Taylor v. Second Avenue Railroad

Headnote

Agency—cannot be established by declarations of assumed agent.—Ratification— admission by president of corporation, when not sufficient to constitute.

Appeal by both parties from judgment entered in favor of the plaintiff on a verdict of a jury.

Action to recover from the defendant for certain work and materials furnished by plaintiff and used in the erection of a depot built for defendant, and for which plaintiff" alleges, defendant promised to pay.

Plaintiff was allowed, under objection, to testify, that Mr. Prague the architect of the defendant went to plaintiff’s-place of business about November 3, 1877, andkepresented himself as the architect of defendants and an agreement was made with Mr. Prague to do some extra work, and that he, Mr. Prague, told witness that the president of the defendants had authorized him to make an agreement to pay for the work; that the president of the defendant had authorized Prague to say to witness, that if he would go on and put the roof on at the contract price, less five per cent.,, the company would assume it.”

The court at General Term, said : “ This evidence was clearly inadmissible as against the defendant. Mr. Prague-was merely the architect of the defendant. There is no evidence in the case,- that he was employed by the company at all, except to make the plans for the buildings and see that the plans were carried out, or had any authority to* bind them in any way; and no declarations of his are admissible as against the defendant. An agency cannot be created by the representations of an assumed agent (Marvin u. Wilbur, 52 N. 7. 270) and the admission of such representative without subsequently showing that the party making them, was agent of the company, or connecting' the company in any way with the conversation, is error. . (Snook v. Lord, 56 N. T. 605). The alleged admission of Mr. Mehrbach at a subsequent interview that he had sent Mr. Prague to the plaintiffs to have them go on and do the roofing, does not make the evidence competent. No-authority to the president to either make the contract or-to bind the defendant by admissions, was proved, and the " defendant could not be bound by his declarations made-after the transaction in question (First National Bank tu ■jOcean National Bank, 60 N. T. 278).