Tallman v. Kimball — 26 N.Y.S. 811

Majority

p. 811

TALLMAN et al. v. KIMBALL.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

1. Principal and Agent—Ratification of Unauthorized Acts.

Where a mechanic, engaged in repairing defendant’s building, purchased materials from plaintiff without authority from defendant, and used them in the building, and defendant paid for some of the materials so purchased, he thereby ratified all the purchases by the mechanic.

2. Evidence—Proof of Similar Transactions.

In civil actions, evidence of transactions similar to that under investigation is not admissible, where there is no charge of fraud.

Appeal from St. Lawrence county court.

Action by Charles F. Tallman and James P. Howe against William H. Kimball to recover for materials purchased by one Thomas Ma-honey, who is engaged in repairing a building owned by defendant, and used in such building. A judgment of the justice of the peace was affirmed by the county court, and plaintiffs appeal.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Keeler & Russell, for appellants.

Nelson L. Robinson, for respondent.

Two grounds are relied upon by the appellants for the reversal of the judgment on this appeal.

First. That the acts of the mechanic who did the work and purchased the materials, although not authorized in advance by the defendant, were in all respects adopted and ratified by him, except as to the plaintiff’s claim, after the work was done and the materials were furnished, and that such ratification was equivalent to an original authority from the defendant. The fact that the mechanic did the work and furnished materials without the direction of the defendant, and that defendant afterwards paid the bills, is proved, and not disputed by the defendant; but he swears that he'gave the mechanic no authority to buy these goods of plaintiff. A precedent authority was not necessary to bind the defendant, provided he subsequently ratified the act of the person assuming to act as his agent, and a ratification, by the principal, of a portion of the acts of the agent, binds him as to all the acts of such agent in the same general business. Bank v. Warren, 15 N. Y. 580 ; Heermans v. Clarkson, 64 N. Y. 173 ; Hayes v. Kedzie, 11 Hun, 581 ; Lawrence v. Taylor, 5 Hill, 113 . He cannot ratify just so much of the unauthorized acts of one assuming to act for him as he pleases, and reject the rest of his acts. He must affirm or reject in toto. Fowler v. Bank, 67 N. Y. 143 . The defendant having adopted some of the acts, and paid for the labor and some of the materials performed and furnished by the mechanic upon his buildings, and the goods purchased of the plaintiff having been bought by the mechanic, in the same manner as those for which the defendant paid, and having gone into his building and been used for his benefit, we think a legal obligation exists against him to pay for the same.

The second point raised by the appellant is that the justice erred

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in allowing the defendant to prove transactions between this mechanic and other persons not connected with this work, and to allow him to be contradicted in relation to his evidence given on such testimony. Such evidence is not allowable on the ground that the transactions are similar to those arising in this case. There is no issue of fraud in this case, and it is only where criminal or fraudulent acts are under investigation that this class of evidence has been admitted. Olmsted v. Hotailing, 1 Hill, 317 . Nor was it competent to ask questions of the witness of this irrelevant character, for the purpose of laying the foundation to contradict the witness. A party is not permitted to contradict a witness upon collateral or irrelevant matter, into which he has himself inquired. For the reasons above stated, the judgment of the county court and that of the justice must be reversed.

Judgment reversed, with costs of this appeal and in the county court.

HERRICK, J., concurs. PUTNAM, J., not acting.

Cases cited

Wiles v. Suydam 64 N. Y. 173 N.Y. 1876-02-08 p. 811