Hager v. Henneberger ( 1913 )

Page, J.

This action was brought to recover damages for the breach of a contract of sale. The facts are, that the plaintiff was the employee of a commission house dealing in eggs, butter, etc. Edgar S. Phelps was an employee of the defendants, likewise commission merchants. Both were members of the Mercantile Exchange. The plaintiff sold to Phelps 100 eases of “ fresh gathered first eggs.” A memorandum was signed of which the following is a copy:

“February 10th 1913.

“ C. H. Hager sells E. B. Phelps 100 cases f. g. firsts delivered within 26 days at 21c per dozen.

“ (signed) C. H. Hager

“ E. B. Phelps.”

The plaintiff and Phelps both testified that this purchase was made on account of the defendants and testimony was introduced to show that it was the usual custom to make the memorandum in the name of the individual with whom the deal was made rather than in the name of the firm that he represented. Sufficient evidence was given as to a course of dealing on Phelps ’ part, both with the plaintiff and others, to establish his authority in this manner to bind the defendants. The defendants maintain that this was a gambling transaction between the two employees and that had Phelps made a profit they would have never heard of the transaction, but when a loss resulted Phelps sought to saddle them with it.

However plausible this may seem, there is no evidence to sustain such an inference. Phelps testifies that he had sold 100 cases of eggs to be delivered in thirty days at twenty-two cents per dozen to one Augenblick and that he was criticized by defendants and that he made this transaction to cover that transaction. That subsequently eggs advanced to twenty-four cents but later declined and that one of the defendants stated to Phelps- that he should cover the Augenblick sale. That Phelps then informed him that he had already done so and then informed him of the above transaction. That the defendants refused to acknowledge this transaction and purchased the eggs at about seventeen cents per dozen and made the delivery to Augenblick. Subsequently when plaintiff inquired of the defendants whether they were willing to accept the eggs they stated that they would not under any circumstances accept them. Thereupon they were tendered to Phelps and, on his refusal, a sale of the eggs was made and this action brought to recover the difference between the contract price and the sale price.

The appellants contend that this action cannot be maintained. because of a change in the Statute of Frauds as enacted (Laws of 1911, chap. 571), “ a contract to sell or a sale of any goods * * * of the value of fifty dollars or upwards shall not be enfcreíble by action * * * unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. ’’ The learned counsel argues that the change from “ his lawful agent ’’ in the old law to ‘‘ his agent in that behalf ” has limited the agent who can bind the principal to one who signs the principal’s name and is authorized to sign his name.

I think the restriction of authority is to one authorized to act in the transaction and thus approaches more nearly the language of the original statute ‘‘ their agents thereunto lawfully authorized. ’’ Dykers v. Townsend, 24 N. Y. 57, is still good law.

It is undisputed that Phelps made the contract with the plaintiff in his own name for the defendants as disclosed principals and that the plaintiff so understood the transaction. Therefore, whether the custom of the exchange to make contracts in the names of individuals was proven or not, the defendants are liable upon this agreement if Phelps had apparent authority to bind them. The real question to be determined therefore, is, whether Phelps had been held out by the defendants to have such authority that the plaintiff was entitled to rely upon his contracts in their behalf. The finding of such authority by the learned trial justice is well supported by evidence of other transactions in which Phelps acted for the defendants and of which plaintiff had notice, and by the admissions of one of the defendants before a committee of the exchange that Phelps sometimes bought and sold for the defendants’ firm without specific instructions using his own judgment. The defendant Henneberger also admitted upon the stand that he had censured Phelps for selling eggs to Augenblick at twenty-two cents and that later when eggs went down to seventeen cents he told Phelps he would cover the sale to Augenblick and that when Phelps then informed him that he had already covered it by the purchase from the plaintiff at twenty-one cents, Henneberger said he would not take the eggs from the plaintiff at twenty-one cents. In speaking of this transaction before the committee of the exchange Henneberger also admitted that he would have accepted the transaction of the plaintiff if Phelps had turned in the ticket of sale at the proper time. I think that this evidence shows clearly that the defendant merely repudiated the transaction because of the fall in the market and because he could buy eggs at seventeen cents instead of twenty-one cents. It was clearly made for his benefit and by his agent with apparent, if not actual, authority. The plaintiff was not responsible for Phelps’ failure to turn in the ticket. I can see no reason for reversing the conclusion of the trial court.

Judgment should be affirmed, with costs.

Whitaker, J., concurs.