Cannon v. Bannon — 151 A.D. 693

Majority

p. 693

William F. Cannon, Appellant, v. Georgie L. Bannon, Respondent.

First Department,

June 28, 1912.

Headnote

Principal and agent—broker’s action for commissions — authority of busband to act for wife.

In an action by a broker to recover commissions for procuring a purchaser for real property, testimony by defendant’s wife, the owner of the property,- that the defendant acted for her and handled her property entirely and absolutely, is sufficient to show general authority in the defendant to employ a broker.

It is competent for the plaintiff in such action to show an employment by an agent under an allegation of employment by the defendant, because the act of the agent is the act of the principal.

Appeal by the plaintiff, William F. Cannon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1.0th day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

p. 694

Edward J. Welch, for the appellant.

Joseph H. San, for the respondent.

This action is brought by the assignee of one Russell for broker’s commissions in procuring a purchaser of certain real property of the. defendant. The plaintiff’s evidence tends to show that Russell was employed by the defendant’s husband to procure a purchaser of the said premises upon an express agreement that he should receive five per cent of the purchase price for his services, that he procured a purchaser, with whom an enforcible contract of purchase and sale was made. The complaint was dismissed apparently on the theory that it was not shown that the husband was the defendant’s authorized agent. Her testimony on that head was as follows: “My affairs were absolutely in Mr. Bannon’s hands. Q. And he acted for you % A. Entirely and absolutely. * * * Q. What. did you say to him ? A. The authority that all wives should give their husbands. The authority that I think a wife should give a husband to take those matters in hand. I said nothing at all; it was in his hands; it was his business absolutely. I was the owner of that property. He handled it for me absolutely, it was bought with my money and handled by Mr. Bannon absolutely. He did everything that was necessary.” She denied having given special authority to employ a broker, but it is difficult for us to understand how broader general authority could have been shown.

The respondent seeks to sustain the judgment on the ground that the plaintiff pleaded an employment by the defendant, and that it was not competent to show an employment by an agent; but of course the act of the agent is the act of the principal. The ultimate facts only have to be stated in a pleading.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred. . .

Judgment reversed, new trial ordered, costs to appellant to abide event.