Tucker v. Woolsey — 64 Barb. 142

Majority

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Tucker and others vs. Woolsey and others

Headnote

A principal is liable for the acts of his agent, so long as the latter acts within the apparent scope of his authority.

The plaintiffs, being merchants, in Paris, and having accounts and dealings with the defendants in New York, sent an agent to New York, to look for orders in their business. They sent with him a quantity of goods, and gave him a letter.of introduction to the defendants, asking for him their kind services, as regarded advice; and subsequently wrote another letter to the defendants, saying, “ any advice or assistance you may render him, in the prosecution of his business, will be appreciated.” The defendants, at the request of the agent, rented him an office, in which to store and exhibit his goods. Held that the defendants had reason to suppose that the “ assistance and advice” required of them was in regard to the care and disposition of the plaintiffs’ property, and to believe that the agent had authority to provide-a place in which the same could be stored and exhibited. And that the procuring of a suitable office being absolutely necessary for the care of the property, the defendants were entitled to be allowed an item in, their account, for the rent.

Such agent, as he sold the goods of his principals, deposited the money with the defendants, because he had no bank account. As he would want to use it, he reserved the right to draw it as he had occasion. There being no direction given that this money should be paid, by the agent, to the defendants ; held the latter were justified in taking it as a special deposit, and in paying back that deposit to him, as he from time to time required. That the defendants were under no obligation to hold it for the plaintiffs; and to the amount of money so received, they were entitled to be credited for an equal amount expended. But that for any advance made, beyond such deposits, and the sums specially ordered to be paid to the agent, there was no authority for the advance, and the same should be disallowed.

Where it was proved that a letter in the possession of a third person, after be

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ing shown to, and read by a party to the suit, was kept by the person to whom, it was addressed, who was out of the country, at the time of the trial; it was held that this was sufficient evidence to warrant parol proof of its contents.

APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee, dismissing the complaint.

The action was brought to recover the balance of an account, amounting to $2,588. The answer was a general denial, and setup a counter-claim, amounting to $1,714.52.

It appeared, from the referee’s finding of facts, that the plaintiffs were bankers in Paris, and the defendants bankers and commission merchants, in New York. That the plaintiffs filled orders, given by the defendants, for merchandise, and sent to the defendants merchandise for sale, and mercantile papers for collection; and that the parties kept running accounts together arising out of those mutual transactions. The whole dispute between the parties arose upon two accounts made by the defendants, one dated May 22, 1867, and the other dated July 5, 1867, called the Dreux accounts. It was found by the referee that, independently of these two accounts, the defendants all the transactions were indebted to the plaintiffs in the sumof $909.70. If all the items in these two accounts are rightfully charged against the plaintiffs, the plaintiffs are indebted to the defendants thereon in the sum of $926.95; which counterbalances the indebtedness of $909.70, from the defendants to the plaintiffs, and authorized a judgment for the defendants.

The referee found, as a conclusion of law, that by the accounts of May 22 and July 5, 1867, the plaintiffs were indebted to the defendants in the sum of $936.35, and that thus the other indebtedness of $909.70 was counterbalanced, and that the defendants were entitled to judgment.

Francis C. Barlow, for the appellants.

Wm. F. Shepard, for the respondents.

The appeal in this case is from a judgment entered upon the report of a referee, and applies to some items of an account, which must be separately considered.

The plaintiffs were merchants in Paris, and had accounts and dealings with the defendants, in Hew York. They sent an agent to Hew York to look for orders in their business. They sent with him seven large trunks filled with goods, and gave him a letter of introduction the defendants, asking for him their kind services as regarded advice. Another letter was afterwards sent, saying to the defendants, “ any advice or assistance you may render him, in the prosecution of his business, will be appreciated.”

Two letters were afterwards written, each asking the defendants to advance to the agent $50. On his arrival here, the agent called on the defendants. The defendants advanced money to pay the duties. This was approved by the plaintiffs. The defendants then, at the request of the agent, rented him an office in which to store and exhibit his goods. The plaintiffs deny the authority of the agent to hire. The referee allowed this item.

There can be no doubt that the principal is liable for the acts of his agent, so long ás he acts within the apparent scope of his authority. The agent came with seven large trunks filled with goods. These were for exhibition and sale. Some place was necessary to be obtained, either by renting a room for the purpose, or by hiring storage. When the plaintiffs asked of the defendants assistance and advice in the prosecution of his business, "they gave them reason to suppose that such assistance and advice was in regard to the care and disposition of the property he had to sell, and furnishes ample grounds for supposing that the agent had authority to provide a place in which the goods could be stored and exhibited. It was a matter absolutely necessary for the care of the

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property of the plaintiffs and fully justified the finding of the referee, as to the item for rent.

Another item objected to on this appeal is, as to the moneys advanced to the agent beyond the $100 authorized in the two letters of the plaintiffs. It is clear that no authority was given to advance money to the agent for Ms expenses; and if such items appeared in the accounts, they should have been rejected. The agent, as he sold the plaintiffs’ goods, deposited the money with the defendants because he had no bank account. As he would want to use it, he reserved the right to draw it as he had occasion. There was no direction given that this money should be paid by the agent, to the defendants. They were justified in taking it as a special deposit, and in paying back that deposit to Mm as he from time to time required. The defendants were under no obligation to hold it for the plaintiffs; and to the amount of money so received they are entitled to be credited for an equal amount refunded. For any advance made, beyond such 'deposits, and the sums specially ordered, there was no authority for the advance, and the same should be disallowed. The very fact that plaintiffs did not authorize the advance of moneys to the agent, for duties and expenses, leaves it to be supposed that the intent was that he was to use, of the moneys received by him for the sale of goods, as much as was necessary for Ms expenses, and justified the repayment by the defendants, to the agent, of the moneys he deposited with them.

The remaimng item is the money advanced for a passage ticket to return home. The testimony shows that Dreux produced to the defendants a letter from the plaintiffs, which was read by Woolsey, and wMch stated that the defendants should furnish him with a return ticket. The. objection to this evidence was not well taken. It was in proof .that Dreux kept the letter, and that he was out of the country. This was sufficient evi

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dence to warrant parol proof of its contents. The denial by Andrews, of having written such a letter, made it a question of fact for the referee, with which we cannot interfere.

[First Department, General Term, at New York,

November 4, 1872.

Ingraham, Leonard and Learned, Justices.]

Our conclusion, therefore, is ’ that no error was committed by the referee, except in allowing for moneys advanced beyond the amount deposited with the defendants ; and such excess should be deducted from the amount allowed to the defendants, and the plaintiffs should have judgment for that sum, with interest.

If the defendants so consent, and file a stipulation that the plaintiffs may have judgment for the amount of such excess and interest, the present judgment may be vacated, and such judgment may be entered. If not, a new trial is ordered ; costs to abide the event.