BERNARD J. GOLDSTEIN, Appellant,
CHARLES D. TANK, Respondent.
APPEAL by the plaintiff, Bernard J. Goldstein, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of said county on the 18th day of September, 1911, reversing a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff and granting the defendant a new trial before the same judge.
Louis L. Waters, for the appellant.
Edgar F. Brown, for the respondent.
Under date of November 15, 1910, the plaintiff, who was carrying on business in the city of New York under the name of Ajax Fire Engine Works, in reply to a letter from the Syracuse Chemical Fire Extinguisher Company, wrote stating the price of one of its fire engines, with the conditions of sale, and also sent circulars and printed matter relative to the same. On the eighteenth of November the defendant, living in Syracuse,
ordered an Ajax chemical fire engine of the Syracuse Fire Extinguisher Company, stipulating in the order that the sale was to be made on thirty days' approval, etc. This letter Mr. Webb, who was the extinguisher company, forwarded to the plaintiff. On the nineteenth of that month the plaintiff acknowledged to the fire extinguisher company the receipt of this order, and at the same time stated that it would require the extinguisher company to 'guarantee the account in question.' On the same day the plaintiff also wrote a letter to the defendant thanking him 'for your order sent through our Agents, The Syracuse Fire Extinguisher Company,' and adding that shipment would be made in a few days. On the twenty-second day of November the plaintiff shipped directly to the defendant the fire engine which he had ordered through the Syracuse company, conforming in its stipulations to those embodied in the order which the defendant had delivered to the Spracuse agent. At the same time the plaintiff wrote to his Syracuse agent advising it of the shipment of the engine to the defendant and giving it instructions as to testing the machine, etc.
There was nothing in the letters from the plaintiff to the defendant advising the latter to make payment directly to it, and on the twentieth day of December the defendant gave a check to the Syracuse Fire Extinguisher Company in payment of the engine which he had purchased.
We appreciate the existence of the general rule that a selling agent selling an article not in his possession is not authorized to receive payment for such article, but the rule is not an inflexible one and its application in a given case depends upon the circumstances connected with the transaction. ( Scott v. Hopkins, 2 N.Y. St. Repr. 324.)
The order for the engine was given by the defendant directly to the agent and he knew nothing of the relations existing between it and the plaintiff. The plaintiff had advised the defendant in his first communication that the extinguisher company was his agent, and in the letter accompanying the shipment of the machine there was no suggestion that payment should not be made to the agent. Again, it required the agent to guarantee the account, which made Webb or his company
primarily liable for its payment, and so he had an interest which, perhaps, gave him authority to receive payment, although the evidence does not show that he did in fact make the guaranty required.
Even if these facts are not sufficient to establish that the agent was authorized to receive pay for the engine, they do indicate that in the actual communication between the parties there was no suggestion to the defendant that the purchase price of the engine should not be paid to the agent.
Passing this question, however, we think the evidence shows that the plaintiff by his subsequent conduct ratified or assented to the payment made by the defendant to the agent of the plaintiff. On the 5th of January, 1910, the plaintiff wrote to the defendant, referring to the shipment of the fire engine, and stating that the account was overdue. On the seventh the defendant answered this communication advising the plaintiff that he had paid the account to Mr. Webb of the Syracuse Fire Extinguisher Sales Company of whom the engine was ordered. On the ninth the plaintiff wrote to its agent in Syracuse, advising it of the letter of the defendant and asking that it give immediate attention to the matter and send a check by return mail. This was followed by a series of letters, which, apparently, did not elicit any reply. They were all written in an attempt to collect the account of the agent, although after the first letter the plaintiff disclaimed any authority in the agent to receive payment. A time was fixed in one of the letters within which the payment must be made. Finally the account against its agent was left with a mercantile agency company in New York city, and on the second of March it wrote to the agent demanding immediate settlement of the claim. This was followed by a further communication from the same agency company on the fourteenth of that month. There was no reply during all this time to the letter of the defendant to ...