Barkley v. . Rensselaer and Saratoga R.R. Co. , 71 N.Y. 205 ( 1877 )

Per Curiam.

It is conceded that Wilson was authorized by the defendant to make the contract with Rising for the purchase of the 200 cords of wood. By the contract, which was verbal, Rising was to deliver the wood at the defendant's yard at Rupert, subject to inspection and measurement by the ’ defendant; and a portion of the wood was to be delivered more than a year after the contract was made. The contract for this reason was void by the statute of frauds. But Rising delivered the wood at the place fixed by the con-, tract, and if the defendant accepted it, it was bound to pay for it at the contract-price. The vendor delivered a portion of the wood prior to May, 1871, which was inspected and measured by Wilson, the wood-buyer and measurer of the defendant, and paid for by the defendant. The balance of the wood, about 1,232 cords, was delivered subsequently and prior to January, 1872, after the defendant had leased its road to the Delaware & Hudson Canal Company. It was inspected, measured, and accepted by Wilson.

The referee finds that the plaintiff had no notice of the lease, or that the agency of Wilson for the defendant had terminated, until after all the wood was delivered.

There was no change of employees on the road, and it was managed and, operated after the lease apparently as it had been before. Under these circumstances, the acceptance of Wilson bound the defendant. Rising had a right to assume that his agency for the defendant continued until he had notice to the contrary, and that in accepting the wood, Wilson was acting for the defendant. Wilson, before the lease, had authority to receive wood on the contract, notwithstanding it was void; and, as to Rising, the authority continued until he had notice of Wilson’s change of relation to the defendant.

Upon the findings and evidence, the averment that the wood was delivered to the defendant is established, and the right of the plaintiff to recover the contract-price became perfect as soon as it was measured and accepted by Wilson.

The fact that Rising subsequently accepted part payment for the 1,232 cords from the Delaware & Hudson Canal Company, did not discharge the defendant from its liability to pay the balance of the purchase-price. There was no agreement by Rising to accept the Delaware & Hudson Canal company as his debtor in place of the defendant.

The form of the receipt given for the money received from that company did not conclude the plaintiff from claiming that the wood was sold to, and accepted by the defendant. It was taken as a voucher for the money paid, and for no other purpose. It certainly was not conclusive evidence that the wood mentioned in the receipts was sold to the Delaware S Hudson Canal Company.

The judgment should be affirmed.

All concur, except Folg-eb and Miller, JJ., absent,

Judgment affirmed.