Balet v. New York & New Jersey Bridge Co. — 40 A.D. 245

Majority

p. 245

Joseph W. Balet, Appellant, v. The New York and New Jersey Bridge Company Respondent.

Headnote

Direction to an engineer by the officers of a bridge company to prepare plans for a bridge over the Hudson river to which the consent of the Federal authorities and the State commissioners was necessary — when it does not create a contract obliga tion— recovery for preparing a newspaper article.

In an action brought by an engineer against the New York and New Jersey Bridge Company, a corporation organized for the purpose of building a bridge • across the Hudson river, to recover upon an alleged contract of employment to draw plans "and specifications for the bridge, the plaintiff testified that he called at the office of the defendant and stated to the vice-president and to the secretary and treasurer of the defendant that he desired to make a plan for them, to which they replied, “We are the men who carry on the business here, and you can talk to us; ” that during the interview they gave him a pamphlet relating to the bridge, and the dimensions and other details of the bridge, and that at the end of six weeks the plaintiff submitted some plans which the vice-president and secretary and treasurer pronounced “very good;” that some misunderstanding having, developed in reference to the clear height of the bridge, the plaintiff left the plans with the officers mentioned, and in about two weeks reappeared with, further plans, which the officers in question said were what they wanted; and they subsequently told the plaintiff that the board of directors had accepted his plan.

It further appeared that the plaintiff, at the request of the secretary and treasurer, prepared an article containing a description .of the bridge together with certain ‘ cuts prepared from drawings furnished by the plaintiff at the request of the secretary and treasurer; that in this article it was stated that the plaintiff’s plans would be used in the construction of the bridge; that when the ceremony of breaking ground for the bridge took place the plaintiff was introduced to various persons as the engineer whose plans had been accepted.

"The defendant did not use the plaintiff’s plans in the construction of the bridge, and denied its liability upon the ground that the plaintiff had not been employed pursuant to any resolution of the board of directors or pursuant to any authority of the board of directors delegated to the officers or agents of the corporation.

Held, that as the bridge could not be constructed until the plans therefor had received the approval of the Federal authorities, and also the consent of the commissioners appointed by the States of New York and New Jersey, which fact was stated in the pamphlet given to the plaintiff, he could not assume that the officers of the defendant had power to make a valid contract in respect to a plan for the bridge without ratification by the directors, and that such officers had no power to accept any plan or create any obligation against the defendant in connection therewith;

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' That as it appeared that the newspaper article was prepared for the purpose of creating in the public mind an. impression favorable to the corporation, and as it had operated to the direct benefit of the corporation,- the latter must be considered to have ratified the act of its officers in directing its preparation, and that the engineer was entitled to recover the value of his services in preparing the article, but not for services in the original preparation of the plans,

•Appeal by the plaintiff,'Joseph. W. Balet, from an order of -the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day ■of July, 1898, dismissing the complaint “ on the ground that the plaintiff has not proved employment or ratification thereof,” and directing the exceptions to be heard at the Appellate Division in the first instance.

This appeal was transferred from the first department to the second department.

John T. Fenlon, for the appellant.

Archibald Foote Clark [ Joseph D. Redding with him on the brief], for the respondent.

The question involved in this appeal is whether the plaintiff was •employed to draw certain plans and specifications for a bridge to be ■constructed over the Hudson or North river, from New -York city to New Jersey. It is not contended that there was any written contract, or any employment by reason of any resolution on the part of the board of directors, but the action is brought on an oral employ-on ent by the vice-president, Mr. Greene, and the secretary and treas-firer, Mr. Swan; an acceptance of the work by the company, and a representation by thetvice-president and secretary and treasurer that the plans had been- “ accepted by the board of directors, and • that was the plan on which the bridge.should be built.” The testimony •of the plaintiff is to the effect that he is an engineer who has constructed several bridges; that in July, 1891, he went to the office of the defendant, at 214 Broadway, New York city, asked for the president and met the secretary and treasurer, Mr. Swan, and the vice-president, Mr. Greene, and told them he would like to make a plan for them; they said, “We are the men who carry on the bu-si

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•ness here, and you can talk to us.” They asked about his ability to make plans, and.he gave his history. They gave him a pamphlet, and also the dimensions, width of spans, clear opening, height and other details. He began work, and at the end of six weeks submitted to Messrs. Swan and Greene an elevation and plans and general strain sheets, which they looked over and pronounced “ very good.” Some misunderstanding developing in reference to the clear height, plaintiff left the plans with the. officers of the company mentioned and started to draw further plans. In about two weeks plaintiff reappeared with further plans, when Mr. Swan said : “ Now, that is the thing we want,” and Mr. Greene made a similar statement. Subsequently Messrs. Swan and Greene told plaintiff that they would submit his plans to the board of directors, and in the week following Mr. Swan told plaintiff that the board of directors had accepted his plan. In December following, an article prepared by the plaintiff at the request of Mr. Swan appeared in the New York Ilerald, containing a description of the proposed bridge, together with certain “ cuts ” prepared from drawings furnished by the plaintiff at the request of Mr. Swan. In this article it was stated that the plans prepared by the plaintiff would be used in the construction of the bridge. Messrs. Swan and Greene invited the plaintiff to be present at the ceremony of breaking ground for' the New Jersey end of the bridge as the engineer of the company, and, being present, he was introduced to various persons as the engineer whose plan had been accepted. It is now urged by the défendant, which has not used the plaintiff’s plans, that the plaintiff was not employed by defendant pursuant tq any resolution of the board of directors, or pursuant to any authority of the board of directors delegated to officers ■or agents.

In the case of Tyler v. Anglo-American Savings Assn. ( 30 App. Div. 404 ) this court held that a real estate broker who went to the •office of the defendant and was referred to'its secretary and general manager as the person with whom he might transact business, could not be prevented from collecting a commission which he had earned under the provisions of an oral contract entered into with such secretary and general manager, because such secretary and general manager had no authority to carry out the arrangement entered into with the- customer. produced by the plaintiff without the action of

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the- board of directors. This decision; was based upon .the general, rule laid down in the case of Davies v. Harvey Steel Co. ( 6 App. Div. 166 ), “ that an agreement by an officer or agent of .a. corporation who assumes to act in its , behalf can be enforced against the corporation where, it has received .the benefit of the agreement.” This rule is differently stated -in Spelling on Private Corporations (Vol. 2, § 750) where,’ in speaking of executed contracts, made without express authority by an .agent of a corporation-, he says: “ The assent of the corporation thereto will be presumed; for when, á person has received and appropriated the fruits of a transaction done in his, name, .and under apparent authority from him, he. thereby furnishes the highest possible evidence of his approval.” •

These authorities are quite as strong .in support of the plaintiff’s contention as any upon which he relies, but they do not wholly meet the facts ' qf the present case,, which are distinctively, different from, those of any ease in which the principle contended for- by the plain-; tiff has been applied. The construction of this bridge partook, in part, at least, of a public character. It was.to extend over a navigable river, and before any construction was to be begun -or permitted, the. consent of commissioners appointed by the States of Hew'York and Hew Jersey, under-acts passed for that purpose, was to be obtained, and they were required to approve the same. AH - of these requirements were set out in detail in the pamphlet which -■ was furnished to the-plaintiff when he first made his application to-be permitted to draw plans for. the bridge. In addition to this, consent was required to be obtained from the. Federal government before-any structure could be placed over the river. The_ pamphlet also disclosed that the defendant then had an engineer and an assistant,, who, it is fair to presume, were appointed for the reason that they possessed the technical knowledge requisite to at least oversee.-and construct the work. The Work itself was .practically of - national importance, and it.is quite evident that under such circumstances no> plan would or could be accepted until it had..passed'.the.scrutiny,-o£ the board ;of directors of the defendant, and received the approval of State, and Hational authorities. These conditions, .well known to the plaintiff when he made his- first application, exclude the .idea that .he could assume that the persons with whom, he talked had authority -to make a valid and binding contract-in respect to a plan

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for such bridge, without ratification by the directors or approval by the public authorities. It is plain from all that appears that the defendant and its officers were quite willing to entertain and consider plans for such a formidable work as might be submitted by any engineer. It was a work calculated to excite the ambition of engineers in the development of plans which might prove acceptable, as such result would inure to the lasting renown of the fortunate engineer. We think from all that appears that the persons who talked with the plaintiff respecting these plans and the plaintiff himself, did not contemplate, either the one to accept or the other to. furnish by binding agreement any plans, but that the former" was willing and invited plaintiff to submit a plan which might or might not be adopted, dependent entirely upon future contingencies, and we also think that under such circumstances the vice-president and secretary'would have nd power to accept any plan or create a legal obligation against the defendant in connection therewith. ' Consequently, we think the court below was right in holding that there could bo no recovery for the plans as furnished, or for the labor and time devoted to their preparation.

But while we reach this conclusion we are also of opinion that the plaintiff may become entitled' "to some compensation for the services which he has rendered. The testimony disclosed that some -attacks were made by the newspapers upon the defendant corporation after the plans had all been prepared, and, as the plaintiff claims, accepted by the defendant. In order to meet the attacks which were made upon the corporation, it was determined by the vice-president and the- secretary, for the purpose of creating a favorable impression in the public mind, to publish in the public journals the plan^ which had been furnished by the plaintiff. To that end they requested the plaintiff to prepare certain drawings and procure lithographs of the same to be made; and from these plans, lithographs and drawings a cut of the • bridge was made to appear in the papers, accompanied by statements written by the plaintiff concerning the sainé. . The plaintiff claims that this work was done and performed at the particular instance and request of the' vice-president and secretary of the defendant, and as it operated for the direct benefit of the defendant, it must

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be held to that extent to have ratified and accepted the benefits arising therefrom. Under such circumstances liability would attach for the fair and reasonable value of such services and the use of the plans, lithographs and drawings under the principle enunciated in the cases hereinabove cited-. Such right to recover, however, is not to be measured by wliat the preparation of the plans originally was •reasonably worth, no matter how much time arid labor were bestowed upon them. The plaintiff was the owner of such plans. He had title to them, and his compensation in this- regard would be measured by the value of the use to which they were devoted and his service in connection with the same. They still remain his property, and the defendant has acquired no right in them-. Consequently the recovery, if the plaintiff be entitled to recover, would be limited as herein stated.

We do not by any means determine in this discussion what the rights of the parties are in respect of this matter. It is claimed by the defendant that the whole subject of publication was for the exclusive benefit of the plaintiff, in order to advertise him as an engineer. If such be the fact, then the plaintiff would be entitled to recover nothing. But upon this question, under the proof, he' becomes entitled to have it considered by a jury; and if the fact be as he claims, he is entitled to compensation.

It follows that the exceptions should be sustained and a new trial granted.

All concurred.

Exceptions sustained and new trial granted, costs to. abide the event. .

Cases cited

Tyler v. Anglo-American Savings & Loan Ass'n 30 App. Div. 404 N.Y. App. Div. 1898-05-24 p. 247