Harper v. Goodall — 10 Abb. N. Cas. 161

Majority

p. 161

HARPER v. GOODALL.

N. Y. Common Pleas;

General Term,

November, 1881.

Headnote

Broker. —-Htjsbahd amd Wife.

A broker, to sustain an action brought by him for commissions, must prove direct employment by the principal, or direct authority from the principal, to treat with his authorized agent. Such employment is not within the scope of the ordinary agency of a wife for her husband.

Appeal by plaintiff from judgment of justice of Eighth District court, dismissing complaint.

Edward B. Harper sued Albert G. Goodall for commissions as broker in procuring tenants for premises No. 839 West Thirty-fourth street. The defense was non-employment of plaintiff.

Henry T. Dewey and George W. Brush, for appellant.

D. M. Porter and George H Kracht, for respondent.

The plaintiff had no personal transaction with defendant, neither had his clerks and agents. The latter acted upon the assumption that defendant’s wife and daughter had authority to employ them. No authority can be assumed in a case like the present. The employment of a real estate broker to rent the premises in which the family lives is not within the scope of the ordinary agency of the wife, and special authority or ratification must be shown.

There was no ratification, for defendant is not shown to have accepted the fruits of plaintiff’s efforts, with full knowledge of the facts.

The proper course for the plaintiff would have been to secure a direct employment from defendant, or di

p. 162

rect authority from him to treat with the latter’s wife or daughter on the subject.

It would be too severe to hold the head of a family responsible for such admissions and. declarations as a shrewd broker, or his active clerk, who is “ working up the case ” (Return, pages 6 and 7), may be able to extort from a wife and daughter, or other member of the family.

The judgment should be affirmed.

Vah Hoesen, J., concurred.