Bryce v. Clark — 42 N.Y. St. Rep. 471

Majority

p. 471

Lloyd S. Bryce, Resp’t, v. Charles S. Clark, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Principal and agent—Ratification.

Plaintiff published advertisements of defendant in pursuance of a contract made with an agent whose authority was denied. A statement of his claim was sent to defendant, who did not take any action thereon until after two more advertisements were published. Held, that it was his duty under these circumstances to immediately notify plaintiff to discontinue the advertisement, and that he was properly held liable for the last two publications.

Appeal from a judgment rendered in the district court of the city of New York for the sixth judicial district

Alexander & Ash, for resp’t; M. F. McGoldrich, for app’lt.

This action was brought ■ to recover for advertising done fo.r the Harvard Publishing Co. upon an order signed si Harvard Publishing Co., W. Campbell Phelan, Manager.”

It is always the duty of the plaintiff claiming to have a contract with the defendant made through an agent to inform himself whether the agent had the power to make the contract relied upon. In this case the testimony left that question in doubt, so that it was within the province of the court to determine whether there was such an agency or not. We do-not think the evidence warrants us in disturbing its conclusion.

But it further appears that the defendant and his manager received a statement of plaintiff’s claim, which indicated that he thought a contract had been made with defendant. Under such circumstances, it was his duty to immediately notify the plaintiff to discontinue the advertisement. Instead of this, it was allowed to appear in two subsequent numbers of the plaintiff’s periodical, and the justice very properly rendered judgment for those two insertions, and the judgment will, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.