24 N. Y. Supp. 430. The exception of the defendant to the reception of the testimony of the witness Seaver, plaintiff’s agent, showing that in making the sale of the goods which were the subject of this action he relied upon the report of the Edward Russell Company, founded on the statements of Frank Andros, made March 1 and. September 13, 1890, was clearly well taken. But the error of the court in overruling the objections of defendant to such report might have been obviated if the plaintiff had afterwards shown that Andros was authorized to represent the Keith Company in making the statements in question to the mercantile agency. I think, however, it failed to show any such authorization. The evidence in the case relating to this authority of Andros was, substantially, as follows: It was shown by the witness Dabell that Andros was the bookkeeper of the Keith Company in 1890, and had been for several years. The witness Coffey testified that Andros had charge of the books, and was in general charge of the store, at the time he called. The last-named witness further testified that he understood that Andros was manager of the business. When asked from whom he understood it, he answered, “from himself.” It is well settled that the power of an agent cannot be shown by the declarations of the alleged agent It is said in Gould v. Town of Sterling, 23 N. Y. 456-463:

“No representation of the agent as to the fact of his agency, or as to the extent of his power, is of any force to charge the principal. But it being shown, by other evidence, that the agency existed, and that the act done was within the general scope of the power, the principal is bound by the representations of the agent as to any essential facts known to the agent, but which the party dealing with him had no certain means of ascertaining.”

The last-named witness also testified that he had no recollection of going to the store of the Keith Company at any other time than the 13th of September, 1890, to acquire any information. Andros, as a witness, in answer to the question by the court, testified that he was not the manager of the business; he was a bookkeeper. Hence the testimony in the case only shows that Andros was a bookkeeper of the Keith Company, and had been for several years, and when Coffey called at the Keith Company’s store, in September, 1890, was in charge. There is no evidence whatever that he had any authority from the Keith Company to make statements for the use of the mercantile agency. I think no such authority is to be implied. Andros was a clerk and bookkeeper in a retail store, and should be presumed to be authorized to sell goods and to do the ordinary business there carried' on. But I do not think he should be deemed, in the absence of evidence, to have had the right to bind his principals by statements to the mercantile agency. Therefore, it was erroneous for the court to allow the statements of Andros to be read in evidence and to overrule the objections to the testimony of Seaver, plaintiff's agent, that in making the sale of the goods in question herelied on the mercantile agency’s report, founded on such statements. The reception of this evidence probably influenced the-jury. It is true that some representations made by Hyland, a member of the Keith Company, as to the financial standing of the- ' firm at the time the Keith Company ordered the goods in question, were shown. But these representations were so vague and" " indefinite that a jury would have been justified in refusing to1 render a verdict founded thereon. It is probable that the jury, in reaching the conclusion that the Keith Company obtained the goods in question by fraud and deceit, were influenced by the testimony given as to the statements of Andros to the agent of the mercantile agency. It was for the plaintiff to show the alleged false representations of the Keith Company. It attempted to do this by testimony of the statements of one of the members of the Keith Company, which was competent; also by evidence of representations of Andros to the agent of the commercial agency, which I have endeavored to show was incompetent. The defendant was not compelled to offer evidence to show the lack of authority on the part of Andros. He could properly rest on the failure of plaintiff to show affirmatively such authority. I have examined the authorities cited by the learned counsel for the respondent, and am unable to see that they conflict with the views above stated. They are generally cases holding that one employed in the office or place of business of a corporation or individual, apparently having charge or some charge of the business there carried on, and assuming to transact business, as agent, for such corporation or individual, will be presumed to be authorized to act as such in matters relating to the ordinary business of the parties for whom he assumed to act; as if, for instance, Andros had assumed to sell goods in the store of the Keith Company with a warranty or on credit. Any act of Andros in the store relating to the ordinary business of the firm would doubtless have bound the Keith Company. But the act of making statements of the financial standing of his employers to the mercantile agency was not ordinarily, the duty of a clerk or bookkeeper, or within his ordinary powers, and no special authority was shown on his part to make such representations. The case of Corning v. Walker, 14 Wkly. Dig. 314, cited by counsel for respondent, was where, after a person was shown to be a general manager of a party, it was held proper to allow evidence of his ■declarations. Here, as we have seen, not only is there no proof that Andros was general manager, but, on the contrary, his uncontradicted evidence shows that he was not. There has been no •discussion before us on the question of plaintiff’s right to maintain this action of replevin under subdivision 3, § 1690, Code Civ. Proc. See Wise v. Grant, 140 N. Y. 593, 35 N. E. 1078. For the .reason above stated, I am in favor of a reversal of the judgment.

MAYHAM, P. J., concurs.