Morse v. Thurber — 7 Misc. 707

Majority

p. 707

Jamin S. Morse, Respondent, v. Francis B. Thurber et al., Appellants.

(New York Common Pleas—General Term,

April, 1894.)

Headnote

Plaintiff’s agent called upon one of the defendants and had a conversation with him in relation to installing a certain detective system in their store, and was referred by him to one of the employees of the firm, with whom he conducted subsequent negotiations, and obtained a contract under which the work was performed. Held, that these facts showed sufficient authority in such employee to make the contract.

Appeal from a judgment of the District Court of the city of New York for the eleventh judicial district, rendered by the justice, without a jury, in favor of the plaintiff.

Action for work, labor and services and materials furnished.

p. 708

Warner do Crawford, for respondent.

S. Arlington, for appellants.

Tliis action was brought to recover for materials and labor 'furnished by plaintiff in the erection of a certain watchman’s recorder system upon the defendants’ premises. The plaintiff’s cause rested upon a contract alleged to have been made through plaintiff’s agent, Morse, and defendants’ agent, Minick, and this appeal is based substantially upon the contention that no authority from the defendants to Minick to make the contract appears. To this we cannot accede. There is undisputed evidence that the plaintiff’s agent called upon the defendant Whyland and had a conversation with him in regard to installing the plant in question; that the defendant Whyland then referred Morse, the plaintiff’s agent, to Minick, and the negotiations, ending in the order for the installing of such plant, were carried on by Morse with such Minick. The defendants’ evidence is to the effect that the plant was installed at ¡flahltiff’s instance, and at his own risk, and that the defendant Whyland so informed the plaintiff’s workmen while they were engaged in erecting the instrument. There is sufficient evidence to support the judgment and to justify the rulings of the justice with regard to Minick’s statements, and upon the conflict which appears, as to the intention of the parties, the justice’s finding is not to be disturbed. Weiss v. Strauss, 39 N. Y. St. Repr. 78 ; Schwartz v. Wechler, 2 Misc. Rep. 67 ; Lynes v. Hickey, 4 id. 522. There are no extrinsic circumstances appearing in .this case which would turn the balance of probability in favor of the appellants, and we are unable to hold that the judgment is against the weight of the evidence. An - examination of the exceptions fails to disclose any prejudice to the. appellants.

The judgment should be affirmed, with costs.

Giegekioh, J., concurs.

Judgment affirmed, with costs.