Majority
p. 1095McINTOSH v. KILPATRICK. (Supreme Court, Appellate Term. May, 1904.)
Headnote
Monet Had and Received.Plaintiff having paid money to defendant’s employé to apply on rent of defendant’s apartment, which he then assumed, but had no authority, to rent to plaintiff, and defendant not having ratified the agreement or made another, plaintiff is entitled to recover the money.
Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
Action by James H. McIntosh against Ringland F. Kilpatrick for money had and received to the use of plaintiff. August 15, 1903, plaintiff gave an employé of defendant $20, and received a memoran
p. 1096The following is the opinion in the court below (Bennet, J.) : Argued before FREEDMAN, P. J., and SCOTT and.TRUAX, JJ.
dum as follows: "Received from Janies H. McIntosh. $20 to be applied on rent of apartment * * * rent to be $1,300 for term ending September 30, 1904, tenant to have possession whenever he wishes. [Signed] John Hartle.” The parties subsequently disagreed over details of occupancy, and plaintiff never took possession, and now sues for the $20. Judgment for plaintiff. Defendant appeals.
Affirmed.
The defendant’s engineer, Mr. Hartle, swore that his authority was limited to showing apartments and giving prices, and that final arrangements for leasing were made by some other person. Consequently he was without authority to bind the defendant by the signing of the instrument of August 15th. It does not appear that the defendant ever ratified his act, with knowledge of what he had done. The subsequent interview between the plaintiff and defendant resulted in a disagreement. I am thus led to the conclusion that there was no lease or agreement for leasing between the parties. There having been no agreement, there is nothing to justify the defendant in retaining the $20. Judgment, therefore, for the plaintiff for that amount.
Maas & Goldberg, for appellant.,
Charles L. Burr, for respondent.
Judgment affirmed, with costs, on the opinion in the court below.