Metropolitan Aluminum Manufacturing Co. v. Lau

already placed an order for calendars with another concern, known as Ellery’s, but that he did not fancy the desigfi, and that the plaintiff’s salesman then told defendant that he (defendant) could cancel Ellery’s order, but, should he be unable to do so, then he could countermand the order placed by him with plaintiff, and that defendant had not been able to cancel the order placed with Ellery. This alleged arrangement between the defendant and plaintiff’s salesman does not appear on the order signed by the defendant and accepted by the plaintiff, which order appears to be complete and absolute on its face, and by the provisions above quoted, contained therein, precludes the arrangement between defendant and plaintiff’s agent which is relied on by defendant to defeat plaintiff’s claim. While it is true that parol evidence is admissible to show that a writing which is in form a complete contract was not to become a binding contract until the performance of some condition precedent resting in parol (Reynolds v. Robinson, 110 N. Y. 654 , 18 N. E. 127 ; Mayer v. Dean, 115 N. Y. 556 , 22 N. E. 261 , 5 L. R. A. 540 ), still it seems to us under the facts here presented that, when the defendant signed the order containing the above quoted condition, he waived the arrangement, totally inconsistent' therewith, which he had orally made with the plaintiff’s agent. Furthermore, the agent’s promise to defendant did not bind the plaintiff, since defendant had direct notice that in making such promise the agent transcended his authority. Moreover, the position of salesman merely signifies a limited authority, and the defendant was as a matter of law charged with notice thereof, so that before trusting to it he was bound to ascertain its extent. Beck v. Donohue, 27 Misc. Rep. 230 , 57 N. Y. Supp. 741 ; Allen v. Insurance Co., 88 Hun, 461 , 34 N. Y. Supp. 872 ; Michael v. Eley, 61 Hun, 180 , 15 N. Y. Supp. 890 . It is a well-established rule that third parties dealing with an avowed agent, and more particularly a special agent, are put upon their guard by the very fact, and do so at their own risk. They cannot rely upon the agent’s assumption of authority, but are to be regarded as dealing with the power before them, and must at their peril observe that the act done by the agent is legally identical with the act authorized by the power. Joseph v. Struller, 25 Misc. Rep. 173 , 54 N. Y. Supp. 162 ; 1 Am. & Eng. Ency. of Law (2d Ed.) p. 987. Persons relying upon stipulations and promises made by the agents varying or waiving the printed provisions in the contract do so at their own peril. Allen v. Insurance Co., supra; Legnard v. Insurance Co., 81 App. Div. 320 , 81 N. Y. Supp. 516 ; Messelback v. Norman, 122 N. Y. 578 , 26 N. E. 34 .

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.